Steinerfilm, Inc.

STEINERFILM. INC. 769 Steinerfilm, Inc. and District 2, International Union of Electrical, Radio & Machine Workers, AFL- CIO. Cases 1-CA-16548 and 1-CA-16917 April 9, 1981 DECISION AND ORDER On August 20, 1980, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, both Respondent and the General Counsel filed exceptions and support- ing briefs. 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, find- ings,1 and conclusions of the Administrative Law Judge to the extent consistent with the following, and to adopt his recommended Order as herein modified. 2 The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Michael Gazaille because of Gazaille's union activities. We affirm this finding. The General Counsel clearly estab- lished a prima facie case of discriminatory dis- charge. The evidence presented below, as fully de- scribed in the attached Decision of the Administra- tive Law Judge, established that Respondent knew of Gazaille's activities on behalf of the Union and that these activities were the motivating cause in Respondent's decision to discharge Gazaille. Re- spondent failed to present credible evidence indi- cating that Gazaille's discharge was motivated by legitimate business considerations or that the rea- sons Respondent advanced for the discharge were more than pretext.3 Accordingly, we find that Re- spondent's discharge of Michael Gazaille constitut- ed a violation of Section 8(a)(3) and (1) of the Act. The General Counsel has excepted to the Ad- ministrative Law Judge's dismissal of the com- plaint's allegations that Respondent violated Sec- tion 8(a)(l) of the Act by twice requesting that the key union organizer, Michael Gazaille, leave its employ, and by granting its employees wage in- creases immediately after their initial union meeting for the purpose of discouraging union membership. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We have substituted our own notice for that of the Administrative Law Judge. 3 This is a case of pretextual justification for an unlawful discharge in which the asserted reasons do not exist, rather than a mixture of lawful and unlawful reasons for the discharge. See Limestone Apparel Corp., 255 NLRB 722 (1981). 255 NLRB No. 17 For the reasons explained below, we find merit to these exceptions. Michael Gazaille gave unrefuted testimony that Respondent's plant manager, Glenn Walters, twice requested that Gazaille leave Respondent's employ. The first such request was made on November 13, 1979, after Gazaille had complained to Walters that the second-shift slitters were not being paid a 10- percent differential as required in the employee handbook, that a former employee had not re- ceived payment from the profit-sharing plan, and that Respondent's job-posting plan was ineffective. According to Gazaille's unrefuted testimony, Wal- ters responded to Gazaille's complaints by telling him "if I didn't like it here, why didn't I go some- place else?" The second request to quit occurred on Novem- ber 20, 1979, after Walters had issued Gazaille a warning letter stating that Gazaille had been guilty of poor job performance, insubordination, misrep- resentation of work hours, absenteeism, and misuse of coffeebreaks, and informing him that any further violation of company policy would result in his im- mediate discharge. Following the issuance of this warning letter, which the Administrative Law Judge found to have been written solely for the purpose of fabricating a record of legitimate moti- vation for Gazaille's discharge, Glenn Walters walked into the area in which Gazaille was work- ing. An emotional and angry confrontation be- tween Walters and Gazaille ensued, which is well described in the attached Decision of the Adminis- trative Law Judge. During this confrontation, Wal- ters told Gazaille that if he did not like the situa- tion, he should leave. It is the established policy of this Board to find a violation of Section 8(a)(l) of the Act where an employer asks an employee to quit and such re- quest has a tendency to interfere with the free ex- ercise of the employee's Section 7 rights. 4 Our review of the circumstances under which Gazaille was asked to quit, particularly in the context of Re- spondent's other unfair labor practices, convinces us that these requests had a tendency to interfere with Gazaille's exercise of his Section 7 rights and implied that the free exercise of those rights was incompatible with his continued employment with Respondent. The record in this case leaves no doubt that Walters' requests that Gazaille quit were, in essence, thinly veiled threats of discharge for engaging in protected acitivity. For these reasons, we reverse the Administrative Law Judge's dismissal of paragraph 8(c) of the 4 Bell Burglar Alarms. Inc., 245 NLRB 990 (1979); Stoughton Trailers. Inc.. 245 NLRB 190 (1979); Jobbers' Supple Inc. 236 NLRB 112 (1978); 726 Seventeenth Inc.. /a Sans Souci Restaurant, 235 NLRB 604 (1978). STEINERFILM. INC. 769 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint and find that Respondent threatened Ga- zaille with discharge by asking him to leave its employ, in violation of Section 8(a)(l) of the Act. As noted above, we also find merit in the Gener- al Counsel's exception to the Administrative Law Judge's dismissal of the complaint's allegation that Respondent violated Section 8(a)(l) of the Act by granting its employees wage increases for the pur- pose of discouraging union membership. Respond- ent's employees held their initial union meeting on September 4, 1979. That evening, immediately fol- lowing the union meeting, Respondent's plant man- ager, Glenn Walters, had a conversation with em- ployee Michael Gazaille, during which Walters stated that there would never be a union at Steiner- film and that the Company would respond to unionization by moving its operations. Gazaille in- formed Walters that he had seen a copy of the col- lective-bargaining agreement of one of Respond- ent's competitors which indicated that the competi- tor's employees were receiving higher wages and benefits than those paid by Respondent. Walters re- plied that he would look into the matter and, if the employees of the competitor were receiving higher compensation, he would adjust Respondent's rates accordingly. On the following day, Respondent's president, Gordon Walters, called a meeting of the large-slit- ter operators and distributed copies of a new em- ployee handbook and, on a separate sheet of paper, a revised pay schedule. Under the new pay sched- ule, Respondent's employees were granted substan- tial progression increases. The Administrative Law Judge found that the wage increase had been under active consideration since late July or August and was occasioned by the fact that Respondent's employees were learning their jobs faster than had been originally expected. However, after a careful examination of the facts, we are convinced that such a conclusion is unsup- portable. First, we note that Gordon Walters was informed on September 4 by a key union activist that Respondent's wage rates were a principal cause of employee dissatisfaction leading to the union meeting. We note also that while Gordon Walters chose to discuss Respondent's wage rates with Michael Gazaille, he never mentioned an in- tention to make an immediate announcement of wage increases or that such wage increases were already being considered. The timing of the Sep- tember 5 wage increase is also significant. It was announced on the day immediately following the initial union meeting and Gordon Walters' conver- sation with Michael Gazaille, and clearly supports the General Counsel's contention that the wage in- creases were designed to defuse the union activity which Respondent knew was brewing. The fact that the revised wage schedule was distributed along with the new employee handbook, which had been in preparation for several months, offers no support to, but rather contradicts, Respondent's claim that the wage revisions had been planned prior to the initiation of union activity. The new wage schedule was not published as a part of the employee handbook but was instead distributed on a separate piece of paper. This procedure is entire- ly consistent with a newly conceived plan to un- dercut the employees' nascent union activity. Last, we find that Respondent has not offered any credi- ble explanation as to why previously unexpected wage increases were granted immediately after Re- spondent's employees held their initial union meet- ing. Accordingly, we hold that Respondent violated Section 8(a)(1) of the Act by granting wage in- creases on September 4, 1979, for the purpose of discouraging its employees from engaging in union activity. AMENDED CONCLUSIONS OF LAW The Conclusions of Law of the Administrative Law Judge are modified by deleting Conclusion of Law 4 and adding the following: "4. By requesting on November 13, 1979, and November 20, 1979, that Michael Gazaille leave its employ because of Gazaille's protected concerted activities, Respondent violated Section 8(a)(l) of the Act. "5. By granting wage increases to its employees on September 5, 1979, for the purpose of discour- aging union activity, Respondent violated Section 8(a)(1) of the Act." AMENDED REMEDY Having found that Respondent had engaged in certain unfair labor practices in addition to those found by the Administrative Law Judge, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent unlawfully re- quested that Michael Gazaille leave its employ on November 13 and November 20, 1979, we shall order that it cease and desist from such unlawful conduct. Having found that Respondent unlawfully grant- ed a wage increase to its employees on September 5, 1979, for the purpose of discouraging union ac- tivity, we shall order that it cease and desist from such unlawful conduct. However, nothing herein shall be construed as authorizing or requiring Re- STEINERFILM, INC. 771 spondent to vary or abandon any benefits previous- ly conferred. As the unfair labor practices committed by Re- spondent were widespread and demonstrated disre- gard for the fundamental rights of its employees, we shall order that it cease and desist therefrom and from interfering with, restraining, or coercing its employees in any other manner in the exercise of the rights guaranteed them in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Steinerfilm, Inc., Williamstown, Massachusetts, its officers, agents, successors, and assigns, shall take the actions set forth in the said recommended Order, as so modified: 1. Delete paragraph I(g) of the recommended Order and add the following new paragraphs: "(g) Unlawfully requesting employees to leave the Company's employ because of their union or other protected concerted activities. "(h) Unlawfully granting or denying wage in- creases for the purpose of discouraging union mem- bership. However, nothing herein shall be con- strued as authorizing or requiring Respondent to vary or abandon any benefits previously conferred. "(i) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Delete the paragraph immediately following paragraph 2(e) of the recommended Order. 3. Substitute the attached notice for that of the Administrative Law Judge. s Hickmott Foods. Inc.. 242 NLRB 1357 (1979). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with, restrains, or coerces employees with re- spect to these rights. More specifically, WE WILL NOT threaten employees that there will never be a union at our plant because we would move our operations and our employees would then lose their jobs. WE WILL NOT threaten employees with re- prisals because they support District 2, Inter- national Union of Electrical, Radio & Machine Workers, AFL-CIO, or any other labor orga- nization, or because they in concert complain about our wages and benefits policies. WE WILL NOT threaten employees that there will never be a union at our plant or that we will get rid of union supporters. WE WILL NOT unlawfully question employ- ees as to why they have gone to the Union or in regard to the filing of unfair labor practice charges with the National Labor Relations Board. WE WILL NOT maintain or enforce our rule prohibiting solicitation or distribution on com- pany property without permission or any other rule which unlawfully restricts employees' rights to solicit membership in or distribute lit- erature on behalf of District 2, International Union of Electrical, Radio & Machine Work- ers, AFL-CIO, or any other labor organiza- tion. WE WILL NOT discharge or otherwise dis- criminate against our employees because of their union activities or because of other pro- tected concerted activities on their part. WE WILL NOT unlawfully request that em- ployees quit their jobs because of their union activities or other protected concerted activi- ties on their part. WE WILL NOT unlawfully grant or deny wage increases for the purpose of discouraging union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. WE WILL offer to Michael Gazaille immedi- ate and full reinstatement to his former posi- tion or, if that position no longer exists, to a substantially equivalent position, without prej- STEINERFILM, INC. 771 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD udice to his seniority and to his other rights and privileges previously enjoyed. WE WILL make Michael Gazaille whole for any loss of earnings or other benefits he suf- fered as a result of our discrimination against him, together with interest thereon. STEINERFILM, INC. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: On a charge of unfair labor practices filed by District 2, In- ternational Union of Electrical, Radio & Machine Work- ers, AFL-CIO, herein called the Union, in Case -CA- 16548 on September 6, 1979,1 and an amended charge on October 23, and a charge of unfair labor practices in Case 1-CA-16917 on December 3, an order consolidat- ing these cases and an amended complaint was issued on January 30, 1980. Alleged were violations of Section 8(a)(l), (3), and (4) of the National Labor Relations Act, as amended, by Steinerfilm, Inc., herein called the Com- pany or Respondent. In substance, the complaint, as further amended at the hearing, alleges that Respondent on November 20 issued a written warning to its employee Michael Gazaille and on November 27 discharged Michael Gazaille because he joined or assisted the Union or engaged in other concert- ed activities protected by Section 7 of the Act and be- cause he filed charges or gave testimony under the Act, and that by the foregoing and by other conduct set forth in the complaint Respondent also interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Re- spondent duly filed an answer denying that it has en- gaged in the alleged unfair labor practices. A hearing in these proceedings was held in North Adams, Massachu- setts, on March 12, 13, and 14 and April 11, 1980. Fol- lowing the close of the hearing, briefs were filed with me on behalf of the General Counsel and Respondent. Upon the entire record in these cases and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Steinerfilm, Inc., a Massachusetts corporation, which maintains its principal office and place of business in Wil- liamstown, Massachusetts, is engaged in the manufacture, sale, and distribution of metalized dielectric capacitor film and related products. In the conduct of its business Respondent annually receives goods valued in excess of $50,000 which are shipped to its Williamstown plant through channels of interstate commerce from points outside the Commonwealth of Massachusetts and annual- ly ships from its Williamstown plant products valued in excess of $50,000 through channels of interstate com- I Unless otherwise indicated all dates refer to the calendar year 1979. merce to locations outside the Commonwealth of Massa- chusetts. The answer admits, and I find, that Respondent is an employer within the meaning of Section 2(2) en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, District 2, International Union of Electri- cal, Radio & Machine Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Company began production operations in its pres- ent plant in Williamstown, Massachusetts, in February 1978. However, it started its business on a very small scale in 1973, then employing only three persons. Expan- sion was gradual until 1978 during which time the number of employees increased to eight or nine. In 1978 the Company moved into its present quarters and its em- ployee complement began to increase rapidly so that by the end of 1978 it had 25 employees. By the end of 1979 it had 50 employees and as of the time of the hearing there were between 89 and 100 employees. In 1979 the Company obtained a permit to build a 30,000-square-foot addition to its present building and construction of this addition was in progress during the late summer and the fall of 1979. The Company produces dielectric tape, the manufac- ture of which involves two steps: first, affixing aluminum to one or both sides of polypropylene film and, second, slitting the film into widths which vary from 6 to 100 millimeters. The operators who slit the film into the smaller widths are known as small slitting operators and the operators who slit the film into the larger widths are known as large slitting operators. The Company normal- ly operates two shifts: the first from 6:30 a.m. to 3 p.m. and the second from 3 to 11:30 p.m., although in the fall of 1979 the metalizers worked three shifts. As of the times relevant to these proceedings the presi- dent and principal operating official of the Company was Gordon Walters and in charge of day-to-day operations was his son, Glenn, who is the plant manager. Ronald Brown supervised the six maintenance and the nine meta- lizing employees and Norman Barber was in charge of the slitters. The latter supervised the first shift and also the second shift until around September 24 when John LeFebvre was promoted to supervisor of the second shift. (LeFebvre was suspended on December 28 and was discharged on January 14, 1980). John Sawyer, who was employed as a slitter, was promoted to supervisor as of February 4, 1980. Also employed by the Company was a second son of Gordon Walters, Duncan Walters, who did not hold a supervisory position but performed various rank-and-file jobs in the course of several periods of employment and reemployment with Respondent. Duncan Walters resided with his father. From the inception of its business in 1973 the Compa- ny's personnel practices were informal. As it employed fewer than 10 persons prior to 1978 it was not necessary STEINERFILM, INC. 773 to use timeclocks, to keep attendance records, or to have a formal disciplinary system. However, with the rapid growth following its move into its present, larger facility the Company began to realize the need for a more struc- tured personnel program. Thus, in the fall of 1979, Glenn Walters began holding monthly meetings with the em- ployees to discuss production and other problems; the Company installed a timeclock and hired a consultant to prepare an employee handbook. The principal witnesses for Respondent were its chief executives, Gordon Walters and Glenn Walters. Both strove to present their testimony in a manner most favor- able to Respondent's position. In so doing, however, they distorted or misrepresented certain of the events they were describing as is reflected, in particular, by var- ious self-contradictions in their testimony and by some farfetched, improbable explanations of their actions. I agree with the General Counsel that these witnesses were "combative, hostile and evasive" and I find that they were unreliable witnesses. B. The Organizational Effort In August some company employees began to indicate an interest in obtaining union representation. In mid- August employee John LeFebvre made an appointment to speak with Plant Manager Glenn Walters. LeFebvre told Walters that the employees were having difficulty living on their wages and that several employees had been talking about contacting a union but that LeFebvre first wanted to try "to settle things" with Walters. Glenn Walters inquired whether that was an ultimatum that either he did something or the employees were going to get a union. LeFebvre responded that it was not an ulti- matum but that the possibility of unionization was a matter for consideration. Subsequently, LeFebvre and another employee, James Mohl, contacted the Union. Thereafter, on September 4, a meeting was held at the Cozy Corner, a restaurant in Williamstown. Present were a union representative, Patricia Pezze, and about 30 em- ployees including Michael Gazaille. The latter signed an authorization card for the Union and spoke in favor of the Union, stating that he had worked in union shops before and that the employees could have greater secu- rity and better benefits with the Union.2 A second public union meeting was held on Sunday, September 9, at the Greylock Community Club in Wil- liamstown. LeFebvre acted as chairman of the meeting as he did on September 4. Gazaille again spoke about the employees' need for the protection and the benefits which the Union offered. Union Representative Pat Pezze offered to answer questions from the employees. However, Duncan Walters began talking and created a commotion which ultimately broke up the meeting. Duncan Walters stated that there was no need for a union, that the Company treated its employees well. He pointed out that he and James Mohl had been reinstated without any help from the Union and the Company had never discharged anybody. He further stated that 12 years earlier Steinerfilm had started an operation in Wil- 2 Gazaille was scheduled to work on the night of September 4 and at- tended the union meeting from 6:30 to 7 p.m. during his meal break. liamstown but when a union attempted to organize its employees the Company moved out of the town, even though it had been making a million dollars per year, and the Company would do the same thing again if nec- essary. He said that the people who had signed union cards should demand the return of their cards. Also, he insisted that there be a show of hands on whether the employees wanted a union or did not want a union. The meeting became boisterous and broke up. The Company was opposed to representation of its employees by a union. In its employee handbook there is a section entitled "STEINERFILM, INC. POLICY ON RE- MAINING NONUNION," which begins: We prefer to deal with people directly rather than through a third party. Steinerfilm is a NON- UNION organization. It always has been and it is our desire that it always will be that way. Glenn Walters testified that he learned of the Septem- ber 4 meeting the same week. On September 7 he distrib- uted a 2-1/2-page letter to the employees which in gen- eral terms talks about the benefits the Company offers its employees and states that while unions are free to make promises they often are unable to fulfill their promises. Also, on September 10, following the union meeting on the previous night, Glenn Walters distributed another letter to the employees which, in pertinent part, states: I have just recently been informed that last night there was a union organizing meeting where by a 5 to I ratio Steinerfilm employees overwhelmingly told the union organizers that we are uninterested in their third party interventionism. I would like to say that I hope that this is the end of it .... I have not asked anyone for any type of list show- ing union versus non-union employees and I have actually refused to look because I am uninterested and do not want my judgments influenced ... Although John LeFebvre was one of the leaders of the union movement among the employees, nevertheless, as of September 24 he was promoted to supervisor for the second shift. When he was offered the position Le- Febvre advised Glenn Walters that although he would not take a prounion stand he also would not take an an- tiunion stand. C. Interference, Restraint, and Coercion Paragraph 8(a) of the complaint alleges: On or about September 4, 1979, Plant Manager Glenn Walters told an employee in the William- stown plant that there would never be a union at the plant because Respondent would move its oper- ations and that employees would lose their jobs. The employee referred to is Michael Gazaille who tes- tified that, on or about 7:30 p.m. during the second shift on the night of September 4, Glenn Walters spoke with employees James Mohl, Craig Gregory, and Dennis St. STEINERFILM, INC. 773 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pierre, separately calling each away from his work, and then spoke with each of these employees a second time. Mohl did not return to work after his second conversa- tion with Glenn Walters. Following these incidents Glenn Walters had a conversation with Gazaille at his place of work. According to Gazaille: I asked [Glenn Walters] where is Mr. Mohl. He said Mr. Mohl is not going to be with us until Friday. I asked him why. He didn't say nothing. I said it is because of the union, isn't it? He then stated to me that there will never be a union in Steinerfilm be- cause they will move the machines back to Ger- many or down south and then the people in the plant will wonder what happened to their jobs. The conversation continued. Gazaille stated that at the union meeting he had seen a competitor's contract which showed that the employees at that company had better benefits and were getting higher pay than Steinerfilm's employees. Walters asked who showed him the contract and Gazaille answered that he was not at liberty to tell. Walters responded that he would contact that company to ascertain whether in fact they were paying more than Steinerfilm and if they were he would adjust the wages at Steinerfilm accordingly. Although Walters did not direct himself to the specific incident referred to by Gazaille, he testified that since August 1979 he did not tell or threaten employees that Steinerfilm would close its plant. Respondent in its brief argues that among the reasons Gazaille should not be credited is that "Walters testified that he did hear about the September 4 union meeting sometime during the day of September 5. Walters testified that he did not learn of the first union meeting until sometime later that week." However, Glenn Walters' testimony is ambiguous as to when he first learned of the September 4 union meeting. Early in the hearing when he was examined by the Gen- eral Counsel, Walters testified: Q. When did you become aware of the Septem- ber 4th meeting? A. Sometime later that week. Q. That was the meeting at Cozy Corners, is that correct? A. That's what I'm told. Q. When did you find out where the meeting took place? A. I really don't recollect. It was an insignificant thing where it took place to me. I don't remember the insignificant things. Later during the hearing when questioned by Respond- ent's counsel, Glenn Walters testified: Q. Did you know of any union activity at all during that meeting? [Referring to a meeting on September 5.] A. I had heard of supposedly a union meeting on the night of September 4, but .... Contrary to Respondent, I find that on the night of September 4 Glenn Walters knew that employees had at- tended a union meeting. I am of the opinion that Gazaille was a more truthful witness than Glenn Walters and I credit his testimony concerning their conversation on the night of September 4 and I further find that the General Counsel has proved the quoted allegation of the com- plaint.3 Section 8(d) of the complaint alleges: On or about September 5, 1979, Glenn Walters asked an employee at the Williamstown plant why he had gone to the union; told him there would never be a union at the plant; and threatened to get rid of union supporters. The employee referred to is John LeFebvre who testi- fied that on or about 2:30 p.m. on September 5 after he finished work he was invited into the office by Glenn Walters and the two then engaged in a conversation which continued for 2 to 3 hours. According to Le- Febvre, among other things: He asked me about the union and he wanted to know which union was contacted. He wanted to know why I was involved in a union. I told him that I wasn't . . . he said, well by your presence at the meeting you were. I said the only things I did at that meeting was introduce Pat Pezze who was the rep for the union and he told me there would never be a union at Steinerfilm; that there were only a couple of instiga- tors that he was going to get rid of. I told him that if he wanted to get rid of anybody that he should have done it before they started organizing a drive, because at this point if he was going to get rid of anybody who was involved in organizing a union then we would bring charges against him.... Glenn had said that there was no need for a union because in Germany they had a group of employees who settled grievances and he was thinking of set- ting up the same thing over here. Glenn Walters' version of his meeting with LeFebvre differs substantially from the latter's. According to Glenn Walters, LeFebvre requested the meeting. In respect to their discussion about a union, according to Glenn Wal- ters, "I explained to him that both our plants in Germany and Ireland were non-Union and that we had a policy of remaining non-Union. We would try to continue because it's our belief that having a Unionized company would 3 Michael Gazaille is a high-strung, emotional individual. He reflected more than the usual nervousness of an individual who is not accustomed to giving testimony at formal proceedings. Nevertheless, his testimony was given straightforwardly and without equivocation. Although in giving his testimony Gazaille tended to ramble somewhat about matters that were not directly called for by the question asked, he did not appear to be shaping his testimony or contriving a story. I am of the opinion that Gazaille was a truthful witness. -- -- -- STEINERFILM, INC. 775 prevent or would inhibit our competing in the market- place, from a competitive standpoint." Also, Glenn Wal- ters denied that he then or at any other time said to Le- Febvre that he would "take care of" Mike Gazaille. In its brief Respondent argues that LeFebvre's testimo- ny should be rejected because it is "tainted by his dem- onstrated bias and animosity towards Respondent. As noted above, LeFebvre was discharged by Respondent for cause on January 14, 1980." However, LeFebvre was a composed, articulate, and candid witness and his testi- mony was not impeached. I am of the opinion that John LeFebvre was a more reliable witness than Glenn Wal- ters. I credit his testimony and find that the General Counsel has proved the allegations of the complaint quoted above. Paragraph 8(b) of the complaint alleges: On or about September 5, 1979, President Gordon Walters told an employee in the conference room of the Williamstown plant that the employee was an instigator and a rabble-rouser and threatened the employee with unspecified reprisals because the employee supported the Union and complained about Respondent's wage and benefits policies. On September 5 Michael Gazaille was called to a meeting in the Company's conference room with Gordon and Glenn Walters. Present also was employee James Crawford, who was a witness for the General Counsel, although he was opposed to the Union. 4 There are three conflicting versions of what occurred at the September 5 conference, that of the Walterses, of Gazaille, and of Crawford. Gazaille testified that after salutations were exchanged Gordon Walters said: I have been told that you are a spokesman for the third party. And I said what third party? He says come on now, I have been told that you are an in- stigator and a rabble-rouser. I replied I have never been elected to any such post and I do not want to be put in the middle ... He said well, he had heard differently, that I am the spokesman for this third party. I again told him I was not ... He asked me what some of the basic problems were with the people. I told him money . . . was a pretty big issue with the people and that Glenn Walters had taken our radio out of the slitting room and had promised to replace it with a better one ... and we still had no radio .... Gordon Walters inquired how Gazaille knew so much about employee gripes if he was not the spokesman for this third party. According to Gazaille: I told him that I am one of the longest term em- ployees . . . that people have approached me with their problems and their grievances .... 4 Crawford attended the September 9 union meeting with a group of employees, including Duncan Walters, who were opposed to the Union and at that union meeting Crawford spoke against the Union. Gordon Walters then told me that he would con- duct an investigation into the allegations . . . about [my] being a spokesman for the third party and he would get back to me on Friday, and that if he was wrong that he would personally apologize to me, but if he found that he was right, that I would pay ... Also, during the conversation, "Gordon told me he didn't like my smart-aleck remarks about asking for more money." Gazaille denied that there was any discussion of his production, tardiness, attendance, or abuse of coffee- breaks. 5 According to the Walterses, the meeting was called for the purpose of discussing Michael Gazaille's poor performance on the job and also to discuss certain inci- dents of misconduct on his part. Thus, Gordon Walters testified that he began the meeting by referring to prob- lems the Company had with Gazaille's performance and with Gazaille's attitude and that he wished to find some solution. Gazaille responded, belligerently remarking, "[G]o ahead and do what you have to do . . . [it] doesn't matter to me." Gordon Walters warned Gazaille that if his performance and attitude did not improve cor- rective steps would be taken. Again Gazaille responded, "I don't care." According to Gordon Walters' further testimony, "Mike implied that he was the spokesman for the group, and I guess I told Mike, like we're working with him, on a one to one basis, if people in the area had problems, I'd appreciate them coming into [the] office and talk to me, one to one, rather than going through a third party." Gordon Walters further testified: Q. Did you ever investigate to see if some of these allegations he was acting for others was true? A. Yes, sir. Q. And, what was the result of that investigation? A. The result proved to be more talk than valid- ity. Q. Would you explain that? A. The only one that seemed to have a problem was Mr. Gazaille and he was trying to put himself off as a spokesman for other people in the facility. In general, Glenn Walters corroborated the testimony of his father. Glenn Walters denied that the Union was a subject of discussion at the meeting. However, he testi- fied: Q. Did Mr. Gazaille say to you, at that point in time, that he was a Union leader? A. No, sir. He claimed just the opposite. He claimed he was no way directly involved and that he didn't intend to get involved. But, it was brought up by Mr. Gazaille and it was not mentioned or- never Gordon or myself brought the subject up. James Crawford testified that he was called to the office by Glenn and Gordon Walters and was asked to I Gazaille also testified that on Friday. September 7, he asked Glenn Walters what decision was made regarding his tenure and Glenn Walters replied that Gazaille was not going to be fired. STEINERFILM, INC. 775 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remain as a neutral observer during a meeting with an employee. Michael Gazaille was then summoned. Gordon Walters did most of the talking. He asked Ga- zaille why he was unhappy and why he was constantly grumbing. Gazaille responded that Glenn Walters did not keep his word and did not supply a stereo system for the slitting room. Also, Gazaille asked for more wages. It appeared that Gazaille believed that he was called into the office to be discharged and several times said, "[Y]ou called me in to fire me. Why don't you fire me." Before the meeting was over Gordon Walters said that he would think it over and would get back to Gazaille. Crawford further testified: Q. Do you recall any discussion of anyone being a spokesman? A. It seems like Gordon asked Mike if he was setting himself up as a spokesman for the group. Q. Was there any response? A. Yeah. I believe Mike said no, that he wasn't. Q. Was there any relationship between the dis- cussion of Mr. Gazaille being a spokesman and the investigation or decision that Management was going to make? A. I don't believe so. A. Well, I do believe it was brought out that Mike Gazaille wasn't helping the company with all his grumbling and his being so discontented and let- ting his fellow workers know this, of course. Q. Do you recall any mention of anyone being a rabble-rouser? A. No, I don't think so. Q. Do you recall any discussion of if not the word rabble-rouser, something to that effect? A. Well yes, in that apparently Mike's grumbling and his being discontent was keeping other people upset also. Crawford also testified that there was no discussion of Gazaille's production, tardiness, absenteeism, or abuse of coffeebreaks and that the subject of the Union was not mentioned at the meeting. Although Crawford's recollection of the meeting dif- fers to some degree from Gazaille's, he does corroborate the substance of Gazaille's testimony. He confirmed that there was no discussion of Gazaille's performance on the job and that the discussion related to Gazaille's com- plaints and attempts to speak for other employees. Thus, while Crawford did not remember that the word "rabble-rouser" was used, he testified that statements to the same effect were made, that is, Gazaille was accused of setting himself up as a spokesman for the employees and of causing discontent among the employees. He also remembered that Walters stated that they were going to conduct an investigation. He did not testify what would be the subject of the investigation although he did not believe that it would be related to the accusation that Gazaille was the spokesman. However, Gordon Walters, in effect, corroborated Gazaille's testimony that at the September 5 meeting Gazaille was told that an investiga- tion would be made regarding Gazaille's position as a spokesman. The difference between the testimony of Gordon Walters and that of Gazaille is only that Ga- zaille testified that Walters threatened that he would conduct an investigation as to whether Gazaille was a spokesman for a third party whereas Gordon Walters testified that, in fact, he conducted an investigation to determine whether the allegations were true that Ga- zaille was acting for others. I find, contrary to the testimony of the Walterses, that the September 5 meeting was not concerned with Ga- zaille's job performance or with his attitude in relation to his work but was directed to Gazaille's activities on behalf of himself and other employees and that Gazaille was accused of developing discontent among the em- ployees and was threatened with an investigation which implied that, if the results were adverse, reprisals of some kind would be taken against Gazaille. I find, there- fore, that the substance of the allegations in paragraph 8(b) of the complaint have been proved. Paragraph 8(c) of the complaint alleges: In late October and early November, 1979, on several occasions at the Williamstown plant, and once by telephone to Mike Gazaille's home, Glenn Walters asked Gazaille why he didn't leave Re- spondent's employ. In his brief the General Counsel states that he relies on two incidents, one that occurred on November 13 and another on November 20, to support this allegation of the complaint. General Counsel argues that "[t]he sug- gestions that Gazaille quit were unlawful, because they were motivated by Gazaille's protected concerted activi- ty, his union activity, and his protest of the unlawful written warning. John Dory Boat Works, Inc., 229 NLRB 844, 848-849 (1977)." The portion of the John Dory deci- sion to which the General Counsel alludes is as follows: In the course of polling employees, Finkelstein also told several employees that if they wanted the Union they should not work at John Dory and should go to work in a union shop. He also told them, as he had told the union officials a few min- utes earlier, that he could not afford a union and would simply close the shop if the Union came in. Such threats are manifest from the record and are clear and serious violations of Section 8(a)(1) of the Act. The John Dory case does not support the General Coun- sel's contention that an employer who merely asks an employee why he does not leave its employ violates the STEINERFILM, INC. 777 Act, even if the remark were motivated by the employ- ee's pursuit of a protected concerted activity. According- ly, I shall recommend that paragraph 8(c) of the com- plaint be dismissed. Paragraph 8(e) of the complaint alleges: On or about September 5, 1979, Glenn Walters interrogated employees in his office at the plant as to whether they had signed union cards; told an em- ployee to get back her union card; told employees he had a list of everyone who signed union cards and he would get them; and told them Respondent would transfer work or close the plant and keep the union out. The General Counsel called on two witnesses, Sandra Koch and Joan Braman, to give testimony in support of this allegation. Koch testified that on September 5 or 6 she and employees Joan Braman and Lucille Lillie went to the office where they spoke to Glenn Walters in order to make him aware of the union activities in the plant. According to Koch, Walters said that the Company could send its business to Ireland, could shut its door, and would do that before it would let the Union in. He also mentioned with reference to employees who wanted the Union that "revenge was sweet." Koch further testi- fied that on that day or the next there was another meet- ing with Glenn Walters. In attendance at this meeting were Koch, Joan Braman, and Cynthia Scalise. The em- ployees informed Glenn Walters that the Union was making more progress than they originally had thought. According to Koch, "Glenn asked us if we knew of anyone who had signed cards and Cindy Scalise ad- mitted that she had signed a card. He told her that she should get it back and he left the room." Joan Braman who also was called as a witness by the General Counsel recalled only one meeting with Glenn Walters at which were present, in addition to herself, Koch, Scalise, and Lucille Lillie. According to Braman, "We were talking to Glenn about the Union. He asked if anybody had signed any cards and we said no. Cindy had signed a card and he told Cindy to get it back ... He said he had a list of the people who had signed the Union cards and he said, 'Remember, revenge is sweet' and he would get everyone on the list." Thus, while Braman corroborated Koch's testimony to the extent that she also testified that Glenn Walters asked about employ- ees who had signed cards and directed Cindy Scalise to get her card back, she did not corroborate Koch in regard to the alleged threat to shut the plant and her tes- timony describing the context in which Glenn Walters made the remark to the effect that "revenge is sweet" is different from Koch's. Cynthia Scalise, who was called as a witness by Re- spondent, testified that she attended only one meeting at which Koch, Braman, Lucille Lillie, and Glenn Walters were present. According to Scalise, she asked Glenn Walters if she could get her union card back and "he said, he didn't know why not." She denied that Walters asked if anyone knew who signed union cards and denied that Glenn Walters instructed her to get her card back from the Union. Also, she denied that Glenn Wal- ters said that he had a list of employees who had signed union cards and that he would get everyone who was on the list. Glenn Walters denied having made the incriminatory remarks attributed to him by Sandra Koch and Joan Braman and his testimony regarding Scalise's desire to retrieve her union card was similar to her testimony. I find that the General Counsel's witnesses Koch and Braman are less reliable than Respondent's witnesses in regard to the event in issue and thus that the General Counsel has not proved the allegations of paragraph 8(e) of the complaint by a preponderance of the evidence. Accordingly, I shall recommend that that allegation of the complaint be dismissed. Paragraph 8(f) of the complaint alleges: On or about September 5, 1979, Respondent granted a pay increase to employees in order to dis- courage them from joining or supporting the Union. In support of this allegation the General Counsel intro- duced into evidence a pay scale for slitting operators which was effective as of September 3, 1979, and devel- oped testimony through Michael Gazaille purporting to establish that the change in pay for the slitters was made in response to the organizational activities which were taking place and in order to discourage employee sup- port for the Union. The exhibit shows a wage progres- sion beginning at $4 for I to 3 months' employment, then $4.40 for 3 to 9 months, $5 for 9 to 15 months, and $5.25 for 15 months and longer, plus appropriate adjustments reflecting a 15-percent differential for the second shift and a 25-percent differential for the third shift.6 Relative to this question Michael Gazaille testified that he had a conversation with Glenn Walters sometime after 7:30 p.m. on September 4 during which Walters stated that there would never be a union at the Compa- ny. According to Gazaille, he informed Walters that at the union meeting held earlier that evening he had seen a contract of a competitor, Schweitzer's, which is located in Lee, Massachusetts, that revealed that Schweitzer's employees were receiving higher pay and better benefits than the employees at Steinerfilm and "[h]e told me that he would contact this plant and check it out and see that it was true that they were getting benefits and that he would adjust our rates accordingly." Then, according to Gazaille's further testimony, about 3:30 p.m. on Septem- ber 5 the large slitting operators were called into a meet- ing during which Gordon Walters passed out to the em- ployees a copy of an employee handbook and a paper containing the proposed pay scales and said that "after careful consideration by management that they realized that the learning curves for the job should have been ad- justed [as] the people learned the job quicker than they e John LeFebvre testified that on September 7 or 8 he was given an envelope marked "personal and private" which included a new pay scale for metalizing employees. No other evidence appears in the record re- garding the alleged new pay scale for metalizing employees and the Gen- eral Counsel in his brief does not refer to the testimony of LeFebvre as supporting the allegation of the complaint quoted above. I find that Le- Febvre's testimony does not support a finding that the metalizing em- ployees were notified about September 5 of an increase in their wages. STEINERFILM, INC. 777 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought originally, so they should be getting their raises sooner." Gazaille testified that under the new scale he received a 60-cent-per-hour increase. Glenn Walters explained that in late July or August 1979 he had a discussion with Gordon Walters regarding "the possibility of changing the rates to more accurately reflect this actual learning curve, which was different than what our anticipation of the learning curve was." He further explained that employees were paid under an automatic progression which was intended to increase their compensation as their productivity increased and that experience demonstrated that employees learned to perform their jobs more quickly than had been anticipat- ed when the Company's pay structure originally was de- veloped. Thus, in February 1978 the Company changed the progression increases for its employees to seven in- crements over a 24-month period. Then, in December 1978 a second change was made reducing the number of progression increments from seven to six and the period from 24 months to 18. Lastly, the pay scale was further changed effective September 3, 1979, by further reducing the number of increments from six to four and the period during which these progressions occur from 18 months to 15 months. The General Counsel in his brief argues: "Respondent admittedly granted an across-the-board wage increase during the week of the first public union meeting." This does not correctly reflect the evidence. The starting rate for the slitting operators of $4 per hour and the maxi- mum rate of $5.25 per hour were not changed. The testi- mony of Glenn Walters is that the number of progres- sions was reduced and the time interval between each progression was shortened. The effect, as experienced by Gazaille, was that some employees received an increase as of September 3, 1979, because they qualified for the next higher progression as of that date, when under the prior pay plan they might have had to wait an additional number of months before receiving the increase. There is no evidence that all the slitting operators received a wage increase as of September 3, 1979. However, the issue is not whether the Company's pay scale which became effective as of September 3, 1979, was an across- the-board increase or a mere adjustment in progression intervals but whether the change was made in response to the employees' union activities or, as testified to by Glenn Walters, was the result of a reevaluation of the pay progression schedule made prior to the advent of union activity in the plant. The credited testimony of Gazaille that on the night of September 4 Glenn Walters stated that he would check the wage rates being paid by Schweitzer's and if they were higher that he would then adjust the Company's wage rates accordingly creates a suspicion that the announcement of a new pay scale the next afternoon was in response to the conversation be- tween Glenn Walters and Michael Gazaille. On the other hand, the lapse of less than 24 hours between the conver- sation between Glenn Walters and Gazaille and the an- nouncement of the increase would tend to support Glenn Walters' testimony that this matter had been under con- sideration since late July or early August. Further unre- futed is Glenn Walters' testimony that the September 3 revision of pay scales was the third such revision in little more than a year and a half. In addition, on September 5 the Company also distributed to the employees a new employee handbook the preparation of which began months earlier, before the union activities commenced at the plant. These factors tend to bolster Glenn Walters' testimony that the pay scale was changed as a result of the reevaluation of the Company's wage structure which was begun more than a month earlier, and not because of the conversation between Glenn Walters and Gazaille on the night of September 4. I find that the General Counsel has failed to prove by a preponderance of the evidence that the Company on or about September 5 granted a pay increase to its employees in order to discourage them from joining or supporting the Union.'7 Accordingly, I shall dismiss this allegation of the com- plaint. Paragraph 8(g) of the complaint alleges: On or about January 29, 1980, Glenn Walters telephoned an employee and interrogated him re- garding the filing of a Charge with the Board and impliedly threatened the Employee by suggesting that Walters could have fired several employees on an earlier occasion. Paul Walsh, a second-shift slitting operator, testified that on January 14, 1980, Gordon Walters asked him to sign a written warning which related to an incident that purportedly occurred on December 21 when several em- ployees allegedly had been drinking in the plant. Subse- quently, at a union meeting, there was discussion among the employees to the effect that the employees who were given the warnings were compelled to sign them and they did not understand why they had to do so, that a charge would be filed about the matter. About midnight on January 29, 1980, when Walsh had returned home after having worked on the second shift, he received a telephone call from Glenn Walters. Wal- ters inquired if Walsh had filed a charge to the effect that he had been forced to sign a disciplinary warning. Walters also asked if anyone else had signed the charge and Walsh responded that he did not know. Glenn Wal- ters then stated that the employees should have used the open door policy, that the matter could have been worked out and that it was not necessary "to do this." Walters then asked if Walsh really felt that he was forced to sign the warning. When Walsh replied that he did, Walters said that "he should have fired us all back in December when we were drinking." I credit Walsh's testimony, which is substantially cor- roborated by his wife who overheard the conversation. Accordingly, I find that the General Counsel has proved the allegations set forth in paragraph 8(g) of the com- plaint. Paragraph 8(h) of the complaint alleges: On or about February 6, 1980, Respondent dis- seminated to employees a written rule prohibiting The General Counsel does not contend that the timing of the changed pay scale, apart from whether it was unlawfully motivated, con- stitutes a violation of the Act. I STEINERFILM, INC. 779 solicitation and distribution on company premises, which unlawfully restricted employees' rights to engage in union and protected concerted activity. A document was distributed to the employees which was intended to explain company rules in more detail than appears in the Company's employee handbook. The document is entitled "Company Rules and Penalties" and sets forth as violations, among other things, "Solicitation or distribution on Company property without permis- sion." Glenn Walters testified that the document contain- ing the rule in question was distributed to the employees on January 30, 1980, that the rule had not been enforced, and that, as it appears on the sheet that was distributed to the employees, it contains a typographical error in that left out are the words "Company time." Respondent adduced no evidence indicating that at any time prior to the hearing in these proceedings did it advise its employ- ees of the alleged typographical error or that the rule would not be enforced as written. Contrary to Respond- ent, I find that the rule as it appears on the sheet which was distributed to the employees would tend to inhibit employees in the exercise of their statutory rights and the fact that it may not have been enforced between Jan- uary 30, 1980, when it was promulgated, and March and April 1980 when the hearing in these proceedings was held does not overcome the coercive impact of the rule. Accordingly, I find that the General Counsel has proved the allegations set forth in paragraph 8(h) of the com- plaint. D. Michael Gazaille The complaint alleges that on November 20 Respond- ent issued a written warning to Michael Gazaille and then discharged him on November 27 because he sup- ported the Union, engaged in other protected concerted activities, and filed charges or gave testimony under the Act. Gazaille was hired in December 1978 as a large slitting operator at $3.75 per hour plus a 15-percent differential when he worked on the second shift. At that time the large slitting operators worked a swing shift, alternating each week between the first and second shifts; their su- pervisor was Norman Barber. Gazaille received his pro- gression increases as they became due and received an additional increase of 20 cents per hour in June after he complained to Glenn Walters that he required more money because he lived far from the plant and his trans- portation expenses were high. Glenn Walters testified that prior to June 6 Gazaille was performing "a reason- able job" and the increase reflected a merit factor. In early September Gazaille spoke with James Mohl and John LeFebvre about seeking union representation. However, he was not with them when they first contact- ed the union representatives. Gazaille attended the union meetings on September 4 and 9 and spoke in support of the Union on both occasions. He also signed a union au- thorization card at the first meeting. After the organizing drive began to fade, following the chaotic September 9 meeting, Gazaille sought to "just [keep] it alive." In Oc- tober and November he solicited 10 to 20 employees to sign union authorization cards and succeeded in obtain- ing 10 signed cards. Glenn Walters learned of Gazaille's union interest early in September. On the night of September 4 when Gazaille returned to work after having attended the union meeting during his dinner break between 6:30 and 7 p.m., he had a conversation with Glenn Walters. During their talk Gazaille inquired whether James Mohl had been released from work because of the Union and in response Glenn Walters stated that there would never be a union at Steinerfilm. Also, Gazaille informed Wal- ters that at the union meeting he had seen the contract of a competitor, Schweitzer's in Lee, Massachusetts, which showed that its employees were receiving higher wages and better benefits than the employees at Steinerfilm. The next day, September 5, Gazaille was summoned to a relatively formal meeting in the conference room with Gordon and Glenn Walters. The Walterses invited em- ployee James Crawford to attend as an observer. At this meeting Gordon Walters accused Gazaille of "setting himself up as a spokesman" for the employees and caus- ing unrest among the employees, and Walters threatened to conduct an investigation of his activities. Gordon Walters specifically expressed his objection to employees "going through a third party" rather than treating with him on a one-to-one basis. On September 6 the Union filed a charge of unfair labor practices against the Company, an amended charge was filed (Case -CA-16548) on October 23, and a com- plaint therein was issued on October 25, alleging viola- tions of the Act based on Glenn Walters' conversation with Gazaille on September 4 and the conference with Gazaille on September 5. The Company knew that Ga- zaille was the employee referred to in the charges and the complaint in Case 1-CA-16548 because on October 5, 1979, the Company's attorney transmitted to the Board's field examiner, Marvin R. Bernstein, a letter from Glenn Walters purporting to explain the reasons for the meeting with Gazaille on September 5. In pertinent part, the letter reads as follows: Our meeting with Mike Gazaille of 9/5/79 was prompted by his August performance which showed the most significant difference of 163% less than this other production operator who is paid the exact same rate. During these six months, Mike Gazaille repeatedly refused to work overtime when requested unless it was convenient for him. These two factors necessitated the need for a meet- ing which then took place on September 5, 1979. I find that the reasons set forth in this letter are fabri- cations in that at the September 5 meeting with Gazaille there was no discussion of his work performance or of his alleged refusal to work overtime. It would appear that by October 5 when Glenn Wal- ters prepared the above letter for transmittal to the Board he was concerned about documenting Gazaille's 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged poor performance. Thus, the opening paragraph in Glenn Walters' October 5 letter states: In response to your request regarding M. Gazaille's production performance, we have records over the last six months which show that M. Gazaille had an average of 45% lower productivity than someone who operates the same identical machine and mate- rial as he, but on another shift. If such records exist theywere not produced at the hear- ing. Respondent introduced in evidence a sheet which compares Gazaille's production with that of another em- ployee, Lance Blanchard, who purportedly was doing identical work but on a different shift. The document gives production figures for 7 days only in the month of August and shows total production for Gazaille as 121,600 and for Blanchard as 179,200. However, the General Counsel introduced into evidence the produc- tion records for the period from July 7 through October 27 for all the large slitting operators which show that Gazaille's production over the extended period compares favorably with the production of all the other slitting op- erators, including Blanchard's. The comparison Respond- ent made between the production of Gazaille and Blan- chard for 7 selected days in August is too limited to have any bearing on whether Gazaille's performance was average, below, or above average. Glenn Walters continued his effort to discredit Ga- zaille's performance by complaining about Gazaille at a supervisors' meeting on October 21. According to the uncontradicted testimony of John LeFebvre, who then was Gazaille's supervisor, Glenn Walters stated that Ga- zaille's production was less than Blanchard's.8 LeFebvre responded that he believed Gazaille's work was good and that Gazaille's production was good. According to LeFebvre, "I told [Glenn Walters] that I felt Mike's [production] was good and that Lance's was superior." LeFebvre asked whether Walters was saying that Ga- zaille was not doing his job or that Lance Blanchard was a super slitter. Glenn Walters did not answer the ques- tion. Following the supervisors' meeting LeFebvre met with Gazaille and told him that Glenn Walters was keep- ing records of his production, comparing it with Blan- chard's production; that Glenn Walters was doing this in order to develop a basis for discharging Gazaille. Le- Febvre recommended that Gazaille cease working on the same machine every day and rotate machines so that it would be more difficult to make direct comparisons be- tween Gazaille's output and Blanchard's production. This was done. Subsequently, when Glenn Walters learned of the change he indicated his displeasure to LeFebvre. In November a series of confrontations developed be- tween Gazaille and Glenn Walters. One related to the shift differential pay for the large slitters. Prior to Octo- ber these employees worked a swing shift and were paid a 15-percent premium when they worked on the second shift. Thus, a slitter who was paid $4 per hour on the s LeFebvre did not remember the figures that Glenn Walters gave which Walters read from a book. first shift received $4.60 per hour when he worked on the second shift. In September or October, principally because of requests from the employees, the swing shift was discontinued. In order for the employees on the first shift to earn not too much less than the employees on the second shift and for the Company still to maintain the same average hourly labor costs for both shifts, the shift differential was reduced to 5 percent so that the employ- ee who earned $4 per hour when he worked on the first shift and $4.60 per hour when he worked on the second shift, upon the establishment of the fixed shifts would be paid $4.60 per hour if he were assigned to the first shift or $4.40 per hour if he were assigned to the second shift. This is in contradiction with the employees' handbook which states that: For fixed shift employees: An hourly differential of 10 percent will be added to the earnings for hours worked during the second shifts. In the fall the Company began holding meetings with its employees for the purpose of permitting discussion of production and other work-related problems. The meet- ing with the large slitters which was scheduled for the first Tuesday in November was canceled and was re- scheduled for November 13. Then a notice was posted also canceling this meeting. However, Gazaille spoke with Glenn Walters and asked that the meeting be held because there were matters to discuss. Glenn Walters agreed and also agreed to Gazaille's further request that the small slitting operators should be invited to the meet- ing. At the outset of the meeting Gazaille complained that the second-shift slitters were not being paid the 10-per- cent differential called for by the employees' handbook. Glenn Walters replied that the swing shift had been dis- continued at the employees' request and if they did not like the new pay arrangement then the swing shift could be reinstated. He also said that he would check with the employees on the other shift to obtain their view with regard to the shift-differential pay. Gazaille then complained that when David Bassette re- signed to accept another job he was not paid anything from the Company's profit-sharing plan. Glenn Walters replied that it was not good practice to give a bonus to an employee who leaves for another job because the Company then has to train the departing employee's re- placement. Gazaille also complained that the job-posting practice was ineffective because no one who signed for a posted job had ever been promoted. According to Gazaille, Glenn Walters responded by saying that "all I cared about was myself and I was just concerned with Mike Gazaille and nobody else and I asked him I'm a greedy little pig, right. And he says yes you are, you said it." Before the meeting closed, according to Gazaille, "[Glenn Walters] asked me he said if I didn't like it here why didn't I go someplace else." Later on the same day, November 13, Gazaille met with Glenn Walters in the latter's office. They apolo- gized to each other for the angry words they had ex- changed at the production meeting. They agreed that STEINERFILM, INC. 781 they should be able to handle their differences peacefully and without agitating one another. After Gazaille broached the subject Walters reassured Gazaille that Walters had no intention of discharging him. Also, at this meeting, Glenn Walters showed Gazaille some produc- tion records and told him that Lance Blanchard's per- formance was better than his. Following Gazaille's complaint about the shift-differ- ential pay the Company held a meeting with the large slitters sometime between November 13 and 20. Three sheets were distributed to the employees showing the prior rates when the employees were working a swing shift, the current rates, and the rates if the differential be- tween the first and second shifts was increased from 5 to 10 percent. Gazaille testified that Glenn Walters said, "[S]omeone is not too happy with the rates the way they are, so you people have to decide here and now which way it is going to be. I then asked him if we could have a few days to discuss it amongst ourselves before we make any decision. He said no. It had to be here and now and it had to be unanimous." The employees were asked to indicate their preference by signing the sheets. Although some employees signed, Gazaille refused. Following the meeting LeFebvre asked Gazaille to sign a sheet indicating that he would accept a 10-percent shift differential. However, Gazaille refused when he was unable to obtain assurance that the increased wages for the second-shift employees would be absorbed by the Company rather than be met by a reduction of the wages for the first-shift employees. Gazaille testified that he also urged other people on the second shift not to sign the sheet which LeFebvre was circulating. Eventually, the Company reduced the wage rates for the first shift by 2-1/2 percent and increased the second-shift pay dif- ferential to 10 percent. Between November 13 and 20 Gazaille had several conversations with Glenn Walters who informed Ga- zaille that Walters did not like his attitude, that his atti- tude was not in the best interest of the Company. Glenn Walters also complained that Gazaille was excessively tardy which was inexcusable. Gazaille explained to Wal- ters that he was transporting employees John LeFebvre and Craig Gregory to work and if it were not for the fact that he picked up these men he would not be late. He explained that he also drove them home at the end of the shift and he usually stayed at the plant late because Foreman LeFebvre generally was unable to leave when the shift ended. Gazaille argued, "If [Glenn Walters] wanted to hit [me] for a minute or two here, I would fill in [my timecard] at the end of the day for overtime for waiting for John [LeFebvre]. He told me it wasn't au- thorized and I couldn't . . . mark in my timecard at the end of the shift for overtime." On November 20 without first consulting any of Ga- zaille's immediate supervisors, Gordon and Glenn Wal- ters gave Gazaille a written warning which reads: This notice is to inform you that despite repeated verbal warnings regarding your job performance over the last six months, the situation has not im- proved adequately. These verbal warnings have in- cluded poor output, unacceptable on time perform- ance, insubordination, misrepresenting your work hours, abuse of the coffee breaks, unacceptable ab- senteeism and unattentiveness [sic] regarding your job responsibilities. We regret that this final warning must be handled in written form but repeated verbal warnings have gone unheeded. Please understand that any further violations of company policies will mean immediate discharge. This was the first written warning issued to any employ- ee other than that in August Glenn Walters issued a warning to Ron Kelly regarding abuse of swimming privileges at the company pool. However, although the warning to Kelly was in writing it was informal because, according to Glenn Walters, he wrote the warning in longhand, he retained no copy, and no copy or other memorandum in regard thereto is included in the Com- pany's personnel files. Glenn Walters testified that what prompted him to give Gazaille a written warning on November 20 is that he observed Gazaille arrive for work between 3:10 and 3:15 p.m. when he was scheduled to be at work at 3 o'clock and upon checking Gazaille's timecard found that Gazaille had reported that he had arrived at 3 p.m. Glenn Walters further explained when questioned by Re- spondent's counsel that the reason he gave the warning to Gazaille on November 20 "was because of his tardi- ness that day and his mis-reporting . . . the time at which he arrived and the fact that this was a recurring event regardless of my verbal warnings to Mr. Gazaille as well as regardless of John LeFebvre's-the supervi- sor's warnings to the individual, and we-upon discus- sion with those involved, we felt that it would be-we should give due notice so that Mr. Gazaille could take corrective action." 9 The warning does not refer to the incident described by Glenn Waltersl ° and the general nature of its accusa- tions-omitting as it does when the alleged "verbal warnings" were given and who gave the alleged "verbal warnings" and the vague description of the alleged dere- lictions-suggests that the instrument was intended as a prelude to Gazaille's termination. I do not credit Glenn Walters' testimony that when the November 20 written warning was issued there was no plan to discharge Ga- zaille. The tone of the November 20 letter indicates the contrary, as it warns Gazaille that a single infraction of company policies-which both Glenn and Gordon 9 When questioned by the General Counsel regarding the November 20 written warning to Gazaille, Glenn Walters inconsistently testified: Q. Am I correct that you never discussed with either of the super- visors the fact that you were planning or considering giving a rit- ten warning to Mr. Gazaille' A. To the best of my recollection, that's correct. 'o Gazaille denied that he as late on November 20 Respondent did not offer any evidence to corroborate Glenn Walters' testimony that Ga- zaille arrived for work 10 to 15 minutes late If Gazaille had been late Foreman John LeFebvre also would have been late as he rode to work with Gazaille Hov.ever. IeFebre wras not questioned about the subject. ' By October 21 Foreman John l.eFebvre had come to the conclu- sion that the Company was seeking to develop production statistics which would appear lo ijustif, Gazaille's termination STEINERFILM, INC. 781 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walters testified were informal and not carefully de- fined' 2 so that the employees could not be certain as to what they were-would result in his immediate dis- charge. Tending to confirm this is a letter written by Glenn Walters to an agent of the National Labor Rela- tions Board on January 2, 1980, wherein he states: The written warning of November to M. Gazaille was given because due to pending cases with the N.L.R.B., I was advised that we must document our actions in a more formal manner as opposed to verbal warnings. So, on advice from counsel, we issued a written warning to M. Gazaille because of the numerous verbal warnings which had been issued and to prevent him from saying that he was not given sufficient warning. It would appear from this letter that the written warning was issued in anticipation and in defense of any com- plaint that might be made following Gazaille's termina- tion. No contemporaneous record was made of the alleged verbal warnings which the November 20 letter states were given to Gazaille.13 Glenn Walters did not in his testimony at the hearing describe any of the so-called re- peated verbal warnings allegedly given to Gazaille other than that at some unspecified time Supervisor Norman Barber informed Glenn Walters that Barber personally had spoken to Gazaille about Gazaille's alleged abuse of coffeebreaks."4 Gazaille denied that he had received any 12 The employee handbook which was distributed on September 5 was a draft that was circulated for comments and was not strictly observed as is reflected by the fact that the Company thereafter established a shift dif- ferential for large slitting operators at 5 percent when the handbook specifies that shift differentials should be 10 percent. 13 Two documents were introduced in evidence, each dated November 9, 1979. which state that verbal warnings had been given to Gazaille on August 10 and 29, September 5, and in the month of October. However. these documents are memoranda to the file prepared by Glenn Walters after the alleged events. The references to the first three warnings do nlot indicate who gave the warnings to Gazaille or what Gazaille was told. The memorandum with respect to the October warning states merely that "lverbal] warning was given to Mike Gazaille in the month of October by Glenn Walters because of poor attendance record." While the latter memorandum discusses Gazaille's attendance record it does not indicate what was told to Gazaille. Glenn Walters did not confirm by testimony at the hearing the statement in his file memorandum that he gave a verbal warning to Gazaille in October. Further, according to Walters, the memorandums were prepared, not in the normal course of business, but at the request of Respondent's attorney for transmittal to the Board. 14 The General Counsel called Glenn Walters as his first witness. Pre- sumably, in observance of hearing procedure, this was done to elicit testi- mony from Glenn Walters in support of the General Counsel's prima facie case. However, the larger part of Glenn Walters' examination by the General Counsel would appear to have been an attempt to discredit Re- spondent's defense before Respondent had an opportunity to present its defense. During the General Counsel's examination of Glentn Walters the following questions were asked and answers given: Q. Now, could you tell me wrhen it was that you first became aware of significant problems in Mr. Gazaille's work or his conduct' A. In I believe late May of 1979. Q In fact, were the problems that were oted in Mr. (azaille's employmetit the subject of any counseling sessions, or verbal warn- ings involviing Mr. Gazaille? A. ihat's correct. There were a number of them Had this testimony been developed by Respoludent as part of its defense I would attribute no weight to it because it lacks specificit. It does not state whol counseled or wa;rned Gazaille or when, hos, marn) tlies and about what he was counseled or warlned tHoseer. it swas not Respond- such verbal warning from Barber and I credit Gazaille's denial. 5 The only other specific evidence of any alleged warnings given to Gazaille are the conversations be- tween Gazaille and Glenn Walters between November 13 and 20, referred to above, in which Glenn Walters in- formed Gazaille that Walters did not like Gazaille's atti- tude and that Walters considered that Gazaille had been excessively tardy. The November 20 letter states that the verbal warn- ings given to Gazaille "have included poor output, unac- ceptable on time performance, insubordination, misrepre- senting your work hours, abuse of the coffee breaks, un- acceptable absenteeism and unattentiveness regarding your job responsibilities." Respondent in its brief asserts that "the record shows that the warning issued to Ga- zaille on November 20 was proper and warranted in view of Gazaille's proven poor work performance, tardi- ness, absenteeism, etc." Despite this assertion the brief discusses only the evidence relating to Gazaille's alleged poor work performance, it does not discuss Gazaille's other alleged derelictions referred to in the November 20 letter. I find that Respondent has not proved that Ga- zaill: was deficient or guilty of the offenses or inadequa- cies referred to in the November 20 letter. As discussed above, I find that Respondent has not established that Gazaille's work output was less than satisfactory. Al- though Gazaille was tardy from time to time that was not considered a serious deficiency because the two indi- viduals who rode to work with Gazaille also were tardy and Respondent did not find it necessary to warn them about their tardiness. 16 I further find that Respondent has not established that Gazaille misrepresented his hours of work to an objectionable degree, abused coffeebreaks, was insubordinate, was excessively absent, or was inat- tentive with respect to his job responsibilities. In regard to these alleged derelictions the testimony of Glenn Wal- ters and Norman Barber was substantially discredited and therefore does not have sufficient probative value to prove the assertions. ent but the General Counsel who chose to question Glenn Walters about the subject and it was the Genleral Counsel who failed to elicit the specif- ics. If Respondent's attorneys were satisfied with the testimony as devel- oped by the General Counsel they were under no obligation to cross-ex- amine Glenn Walters in order to provide the details and specifics which the General Counsel did not develop upon the direct interrogation of Glenn Walters. Accordingly. I accept Walters' testimony that after May 1979 there were counseling sessions or verbal warnings concerning Ga- zaille's employment problems However in the absence of other explana- tion. I construe this testimony to refer to the same verbal warnings which are discussed in the text of this Decision. 1' Norman Barber testified that there sas a general problem in regard to the abuse of coffeebreaks and that he "talked to them as a group about that. taking loiger than the ten minutes.. I talked, it was two or three times before I got that under control because. like I said the employees] figuredl that if Mike [Gazaille] could do it, they would do it. That's the answer I got." Thus, it does nlot appear from Barber's testimony that he gave aliy warning to (Gazaille separately. Further. I am of the opinion that Bharber's testimony is without value When he was questioned on direct examination by Colmplany's counsel he testified at some length con- cernilig Gaiaille's poor productilln Ho cescer. oin cross-examination his testimony as tholroughly discredited. Because If the inconsistercies and self-conlradictionis in Barber's testimonyy. among oither reasons. I find that he s;as anl unreliable wsitness whose teslimniony cannot he given ally credit. ' According to Gazaille's uncontradicted testimony he drove John L eFebs re to and frotm svirk ex ery da ad Craig Gregory tin a less reg- ular basis STEINERFILM INC. 783 I do not credit Glenn Walters' testimony that the No- vember 20 written warning was given to Gazaille be- cause Gazaille was late for work on that day and falsi- fied his timecard to show that he had arrived on time. Gazaille denied that he arrived late on November 20. No evidence was offered to corroborate Glenn Walters' con- trary testimony. John LeFebvre rode to work with Ga- zaille so that, if Gazaille were late, so was LeFebvre. However, no evidence was offered suggesting that Le- Febvre was late on November 20. Finally, if Gazaille's tardiness on November 20 was the precipitating reason for the issuance of the written warning it is strange that that was not referred to in the letter itself. The circum- stance that no credible reason has been offered for the issuance of the November 20 warning letter-a letter which exaggerates the "repeated verbal warnings" which purportedly had been given to Gazaille and which issues a final interdiction against any additional violation of so- called company policies upon penalty of immediate dis- charge-suggests that the purpose of the warning was not merely cautionary but that it was intended as a de- fense against any complaints that might be registered upon Gazaille's discharge. I find that the November 20 warning to Gazaille was not issued in pursuit of any le- gitimate business purpose but was another block in the barrier the Company was erecting seeking to shield itself from the accusation that the discharge of Gazaille- when it occurred-was for an unlawful reason. Gazaille was disturbed by the warning he received on November 20. He testified, "I told Gordon Walters that these were a bunch of lies and these were not facts and that I realized what his next step was going to be and that when he made his next step that he should have his records in order because I had mine in order." Gazaille left the office and returned to work. About 15 minutes later Glenn Walters walked into the area where Gazaille was working.17 Gazaille began a conversation with Walters by saying, "I don't like to be threatened."' Glenn Walters aproached Gazaille and said that it was not a threat, that they were the facts. Then, according to Gazaille: I said facts like there will never be a union in Steinerfilm . . . Mr. Walters said you said that, not 1. I says it's all lies. It is garbage and I know what you are trying to do. My adrenalin is up. I am all wired up. I don't like this one bit. I told him I am tired of being sodomized. I told him that you are interfering with an American elec- tion. That you are thriving on divide and conquer and if you get rid of me there are more than just I and you are not going to get away with it. '1 Glenn Walters testified that customarily he inspects the production areas about the time the shifts change. He further testified that "or that particular day. another reason [he went to the area where Gazaille was working] was very obviously the fact that Mike Gazaille . . . had left the office in a very hot-tempered-in a very upset manner. and I certainly did not want to see my supervisors get ill any kind of either verbal or physical hassle with Mr. Gazaille on accouentf . . . a wrilten warnillng. I' Glenn Walters testified that "Mr. Gazaille yelled over to me. 'is this some kind ofr threat?' aving the warning in his hand, and I turned to him to address him. and it was at that time that I noticed he was animlat- ed and obviousl very emotional, and I told hin that this %sas not a threat and he siay. WVell it appears to me a i it', a tIhrl ea He had better have his facts ready when he makes his next move. He told me I liked to twist things around and make them to my benefit and my advantage and I told him I says no. I'm dealing with the facts here. I am trying to but you are not letting me deal with the facts. He told me that if I didn't like it leave. I says I have a lot of stamina and that he was a tough nut to crack and that he would crack. Then I asked him, I said, look, if you want to settle it, let's go out in the cornfield. We'll settle it ourselves. He says are you threatening me. I said no I am not threatening you. I said you are the one that likes to threaten people. Then we carried on about he called me a liar and I says, right, Mr. Walters, a man with your impeccable character does not lie. He called me a liar and then I told him I said you are an ingrate. People here are helping making [sic] you what you are and since I have been here I have never once seen you pat anybody on the back. It is always you are doing this wrong; you can't do this: you are behind on this. This is no good and that's no good. Gazaille then challenged Walters to a race operating the slitting machines to see who was the better operator. Glenn Walters did not accept. There was further discus- sion during which Gazaille mentioned that even though Glenn Walters was educated the working people were not as stupid as he seemed to think. Gazaille accused Walters of trying to rule with an iron hand. Walters re- sponded that the Union was communist-backed and that Gazaille was a communist because he backed the Union. Gazaille answered that he "didn't want to discuss it with him any further, that [Walters] disgusted" him. The con- versation ended then. Gazaille further testified that while he was talking to Glenn Walters he was nervously walking about "clasping one hand into the other and cracking the knuckles and so on and so forth." Glenn Walters' version of their conversation does not differ substantially from Gazaille's. Walters testified that Gazaille "was very animated, was walking around the machine, and was walking up to me and was jumping up-more or less jumping up and down on his toes and hitting his fist into his hand," but that he never swung his fist in a manner that would suggest that Gazaille was trying to strike Walters. Walters further testified: Q. And he was very upset when you started talk- ing to him; he was very upset.at the end, was he not? A. That's-well, he was less upset at the end than at the beginning. Michael Gazaille was discharged by Glenn Walters on November 7. When Gazaille reported for work on that day he was directed to Glenn Walters' office in which were present Supervisors Ron Brown and John Le- Febvre. According to Gazaille: STEINERFILM. INC. 783 784 DECISIONS OF NATIONAL LABOR REL.ATIONS OARD Mr. Walters was reading a piece of paper. He says after an investigation by himself that I have been found guilty including but not limited to threats of physical violence. That I was discharged of my duties as of then and do I have anything to say in my defense. I told him that it is lies. Half-truths. I told him, I says, this is not a threat, but I will see you later and I asked him how about my pay, then, if I am dis- charged. He says just a minute. He went out and he came back with two checks and he handed them to me. In regard to the reason for discharging Michael Ga- zaille, Glenn Walters testified: Q. You stated that Mr. Gazaille was discharged due to threatening of another employee, specifically Glenn Walters, yourself, right? A. Correct. Glenn Walters further explained that: . .after giving [Gazaille] a warning and after being physically threatened by Mr. Gazaille out in the production area, I felt that I should discuss with people in the plant as well as with Counsel outside the plant as to how we should handle a particular situation like that, and after discussing with people who were witnesses of the event, both supervisory as well as fellow employees, we reached the conclu- sion that it, in fact, was a reprehensible act, and really, you cannot run a company by allowing this type of thing to go on without having the entire disciplinary structure collapse into a state of anar- chy, and we felt that there was nothing to do but to call Mr. Gazaille in and to at least ask him what he had to say in his defense before we made our final decision, and [in] the course of that discussion, Mr. Gazaille just said, "I don't know what you're talk- ing about" and stormed out of the office. In its brief Respondent asserts that "Gazaille's dis- charge on November 27 was as a result of his threats of physical violence directed towards Plant Manager Glenn Walters in the presence of other employees." This con- firms the position Respondent expressed at the opening of the hearing that Gazaille was discharged because he threatened the plant manager with physical violence. However, contrary to Respondent, I find that Gazaille did not threaten Glenn Walters with "physical violence." Michael Gazaille was agitated when he spoke with Glenn Walters in the plant on November 20. Gazaille paced around his machine nervously, made gestures with his hands, and from time to time struck one fist into the palm of his other hand. These gestures were not directed towards Glenn Walters and Walters had no reasonable basis for believing that Gazaille might strike him. The specific reason asserted by Respondent for Michael Ga- zaille's termination that he made "threats of physical vio- lence directed towards plant manger Glenn Walters" is unsubstantiated. Gazaille's discharge on November 27 followed a series of events suggesting that sometime between September 4 and October 5 Respondent had decided to terminate him. Respondent sought to develop records indicating that Gazaille's production was unsatisfactory. The evidence, however, is to the contrary. In November the Company began to accelerate its efforts to develop a record of der- elictions on Gazaille's part. Thus, in November, Glenn Walters found occasions to complain to Gazaille and also to Gazaille's supervisor, John LeFebvre, about Gazaille's bad attitude and tardiness. Finally, the warning of No- vember 20 was issued for which Respondent has been unable to establish any justification. The warning precipi- tated the confrontation between Gazaille and Glenn Wal- ters. During their discussion Gazaille made some intem- perate statements. These can be excused because of the charged emotional state in which Gazaille found himself following receipt of the unjustified warning that any future violation of company policies would result in his immediate discharge. Further, Respondent does not con- tend that Gazaille was discharged because of his intem- perate language. The reason asserted by Respondent for Gazaille's discharge, namely, that he threatened Glenn Walters with physical violence, was pretextual and the true reasons are quite different. The Company was openly opposed to the organization of its employees and was opposed to dealing concertedly with its employees as is reflected by Gordon Walters' remark that he wished to deal with the employees on a one-to-one basis. Further, following the encounters be- tween Gazaille and Glenn and Gordon Walters on Sep- tember 4 and 5 the Union filed unfair labor practice charges which resulted in the issuance of a complaint against Respondent and Respondent was aware that Ga- zaille was the central figure in those proceedings. Re- spondent stated in its letter of January 2, 1980, to Dave Rankin of the National Labor Relations Board: "The written warning of November to M. Gazaille was given because due to pending cases with the N.L.R.B., I was advised that we must document our actions in a more formal manner as opposed to verbal warnings." As I find that the reason given by Respondent for Gazaille's dis- charge is false, I must look elsewhere for the true expla- nation. In this case there is ample justification for finding that the true reasons lie in Gazaille's union activities, his leadership in pressing employees' grievances, and be- cause of the unfair labor practice charges that were filed on his behalf. Also, I find that the warning which was issued to Gazaille on November 20 was part of the pat- tern of unlawful activity initiated by Respondent direct- ed towards Gazaille's discharge. Accordingly, I find that by issuing the warning to Michael Gazaille on November 20 and by discharging Michael Gazaille on November 27 Respondent has violated Section 8(a)(l), (3), and (4) of the Act. STEINERFILM. INC. 785 IV. THE EFFECT OF THE UNFAIR I.AHOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, 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. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully issued a warning notice to Michael Gazaille on November 20, 1979, I shall recommend that Respondent expunge said warning notice from its personnel files and records. Having found that Respondent unlawfully discharged Michael Gazaille on November 27, 1979, I shall recom- mend that Respondent offer him immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges previously enjoyed. I shall also recommend that Respondent make Michael Gazaille whole for any loss of earnings and other benefits he suffered by reason of Re- spondent's unlawful conduct. The loss of earnings shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be com- puted in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).'19 Upon the basis of the foregoing findings of fact and upon the entire record in these cases, I make the follow- ing: CONCLUSIONS OF LAW 1. By issuing a warning notice to Michael Gazaille on November 20, 1979, and by discharging Michael Gazaille on November 27, 1979, because of his activities in sup- port of the Union, his concerted activities which are pro- tected by Section 7 of the Act, and the charges on his behalf which were filed under the Act, Respondent has violated Section 8(a)(l), (3), and (4) of the Act. 2. By its other conduct found above which interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7, Respondent has violated Section 8(a)(1) of the Act. 3. Respondent's violations of Section 8(a)(l), (3), and (4) of the Act are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in the violations of the Act set forth in subparagraphs (c), (e), and (f) of para- graph 8 of the complaint herein. Upon the foregoing findings of fact, conclusions of law, and the entire record in these proceedings, and pur- 19 See. generally. AIs Plumbing & Ileating Co., I.38 NlRI 716 (1962) suant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 20 The Respondent, Steinerfilm, Inc.. Williamstown., Mas- sachusetts, its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Threatening employees that there will never be a union at the Company's plant because the Company would move its operations and the employees would then lose their jobs. (b) Threatening employees with reprisals because they support the Union, or any other labor organization, or in concert complain about the Company's wages and bene- fits policies. (c) Threatening employees that there will never be a union at the Company's premises and threatening em- ployees that the Company will get rid of union support- ers. (d) Unlawfully questioning employees as to why they have gone to the Union or in regard to the filing of unfair labor practice charges with the National Labor Relations Board. (e) Maintaining or enforcing its rule prohibiting solici- tation or distribution on company property without per- mission or any other rule which unlawfully restricts em- ployees' rights to solicit membership in or distribute lit- erature on behalf of the Union or any other labor organi- zation. (f) Discharging or otherwise discriminating against its employees because of their union or other protected con- certed activities. (g) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Expunge from its personnel files and records the warning notice issued to Michael Gazaille on November 20, 1979. (b) Offer to Michael Gazaille immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and to his other rights and privileges previously enjoyed, and make Michael Ga- zaille whole for any loss of earnings and other benefits he suffered as a result of the discrimination against him in the manner set forth in the section of this Decision en- titled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- 2 1In the event no exceptions are filed ;is pro ided h Sec 102 46 of tilhe Rules and RegulalionIs of the National Labor Relations Hoard the findings. concIlsions. arid recommended Order hereill shall, as provided in Sec 102 48 of the Rules and Regulations. be adopted hb the HrBoard and become its findings. conclusions, aInd ()rder. and all objlctilons hereto sh;ll be dvened l;aivcd for all purposes STEINERFILM. [NC. 785 786 DECISIONS OF NATIONAL LABOR REL.ATIONS B(OARD cords necessary to analyze the amount of packpay due under the terms of this Order. (d) Post at its place of business in Williamstown, Mas- sachusetts, copies of the attached notice marked "Appen- dix." 2 ' Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Re- 'I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is FURTHER ORDERED that paragraphs 8(c), (e), and (f) of the complaint in these proceedings be dismissed.