Wheeler, Randall E., Kevin E. Wheeler, and Edmund J. Wheeler, a General Partnership d/b/a Wheelco Co.

WHEELCO CO). Randall E. Wheeler, Kevin E. Wheeler, and Edmund J. Wheeler, a General Partnership d/b/a Wheelco Co. and International Molders' and Allied Workers' Union, AFL-CIO-CLC. Case 25-CA-9603 March 12, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On June 29, 1981, Administrative Law Judge Russell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, ' and conclusions of the Administrative Law Judge to the extent consistent herewith. The Administrative Law Judge found, inter alia, that prior to the election Respondent violated Section 8(a)(l) of the Act by suggesting and other- wise encouraging its employees to abandon the Union and form their own committee for the pur- pose of bargaining with Respondent. We agree with this finding. However, the Administrative Law Judge further found that Respondent had nothing to do with the actual formation and admin- istration of the committee after the election and, therefore, did not engage in further unlawful con- duct in violation of Section 8(a)(2) and (1). For the reasons set forth below, we disagree with this find- ing. According to the credited testimony of employee Gayle Cunningham, at a meeting approximately I week before the election held on January 13, 1978,2 one of Respondent's general partners, Randy Wheeler, told the assembled employees that instead of filing a petition with the Board they could have "brought a petition to him and then we could have drawn up a contract between us and him without involving a union." Cunningham further testified that, approximately I week after the election, Wheeler approached him and several other em- The General Counsel has excepted to certain credihiliti findings made by the Administratlse l.asw Judge It is the Board's established policy not to ouserrilt an adminisirati. lass Judgte's resolutions kkilh rti pec't to credihililt unltrss the letor preponderanc e i all of the rol le ilit evidence con inces us thit the resolutions are incorrelct Slandard D)r, Wall Prnduiuc. Int., 91 NLRB 544 11 '50). teltd 8IXX F2d E32 (3d COr 1951) W'e have carefull) examinelli d Ihe recorrd ld I find rio ha;ls for re- versing his finding, 'All date, herrelifter refer to I9 Sg ployees and asked "if we had come up with . . . some kind of a contract or committee to draw up a contract for the company." The employees re- sponded that they had not decided yet but that they would get together and vote on it. Wheeler stated that the employees should "go ahead and do it." Thereafter, some employees met and selected a committee of four. Cunningham then informed Wheeler, who told Cunningham "to go ahead and draw up a contract, it was fine with him the committee we had." This committee subsequently met with Respondent and negotiated concerning certain terms of employment, including holidays, sick and funeral leave, an absentee policy, and in- surance benefits, and agreement was subsequently reached as to several of these items. From the foregoing it is clear that Respondent was the "moving force" behind the formation of the employees' committee. 3 After the election, Wheeler, pursuant to an earlier suggestion which had not been acted on by the employees, encour- aged if not instructed the employees to follow through on his earlier suggestion. Thereafter, he in- dicated approval of their selection of a committee, instructed them to "draw up" a contract proposal, and bargained with the committee concerning terms and conditions of employment. 4 Although there is little evidence that Respondent exercised any control over the selection and activities of the committee once formed so as to constitute unlawful domination, its conduct in suggesting and encour- aging on several occasions that such a committee be formed and that Respondent would be willing to bargain with it, Respondent's tacit approval of the committee's selection, and its subsequent in- struction to "draw up" a contract and present it constituted unlawful interference in the formation and administration of a labor organization. 5 Ac- cordingly, we find that by so doing Respondent violated Section 8(a)(2) and (1) of the Act.6 Spiegel IrucAing Comnpany. 225 NLRB 178, 179 (1976). W4 e note that the evidence fully supports a finding that this coimniittee is a "labor organization" within the meaning of Sec 2(5) of the Act See. c g . Eduard 4 Ittlaur Fiundatirn. Inc d/b/a Edward .4 1 tlaru .Memneria/l IHlspirta and Fair Oaks .\ursing iilnme, 249 NLRB I153 1981() See, e.g, Irtor M Spri. d/b/a uastern Industrier, 217 NLRB 712 1975); ler,ro Spec iraltes, Inc. 177 NLRB 306 (19691. See also Edward .4 I1rIur i outdalion, Inc dbIau aEdward 4. Uli/aur .demorial Hospital and -lair (OakA .iursing orIerne, suprua. Spiegel trucking Company, supra. ' As lnled hb the Admllnistratise I as Judge, the conmplaint does not specificall. allege that this conduct violated Sec 8(a)(2). alleging only a nilolaioun of Sec 8(a)tl) Howsever, the Board has held that. so long as the crmipalnl clearls describes the conduct alleged to iinstitiute an unfair lahiir practice the CiGeneral C ountsel s failure It, allege which subsection of tIre Act has bheell solaltd or the Gtencral Counsel' allegaittlon of sniolatlillo of the the isritong subhsec ton does not preclude the Board from rn rsider- trig and decidinIg t he issue pr ,lided. of ciiurr-e. Ihat the charged parts sas i ot isist~l'd .aitil the Iissue fsuis f Jils tigialed I n iear n (B l/ Sale, Contmint. ed 260 NLRB No. 109 867 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD AMENDED RFMEDY Having found that Respondent, in addition to the violations found by the Administrative Law Judge, has violated Section 8(a)(2) and (1) of the Act by interfering with the formation of a labor organiza- tion, we shall order Respondent to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. In this regard, we shall order that Respondent withdraw and withhold all recognition from the employees' committee unless and until said committee has been duly certified by the Board.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Randall E. Wheeler, Kevin E. Wheeler, and Edmund J. Wheeler, a General Partnership d/b/a Wheelco Co., Kingsbury, Indiana, its agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their union sentiments and support. (b) Threatening reprisals if employees engage in protected concerted activities. (c) Giving employees the impression that their union activities are under surveillance. (d) Improperly interrogating employees concern- ing the allegations and issues raised in any com- plaint issued against it by the Board's General Counsel. (e) Encouraging or suggesting to employees that they abandon their union activity and form their own committee to bargain with Respondent. (f) Interfering with the formation of, assisting, or otherwise interfering with the operation and ad- Inc. 234 NL RB 125. 1272 (1978) The complaint specifically alleges as unlawful the conduct found hereti to by violatise of Sec 8 a)(2), arid merely fails to allege a violation of this particular subsectionil of the Act TIhe circumstances surrounding the formlationl of the enmplovyee , committee were fulls litigated in colnectiotn with the 8(a)(1) allegation See, e g., Aarl Mart, 246 NL RB 1151 (1979) K.'iione Pritzel Buak v. Inc., 242 NLRB 492 (1979) Accordingly. Respondent is not preludiced by our finding herein 7 In his exceptuoils the General Counsel notlified the Board that, prior toi tlhe date exceptlins were filed, Respondenlt notified tihe Regional Di- rector fotr Region 25 that it is no loniger operating at its KingshurN fa.cili- ty T'he Gicneral Counsel therefore requests that. in lieu of the customary posting at that facilitn. Respondent be required tI post a nlotice at its present places of husiness as well as to mail copies of the notice to the employees cniplosed at the Kingsbury facility at the time the unfair lhaor practices were committed and those employed ait the time Respotndent ceased operatiuons at this facilit) Since Respondelt's other facilities were not involled in this proceeditg. a posting requirement as to t themn is 1l- warranted anld unnecessary See. eg. C'erro ('AIV Dcvi(i. /nc., 237 NLRB 1153 (1978) Hoiever. in light of the circumstances we shall rc- quire that, in lieu of posting, copies of the notice he mailed t<i those emn ployees on Responidcnlt's KingshbuTr payroll Ion the daite final notice ails gi.en of the planit, s scilsuLe SVorlritgec Knitting Mql14 Inc . 225 Nl R 1(154 (197ti) ministration of the employees' committee or any other plant committee or labor organization of its employees. (g) Recognizing and bargaining with the employ- ees' committee or any successor thereto as the rep- resentative of its employees for the purpose of dealing with Respondent concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, unless and until such committee has been duly certified by the National Labor Relations Board as the exclusive representa- tive of said employees. (h) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Withdraw and withhold all recognition from the employees' committee as the representative of its employees for the purposes of collective bar- gaining unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of said em- ployees. (b) Mail a copy of the attached notice marked "Appendix"' to each employee who was on its Kingsbury, Indiana, facility payroll on the date final notice was given of the plant's closure. Such notice is to be mailed to the last known address of each employee. Copies of said notice, on forms provided by the Regional Director for Region 25, shall, after being duly signed by Respondent's rep- resentative, be mailed by Respondent immediately upon receipt thereof. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' In the esrent that this Order is enfiorced by a Judgment of a United States Court ol Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- lant It a Judgmenlt of the Ulilted States Court of Appeals Enfiorcing an ()rder of the Nationial l abor Relations Board" APPENDIX NorlcE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we 868 have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. 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 interrogate employees regard- ing their union sentiments and support. WE Wlll. NOT threaten employees with re- prisals if they engage in protected concerted activities. WE WILL NOT give employees the impres- sion that their union activities are under sur- veillance. WE WILL NOT improperly interrogate em- ployees concerning allegations and issues raised in any complaint issued against us by the Board's General Counsel. WE WIL.L NOT encourage or suggest to em- ployees that they form their own committee to bargain with us and abandon their union activ- ity. WE WILL NOT interfere in the formation of, assist, or otherwise interfere with the operation and administration of the employees' committee or any other plant committee or labor organization of our employees. WE WIL NOT recognize and bargain with the employees' committee or any successor thereto as the representative of our employees for the purpose of dealing with us concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, unless and until such committee has been duly certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WIl.L withdraw and withhold all recog- nition from the employees' committee as the representative of our employees for the pur- poses of collective bargaining unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of our employees. RANDALL E. WHEI: FR, KEVIN E. WHFIFII.I.R, AND EDMUN D) J. WHIlI - .R, A GENI R! I PARTNERSHIP I)/B/A WHEFII CO CO. DECISION SIAIIN'1I:NN F OF 11i1i CGASI RtissF iI M. KIN., JR., Administrative Law Judge: This case was heard by me in LaPorte, Indiana. on March 7. 8. and 9. 1979, and April 23 and 24. 1979 The initial charge was filed by the International Molders' and Allied Workers' Union.' AFL-CIO-CLC (the Union), on February 3, 1978, and an amended charge was filed on March 29, 1978. The complaint was issued by the Re- gional Director for Region 25 of the National Labor Re- lations Board (the Board) on behalf of the Board's Gen- eral Counsel on March 30, 1978, alleging certain viola- tions of Section 8(a)(1) and (3) of the National Labor Re- lations Act (the Act) during the period between November 1977 to November 1978. including the unlau'- ful discharge of an employee on January 23. 1978.2 Upon the entire record," including my observation of the demeanor of the witnesses,' and after due considera- tion of the briefs filed herein by the General Counsel and the Respondent (pro se). I make the following: I Denil I) Wi l',,n. an Incernallonal 'staff representali'.e of the C harg- inig Union, a.ppeared on behalf f the U'nion and ias present Ihroughout the caie Htereafter, all date, in July through December *ill he in 1977 and all dales in January through June 'lil be in 1978. unless otherwise Indicated Ihe pertiilent parts of the Act pro, ide as follows: Sec . (i;) 1i h.hall be anl unfair labor practice for an employer- (1) to interfere u.tlh, restralill. or coerce emplo)ees il the exerclse (f Ihe right' guarianteed in section 7 (l) by discrimination in regard to hire or tenure of employmenl or any term or condition iof employment to encourage or discourage mnembership in aI', labor organizarilon Sec 7 Emnployees shall have the right to self-organizatinln. to form, join. or ass.ss lablrr orgarnizations to ar hgain collecti.elc through representatives of their own choosing. and to engage in other concerted acti'ifies for the purpoie of colilectixe bargaining or other nlutual aid or protectlion I he error', in the transcript hase been noted and corrected ' The fatil ftioind hereii are based on the record as a .hole and upon mo obiher,,almon of the il(nescs The credibility res.olution', herein halie been deried from a rev.i". oif the eintir testimonial record and exhibit, with due regard foir the loglc of prohabilit,. the demeanor of the tll- neses. and the teachinlg of .. L R.B. ' Walton latnujucturing Coimprno. 3hil 1S5 404, 40(8 (i1 2) A' to those tI,tifl ing In contradiction onf find- ings herein, their stinmorll, ha', been discredited either as' ha.ing been in linflllt ` ilTl the t'tiilrl)nl. If tlreldiblte .tlllne',e, ir hbeclaus it I a, a i and iof itself incretlible and uni.rth,! of belief l/i lestiimion, regardless ,of .,helher o r Ilot menltioned or alluded io herein, hia been rcie'.ied and ,,,eighed in hlight f the ntiei record W tEI C()O C(O ) ISI( ll)NS (F NA I I()NAI IAB()R REI.A'l I()NS B()ARI) FINI)IN(;S OI F,\C I I Jt RISI) I ION The pleadings and admissions herein establish the fol- low ing jurisdictional facts. At all time material herein. the Respondent partnership (the Company) has nliln- tained its principal office and place of business at Kings- bury. Indiana. the facility involved herein, and is, aind has been at all times material herein, ergaged at said fa- cility and location in the manufacture, sale. and distribu- tion of overseas marine containers and related products. During the 12-month period prior to the issuance of the complaint herein, the Company, in the course and con- duct of its operations described above, sold and shipped from the said facility products, goods, and materials valued in excess of $50,00() directly to points outside the State of Indiana. Thus, and as admitted, I find and con- clude that the Company is now, and has been at all time material herein, an employer engaged in comrnmerce within the meaning of Section 2(2), (6), and (7) of the Act. As also admitted, I find and conclude that the Union is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. 11. I'tHi Al It (iF 1) UNFAIR I.ABOR PRACI ICI S A. Background Around December I several employees expressed in- terest in union representation. A campaign was com- menced, signed union authorization cards were obtained, and the Union filed its representation petition on Decem- ber 13 (Case 25 RC-6800). A Board-conducted election was held at the plant on January 13 and the Union lost 14 to I (not including 4 challenged ballots), with 19 eligi- ble voters. No postelection objections were filed by the Union, but the Union did file its charge in this case on February 3. On November 20, 1978, in LaPorte, Indiana, the date the case was originally set for hearing, the par- ties reached an informal but written all-party settlement, based on the original complaint, as amended. On January 16, 1979, the Acting Regional Director for Region 25 of the Board withdrew and vacated the settlement agree- ment for certain noncompliance by the Company,' and reissued the complaint as amended (three times prior to the settlement). The Company was not represented by an attorney at the settlement on November 20, 1978, nor was it repre- sented by an attorney at the hearing in the case in March and April 1979. At the hearing the Company was repre- sented by two of the three partners, brothers Randall (sometimes called Randy herein) and Kevin Wheeler (both sometimes called the Wheelers herein). The third partner is their father who apparently no longer takes an active role in the operation of the company. The Wheel- ers split their time between the Kingsbury facility (solely involved herein) and another facility in Chicago. ap- proximately 2-1/2 hours away by car. At the Kingsbury s The conlro'.ersy involked backpay to he received by cmnpiosec Truman King and a company debit of unlemploymnent coinpernsationll hy the State of Indiana Ihe amrnunt involved was apprximmately $3(X) plant the Wheelers were the only "supervisors" present or available although they appointed various "straw bosses" or 'section leaders"'' who assigned work to four or five employees working with or under them. The fa- cilits itself consisted of two buildings approximately 50 hy I1) feet. [he number of employees averaged approxi- mately to 20 to 25, but employee turnover was large. averaging 50 to 60 employees in 1977. The employees in- cluded welders, painters, and other allied workers. The Company, at the Kingsbury plant at least, had only one customer for the marine containers produced there. On January 23, 10 days after the election, the Wheel- ers discharged four employees including Truman King. whose discharge is the only one alleged to be unlawful in the complaint. In addition to the prehearing amend- ments, the complaint was amended three times during the hearing. The complaint itself alleges in excess of 20 incidents of alleged unlawful interrogation, impressions of surveillance, threats, solicitation, promises of benefits, coercion, and other wrongful acts on the part of the Wheelers ranging in time from November 1977 to November 1978, some II months after the election. Also alleged is unlawful discrimination regarding wages against employees Kell and Severs, and regarding King, the improper withholding of a scheduled Christmas bonus and his alleged discriminatory discharge. Employ- ees Kell, Severs, and King were the initial and prime supporters for the Union. The complaint in many in- stances lacks specific dates, and in this respect is awk- wardly broad or general.6 Likewise, of course, much of the testimony is broad, general, and uncertain. In many cases it is difficult (if not impossible) to connect chunks of testimony to a specific allegation in the complaint, both by time and description. ? The General Counsel called some nine witnesses and the Company called seven. Some 37 exhibits were introduced and admitted, 24 by the General Counsel and 13 by the Company. The summary of the testimony in the case will often appear disjointed and it lacks specifics, but given the testimony and record in the case, the summary represents my best efforts under the circumstances. B. Summary of the Testimony and Evidence8 Union International Staff Representative Denzil D. Wilson testified that he had received the name of em- ployee Gary Kell from a representative of another union local in LaPorte and that, on December 1, he and Kell met. At this meeting he gave Kell a number of union au- thorization cards and Wilson testified that, on December 4, Kell returned signed cards of all employees with the "Many allegatirlns cornlaill language such is "unknown date in Decem- her 1977." "unlknolll dale in Febhruar or March 1975," "on or about ''esral unknown date hbetween Decemher 15. 1977 and January 13, 97K," and sio forlh here ,,,as al-o i C idlence presented ml support of a number of the alltgalions in th e cmplainl Fhe fotllowillg lncludes a urinliary of the tcstinonyll of the witnesses appearing ill the cae 'he tc lioilrly 5 ill appear normally in niarrai .e form, although on occasion oll me testimlrony wll appear as actual quotes Ironlli the iraunscript Ihe narlatle oinly anrd nicrile reprcsenits a summary of Whiat IhCe itneIses I themnl',eiLe stated aor related, without credihility de- lermilliltoln unltess indilcalet. ilnld does not reflect my ulthiale findtilg arid sorlcltlSorl il thi s i c;, e 7() 871 exception of one or two. The representation petition wias filed with the Board on December 13 and the election was set for January 13. Wilson testified that, between the filing of the petition and the date of the election, three union meetings were held, to which all of the employees were invited The first meeting was on December 27 and only employee Truman King attended. The second meet- ing was on January 4 and was attended by 12 employees including Kell, King, Paul Severs, and Gayle Cunning- ham. The last union meeting before the election was held on January 11 or 12, at which 13 employees attended and at which employee King was appointed the union observer at the upcoming election. Robert Egolf testified as a present employee of the Company. He was originally employed in June 1977, later quit, and was again rehired in September 1977 and remained until January 23, 1978. He was later and again rehired October 30, 1978. Egolf testified that, on January 23, he met with both Randy and Kevin Wheeler in the office and that Kevin told him he was "goofing around." whereupon he was terminated. Egolf further testified that he was told he had a possibility of being a good welder and would be called back to work in a "couple of weeks." He in fact was asked to return in several weeks but refused reemployment because he had obtained an- other job at the time. He was subsequently reemployed by the Company on October 30. Egolf also testified that he signed a question sheet prior to November 20. 1978, apparently at the request of Randy Wheeler, further indi- cating that there was no information or pressure placed on him regarding the question sheet, although Randy Wheeler did not indicate that he had a choice as to whether or not he could complete the sheet.' Employee Gary Kell worked for the Company from June 1977 to June 1978. Kell testified that in mid- November about 15 of the employees began talking about a union. He then called Union Representative Denzil Wilson by phone and, on December 1, Wilson came by his home and left 20 to 25 union authorization cards with him. The following day, Kell related that he signed a card and obtained signatures at work. Accord- ing to Kell, Wilson picked up the signed cards from him several days later. Kell testified that "around Thanksgiving " he told Randy Wheeler that a nearby company needed spray painters and that he was going to apply. According to Kell, Randy Wheeler then indicated he would give him a 40-cent-per-hour raise ($4.35 to $4.75), effective the fol- lowing Monday. Kell related that the following week he did not get the raise and he questioned Randy Wheeler about this fact, and that Wheeler replied that he could ' This case sas first set for hearing November 20, 1978 Prior to that date and apparently in partial preparation for the hearing. Randy and Kevin Wheeler drafted a question-and-ansu.er sheet consisting of 13 ques- tions dealing with whether or not they. or the Company. were guilty of any of the unfair labor practices alleged in the complaint Most of the employees "sere asked to complete this question shetl, and apparently most employees completed the sheel. Those who completed and an- swered the question sheet and wuho also testified in this case were ques- tioned about the sheet aind their particular sheet was admitted into esi- dence herein With the admittance of each question sheet during the hearing. the General Counstel moxed to amend the complaint alleging a violation in the soliciting and complctuon of the question sheet hy the em- ployee not talk about the matter at that time. Kell indicated that Wheeler would "say nothing." Kell testified that some- time in December he talked to Kevin Wheeler about the raise and was informed that nothing could be done about the raise until the "union deal was settled," after which he would get the raise retroactive to the date promised. In later testimony, however. Kell stated that he had asked for a raise only twice, the first time being approxi- mately I month after he was hired. Kell further related that he did not "remember" receiving any raise in October. "' Kell testified that sometime in December both Randy and Kevin Wheeler talked to each employee individually about the Union, and that when they spoke to him Randy Wheeler asked him why he wanted a union and what a union could do that he could not do, to which he replied better working conditions and better insurance. Kell went on to testify that on several occasions both Randy and Kevin Wheeler would approach him prior to the election and on the day of the election, and would say various things including, "You know what I prom- ised you." Kell indicated that he did not know what Wheeler meant by this remark. According to Kell, fur- ther remarks included "You know how to vote" and "I'm counting on you." Kell related that, sometime within the 3-week period prior to the election on Janu- ary 13, an employee meeting was held at the plant, at- tended by all employees together with Randy and Kevin Wheeler. Kell testified that at this meeting Randy Wheeler announced that there could be no further over- time because some "spineless individual" had "reported us to the Labor Board. " " Kell testified that on January 23 he met alone with Randy and Kevin Wheeler, as did most other employees on that date. According to Kell, Kevin Wheeler suggest- ed that he had been "waiting for this," to which he (Kell) replied, "Yes, I have been waiting for the money I was promised." Kevin Wheeler then replied that they had not promised him any raise, that he was lucky he did not get fired, and that he was a troublemaker because he started "a union deal." Kell was, however, given a 40- cent-an-hour raise at that time. According to Kell, 2 or 3 months after the election he was asked to complete the question sheet, relating that he had to sign it because, "They told me I had to sign it." Sometime in December an inspector from the compa- ny's only customer, John Palkovics, came to the plant to inspect completed boxes. Kell related that he accom- pained Palkovics on this inspection tour and at one point Palkovics asked to have the boxes lifted up with a fork- lift so that he could inspect the underside. According to Kell, they both went back inside the building where all the employees were "standing around and talking." Kell further related that he asked someone to go out and op- m' Payroll documents admitted into e'idence indicate that in mid-July 1977 Kell received a raise of $1 per hour (53 to S4 per hour). and that in mid-)October he receivsed a raise of t35 cents per hour to $435) " This referencle was to a complaint that employee King had filed with the Wage anld ttour Di.ision of the U S. )Department of Labor Contro sersial in this case is whether or not Wheeler actually knew that It was King who had filed the complaint, and whether or not he was actually looking at King when he made the remark at the emplosee meeting Vl-lFF'l C() '() I)VEC1ISI()NS ()F NA 'I()ONA. IABOR RI.ATI()NS BO()ARD erate the forklift and according to Kell "everybody turned around and walked away." Kell went on to add that Palkovics "got mad" and left. Kell indicated that neither Randy nor Kevin Wheeler ever questioned him about the incident later. Kell testified that during his em- ployment he was sometimes late two or three times a week because his daughter ran a high fever "all the time." On May 7, 1978, he received a written warning for missing 10 days of work after April 13, 1978, some of said days having been unexcused. He further testified that during his employment he was never told that his work was deficient, adding that he and other employees were loaned money by the Company on occasion. Employee Jeffrey Jackson worked for the company from July 1977 to January 23, 1978, when he was termi- nated. He was again rehired on November 13, 1978, but quit 2 weeks later. Jackson executed the question sheet prepared by the Company at the request of Randy Wheeler, answering no to the questions dealing with whether or not unfair labor practices had been commit- ted. Jackson testified that on January 23 he was called into the office before Randy and Kevin Wheeler, and Kevin Wheeler thereupon indicated that there had been "too much playing around" and that he was not needed "right now," although he might be called back in a "couple of weeks." Jackson further testified that three other employees were discharged on January 23, and that in his opinion the Company did have just cause for these terminations. Employee Bruce Cunningham was first employed by the Company in June 1973 and worked for 2-1/2 years before quitting. He was rehired in December 1977. Cun- ningham attended the employee meeting in the plant in December, presided over by Randy and Kevin Wheeler. Regarding this meeting, Cunningham testified that Randy Wheeler stated that, according to a magazine arti- cle he had, there was a "decline in . . . people wanting unions in the United States." According to Cunningham, Wheeler also stated that some "spineless individual" had turned him into the "Wage and Hour Control Board." A further employee meeting was held approximately a week before the January 13 election and according to Cunningham it was a "beer bash" at the Kingsbury Inn. Employee King was discharged on January 23 and, ac- cording to Cunningham, in the fall of 1978 he had a dis- cussion with Kevin Wheeler during which the subject of King's discharge came up. According to Cunningham, he mentioned to Kevin Wheeler that King's discharge was "poor timing," to which Wheeler agreed. Employee Bruce Cunningham also testified about the establishment of a "late committee." According to Cun- ningham, there had been much absenteeism and tardiness in late December and early January. As a result, both Randy and Kevin Wheeler discussed the formation of a employee committee to deal with the problem. Cunning- ham did not really remember when the subject of this committee first came up, whether before or after the Jan- uary 13 election. Cunningham went on to testify that a week or so after the election a "late committee" was formed and that at Randy Wheeler's request he served on the committee, along with four other employees. The purpose of the committee was to determine the legitima- cy of later arrivals or absences. The committee had writ- ten rules, some of which were suggested by the employ- ees, and the committee met each week on Friday. Cun- ningham went on to testify in February Randy Wheeler informed him that he had been mailed an "overtime" paycheck, but that he (Wheeler) wanted it back. Cun- ningham indicated that he agreed but that upon receipt of the check he later changed his mind, cashed the check, and so informed Randy Wheeler. According to Cunningham, Randy Wheeler then stopped payment on the check and he thereafter reported the matter to the "Wage and Hour Control Board.""2 Cunningham related that Randy Wheeler ultimately let the check go through, although he was mad about the situation. Cunningham testified that several weeks after the "check incident" he quit because he felt his relationship with Randy Wheeler was strained over the matter. Employee Gayle Cunningham first came to work for the Company in May 1973 and left July 1978; he was re- hired in November 1978. At the January 13 union elec- tion, he was an observer for the Company. Regarding the December employee meeting at the plant, Cunning- ham testified that Randy Wheeler first spoke of the de- cline of unions and "about companies having them put out." According to Cunnningham Wheeler also an- nounced that some spineless individual turned him in to the Wage and Hour Division, and that this remark was made while he was reading from a "piece of paper" in his hand. Cunningham testified that a week before the January 13 election Randy Wheeler mentioned a committee and stated that "instead of filing for a union we could have brought a petition to him and then he could have drawn a contract up . . . without involving a union." Cunningham related that this remark was made to him during what the employees called "gripe ses- sions." Cunningham later recalled "something" about talking to several employees, including Tharp Magley and Dave Pagles, about drawing a contract with the company without a union. Cunningham added that nei- ther Randy nor Kevin Wheeler was present when this discussion took place. Employee Cunningham further testified regarding the formation of a committee. According to Cunningham, a week after the election he met with Randy Wheeler and employee Dave Pagles, and Wheeler asked if they had come up with any kind of contract or committee. 3 He and Pagles answered that no action have been taken. Wheeler then instructed them to go ahead and "do it." According to Cunningham several days later the em- ployees got together and "elected" four employees, in- cluding himself, employees Wendell Magley, Joe Koepke, and Victor Schultz, to the committee. Several days later they informed Randy Wheeler of the election of the committee members and, according to Cunning- ham, Wheeler then indicated that the committee should proceed to "draw up a contract." The committee then ' This complaint to the "Wage and Hour Control Board" was later in time and not ihe subject of the "spineless individual" remarks made at the employee meeting in Decenmber '3 In later testimony, Cunningham was asked whose idea the committee was Ito w hich he replied. "I think it was part of the employees" 872 WHEELCO CO met, thereafter solicited ideas from other employees, and then met with both Randy and Kevin Wheeler "about the second week of February," and presented certain proposals including request for more paid holidays and sick days, an "absentee proposal," and a request for a better insurance plan. Cunningham related that Randy Wheeler agreed to no sick days but one additional paid holiday, and that Kevin Wheeler indicated he would contact the Company's insurance representative regard- ing better insurance coverage. According to Cunning- ham, the formation of an absentee or "late committee" was also discussed. Cunningham related that after con- sulting with employees he and the other members of the committee met again with Randy and Kevin Wheeler in late February, and that they came to an agreement of sorts which was later reduced to writing and posted in the shop." Gayle Cunningham further testified that, a week or so before the election, Randy Wheeler, in his presence and in the presence of employee Paul Severs, told employee Truman King, "You have worked harder in the last 30 days [than] you worked here since the day you started here." According to Cunningham, several days after King was discharged (January 23) he asked Randy Wheeler why King had been discharged in light of the remark he had previously made, and Wheeler replied that he did not remember the statement and that King was discharged because he was not "performing his duties right." Cunningham related that he had earlier, in December, told Randy Wheeler that King's father was treasurer of a union or a union official with another com- pany. Gayle Cunningham went on to testify that "around Christmas" Kevin Wheeler stated to him, "I don't think you are for the Union, you are going to vote no, right," to which he replied, "Yes." Cunningham further testified that, a week before the election, Kevin U'Wheeler told him and employee Pagles that "he didn't think we had any problem about winning the election, he thought 75 per- cent of the people out there were going to vote no anyway." Cunningham related that he was first contact- ed about the Union by employees King and Kell in November and that during the first week in December King asked him to sign a union authorization card, which he did. He explained that he thought the purpose of the card was to "see how many people were interest- ed in the Union . . . [and] to bring a union representa- tive down to talk to us." Cunningham added that he was strongly against the Union from the beginning and he had so informed both Randy and Kevin Wheeler. Cun- ningham indicated that he was also asked to sign or ex- ecute the question sheet by Kevin Wheeler, and that Wheeler had said it was up to him as to whether or not to fill in and sign the sheet. Employee Paul Severs has worked for the Company continuously since July 19, 1977. He testified that he signed a union authorization card on December 2 and obtained four other signed cards. According to Severs ' This so-called , .rllcin agreet en Ir if I cont ainled oly -guldellrics for lateness and absences Holidas hai been serhall discu,sed and agreed to earlier before the posting of Ihe -callled Iagreemenri Inuslrance benefits A,,ere .ipprioted seeral montlh laicr ai ordinr g 11 Cii tlilln gh;iu around the first of December the Union "became general knowledge" and that he, King, and Kell were the pri- mary organizers. Severs testified that "at work" Randy Wheeler told him that it was "illegal" to solicit union au- thorization cards during working hours. 5 Regarding the "Wage and Hour Board" complaint, Severs related that just before Thanksgiving he accompanied Truman King when King filed a complaint with the U.S. Department of Labor and that subsequently King, in his presence, told Randy Wheeler that he had "turned [him] into the Wage and Hour Division." Severs related that he also told Randy Wheeler on that occasion that he had accom- panied King when the complaint was filed. Severs testified that in October 1977 he asked Randy Wheeler for a raise and Wheeler agreed to a total raise of 50 cents a hour commencing with 25 cents an hour December 15 and, an additional 25 cents on March 15. Severs related that he did not receive the raise on De- cember 15 and, approximately a week thereafter, at an employee "gripe session," Randy Wheeler spoke about a magazine article which mentioned the decline of unions and also mentioned that no raises could be granted as they may be considered a bribe in light of the "union dealings."'6 Severs went on to testify that Wheeler also indicated that he would see if they could afford raises, further mentioning that some "spineless individual" had turned him in to the Wage and Hour Division. At this meeting, Severs related that Kevin Wheeler also stated he would look into better insurance benefits. Severs testi- fied that at a later "gripe session" Kevin Wheeler stated he had talked to the insurance man, and then asked the employees "what type of things people would like," to wshich there were several responses. According to Severs, this "gripe session" was held in late December or early January. Severs testified that approximately 2 weeks before the election Randy Wheeler asked him what he thought would benefit the Company, to which he replied better wages, sick days, more holidays, and adequate tools. Severs went on to testify that approxi- mately a week and a half prior to the election, he was (or became) a member of the employee committee that met with Randy Wheeler. According to Severs, other committee members were Gayle Cunningham, Victor Schultz, and Lloyd Tharp. 7 Sever related that the sub- ject of the meeting was the "different individual things" employees wanted in a "company contract," including holidays, sick days, and what to do about absenteeism and tardiness. Severs testified that on January 23 he was called in before Randy and Kevin Wheeler. Kevin Wheeler stated that he was "an instigator of union activity," was "dis- contented" with his job, continuously late and absent, and failed to tighten nuts and bolts properly. Wheeler then indicated that he would like Severs to quit his job. Randy Wheeler then said that they could give him some ': NO date N\ ;1 e r mientioned " his "gripe sesion" I ib', iolusl) the I)e hcne br enlplosee tmeeting eItliitfed to bh a nunlber of er plly et', In Ihils cae t7 lplicc Curlnringhanl testified that this ncetilng ioccurred approxl- niattel 2 i,.k. after thee lctletir ard thil the i commlttee c,,lln l ed of hinmclf (( ininl ghia)t W en; ll NMlgic Joe Kepe kc, and Vicltor %chI i It Il 873 DECISI()NS OF NATIONAL. LABOR RELATIONS BOARD time to think about quitting, whereupon the conversation ended. Several days later, according to Severs, Randy Wheeler asked if he had come to any decision, to which he replied that he could not quit unless he "had an op- portunity to find another job." Randy Wheeler then asked if he wanted some time off, and he replied that he did not know, but later that day he asked for and was granted the following day off. Severs testified that a week thereafter he went to the plant to get his check and Randy Wheeler "asked how much more time [he] wanted," to which he inquired as to how much he could have. Wheeler then replied 2 weeks. Severs related that on February 18 (Saturday) he called the plant and told Randy Wheeler that he had obtained another job com- mencing the following Monday. Severs related that this new job resulted in a cut in pay of $1.25 per hour and thus he asked Randy Wheeler if he could work part time at night, and Wheeler asked him to come in Monday and talk about it. On Monday, February 20, and after 4 p.m., Severs indicated that he came to the plant and was hired part time, 2 hours on Tuesdays and Fridays, and 4 hours on Wednesdays, Thursdays, and Fridays. Severs indicat- ed that he continued both jobs for 3 weeks and when re- porting for work on Thursday Kevin Wheeler said that they cutting back on "energy," and that he could no longer work part time, adding "in a week maybe we can work it back out." Severs indicated that he checked back several times thereafter but he was not rehired. In cross- examination, Severs admitted that in November 1977 he applied for a job with another company because that company had an "injury policy" and he had slipped on the ice at work, and that he used this as a excuse to leave work. Severs also conceded that three other em- ployees accompanied him on this occasion, including em- ployee Truman King. Severs testified that he attended the company party 2 days before the election and that he overheard Randy Wheeler state that during the last month and a half em- ployee Truman King had been the best worker that he had. Severs related that in his opinion the quality of King's work was "good to [his] knowledge." Severs went on to testify that hammers were not actually thrown through the air but were "slid" on the floor from one worker to another who needed it. According to Severs, this practice or procedure was commonly called "throwing" the hammers. Severs added that he and em- ployees King, Kell, and Rick Johnson "threw" hammers "periodically, once a week." Truman King was first employed by the Company in April 1976 and was discharged on January 23, 1978. During this period he worked as laborer, welder, arind painter. King testified that talk about the Union began in mid-November after Randall Wheeler had refused to grant employees the Monday after Thanksgiving as a day off. King indicated that he strongly supported and campaigned for the Union, signing a union authorization card on December 2. King testified that he filed a com- plaint with the Wage and Hour Division of the U.S Department of Labor on November 30 because Randall Wheeler had refused to give him overtime pay, insisting that overtime would be paid as "straight" time. King re- lated that employee Severs accompanied him when the complaint was filed and that the purpose of filing the complaint was to get overtime pay for all the employees. King indicated that after he filed the complaint he told several other employees, including employee Gayle Cun- ningham, about having filed the complaint. King testified that in late December he also attended the employee meeting where either Kevin or Randall Wheeler informed the employees of the decline of unions and of the "disadvantages" of unions. According to King, Randall Wheeler, while looking directly at him, further stated that "some spineless individual" had turned him in to the Wage and Hour Division. Wheeler also mentioned that instead of going to the Wage and Hour Division that the individual should have "talked it out with him first." King related that, several weeks prior to the election at an employee meeting at the plant, either Randall or Kevin Wheeler stated that instead of "getting a union representative we should have got our old committee together and hashed out the problems with them instead of getting an outsider." King testified that on January 9 or 10 Randall Wheeler approached him and stated that he had heard he was going to "turn him in to OSHA," and that if he did turn him in to "one more government agency [he] would be his enemy for life." King related that he denied he had any ideas of turning the Company in to "OSHA." King further related that approximately a week before the election Kevin Wheeler approached him and stated "I can't change your mind about the Union, right," to which he replied, "Right." King testified that on January 11 there was both an employee meeting in the plant and a beer party that evening at the Kingsbury Inn. At the employee meeting, which King characterized as "more or less like a gripe session," employee Kell asked some- thing about ventilation in the paint area. At the beer party later on most employees were present as were Kevin and Randall Wheeler. King testified that he got "drunk before it was over." He related that during the party he told Randall Wheeler that he was the one who had gone to the Wage and Hour Division, and that Severs had accompanied him. King further related that at the party Randall Wheeler told him "in the last month or month and a half that [he] was the best worker he had in the building." Regarding his sobriety at this point, King testified that he was "half and half." King testified that on the following day (January 12) Randy Wheeler approached and stated that he thought that "section lead- ers" Cunningham, Pagles, and McCalister "ought to have the right to vote in the election . . . [and] not to challenge their vote." According to King he responded that he would not challenge them, but to the contrary he did so on the following day at the election. King testified that, on January 23, he arrived approxi- mately 5 hours late for work and that close to quitting time (4:30 p.m.) he was told to go to see Kevin and Ran- dall Wheeler. When reporting, he was discharged for failure to do his job, lateness, and missing work, and for refusing to drive the forklift for their customer's inspec- tor John Palkovics several months previously. King rc- lated that he then called Kevin Wheeler a "liar" arid 874 WHEELCO CO. stated he was going to "turn [them] into the National Labor Relations Board." Regarding the so-called forklift incident, King testified that employee Gary Kell came inside the building and asked him if he would go out and drive the forklift for the customer's inspector, and he responded that he would not because it was "too cold." King conceded that he knew who the inspector was and that at the time the inspector was standing by the door about 40 to 50 feet away. King was "not sure" if any other employees were standing around at the time, but related that several days later Randall Wheeler told him that if Kell ever asked him to "do something like drive the forklift," that he should comply with such a request. " King also testi- fied regarding a Christmas bonus, indicating that his first year with the Company (1976) he received a Christmas bonus of "$25 or his first year with the Company (1976) he received a Christmas bonus of "$25 or $30," as did four other employees. King related that in December (1977) he and all other employees received a bottle of whiskey and some employees additionally received cash bonuses but that he did not. However, he made no in- quiry as to why he had not received a cash bonus. King testified that in October 1977 his job as a painter was changed to that of a welder and that he was told the reason for this change was that employee Mark McCalis- ter was being made supervisor of the "whole building" and if he had remained as a painter "down in the paint area that the people [he] worked over before would show favoritism for [him] rather than do what Mark said." 19 King testified that prior to his discharge he was never criticized for his work or for lateness, and that he per- formed maintenance on the painting guns every day. King conceded that Randy Wheeler had told him in August or September to try to keep the hoses leading to the paint guns free of paint, and further conceded that Wheeler would "tell him once a week to be sure and . . . clean the hoses out at the end of every day," which he indicated that he did. King denied that he ever "dropped a pistol from a painter." but conceded that the paint area was not kept clean, adding that "you just couldn't keep it clean." King also conceded that paint often dried in the paint guns, but he blamed this on others who used the guns and failed to clean them prop- erly. Regarding wage increases, King indicated that sometime in late November there was some discussion regarding wages but he was not sure where it occurred or who was present. Regarding the throwing of ham- mers, King testified that two or three times a week he would "slide" a hammer on the floor to another employ- ee who was not within reaching distance, as did other employees. He also conceded that he "may have" mis- placed some tools. At one point in his testimony, King was asked whether he was disruptive at work anytime between November 28 and January 23 (his discharge date), and King answered, "I don't remember." King " Kell testified Ihal the employee, were all standing around land ralk- ing when Kell asked for help. and that "e'ershod(. lurned around and walked away ' At the time of the transfer, King A a, apparel ils the "'lra's ho,,, " L r section leader In the paifll t arta denied painting any obscene pictures on a "heater" but admitted that approximately 8 months prior to his termi- nation he had "pitched pennies" during working hours two or three times. He denied ever disregarding any instructions from either Kevin or Randall Wheeler but admitted both "running through the building," and the fact that he "clowned around," but added that other em- ployees did the same thing. King also admitted that he told Randy Wheeler that he could get a job anytime at the company his father worked for, also conceding that he left work to apply for another job in November to "better himself." King testified that long after his dis- charge and on or about June I he received a letter from the Company asking him to come back to work, to which he did not respond. King added that he would have returned to work if he had been given "all the backpay back." Lloyd Tharp testified as a present employee of the company and was employed April 1977. Regarding Ran- dall Wheeler's "spineless individual" remark at the De- cember employee meeting, Tharp testified that Wheeler was looking "to the floor," and added that Wheeler in general never looked at employees when he talked to them. Tharp related that Kevin Wheeler discussed up- grading hospital insurance, dental coverage, and life in- surance with him in October 1977. Regarding the em- ployee committee, Tharp testified that he and employee Wendall Magley initiated conversations with Kevin Wheeler in December to form an employee committee in charge of work rules and benefits, Tharp added that thereafter there were several employee meetings about the committee, which was eventually formed in Febru- ary or March 1978. Tharp also testified about an incident involving employee Kell and a "crowbar" incident. Ac- cording to Tharp in February or March he saw Kell, dressed in nonwork clothes, with a crowbar in his hand, going into the office. Tharp related that when Kell came out of the office he asked him "Would you have hit [Randy Wheeler] with the crowbar," to which Kell re- plied, "Yes, I would if I hadn't got what I wanted." Tharp also testified that employee King had told him "more than once" that his father worked at a nearby foundry and that he could get a job there anytime. In late 1977, Tharp indicated that he complained to Randy Wheeler about "people missing too many days," and that Wheeler responded by stating. "They were going to have to do something about it." Tharp denied that he was ever questioned in any way about the union cam- paign or about any union activities which he may have been engaged in. Employee Wendall Magley testified as a present em- ployee and had been employed by the Company for 2 years. In early or mid-1978 he became a "section leader." Magley also testified that Randy Wheeler was not look- ing at anyone when he made his "spineless individual" remark at the December employee meeting. Regarding the committee, Magley testified that a late committee ws as established in the summer of 1977, and that this committee was again reestablished in February 1978 Magley added that this committee was established at the request of the employees. Magley was also present when 875 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kell entered the office with the crowbar and, regarding the incident, Magley testified that Kell was in nonwork clothes and was in fact carrying a crowbar. Magley de- scribed the incident as "not a usual occurrence." Magley also overheard employee King say once that he could get a job in a nearby foundry. He further indicated that neither Kevin or Randy Wheeler ever questioned him of his sentiments about the Union. Employee David Pagles testified as a present employee and had worked for the Company for 5 years. He was a "straw boss" and a welder, and several employees worked under him. He was paid 75 cents per hour more than these employees. Pagles testified that there was no scheduled breaks other than lunch at the plant and, re- garding a late or tardiness procedure, Pagles added that "late procedures" were attempted in late summer 1977 at the request of a group of five employees, including him- self and employees King, Scott, Gayle Cunningham, and Thompson. Pagles added that the late procedures agreed on were put into effect and were continued until November 1978. Pagles testified that employees Egolf and Jackson had worked under him and were also discharged on January 23. According to Pagles, Egolf "wasn't doing his work . .was absent a lot . . . was late a lot . . . and most of the work that he had done had to be redone." Pagles re- lated that he voiced these complaints to Randy Wheeler, and that the same deficiencies were also reported to Wheeler regarding employee Jackson. Regarding the "spineless individual" remark of Wheeler in December, Pagles testified that Wheeler was looking at a sheet of paper which he was holding in his hand when the remark was made. Regarding the desirability of the Union, Pagles testified that he and several others em- ployees, including Gayle Cunningham, Wendall Magley, Lloyd Tharp, and several others decided they did not need a union and that they could form a committee which "could handle it for ourselves." Pagles indicated that this occurred before the election, and they also con- sulted with both Randy and Kevin Wheeler about their ideas. After the election, Pagles related that some work changes were made through the committee effects. Pagles further testified regarding an incident involving four employees leaving the plant in late November. Pagles indicated the employees were Ron Noble, Charles Rudd, Severs, and King. According to Pagles, Rudd and Noble told him that they did not feel well, and Severs stated that he slipped and hurt his back. King gave no reason for leaving. Employees Rudd and Noble returned later in the day, explaining that they had applied for an- other job. Regarding employee Paul Severs, Pagles fur- ther testified from September through January Severs worked on "rear ends" and that he had to turn in Severs "at least once a day" for poor workmanship. Pagles added that he talked to both Severs and Kevin Wheeler regarding this problem. Pagles testified that neither Kevin nor Randy Wheeler ever interrogated or ques- tioned him regarding union activities during or after the campaign. Robert Scott testified as a present employee, having worked for the company for 5 years. Regarding employ- ee King, Scott testified that King drew "cartoons, jack- ass" on walls or heaters with employees' names inserted, including his own name. Scott added that King also called him names, including "dog" and "fatboy," and that King once "leapfrogged" over his head. Scott relat- ed that he had never seen any employee throwing ham- mers. Regarding Randy Wheeler's "spineless individual" remark, Scott also testified that Wheeler was looking at the paper in his hands at the time the remark was made. Regarding the paint bay, Scott testified that its condition held up production "probably once a week," adding that there was "general goofing off' by employees Severs, Johnson, and King in the paint bay. Scott also indicated that these three employees "pitched pennies during working hours" and that once he observed employees King and Bruce Cunningham in a "foot race."20 Mark McAlister testified as a present employee and as a "straw boss," indicating that he had worked for the Company some 4 years. Regarding employee King's con- duct, McAlister testified that King and employee Bob Bratcher were "clowning around" and Bratcher "ran into the bathroom .. and [King] threw something at him . . . and it hit the door." McAlister related that King also "cut welding wires on the welding machines when people were welding," and further encouraged em- ployees to "chase" him through the building. McAlister added that King would also "call employees names." 21 McAlister went on to testify that King "very seldom" cleaned paint guns and that he misplaced parts, adding that King's work was "poor," although he had spoken to him about it "on occasions." According to McAlister, King's work did improve "on occasion" in December and January, but "not often," a few times. Regarding employee Kell, McAlister testified that he was not a "competent" painter and that Kevin or Randy Wheeler would speak to him about his work "two or three times a week," as they would also do with employee King. Re- garding the employee committee, McAlister testified that the idea for the committee came from the employees alone. Kevin Wheeler testified as a active partner in the Company. Regarding employee King, Wheeler testified that in May 1977 King was made a "straw boss" or section leader, in charge of the "paint bay and cleaning section," where he remained until late November. In this position, King was in charge of assigning personnel, maintaining and taking care of equipment, seeing that there were adequate supplies, and insuring that the man- ufactured containers were painted. Wheeler related that one of the Company's suppliers of the substance used for thinning paint and cleaning equipment was only several miles from the plant, with normally I-day delivery. Ac- cording to Wheeler, from spring 1977 until January 1978 there were "excessive" purchases of parts for the paint- ing equipment resulting from the lack of proper care and "' Erplo ,ee (,ale Cunliniigh;ll ai o lestified to the foot race. conced- ing that hie had albo pirilcipaled &ccoirdiig ti (Culnnilgham, before the race, emrployees Scott and King Ar rc also racing in Ihe building ' King admitted in lesti nonL Ihal lhe once leapfrogged around the buildilg ioer eniplosecs ,iand that "goofinig off probably" rtok plase in the plarit, addinlg Ihal h Ic "somtimes probahly" ,as irs ,olsed He also iatldll cired llig cJdinig xlrcs , lrld ther fact that he Ihres an "o hject 876 'VHI Ft C() C() cleaning of that equipment. Wheeler added that orders for these parts diminished "greatly"'' after King's termina- tion. Wheeler testified that during King's tenure in the paint section there were "many problems." He related that the section would "fall into disrepair," and was "constantly dirty . . . [and] breaking down." Wheeler further added that the "quality of work was poor, and the quality of work was not anywhere near what we ex- pected it to be." Wheeler testified that King was thus reassigned in late November and Mark McAlister was placed in charge of the building. Upon King's reassign- ment, Wheeler indicated that his higher salary as a section leader was not reduced and thus he explained to King that he would not receive a raise in the future until other employees caught up with his higher salary. Fol- lowing King's reassignment, his attitude according to Wheeler became "very sullen and uncooperative." Wheeler added that King's work continued to be "im- proper" and reflected "deficiencies," and they received complaints from their customer's inspector. King was then switched to another job and the overall assembly line or "flow" thereafter improved. According to Wheel- er, the decision to discharge King was a joint one made by him and his brother Randy "throughout the months of December and January." Wheeler also testified to the inspection incident which he indicated occurred in De- cember. According to Wheeler, employee Kell came into the office and related that the inspector was "mad and was leaving the area." Wheeler related that he went out and "chased the inspector down," who was then in the process of driving away. The inspector (Palkovics) then complained that the employees did not care enough to help him out, relating that he and Kell were inspecting containers outside and needed a forklift operator, where- upon they went inside where a number of employees were "standing." The inspector related to Wheeler that he recognized or knew employee King and asked him to operate the forklift, and King responded by stating "Go jump in the lake," adding that he would not go out into the cold. 22 Wheeler indicated that the inspector did remain and that he accompanied him personally "the rest of the day." Wheeler testified that he talked to King about the incident, reminding King of the importance of the inspector and pointing out that he was a "link to our accounts receivable." Kevin Wheeler .vent on to testify that in early January the Company's accountant notified him that the Compa- ny suffered a net loss in 1977, adding that their projected production rates were never met in 1977, but that pro- duction did improve in 1978. Wheeler denied that he ever called Egolf at home after he discharged him, and regarding employee Kell, he denied that he made any promises to Kell or had any' discussions about a wage in- crease, although he did speak to Kell about his work which was performed "less efficiently" beginning in Sep- 22 I'his conversalion hbeu een inspector Palkox ics and Kevin Wheeler wvas objected to bh the General Counsel a, being hearsay I concluded that the objection uas v ell fiunded but alloued the testimon) not fuir the truth of the substance of the conr,:rsatilon bhut in explanatilon of Kevin Wheceler's aclions thereafter tlo','exer, the fact that Ihe Incidelit occurred essentially a, related hb the uinspctlr is corrioborated h other competent eidence in the recrri tember 1977 Wheeler indicated that his brother Randy vw as not looking at any particular individual when he made the "spineless individual" remark at the December employee meeting. Regarding the employee committees, Wheeler testified that such a committee was first formed in July 1977 at the employees' request, but was ineffec- tive because most employees with a bad late or absentee record would usually quit before the committee could act Wheeler went on to add that the second such committee vwas formed or reorganized in December, again at the request of the employees, and that this committee not only concerned itself with absenteeism but requested discussions regarding "changes in benefits" that would be negotiated. Wheeler related that the em- ployees elected four individuals to this committee during "January and February" and that they eventually "set- tled" on several changes involving "holidays," "funeral day's," and a system for checking on lateness and absen- teeism. Kevin Wheeler went on to testify that, regarding Christmas bonuses, all employees received a bottle of liquor and all but four or five received cash bonuses ranging from $5 to $30, with section leaders receiving $75. The bonuses were based on merit and, according to Wheeler, King was one of the four or five employees not receiving any cash bonuses, including Egolf, Jackson, and Skuttsfield. Regarding the January beer party at the Kingsbury Inn, Wheeler denied that his brother Randall stated King was the best worker they had, or made any other similar remarks regarding King. He also denied that King mentioned anything about his complaint to the Wage and Hour Division at that party, and, regarding that complaint, Wheeler testified that he heard about the complaint when an employee of the Wage and Hour Di- vision came to his office in December, adding that he never learned that it was King until long after he was discharged. Wheeler added that he suspected at the time that the complaint was filed by another company with whom they were in competition for "qualified" welders. Kevin Wheeler testified that, regarding employee Paul Severs, he had applied for jobs at three other companies, and that he had received reference calls from the compa- nies, adding that the "quality and quantity of [Severs'] work was poor." Wheeler related that, in this light, on January 23 he informed Severs that it would best if he "intensify his efforts to find another job." According to Wheeler, Severs asked for more time and he told Severs that "if he would let me know a day in advance, I would give him a day off," to which Severs replied that he would get another job. Wheeler added that Severs was not a troublemaker, and Wheeler denied that he men- tioned the Union on January 23 when he talked to Severs. Kevin Wheeler testified that in February he was noti- fied by the "Local Power Authority" that he had to cut down on power usage because of the "energy crunch." Thus, he thereafter in February closed down one of the two buildings comprising the plant. Regarding the em- ployee questionnaire which he asked most employees to sign, Wheeler testified that when they received the charges in this case they thought they were "so grossly 877 D)F:CISI()NS ()F NAl I ()NAI I ABO()R RI I.AI IO)NS BOARI) unfair and so incorrect" that they decided to prepare the questionnaire and "allow the employees, if they wished, to answer these questions whatever way they felt," and thereafter he and his brother would analyze the answers and "see how much support we had for the feelings we had." Wheeler added that all the employees were given the option to answ er or not to answer the questionnaire. Further regarding Kell's salary, Wheeler related that in October Kell was given a 35-cent-per-hour raise "to incent him to do his job . . . to improve upon it." Ac- cording to Wheeler, at this time Kell was told that it would be difficult for him to receive a raise in the near future because the next raise would put him on a par with "skilled welders" and, since he was not a welder, he would have to do "extraordinary work" to justify re- ceiving the same amount as such skilled welders. Wheel- er added that, during Kell's employment, he would ask for a raise "on the average of at least once a week." Randall Wheeler testified that he and his brother Kevin were the sole operators of the Company and that each altered their time between the plant involved in this case and their other Chicago facility. Wheeler testified regarding King's discharge that several months prior thereto he did "jokingly" remark that King's work had improved, but Wheeler denied that it actually had im- proved. Wheeler related that he and his brother agreed on the discharge of King on January 23 and that they had been "going toward that conclusion for months." According to Wheeler, King was discharged for "many reasons." Prior to November King's job was to paint with "airless" paint equipment, which he kept in an un- clean and thus unsafe condition. He was also careless with other painting equipment, once "dropping the pistol from the top of the container." Wheeler added that the paint equipment "was always in a state of disarray." Ac- cording to Wheeler, King had a "clowning syndrome" and was "disruptive at work," painting "obscene pictures on a heater, throwing hammers and pitching pennies during work hours." Wheeler conceded that he "may have" learned of the pitching of pennies after King's dis- charge January 23. Wheeler added that King improperly refused to assist their customer's inspector, and that his attendance was "always bad," indicating that there were 28 weeks out of 1977 that King was not in full attend- ance. Wheeler did concede that there was no set absence policy during this period and no written rules of any type. Wheeler indicated that King additionally lacked "loyalty" and constantly bragged that he could get a better job anytime where his father worked. Wheeler fi- nally added that King had financial problems and that the Company was continually dealing with garnishments filed against him.23 Wheeler denied ever telling King that he would be his "enemy for life" if he reported him to another agency. Wheeler also denied that King ever told him that he had filed a claim with the State Wage and Hour Division. Wheeler testified that, in addition to King, three other employees were discharged on January 23 In the State's determination of King's eligibility for unemploynlcnt compensation after his discharge. the initial determinationt was admitted into evidence without objection and state. in part, as foIllo.,: "[The em- ployer] has failed to show the claimant intentionally or willfully neglc't- ed his duties and damaged employer's property." 23, and most remaining employees received a pay raise ranging from between 10 cents to 50 cents per hour. Wheeler related that employee Kell asked for a raise "quite often." Regarding the committee, Randy Wheeler testified that he first attempted to set up a committee at the re- quest of employees in the spring or summer of 1977, adding that the committee that was formed in January was also the idea of the employees. Wheeler testified that during his talk to the employees in December he did make the "spineless individual" remark but at the time he was looking down at a paper he was reading from, fur- ther adding that at the time he did not know King had made the complaint to the Wage and Hour Division. Wheeler denied that he had ever actually asked employ- ee Bruce Cunningham to work "extra hours for straight time," relating that Cunningham had on several occa- sions worked straight time for extra money, at his re- quest. Wheeler denied that he ever told employee Severs, or any other employee, that he would consider taking away hours already worked for being late or tardy. Wheeler also denied that he held up employee Severs' check so that Severs would report to him and the two could confer. Regarding the employee question- naire or question-and-answer sheet, Wheeler testified that the sheet was passed out because he thought the allega- tions in the complaint in this case were "totally unjust and he wanted to have [the employees] . . . given a chance to comment." Wheeler added that there was no "pressure" placed on the employees regarding the ques- tionnaire and that he merely asked them "if they'd fill it out . . . and if they didn't want to, it was perfectly all right." C. Analysis of Testimony and Evidence and Initial Conclusions 1. Some initial credibility observations In my analysis, I will on occasion credit one witness over the other regarding a particular event or incident. However, I will discredit most of the significant testimo- ny of two employees who testified, Truman King and Gary Kell. King displayed a lackadaisical attitude and his testimony in the main lacked precision and decisive- ness, and was frequently indefinite in important areas. King's overall demeanor, manner, and attitude led me to the early and steadfast conclusion that his credibility was wanting. Kell appeared to treat his testimony and the case as a game. During cross-examination especially he often came off as victorious when his answers were obvi- ously contrary to those which would have been more desirable to the Company's positions. At times, having grabbed the tiger's tail, he would pursue the victory beyond need by volunteering further comments, as if to "rub it in." In this case, at least, Kell's credibility was lost in his "game," and the victories in my opinion became, perhaps sometime even unintentionally or un- knowingly, more important than the truth. Although to a lesser extent than King and Kell, I further discredit por- tions of the testimony of employee Paul Severs. His testi- mony in some areas was more specific than that of King X78 W'HF:F II CO C() and Kell, but reflected an intense animosity to the Wheelers and the Company. Far from enamored swith his job. Severs' overall demeanor wsas lacking and reflected resentment and a desire for retribution These factors in my opinion rendered Severs' testimony less than credit- able in certain specific areas. I do not take lightly credi- bility determinations, and especially these regarding King, Kell. and Severs. They were initially the primary union supporters and a considerable number of the alle- gations in the complaint rise or fall on the credibility of their testimony. 24 Thus I would add that in this case, and regarding the three employees, my credibility determina- tions were early and not overly difficult. 2. Interrogation The complaint alleges some nine or more improper acts of interrogation by the Wheelers between December and April in violation of Section 8(a)(1) of the Act. The testimony gives rise to only four such incidents, the only four mentioned in the General Counsel's brief. Out of the four, one involves the sole testimony of employee Kell and one the sole testimony of employee King. Kell testified that sometime in December the Wheelers talked to each employee separately about the Union. 2' According to Kell, Randy Wheeler asked him why he wanted a union and what a union could do that he (Wheeler) could not do. The Wheelers denied any such interrogation, and I credit them over Kell, and thus find no violation. King testified that a week to 10 days before the January 13 election Kevin Wheeler asked him, "I can't change your mind about the union, right." Based on Wheeler's general denial of any such remarks or in- terrogation, I credit him over King and thus here also find no violation. Employee Gayle Cunningham testified that around Christmas Kevin Wheeler stated to him, "I don't think you are for the union, you are going to vote no, right." Wheeler's testimonial denial to any such inter- rogation was general and I credit Gayle Cunningham's testimony here and find the remark was made and was violative of Section 8(a)(l) of the Act. 26 Employee Paul Severs testified that 2 weeks before the election Randy Wheeler asked him what he thought would benefit the Company. Severs indicated that he replied better wages, sick days, more holidays, and adequate tools. I am given the above interchange only, without mention of the Union. Although the election was several weeks away, Wheeler's inquiry here in my opinion does not rise to a violation of the Act, and thus no violation is found. 7 "2 Union support later diminished. with only one sore for the Union at the January 13 election 2" These talks are uncorroborated by other testimon', 26 Gayle Cunningham testified as a present employee o.f he Cormpan) He was against the Union and acted as the Company's obhserser at the election. His testimony was direct and forthright His o(era3l detmeanllor convinced me that his teslimmons "as creditable " This conclusion is ohtviously not based on credibility Even consider ing that Severs. along with King and Kell. ere the primarN unon ioga- nizers, and the union actilittes ssere commonl knowledge ihrolughotut the plant and to the Wheelers, in my opinion Rand', Wheeler's quesolltn ssai, far short of unlawful Interrogatlon 3. The December employee meeting ("spineless individual" remark) In mid-December there was an employee meeting at the plant during which Randy Wheeler spoke of the de- cline of unions, arid stated that "some spineless individu- al" had turned him in to the Wage and Hour Division. Employee King's testimony (only) would have Wheeler looking directly at him when the "spineless individual" remark was made, and would further attribute to Wheel- er the comment that the employees "should have came to him and talked it out first."2 " All others testifying on the subject failed to mention the additional remark and confirmed that Wheeler was looking down at the time of the "spineless individual" remark. Both Wheelers ad- mitted the "spineless individual" remark and failed to ad- dress King's alleged additional remark by Randy Wheel- er in their testimony. The General Counsel argues that both remarks were made and that both constitute viola- tions of the Act. 29 I find that only "spineless individual" remark was made, as proven and admitted. Complaints such as the one to the Wage and Hour Division by King are concerted and protected activity under the Act. Wheeler's remark was strong and harsh and constituted an implied threat that he would take some action against the "individual" involved. ° I thus find that Randy 'Wheeler's "spineless individual" remark made at the De- cember employee meeting was violative of Section 8(a)(l) of the Act." ' 4. The "committee" and suggestions of independent employee action Earlier in 1977 a "late committee" existed at the Com- pany but virtually ceased to function. According to em- ployee Gayle Cunningham a week before the January 13 election at an employee meeting Randy Wheeler stated that the employees "could have brought a petition to him and then we could have drawn a contract up be- tween us and him without involving a union." A week after the election Randy Wheeler asked Cunningham, in the presence of employee Dave Pagles, if the employees "had come up with . . . some kind of contract or a committee to draw up a contract for the company." When Cunningham replied that the employees had not, Wheeler told them to "go ahead and do it then." Several days later the employees elected Cunningham and three :" King was uncertlain hoescer. stating. "I think . ' Wheeler made such a remark King had filed the conlplaint with the Wage and Hour Di',isln. ULS Department of Labor, on November 30 l2' In his brief, Ihe General Counsel does not address the suhlect of whether or niot Wheeler 'as lookinlg dossn. or at King I find that Wheeler was looking di,sn Co" Ciltrats to the lestimony of employees King and Se.ers, I find that King did nolt earlier tell Randy Wheeler that he had filed the complaint I further find that. at the time of the remark. Wheeler himself, and as, he lestified. did not killow shil filed the complaint The General Countisel ap- pears to concede this when he argues ill his brief that the implihed threat ino)l.ced iadxerse aillon against the emplosee w ho made the claim v.hen that emppl-see heca;ln kLnoun ti Wheeler " Surprisngls.o al comlplete search ilf the complaint as amended reveals no all egaltion regarding the ''spinelcss tlidlxlidual" remark Hou, eser. there was much tesllmons on Ithe 'subject and Ihe matter was fulls hllg:ited Since it i(olaliitn was shosull. I am ,.nstrained firmalls to find the sarle See .lm,,ru,,, I-' d Srn. 112 N RB 11 3h, (It55) S79 )t CISIO()NS ()OF NA I I()NA I. A3BOR RII.AI IO()NS B()ARD other employees to a committee. Oni cross-examination by Randy Wheeler, Cunningham was asked whose idea the committee was, to which he responded, "I think it was part of the employees'." Employee Pagles testified that he, Cunningham, Magley, Tharp, and several others decided before the election that they "could handle it for [themselves]" without the Union, and that also before the election they discussed the matter with the Wheelers. Pagles indicated that the committee was formed after the election and at that time was the idea of the employees. Tharp testified that he and Magley initiated a conference with Kevin Wheeler in December regarding the forma- tion of a committee and that it was eventually formed in February or March. Tharp indicated that the separate "late committee" was the employees' idea. Employee McAlister testified the idea for "the committee" formed in February was that of "some employees." Cunningham testified that, after the committee was formed, he so informed Randy Wheeler, who then sug- gested that the committee should proceed to draw up a contract. The committee solicited ideas from other em- ployees and in mid-February met with the Wheelers and in effect commenced negotiations about a number of terms and conditions of their employment. Another "late committee" was also formed and the existence and pro- cedures of this committee were put in writing and posted. Other matters were agreed to verbally. Although the testimony is confusing and somewhat contradictory about the formation of the primary or main bargaining committee (as opposed to the new or re- newed "late committee"), I find that the initial testimony of Gayle Cunningham fairly accurately traces the com- mittee's roots and formation. I find that at a minimum Randy Wheeler, in January before the election, planted the seed for the committee, and urged and condoned its formation for the purpose of bargaining. After the elec- tion and the committee's formation the Wheelers did in fact recognize, support, negotiate, and bargain with the committee and certain agreements were reached. The General Counsel urges that not only was the preelection suggestion by Wheeler unlawful, but that the later post- election recognition of the committee, the bargaining, and the agreements were also unlawful. I disagree with the latter. After the seed was planted, the Wheelers had nothing to do with the actual formation or administration of the committee other than to bargain with it. ' I do find that Randy Wheeler's suggestion or "seed" was im- proper and unlawful interference in violation of Section 8(a)(1) of the Act. 5. Employee Kell's promised raise and other related matters Kell testified that in late November Kevin Wheeler promised him a 40-cent-an-hour raise and that Wheeler later in effect threatened to withhold the raise unless he voted against the Union, adding that Wheeler later told him that he could not get the raise until "the union deal was settled." Wheeler denied the promised raise, denied 32 The complaint, properly so irm my oplinon, does not allege an' viola- lions of Sec. 8(a)(2) of Ihe Act 'rhich makes it unlawful for an emploler to dominate or inlerfere wilth he formatilon or adminilstraltiol of any labor organization or coniiribute financial or other support tio It the threatening remarks, indicated Kell would ask for a raise "on the average of at least once a week." The evi- deuce reflects that Kell received a raise of $1 per hour in July (from $3 to 54) and a 35-cent-an-hour raise in mid- October.,: ' Kell also received a 40-cent-an-hour raise after the election and on January 23. Regarding the threats and raise, I credit Wheeler over Kell in all re- spects and thus find no violations of the Act. ' On January 23 the Wheelers (together) talked to most of the employees individually. Kell testified that at this time and in response to his (Kell's) inquiry about the raise, Kevin Wheeler denied any such promised raise, adding among other things that he would have to work harder, that he was lucky he did not get fired, and that he was a troublemaker because he started "a union deal." Wheeler generally denied such remarks. I again discredit Kell and find no violations of the Act arising from the January 23 conference."' 6. Miscellaneous incidents involving employees Gayle Cunningham, King, and Severs Employee Gayle Cunningham testified that a week before the election Kevin Wheeler stated to him that "he didn't think we had any problem about winning the elec- lion, he thought 75 per cent of the [employees] . . . were going to vote no anyway." Wheeler did not specifically deny the remark. I credit Cunningham and find that the remark was made, and that it was violative of Section 8(a)( ) of the Act. Cunningham did not support the Union and was the Company's observer at the election. Notwithstanding Cunningham's sentiments, favorable to the Company's opposition to the Union, the remark did convey the impression that Wheeler somehow knew the union sympathies of other employees. The choice was still open for Cunningham, as it was for all other em- ployees, and such a remark prior to the election consti- tutes improper employer interference and influence. Employee King testified that on January 10 Randy Wheeler informed him that he had heard that he (King) was going to turn him in to OSHA, adding that if he (King) turned him in to one more Government agency he would be his "enemy for life." King also testified that on January 12 Randy Wheeler told him not to challenge the ballots of three certain employees at the election the following day. Wheeler denied the "enemy for life" remark and failed to address the alleged "challenge" remark on January 12. I again discredit King on both counts and find no violations of the Act. Employee Severs testified that, during his January 23 conference with the Wheelers, Kevin Wheeler stated that he was "an instigator of union activity . .. was dis- contented with [his] job . . . [and] was continuously late and absent." According to Severs, Wheeler then asked him to quit his job. Wheeler testified that he had re- ceived reference calls from other employers regarding Severs, and admitted that he did tell Severs to "intensify " Kell testified Ihat he did not remember the O)coher raise " Imlphcit in this findinlg is the fact that there was no "scheduled" raise " Kell and all other employees rce,.ei d raises on January 23. except foi the four Ihat Aere discharged 880 WHEELCO CO his effects to find another job," but denied any mention of the union. According to Wheeler, Severs stated that he would get another job. 3 I credit Wheeler over Severs and thus find no violations of the Act resulting from the January 23 conference. 7. Employee Severs' raise Severs testified that sometime in October Randy Wheeler promised him a raise of 25 cents per hour on December 15 and an additional 25 cents on March 15, if the quality of his work increased. On December 15 he did not receive a raise but made no inquiry as to why. Severs also testified that at the December employee meeting (the occasion of the "spineless individual" remark) Randy Wheeler announced that there would be no raises until after the "union dealings" because such raises could be considered a "bribe."3' There is a nota- tion on the payroll sheets, introduced by the General Counsel, reflecting that Severs was to get a 25-cent raise on January 15 (as opposed to December 15) and on March 15. " Neither of the Wheelers gave testimony on the subject.3 n The General Counsel urges that, since the payroll entry or notation regarding the raise (in his own exhibit) was "unexplained," Severs' recollection that the first raise was to be on December 15 should prevail, re- sulting in the unlawful denial of a scheduled benefit.4" I find that at some point Severs was promised a raise, as reflected in the payroll sheets, and contingent upon work improvement as Severs conceded. However, due to Severs' questionable credibility, I find that the raise was to start on January 15 after the election and thus that there was no discrimination in violation of the Act.4 1 8. The Wheeler "questionnaire" to the employees The complaint in this case was issued March 30, 1978. It was originally set for hearing November 20, 1978. Sometime after the issuance of the complaint and prior to November 20, 1978, the Wheelers requested that some employees answer a questionnaire regarding the guilt of the Company as alleged in the various paragraphs in the complaint. The questionnaire was on the Company's let- terhead, contained sixteen separate questions answerable generally by "yes" or "no" in the left margain.42 After the employees signed the questionnaire their signatures were notarized. Two of the questions (11 and 12) begin with, "Do you believe .... " Employee Egolf testified that, although he was not given a choice, there was no :b Steser' suhsequelll departure from the Comnpalns Is not alleged as a tiolation in the comnplaint WVheeler Iestlifed that Sex ers . as not a "lrou- hitmaker" hut was a poor worker, who apparentl) anlted aliother obh " Out ol' the sexen emplioce, called hb the (ieneral CotiLuel. o IsN Sesers lestified I(l Wheeler's raises lnd "hrihbe" renlark ' Severs received a 25-cent raise on August 15 and ilon O ()tohber 17 ". Rands W heeler .as called uIlitiall as a is tness,, for the (Gienera C(outisel and as s not questionled hbout the mlatter ill that itint "' The Iiferencll aIppalrentl) drlasnl hb Ihlt (iilnrail Cotunsel is that the payroll nlatilon, regarding the raise Lcre iniproperl, added later hs the Wheelers lt'here is itno exidenie to this eft:ct, alid the Whecletrs testified that the pa)roll recordts crec kept h, theihr hookkeeper or iLLcOtUltliltl ' I also discredit Sexcrs regrdlrlig lit i tctnlll IhaS l lat Ralilds Wheeler spoke about raises at the I)ecclcitr Ce1plo see. IIlelniIig I'Three ,f telie qiiletolit Ires sIgiiled h licrlploocs I golfl, Jax kuon and t (Ga lc CuLinllighallm ssere altlltdti Illttl ck ldell-ce Alithoiglh eilploti Kell gave testiioriN iabhoUlt 11is qill.c loillalrc. it s its 10io Idilltted intimidation or pressure, and he was asked to answer to his "best knowledge." Employee Gayle Cunningham tes- tified that the Wheelers said, "it was up to [him] to decide whether or not to complete the questionnaire." Employee Kell testified that he "had to sign it . . . be- cause they told me I had to sign it." Randy Wheeler tes- tified that there was no "pressure" put on the employees and that he asked "if they'd fill it out . . . and if they didn't want to, it was perfectly all right." An employer does have the privilege of interrogating employees in the investigation of facts concerning issues raised in a complaint where such interrogation is neces- sary in preparing the employer's defense for trial of the case. However, in doing so the employer must follow certain specific safeguards designed to minimize the coer- cive impact of such interrogation, as follows: (I) the em- ployees must be told the purpose of the interrogation; (2) they must be assured that no reprisals would take place; (3) submission to the interrogation must be voluntary; (4) it must occur in a context free from employer hostility to union organization; (5) the interrogation must not itself be coercive in nature; and (6) it must not exceed the ne- cessities of legitimate purpose by prying into an employ- ee's subjective state of mind." Although I find that the questionnaire was voluntary and involved no actual 'pressure," it failed to meet the balance of the safeguards set out above. I thus find and conclude that it violated Section 8(a)(1) of the Act as alleged in the complaint. 9. Employee King's Christmas bonus and his discharge King was employed by the Company in May 1976 at $4.75 per hour. In May 1977 he was made a "straw boss" or section leader in charge of the paint bay and cleaning section, and on July 11 he was raised to $5.35 per hour. According to King he received a Christmas bonus in 1976 of "$30 or $40," as did four other employees. Kevin Wheeler testified that because of poor work King was reassigned back to the job of a welder in October, and later to yet another job apparently not directly on the as- sembly line. King's reassignment from the paint bay was in effect a demotion, but his pay remained the same. Wheeler related that all but four or five employees re- ceived Christmas bonuses in 1977, ranging from between $5 to $30, with the section leaders receiving $75. All em- ployees received a bottle of whiskey. Out of the "four or five" employees not receiving bonuses were the four that were discharged (King, Egolf, Jackson, and Skuttsfield). I find that King's failure to receive a Christmas bonus was not the result of discrimination against him because of his union support or any other protected activity. King's job performance, among other things, simply did not merit the bonuses, as decided by the Wheelers. The overwvhelming creditable evidence in this case supports the fact that King was far from a good (or even adequate) worker or desirable employee, and I so find." Jo l,h,,iu , Poirlin ( ,, 14 Nt Rl 77"t (1M,4) I his tiut1iig is bascted il the mtaiti ot the teslimoil oft crnipltsees Ja.Lkol . Scotit, M Atisler, and hboth .hteelers As Jacksiil (hinimelt) indi- cated II1 hits le Itltls the Wheelers had ltail cause to) discharge all oiur enlplto ccs 881 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further find that King's discharge was not discriminato- ry and thus not violative of Section 8(a)(3) and (1) of the Act. I am mindful that sometime late in December or early January Randy Wheeler told King, in the presence of employee Gayle Cunningham, that he (King) had "worked harder" in the last month than he ever had. Wheeler in effect conceded such a statement, putting it that he "jokingly" remarked that King's work had im- proved. Considering the creditable evidence and testimo- ny in the case, and Wheeler's overall demeanor, I credit him to the effect that he used the term "jokingly." Be- cause of the nature and insignificance of the remark, I further credit Wheeler when he subsequently told Cun- ningham, after Cunningham had reminded him of the remark, that he did not at the time remember making the remark. I am further mindful that, in June, Wheeler of- fered to reemploy King. I note, however, that both Jack- son and Egolf were later rehired, further characteristic of the Company's high turnover. The Wheelers had a disappointing year financially and, because of this, and the "energy crunch," they had decided to close down one of two plant buildings. Discharges were destined to occur and I find that the Wheelers simply picked the worst and most discontented employees at the time, in- cluding King. 4 Upon the foregoing findings of fact and initial conclu- sions, and upon the entire record, I hereby make the fol- lowing: CONCI USIONS OF LAW 1. That the Respondent Employer is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. '5 These findings regarding King's discharge have been swith full con0 sideration of Ihe IBoard's teachings in 14'right Lirle, a Diamiion o/f Wright Line, Inc. 251 N RB 11)83 (1980) 2. That the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 3. That the Respondent Employer violated Section 8(a)(1) in mid-December 1977 by interrogating an em- ployee regarding his union sentiments and support. 4. That the Respondent Employer violated Section 8(a)(1) of the Act in mid-December 1977 by threatening reprisals if employees engaged in protected concerted ac- tivities. 5. That the Respondent Employer violated Section 8(a)(l) of the Act on or about January 6, 1978, by giving employees the impression of surveillance of their union and protected concerted activties. 6. That the Respondent Employer violated Section 8(a)(1) of the Act in early or mid-November 1978 by im- properly interrogating employees concerning the allega- tions and issues raised in the complaint in this case, issued by the Board's General Counsel. 7. That the unfair labor practices found in paragraphs 3 through 6, above, affect commerce within the meaning of the Act. 8. That except as found in paragraphs 3 through 6, above, the Respondent Employer has not otherwise vio- lated the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act, I shall recommend that it be ordered to cease and desist therefrom, 46 and that it take certain affirmative action including the posting of an appropriate notice. [Recommended Order omitted from publication.] 6 I shall recommend that the "cease and desist" provision of the Order hbe of the narrow variety,. hich I feel to be appropriate in this case. Ilikmtolt Ii'od, Inc.. 242 NI.RB 1357 (1979) 882