Colorado Forge Corporation

COLORADO FORGE CORPORATION Colorado Forge Corporation and Colorado Springs Die Sinkers, Local No. 520. Cases 27-CA-6499 and 27-CA-6692 February 9, 1982 DECISION AND ORDER BY CHAIRMAN VAN DI WATI'ER ANI) MI MMBERS FANNING ANI) ZIMMIRMNIAN On May 29, 1981, Administrative Law Judge Leonard N. Cohen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, Respondent filed cross-exceptions and a supporting brief, and the Charging Party Union filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. : ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Colorado Forge Corporation, Colorado Springs, Colorado, its officers, agents, successors, and as- ' The General Counsel, Respondent. and the Charging Part\ Union have excepted to certain credibility findings made hb the Admiistra3l c Law Judge It is the Board's estahlished polhc not to overrule an adnltill islrative law judge's resolutions %with respect to credihilits unless Ihe clear preponderance of all of the relevant exidence cnl ice, us l that Ihe resolutions are incorrect Standard DrO' Wall Products. Inc.. ql NI R i 544 (1950). enfd 188 F 2d 3t 2 13d Cir 1951) We hac carefulls exainellrd the record and find no hasis for reersing his findings In his Decision. the Administrative I au Judge made an inadrertent error in the section entitled "The Remedy" The date on w hich Respond enl's backpay liability is tolled with respect to employee Kathman should be May 28. rather than May 18 2 None of the parties filed exceptions to the Administralixc Ia s Judge's findings that Respondent violated Sec 8{a)(I) of the Act hb irn- plementing a wage increase in January 1980 We adopt proJornta the Ad- ministratise Law: Judge's finding concerning the increase lIikewise. none of the parties filed exceptions io the Adminlslratlstc Law Judge's findintg that Respondent violated Sec 8(a(I) of Ihe Act h, its questioning of certain employees For his finding the Administrativc Law Judge relied onil PPG Industries. Inr'. Lcrngorin Plant. 1ih r GIau Division. 251 NL RB 1146 (It80) In the ahsence of eceptilons t I Ithe find- ing. Chairman Van de Water finds it unnecessary to pass ori the rationarle set forth in PPG Industrtes, Inc a Although the Administrative i aw Judge fiulndl that ReponLdnt should he required to expunge fromn its records certilla Illawxfulls issued warning notices. he inadvertently failed tI order Re.spoidclt Io do so we shall modifs the recommended Order accordinrgl signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs accordingly: "(a) Expunge from its personnel files and records the warning notices unlawfully issued to employees Roy Whiteaker and Frank Trujillo on January 22, 1980, and to employees Darrel Emerick and James Osborne on April 21, 1980, and notify them, in writing, that it has done so." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTIHIR ORI)RREID that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. APPENDIX No-ricl. To EMPI.OI-I-S POST II) BY ORI)IR OI: I HI NAIIONAI. LABOR REI.ATIONS BOARI) 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 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. WVl wi I. NOT do anything that interferes with, restrains, or coerces employees with re- spect to these rights. More specifically. WI wil.l NOT interrogate employees con- cerning their union activities, sympathies. and desires. Wli Wl l. NOT threaten employees with lay- offs, reductions in pay and hours, and other economic reprisals if they select the Union as their bargaining representative. Wit wiIt. NOT solicit employees to with- draw or resign from membership in the Union. Wti wi.i. NOT make promises of benefits if employees cease engaging in union activities. Wti wI.iI NOT unlawfully grant a wage in- crease which has the effect of inttrfering with employees' Section 7 rights; provided, howev- 260 NLRB No. 4 25 D)ECISIONS ()1 NATIONAL I.ABO()R REIATIONS BOARD er, that nothing herein shall be construed as authorizing or requiring us to abandon any benefits previously conferred. WI. WIl.l. NOT issue written warnings to em- ployees because they engaged in union activi- ties or otherwise engaged in protected con- certed activities. We will not discharge employees because they engaged in protected concerted activities. WI Wll I NOI in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WIt wii.i. expunge from our personnel files and records the warning notices unlawfully issued to employees Roy Whiteaker and Frank Trujillo on January 22, 1980, and to employees Darrel Emerick and James Osborne on April 21, 1980, and notify them, in writing, that we have done so. WIL wii.i. offer Robert Collins, Roy Whi- teaker, Frank Trujillo, Joe Hunt, and Kevin Shepherd immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously en- joyed. WI wvit1. make Robert Collins, Roy Whi- teaker, Frank Trujillo, Joe Hunt, and Kevin Shepherd whole for any loss of earnings or other benefits they may have suffered as a result of our discrimination against them, to- gether with interest thereon. Wi. wl[.i. make Bernard Kathman whole for any loss of earnings or other benefits he may have suffered as a result of our discrimination against him, together with interest thereorn, from the date of his discharge to May 28, 1980. CO.ORAI)O FOR(,I: CORPORA TION DECISI()N SlA I lINi 01F ItI: CAS- LI-ONARI) N. COtIEN, Administrative Law Judge: This matter was heard before me on July 31 and August I in Colorado Springs. Colorado, and August II and 12, 1980,1 in Denver, Colorado, pursuant to complaints issued on February 28 and May 22 in Cases 27-CA 6499 and 27-CA 6692, respectively, by the Acting Regional Director for Region 27. The complaints which were con- solidated for hearing by Order dated May 29 are based on charges filed on January 3 and April 22, respectively. and allege, inter alia, that Respondent violated Section l Unless, otherwise 'pecified, all dates refer Io I'IX() 8(a)(3) and (1) of the National Labor Relations Act by (1) interrogating employees, soliciting its employees to resign their union membership, and threatening employ- ees with economic reprisals because of their union activi- ties; (2) laying off 10 employees on January 4 because of their union activities; (3) issuing written warnings to two employees on January 22; and (4) discharging six em- ployces and issuing written warnings to two other em- ployees on April 18 and 21, respectively, because the em- ployees engaged in protected concerted activities. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of all parties. Upon the entire record of the case and from my obser- vation of the witnesses and their demeanor, I make the follow ing: IINI)IN(S OF FACI I. iUSINI!SS OF: 1it1 I.ltPI O l IR Respondent is a Colorado corporation with its princi- pal office and place of business in Colorado Springs, Colorado, where it is engaged in the manufacture and sale of steel forgings. During the course and conduct of its business operations, Respondent annually sells and ships goods and materials valued in excess of $50,000 di- rectly to points and places outside the State of Colorado. Accordingly, Respondent admits, and I find, that at all times material hrerin it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. I AStOR OR(;ANIZATIION Respondent admits, and I find. that Colorado Die Sinkers, L.ocal No. 520() (herein called the Union), is and has been at all times material herein a labor organization w ithiln the melaning of Section 2(5) of tile Act. 111. Tl UNFAi:IR I ABOR PRACI 'I(S Al 1.1it;11) A. IFacts2 1. Background Responidents forging operation is composed of two major production departments: a die shop and a hammer shop. Overall responsibility for the entirety of the oper- ation rests with George Fiedler. Jr. (herein simply called Fiedler), Respondent's president and principal owner. John Krater, shop foreman, was at all times the immedi- ate supervisor of the hammer shop while George Mi- chael Fiedler, President Fiedler's son, was Respondent's treasurer and the firstline supervisor of the die shop in early January when certain layoffs of both die shop and hammer shop personnel alleged herein as unlawful were made. Prior to these layoffs, Respondent employed ap- proximately 4 employees in the die sinker and die polish- .x' l F ip hitwriein spct fiII' lited. ,ht malerrl i.ic,.ts arc no ln J,,- ptul, 26 COL.ORADO FORGE CORPORATION er classifications and approximately 27 employees in var- ious classifications of the hammer shop. 2. The union demand On the morning of December 28, 1979, David Tempia, Sr., the president of the Union and the father of David Tempia, Jr., a die polisher in Respondent's employ, Ron Condgon. vice president of the Union, and Gary Radtke. treasurer of the Union, went to Respondent's office and met with Fiedler in an informal meeting which lasted for more than an hour.: At either the very start or near the conclusion or at both places during this rather lengthy meeting. Fiedler and the union representatives discussed the financial status of Respondent's business. All witnesses agreed that Fiedler, in very general terms, indicated that Respondent had a significant increase in sales and that 1979 was Re- spondent's "best year yet." Fiedler also indicated that he was contemplating in the future an expansion of his die shop operations. 4 About this point in the meeting, Tempia informed Fie- dler that a majority of the die shop employees had peti- tioned to have a union contract. 5 Fiedler expressed sur- prise since he had not previously heard anything in this regard and stated that he did not see the need for a third party. Fiedler explained that he paid comparable wages and benefits to those paid by the employers with union contracts. Tempia responded that wages were not the problem but that security of having a contract was. Fie- dler indicated that he was thinking about putting a pen- sion policy plan in.i While Fiedler did not agree to enter into a contract, he informed Tempia that the Union should drop off a contract at his office so he could look through it. :' All four participants testified in ar ing degree-, of idetail regarding what transpired 'The three union 'witnesses testified In a generalls cor- roborative fashion, and the events as set forth infra, except here specifi- cally noted. are based on a composite of their testimnen) In most respects Fiedler's testimony does not :ary signirficantl) from the testimony of the other witnesses where major conflicts do occur, the. "ill be noted and resobled 4 The state of Respondent's financial condition will he dealt 'u th in detail injra. No evidence uas introduced showiung "what action. if any. die shop employees had engaged in swith regard to the Union prior to this meet- ing Additionally. it wvas not until the fourth day of the instant hearing that I was apprised of the fact that a petition seeking an election had even been filed At that time I was simply informed that by Order dated April 16 the Board had granted the Employer's request for reiesv sacat- ing the Regional Director's Decision and Direciotin of Elcieioll in Case 27 RC-5977. Subsequent to the filing of post-hearing hriefs. the General Counsel filed a motion seeking that I conduct a hearing on certain challenlged hal- lots and the Petitioner's objections arising out of the representation case. In support of this motion, which I denied by Order dated December 29. 19g0. the General Counsel alleged that pursuant to a subsequent Decision and Direction of Election issued June 25, an election among Respond- ent's production and maintenance employees including both the die shop and hammer shop employees v.as conducted on Juls 31), the daly befiore the instant hearing opened In additlion to the matters litigated before me, the Regional Director's Supplemental Decision and Order Directiing Hearing in the representation case which issued on September 25 cites 9 objections and II challenged ballots as vwarranting a hearing 6 Fiedler did not testify to any mention of a pension plan during thi, meeting I credit the testimony of three union itneses that liedler did in fact mention the subject The discussion then turned to the hammer shop. Fie- dler stated that if the die shop employees got a union contract, the hammer shop employees would find out and would surely want one also. Fiedler stated that there was a poor caliber of people working in the hammer shop. As an example, Fiedler recited the fact that since the operation began approximately 7 years earlier, he had employed over 400 different people in the hammer shop. When one of the union representatives asked if he were having any particular problems in the shop, Fiedler answered that he had hired several people, including Junior Lawrence, from the east and that he had recently had a confrontation with them. Fiedler added that these employees came from a union background and that they "stuck together like glue," and as soon as they heard about a union, they would also want it.7 The meeting then broke up amicably with Fiedler again suggesting the Union drop off a contract the fol- lowing week so that he could determine how far apart they were. 3. The alleged evidence of animus and independent violations of Section 8(a)(l1) Immediately following the meeting of December 28, Fiedler and Krater embarked on a course of conduct which the General Counsel alleges not only constitutes separate and independent violations of Section 8(a)(l), but also supplies evidence of Respondent's unlawful mo- tivation in making the significant reductions in the work force the following week. That same afternoon Fiedler telephoned Kenneth La- Forest, a second-shift hammerman then on leave, to make sure that LaForest was returning to work that eve- ning. During the course of their conversation, Fiedler mentioned Tempia's visit and expressed surprise regard- ing the employees' alleged desire to organize. LaForest responded that he had been on vacation in Vail, Colora- do, and knew nothing about it. When Fiedler asked if there were any big problems at work, LaForest an- swered that he would talk to Fiedler at work that eve- ning. Later that evening, the two held a private conversa- tion in which LaForest, in response to Fiedler's inquiry, indicated that there were indeed "big problems" at the plant. LaForest stated that these problems included in- surance coverage, certain unspecified company policies, and that generally the employees' concerns were not over wages. Fiedler brought up the subject of pension plan by stating that it could be arranged for the die shop, but he could not give it to the hammer shop employees. During this portion of the conversation, Fiedler men- ' Elcdler denied hasinig knor ledge that Lawrence. Rlley C amphell, and [id itliot, the emplosees he hired In late October 1979 from Indiana. had worked in a uniotn shop w hen coinfronted with his affidavit. which clearrl shiol.ed that he In fact potssessed such knowledge at the time. Fie- dler mrel e xplailned that his denial was in error While the record is slnmea hat sketchy, it appears that these three em- plosees Sera rFred hb Kraier in mild-Decenmber Lawrence and Campbell fir rtftlusng ai transfer It a different himmer and lhhot for staging a "'line main strikc '' All three vwere rehired b' Fltedler on the following dl) Nit specfiticlls included I Ilhis suhheading are certainl clnscr ,atlolns s hic more logicalls fit into subsequent. subsections 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned the three employees he had brought in from Indi- ana to work in the hammer shop and observed that they were union people who would also want a union for that department. 9 LaForest also had a conversation on the evening of December 28 with Krater. According to LaForest, Krater told him that December had been one of Re- spondent's best months financially and that Tempia, Jr., a die polisher, was the cause of all the problems they were having with the Union. Krater added that he would not tolerate it and that he would have fired Tempia. to Subsequent to Fiedler's discussion with LaForest re- garding employees' problems, Fiedler prepared a ques- tionnaire which was distributed to the die shop employ- ees the following day. This questionnaire reads "Please list any complaints or problems you are experiencing or feeling that hinder you or keep you from working at a productive level. Please list any additional fringes or in- creased wages that you feel you are not receiving now that you feel you should be." When Fiedler personally handed the questionnaire to Tempia, Jr., he stated that the Union had petitioned Re- spondent. Fiedler added that he did not want a union coming in and that the Company and its employees could solve their differences without a union. Fiedler further testified that in reviewing the filled-in question- naires, one of the die shop employees specifically re- quested an increase in wages. Sometime later, Fiedler telephoned Clarence Schrader, a first-shift diesinker, while the latter was at a local club. According to Schrader, during this conversation which took place on January 2, Fiedler asked if he would accept a withdrawal card from the Union." Schrader answered that he did not think so, but that he did not want to talk about it over the phone. LaForest also testified as to receiving a similar phone call from Fiedler. According to LaForest, Fiedler called him while he was at work on January 3 and asked him to get a retirement card from the Union. LaForest an- swered that he could not. LaForest added that he was a member in good standing and that he had to make a living, and that if he did as asked, he would be black- balled or put out of the Union. At this point, Fiedler stated that he did not know at that time whether he wanted to go to a bigger or smaller die shop, and while 9 The above account is based on the credited testimony of I aForest. who impressed me as a generally trustworthy witness Fiedler', version of the above conversation differs from IaForest's in two major areas a denial that he made any reference t(o Laawrence. Campbell, ilad Elliot, and the placing ill this conversation of a discussion concerning the possi- bility of LaForest obtaining a retirement card from the Union With regard to the first point, his reference is entirely consistell with Fiedlcr's earlier reference to Tempia conceritig his belief that the employees Ifrol the east had a union background and would also want a union in lhe hammer shop As to the second point of conflict, i.e . hen he and I a- Forest had a conversation regarding the possibility of I.aFiircst with- drawing from the Union, see the full discussion inim. '0 Krater's testimony that the only time he discussed the Unionl with employees is when they would ask him a question, and that tin those oc- casions he would limit his answers to "It don't matter to me" is not cred- ited "1 It is undisputed that Fiedier had for some time know ri that both Schrader and LaForest were members of the Union by virtue of their earlier employment at local organized plants he did not mind a union there, he could not tolerate a union in the hammer shop. Fiedler's versions of these conversations differ substan- tially from those of Schrader and LaForest. According to Fiedler, during his face-to-face discussion with LaFor- est at the plant on December 28, he indicated that if there was any undue pressure on LaForest to organize through his membership, he could relieve those pressures by obtaining a retirement card. Since no counsel asked the specific question, it is not clear from the record whether LaForest made any response to this statement. Fiedler explained that he made this suggestion because LaForest had a serious health problem which had been the basis for LaForest's original assignment to work alone on the second shift. Fiedler admits telephoning Schrader at the club, but testified that he merely noted to Schrader that he had a free choice to obtain a retirement card if he was getting undue pressure by outsiders. Schrader answered that he could not discuss it at the time since he was sitting with the union president. Fiedler explained that he made this suggestion to Schrader simply because he knew LaForest and Schrader were longtime members of the Union. Initially, Fiedler, in agreement with Schrader, testified that this phone conversation took place on January 2. However, under questioning by me, Fiedler stated that his conversation with Schrader occurred sometime prior to his decision to lay off both LaForest and Schrader and that the phone call to Schrader took place shortly after he had a similar conversation with LaForest on De- cember 28. I have little difficulty in crediting LaForest's and Schrader's accounts of what was said to each regarding their possible withdrawal or retirement from union mem- hership. Schrader, like LaForest, impressed me as an honest and generally trustworthy witness who, despite his layoff, harbored little animus toward his former em- ployer. Moreover, each version tends to corroborate the other. However, I am not able to credit that portion of the respective testimony that places the date for these phone calls on or after January 2. 2 As will be detailed in a separate subheading infra, the uncontroverted record evidence establishes that on January 2 Respondent was informed that its loan application had been denied. Later that same day, Fiedler met with his supervisory and managerial staff and announced that not only would there be three layoffs among the die shop personnel, but that layoffs would be made by seniority. Since LaForest and Schrader were the two most junior diesinkers, no purpose could have been served by waiting until January 2 to attempt to get them to withdraw their union mem- bership. Moreover, a careful reading of LaForest's cred- ited version set forth above indicates that during the same conversation in which Fiedler asked LaForest to withdraw or resign from the Union, Fiedler mentioned l The crediting of1 ill) polrtions of Lal Frest iand Schrader's testimmo- ny is required under the circumstances of Ihis case anrd does not require rejection of their entire testimony CLarolina CLuInnir, Inc., 213 NL.RB 37 (1974), states: "Nothing is more commonl than to beliese some and not ;ill of hlat a am itness says I:d daurl Irualnportulion Cormpany. 197 NLRB 3- 4 (197(}). 437 F 2d 5102 (5th C( r 17-)7) 28 C() (ORAI)() F()ORG C(ORPORAlTION that he did not know at that time whether he wanted to go to a bigger or smaller die shop. While this statement is entirely consistent with the statement Fiedler had earli- er made to the three union representatives, by January 2. the date LaForest and Schrader mistakenly testified their conversations took place. any tentative plans Fiedler ma. have had for expansion had been rendered moot by fi- nancial deve lopments. ":1 4. The layoffs of January 4 On January 4 Fiedler prepared and posted a notice which states: "Due to general economic conditions we are adjusting our work schedule. This adjustment will result in some layoffs. These layoffs will be by seniority under job classifications. You will be notified by your su- pervisor if these layoffs affect you." The notice then specified that LaForest, Schrader, and Tempia, Jr., would be laid off from the die shop and that Junior Lawrence, Riley Campbell, Ed Elliot. Mel Lewis, Harry DeShane, Joe Pehl, and Rick Andrick would be laid off from the hammer shop. Additionally. the notice stated that George Michael Fiedler would be moved from his supervisory position to a diesinking classification. Prior to posting this notice, Fiedler individually spoke to Schrader and Tempia. Schrader testified that on the morning of January 3, Fiedler came up to where he was working and took him into the inspection room. Once he shut the door. Fiedler announced that as of Friday, Janu- ary 4, he was laying off him, LaForest, and Tempia. Fie- dler stated that he did not want a union in the shop and was not going to have one. When Schrader asked if he was being laid off because of the Union, Fiedler an- swered no, it was because of a work shortage. Fiedler added that he knew Schrader was a strong union member, but he was not going to have the Union in the shop. At this point, Junior Lawrence walked into the room. Fiedler told Lawrence that he was having a meet- ing and to leave. After Lawrence left, Fiedler remarked that if Lawrence found out that the employees were having a union in the die shop, lie would bring it in the hammer shop. Schrader then asked Fiedler if he knew what the layoff would do to him. Fiedler answered that he could not help it and that Schrader knew what he was getting into when he joined the Union. 14 LaForest testified that he was not aware of his layoff until he came to work on the afternoon of January 4. After he read the notice, he went to Fiedler and stated that he wanted to be fair to his next employer and, there- "' As part of the General Counselts case. employee Ed Elliot was called to testify regarding several conversations with Fiedler. Krater, and George Michael Fiedler concerning the Union. Elliot places some of the more damaging of Ihese consersalions as taking place even before the credible esidence indicales that management knew about its employees activities or desire, Moreover. Elliot's testimony is estremel vague, confused, and smacks of fabricalion Therefore, I do not credit his lesti- mony which at times is highly improbable e'-en when uncontroveried " Fiedler testified Ih;a when he inrfirmed Schrader of the layoff, he merely stated thal hecause of an econormic crisis theN had to hile the bullet and cut back Fiedler denied recalling any mention of the Union during this consersation However. hi, affidavil given to the Board stales "I also told him that I did not think we needed a third party in the shop" fore, he was asking for a 6-month leave of absence '5 Fiedler answered that getting a leave of absence would be no problem. Fiedler then added that "it would prob- ablv all be over within a month.""i David Tempia, Jr., the die polisher, testified that on January 3 Fiedler called him into the inspection room and informed him that due to economic reasons he was being laid off. Fiedler told Tempia to finish his shift and take his tools home and leave 7 Later that same after- noon, Tempia had a conversation with George Michael Fiedler. According to Tempia's uncontroverted account. George Michael Fiedler told Tempia that he was a good worker and he did not understand why Tempia was being laid off. George Michael Fiedler then added that business was going well. ' On the afternoon of January 3, Union Vice President Condgon went to the plant to pick up his tools. 9s While there, he met briefly with Georgie Michael Fiedler. Ac- cording to Condgon's uncontroverted testimony, he asked Fiedler what was going on with the layoffs. George Michael answered that he did not understand the full extent of it. He then stated: "But my dad has worked long and hard for this business, and he's not about to give it away to anybody." About 11 a.m. on Friday, January 4, Schrader and Tempia, Jr., arrived at Respondent's offices to pick up their final paychecks. When Fiedler saw them, he asked Schrader why he had quit. Schrader answered that he had not quit but had been laid off. Fiedler replied that Schrader had not reported to work that morning on schedule and unless he worked that afternoon, he would lose his rights for unemployment. At this point, Tempia asked if he too could work that afternoon. Fiedler an- swered no, that Tempia was a hot head and was going to learn a lesson the hard way 20 5. Additional alleged 8(a)(l) conversations About 3 p.m. on January 9, Roy Whiteaker, a ham- merman and a longtime acquaintance of Fiedler's father, was leaving the plant when he was approached by Fie- dler. Fiedler indicated that his father was visiting from the east and asked if Whiteaker, his brother, and girl- friend, who were then waiting for him in the parking lot, would join the Fiedlers for dinner. According to Whi- teaker's credited account, during this brief encounter Fiedler asked Whiteaker if he knew anything about the Union. When Whiteaker answered no, Fiedler stated that if the Union came into the shop, the employees would all "I L.aF rers explained that it took some time to learn the methods of the new shop and it woiuld nol be fair to the new employer to take a job and leave shortly thereafter. ' Fiedler testified that he believed he informed LaForest of his layoff by phone on January 3 Fiedler did not deny the above-recited conversa- tiol whicih I fully credit i Fiedlcr's testimoniy conrfirms that of Tempia W U'ithoul explanation. George Michael Fiedler did not testify '" Condgon had, on occasion, worked for Respondent on a part-time basis "' The above accounl is based upon the composite testimony of Schrader and Tempia Fiedler did not testify regarding this incident 29 IDECISI()NS OF NATI()NAL LABOR RELATIONS O()ARD take a cut in pay and he would lay off the second and third shifts. 2 ' Another hammerman, Frank Trujillo, testified that Fiedler approached him at his hammer about mid-day on January 10. According to Trujillo's uncontroverted testi- mony, Fiedler stated that he had heard that Trujillo was trying to get a union in. When Trujillo denied the report and added that he did not like unions and believed they simply caused trouble, Fiedler stated, "Good, because you would have to take a cut in pay." 6. The January 22 final warnings of Whiteaker and Trujillo On Sunday evening, January 20, the Union held a meeting at a local hall. George Michael Fiedler had been invited to attend the meeting by an employee. When George Michael Fiedler went into the hall, he was asked to leave by Tempia, Sr., on the ground that he was part of supervision. Among the more than 20 employees at- tending the meeting were hammermen Frank Trujillo and Roy Whiteaker. On the following Monday morning neither Trujillo nor Whiteaker reported for work. 2 " As was his custom, Darrel Emerick stopped by Whi- teaker's house on Monday morning, January 21, to give Whiteaker a ride to work. Whiteaker told Emerick that he was sick and to tell Krater that he would not be at work that day.2 3 Emerick, upon arriving at work, re- layed Whiteaker's message to Krater. 2 4 During either this conversation or a subsequent conversation later that same day, Krater asked Emerick if Whiteaker or Trujillo was head of or a part of the Union. When Emerick an- swered that he did not know, Krater replied that he thought they were and that was the reason he was going to lay them off.2 5 Trujillo neither called in nor attempted to get a mes- sage to Respondent that he was not coming to work on January 21. According to Trujillo's uncontroverted testi- mony, he had earlier informed Fiedler and Krater that since he did not have a phone, he would not call in to inform them that he would not be to work. According to his unassailable logic, he explained that if he was well enough to get to a phone, he might as well come to 21 Fiedler was unable to recall having any such consersation His affi- davit states: "During that discussion I might have made a comment about the Union I don't remember. I know that if there was a third party, the rules and regulations established by the third party might not permit me to be as flexible as they were dealing with me alone. I might have tried to indicate this to him that all the union contract rates for days are lower than what we are currently paying." Z2 The following account is based upon the credited testimony of Whi- teaker, Trujillo, Darrel Emerick, a heater in the hammer shop, and Tempia, Sr. The testimony by Fiedler and Krater relating to Whiteaker's and Trujillo's past attendance record, while somewhat vague and conclu- sionary, stands uncontroveried. 23 Whiteaker testified that the previous evening he had been in a fight and had suffered a fat lip, a black eye, and a sore nose. Presumably, Whi- teaker's encounter took place after the union meeting. 2, I do not credit Krater's denial that he only heard by rumor later that afternoon that Whiteaker had not come to work because he had been out "boozing" the night before. 2" Emerick testified that on January 26 he and Krater had another conversation in which Krater again surmised that both Whiteaker and Trujillo were involved with the Union and that that involvement stas the reason he was going to lay them off. Neither Whileaker nor Trujillo was in fact laid off during this period. work. Trujillo testified that during the year he had worked for Respondent he had missed approximately 8 days due to illness and that on no occasion prior to this one had he ever received a warning. Sometime during the day on January 21 Tempia, Sr. called Fiedler and stated that he did not think it was right for George Michael Fiedler to have attended the union meeting. Fiedler answered that he did not send his son to the meeting and in fact did not even know of the meeting. Fiedler then stated that he had two hammermen out and asked Tempia if they had told him they were not coming to work. When Tempia answered no, Fiedler stated that the only way he could make any money was to have hammermen running the hammers. At this point, Tempia asked Fiedler why he had indicated at the De- cember 28 meeting that everything looked good eco- nomically and then just a few days later they all of a sudden developed a big economic problem. Fiedler an- swered that he did not have to tell Tempia his business. On the following morning, Whiteaker and Trujillo were individually called into Fiedler's office and each was given a written final warning for unexcused and chronic absences. Trujillo testified that when he was handed the warning slip, Fiedler stated that it had noth- ing to do with the Union. When Whiteaker was handed his notice, Fiedler asked why he had not reported to work. Whiteaker answered that he had been home with a black eye and a fat lip. Fiedler then asked why he had not called in. Whiteaker stated that he had asked Emerick to tell Krater. Whi- teaker then turned to Krater and asked Krater if Emer- ick had not indeed told him. Krater confirmed that Emerick had. The only additional evidence offered by Respondent to justify issuance of these warnings was Krater's undis- puted testimony that both employees had bad attendance records. Additionally, Krater, in confusing and rather vague testimony, stated that Whiteaker had in fact been fired and rehired by Fiedler at some unidentified time for some unidentified act of misconduct. 7. Respondent's economic defense to the January 4 layoffs2 6 Although Respondent had been in operation for 6 years prior to 1979, only in its second year did it make a profit. During 197827 Respondent made a major expan- sion effort which included the addition of two new ham- mers for the hammer shop. With this expansion, Re- spondent projected that it would be able to double its sales and, therefore, dramatically improve its overall profit picture. While the expansion did, as predicted, sub- stantially increase its total sales for the calendar year 1979, this increase did not alleviate Respondent's substan- tial cash now problems or result in the hoped-for profits. For some unidentified time preceding 1978, Respond- ent had operated with the assistance of loans from Ex- change National Bank of Colorado Springs (herein called 2i The record facts concerning Respondent's financial plight are not in dispute The above recitation is based on the credited and corroborated testimony of several witnesses, as well as documentary evidence 27 Respondent lost $38,178 for the calendar year 1978 30 C) ()ORAD() F()R(F CO()RP()RATION Exchange Bank). 2 Due to Respondent's continued in- ability to show a profit and its outdated and untimely ac- counting practices, Exchange Bank mandated in late 1978 that Respondent would have to make stbstaiitial changes in its accounting and auditing practices before the bank would continue to provide Respondent with necessary operating capital. Thereforec in late 1978 and early 1979 Respondent hired an accountant and changed auditors with the result that Respondent prepared and submitted to the Exchange Bank current monthly state- ments indicating, inter a/ia, profits and/or losses for each month, as well as the amount of invent(ory on hand and accounts receivable. Having temporarily satisfied the Exchange Bank on its monthly reporting system, the bank agreed to loan money to Respondent on a monthly note in the amount of 80 percent of its inventory and accounts receivable. These monthly loans generally ranged from $7(X),0(X) to $900,000. Throughout 1979 Exchange Bank closely mon- itored the state of Respondent's financial condition. The officials at the bank were concerned that despite the sub- stantial increase in sales, Respondent did not consistently show a month-end profit. Respondent would have sever- al profitable months and then a catastrophe would occur and the bad month would destroy the previous positive results. In the judgment of the bank, the major problems continued to be the lack of operating capital necessary to maintain the required inventory of steel and the produc- tivity level of Respondent's operations. During the latter portion of 1979 the Exchange Bank took several additional steps to assist Respondent. First, the bank started loaning Respondent an amount equal to 95 percent of Respondent's inventory and receivables, and second, it employed an outside consultant to make an objective evaluation of the situation. After studying Respondent's condition, the outside consultant made several suggestions, including obtaining a substantial long term loan which would enable Re- spondent to purchase the needed steel. Additionally, the consultant suggested that Respondent, in an effort to in- crease the productivity of the die shop, explore the possi- bility of contracting out certain die shop work which could be done cheaper elsewhere. Since the Exchange Bank was not willing to make any long term loan com- mitments and was in fact showing some growing reluc- tance to continuing its current loan arrangement with Respondent. Respondent approached three different fi- nancial institutions seeking the needed long term commit- ment. All three quoted an interest rate of 6 percent above the prime interest rate, terms that Respondent re- jected as too high. Toward the end of the year, Re- spondent also approached its major customers seeking an agreement whereby they would purchase and warehouse their steel against future orders. While its major custom- ers ultimately agreed in late February and March to do just this, Respondent received no positive response from them on its initial inquiry during 1979. Additionally, during the last 2 months of 1979 Respondent raised some of its prices to its customers. 2" No details Aere offered regarding Ihi, loan arrallngemlen during 1978 At the suggestion of one of these customers, Respond- ent, on December 21, 1979, submitted to the United Bank of Colorado Springs a proposal for a line of credit of 51.200.000 which would include an amount of $3(),0(X) for the purchase of real property on which Re- spondent held an option. This proposal further stated that a $9(0),((K) line of credit would be sufficient for its present operation While Respondent was initially told that his proposal was well received by the bank, on Jan- uary 2 United Bank telephonically notified Respondent's accountant, Thomas Anderson, that it was denying Re- spondent's application. As of late December, the most current financial data available to Fiedler was the November profit-and-loss statement. This statement showed that Respondent had a profit of over $9,000 for the month of November and a profit for the calendar year to date of slightly over $18.00). Although the year-end audit had not been com- pleted, toward the very last few days of December, An- derson indicated to Fiedler that December was not a good month and that the best they could then hope for would be to break even for the year. In the latter portion of January, Respondent received its December profit- and-loss statement. This statement indicated that the re- sults were very much worse than Anderson had predict- ed and that Respondent actually lost over $h62,500 for the year 1979. After communicating this news to Fiedler, Anderson and Fiedler met to discuss what could be done to help the situation. At the meeting both agreed that one method of cutting expenses would be to terminate imme- diately the leasing of offices away from the plant and to move the office to empty space at the warehouse adjoin- ing the plant facility. The two also agreed that the per- sonnel cutbacks and reduction in the number of parts manufactured would be necessary. Anderson told Fiedler that he could not assist in making those decisions, and Fiedler then left to study the situation further. Fiedler went back to his office and determined the amount of steel that Respondent's cash flow would allow and correlated those figures into an hourly schedule measured by the minimum number of employees needed to achieve an 80 percent productivity level. Fiedler testi- fied that he made heavier cuts in the die shop than in the hammer shop since the former was a set cost area and allowed more room for savings than did the hammer shop. Fiedler then showed his plan to his son, George Michael Fiedler. According to Fiedler, George Michael recognized the seriousness of the problem but did not want to cut back that far in the die shop. Fiedler in- formed his son that he would have to return to the die shop as a diesinker and would also have to pick up some of Tempia's die polishing duties. Later, on January 2, Fiedler and his son then met with Krater, Robert Morgan. the materials manager, and Roger McMillin. the maintenance man. Fiedler sketched out his plan and asked if they thought they could meet an 80 percent productivity level with those personnel numbers. All agreed that they thought they could. Fie- dler then ended the meeting by telling the group that he would make the layoffs by seniority in the job classifica- 31 [)ECISIONS (OF NAt FONAL ILABO()R RFI.AT IONNS BOARI) tions. Fiedler, Krater, Morgan, and McMillin each testi- fied that the subject of the Union was never mentioned during this meeting. Fiedler further testified that the sub- ject was the furtherest thing from his mind that day. Fie- dler then prepared the list of those employees to be laid off at the end of the week. According to Fiedler, Schrader and LaForest were se- lected for layoffs since they were the least senior die- sinkers. Tempia's job as die polisher was simply eliminat- ed with George Michael Fiedler taking over some of Tempia's prior duties. No diesinkers or die polishers had been hired since the January 4 layoffs. Evidence was in- troduced that subsequent to these layoffs, Respondent began subcontracting to various other concerns certain work which had been previously performed in its die shop. While no specific evidence was produced to estab- lish what percentage of work was subcontracted, Re- spondent did introduce documentary evidence which showed that the work which was subcontracted was per- formed at substantially less cost to Respondent than had it been performed by Respondent.2" Turning now to the hammer shop. Fiedler testified that, with the specific exception noted below, Lawrence, Campbell, and Lewis, as well as Pehl and Andrick, were the least senior employees in their respective job classifi- cations. The one noted exception involves harnmerman Lawrence. According to Respondent's January 1980 se- niority list, Lawrence carried a seniority date of October 29, 1979, while hammerman William Vincent carried a seniority date of December 3, 1979. Fiedler was not questioned regarding this apparent inconsistency. It should be recalled, however, that Lawrence was dis- charged in mid-December and rehired by Fiedler the fol- lowing day. Elliot performed inspector functions and with his Jan- uary 4 layoff, that position was, like the die polisher's, simply eliminated.: 0 Further, Fiedler testified without contradiction that employee trimmer Harold DeShane was already on layoff status and Respondent's January 4 notice merely changed his layoff status from temporary to permanent. Fiedler further testified that Pehl had in effect quit prior to January 4. Andrick, the hammer shop utility man, was rehired on March 3, 1980, and hammer- man Lawrence was rehired on May 13, 1980. Although a new hammerman was hired before Lawrence was actual- ly recalled to work, Fiedler testified without contradic- tion that Respondent had at some earlier unspecified time offered Lawrence his old job back, but that Lawrence had refused at the time on the ground that he was then working elsewhere. The reduction in the work force and the moving of the office were not the only examples of cost saving and revenue producing measures that Respondent instituted during January, February, and the beginning of March. 31 In January, Respondent again raised prices; 29 These figures show that the cost, with profit, of Respondent pro- ducing these products was approximatelb $40 an hour. while the coslt I Respondent by the subcontractors for the same twork was approximiately $27 an hour. tO Fiedler testified that Krater agreed to perform that particular dulty. a' The reduction in payroll amounted to approximately $8X()Xt) nmonlh and the rent reduction amounted to $375 a month and by late February, Respondent was able to convince its major customers to furnish their own steel. Addition- ally, Respondent instituted a policy of preparing the posting each day of a productivity report in the work area indicating to the employees the current status of op- erations. 8. l he January pay raise One cost increusing measure taken by Respondent during the second week of January was the granting of a 3 percent wage increase to all employees.: 2 Fiedler testi- fied that during June or July 1979 he had informed em- ployees that he would try to give such increases and that in December, following the first price increase, he deter- mined to give the raise. Fiedler explained the granting of a wage increase at about the same time the layoffs were made in the following terms: Well, we've gone through the highest inflation year. I knew the men were needing the money, and we were passing the cost along to our customers at that time. But we were also-in light of the whole situa- tion, I kneqw the productivitt' was the main instrument to turn the Company around. I know it wouldn't-if I were asAing them to give me their fullest percent in- crease swas /air at that time. So I kind of lied that in. too. That helped mne make my decision as far as know- ing where our productivityv was and how' much increase they had to give. [Emphasis supplied.] 9. The April 18 incident The General Counsel contends that Respondent violat- ed Section 8(a)(1) by discharging six employees on Friday, April 18,. and by issuing written warnings on Monday, April 21, to two other employees because of their participation in a protected work stoppage on the morning of April 18. On Thursday. April 17, Respondent had four hammer crews operating in the hammer shop. A hammer crew consists of a hammerman, a heater, and a trimmer. While no evidence was offered regarding the temperature in the hammer shop at any time, including April 17. it is undisputed that the shop is indeed a very hot place to work. The cooling system in the shop consisted of var- ious fans of differing sizes. On this particular day, Whi- teaker's crew a" had at the start of that morning's forging operations the use of a large standing fan. Sometime during the morning this large fan was moved away from Whiteaker's crew area to the work area of Joe Hunt's crew.:14 Two separate and distinct problems developed that day with Whiteaker's crew: excessive smoke and exces- l'" hie record does rlt dlsc lose hows long its then current w.age rate had been in existence :' The cresar arc designlated h5 the name of the hammerman who acts as Ihe crew leader Whitleaker's crew "as coimprised o£f Whiteaker as hlamlmerrman, Robert Collins as heater, and ticrnard Kalthmlan as trinmer :4 Itulit's crew included I)arrel I nierick as heater and Kcevim Shcp- herd its trimnter 'Ithe Ihird crc. ssrking Ihat das '"as comprised of Irujillo as ha;lTi ertiarl. Rick Arldrulk ils healer, and John )sborne a;Is trintmer lie record does nol disclos.e the identities iof Ihoie employees swtorking ltn tue i'lrth trev. COLORADO FORGE CORPORATION sive heat. With regard to the former, for the first half of their 8-hour shift, Whiteaker's crew was using a motor oil as a lubricant on their hammer. 5 Although Whi- teaker's hammer was apparently causing excessive amounts of smoke for some 5 hours, it was not until Fie- dler was walking through the shop around noon that he observed the situation and instructed Krater to order Whiteaker's crew to switch to the graphite mixture. a6 Thereafter, they changed to the water soluble graphite lubricant. While this change had the effect of eliminating the smoke problem, it created another problem. As the hammer fell on the die, it took part of the scale off the part being forged and splashed it and burned the face of Kathman, the trimmer. Sometime around I p.m., Bob Collins, the heater, became faint from the heat of the furnace and was sent outside the shop to recover. Krater replaced Collins him- self and finished the shift without incident. :' 7 Throughout the shift on April 17, the members of Whiteaker's crew spoke to members of Hunt and Trujil- lo's crews complaining about the heat and the smoke. That evening Whiteaker and Trujillo met with Tempia, Sr., at Whiteaker's home. They informed him of the problems at work and asked for his advice. Tempia merely suggested that they speak to Fiedler directly. On April 18, shortly after 7 a.m., Whiteaker informed Krater that he wished to speak to Fiedier. He then left the work station and went to the employee locker room. He was followed shortly thereafter by Trujillo, Hunt, Kathman, Collins, and Osborne. Whiteakcr then instruct- ed Osborne to go back into the shop and to get the rest of the employees. After Osborne left,:' Fiedler entered the locker room and asked them why they were not working. : Whiteaker responded that it was "too hot, too smoky and too dangerous." Fiedler answered that Whiteaker's crew had caused the smoke themselves and there was no smoke in the shop that morning. Someone then pointed to Collins' hands which were red. Fiedler answered that Collins was new and that it took both time and experience to learn how to heat properly and that Collins had to expect some discomfort initially. Kathman >: Tile record is somewvhat unclear regarding the use of lubricants While it appears Ihat motor odI is used on some unusual iohs. oni the ma- jority of jobs Ihat require Ihe use of lubricant. a graphite based nixlure is normally applied Motor oil. unlike the graphite nlmxtlure cause, cxc'e.sslxc smoke and tends tl softien Ihe dies '" Kraler's "explanation" as to s Ohs he. as shop foreman. did not take any steps to correct Icie situation himself is isholly unsatisfactory Fiedler testified that not only was W'hitcaker's crew using thre Wrong type luhrl cant. but that they were using excessl.e amnounlts 7 Krater ho,, as noted below,. replaced C llins for the final hoursr itf Ihe shift as the heater on W'hitcaker', cres. testified thai the rcalotn ex- plosion.s were taking place was the exscessi e amolun of lubricant Kath man was using No csidence was offered that Krater, despice hi, expcrl- encc. his admitted status as a supervisor, and his, clos proximil ti Ihe sllualiln that aflernlooln, made al) effirl io inlrul Kalhni;llan in Ih proper use of the lubricant Moreover. by the testimony of Responldent, own w itness. Hioard Pardee, Rcspondents' v5ice presidenl and partl- ouner, it appears Ihal this splashing cal and does occur ctcii hhel the proper anolunil of lubricant is applied :' During the locker r oom meeting (Osborne remained iin the shop talk- ing Ito Shepherd. Ei erick, and Andrick : I* Ilhe fic crniplio ecs prcscnt during the m tlilig,, as wa ell i I tedlcer cslifil d at "arytilg lengths regardinlg this mcintg 'Iere i ,t i niajor COinlli[i i lltheir tctlimltnis ad the abiose iuccutiti is halcdl ,l , i(ilpti- iie of their tcsilronlX then spoke up and showed Fiedler his facial burns. Fie- dler answered that the solution splashed on him because Kathman had used too much lubricant. Fiedler then sug- gested that Kathman wear a face mask. 40 At this point, Fiedler told the employees to return to work. Whiteaker answered that they were not going to return to work until Fiedler called OSHA. Fiedler asked if they were refusing to work, and again Whiteaker re- peated his earlier remark about OSHA. At this point, Fiedler told them to change clothes and come up to the office for their paychecks. As Fiedler left the locker room, he passed Shepherd, Osborne, Emerick, and An- drick. He told them to return to work. Fiedler added that if the others did not wish to work, they would be fired. The four employees remained in the shop area for some time thereafter. A few minutes later, Shepherd an- nounced that he had decided to join the others. Shep- herd then changed his clothes and went outside. Still later that same morning, Collins, who was waiting outside the plant with the others for his final check, re- turned to the plant and talked with Osborne, Emerick, and Andrick. Collins attempted to convince the three to join the others. According to Emerick, Collins stated that there were threats outside and people were talking about breaking legs if the other employees did not join them outside. 4 ' Later that morning, Osborne and Emer- ick left the plant and joined their coworkers outside. Several hours later, Fiedler issued final checks and ter- mination reports to Whiteaker, Trujillo, Hunt, Collins, Kathman, and Shepherd. When Emerick and Osborne were individually called into Fiedler's office, each indi- cated that while they did not wish to join the others, they would be caught in the middle and afraid not to. Fiedler told each to go home and think about it over the weekend and to return on Monday. On Monday morning, April 21, Osborne and Emerick did return and each was given a "Final Warning Report" which indicated that they had left work on April 18 before the end of their shift because of intimidation from coworkers. 4 2 "' Kathman testified that on the morning of April 17 he asked Leonard Gilbert, the emplolee in charge of supplies. for a face mask and that Gil- bert had anstr ered there were none at the plant and that they had been ordered Gilbert could not recall any such conversation Gilbert further testfited that if someone had requested a face mask and none were on hand, he .would merely have secured one from a local supplier. I do not credit Kathnlan's unctorroborated and controverted testimony First. al- though Kathman had been trimming for some time. it was onlty allegedly ion lthe morninlg iof April 17 that he, for the first and only) occasion, re- queted a mask As discussed above, the changeover to ihe use of graph- ite sohluion with the resultant explosions did not occur until the aftern(oon of the 17th Thcrefore. no face mask would have even been necessary hcln hic allegedly made his unisuccessful request Moreover. as set forth in detail helovs. Kathmna, is a generally untrustworthy itness " Collins denied making any such threats Osborne. while denying that Collin llms ade or repeated any such threats. did sign a warning slip oin Moinda). April 21. which stated that he feared btdily injury or intimida- lion r frilmn hi, icos rkcr, Osbhorne explained that he did not tell I icdler that hi had beenh threatened, only that he aisi cotnc rned abohut that pssi- hilits Alidrick did not ItleifN I credit Emerick's as a more probahle xer- ,iloll iier the sersions if Collins and ()hOsborne 4I e ouh iplPaiii in Case 21-CA-60q t 2 incorrectly alleges that Shep- hcrd nlrelI rccclscd a 's.arnilg on April 21 rather than being discharlgd oti April IS :,ortunrately. the parties llrgated lhli qulestil1 as if it had beenh pr lpcrlI pleadedl 33 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD B. Discussion I. The 8(a)(1) allegations The credible evidence establishes that with the union demand of December 28, 1979, for a contract covering the die shop employees, Respondent, through Fiedler and to a lesser degree through Krater, immediately em- barked on a campaign to undercut the union support among its employees. The purpose of Fiedler's actions and conduct during late December and early January was clear. Fiedler must discourage any organizational effort by the die shop employees, a proposition he could reluctantly accept, in order to prevent the hammer shop employees from joining their die shop colleagues in de- manding union representation. Fiedler made no secret of his belief that it would take little effort to organize the hammer shop and that having the hammer shop so orga- nized would "ruin" him. Fiedler, therefore, initially con- centrated his efforts on the die shop employees and spe- cifically on employees LaForest and Schrader whom he knew to be longtime union members. The alleged instances of 8(a)(l) conduct set forth in the complaint, and as litigated before me, conveniently falls into three separate categories: interrogations and so- licitations of grievances, attempts to get union members to withdraw or resign from union membership, and var- ious threats of reprisals for engaging in union activities. Several of the conversations set forth in detail above in- clude conduct which fits into more than one such cate- gory. For the sake of clarity, they will be discussed by subject matter. a. Interrogations and solicitation of grievances- promise of benefits On December 28 Fiedler had a lengthy conversation with LaForest in which he questioned him regarding La- Forest's knowledge of any union activities by the em- ployees. Fiedler then questioned LaForest over what problems existed at the plant that he and the other men were concerned with. On the following day, Fiedler prepared a questionnaire specifically asking the die shop employees what were their work problems and what changes they desired. When handing out this questionnaire to Tempia, Jr., Fie- dler indicated that it was prompted by the Union's demand for a contract. Subsequently, on January 9 and 10, Fiedler had sepa- rate conversations with employees Whiteaker and Truji- llo, respectively, in which Fiedler questioned them re- garding their knowledge of or involvement in the union organizing effort. Additionally, Krater, in two separate conversations in the latter portion of January, specifical- ly interrogated employee Emerick as to his knowledge of the union activity of employees Whiteaker and Trujillo. That Fiedler and Krater's questioning of employees LaForest, Whiteaker, Trujillo, and Emerick, as referred to above, constitutes unlawful instances of interrogation warrants little discussion. As the Board held in PPG In- dustries, Inc., Lexington Plant, Fiber Glass Division, 251 NLRB 1146 (1980), an employer violates Section 8(a)(1) where it initiates questioning of an employee's sentiments or knowledge even in the circumstances where the em- ployee is a known union supporter and the inquiries are unaccompanied by threats and promises. Here, the ques- tioning was accompanied by threats, solicitation of griev- ances, and implied promises. I find that Respondent also violated Section 8(a)(1) by both Fiedler's conversations with LaForest on December 28, and Tempia, Jr., on December 29 in which he solicit- ed grievances, as well as by his passing out of the ques- tionnaire to the die shop employees on December 29. Unlike the factual situation in Uarco Incorporated, 216 NLRB 1 (1974), a case relied on by Respondent, here, Respondent took no action to establish that it was not promising to remedy grievances. See Merle Lindsey Chev- rolet. Inc., 231 NLRB 478 (1977). In fact, the evidence clearly establishes that Respondent not only solicited the grievances as a direct result of the union activity, but that Respondent impliedly, if not expressly, as with the subject of establishing a pension plan, promised to remedy grievances. See First Data Resources, Inc., 241 NLRB 713 (1979); Modesti Brothers, Inc., 255 NLRB 911 (1981). b. Solicitation of 'retirement cards In separate conversations with both LaForest and Schrader, Fiedler requested that they withdraw or resign from the Union. Even when considering these remarks as separate and apart from Respondent's overall campaign to thwart the Union, Fiedler's conduct herein was a bla- tant attempt to interfere with his employees' Section 7 rights. Smith's Complete Market of Tulare County, Inc., d/b/a Smith's Complete Market, 237 NLRB 1424, 1428 (1978). c. Threats Respondent also committed separate violations of Sec- tion 8(a)(1) by: (1) Krater's statement to LaForest on De- cember 28 that Tempia, Jr. was the cause of all the union problems and that if it were up to him, he would fire Tempia; (2) Fiedler's January 3 statement to Schrader while discussing the layoffs to the effect that Schrader knew what he was getting into when he joined the Union; (3) Fiedler's statements to Whiteaker and Trujillo on January 9 and 10 to the effect that the employees would have to take a cut in pay if the Union came into the plant; and (4) Krater's statements to Emerick on two occasions during late January to the effect that because of Whiteaker and Trujillo's involvement with the Union, he was going to lay them off. These statements and re- marks amount to unlawful threats of economic reprisals for the employees engaging in union activities. 2. The layoffs of January 4 The Board, in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), set forth the applicable test in all cases alleging violations of Section 8(a)(3) and (1) which turn on the employer's motivation. First, the Gen- eral Counsel is required to make out a prima facie show- ing sufficient to support the inference that the protected conduct was a "motivating factor" in the employer's de- cision. Once that is established, the burden then shifts to 34 COLORADO FORGE CORPORATION the employer to demonstrate that the same actions would have taken place even in the absence of the protected conduct. Respondent's demonstrated strong union animus, when coupled with the timing of the layoffs, some 7 days after the union demand, creates a strong suspicion of Re- spondent's unlawful motivation. This suspicion is rein- forced by virtue of Fiedler's remark to the Union, on December 28, that 1979 had been Respondent's "best year yet." Moreover, Fiedler further muddied the waters by bringing up the subject of the Union and committing additional independent violations of Section 8(a)(l) during his layoff discussions with employees Schrader, LaForest, and Tempia, Jr. While Fiedler in these conver- sations specifically denied to the employees that their union activities or sympathies played a part in their lay- offs, Fiedler clearly attempted to capitalize on the layoffs by statements which were intended to thwart the current union activities, as well as to prevent a similar recur- rence sometime in the future. The undenied remarks by George Michael Fiedler on January 3 that he did not know why Tempia, Jr., was being laid off since "business was going well," and that his father was not going to give the business to anyone cast still further suspicions on Respondent's motivation. Juxtaposed to the above is the uncontroverted evi- dence that the layoffs were necessitated by Respondent's rapidly deteriorating financial condition. For the reasons set forth below, and notwithstanding the well-established union animus and the suspicious timing of Respondent's actions, I am persuaded that the General Counsel has not met its burden of establishing that protected conduct was "a motivating factor" in Respondent's decision to make the January 4 layoffs. Mini-Industries, Inc., 255 NLRB 995 (1981). A few days following the December 28 union demand, Fiedler was informed by his accountant that the preliminary figures for the year-end audit were not good. Despite the fact that Respondent had shown an 11-month profit of some $18,000, Anderson told Fiedler that De- cember appeared to be such a poor month that it would virtually wipe out the existing profit for the year. In late January, the December audit was finally completed and showed that Respondent actually suffered a year-end loss of over $62,500. Instead of being Respondent's "best year yet," 1979 turned out to be one of the worst years in Re- spondent's existence. A few days later, on January 2, Fiedler was informed that his loan application which would have given him the long term financing necessary to operate was being denied. Because of these two developments, as well as the very real fear that because of them Exchange Bank would not continue its ongoing financial assistance, Fie- dler, with the advice of his accountant and subsequent concurrence of his managerial staff, determined that im- mediate and substantial changes in the operations were now mandatory. During the same month in which the layoffs were made, Respondent closed down its offices and moved them to the warehouse, raised its prices a second time to customers, renewed its efforts to have customers pur- chase their own steel, subcontracted out certain die shop work at a substantial savings and introduced and posted for the employees a daily progress and productivity report. Despite the evidence of both Respondent's financial condition of early January and the evidence of the other cost-saving measures instituted concurrently with them, the General Counsel contends that the entire January 4 layoff was motivated by the Union's organizational de- mands. That this layoff included both the three employ- ees in the die shop whom Fiedler knew were union members, as well as the three hammer shop employees with union backgrounds whom Fiedler suspected would, if given the opportunity, bring the Union into the hammer shop, is undeniable. However, it is likewise un- deniable that these six employees were the least senior employees in their respective job classifications.4 a1 No evidence was presented that the other four hammer shop employees laid off on January 4 similarly supported the Union. Moreover, contrary to the contentions of the General Counsel, I do not find that Respondent's post- layoff hiring practices support the theory that the layoffs were merely used as a convenient excuse to rid itself of known union activists or adherents. No diesinkers or die polishers have been hired since the January layoffs. With regard to the hammer shop, two of the laid off employ- ees, Andrick and Lawrence, were recalled to their former positions well prior to the Board election. Three of the laid-off employees, Campbell, Elliot, and Lewis, have never been replaced and two, Pehl and DuShane, were already on layoff as of January 4. The final factor to be considered is the 3-percent across-the-board wage increase given to all employees in the second week of January. The General Counsel con- tends that this action not only constitutes an unlawful granting of benefits for the purpose of discouraging union activity, but renders Respondent's claim of eco- nomic necessity for the January 4 layoffs as pretextual. Fiedler testified that he first discussed the pay raise with employees in June or July 1979 and that in Decem- ber he determined that because of the first price increase, a pay raise could be given. More important, Fiedler fur- ther testified that the granting of a pay raise was an "in- tegral part" of its overall efforts during January to reduce costs while at the same time increasing productiv- ity. Fiedler reasoned that since he would be asking the remaining work force to put forth their fullest effort, it was only fair, in view of the rampant inflation, to grant the previously promised modest pay raise. Respondent's need for increased productivity during this critical stage of its existence can hardly be questioned. Further, that the granting of a small pay raise would in these circum- stances serve to achieve the desired increased effort by the remaining employees was not an unreasonable posi- tion for Fiedler to have taken. Accordingly, I am satis- fied that in granting the pay raise Respondent was moti- vated by economic considerations and not by a desire to thwart the Union. Summitville Tiles., Inc., 190 NLRB 640, fn. i (1971); cf. Sreinerfilm. Inc., 255 NLRB 769 (1981). However, in 8(a)(1) cases, proof of an unlawful motive is not a necessary element, and a violation of the Act can 4 ' See ac Ill.A. par 12. aboxe. .concerning the senlioril) lof L.a, rc.i c ,i-U-,is halllrmml'rlllmlll \'tnc11Cnt 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is made out if an employer's conduct, irrespective of its purpose, has the natural consequence of interfering with employees' Section 7 rights. Here, just 2 weeks prior to granting the raise Fiedler unlawfully solicited grievances from the employees and impliedly, if not ex- pressly, promised to adjust their grievances. Fiedler's questionnaire specifically refers to an increase in wages, and at least one employee, in filling out the question- naire, requested just such a pay raise. In these circum- stances, and in light of the ongoing campaign of threats during the same period of time, I find that Respondent violated Section 8(a)(1) in the granting of the pay raise. 44 3. The January 22 warnings of Whiteaker and Trujillo Employees Whiteaker and Trujillo both attended the union meeting on Sunday evening, January 20, both failed to report to work on the following day, and both received written warnings for their absences when they returned to work on Tuesday, January 22. That Fiedler acquired knowledge of their attendance either from his son, George Michael Fiedler, who briefly attended the same union meeting, and/or during his phone conversa- tion on January 21 with the union president is not open to serious dispute. Also not open to dispute is the fact that while both Whiteaker and Trujillo had less than ex- emplary attendance records prior to January 21, neither had ever received a written warning concerning his at- tendance prior to January 22. On this occasion, both fol- lowed their normal practice with regard to notifying Re- spondent of their absences-Whiteaker asked a coworker to inform Respondent, which was done, and Trujillo made no attempt at all to contact Respondent. On Janu- ary 21, Foreman Krater asked employee Emerick if Whi-- teaker and Trujillo were heads of the Union. When Emerick denied any knowledge, Krater replied that he thought they were and that was the reason he was going to lay them off. That the eventual punishment meted out was less severe than predicted or promised hardly ab- solves Respondent from its unlawful conduct in merely issuing warnings. Respondent made no attempt to explain why it chose to give these employees written warnings for their ab- sences on January 21 when in the past it had always ex- cused similar offenses. Based upon the foregoing, the conclusion is inescapable-never before had the employ- ees engaged in union activities. Accordingly, I find that the General Counsel has made out a prima Jacic case 44 Il findinig thai liedler was oti unla, lfully llotixalted in eilhir maikinig the Jarilar5 4 lyoff or i g.anlin(g ithe ubscqueit pai raa a. I hav e. orf c(lMre, credited that portion or f Fiotdler', letimonyC L lct'rilnig the fa.clor',r hat hie conidered im making Ihe decisions I am no!r (11 mlind ful Ihat at other lime', heret I have noI Cho',cnI to credit his te lltllony As I have nrioted earlier (,ee fin 12). the credilllg of only plrions of a wilrCSS,' iCilioliIly iK 11i01 IIIlUaIa M, .rcorvr, ill reaching Itis condiluM(i I Alas greally lnflucnced h) both the ictinilny of <(corge Repeli the vicc presilenl ofr I xchairge Itarnk. and the i lpllrortillg I ohlcunwll(lary )"idelcoe ,hich clearly orrohborale' Firedlcr', lirinlorly that ill early J;lllailr a ,c{ere Filancial c r i ri calle to a head alld c olnpelied dras'-tic c laillgec in Repolldei t', eralol operatiorln Iulther, inl explaililrlg the hal , for thc layoffs, Iielder dliplacIcd both a keen iecollecl n Lllld i ndCersi rdnl ing of tie unliderly inig ital's, Unlike hi, l ,timrlony in other arca., Ihli stc a', red a.id poir l t, rc',timlor D 'wi, hblie, ahl, under Wright Line, supra, and Respondent has not met its burden of demonstrating that the same action would have taken place even in the absence of the protected conduct. 4. The April 18 incident The law is well settled that irrespective of its motives, an employer violates Section 8(a)(1) when it discharges or otherwise discriminates against employees who, when protesting against their terms and conditions of employ- ment, engage in a concerted refusal to work. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962). Here, the hammer shop employees clearly and in an unambiguous manner informed their employer that they considered the hammer shop as "too hot, too smoky, too dangerous," and that they would not return to work until they were assured that Respondent would call OSHA to investigate these complaints. Rather than ac- ceding to their demands, Respondent admittedly dis- charged these employees for their participation in the work stoppage. Clearly, this case falls within the princi- ple set forth in Washington Aluminum, supra.4 5 In defense of these actions, Respondent argues that no problems existed on April 18 that justified the employ- ees' demand for an OSHA inspection, and the employ- ees' refusal to work was "nothing more than a bad faith attempt to harass their employer." In these circum- stances, Respondent's argument continues, the employ- ees, with full knowledge of the falsity of their claims, lost the protection under the Act. In support of this ar- gument, Respondent contends that the record evidence establishes that the cooling system was satisfactory and wvas not a cause for employee discomfort; that the smoke in the hammer shop had been stopped by mid-afternoon on the 17th and was, therefore, no cause for concern; and that Kathman had no genuine concern about his burns from the use of the lubricant. Contrary to these contentions, I find that the record evidence clearly estab- lishes that the source of the employees' concerns were conditions on the job which they, in good faith, legiti- mately believed to be dangerous. In this regard, the evi- dence is undisputed that on the afternoon of April 17, heater Collins succumbed to the heat of the furnace and had to be relieved of duty and that trimmer Kathman suffered repeated burns on his face from the splashing of the lubricant. Further. Respondent argues that the employees on the other three crews had no apparent problems with the heat or the splashing of lubricant and that their satisfac- tion with their own personal working conditions taints their concerted actions and is affirmative evidence that the employees' only purpose was to disrupt and harass Respondent. This argument is lacking any factual or legal basis and warrants summary rejection. Even treated in the light most favorable to Respondent, the evidence merely establishes that the employees' choice for their course of action was arguably unnecessary, unwise, and/or unreasonable. However, it is well settled that the ' e Sc ludai Svrcm.i,. In,,- 2319 N.RB I131t (1979): Moderner ('erper In- duuriw blt. 236 NlRB 1114 (1978). cniti ti1 I 2d 81 I (Ilth ( ir 1979); nflon Boc/re ( 'repane, 211 NI RH 818 (197 4) COL ORADO F-OR(,t CO(RPORA I [ON Board does not pass on the reasonableness of the cmn- ployees' complaints, and the merits of the underlying dis- pute are irrelevant. Likewise. it is irrelevant that the employees svho re- mained on the job on April 18 had no difficulty with the heat or lubricant. As the Board stated in Union Roilcr Company, supra:. ['T]he issue here is not the objective measure of safety conditions, it is whether these employees left their job because they thought conditions were unsafe. They could not have been penalized for so doing just because other employees tolerated such conditions or because, by some external standard. they were too safety clncio us. Accordingly. I find that Respondent violated Section 8(a)(l) by discharging employees Whiteaker, Hunt, Tru- jillo, Kathman. Collins, and Shepherd on April 18, and further violated Section 8(a)(1) by issuing written wsarn- ings to employees Osborne and Emerick on April 21.4' 5. Kathman's post-discharge misconduct 4 7 On May 27 Kathman filed anl application for a loan from the Capital Savings and Loan Association. herein called the Association, The address on the application for Respondent was not its actual address, but Was in fact a home address of anll unidentified friend of Kath- main. On June 2, Kathman received at the home of his friend the Association's request for verification of em- ployment. Kathman filled in the form misrepresenting that he was then currently employed by Respondent with "a reasonable expectancy of continued employ- ment." Kathman had the friend forge John Krater's sig- nature, and Kathman then returned the completed form to the Association. It is not clear when or how Kathman's unsuccessful at- tempt to obtain money under false pretenses came to Re- spondent's attention. Respondent, relying solely on case law in which the Board found that employees who had falsified certain records were not discharged in violation of the Act, contends that Kathman's post-discharge mis- conduct relieves Respondent of any remedial obligation with regard to Kathman. The cases cited by Respondent were of no value in deciding the question. Nonetheless, for the reasons set forth below, I am constrained to con- clude that Kathman has forfeited his right to reinstate- .s I also reject as totally unsupported hy the record or applicahle la, Respondent's assertion that since employee Shepherd did lol participate in the employees' discussion with Fiedler, he was not a participanl in ally protected concerted activity and that. thereforc, his termination for le.:- ing befiore the end of the shift did not violate the Act Shepherd "aas quickly aware on the moriling of the 18th what had transpired in the lunchroom with Fiedler and he shortly thereafter infoirmed both Fiedler and his coworkers that he shared their concerns writh the surrking cotndi- lions and uas joining in their protest Addiitonally. employees Osborne and Emerick at some time later that morning also informed F[edler thalt they were, for whatever their personal reasons, joining their colleagues iI protesting the working conditions When they returned to u.ork on the following Monday. hey received a warning fIr leaving early on the 18th Contrary to Respondent's conlenions,. these warnings were ti Cll in retaliation for their engaging in proitected concerted aclitiie, 47 The above account is based on Kathman', admissionl dluring his cross-examination and the introductionl of Ihe "hogus" applcalilton he caused to he filed ment and any backpay after May 28, the date on which he engaged in his serious act of misconduct Kathman. with no regard whatsoever for the truth, at- tempted to secure funds from a lending institution by first s.illfully misrepresenting his employment status w.ith Respondelit anid then compounding the offense by forg- ing the Employer's signature on the verification request. Although the matter was not litigated before me, I have no doubt that Kathman's conduct violated at least state, if not Federal, fraud statutes. In contending that Kath- man should not he disqualified, the General Counsel argues that "Respondent did not offer any evidence that it would have discharged or even disciplined an employ- cc for this conduct." I do not share the General Coun- sel's belief that Respondent. in these circumstances, bears any such burden. While Kathman was not attempting to secure funds directly from Respondent. it cannot be said that his misconduct was unrelated to his employment. 4 .' I regard Kathman's misconduct as no less outrageous or serious than instances where employees, even when emo- tionally upset and distraught over being unlaswfully ter- minated, pilfered documents from their employer. tUni- firm Reintal Serivice. Inc.. 61 NLRB 187, 190 (1966). O/Qfier Electronics, Inc., 134 NLRB 1064, 1075-76 (1961) In those situations, the Board denied the normal rein- statemnent and backpay remedy even though it had the effect of leaving a violation of Section 8(a)(3) as unreme- died. No less stringent a policy is required here. IV. I t1 I IIECT O: 0 THE UNtFAIR I AHOR PRACIIC FS UPON COMMiERCE IThe activities of Respondent set forth in section III. above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, anid conmmerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. T'H RfMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully issued warn- ing notices to employees Roy Whiteaker and Frank Tru- jillo on January 22. and to employees Darrel Emerick and John Osborne on April 21, I shall recommend that Respondent expunge said warning notices from its per- soinnel files and records. Hlaving found that Respondent unlawfully discharged Robert Collins, Joe Lee Hunt, Frank Trujillo. Roy Whi- teaker, and Kevin Shepherd on April 18, I shall recom- mend Respondent offer them immediate and full rein- Cf Jaoh I) D,,A,k, d& So,,. 244 Nl RB 875 (197T). a case relied on hb Ihc (icller.il Cloullscl t hit case i t clairls t .fCtuills dlstinguishable I'ronl the insta;ti sittuli.tii n I hll the IiBoard there aflirnled sithout corm- nclit the Adnnltti tral'aC I. aLk Judge', conclusion that "in the ahbsence of Iht ullstuct cssfill lllnui organizational drlye and tile urlla.ftul dlschargs. Ihe ('CmipaI n i m ,s ould 11)l has e dsisqu;lified ()rIrsco front riltindlled .riph us noic' ' DECISIONS OF NATIONAI I ABOR RELATIONS B()OARD statement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. I shall also recommend that Respondent make them whole for any loss of earn- ings and other benefits suffered by reason of Respond- ent's unlawful conduct. The loss of earnings shall be computed as prescribed in F: W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in accordance with Fl7orida Steel Corporation, 231 NLRB 651 (1977). 49 Further, having found that Respondent also discharged employee Bernard Kathman on April 18, but that Kathman engaged in such a serious act of mis- conduct as to forfeit reinstatement and backpay after the date of his misconduct, I shall also recommend that Re- spondent make Kathman whole for any loss of earnings and other benefits suffered by reason of Respondent's un- lawful conduct from the date of discharge to May 18. Upon the basis of the foregoing findings of fact and upon the entire record in these case, I make the follow- ing: CONCI.USIONS OF LAW 1. Respondent Colorado Forge Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Colorado Die Sinkers, Local No. 520, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By issuing written warnings to Roy Whiteaker and Frank Trujillo on January 22, 1980, because of their ac- tivities on behalf of the Union, Respondent violated Sec- tion 8(a)(3) and (1) of the Act. 4. By issuing written warnings to employees Darrel Emerick and John Osborne because of their protected concerted activities, Respondent violated Section 8(a)(l) of the Act. 5. By discharging Robert Collins, Roy Whiteaker, Joe Hunt, Frank Trujillo, Kevin Shepherd, and Bernard Kathman on April 18 because of their protected concert- ed activities, Respondent violated Section 8(a)(1) of the Act. 6. By its other conduct found above which interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7, Respondent has violated Section 8(a)(l) of the Act. 7. Respondent did not violate the Act in making the January 4 layoffs as alleged in the complaint in Case 27- CA-6499. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER5 0 The Respondent, Colorado Forge Corporation, Colo- rado Springs, Colorado, its officers, agents, successors, and assigns, shall: 49 See, generally, IlA Plumbing & Healing Co., 138 NLRH 716 (19)2) 0o In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided 1. Cease and desist from: (a) Interrogating its employees concerning their union activities, sympathies, and desires. (b) Threatening employees with layoffs, reductions in pay and hours, and other economic reprisals if they select a union as their bargaining representative. (c) Soliciting its employees to withdraw or resign from membership in the Union. (d) Making promises of benefits if the employees cease engaging in union activities. (e) Unlawfully granting a wage increase which had the effect of interfering with the employees' Section 7 rights. However, nothing herein shall be construed as author- izing or requiring Respondent to abandon any benefits previously conferred. (f) Issuing written warnings to employees because of their activities on behalf of the Union. (g) Issuing written warnings to employees because they engaged in protected concerted activities. (h) Discharging employees because they engaged in protected concerted activities. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Robert Collins, Roy Whiteaker, Joe Hunt, Frank Trujillo, and Kevin Shepherd immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges; make whole Collins, Whiteaker, Trujillo, Hunt, and Shepherd for any loss of earnings suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy"; and make whole Bernard Kathman for any loss of earnings he suffered as a result of the discrimination against him from the date of his discharge until May 28. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Colorado Springs, Colorado, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that by Sec. 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections there- to shall be deemed waived for all purposes ' Ih the event that this Order is enfirced by a Judgment of a United States Court ,of Appeals, the worrds In the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- anlt to a Judgment of the Urnlied States Court of Appeals EnLfircing an Order of the N r Rationl Labor Relations Board" CO().()RADO() FORGI: CORPORATI()N said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days fron the date of this Order, what steps Respondent has taken to comply herewith. 39