A & T Glass Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD A & T Glass Company, Inc., and A & T Auto Radiator, Inc.1 and Glass Warehouse Workers and Paint Handlers, Local Union 206, International Brotherhood of Painters and Allied Trades, AFL- CIO. Cases 29-CA-5166 and 29-CA-5166-2 August 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On April 13, 1977, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the Union and the General Counsel filed exceptions and supporting briefs, and the Respondents filed an answering brief in opposition to these exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge to the extent consistent herewith, to modify his remedy,3 and to adopt his recommended Order, as modified herein. The Administrative Law Judge has found that Respondent Glass' July 304 discharge of employee Dennis Pulver was discriminatory. He reached this result, with which we agree, based on the credited testimony of Pulver and his finding that Respondent Glass openly expressed its hostility towards the Union, and Pulver as a union activist, shortly before it fired him. Respondent's president, Osterloh, however, asserted that he had fired Pulver for drinking. In contrast, the Administrative Law Judge found that Pulver's August 25 discharge (he was reinstated on July 30) was for cause, based on the credited testimony of President Osterloh, whom he had otherwise found to be "an unimpressive witness." In reaching the result above, the Administrative Law Judge found that Respondent Glass ended its I The caption appears as amended at the hearing. " Although Members Penello and Walther agree with the finding of the Administrative Law Judge that employee Leonard Prenderville was discharged for lack of a driver's license necessary to his work, they do so without relying on Respondent Glass' September 22, 1976, letter offering Prenderville reemployment contingent on the reinstatement of that license. The General Counsel in his brief attacks certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 90 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 231 NLRB No. 167 condonation of any employee drinking on the job when it offered Pulver reinstatement conditioned on his promise to refrain from drinking on the job.5 The Administrative Law Judge further found, in support of his conclusion, that Pulver's second discharge was unconnected with his union activities and that Respondent Glass had no knowledge of its employ- ees' renewed interest in the Union during the period from July 30 until August 25. We disagree with the above findings and conclusions. We are convinced, and so find, that Pulver was discharged for the second time on August 25 because of his role as instigator of union activity in Respondent's glass shop and, further, that the reason given by Respon- dent Glass for discharging him, i.e., his drinking on the job, was again pretextual. We reach this conclu- sion based on the record as a whole, noting especially those facts detailed below. To recapitulate the events leading up to the August 25 discharge, Pulver was one of three employees who initiated the union activity in Respondent's auto glass and radiator shop. He was initially discharged by Osterloh on July 30. On that date, Osterloh first learned of his employees' interest in the Union. Early in the day, Osterloh interrogated employee Thomas Luald concerning the extent of Pulver's union activities, as well as those of other employees. Later, Osterloh told Luald that Pulver was fired, but did not know it, because he was "instigating a lot of union garbage." On the evening of July 30, following a meeting with employees, Osterloh fired Pulver, telling him: "You created a gigantic mess with the Union. You are a good mechanic. I hate to lose you, but because of this, I have to let you go." Based on the above, the Administrative Law Judge concluded, and we agree, that Pulver was discharged on July 30 because of his union activity in violation of Section 8(a)(3) of the Act. Pulver was reinstated almost immediately. Directly after he was terminated, several employees, including Robert Gonnelly, persuaded Osterloh to take Pulver back, warning him that Pulver's discharge, asserted as being partly for drinking, would look "fishy," occurring as it did in the midst of a union campaign. Osterloh agreed to reinstate Pulver but only if he 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 4 All dates hereinafter are 1976. 5 As noted by the Administrative Law Judge, "the record reveals Pulver and most of Respondent Glass' glazier-installers drank beer during their working time. This activity was not strenuously discouraged by Osterloh or Wisel [secretary-treasurer of Respondent Glass as the employees openly collected money for beer in the shop around 4 p.m. in the afternoon and Osterloh and Wisel contributed on occasion and permitted the employees to keep the beer in a refrigerator located on the premises." 998 A & T GLASS COMPANY promised to refrain from drinking on the job and come in at 8 a.m. The Administrative Law Judge further found, however, that Osterloh's warning was specifically directed to Pulver, and not to his employees generally. Because of the specificity of Osterloh's prohibition, we find that Osterloh in effect created a special rule for Pulver alone, notwithstanding, as found by the Administrative Law Judge, that he knew of no incident of Pulver drinking on the job prior to his July 30 discharge. Osterloh also admitted on cross-examination that "We have a number of trucks and all the men have had occasions when 1, Wisel, or Lage have found beer cans in their trucks." We therefore conclude that Pulver's conditional reinstatement was motivated in part by Respondent Glass' desire to retaliate for his union activities. During the first part of August, employee interest in the Union subsided, perhaps because of the discriminatory discharges of Luald and Pulver, perhaps due to the substantial promises of benefit made by Respondent Glass upon its discovery of union activity in its shop. In any event, the abrupt discharge of an employee for exercising what was thought to be the newly granted privilege of a day off for personal business rekindled interest in the Union on or about August 9. Also in August, in the weeks of August 6-12 and 25-30, Respondent Glass adver- tised for auto glaziers (the job performed by Pulver and alleged discriminatee Prenderville). On August 25, according to his testimony, Osterloh observed Pulver drinking a can of beer while stopped in his truck at a stop sign.6 Osterloh returned to his shop, had Pulver called in, and discharged him. The same afternoon, Respondents' secretary-treasurer, Wisel, asked employee Prenderville, Pulver's friend and roommate, whether he knew anything about any union activity going on, saying he would appreciate hearing about it. Although the Administrative Law Judge limited his finding on this evidence to 8(a)(1) coercive interrogation, we conclude that such inter- rogation indicates that Respondent Glass knew or suspected that renewed union activity was present in its shop. Contrary to the Administrative Law Judge, we are persuaded by this record, including the events described above, that Pulver's second discharge on August 25 grew out of the union activity he initiated and Employer's concern over possible resurgence of union activity in Respondent Glass' shop during the latter part of August. Normally, of course, an employer is justifiably concerned when it discovers its employees drinking on the job, but this employer i Pulver denied this. and the General Counsel contends that the record as a whole does not support the Administrative Law Judge's crediting Osterloh on this incident. Alternatively. the General Counsel contends that had actually encouraged its employees to drink beer on the job, rather than discouraging such activity. Respondent Glass knew of such activity for a considerable period preceding the start of the union campaign, yet did nothing to stop the practice until it discovered Pulver's union involvement. Immediately thereafter, the Respondent unlawfully discharged Pulver, asserting as a pretext that he had been drinking on the job. Although Pulver was reinstated shortly after his discharge, we have found herein- above that the Respondent's offer of reinstatement was conditioned unlawfully on his promise to refrain from drinking on the job. This condition, in our view, was not based on legitimate business considerations but was motivated by Pulver's union activities. Accordingly, we conclude that Pulver was dis- charged on August 25 in violation of Section 8(a)(3) and (1) of the Act for failing to comply with the terms of an unlawful offer of reinstatement. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dents, A & T Glass Company, Inc., and A & T Auto Radiator, Inc., Amityville, New York, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 2(a): "(a) Offer Thomas Luald and Dennis Pulver immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay due to the violations against them in accordance with the manner set forth in 'The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN FANNING, concurring in part and dissent- ing in part: Unlike my colleagues, I would find an 8(a)(3) violation as to Prenderville, who since the July 30 meeting was identified to Respondent Glass as an employee who had announced that the employees wanted union benefits. The Administrative Law Judge ignored the impact of Respondent's attempted interrogation of Prenderville on August 25 concern- ing renewed union activity at the plant-an attempt even if Pulver were dnnking beer in his truck it is clear, from Respondent Glass' condonation of such behavior among its other employees. that Pulver's drinking was not the real reason for his discharge. 999 DECISIONS OF NATIONAL LABOR RELATIONS BOARD blocked by Prenderville's refusal to answer-and instead emphasized that, in the 11 days since Prenderville had lost his driver's license and had been working wholly in the plant, Respondent had no knowledge that he had "signed a union card" or engaged in "other" union activities. That sort of knowledge was not necessary. Failure to cooperate with company interrogation about the Union was conduct that accounted for discriminatee Luald's discharge on July 30, as the Administrative Law Judge found. A comparison with his earlier finding of discrimination as to Luald does not appear in the Administrative Law Judge's Decision despite marked similarity of circumstance. As to Luald, the Adminis- trative Law Judge did not credit President Osterloh; as to Prenderville, he did, specifically because of independent objective facts, such as the suspension of Prenderville's license, the apparent maintenance of certain benefits for Prenderville until September 24, and the self-serving letter to Prenderville, dated September 22, after the charge had been filed. This letter describes the events of August 27 as a temporary layoff and ostensibly offers reemployment if the license were procured. The Administrative Law Judge viewed Prenderville as having ignored the letter, though insufficient time for discriminatee response to a reinstatement offer was contained in it.7 The Administrative Law Judge concluded that the General Counsel failed to prove that Prenderville was terminated in violation of Section 8(a)(3). On the above facts, I cannot agree. Prenderville's August 25 refusal to cooperate in discussing union activities, found by the Administrative Law Judge to be 8(a)(l) coercive interrogation but omitted from mention in his "Analysis" of the 8(a)(3) allegation, was, in my view, as much a part of the decision to "sever" Prenderville on August 27 as his being sick for 2 days, or no longer having a license. Thus, the August 27 action was a discriminatory discharge or layoff, not a layoff for lack of work, and the discriminatee is entitled to an appropriate reinstatement and backpay order. I See Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting and Supply Corp., 216 NLRB 734, 735 (1975). APPENDIX NOTICE 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 a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice. The Act gives all employees the following rights: To engage in self-organization and to form, join, or assist any union To bargain collectively through represent- atives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with these rights. WE WILL NOT interrogate you regarding your union activities or sentiments or regarding the union activities or sentiments of your fellow employees. WE WILL NOT threaten employees with dis- charge or plant closing because they choose to engage in union activities. WE WILL NOT grant benefits to dissuade you from participating in union activities. WE WILL NOT discharge employees for engaging in union activity on behalf of Glass Warehouse Workers and Paint Handlers, Local Union 206, International Brotherhood of Painters and Allied Trades, AFL-CIO, or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer Thomas Lauld and Dennis Pulver immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority or other rights, and WE WILL make them whole for any loss of pay they may have suffered by reason of our discrimination against them, with interest. A & T GLASS COMPANY, INC. A & T AUTO RADIATOR, INC. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: Upon charges filed by the above-named Union on September 1 and 9, 1976, respectively, a complaint was issued on October 29, 1976, alleging that A & T Glass Company, Inc., herein called Respondent Glass, had engaged in and 1000 A & T GLASS COMPANY is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent Glass filed an answer denying the commission of the unfair labor practices. The case was heard in Brooklyn, New York, on January 10 and 11, 1977. All parties were afforded full opportunity to participate in the hearing. Near the close of the proceeding, General Counsel amended the complaint to allege that Respondent Glass and A & T Auto Radiator, Inc., herein called Respondent Radiator, constitute a "single integrated business enterprise" within the meaning of the Act.' Additionally, General Counsel amended the complaint to allege that one Elmer Downes is, and has been at all times material herein, an agent of Respondent Radiator and a supervisor within the meaning of Section 2(1 1) of the Act. Following the close of the hearing, counsel for Respon- dents filed a brief with the Administrative Law Judge. Upon the entire record, the closing arguments by counsel, and Respondent's brief, I make the following: FINDINGS OF FACT 2 1. JURISDICTION The complaint alleges and the answer admits that Respondent Glass is a New York corporation with its main office and place of business located at 199 Sunrise Highway, Amityville, New York, where it is engaged primarily in the installation of automobile windshields and in the performance of related services for various automo- tive body shops, automobile dealers, and insurance companies. During the past year, a representative period, it purchased and caused to be delivered to its Amityville operation, from points located outside the State of New York, goods and materials valued in excess of $50,000. It was admitted, and I find, that Respondent Glass is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Radiator, also a New York corporation, maintains its main office and a place of business at 199 Sunrise Highway, Amityville, New York, where it is engaged in the pickup, repair, and delivery of automobile radiators. General Counsel offered no evidence which would reveal that Respondent Radiator independently meets the Board's jurisdictional standards. Instead, he requests that jurisdiction be asserted upon a single employer theory. Donald Osterloh, the president of both named Respon- dent companies, testified concerning their operations. They are separate legal entities which share the premises at the Amityville location, with each having a separate telephone number and a separate entrance. The books for each The amendment was accomplished by alleging appropnate ultimate facts as pars. 2(B). 3(B), and 4(B) to the complaint. It is noted that General Counsel inadvsertently referred to the added Respondent as A & T Auto Radiator Corporation, A & T Auto Radiator Corporation. Inc.' and A & T Radiator Company I find the correct name to be A & T Auto Radiator, Inc. 2 All dates are 1976 unless otherwise indicated. U Upon the undisputed testimony revealing that Elmer Downes hires. fires. and effectivekl supervises the employees of Respondent Radiator. I find he is an agent of the corporation and a supervisor within the meaning of Sec. 2(1 I)ofthe Act. corporation are separately maintained in an office on the premises which is shared by the corporations. The corporations file separate tax returns, keep separate payrolls, have separate workmen's compensation and other insurance, separately own vehicles used in their respective businesses, and advertise in the newspapers separately. Donald Osterloh owns 50 percent of the stock of Respondent Glass and 80 percent of the stock of Respon- dent Radiator. Elmer Downes, the secretary-treasurer of Respondent Radiator, owns the remaining 20 percent of the stock of that corporation and Donald Wisel, secretary- treasurer of Respondent Glass, owns the remaining 50 percent of the stock of that corporation. Downes and Osterloh hire, fire, and determine the working conditions of Respondent Radiator's employees, with Osterloh making some management decisions without consulting Downes.3 Management decisions regarding Respondent Glass are jointly made by Osterloh and Wisel and each has and exercises the authority to hire, fire, and responsibly direct its employees. 4 Some 14 persons perform what might be called produc- tion and maintenance work at the Amityville premises. Respondent Glass there utilizes eight glazier-installers who load their trucks at the premises and thereafter travel to the customer's place of business where they install automobile windshields and related parts. They are supervised by Robert Lage who responsibly directs them in the perfor- mance of their duties.5 The glazier-installers drive trucks owned by Respondent Glass and two of these trucks advertise radiators. The glazier-installers do not repair radiators, but on occasion they will pick up radiators which are to be taken to the premises for repair and on occasion they will deliver to customers radiators which have been repaired. Respondent Radiator utilizes six employees at the Amityville location; three are radiator repairmen and the other three are truckdrivers who pick up and deliver radiators. They are supervised by Elmer Downes. Respon- dent Radiator's employees do not install glass, but its three truckdrivers will occasionally pick up and deliver glass. The corporations do not reimburse each other for the pickup and delivery services they perform for each other. The trucks owned by Respondent Radiator all advertise glass. As revealed by Charging Party Exhibit I, both corporations hold themselves out to be one through the use of stationery with the joint name A & T Auto Radiator and Glass. In addition to the interchange of employees of the two corporations with respect to pickup and delivery of glass or radiators, the record reveals that Downes gives some work instructions to Respondent Glass employees and Lage gives some work instructions to Respondent Radiator employees. 6 Significantly, Downes attended a meeting held by Osterloh and Wisel with Respondent Glass employees 4 As alleged in the complaint, and admitted in the answer, I find that Donald Osterloh and Donald Wisel are agents of Respondent Glass and supervisors within the meaning of Sec. 2(11) of the Act. 5 The answer admits. and I find, that Lage is an agent of Respondent Glass and a supervisor within the meaning of Sec. 2(11 ) of the Act. 6 Alleged discnminatee Thomas Luald testified he spent approximately 25 percent of his time delivering or installing glass. Osterloh denied Luald installed glass while being paid by either corporation. I credit Osterloh's (Continued) 1001 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on July 30 at which their benefits were discussed. The record also reveals that the employees of both corporations frequently use Respondent Glass equipment and materials to perform glasswork during their off-duty hours. Respon- dent Glass is reimbursed on those occasions for the use of its equipment and materials. Analysis To determine whether separate legal entities constitute a single integrated enterprise, the Board and courts consider (1) integration of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Barwise Shut Metal Co., Inc., et al., 199 NLRB 372, 378 (1972); Marine Welding and Repair Works, Inc., et al. v. N.LR.B., 439 F.2d 395 (1971). Common ownership alone is insufficient to justify a conclusion that such businesses constitute a single employ- er, but common ownership coupled with significant integration of operations uniformly results in a conclusion that such entities are single employers in legal contempla- tion. See Scalera Bus Service, Inc., 210 NLRB 63 (1974); and Suburban Transit Corp., 202 NLRB 465, 472-473 (1973).7 In the instant case, common ownership and central determination of labor relations policy were clearly established through proof of Osterloh's ownership of 50 percent of Respondent Glass, 80 percent of Respondent Radiator, and evidence revealing his day-to-day participa- tion in the affairs of both. He is clearly the dominant figure in both corporations. While the two businesses in question could be operated independently, the record reveals they are held out to the public as one single business, and considerable integration is shown through occupancy of the same building, sharing of office space where their records are kept, joint top management supervision of both by Osterloh, use of common stationery and advertising one another's services on vehicles, integration of employees in the pickup and delivery of glass and radiators, and the fact that the employees of both corporations use equipment and material owned by Respondent Glass to do outside work. Apart from Osterloh, some overlap in labor relations matters was shown by Downes' attendance at a meeting held with Respondent Glass employees, and some overlap of supervision exists with regard to instructions given employees of both corporations by Downes and Lage with regard to pickup and delivery of radiators and glass. While no single factor discussed would, standing alone, show the entities to be single integrated enterprises, I find that collectively the above discussed factors compel the conclu- sion that Respondent Glass and Respondent Radiator constitute a single employer within the meaning of the Act. denial and, in the absence of specific testimony concerning Luald's alleged glass installation work, refrain from attaching undue weight to this testimony. I find Luald's glasswork on company time related primarily to deliveries. I Cf. Milo Express, Inc., and Keystone Lawrence Transfer Company, 212 NLRB 313 (1974). 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Summarized, the remaining issues in this case are: whether Respondents engaged in unlawful interrogation, utterance of threats, and grant of benefits during the period July 30 to August 31, 1976, as alleged in paragraphs 9, 10, I1, and 12 of the complaint and whether Respondents discharged employees Dennis Pulver, Thomas Luald, and Leonard Prenderville in violation of Section 8(a)(3) of the Act on the dates indicated in paragraph 13 of the complaint. B. Background The union organization campaign which led to the incidents involved herein was commenced by the Union in February 1976 and again in April. Union Agent Mike Karp visited the Amityville location and apparently accomplished nothing. Thereafter, in late June or early July, he came upon Thomas Luald while Luald was out of the shop having lunch. Karp then discussed the benefits of union representation with Luald, gave him a number of union authorization cards, and requested that he kick the matter around with his fellow employees to see if they were interested. Lauld testified he thereafter gave half the cards to employee Pulver and the matter was discussed among the eight glazier-installers employed by Respondent Glass. In late July, Pulver contacted the Union to indicate that the employees of Respondent Glass wanted a meeting with union representatives and an August 2 date was set for the meeting, which was to be held at the Cross Island Motel at 7 p.m. While the record reveals Pulver and Luald distributed cards among Respondent Glass employees and that most of them signed cards at some time or other, the date of signing was fixed only as to Luald (July 23 or 24), Pulver (August 23), and Prenderville (August 24 or 25). The union meeting scheduled for August 2 was never held and no petition for an election had been filed by the Union prior to the hearing held on January 10 and II, 1977. The cause of the collapse of the union campaign is revealed hereinafter. C. The Alleged 8(a)(1) Violations 1. The Luald-Osterloh incident During the workday on July 30, Donald Osterloh learned that Respondent Glass employees were interested in a union and that a meeting was to be held on August 2.8 When alleged discriminatee Luald returned from delivering radiators that afternoon, Osterloh engaged him in conver- sation. Luald testified Osterloh said "Where the hell is your friend Dennis [Pulver]? He is instigating a lot of union garbage and before I put up with that shit I will close the 8 Osterloh denied such knowledge, but employee Dennis Pulver's uncontroverted testimony reveals Supervisor Robert Lage told him on August 2 that on the preceding Friday he had been informed of the employees' interest in the Union and of the scheduled August 2 meeting by a customer and Lage told Pulver he passed the information on to Osterloh on July 30. 1002 A & T GLASS COMPANY place down-fire everyone. I don't have to put up with that nonsense. He's fired and he doesn't even know it yet." When Luald stated he didn't know anything about it, Osterloh asked him who was involved and who the business agent was. Luald again replied he did not know and Osterloh took him to the back office where Wisel, Respondent Glass' secretary-treasurer, was at the time. In Wisel's presence, Osterloh observed Luald was supposed to be the manager of the new shop.9 He then asked "How far has Dennis gotten into the Union-who signed cards- who has Dennis spoken to?" Luald replied he didn't know, that Osterloh would have to talk to Dennis. Osterloh then informed him he could not use him in the new shop and allegedly stated he paid him for that day and expected him to work the day out. Osterloh denied having had any conversation with Luald concerning Pulver or the Union on July 30. He testified he merely informed Luald on that day that he could not use him anymore because he had learned he was collecting unemployment moneys from the State of New York while being paid by Respondent Glass. I credit Luald.' ° Accordingly, I find that Respondent Glass, through Osterloh's July 30 discussion with Luald, interrogated an employee concerning his union activities and the union activities of other employees and threatened to discharge employees because of their union activities, all in violation of Section 8(a)(1) of the Act. 2. The July 30 and August 2 meetings After discovering that Respondent Glass employees were interested in a union, Osterloh scheduled a meeting of those employees at quitting time. Osterloh, Downes, and Wisel attended the meeting together with all the glazier- installers except Pulver. Alleged discriminatee Leonard Prenderville testified Osterloh started the meeting by commenting, "If you guys had a problem, how come you didn't come to me?" No one answered, and Osterloh asked, "What is this I hear about the Union? What do you think the Union can do for you?" When there was no reply, Osterloh allegedly said he had fired Dennis for union activities and drinking on the job and he told the employees to write down what they wanted for benefits on a piece of paper and bring the paper to his office. Osterloh, Downes, and Wisel left the meeting at this point, and the employees listed their desired benefits as: (I) seven paid holidays, (2) 5 days' sick leave, (3) I week of paid vacation after I year of service-2 weeks after 2 years' service, (4) 2 personal days off per year, (5) a pay increase, (6) company- paid Blue Cross-Blue Shield insurance, (7) periodic grievance meetings, (8) wage review every 6 months, and (9) pay for 30 minutes of the I-hour lunch period which they claimed they worked." Robert Gonnelly, who acted 4 Luald had previously been informed he would be made manager of a new radiator shop to be opened in Williston Park. New York. "' Respondent's counsel contends Luald should not be credited because he collected unemployment compensation while being paid under the table by Respondent Radiator, Luald informed Supervisor Downes of this matter when he was hired and he made no effort to conceal the situation at the hearing. I found Luald to be a straightforward witness. On the other hand, Osterloh was not an impressive witness. For instance, his denial that he learned of the employees' interest in the Union and their scheduled August 2 as the employees' spokesman, testified Osterloh indicated general agreement with the demands on July 30. Osterloh testified he scheduled a second meeting with the glazier-installers for 5 p.m. on August 2 because it appeared they still did not understand what their benefits were. Alleged discriminatee Pulver testified Osterloh started the meeting by commenting they had a big mess there with the Union on Friday; this could have been avoided if they had come to him first-something could have been worked out. Osterloh then said, if it came down to it, he would get rid of all the employees and Lage and Wisel would get in a truck and work. Osterloh then indicated there were new benefits and he was going to adhere to them. He asked if Gonnelly still had the card (piece of cardboard) and, when the employee said no, pieces of paper were passed out. The benefits were then reviewed. Pulver testified the employees were then under the impression that they were to receive the vacation requested (1 week after I year and 2 weeks after 2 years), seven paid holidays, 5 days' sick leave, company-paid Blue Cross Blue Shield insurance, one personal day, wage review each 6 months, a grievance meeting each month, and pay for one-half hour of their lunch hour. The record reveals these employees previously received I week of paid vacation after I year of service and I week vacation each year thereafter; that decisions to pay for sick time were previously made on an ad hoc basis, with some employees being paid for more than 5 days; that they had previously received seven paid holidays but had not received a personal day; that they had not previously enjoyed company-paid accident and health insurance (Gonnelly was an exception); and that no regular grievance meetings or wage reviews had been previously enjoyed. During his testimony, Osterloh acknowledged conduct- ing the meetings and acknowledged the fact that he agreed to the sick leave, the company-paid insurance, the personal day, and pay for all time worked (the one-half hour at lunch). He testified no agreement was reached on the 2- week vacation request, and the agreement was merely to hold periodic meetings in the future rather than one every month. In fragmentary fashion pursuant to leading questions, he denied making reference to the Union at either meeting, denied telling employees at the first meeting that he fired Pulver for union activities, and denied that he threatened to fire all the men and close the shop at either meeting. I credit the version of the first meeting given by Prenderville except for his assertion that Osterloh told the employees he had fired Pulver for his union activities. Osterloh denied making such a comment and employee Gonnelly corroborated his denial that he told employees Pulver had been fired for his union activities. I conclude Prederville's recollection was faulty and credit Osterloh's meeting on July 30 is most unconvincing when viewed in light of events which occurred on July 30 and August 2 which are detailed hereinafter. " The demands made at the July 30 meeting were written on a piece of cardboard which was not presented at the hearing. Consequently, the record does not clearly reveal whether all the demands listed above were made on that date or during that meeting and at a subsequent meeting held August 2. Regardless of when they were made, the list represents all demands made by the employees. 1003 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denial. I credit Pulver's version of the August 2 meeting. Pulver was corroborated in part by Gonnelly, who testified against Respondent Glass most reluctantly. Osterloh's denial of the adverse comments attributed to him during both meetings was not convincingly accomplished and his explanation of the alleged reason for conducting the meetings and granting the new benefits is simply not believable in the circumstances. Accordingly, I find, as alleged, that Respondent Glass through Osterloh's actions at the meetings of July 30 and August 2 violated Section 8(a)(1) of the Act by: (1) coercively interrogating employ- ees concerning their union activities; (2) threatening employees with discharge if they become or remained members of the Union; and (3) threatening employees by stating it would close the business if they became or remained members of the Union. I further find that this Respondent violated Section 8(a)(l) of the Act on July 30 and/or August 2 by granting employees' demands for new benefits to induce them to refrain from exercising the rights guaranteed them by Section 7 of the Act. 3. August 25 Wisel-Prenderville incident Prenderville testified, without contradiction, that Wisel approached him at approximately 3 p.m. on August 25 and then asked him "if I knew anything about union activities going on?" Prenderville replied he did not, and Wisel replied, "Well, if you hear anything let me know, I appreciate it." Wisel was present at the hearing but he was not called as a witness. In the circumstances, I must presume his testimony, if called, would have been adverse to Respondent Glass. Accordingly, I find that Respondent Glass coercively interrogated Prenderville concerning his union activities and those of his fellow employees on August 25 and that such interrogation violated Section 8(a)(1) of the Act as alleged. D. The Alleged 8(a)(3) Violations i. The Luald discharge Thomas Luald was hired by Elmer Downes in late June 1976. At the time of hire, Luald informed Downes he was receiving unemployment compensation. He was hired as a truckdriver and engaged primarily in the pickup and delivery of glass.'2 He was paid $30 per day out of the petty cash funds of Respondent Radiator and his immediate supervisor was Elmer Downes. About a week after he was employed, Luald was approached by Union Agent Mike Karp who described to him the benefits the Union had obtained for its members and encouraged him to discuss unionization with Respon- dent Glass employees. Karp supplied Luald with an undisclosed number of cards which he subsequently shared with alleged discriminatee Pulver, who had previously been a member of the Union. Luald testified that he distributed cards among the glazier-installers and that he signed a card on July 23 or 24. During the 5- or 6-week period of his employment, Osterloh indicated his approval of Luald's ability and work 12 Luald testified he spent approximately 25 percent of his worktime handling glass and installing glass. As indicated at fn. 6, supra, I credit Osterloh's testimony that Luald did not install glass while on company time. by informing him he intended to make him the manager of a new shop which Osterloh intended to open in Williston Park, New York. This offer was retracted abruptly on July 30 when Osterloh interrogated Luald at length concerning the extent of Pulver's union activities and the union activities of other employees and Luald refused to cooperate with Osterloh by professing ignorance and refusing to truthfully answer his questions. At the conclu- sion of the interrogation, which is set forth in detail in the section of this Decision entitled "The Alleged 8(a)(I) Violations," Osterloh allegedly told Luald he could not use him as manager of the new shop-he had paid him for the day and expected him to work it out. Osterloh personally handed Luald his cash pay at times during his employment. Osterloh denied interrogating Luald regarding the union activities of Pulver and other Respondent Glass employees. As previously indicated, I credit Luald's version of the incident. With respect to the reason for discharge, Osterloh testified he learned several days before July 30 that Luald was collecting unemployment compensation while in the employ of Respondent Radiator and this caused him to decide that Luald's connection with the Company must be severed. Osterloh claimed he told Luald that he was firing him for this reason. Analysis Osterloh's assigned reason for terminating Thomas Luald is patently pretextual. His claim that he had no knowledge of the fact that Luald was collecting unemploy- ment compensation while working for Respondent Glass is belied by the undisputed fact that Downes was fully aware of the situation when he hired Luald and Osterloh himself paid the employee in cash. Such circumstances compel an inference that Osterloh was fully aware of the unemploy- ment compensation matter long before July 30. If such was the fact, and I find it was, the assigned reason for Luald's discharge does not withstand scrutiny. The real reason for the discharge is equally obvious. Luald's credited testimony reveals he was terminated immediately after he refused to answer Osterloh's questions about the extent of the union activities of Pulver and other employees. Osterloh knew Luald and Pulver lived in the same house, and he had reason to conclude that Luald was shielding Pulver and the other employees during the interrogation in question. In my view, Luald's refusal to cooperate by truthfully answering Osterloh's questions precipitated his discharge. Accordingly, I find that Thomas Luald was discharged by Respondent Radiator in violation of Section 8(aX)( 1) and (3) of the Act as alleged. 2. The Pulver discharges Dennis Pulver was employed by Respondent Glass as a glazier-installer for approximately 2-1/2 years. The fact that he was a competent workman is conceded. Prior to July 30, his relationship with Osterloh was close as is evidenced by the fact that he was the only glazier-installer invited to attend Osterloh's most recent birthday party at his home and the further fact that Osterloh referred 1004 A & T GLASS COMPANY glasswork, principally installation of mirrors, which he did not wish to have Respondent Glass perform, to Pulver. Pulver paid Osterloh for the use of Respondent Glass equipment and materials used in the performance of such outside work and kept the remainder of the money or divided it with those persons who assisted him in the work. The record reveals Pulver and most of Respondent Glass' glazier-installers drank beer during their working time. This activity was not strenuously discouraged by Osterloh or Wisel as the employees openly collected money for beer in the shop around 4 p.m. and Osterloh and Wisel contributed on occasion and permitted the employees to keep the beer in a refrigerator located on the premises. Beer consumption on the premises usually commenced when the glazier-installers returned to the shop for the day. Subsequent to the time that Luald discussed possible unionization of Respondent Glass employees with Karp, Pulver and his fellow employees discussed the matter and, as a consequence, Pulver telephoned the Union on July 26 or 27 to arrange a meeting of the employees with union representatives. Arrangements were then made for a meeting which was to be held on August 2 at the Cross Island Inn at 7 p.m. At approximately I a.m. on July 30, employee Gonnelly indicated to Pulver that he needed to speak with him. Gonnelly left the shop to perform installation at a customer's place of business and Pulver falsely told Supervisor Lage he was ill, parked his truck, and went in search of Gonnelly. After finding Gonnelly and being informed by him that he had overheard Lage talking to someone concerning a union, Pulver went about his undisclosed private business rather than return to work. During the course of the afternoon Osterloh caused several calls to be placed to Pulver's residence, but Pulver was not there. Osterloh placed the last call himself and then informed James Etri, who lived in the house with Luald and Pulver, that Pulver was fired. When Etri informed Pulver of Osterloh's message, Pulver went to the shop, arriving at approximately 6 p.m. Shortly thereafter, Osterloh and Wisel left the employee meeting then in progress and Osterloh spoke with Pulver. Pulver testified Don Wisel had his tools when the two approached him and Osterloh told him he was fired. He asserts he asked why, and Osterloh said, "You created a gigantic mess with the Union. You are a good mechanic. I hate to lose you but because of this, I have to let you go." When the employee meeting ended, employees Gonnelly, Joe Nolan, and Steve Steinman conversed with Pulver who told them he had been fired for union activity. The employees, who had written their benefit demands on a piece of cardboard, indicated they would talk to Osterloh about the discharge. At this point, Lage came out and : GonnellV credibly testified he urged Pulver's reinstatement by telling Osterloh the discharge was fishy as he was allegedly firing Pulver for drinking while at the same time having discussions concerning the Union. ' Pulver stated in his affidavit given to the Regional Office that he understood the warning concerning dnnking to he directed at employees generally rather than at him specifically. When he went to Gonnelly s home prior to the hearing and had Gonnell) read his affidavit. Gonnelly told him the statement was not true. that Osterloh had conditioned his return to work on his agreement to not drink on the joh Pulver asked Gonnelly to forget the specific warning Although he was called as a rebuttal witness. Pulver did not deny that he attempted to cause Gonnelly to shape his testimony at the hearing. suggested Pulver wait for the employees at a nearby bar. Approximately an hour later, Lage and Gonnelly went to the bar and told Pulver that Osterloh had agreed to withdraw the dismissal.13 Pulver testified that Gonnelly then said Osterloh conditioned his return upon his reporting for work at 8 a.m. instead of 8:30 a.m. and that Gonnelly informed him Osterloh had said that none of the employees were to thereafter drink on the job. Gonnelly testified he told Pulver that Osterloh would permit him to return to work if he reported at 8 a.m. instead of 8:30 and if he would stop drinking on the job. I credit Gonnelly.14 Pulver and other witnesses testified that, when Respon- dent Glass agreed to give them new benefits during the period July 30 to August 2, their interest in the Union waned. Then, on August 9, an employee named Ronnie Olla was fired and the record reveals the employees thereafter signed union cards, thereby evidencing a renewed interest in unionization.1 5 Pulver testified he signed a card on August 23. Pulver was terminated by Respondent Glass on August 25. His version of the termination is that he was asked to return to the shop and, when he arrived at 11 a.m., Osterloh and Wisel took him to the back office where "they told me because of all this, all my instigating with the Union and stuff like that, they could no longer keep me, and they fired me." Osterloh testified that he had no knowledge of Pulver's union activities when he fired him on July 30, and that the reason for the termination was his drinking.t' Apart from Pulver's absence from the shop, allegedly because he was sick, no evidence of recent vintage was offered by Osterloh to support his alleged reason for the decision to discharge Pulver on this occasion. With regard to the August 25 discharge, Osterloh testified that he was driving his wife's car on Route 110 at approximately 10 a.m. and observed Pulver stopped at a light drinking a can of beer. He testified he returned to the shop, had Pulver summoned by radio, and informed him, when he came to the shop around II a.m., that he had rehired him on July 30 with the understanding that he would not drink on the job and he would come to work at 8 a.m. each morning. He contends he then told Pulver he was falling down on both these points and that he had seen him drinking on Route 110, and he had to fire him. Osterloh denied that he told Pulver on July 30 or August 25 that he was firing him for union activities. For the reasons set forth below, I credit Pulver's version of the July 30 discharge conversation and Osterloh's version of the August 25 discharge conversation. is Respondent Glass advertised for glazier-installers dunng the periods August 6-12 and August 25-30. Osterloh testified he was seeking employees for a new shop. In the absence of evidence revealing that Respondents were aware of continued employee interest in a union during these periods, I refrain from inferring that the union situation prompted the advertising. '6 As indicated in the section of this Decision entitled "The Alleged 8(aXl) Violations." this assertion was not true. I find that on July 30 Osterloh was aware of the fact that Pulver was an instigator of the union activity. 1005 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis Osterloh's assertion that he fired Pulver for drinking on July 30 is belied by the fact that he told Luald that day that Pulver "is instigating a lot of union garbage and before I put up with that I will close the place down-fire everyone. I don't have to put up with that nonsense; he's fired and he don't even know it yet." Similarly, the statements made by Osterloh during his meeting with employees that day reveal he was concerned with the employees' union activity rather than with their drinking. Additionally, it should be noted that the record does not reveal any instance in which Pulver was known by Respondent Glass management to have been drinking on the job prior to July 30. Consider- ation of these factors leads me to conclude that Pulver's version of the July 30 discharge conversation should be credited. Consequently, I find Osterloh told Pulver on July 30 that he was fired because he had created a union mess. It follows, and I find, that Respondent Glass by this action violated Section 8(a)(l) and (3) of the Act as alleged by discharging Pulver on July 30. The situation on August 25 was entirely different. Although Pulver denied that Osterloh conditioned his return to work on July 30 upon his agreement to cease drinking on the job, I have credited employee Gonnelly's testimony that Pulver was specifically warned as claimed by Respondent Glass. Prior to the hearing Pulver sought to cause Gonnelly to support his affidavit assertion that all employees had been warned about drinking on the job on July 30. If Osterloh told him he was fired for union activities on August 25 and did not mention drinking on the job, Pulver's attempt to cause Gonnelly to shape his testimony does not make sense. I also note the record fails to reveal that Osterloh or any supervisor of either Respondent had any knowledge during the period July 30 to August 25 that employee interest in the Union had been rekindled. These factors, coupled with my observation of the demeanor of Pulver and Osterloh when they testified concerning the discharge conversation, convince me that Osterloh saw Pulver drinking beer at a stop light on Route 110 on August 25 and that he called Pulver to the shop and immediately fired him because he had been drinking on the job. General Counsel anticipated Osterloh's assigned reason for the Pulver discharge and sought to establish that employee drinking on the job was commonplace and had been condoned by Respondent prior to the time Pulver was allegedly discharged for this reason. The difficulty with this contention is the fact that such condonation, which I find did exist prior to July 30, ended on that date. Particularly is this true as to Pulver. In this regard, I note General Counsel was unable to show that Osterloh learned during the period July 30 - August 25 that any employee had been drinking on the job. Considering all the circumstanc- es, I find that Pulver was fired for cause rather than for his union activities on August 25. Accordingly, I shall recommend that the allegation that he was discharged in violation of Section 8(a)(1) and (3) on August 25 be dismissed. '1 Prenderville testified he signed a union card on August 24 or 25, but no evidence was adduced to show company knowledge of this activity. 3. The Prenderville discharge Leonard Prenderville first worked for Respondent Glass from August 1974 to August 1975. He left and was rehired in mid-July 1975. It is undisputed that Prenderville was an excellent glazier-installer. Respondent Glass could hardly deny that it was aware of Prenderville's prounion sentiments. Osterloh asked the employees what they wanted at the meeting on August 2 and Prenderville replied "union benefits." 17 On August 14, Prenderville lost his driver's license. Several days later he was taken off his truck and put to work in the shop. During the period August 14 to August 25, he rode to and from work with Pulver. He testified that while assigned to shopwork he spent approximately 60 percent of his time installing glass and the remaining 40 percent cleaning, painting, and cutting glass. Prenderville testified Donald Wisel approached him at approximately 3 p.m. on August 25 and asked him "if he knew anything about union activities going on." He replied no and Wisel said, "Well, if you hear anything let me know, I appreciate it." Wisel did not testify at the hearing. The record reveals Prenderville was sick on August 23 and 24 and missed work those days. He called in to say he was sick on August 23, a Monday, but did not call in the following day. The absences were considered excused and he was paid for the 2 days. Friday, August 27, was the last day Prenderville worked for Respondent Glass. The circumstances surrounding his leaving are in dispute. Prenderville testified that Supervisor Lage told him that evening that Osterloh had his pay. He claims he went to Osterloh who told him he and Wisel wanted to talk to him before he went home. Prenderville testified that 25 minutes later he went to the office where Osterloh and Wisel were waiting. He asserts Osterloh then told him he had to let him go and, when he asked why, Osterloh replied "for union activities and for being sick." During cross-examination, Prenderville admitted Osterloh also told him during the above-described conversation that since his license was suspended he could no longer function as an auto glazier. Osterloh testified that when Prenderville told him he had lost his license he told him he would try to keep him in the shop, if they could, but most of the work was on the road. He indicated they tried it 8 or 9 days but it was not working out. His version of the August 27 conversation is that he told Prenderville he was doing a good job but without his license there was not enough work in the shop to keep him busy. Osterloh claims Prenderville responded that he had considered leaving anyway as he did not have a way to get to work since Dennis was no longer with the Company. Osterloh testified he then told Prenderville he would keep everything open and as soon as he got his license to let him know and they would put him back to work. Finally, Osterloh claims he told Prenderville his benefits would stay the same until he came back and that this employee's Blue Cross-Blue Shield coverage was kept in effect until September 24. 1006 A & T GLASS COMPANY On September 22, Respondent Glass sent Prenderville the following letter: September 22, 1976 Dear Leonard, We have received a request for a reference from the Levittown School District, regarding your application for a job in maintenance. By making application for this other position, we assume you do not intend to ever return to work for A & T Glass. Under the circum- stances, we must consider that you have quit our employ. You recall that you were temporarily laid off on August 27, 1976, because you had your driver's license suspended and you could no longer perform the services required of you. At that time you were told by myself that you were welcome back immediately upon reobtaining your driver's license. Up until today you had not informed us that your license was once again in effect. I telephoned you early this morning. You were not at home. I left a message for you to call me. As of this moment you have not returned the call. I wish to advise you that we must know if you have obtained your license and if you can return to work immediately. Unless we hear from you by 12 noon on Friday, September 24, we shall amongst other things cancel the medical coverage we have kept for you as an employee, and otherwise permanently remove you from our list of employees. In such event we will consider that you have obtained employment elsewhere and that you have elected not to return to A & T Glass. Wishing you the best of luck. The letter was sent by certified mail and the return receipt reveals that Prenderville's mother received the letter on September 23. Prenderville did not respond to the letter by 12 noon, September 24, the deadline set forth in the letter. 18 Analysis To find that Prenderville was discharged in violation of Section 8(a)(3) of the Act as alleged, I would have to find that he engaged in union activities, that Respondent Glass was aware of his activities or sentiments, and that it discharged him because of his union activities or senti- ments. Prenderville testified he stated at the August 2 meeting, in response to Osterloh's inquiry, that the employees wanted union benefits. On August 24 or 25, he claims he signed a union card. It is clear that Osterloh was aware of this employee's sentiments, but no evidence was offered to show that Respondent Glass had knowledge of the fact that Prenderville signed a union card or engaged in other activities on behalf of the Union. Against this backdrop, Prenderville informed Osterloh on August 16 that he had lost his driver's license. It is undisputed that this disabled him from performing normally as a glazier- t8 Prendersille received the letter early enough to respond but ignored it. Counsel for Charging Parts subsequentl\ answered the letter on September 30. 1976. and asked Respondent Glass to clarifN its reinstatement offer. See CP. Exh. 2. Respondent Glass did not respond to counsel's letter. installer as he could no longer legally drive a truck. Although Osterloh was then aware of his union sentiments, Osterloh refrained on August 16 from discharging this employee for a perfectly legitimate reason. Instead, his employment ended 11 days later, on August 27. Prender- ville claims Osterloh told him at the time of termination he was fired for, inter alia, his union activities. Osterloh denied the assertion and claims he did not fire the employee at all, but merely told him he was going to have to lay him off because he did not have enough business to keep him busy in the shop. Further, Osterloh testified he told Prenderville, that his benefits would remain the same and that he would be put back on the road as soon as he got his license back. Obviously, this conflicting testimony necessitates a credi- bility resolution. I credit Osterloh because his testimony is supported by independent objective facts, while Prender- ville's bald assertion that union activities was an assigned reason for discharge is not. Thus, Osterloh had valid reason to discharge Prenderville on August 16 but, instead, he decided to try him in the shop. During the I I days between August 16 and 27, Respondent Glass was not shown to have gained knowledge of the fact that Prenderville signed a union card or engaged in any form of union activities. The record did reveal, however, that Prenderville was off work because of sickness on August 23 and 24; that he did not call in on August 24; and that he spent approximately 40 percent of his working time sweeping the shop or performing other work which did not produce immediate income for Respondent Glass. Moreover, Osterloh's asser- tion that Prenderville was merely laid off rather than fired and that his Blue Cross-Blue Shield insurance was kept in force until September 24 is supported to some extent by the letter Osterloh sent to Prenderville on September 22 which, inter alia, informed him he could return to Respondent Glass if he had gotten his license back.' 9 Significantly. Prenderville ignored the letter. Consideration of the factors outlined above convinces me, and I find, that Prenderville was laid off rather than fired on August 27. I do not credit his testimony that he was told he was being let go because of his union activities, and conclude and find that General Counsel has failed to prove by a preponderance of the evidence that he was terminated in violation of Section 8(a)(3) of the Act. Accordingly, I shall recommend dismissal of this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III. above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. '" Resp. Exh. 1. 1007 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Glass and Respondent Radiator consti- tute a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents violated Section 8(a)(1) of the Act by interrogating employees concerning their union activities and the union activities and sentiments of other employees, by threatening employees with discharge and shop closing because of their union activities, and by granting its employees new benefits to induce them to abandon their rights guaranteed by Section 7 of the Act. 4. Respondents violated Section 8(a)(1) and (3) of the Act by discharging Thomas Luald and Dennis Pulver on July 30, 1976, because of their union activities or senti- ments. 5. General Counsel has failed to prove by a preponder- ance of the evidence that Respondents discharged employ- ees Dennis Pulver and Leonard Prenderville on August 25 and 27, 1976, respectively, in violation of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require the Respon- dents to cease and desist therefrom and, in view of the serious nature of the unfair labor practices which effective- ly caused employees to cease their union activities, the Order will require Respondents to cease and desist from infringing upon the Section 7 rights of employees in any other manner. Respondents will be required to offer Thomas Luald reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which he had been performing. Additionally, Respondents will be ordered to make this employee whole for any loss of earnings he may have suffered by reason of his unlawful termination with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact and conclusions of law and, upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: "2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived Ibr all purposes. Respondent Glass and Respondent Radiator, Amity- ville, New York, their officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees concerning their union activities and sentiments and the union activities and sentiments of other employees. (b) Threatening employees with shop closing or dis- charge to discourage them from engaging in union activities. (c) Granting employees new benefits to induce them from becoming or remaining members of the Union or to refrain from giving assistance or support to it. (d) Discouraging membership in or activities on behalf of Glass Warehouse Workers and Paint Handlers, Local Union 206, International Brotherhood of Painters and Allied Trades, AFL-CIO, or any other labor organization of its employees, by discharging employees because of their activities on behalf thereof or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Thomas Luald immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay due to the violation against him, in accordance with the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at the Amityville, New York, location copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondents' authorized representatives, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ORDER 20 1008 A & T GLASS COMPANY customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 1009