Larid Printing, Inc.

LARID PRINTING, INC. Larid Printing, Inc. and Local 1, Amalgamated Lithographers of America, affiliated with Inter- national Typographical Union, AFL-CIO. Cases 29-CA-8299, 29-CA-8409, 29-CA-8627, and 29-RC-5139 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On November 19, 1981, Administrative Law Judge D. Barry Morris issued the attached Deci- sion in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and support- ing briefs and Respondent filed an answering 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 conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 1. We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) by interrogating employees about their union activities, by threatening plant closure, loss of medical benefits, and harsher working conditions in order to discourage union activities, and by di- ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with his dissent il Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. The General Counsel excepts to the Administrative Law Judge's fail- ure to find that, during the week of September 15, Respondent interro- gated Donald Edwards. We note that in the first paragraph of sec. IV,B,I, of his Decision the Administrative Law Judge did in fact make such a finding. The General Counsel also excepts to the Administrative Law Judge's failure to find that Respondent violated Sec. 8(a)(1) by promising benefits to Donald Edwards and by threatening him with discharge. We find it unnecessary to pass on these complaint allegations for the reason that a finding of such additional violations would be essentially cumulative and would not materially affect the remedy. a We find that it will effectuate the purposes of the Act to require Re- spondent to expunge from Joseph Beaudrot's and Donald Edwards' per- sonnel records, or other files, any reference to their unlawful discharges. We shall modify the Administrative Law Judge's recommended Order accordingly. The Administrative Law Judge properly found that Respondent violat- ed Sec. 8(aXI) of the Act by threatening employees with harsher work- ing conditions, and Sec. 8(a) 3) and (I) by requiring the immediate repay- ment of loans. However, he failed to order that Respondent cease and desist from such activity. We shall modify the Administrative Law Judge's recommended Order to correct this error 264 NLRB No. 40 recting employees not to talk about the Union on Respondent's premises. We also agree with the Ad- ministrative Law Judge that Respondent violated Section 8(a)(3) and (1) by requiring the immediate repayment of loans because of union activities and by discharging Joseph Beaudrot and Donald Ed- wards for their union activities. We do not agree, however, with his failure to find certain other con- duct violative of Section 8(a)(l). 4 In mid-September 1980, ' Respondent's president, Martin Sarner, in an individual meeting in his office with employee Joseph Beaudrot, told Beau- drot that he had intended to give him differential pay for night work but that he could not because of the presence of the Union. On the same day, in an individual meeting with Frank Fox, Sarner asked Fox why he wanted a union and told him that he could not get a raise or a promotion be- cause of the presence of the Union. On October 17, Respondent's production manager, Ralph Ricciardi, told Beaudrot that he could not give differential pay, even though the election was over, because of pending unfair labor practice charges filed by the Union. We find all of the above statements, which blame the loss of various benefits on the union or- ganizing campaign, to be violative of Section 8(a)(l). We further find that Respondent violated Section 8(a)(l) by its interrogation of Fox. On September 23, Ricciardi asked employee Thomas Colvell whether or not he was for the Union and told him that if the Union comes in "it will kill us." We find that by these comments Re- spondent violated Section 8(a)(l) by interrogating Colvell as to his union sympathies and by implying that the facility would be closed if the Union suc- ceeded. As found by the Administrative Law Judge, on September 8, Sarner stated to his assembled em- ployees that the Union would probably make him cut back in help. We find that this statement consti- tuted a threat to reduce the employee complement in violation of Section 8(a)(l). On October 14, Ricciardi approached employee Donald Edwards at his work station and told him that he was going to get him for trying to close down the Company. He also told Edwards that he was a sneaky bastard and that he would have to do his job 100 percent because if he made any mis- 4 All of the following violations were alleged in the complaint but were not discussed by the Administrative Law Judge. The General Counsel excepted to the Administrative Law Judge's failure to find these alleged violations. All of our findings with respect thereto are based on uncontradicted testimony. Thus, we find no necessity for a credibility res- olution by the Administrative Law Judge. Douglas Aircraft Company, a Component of McDonnell Douglas Corporation, 238 NLRB 668, 671 at fn. 20 (1978). enfd. 655 F.2d 932, 938 (9th Cir. 1981). 5 All dates refer to 1980 unless otherwise specified. 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD takes there would be no one there to protect him anymore. These statements constitute a threat of discharge and other reprisals and are violative of Section 8(a)(l). During the week of September 15, in an individ- ual meeting Sarner told employee Donald Edwards that he knew Edwards was the "Union's biggest supporter" and that he had to watch what he said to Edwards because anything he said would "go right back to the Union." We find that, in making such statements, Sarner violated Section 8(a)(1) by creating the impression that Respondent was keep- ing under surveillance the union activities of the employees. 6 2. We agree with the Administrative Law Judge's finding that Frank Fox was discharged be- cause of excessive lateness and absences and not for his union activities." Regarding the latter, the Ad- ministrative Law Judge found "the only credible evidence" to be Fox's signing of an authorization card. In her exceptions, the General Counsel con- tends, inter alia, that the Administrative Law Judge erred in failing to find that Fox worked on October 3, 6, 7, 8, 9, and 10, the workdays just before his discharge on October 10. The record reveals that he did not work on October 3; but that he did work October 6 through 9 and that he was on time; and that he worked on October 10, was 6 hours late, and did not call in to notify Respondent that he would be late. Thus, while it is true that Fox did work most of the week just before his dis- charge, his record in the 3 weeks preceding that week was very poor. During the week of Septem- ber 15, he was absent once and late twice; during the week of September 22, he was absent once and late four times; and, during the week of September 29, he was absent three times and late twice. In light of this poor track record, and the limited nature of Fox's union activity, we find that the General Counsel has failed to establish by a pre- ponderance of the evidence that Fox was dis- charged for discriminatory reasons rather than for excessive absences and lateness. 3. As previously noted, the Administrative Law Judge properly found that Respondent engaged in numerous violations of the Act in its effort to defeat the Union. These include interrogations; threats of plant closure, loss of benefits, and harsher working conditions; prohibition against talking about the Union on Respondent's premises; 6 Although the Union informed Respondent by letter that Edwards was part of the "in-house" organizing committee, five other employees were so named and the record will not support a finding that it was common knowledge that Edwards was "the biggest" union adherent. Compare Schrementi Bros., Inc., 179 NLRB 853 (1969). 7 However, we find it unnecessary to pass on the statements in fn. 12 of the Administrative Law Judge's Decision. requirement that loans be immediately repaid; and discharges of two employees. In addition, we have found herein further violations of the Act including more instances of interrogation, statements blaming the loss of benefits and promotions on the Union, additional threats of plant closure, unspecified re- prisals, discharge, reduction of employee comple- ment, and creation of the impression of surveil- lance. The Administrative Law Judge further found that, prior to September 3, a majority of the em- ployees in the appropriate unit had designated, by means of valid authorization cards, the Union as their bargaining representative, that Respondent re- ceived a demand for recognition on September 23, and that Respondent refused the Union's demand on that date. He concluded that the unfair labor practices that he found "eroded the Union's estab- lished majority and rendered it unlikely that even with the aid of conventional remedies a fair elec- tion could be held in the future." Therefore, based on the authorization cards, he recommended issu- ance of a bargaining order. We agree that a bar- gaining order is necessary to remedy fully Re- spondent's unlawful conduct and to effectuate the policies and purposes of the Act. The Board has long recognized that certain con- duct. such as threats of plant closing and loss of employment, is among the most serious and fla- grant form of interference with Section 7 rights. E.g., Irving N. Rothkin d/b/a Irv's Market, 179 NLRB 832 (1969), enfd. 434 F.2d 1051 (6th Cir. 1970). The Supreme Court has agreed that such threats are among the less remediable unfair labor practices. NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 611, fn. 31 (1969). The unlawful dis- charge of union adherents is misconduct which the Board and courts have long classified as going "to the very heart of the Act." See, e.g., N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (4th Cir. 1941). As the Second Circuit has noted, these "hallmark" violations are likely "to have a coer- cive effect on employees and to remain in their memories for a long period." N.L.R.B. v. Jamaica Towing, Inc., 632 F.2d 208, 213 (1980). Here, Re- spondent engaged in extensive unfair labor prac- tices, several of which clearly constitute "hall- mark" violations: two threats of plant closure, one of which was made to all the employees assembled; a threat of reduction in the employee complement, again made to all employees; a threat of discharge; and actual discharge of two principal union advo- cates. The court stated in Jamaica Towing that such "hallmark" violations will support the issuance of a bargaining order unless some significant mitigating circumstances are present. 370 LARID PRINTING, INC. No such circumstances exist in this case. To the contrary, we note that the unit here was comprised of only 19 employees and that many of the viola- tions were committed by Respondent's president, Sarner. Clearly, an employer's unlawful conduct is heightened when it is directed at such a relatively small employee complement and when it is com- mitted by a high-level management official. In concluding that a bargaining order is warrant- ed here, we have followed the Supreme Court's ad- monition to consider "the extensiveness of [Re- spondent's] unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." NL.R.B. v. Gissel, supra at 614. The unfair labor practices' effect has been set forth above. With regard to the likelihood of recurrence, we note that immediately after receiving notice of the union campaign Re- spondent embarked upon what the Administrative Law Judge termed "a course of conduct designed to thwart the Union's efforts." This unlawful con- duct did not cease with the Union's loss of the Oc- tober 10 election, but continued during the pend- ency of the Union's objections when Respondent unlawfully discharged employees Beaudrot and Ed- wards. Given the swiftness with which Respondent reacted to the organizational effort and the fact that additional violations were committed during the postelection period, the likelihood of Respond- ent again engaging in illegal conduct is clearly present. Thus, we are convinced, given the nature and extent of Respondent's unfair labor practices, that traditional remedies would be unlikely to dissipate the effects of Respondent's unlawful conduct. We therefore conclude, in agreement with the Admin- istrative Law Judge, that majority employee senti- ment (reflected by valid authorization cards) will be better protected by a bargaining order than by direction of an election. AMENDED CONCI USIONS OF LAW Insert the following as paragraph 7 and renum- ber consecutively the remaining paragraphs: "7. By threatening employees with discharge, harsher working conditions, reduction of the em- ployee complement, and other reprisals because of their union activities; by blaming the loss of bene- fits and promotions on the presence of the Union; and by creating the impression that employee union activity is being kept under surveillance, Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Larid Printing, Inc., Deer Park, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Insert the following as new paragraphs l(e), (f), (g), and (h) and consecutively reletter the re- maining paragraphs: "(e) Blaming the loss of benefits and promotions on the presence of the Union. "(f) Threatening employees with harsher work- ing conditions, discharge, reduction of the employ- ee complement, and other reprisals because of their union activities. "(g) Creating the impression that employee union activity is being kept under surveillance. "(h) Requiring the immediate repayment of loans because of union activity." 2. Insert the following as new paragraph 2(c) and reletter consecutively the remaining para- graphs: "(c) Expunge from Joseph Beaudrot's and Donald Edwards' personnel records, or other files, any reference to their discharges and notify them in writing that this has been done and that evi- dence of these unlawful discharges will not be used as a basis for future personnel actions against them." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on October 10, 1980, in Case 29-RC-5139 be, and it hereby is, set aside, and that the petition in Case 29-RC-5139 be, and it hereby is, dismissed. 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 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. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten our employees with plant closure or the loss of benefits because 371 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD they choose to be represented by a union or otherwise engage in union activities. WE WIL.L NOT in a discriminatory manner direct our employees to refrain from discussing union matters on our premises. WE WILL NOT discharge or otherwise dis- criminate against our employees in regard to any term or condition of employment, because they become members of or engage in activi- ties on behalf of Local i, Amalgamated Lithographers of America, affiliated with In- ternational Typographical Union, AFL-CIO, or any other labor organization, or because they engage in concerted activities protected by Section 7 of the Act. WE WILL NOT blame the loss of benefits and promotions on the presence of the Union. WE WILL NOT threaten our employees with harsher working conditions, discharge, reduc- tion of the employee complement, or other re- prisals because of their union activities. WE WILL NOT create the impression that our employees' union activity is being kept under surveillance. WE WILL NOT require the immediate repay- ment of loans because of union activity. WE WILL NOT refuse to bargain in good faith with Local 1, Amalgamated Lithogra- phers of America, affiliated with International Typographical Union, AFL-CIO, as the exclu- sive representative of all the employees in the appropriate unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to re- frain from engaging in any or all the activities specified in Section 7 of the Act. These activi- ties include the right to self-organization, the right to form, join, or assist labor organiza- tions, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILl offer Joseph Beaudrot and Donald Edwards immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, plus interest. WE WILL expunge from Joseph Beaudrot's and Donald Edwards' personnel records or other files any reference to their discharges, and notify them in writing that this has been done and that evidence of their unlawful dis- charges will not be used as a basis for future personnel actions against them. WF WILI., upon request, recognize and bar- gain collectively in good faith with Local 1, Amalgamated Lithographers of America, affili- ated with International Typographical Union, AFL-CIO, for the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employ- ment, and WE Wit 1, upon request, embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees employed at our Deer Park facility, exclu- sive of office clerical employees, guards and supervisors as defined in the Act. LARID PRINTING, INC. DECISION STATIEM.EN1 OF I HF. CASE D. BARRY MORRIS, Administrative La", Judge: This case was heard before me in New York City on June 15 through 18, June 30, and July I and 2, 1981. Charges were filed on September 12 and October 27, 1980, and February 5, 1981, by Local 1, Amalgamated Lithogra- phers of America, affiliated with International Typo- graphical Union, AFL-CIO (herein called the Union). Complaints were issued on October 24 and D)ecember 31, 1980, and March 31, 1981, alleging that Larid Print- ing, Inc. (herein called Respondent), violated Section 8(a)(1). (3), and (5) of the National Labor Relations Act. as amended (herein called the Act). Respondent filed an- swers denying the commission of the alleged unfair labor practices. On September 5, 1980,1 the Union filed a representa- tion petition in a unit of all lithographic production em- ployees employed by Respondent. On September 23 the parties entered into a Stipulation for Certification Upon Consent Election in a unit including all full-time and reg- ular part-time production and maintenance employees employed by Respondent at its Deer Park location. Pur- suant thereto a secret-ballot election was held on Octo- ber 10. Of the approximately 19 eligible voters, 19 valid ballots were cast, 4 of which were challenged. Of the 15 valid votes counted, 10 were cast against, and 5 were cast for, the Union. On October 16 the Union filed timely objections to the election. On December 31 the Acting Regional Director for Region 29 issued a Report on Objections and an order consolidating cases and notice of hearing. With re- spect to the objections to the conduct of the election, the Acting Regional Director recommended that Objections 3, 6, and 7 be overruled. Inasmuch as Objections 1, 2, 4, All dates refer to 1 I1), unless otherwise specified. 372 LARID PRINTING, INC. and 5 were substantially identical to issues involved in Cases 29-CA-8299 and 29-CA-8409, the Acting Region- al Director directed that the matters be consolidated for hearing. The cases were consolidated for the purpose of hearing, ruling, and decision by an administrative law judge. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs were filed by the General Counsel and Respondent. Upon the entire record of the case, including my ob- servation of the witnesses, I make the following: FINI)INCGS OF FAC I 1. THE BUSINESS OF RESPONDIENT Respondent, a New York corporation, with its princi- pal office and place of business in Deer Park, New York, is engaged in the production, sale, and distribution of printed materials and related products. During the 12 months preceding the issuance of the complaints. Re- spondent directly sold goods valued in excess of $50,000 from its plant in New York to consumers located in States other than New York. Respondent admits that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I so find. II. I tH LtABOR ORGANIZA I ION INVOI.VED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES Based upon the allegations in the complaints, the issues in this proceeding are whether (1) Respondent violated Section 8(a)(1) of the Act through interrogation and threats of plant closure and loss of benefits; (2) it violat- ed Section 8(a)(l) and (3) of the Act by requiring the im- mediate repayment of outstanding employee loans; (3) it violated Section 8(a)(1) of the Act by directing its em- ployees not to talk about the Union on company time; (4) it violated Section 8(a)(3) of the Act by discharging three employees because of their union activities; and (5) it violated Section 8(a)(5) of the Act by refusing to rec- ognize and bargain with the Union. IV. THE ALLEGED VIOLATIONS OF SECTION 8A)( I) AND (3) A. The Facts I. Background Respondent is a manufacturer of business forms. In January 1980 it moved from Manhattan to Deer Park, New York. At its Deer Park facility Respondent em- ployed 19 production and maintenance employees. Man- agement consists solely of Martin Sarner, president, and Ralph Ricciardi, production manager. 2 2 While Respondent denied in its answer that Ricciardi is a supervisor within the meaning of Sec. 2(11) of the Act. the record abounds with evi- dence of Ricciardi's supervisory status. The record contains evidence that Ricciardi hired employees, assigned work, gave raises, and granted over- In April one of Respondent's employees contacted Joseph Cincotta, vice president of the Union, and re- quested that he meet with Respondent's employees. In response thereto, on May 9 Cincotta met with 10 of Re- spondent's employees at a local Howard Johnson's res- taurant. At that meeting Cincotta spoke to the employees about various aspects of the union organizing campaign. He informed them of the protection afforded by an "in- house" committee letter which would notify Respondent of those employees who were active in the union orga- nizing campaign. At the meeting Cincotta explained the purpose of the union authorization cards and handed such cards to each of the 10 employees. Each employee signed a union authorization card in Cincotta's and each other's presence and handed it back to Cincotta at that time. On August 8, at the request of one of Respondent's employees, Cincotta again met with Respondent's em- ployees at Matty T's, another local restaurant. Cincotta explained the purpose of the union authorization cards and solicited such a card from an additional employee. Cincotta again discussed the "in-house" committee letter and left union authorization cards and "mailers" with Donald Edwards. Thereafter, Edwards solicited union authorization cards from six employees. Edwards gave two cards to Joseph Beaudrot, who worked on the night shift, to give to two other-night shift employees. Beau- drot explained the purpose of the cards to the two night- shift employees, who then signed the cards and returned them to Edwards.3 On September 3 the Union mailed the "in-house" com- mittee letter and a demand for recognition letter to Re- spondent. The "in-house" committee letter contained the names of six employees: Joseph Beaudrot, James Cantu, Donald Edwards, Walter Martin, John Ognosky, and Seymour Schnitzer. Respondent received the letters on September 8. 2. Interrogation and threats of plant closure and loss of benefits Donald Edwards credibly testified that, on the day the committee letter was received by Respondent, Ricciardi asked him if he had contacted the Union. After answer- ing in the affirmative, Edwards credibly testified as fol- lows: And then [Ricciardi] asked me if I wanted a union, and I replied yes. Then he went over to James Cantu, asked him the same two questions. After Jimmy gave the answer yes, he went over to Walter Martin's machine, and asked him the same two questions. And then when Walter answered, he started screaming at him, cursing at him, calling him a scum bag and a traitor. time. Ricciardi himself testified that he supervises the employees, gives raises, assigns work, and hired an employee. In its brief Respondent does not contend that Ricciardi is not a supervisor 3 Each of the 17 authorization cards was authenticated by either the signer or the solicitor Respondent offered no evidence to refute the au- thenticity of any of the cards, nor does Respondent contest their authen- ticity in its brief 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 15 minutes later, Ricciardi returned to the pro- duction floor and told everyone to shut down their ma- chines and go into Sarner's office. With respect to the meeting that then took place, Edwards credibly testified: Q. Can you tell us what Martin Sarner said to you and the other employees gathered there? A. He opened the meeting by saying, "I received a letter from Local 1," stating that we wanted a union. And that-he said if this is what we wanted, this is what we could have. And he went on to say "Let me tell you what's going to happen if the union is voted in." First he said that if the union gets voted in, he was going to cancel our medical benefits. Then he said after that the union would probably make him cut back in help 4 because ev- erybody would have a specific job title. Then he said that anybody who owed him money [would] have to pay him back the following day-meaning the day after we were called into the office. Then he said, "Believe me, I'm not afraid of any union and no union can tell me to keep my doors opened." Edwards also credibly testified that Sarner asked each person present whose name was on the committee letter why he wanted a union. Approximately I week later, during the week of Sep- tember 15, Respondent held individual meetings with all of its employees. Ricciardi called each employee individ- ually from the production floor and into a meeting with himself and Sarner. At the meeting with Edwards, Sarner told Edwards that he knew that Edwards was the "union's biggest supporter" and Sarner had to watch what he said to Edwards because anything he said would "go right back to the union." Sarner asked Edwards what he thought a union election meant and concluded the meeting by asking Edwards, "Really, Don, why do you want a union anyway?" Colvell and Fox corroborated Edwards' testimony. Colvell stated that in early September Ricciardi called everyone in for a meeting with Sarner. Colvell credibly testified as follows: Q. As best you can, tell us what Mr. Sarner said and what anyone else said during the course of this meeting? A. Well, we all came in and Mike said, I just re- ceived this letter in the mail from the union and I would like to know why you want a union. No one had anything to say, no one responded. He said, okay, I'll go down the list; on the letter there were six or seven names of people signed which were pressmen. He started going down the list. I find that onl September 8 Respondent engaged in in- terrogation by questioning employees as to why they wanted a union. In addition, Respondent threatened the employees with loss of medical benefits because of their union activities. Also, by the statement "no union can 4 The General Counsel's motion to correct the transcript is granted The word "health" should read "help." tell me to keep my doors opened," Respondent implied that the facility would be closed if the Union succeeded. 3. Repayment of loans At the September 8 meeting Sarner told the employees that any outstanding loans would have to be repaid im- mediately. 5 In this connection, Beaudrot stated that, after Respondent received the committee letter, "Ralph Ric- ciardi came over to me and he told me that Marty wanted his money back." Beaudrot credibly testified as follows: Q. Now did you speak to Martin Sarner about this loan? A. Yes I did. I went in the next day, and I told him I didn't have the money to pay him back. Q. How much money was involved? A. $225 Q. Could you relate that conversation you had with Mr. Sarner? A. Yes. I went in there and I asked him if I could talk to him, and said that I just didn't have the money to pay him back. Q. What did he say? A. He said that I'll have to give it back because he can't have any money out because of the union. Sarner conceded that the terms of the loans required that $25 was to be deducted each week from the employ- ee's pay. The immediate repayment was, thus, contrary to the terms of the loans. I find that Respondent required the immediate repayment of loans by the employees be- cause of their union activities. 4. No solicitation Paragraph 12 of the complaint in Case 29-CA-8409 al- leges that Respondent directed its employees not to talk about the Union on company time, although it allowed its employees to discuss other matters on company time. Edwards credibly testified that approximately I week before the election Ricciardi told him, "I don't want you campaigning in the shop. If you want to campaign, do it on your own hours." Prior to that time, so long as it did not interfere with the employees' work, they were per- mitted to discuss any subject. Cantu, Respondent's wit- ness, corroborated Edwards' testimony. He testified that Ricciardi said "he didn't want to hear union talk in the shop." However, the employees remained free to discuss other subjects. 6 I find that approximately I week before the election Respondent told the employees not to campaign "in the shop." Employees were permitted to continue to discuss other subjects, to the extent such discussions did not con- flict with their work. ' Edwards, Colvell, and Fox so testified. 6 Fox testified that Ricciardi told him "there were to be no discussions of the union in the shop on my time, or their time." 374 LARID PRINTING, INC. 5. Discharge of Beaudrot Joseph Beaudrot began his -employment as a pressman with Respondent on April 21. Hc received a $25 pay raise'in May and a $50 raise in July. Beaudrot. who impressed me as a credible witness, tes- tified that prior to the election he had a conversation with Ricciardi in which Ricciardi told him, "I was making a big mistake on bringing the union in." Beau- drot stated that Ricciardi also said "if the union came in and the shop closed down I was going to have a bad name in the industry." In addition, Beaudrot credibly tes- tified that Ricciardi told him "if the union came in he would have to get very technical, and everything would have to be done by the book." Beaudrot, who worked on the night shift, worked on the same press that Cantu used during the day. Beaudrot testified that on November 7, when he came to work, he saw that Cantu "as cleaning the machine which Beau- drot would normally use. Beaudrot testified as follows: [W]hen Ralph told me that I had to go over to the clean press that had just been washed up, I found it a little funny, cause Jimmy Cantu had just washed it up. So I started-I just chuckled to myself a little, and Ralph turned around and said, what's so funny. I said, you know, I just thought it was funny. Jimmy just cleaned up the press for nothing. And he just said, well, I'm sick and tired of your bull-, and I'm going to fire you. Beaudrot testified that a week later he went back to Respondent "to find out why I was fired and if they were going to let me collect unemployment insurance." He stated that Ricciardi then told him that he was fired for "not enough production and being uncooperative." Ricciardi testified that Beaudrot's production dropped and that he was using an excessive amount of "blankets" on the press.7 In addition, Ricciardi testified that Beau- drot ran several jobs incorrectly which required that the printing be done over again. Beaudrot was one of the leaders in the union cam- paign. He signed the "in-house" committee letter and was responsible for obtaining authorization cards from the other employees on the night shift. His work had been satisfactory, which was evidenced by the raises he received in May and July. His discharge because he "chuckled" and the reasons given a week later, of insuffi- cient production and being uncooperative, were mere pretextual reasons. I believe that the actual reason for his discharge was his activity on behalf of the Union. 6. Discharge of Edwards Donald Edwards began his employment with Re- spondent in September 1979. He testified that during his job interview he was told that he would be working on 7 While Beaudrot denied that his use of blankets was excessive. Ric- ciardi's testimony was corroborated by Cantu. Itoweer, I do not credit Cantu's testimony I found him to be evasive in his answers on cross-ex- amination In addition, Canru testified that from April through November 7 he received a note from Iteaudrot concerning the press every day of the week. However, Cantu was out sick because of an injury for 2 months during that period the day shift. His initial salary was $185 per week. He was granted several increases of $25 and in August 1980 was granted a $50 raise, to bring his salary up to $325 per week. He signed an authorization card on behalf of the Union, solicited cards from approximately six other employees, and signed the "in-house" committee letter. He was known by Sarner as the Union's "biggest sup- porter." Edwards testified that when he came to work on No- vember 10 Ricciardi approached him and said, "By the way, you're going to be working the night shift." Ed- wards further testified as follows: I asked him why. He said "Because that's where I need you." I said, "Do I have to? He said. Yes." Q. So what happened the rest of that day? A. Well I just worked the rest of the morning then I went to lunch. And after lunch I came back and I told him that I had called home, I had a sick family member. And that I wish he could find somebody else to work the night shift, because he promised me that I'd always be a day man, and I had obligations at home. Q. And did you finish out that day, or what hap- pened that day? A. No. I went home a little earlier. I went home at two o'clock. I felt ill. And Ralph asked me if I would be in tomorrow night to go to work. And I said yes, I would. He also told me that if I couldn't come in tomorrow night, that I should bring in a doctor's note explaining why I can't work. Edward testified that the following day he reported to work in time for the night shift, at 3:45. He testified that he had the following conversation with Ricciardi: And I said, "I'm here to work. You told me to come in for the night shift and I'm here." He goes, "Well there's no work for you." I said, "Well when will there be work?" So I handed him a letter that I had written out explaining that I was willing to help out the company for a brief period. And that I needed to be home and he told me that I would strictly be a day man and I wished that he could find somebody else. And he took the letter and he said to me-he didn't read it-he said to me, "This letter doesn't mean sh-. As far as I'm concerned, you quit." So I said to him, "No. You mean I'm fired." Edwards testified that as he was walking out towards the exit of the building Ricciardi screamed at him, "You're not going to f- this company anymore, Don." Respondent contends that Edwards was not dis- charged but instead that he quit voluntarily. I find, how- ever, that in fact he was discharged. I credit Edwards' testimony that he was told he would work the day shift. This testimony was not controverted by Ricciardi.8 On Ricciardi could not recall whether he promised Edwards that the day shift would be his permanent hours. 375 DECISIONS OF NATIONAL L ABOR RELA It)NS BOARD November 10 Edwards was told to work the night shift unless he brought a doctor's note stating that he would have to tend to his ailing mother. He did not bring such a note and, accordingly, he reported to work the follow- ing day at the start of the night shift. While there may have been a misunderstanding on Ricciardi's part as to Edwards' intentions, Edwards followed the instructions which he was given by Ricciardi. When Ricciardi told Edwards that "there's no work for you" and "as far as I'm concerned, you quit," he, in effect, was discharging him. I find that the alleged reason for his discharge, namely, that he did not report for the day shift, was pre- textual. The true reason was Edwards' activities on behalf of the Union.9 7. Discharge of Fox Franklin Fox was hired by Respondent as a collator helper in August 1980. He was late for work frequently and was warned because of his lateness. In addition, Fox's pay was docked for lateness. While he signed an authorization card on behalf of the Union, his name was not one of those which appeared on the "in-house" com- mittee letter. During the pay period ending September 25, he was absent I day, late 2 days, 29 minutes each, and late I day, 14 minutes. On October I he reported to work 36 minutes late and was absent October 2 through 8. On October 2, because of Fox's poor attendance and lateness record. Sarner decided to discharge him and prepared a letter to that effect. Fox, however, did not report to work or call in the balance of that week. As a consequence, the letter was never delivered and the dis- charge was held in abeyance. On October 10, when Fox reported for work 6 hours late, Sarner renewed his decision to discharge Fox and prepared a letter of termination. When Fox appeared on that day he was told to see Ricciardi. Ricciardi told him that he was discharged but that he could come back at 3 p.m. to vote in the election. At the time of his discharge Fox had been an employ- ee of Respondent for approximately 2 months. I find that his attendance record was poor, that he was absent and late excessively, and that he had been warned about this. The only evidence in the record of his union activities is his having signed an authorization card.1° His name did not appear on the "in-house" committee letter. I find that his discharge was not because of his union activities. In- stead, his discharge was because of his excessive ab- sences and lateness. 9 Ricciatdi's motive is further evidenced by his parting remark to Ed- wards, "You're not going to f- this company anymore." io The General Counsel asserts that Fox's union activities consisted of talking to a "klnown anti-Union employee," Donald Rasmussen, and eating lunch with the "pro-Union group." With respect to Fox's conver- sation with Rasmussen, Fox testified that, while Ricciardi observed the conversiation, there was no way that Ricciardi could have known what the two were discussing. Concerning eating lunch with the "pro-Union" group, Fox conceded that there was an interchange of people between the "pro-Union'" and "anti-Union" groups and that "there were always a few people coming over and going back." I do not consider these osccur- rences as evidence of Fox's activities on behalf of the Union. B. Discussion and Conclusions 1. Violations of Section 8(a)(l) On September 8, soon after its receipt of the Union's demand for recognition and the "in-house" committee letter, Respondent began a course of conduct designed to thwart the Union's efforts. Ricciardi immediately interro- gated three signatories to the "in-house" committee letter. Sarner then called all employees into his office and interrogated certain signatories to the "in-house" committee letter. During this meeting. Sarner threatened his employees with loss of benefits and plant closure. About a week later Sarner interrogated Edwards and shortly thereafter Ricciardi threatened Beaudrot with harsher working conditions. " These actions constitute violations of Section 8(a)(1) of the Act. Modesri Brothers. Inc., 255 NLRB 911 (1981); Statler Industries. Inc., 244 NLRB 144 (1979). In late September, Respondent instituted and discri- minatorily applied a no-solicitation rule. Thereafter, Re- spondent's witnesses confirm that the employees were permitted to talk about any subject except the Union. Such action violates Section 8(a)(l) of the Act. Liberty Nursing Homes, Inc., d/b/a Liberty HIouse Nursing Home of Lynchburg. 245 NLRB 1194 (1979). 2. Violations of Section 8(a)(3) a. Repayment of loans At the meeting with employees held on September 8, Sarner announced that all outstanding loans had to be repaid immediately, contrary to the terms of the loans. According to the repayment schedule, $25 a week was to be deducted from the employee's net pay. Sarner's an- nouncement occurred during a meeting where he re- ferred to the employees' other terms and conditions of employment and where he threatened various reprisals for the employees' support of the Union. Respondent does not deny that the loans to Beaudrot and Cantu were repaid in response to such announce- ment. Respondent contends, however, that these were merely personal loans by the Company's president and were not a benefit of employment. The record estab- lishes, however, that only employees received such bene- fit. As such, the loans constituted an "emolument of value" which accrued to "employees out of their em- ployment relationship." N.L.R.B. v. Central Illinois Public Service Co., 324 F.2d 916, 919 (7th Cir. 1963). The cessation of such benefit because of union activities con- stitutes a violation of Section 8(a)(3) of the Act. b. Discharges I have found the discharges of Beaudrot and Edwards to be pretextual. While Ricciardi told Beaudrot a week after he was discharged that he was fired for "not enough production," Respondent did not introduce into evidence production records, even though Respondent admitted that such records were maintained. With re- ' Ricciardi told Beaudrot "if the Union came in he would have to get very technical, and l:verything would have to be done by the book." 376 LARID PRINTING, INC. spect to Edwards, Respondent argues that he was not discharged. but instead resigned voluntarily. I have found otherwise. He was discharged supposedly for not coming to work at the proper time, which reason I find to be pretextual. Concerning Fox, I have found that he was discharged because of excessive absences and lateness. The only credible evidence in the record of his union activities is his having signed an authorization card, something which 17 of the 19 employees did. He was not one of the signatories to the "in-house" committee letter. With respect to Fox, the General Counsel asks that I draw an adverse inference from Respondent's refusal to produce timecards belonging to all the employees. Pre- sumably the General Counsel would argue that the time- cards of the other employees may also show excessive lateness and absences, yet those employees were not dis- charged. While I grant the General Counsel's request, and do draw an adverse inference from Respondent's re- fusal to produce the records, that does not provide the missing link to establish a violation as to Fox.' 2 There is still no showing that Fox was discharged for his union activities. Accordingly, the discharges of Beaudrot and Edwards constitute violations of Section 8(a)(3) of the Act. The allegation as to Fox is dismissed. v. THI- AI.I.iGED VIOl AI ION OF SECTION 8(A)(5) A. The Appropriate Unit There is no dispute, and I find, that the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is as follows: All production and maintenance employees of Re- spondent employed at its Deer Park plant, exclusive of office clerical employees, guards and all supervi- sors as defined in Section 2(11) of the Act. B. The Majority Status Of the 19 employees in the unit, 17 signed authoriza- tion cards. Each of these cards was authenticated either by the signer or by the solicitor. Accordingly, I find that the Union has been designated as the collective-bargain- ing representative of a majority of the employees in the appropriate unit. C. The Request for Recognition Respondent admits that on September 23, 1980, the Union requested that Respondent recognize it as the ex- clusive collective-bargaining representative of Respond- ent's employees in the appropriate unit. Respondent fur- ther admits that on the same day it refused the Union's request. 12 An adverse inference may not be used as a substitute for affirmative evidence in establishing a prima facie case. American Service Corp., 227 NL.RB 13, fn. 1 (1976). See 2 Wigmore, Evidence, § 290, p. 219 (1979); McCormick, "Handbook of the Law of Evidence," § 272, p. 658 (2d ed. 1972). D. The Refusal to Bargain In N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575, 614-615 (1969), the United States Supreme Court author- ized the Board to issue a bargaining order in certain fac- tual contexts, including those meeting the test set forth below: In fashioning a remedy in the exercise of its discre- tion, then, the Board can properly take into consid- eration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of tradi- tional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargain- ing order, then such an order should issue. The standard quoted above has been adequately sub- stantiated on this record. The independent violations of Section 8(a)(1) as well as the immediate recall of employ- ee loans not only interfered with the election but are of sufficient magnitude to taint the atmosphere in which a rerun election could be conducted. The unlawful dis- charges after the election buttress the unlikelihood that a fair rerun election could be held. Accordingly, as the unfair labor practices found herein eroded the Union's established majority and rendered it unlikely that even with the aid of conventional remedies a fair election could be held in the future, I find that "employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." As the Union's majority is clear. I find that on Sep- tember 23, 1980, Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain in good faith with the Union as the representative of the employ- ees in the appropriate unit. VI. OBJECTIONS 10TO THE ELECTION Objections 1, 2, and 5 deal with the interrogation, threats, requirement to repay loans, and no-solicitation rule, as to which I have found that Respondent violated Section 8(a)(1) and (3) of the Act. Accordingly, those objections are sustained. Objection 4 relates to the dis- charge of Fox, which allegation I have dismissed. Conse- quently, Objection 4 is overruled. Accordingly, I recommend that the election be set aside, that Case 29--RC-5139 be dismissed, and that all proceedings in connection therewith be vacated in view of my recommendation that a bargaining order issue. CONCI USIONS OF LAW I. Respondent is an 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 mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees of Re- spondent employed at its Deer Park plant. exclusive of 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical employees, guards and ail supervisors as defined in Section 2(!1) ol the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since September 23, 1980, the Union has been and now is the exclusive representative of the em- ployees in the above-mentioned appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By interrogating employees about their union activi- ties; by threatening plant closure and the loss of medical benefits in order to discourage union activities; and by directing employees not to talk about the Union on Re- spondent's premises, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By requiring the immediate repayment of loans be- cause of union activities and discharging Joseph Beau- drot and Donald Edwards for their union activities, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. By refusing since September 23, 1980, to recognize and bargain collectively with the Union as the exclusive representative of the employees described in paragraph 3, above, while engaging in conduct which undermined the Union and prevented a fair election, Respondent has engaged in unifair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not violate the Act in any other manner alleged in the complaints. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist threrefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having discharged Joseph Beaudrot and Donald Edwards in violation of the Act, I find it neces- sary to order Respondent to offer them full reinstatement to their former positions, or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any losses of earnings that they may have suffered from the time of their termination to the date of Respondent's offers of reinstatement. Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).13 As I have also found that Respondent unlawfully re- fused to bargain with the Union, I shall further recom- mend that Respondent be ordered to bargain collectively with the Union as representative of its production and maintenance employees. 'e See, generally, Isis Plumbing & Heating Co., 138 NLRB 716, 717- 721 (1962). Finally, because of the egregious and pervasive unfair labor practices committed by Respondent, it is recom- mended that a broad order issue in this case.' 4 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 recom- mended: ORDER ' The Respondent, Larid Printing, Inc., Deer Park, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union ac- tivities. (b) Threatening employees with plant closure or loss of benefits of their union activities. (c) Directing employees not to talk about the Union on the Company's premises. (d) Discharging or otherwise discriminating against employees in regard to terms or conditions of employ- ment, because of their union activities. (e) Refusing to bargain in good faith with Local 1, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO, as the exclusive representative of all employees in the appropri- ate unit described above in Conclusion of Law 3. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the Union as the exclusive representative of the em- ployees in the appropriate unit described above in Con- clusion of Law 3 and, upon request, embody in a signed agreement any understanding reached. (b) Offer Joseph Beaudrot and Donald Edwards imme- diate and full reinstatement to their former positions, or, if such positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them w hole for any loss of earnings, in the manner set forth above in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with parapraph (b) above. (d) Post at its facility in Deer Park, New York, copies of the attached notice marked "Appendix."' 6 Copies of 14 Palby Lingerie, Inc., 252 NLRB 176 (1980). J5 In the event no exceptions are filed as provided in 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, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. i' In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 378 I ARID PRINTING, INC. said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall he taken by Respondent to ensure that said notices are not altered. defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. IT IS I:URFHER ORDERED that the election held on Oc- tober 10, 1980, in Case 29--CA-5139 is hereby set aside, that the petition therein is dismissed, and that said case is hereby remanded to the Regional Director for Region 29 for proceedings consistent herewith. 11 IS FtRI HER ORDERED that those allegations of the complaints as to which no violations have been found are hereby dismissed. 379