Crown Cork & Seal Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crown Cork & Seal Company, Inc. and United Steelworkers of America, AFL-CIO, CLC. Cases I-CA-7743 and I l-CA-7978 November 17, 1980 DECISION AND ORDER HiY CHlAIRMAN FANNING ANI) M MIKRS JENKINS ANI) PI NIII.O ()n March 28, 1980, Administrative Law Judge Alvin Lieberman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings, 2 and conclusions:' of the Administrative Law Judge ' Respndel filed with the Adllinistrative Law Judge ia motion to strike certait portitons e the (iieneral Counsel's hrief to tile Admillistra- tive La,;w Judge thal dealt with the prior erlploynlent iof its felltr per- sonnel managcr, Chester Martin The Adminllistrative L.aw Judge. ml I it 4 of his Decision, denlied Respondent ' motionl although he "made no cretli- hility findings conlceriTug Martill based in his frorrer remployieit ' Respondent has excepted toi this prltion of the Admlilistrative Law Judge's I)eciioln, ad continlues to assert that such niaterial should be strickenl from the General Counlsel's brief. We lnote, hweVer, tat tile General C(ounlsl has nott filed exceptitlls or brief with te IBoard aild lthe General Counisel's brief filed with the Administrative I.aw Judge is not formally bheftre us I these circumstances, and particularly sintce Re- spondenl has nlt suffered any prejudice by thie Admlisitrative L.aw Judge's ruling, we shall deny tle motion. In passing, hever, we ote that, in our ie w, Martin's past emplo yment history is irrelevant to ally issue in this case and it has played lno part in our analysis of the record 2 Respondent has excepted to certain credibility findings made by the Administrative aw Judge. It is the Bolard's established policy nol to overrule an adnlinistratise law judge's resolutions with respectl to credi- bility utnless the clear preponlderalnce of all of the relevanit evidence con- vinces us that the resolutions are incorrect. Slandord Dry Wall Products, Inc., 91 NIRB 544 (1950), einfd 188 F.2d 362 (3d Cir 1951). We have carefully exattined the record ad find it( basis for reecrsing hls findiigs. a I the absence of exceptio,s. we adopt pr firrma the Adninlisl-alive I-aw Judge's findings that Respondent did not iolate Sec. 8(a)(1) oif the Act by (1i soliciting reports from employees on ,other employees' union activity; and by (2) observing the Union's handbilling employees ill front of the plant The Admlinistrative aw Judge fiuind that Responldent ilated the Act by discharging Henry McClain In this regard. Respilidelnt excepts to the Admilnistrative L.aw Judge's failure it credit lie testnitinlly tif Su- pervisor Asialos over that of McClai concerning an incident tccurriig on Nosecmhcr 6, 1971. Respondent argues that the Administrative I.aw Judge iginored the testimony f impartial emplloyee tobserver Iarry HIooks concerning the incidenlt We agree with Resplonident that if ooks' testimonliy was not mentilioned by the Adilinistrative Law Judge nehle- less, cinsiderationl of that testiminy does tnoti support Astalos' versiell At fil 4 of his D)ecisin, the Adminislralive Law Judge expressly noted that all argumenlts raised by the parties i their briefs r at hearinig had bee carefully weighed ad considered though they might not he discussed lHence, it is not clear whether his timissioin (if a discussi n of 11 ooks' testi- miony was inadvertenlt or not In ay ctnt, contrary to Responldetl. rwe do not find that H oks' testinlonly supports Asalos TI'he Adminstratise I.aw Judge found that McClain ad Astalols had an altercation oIve McClaill's alleged unwilliniginess t d certain work in a proper mainner. I'he incident started n the planlill loor and, after certainl words cwre ex- changed, Astalos tirdered McClain into his iffice I he incident conttitued 253 NLRB No. 35 and to adopt his recommended Order, as modified herein.4 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, Crown Cork & Seal Company, Inc., Cheraw, South Carolina, its officers, agents, successors, and there untlil Astilhos iold McClai thiat lie ss ,as laking McClain to te planit mrlallager's ficc McClinl thent hecanie ill and, at McClai's request, A.- lalos look McClail to tile firstl id oilice where McChlail was told to go holie ''he Administrative I aw Judge nloted that, cntlary o Astalos' testiiinony, McClaili dLniCte raising his oi0CC to Asials ad shakinlg his fiNt ii his face durinig the incidenl l ooks testified that he hecard Asialos speak to McClain ton the phlatnit floor about ;lai alleged failure to prform ,,ltilc ssork lie thei1 noted Ihill Atalits and McClain wellt nluto Atalos' olice lie admitted h1e could hear iiitEliing Ihat was tIheti said thoulgh lie cllld see the to inllen and surriised "''from I lheir exprcssion Illat hey N was [sic] arguing." looks said he s McClaill pl il a finger at As- Ill);s hile hcey ere talkilng id then the twio came ut f he office. and walked ff, as did Iliooks Ilooks testifiel tlle to nlmen were 5 inches from each olther whenl they were talking While he indicated that he "'thought" something wais going to happen, like "a; fight r solmelhing," hcl thell said hie did nol "klow really what it was. you know ()On rc- direct. McClain as expressly asked about pelintiig his finger and he in- dicated that hc wals poitiitng to he first aid roonl , here he told Astalos fti v utatled t go Consisdcraililon oif llioks' testimony thus doecs rnol estah- lish corrobortalion of A,talit)s' testilltll)> that McClain raised his vsice o Ast ill o Htolks cxpresl, aid he could iiotI hear tile cnversation Ili the office Nr did Hiooks telify thfiat McClaim shook Ilis fist i Astalios' face Rather, he idicatled McC'laill pointed his finger, and McClain supplied at explanationl for hly tie id o Wile looks idicated that he "thought" the two miglt hase a; light . his suppositinll was not supported by ally objective cxidence other than the facl that lhey were standinig close to- gether. WithIout milore and cousidering the Administrative l.aw Judge's general crediting of McClain (see fit 2 oif the Decision),l we do not fiind Ilooks' lestirlnry supportl Astalo s Resplondcnt argues Respoindent has als excepted to the discrediting of Martin whio denied laking lotles while hanldhilhlig tlook place In this connection, Responldeni asserts ha the Administrativ e aw Judge mischaraclerized Martin's tes- liniony As an examlple Resprondent contends tat the Adninisirative L.aw Judge erred i stating Ihat Martin denied being outside te plainl ol July 20 when the tvotelaking allegedly took place We have carefully examined the record with respect to Marlin's testi- ilonty. It is true that Martin was not specifically asked if he was outside the plant lon July 2 H exer, Martin did testify hat he stood oulside the plant when handhilling took place on ne occasionl only. and that was during an afternoon incident. Since the only afternoon handbilling tlook place in June. we find there ssas a reasonable basis fr the Administrative l.aw Judge Ilo take Maritin's testimony as a denial that he wdas outside the plat n July 20. Hence, we are nolt persuaded that Respondent has es- tahlished that the Adnistratie Law Judge mischaracterized Martin's testimony Iil ai;y siglficailo way. li his recommended Order, the Administrative I.aw Judge employed broad injulctive language i ordering Resp(-ndent to cease and desist frotrt egaging Ili ";ani oilhr" unlawful tconduct After applying the starndrds discussed ili tile Ioard's recent )eTision in Ilickmol Iouds. hni' 242 NLRII 1357 1979). fr determininig wether a "''broad" order is warranted, we finld the narrow ijunctive lanlguage, ie. '"any like or re- lated rlarier."'' a sufficientl remedy in this instance and modify the Ad- inurlisiratixe I.;iw Judge's recommended Order accolrdingly. We also nlitdlify the proposed niltice 1 cltfliurm with the prolsisions of the recom- nendcred O)rder Memiber Jenkiins nles Ihal lie would award itecrest n any backpay owed liinry McCt'in oiri the basis (if his pslt ll set ut i Olvmpie M'dical C(irporutiun, 25f0 NL RH 140 119801 31() CROWN CORK & SEAL C()MPANY assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph l(e): "(e) In any like or related manner interfering with restraining or coercing employees in their ex- ercise of the rights guaranteed them in the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer Henry McClain immediate and full re- instatement to his former job or, if that job does not exist, to a substantially similar job, without prejudice to his seniority or other rights and privi- leges previously enjoyed, and make him whole, in the manner set forth in the section of the Adminis- trative Law Judge's Decision entitled 'The Remedy,' for any loss of earnings he may have suf- fered by reason of his unlawful discharge." 3. Insert the following as paragraph 2(d): "(d) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." 4. Substitute the attached notice for that of the Administrative Law Judge. 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 parties had the oppor- tunity to present evidence and arguments, the Na- tional Labor Relations Board has found that we, Crown Cork & Seal Company, Inc., have violated the National Labor Relations Act, as amended. We have, therefore, been ordered to post this notice and to carry out its terms. WE WILL NOT engage, or attempt to engage, in surveillance of any activity carried on by United Steelworkers of America, AFL-CIO, CLC, or any other union. WI Wi lI. NOT engage, attempt to engage, or create the impression that we are engaging in surveillance of your union activity. WE WIl.L NOT fire you, lay you off, suspend you, discipline you in any way, or do anything else to your disadvantage, and WE Wll l NOT threaten to do any of these things, because you joined, helped, supported, or signed a card for United Steelworkers of America, AFL-CIO, CLC, or any other union. WI: Wil. NOr in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by the Na- tional Labor Relations Act. As it has been decided that we fired Henry McClain because he helped and supported United Steelworkers of America, AFL-CIO, CLC, WE wl.l. immediately offer to take Henry McClain back to work for us at his old job or, if that job no longer exists, at a substantially similar job without prejudice to his seniority or other rights and privileges, and wI winl pay Henry McClain any wages he lost because we fired him, plus interest. All our employees are free, without any objec- tion from us, to become or remain or refrain from becoming or remaining members of United Steel- workers of America, AFL-CIO, CLC, or any other union. WE- wit.i respect your right to form any union, to support any union, to help any union, and to deal with us through any union. WE WIL. also respect your right not to do any of these things. CROWN CORK & SF.AI COMPANY, INC. DECISION SlIA IFMENT O1 THF CASk AL.VIN LIEBIERMAN, Administrative Law Judge: The hearing in this proceeding, with all parties represented, was held before me in Cheraw, South Carolina, on the General Counsel's complaint, as amended at the hearing, and amendment to complaint' and Respondent's answer, as amended at the hearing. In general the issues litigated were whether Respondent violated Section 8(a)( ) and (3) of the National Labor Relations Act, as amended. 2 More particularly, the questions for decision are as fol- lows: 1. Did Respondent violate Section 8(a)(1) of the Act by keeping under surveillance employees' union activity and creating the impression that it was doing so; harass- ing and threatening employees; and soliciting reports on employees' union activities? H' ereinafter these pleadings will be referred to jointly as the corm- plaint 2 I pertllnenl part these sections provide: Sec. (l) It shall be an unfair labor practice for an emploer-- (I) to interfere llth. restrain, or coerce employees in the exer- cils of the rights guaranteed in sction 7, (3) h dincrimllation in regard to hire or tenure of emplo) menl to enlcourage or discourage membership in any labtr organi iation Sec 7 insofar ias relesanl states: Stc. 7 Enmplioyees shall have the right to self-orgainilati. to form . join( or ssis lahor organl,;11atl(o. (o bargainl collectiscl5 through rpresentalt\ies of heir II i chlloosing, aid t engage in other concerted acli illCs Ifor the purpose of collectlie halrgalning or tther nmlltuil id r prelte lltin 311 I)tCISI()NS OF NAII()NAI. AlO()R REI.AT'I()NS B()ARI) 2. Did Respondent violate Section 8(a)(3) of the Act by discharging two employees. Henry McClain and Willie Thomas? Upon the entire record," and having taken into ac- count the arguments made and the briefs submittedl 4 I make the following: I. INI)IN1 S Ol IAC('I Respondent, a New York corporation, is engaged at Cheraw, South Carolina, in the manufacture and sale of cans. During the 12 months preceding the issuance of the complaint, a representative period, Respondent sold and shipped goods valued at more than 50,000 to customers located outside the State of South Carolina. According- ly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Rela- tions Hoard is warranted. II. TIHR I ABOR ORGANIZATION INVOI VI) United Steelworkers of America, AFL-CIO. CLC (herein the Union), is a labor organization within the meaning of the Act. Ill. IN ROI)UC'ION N Briefly, this proceeding is concerned with events fol- lowing the institution of the Union's campaign to orga- nize Respondent's employees and become their collec- tive-bargaining representative. Included among these are the discharge of two employees, stated in the complaint as having been violative of Section 8(a)(3) of the Act, Issued iltaneously is scparalc rder corr-hcing obvi)us crrors i Ihe stelnographic raiscripl of tilth hearing in this proceeding. Included in this order ar critlols Ilt lght h Ithe (e l neral C('ounlsel i a imotioll li correctl ite tralnscript 4 Allhough all Ithe rgentients oI the parties and Ihe authoritics cited h) them. whelhcr appearing il their briefs, or made orally al he hcaring, may not he disc ussed. cat:h has been carefully cighed and considered A separate matter concerning the (ileral Cltselc's brief mnlusl ios he adldressed In it he Gcleral Counsel ulrges me to discrcil testin(lny given hy ('hester Marlilln, a itness called hb Respondent, because lie had been prsolnrel Imlanager il' the Vallace, North Carolina plai o J I' Stevenls & Coi., I (Slencll ns l ;. lint heln all lnfair labor practice pr-cceeding agaillt Sceiris ilvoling thai plant was in progress In Ihi, coniection. tile (ictlilal ('ounsel's brief conilainls the fillowing passage: Itli:l g al one lillic heeCl employed bhy the infalmous J.P Sevcens & ('<oilpl. In., it nearh, WalltIc ill si) pw-erful a psilloll ias per- sonlllel manager. it hecolties, clear thaill l Mlrti's feelinigs are lierely ailtl-nlitin le adnlillted i he heei prsotel imaniager a J I' Sc- tes Wllact P'lan t it lti it hell proiCceldings before the Natiotal I ahor Rellitns l ltird r' i er g oltgoing It aplpears that ttllfair labor pr;tilces f'il : Mrlin wherxc\cr he goels Resp(indenlt has mioved lo strike Ihe fhregoilg prtionl o the (ictril Counsel's brief "as heing prejudcll " In opposittill, the (ieneral C('oiin- sel, alhough ,ncedillg that the language complained ofl' h KResplondelI Was '"IC, tha tperattc."'' disclaims anlly itlentiiti ofn a itribilllg 0 Martin a illegal conllduiet li l le cnp Sc h Stesverls tier sol r;cason, she further srates, fr callilig allelititon to Marlir''s ormer asoctati;i ll sllh Sisevels V :;l "ito illustrate [his] bias'" laing said this, the General CUil- Sel pray s that Respi nldtili's ntioln to strike he denied In Iew¥ of the (illeral ('ounlsel's repolse to Responldenit's moitii it will 1not he granted Ns ithstaldig this, it shllould be clearly uderstooi d that I have made rio credlibiliy findings conicerning Martin based on its forne r ernpli )llit h SteLen% Accordligly. i is ordered ihal Rtspt ldeil's illttio strike the p r- liol f he (iClCral ('iOLiscl's ritef here uter 'oisideral(ll ht, aitlid the same hierebt is, denited anid conduct engaged il by Respondent, alleged in the complailt as having fallen within the ambit of Section 8(a)(1). Respondent denies having committed the violations of Section 8(a)(1) of the Act set forth in the complaint. Ad- mittiling the discharges, Respondent asserts that it dis- missed the two employees for cause and that respecting one, Willie Thomas, it had no knowledge before the ter- mination of his employment that he supported the Union. IV. I'RII.IMINARY FINl)INGS 6 A. Res.vpondent's Business As noted, Respondent manufactures cans. It has 27 plants in the United States, including one located in Cheraw, South Carolina.7 All except the Cheraw facility are unionized and Respondent is desirous of maintaining this condition, at least as far as its Cheraw operation is concerned. In this respect, as Gary Burgess, Respond- ent's corporate manager of personnel testified, it is Re- spondent's intention to "do everything legally possible to keep the Union out of the plant." B. 7The Union's Organizing Campaign In April 1978, some 5 months after the plant became completely operational, the Union instituted its campaign to organize the employees working there and to become their collective-bargaining representative. To this end meetings were held: union representatives visited em- ployees at their homes; authorization cards were signed; union badges were given to, arld worn by, employees; and, on several occasions, the Union distributed handbills at the plant entrance. V. '111t AL.I l(;II ) NIAIR I FItOR I'RX(I'ICIS A. Facts, Contentions, and C(n( lu.sionrl Concerning Respondent's Alleged Violations of Sectrin 8(a)(l) of the Act 'The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the Act by keeping under surxcillance cml- ployees' union activity and creating the impression that it was doing so; harassing and threatening employees, and soliciting reports on employees' union activity. These al- legations, denied by Respondent, will be considered below. 1. Soliciting reports on employees' union activity On April 10, 19)78,X while the Union's organizing cam- paign as in progress, Willie Thomas was hired by I oe lt illu o ti' Ihcsc clairied sililtton, of i he Act appears abh-c. ill my statement of the questeions for decision i ''h purpose of Ihese filndinlgs is tim furlllsh a frame of reference \ilht l ll hich Io cliidc'l he' facts rlalinlg i Respittidenl', alleged unfair labor pralicc, 7 Tile es cins wilh s hi Ih this iproceding is coll rned rccturred t11 R- spondcll',s Chcral plintl Acctidillngls . all ref'r'ncl s to "Re',pondclt',l plant" or to t1 e '"plailt" i clatc t1 Rc'polldclt's Cb'hrts facl r A lt dats subsequiell n teluliilc iiltiul stiltig it Y:ar fall xl1hil liq78. 312 CROWN COR()K & SEAI CO()MPANY Chester Martin, then the plant's personnel manager." During the hiring interview Martin explained some as- pects of the job for which Thomas was being hired and other matters relating to his employment. Martin also told Thomas, as the former teatified. that there was no union in the plant that Respondent did "not want a union at [the] plant," and that "if anybody . . bother[ed him] while on the job about joining a union [lie] should notify [his] supervisors or [Martin] and we will undertake to see that this is stopped." As Martin further testified, his statement to Thomas during the em- ployment interview concerning unions was a "set [memorized] speech" he made "verhatinim" to all employ- ees he hired. Thomas gave a different version of what Martin said to him about unions. Thomas related that Martin said "if anyone .. talk[ed] to [him] about the union [he should] let [Martin] know." Martin's testimony regarding his remarks to Thomas as having been a "set speech" he had "memorized"'' and made "verbatim'" to all employees hired by him, being plausible, is credited. For this reason I find that Martin's account of what he told Thomas is correct and Thomas' incorrect. Having credited Marlin in this respect, it must next be determined if his request that Thomas report "on the job" bothersome union activity exceeded the bounds of legality. " I find that it did not In Lutheran Ilospitll of Milwaukee, Inc., 224 NLRB 176, 178 (1976), cnifd. in the respect here under consider- ation 564 F.2d 208 (7th Cir. 1977), it was decided that a similar request cortravened Section 8(a)(1) of the Act because it was not confined to reporting union activity engaged in by employees "during their ... ,orkiig time." Here, on the other hand, Martin made clear to Thomas that lie should report union activity "bother[ing him] while on the job." I construe this as tantamounlt to Martin's requesting Thomas to inform him of such con- duct occurring only during Thomas' % orking time and not generally as was the case in Lutheran Hlospial. Il l'rt'an fMurine Compoany, 247 NLRB No. 73 (1980), such a request was held not to fall within the abit of Section 8(a)(l) of the Act. Accordingly, I conclude that Respondent did not vio- late Section 8(a)(l) of the Act ill the manner here under discussion. My order will, therefore, provide for the dis- missal of paragraph 7(e) of the complaint. 2. Surveillance of union activitytl In support of the Union's organizing campaign union representatives distributed handbills at the plant entrance on June 13, July 20, July 27, and August 2, 178. On these days the distribution took place from about 6 a.m. 1horitas' later dl s,irge is alleged ii the .:onilplanl ! s Ix ng beei stilatisi if Sec H(8 )(3) t Iihc Act I " Regarding lli., Ihe (ilellr, l (,ountel argues 11 brief Ihl , cs n i' Martin's '.'er.,io of [l,) ,.onvsersaio Ilsnh 1Thirttal is crcfiled. it I Ilear l Sil irt t lll i sii Ci i tI l itlsiitllii t Ih rn i, i fi )rilfr O ni o i l hicitors" alltl. thus. ths .as s iiiatlC ofI Sc,- 8ta) I ) it the Act '' it e conmplalllt alleges thll RK splrideit11 ltla d Sc 8(a)( II ,If tilc Act by "Figagliig] li urxliltncc cf ntiplO)tCe ulttll actlvities l his alegailion is grltllltel l 11 tlinltic t lof ceplllndelitl' officlS s hIllc the t[niioin distributed handhills ill the planli to 7:30 a.m. In addition, on June 13 handbills were also distributed at 3:3() p.m. 12 On the morninigs on which leaflets were passed out, except August 2, officials of Respondent watched the process from vantage points outside the plant substantial- ly distant from the place at which the distributors were stationed. On August 2, James Bennett, the plant marn- ager, stood inside the plant and watched the haridbilling through a glass door about 150 t'eet front the distribu- tion's locale. Chester Martin, then the plant's personnel manager was among Respondent's officials who observed the leaf- let distribution on July 20. As he watched, Martin made notes on a pad he had in his hands. l"' The General Counsel argues that it was violati, of Section (a)( ) of the Act for Respondent's officials to observe the handbilling in front of the plant w, ithout demonstrating a legitimate business reason for doing so. I do rinot agree. The Board has repeatedly held that an employer does riot violate Section 8(a)( I of the Act by merelY watchilng the distribution of literature or other actixity hb union representatives openly engaged in at the employer's premises. See, for example, Porta Stns Corporation, 238 NLRB 192 (1978): Cheintronic. Inc., 23b NLRB 178 (1978): 7rramt .aunujLcturing Company, 1960 NI.RB 74, 79 c9 (1972) arid Vi/co. Inc., et al., 15l N RB 812, 14 (19'6). In none of the foregoing cases, except .i/co. sas the reason for the watching even discussed I hold, therefore, that Rspondent did icit iolate Sec- tion 8(a)( ) of the Act by observing the leafiletting in front of its plant o June 13, Jul) 27, and August 2 The obser\anice of the haidhilling on July 20, hav-ing been different in character from that w hich occurred on other days, requires a different result Unlike the situa- tion obtaining on June 13, July 27, and August 2, n July 20, Martin, the plant personnel director, s,\ho \was among Respondent's representaties \watching the leaflet distri- bution on that day, nlde notes while it was in progress. In finding no surecillance violation of the Act in lir- rant and Mico. upru, the Board stressed the fact that o notes were taken by the managemeniit representatives ill those cases who observed the leafletting there described. It can be inferred, therefore, that the Board would ha'e found such a violation had notes been taken. Here, as I have found, notes were taken by one of Re- spondent's representatives watching the leaflet distribu- '' lhe duratlnll of the distributiilon during the afternoon i*f June 13 dos not appear in Ihle record : ' Marlin denied hing Iuli,idl the plantl or] Juls 20 hile the Itafll- ling was in progress Marliln' denial, acklil g the rtig f trllh anlld bhcrt contr:lar to credited edcnce. is not hbelieed aitig Isticd that hli iit ilirmd ;applcants .for emplomncnl that Rlpondelul did "il salltl union at lihel plant. as recotlted i Ilhe presill'i sect ot of this D)c-i silO it Is iiilik li tail Marltl Stuld retrin tl(ii oihscrxlig the Lnion',ts overl tefllrls Ito establish Itsell i. the cillCi l,,'-barglnuilntag rcpresnriltat of te plant ' emplosces I arml lnndfill. regarding ns dlsbehtieing NM;1irtil hlerte tt I has eartier credited his ICCOtLult orf an tllcideitlll lsptitiC h, another sk ttLss HsAexLcr, it (loes nol fotllou that hbca;lus I hblic sornic NI M irl}'' I es tCiT11uis I ILU t l tCh'\ ill t it ' 1 ' s tt ,, rdal ( am .ur ( rprrltii. 1 '" 2d 74), 754 I]5tt(. r ', rs i o lther grounds 340 Lr S 474 1 51 I:twio P x, Mat Pr, r i, tr . aL/ 21 NlRlt 1417 (178) 313 DIl-CISI()NS OF NATIONAL. LABOR RELATIONS 3()AkD tion on July 20. This being so, I also find that the watch- ing on that day constituted surveillance of union activity in violation of Section 8(a)(l) of the Act. Accordingly, I conclude that by engaging in surveil- lance of union activity on July 20, 1978. Respondent vio- lated Section 8(a)(l) of the Act. I further conclude that Respondent did not similarly violate Section 8(a)(l) on June 13, July 27, and August 2, 1978. 3 The threat' 4 On September 29, 1978, James Bennett, the plant man- ager, addressed a meeting attended by Respondent's em- ployees including Otis Levinor, who had been wearing a union badge intermittently since on or about July 14. During the course of his speech Bennett stated that Le- vinor's "activities in the plant made it look like [he] was trying to run for president of the Union." Later that day Astalos told Levinor that it "looked like [his] time was limited."' 3 ' In the context of 3ennett's earlier remark concerning Levino's appearance as a candidate for the Union's presidency, Astalos' statement that it "looked like [Le- vinor's] time was limited" was, I find, a threat of dis- charge for union activity. It needs no citation or authori- ty to establish that such a threat infringed upon rights of employees guaranteed in Section 7 of the Act. It was, therefore, violative of Section 8(a)(1). Accordingly, I conclude that by threatening l.evinor with discharge Respondent violated Section 8(a)(I) of the Act. 4. Creating the impression of surveillance At or about the time the Union began its campaign to organize the plant's employees"!t Henry McClain, then employed in the plant, 7 and Jerry Astalos, his supervi- sor, talked about the Union. During their conversation, as McClain related, Astalos stated that he "heard that the Union was in town"; that he did not "want any of [his] workers to sign any cards"; and that if McClain "sign[ed] a card [he, Astalos,] will know about it."'" 14 As amended at the heariig. the cnplaiint alleges that Jerry Astalos. a superlsor, "ThlIreale [cd] employcees with discharge due t their ullion activilt " rt he fidings i this paragraph are based upon. and the quotatins, appearing in the text are taketl fromn, estimlny given by l. clnor Asialos denied telling levinor that his "ime was limited." I d rot believe his denial lecvinor was in Responldetll's employ when the hearing i this proceeding was held This being lie case, his lesti mony, adverse to Rc- -pondenit was given at considerable risk of econlomic reprisal iluding loss of employn ent Having, thus. much to lose, his testim ony was, in sense. contrary Io his own initrest and, therefoire. iot likely tol have eein false. Cag/I., Inc., 234 NLRB 1148 (1978), enfd ill this respect 58 :.2d 943 (5th Cir 1979); Federal S/ainl , S Div oJf .'narco nduutries In(, 197 N.RH 489, 491 (1972) For this reason and because l.evinor de- meated himself well while ,tn the witness stand, I credit his testimlny rather than the contrary testimony given by Astalos. ; As has been liunld. the Union instituted its campaign in April 1978 1t McClail's later discharge is alleged i the complailnt a havillg beel] violative of Sec 8(a)(31 of thc Act In addition, i, will appear below. the complaint lso alleges that Respondenlt harassed McClain in violatiolln of Sec. ()(I )11 il Although Astalos admitted that lie did il nt ant (McClalll to igl a card" ad that he (would have preferred tlat llnone f his emplloyees] sign a card" lie denlied stating to McClainl that if McClain signed a card, It is well settled that an employer who informs his em- ployees during a union's organizing campaign that the identity of union card signers will become known to him creates the impression that their union activity is under surveillance. Such conduct is violative of Section 8(a)(1) of the Act because it "tend[s] to restrain and interfere with the employees in the exercise of' their rights guaran- teed under the Act." itchell Plastics, Incorporated, 159 NLRB 1574, 1576 (1966). Accordingly, I conclude that Respondent violated Section 8(a)(1) of the Act by creating the impression that employees' union activity was under surveillance. 5. The harassment l' Henry McClaim was employed in the plant as a janitor and maintenance laborer. He joined the Union on June 30, 1978, and 2 or 3 weeks later obtained a union orga- nizer badge from the Union which he wore while work- ing. At or about the time McClain began to wear the badge Jerry Astalos, his supervisor, under circumstances not here material, called him a "son-of-a-bitch." The next day McClain informed James Bennett, the plant man- ager, that he had been cursed by Astalos. This resulted in Bennett's ordering Astalos to apologize to McClain and Astalos did so twice, once privately and again in the presence of Bennett and the plant personnel director. Notwithstanding his apologies for having cursed McClain, Astalos told McClain, as the latter testified, that he did not "appreciate [his] talking to Mr. Bennett." McClain further testified that this was followed by Asta- los' assigning him cleaning and other work which, before this, he had not been required to do without relieving him of any of his former tasks. The evidence indicates that much of McClain's claimed extra work had always been done by him. The evidence also indicates that he was given some additional duties to perform after he complained to Bennett about having been called an "SOB" by Astalos. The General Counsel contends that Astalos' burdening McClain with more work than he had previously done was not the result of Astalos' anger at him for having re- ported to Bennett that he had been cursed by Astalos and having been made to apologize, but caused by McClain's having joined the Union and wearing a badge designating him as a union organizer. If the latter were the situation then, obviously, Respondent violated Sec- tion 8(a)(l) of the Act. However, the evidence is equally susceptible of sup- porting both reasons for the assignment of additional work to McClain; i.e., Astalos' animosity toward McClain because of his complaint to Bennett and McClain's joining the Union and wearing the badge. Where, as in this case, the proof is in balance the Gener- he would "kivow about it " Fr tie reasons set forth i fn 20, in/r., I do I)t believe Astalos' denlial " Amtong tilt conlplalilt's allegaltions dealing vith Responderlt claimed violations of Sec 8(a)() (Iof the Act is the iscrietill that Re- spendean "harassed an cnlployet ig hy siglii m encessire wilrk in d- dition to his nlorlmal job duties" tltlry M C'laii is the emiployee to vhonl his allegaltionl relales 314 CR()WN CORK & SEAI. CO()MPANY al Counsel has not borne the burden imposed by the Act of establishing by a preponderance of the evidence that an unfair labor practice has been commitled. lue luash Expres.s. Int., 10) NLRB 591. 592, t02 (1954). Accordingly, I conclude that the General Counsel has not shown that Respondent violated Section X(a)(1) of the Act by assigning additional work lo McClain, My order will, therefore, provide for the dismissal of para- graph 7(c) of the complaint. 13. Fcts Concerning Respondent' s .-llegd Violation of' Sectiotn 8(a)(3) of the ,4ct hv dLcharging IMcCain Henry McClain was hired by Rcspondent on August 14. 1977. He as discharged on November 15, 1978, under circumstances alleged in the complaint as having been violative of Section 8(a)(3) of the Act. As already found, McClain joined the Union on June 30, 1I78, and in mid-July received from the Union a union organizer badge which he wore while al work. In addition, during the Union's organizing campaign he at- tended union meetings and carried union leaflets and au- thorization cards into the plant. In August, the last month in which the Union distrib- uted handbills at the plant. Jerry Astalos, McClain's su- pervisor. directed McClain to dig a hole outside the plant to determine the direction of a waterline. \While McClain was so engaged, Astalos and James enniett, the plant manager, came to the place where McClain was digging to inspect his wsork. As they were doing so and participating in small talk with McClain, Bennett, seeing the union organizer badge McClain was wearing, "got red in the face." After Asta- los and Bennett completed their inspection and while they were leaving the area McClain heard ennett say to Astalos, referring to McClain, "We want to get him out of the gate as quick as we can." 20 The next incident of significance in'olving McClain resulted in his discharge. On or about November 6 the plant production superintendent asked McClain to go "' he fiHnding, I this paragraph arc hbaed uponl and the quotations appearing in the text are ;akein from. McC lain's testimonly I Vwas fa.\or- ahly impressed with McClain's dceinanil as a .'.iness ie appeared to have a high regard for the truth Ilis testlmonwly as lauibl anid gilens in a calm, straightforward manner, and ithoul ;laly alitmlpl at esaslonl Bennett denied having madc Ihe "get [McClalrnl ul of the gate" stalc- ment attributed tlI him by McClain Although Bennett admitted that he and Astalo, inspected he hole while McCtllin was digging t. Asialo,s s- tificd that he did nolt "recal' Bennett being there , ith him Asialo, fuI- ther testified thai Bennei never said anything to him "aboll geting [McClain] our the gate," I do not credit iennellt's denial 'While Bennctl was giving his rsIonr of the hole digging incidenl his face became flushed thus lending credence to McClail's tesimony that. lhen Benntt saw his union organlller badge. he "got red in the face" and later made the "get him out (of the gatle" satemenl Nor dli I beliee that AsIalos was actually unable to remember Benneltt's being ilh him at the hole while it was heing dug by McClain I also di nrot belieso Astalos' letl- mony that Bcnnett neser aid to him th iat Mc(lain had to bte glttn "iu'' of the gate " An addit(ional statement is appropriate rcgardirig ri stimate (If the vc- racit, of Asialis testrtiony insofar as it relaed to NLc_'ai, 1t onl concernling the hole digging matter. hut also i o(lier respectts hI ap- peared to htb colored hb Adlos' alltger anid rsenltmen t Narl IIr MClln for having reporlted Ito Bennctt his calling MCt'lain a "ionll-olfi.a-hitalr' and his has ing suhbscqurently btee r frcd bhy Benitr l to apologizle o MlcCliain For this reason.l I hlai dicrc(lt(ed Asalts' tclitorily rlcgardlitg MiC'laln. except whor u con tradicted r corroborated hbs credible e'sideTce outside and tidy up the front of the building. Upon reen- tering the plant after completing this task, McClain was met by Astalos who asked McClain where he had been. After telling Astalos that he had been working outside the building. Astalos ordered McClain to clean the air conmpressor housed in a room in another part of the plant. McClain went to the air compressor room and started to clean the compressor, but had to interrupt his work to go to the restroom. As he left the restroom McClain was accosted by Astalos who asked him "when [he] was going to do what [he had been] told to do." McClain re- plied that he "started cleaning up where [Astalos] told [him] to clean up," but that he "had to go to the restroom." Upon receiving this answer Astalos demanded that McClain show him where he had been cleaning. In re- sponsec McClain said that he had "been cleaning up in the very place that [Astalos] told [him] to clean up" and that he thought it was "a shame" for him to have to shos, Astalos ,,,here he "start[ed] cleaning up." Immnediately after McClain said this and before he had an opportunity to show Astalos where he had been cleaning or to complete the work, Astalos ordered McClain to accompany him to his office. There Astalos accused McClain of not "ant[ing] to do what [he had been] told . . . to do." Denying this, McClain reiterated that he had "done what [Astalos] told [him] to do," and suggested that "when [Astalos ordered him] to do a thing [Astalos] should give [him] time to go ahead and get the job completed." Astalos then told McClain that he was taking him to Bennett'S office. 2 At this point McClain, who suffers from hypertension, felt weak and dizzy and at McClain's request Astalos took him to the first aid room. There the plant production superintendent measured McClain's blood pressure, found it abnormally high, and advised McClain to see his physician immediately. 22 McClain left the plant immediately after his visit to the first aid room and did not return until November 8. On the following day, as appears in a personnel action report 2 a prepared by Astalos and Earl Daniel, then the plant personnel manager, McClain was "suspended for (5) five days due to insubordination to supervisor. To return to plant on 11/14/78 for decision of discharge." In the interim Bennett, the plant manager, notified Daniel that McClain was to be discharged for insubordi- ' As already noted, Bennel is the plant manager : The findings in this and the preceding paragraphs are based upon. and the quotatlions appearing in the text are taken from. McClain's testi- min)y Astalo,' version of what occurred regarding the cleaning of the air cornipressor differs from that given by McClain in several material re- spects Thus. Astalos testified that, when he asked McClain to how him whoree h had been cleaning, McClain "started raising his voice": told him to "go and find it" hims elf; aid, uon being told that they were going lo Hlitnnett's office, McClain "shook his fist n [his, Asialos'] face " Mectlain deelld raising his vice to Asialos and shaking his fist in Asta- ois' face In siee of this drenial aind there being no corroboration of Asia- lo,' tcslnionl that MiClrin refused to show, him where he had been leaninllli. lli.h. in any rcsll(, ;s hase found. McClain was not given an ipportunill to do. I do not credit Aslalos' account of his encounter with McClain here under discussion where it differs from that given b. Mc(lain See in his regard, frl i. 2t up : Resp F.xh It 315 I)F(ISI()NS ()OF NA I()NAI. IABO()R REIAII()NS IO()ARI) natio. ()On Novenhber 15, Danliel told McClain, as the former testified, that hc " ,,as being terminated for insub- ordination." Daniel then read to McClain the reprimands that w ere in his file. There were three. The first2 4 dated MNay 23. stated that McClain "left plant without punching out ol time clock." The secondti. dated July 4, recited that McClain was "off job without permission-out side [sic] the plant sitting down (behind building)." The third, 2'; dated July 12, related to McClain's delay in cleaniing up an oil spill. O()n November 15. Daniel and Astalos prepared a per- sonnel action report 21 setting forth the folloving as the "Reasons' for McClain's discharge: I. Insubordinlation 2. Continuance [sic] failure to follow up direct orders from Supers isor 3. ailure and refusal to perflorm reasonable re- quest made by Supervisor C. Con lcntion and Concludin , li,,dig. Cowtcerntintg Rcspondetl ' . llegd oltionr oJ Sccionl 8(a)(3) oJ Mth AIcr bv Diclhurging McC'luin Paraphrasing these "Reasons," Respondent argues, t brief, that "McClain was discharged because of his con- tinlud failure to follow instructionls anid ultim;late insubor- dirnation to his supervis(r." 2'' I ant not persuaded that these were the real reaisons for the termiiiiation of' McClail's enmployment. They werc, i my opinion, merel excuses availed of by Respondent to rid itself of McClain because of the supporl he gave to the 'Union, especially his wearing a badge desiginating g him as a unioi organizer. That this is so is particularly made manifest by the ab- sence of proof supporting Responident's clairm that McClain was insubordinate illn onnection with the cleani- ing of the air compressor. McClain did not refuse to clean the comnpressor as he was ordered to do by Asta- los, his supervisor, which would have ctitistituted isub- ordination. 2 As the credited evidence sho, s. McClain started to clean the compressor as soon as he was instructed to do so by Astalos. ie undoubtedly wsould have finished cleaning it follossing his visit to the restroom. Thiss as made plain by McClain's response, whetn accused by As- talos of not doing itas he was told, that "wheri [Asialos ordered hili] to do a thing [lihc] should [be givenr] time to . get the job completed." Nor, although voicing at opinion that it was a shameful requirement, did he refuse to show Astalos where he had been cleaning. Restp IX 15 Rcsp tlxh 16 2 Resp txh 17 Rcsp xihI IX -" Rcx; ldclll' " ti rl lrl c ll}U l r(ililll 11 t ilrgi l llAr l Ills il s gi llCSi il tIhc rdcl gl1i Nt,. lain h, Astalhss. his Supctirsl, S. il Nseiihc r 6. 197. e 1 C;1111 ti Ill.r o. TnlTI/Cnsor -! 1nsuhclIiictt1i all 1s 1is i Ii "i.ack'v, l ) D cicliionars." p 7211 (511 ui 1979) rcelusal to oet ' s-ltic order ',,, iClI it StlIlor olficer is tlllllcd tll give .1nd I il obcd Icl illip(,rts al ,illUl lir t1111cAtItIIAl isrgc;i.li el the l tll i alf. rviasonale IIc iFLitrLtioiA- ol A}lc ci ilplosecr Mctlain was prevellted from show.ing Astalos where he had worked ad froinl comnpletilng the job by Astalos' peremiptory command that he go to Astalos' office. This is a far cry fronl ilsubordilnaltion. t 'Ihe insubordination reason for McClain's discharge, 1Ithreforl. does not wit stand scrutiny. The other reason asserted, on brief', by Respondent for McClain's dis- charge i.e., his cotinu[ed] lfailure to follow instruc- tions" suffers from the salie infirmity. Thlie incideits potited to by Responldent to support this assertion occurred long before the termination of McClain's employment.' : They did not result i McClain's dismissal wheni they took place, nor even in wsarniigs that he would be discharged upon the repeti- tion of' similar conduct. Nothing as said about McClainl's shortcomings, as re- flected in the reprimiands, betweeni July 12, the date of the last one, until his discharge, more than 4 months later. At that date they ere formally read to McClait anid latched onto by Respondenit as a ground, in addition to his clainied insubordination, for ridding itself of McClaiin It the ircumstainces, I find that this additional ground fi NIMcClain's discharge was asserted by Re- spondent in order to cloak the discharge with an aura of justification. Appalcnitly Respondent was of the opinioni that this purpose would not be served had it assignied McClailn's alleged insubordinationl while cleaninlg the air compressor as the sole basis for his dismissal. The reasons givenl by Respondent for ha ing dis- charged M cClail ft'iligl, as I hve founlld, to 0 ithstad scrutin). I further finil that they are false. 'Ibis being so, all ilfercenc cai hc e rawin swhich is 'unfavorable to re- splndelrt." A.L.R.B. . IYIomIt a U Dant. e! al. Co-purt- nre d1// 'u Durl & Russll. Lid. , 207 I.2d 165. 167 (9th Cir. 1953). Ihe extcllt of tile unfavorable inference which can be drawn in such a situatiol was spelled Out in Shattuck Dnt Mliinng Corporauliorl (Iron King ranclh) v. .L.L R.B.. 362 F.2d 46hh 47) (th Cir. 1966). There it was explicitly stated: If' [the trier of facit] finds that the stated motive for a discharge is false, he. can infer that there is aniother iotive. More than that, he can infer that the motive is one that the employer desires to con- ceal-an unlawful motive-at least where . . . the surrounding g facts tend to reinforce that inference." 2 Havinig found that Respondent's "stated motive [for McClain's] discharge is false," I, as the trier of fact, draw the referenlce that the actual motive was to retaliate agaitist McClain for having favored the Union. One need not search long to find "surrounding facts tend[ing] to reiiftorce that inference" It is quickly found in B3einett's : :A resolve, upon seeing McClal's union organizer badge while inspecting the C .t .Sa-in ucicc Itt(cicn ( rfPorulic. 242 NiRt 45 ( 19') sct s it A C dI nlplflylllg liIs 24 2 5 .iii 2{ i e pA citll . t'iluiln alcd 111 .Shul uc ci(A ),n Wc A p.lfcall\ alcp1 tlcd hy lI illC i lard l -til tli ll i/o Ir uc(,, Ir , I, I NL.RIt 1i , 922 ( 19 6) ' It 'All he IC1illil111tCr t lll tl t iA1111ci t i tlt pllit allIA gr 3lI CR()WN CORK & SFAI C()MPANY Bennett availed himself of MeClaill's innocIuous conlldltit in connection with his cleaning the air compressor, char- acterized by Bennett, without basis, as insubordinalion. to effectuate this resolve. It is also found in one of Respondent's asserted reasons for discharging McClain; i.e., "his continu[ed] failure to follow instructions," as revealed by the reprimands issued to McClain. However, except for these repri- mands, McClait's shortcomings were otherwise tolerated until enniett decided, when he saw McClain's union or- ganizer badge, to discharge him for supporting the Union. Thus, at the first advantageous opportunity af- forded Respondent to do so, the air compressor cleaning incident, they were dredged up as a ground fo r McClain's discharge. As the oard has "repeatedly held[, and as I hold here respecting Respondent's motive for discharging McClain.] an employer's tolerance of an em- ployee's shortcomings until he engages in union activity. here Bennett's notice that McClain was wearing a union organizer badge,] is an indicium of discriminatory motli- vation." VlIbrginla VMetalcrafierv, Incorporated. 158 NLRB 958, 962 (1966), enfd. 387 F.2d 379 (4th Cir. 1967). Accordingly I conclude that Respondent violated Section 8(a)(3) of the Act by discharging McClain. D. 'act (oncerning Rcsponde'nt s Alleged Vioiation of Section (a)(3) o tlhe 4ct! hv Discharging I/lotnas Willie Thomas was hired by Respondent on April 10, 1978. He was discharged on Julv 5. while still a proba- tionary employee.: 4 Thomas testified that he signed a union card in May 1978 and that starting in or about the middle of that month he wore a union badge on his shirt while at work. Thomas further testified that at or about the same time he placed a union bumper slicker on his automobile. Thomas' testimony concerning his wearing a union badge while at work was contradicted by a coworker. David Keith, who related that, although he saw Thomas' union badge "in his bill fold," he "never [saw Thomas] wear it] at the plant on his clothes." Accordingly. I do not accept as true Thomas' statement regarding his having worn a union badge.' On July 4, the day before his discharge and several days before the end of his probationary period, Thomas struck two supervisors after they informed him that he '4 Respondents, emploryees erve '0-day probhationary period ' As ill he seen. tholmas osas giseil io 1iolence ad (one(. s he ail- mitted hreatlened "slap the hell li of," Keith hi gace rise i a co-unterhreat of a sinlilar natur h Keith Bcause o ih e t 11itllual threats Ithe General Colunrel argues that Kith's test mon should Int he credited I have given much thought to thls argument ushch. at first hblush seertl t he uell akenr Hosec r. t, ifactors, n mo e c to rejecl iit First ir Keith harhored an) ill eeli lg agai lnIt hltim s . i a resulil f their ncounlter it ua not made apparent hlule he t ls on the itlss stand Seconlld, ad w hat It ni' is most important. is hat Kelh impressed me as a perslon wh ssoiuld n perrll hils iiilmosii to, ard Ihoma., if there were anl, to interfcre stailh hi, oath to tell the truth :For these tea- s(ons I ha.e credited Keith's lestlmon) 16 In in1 etent. I Stat noit satisfied s.ilh Iheiolli' deteialniir 1is i nit- hess He appeared Io he telving not Aih candor. htilt ith ilRIdis- nes agalnst Respondern hbtcale of his discharge AccordinglS I haxe discredited I homas' ticllmnil excp t v here i is ncilt ra;liclt ll thii connection. T'homas' tcsIlll()n) cLrlcernlng hi, having placetd .a liill humper sticker n hi, car ha llit hbeeti clrradllcted Ihi, hbig the Lise. It is taken as a ft was being suspended heclause his work as a probatiiary enimployee did not meet the requirements for the position he held. Thomas testified that his assault upon the super- visors wvas provoked by their having spat o hint. Thomas firther testified that after he hit the supervisors one of them stated that he wkas being "fired . . because of the damn union." The supervisors denied that this was said and denied also having spat on Thomas. In viez of these denials, I have not credited Thomas' testimony in the respect here under consideration. 7 E. Contenrlions and Concluding idings Concerning Respondenlt Alleg d Violation ofSection o(a)(3) o/ I' .Ilt( Ity Dicll/arging Thomnua Respondent contends that it was not unlawfully moti- vated in discharging Thomas. Thomas was dismissed, Respondent asserts, because of his poor job performance as a probationary employee and because of his having as- saulted two supervisors, Moreover. Respondent claims that it had no knowledge of Thomas' union activity before his discharge. In opposition the General Counsel maintains that the stated reasons for the termination of Thomas' employ- meit are pretextual that Respondent had knowledge that Thomas supported the Union while in its emplo, and that he was discharged for his union activism minimal though it was. Concerniitig the latter, the General Coun- sel states on brief that notw ithstanding that, "Thomas was not at the forefront of union acti ity at Respondent's facilily, he was taking part in the union campaign [and] his discharge provided a clear message to Respondent's employees concerning the consequences of union activi- ty." Knowledge of a discharged cniployee's union activit is an essential ingredient of a discharge in violation of Section 8(a)(3) of the Act. The possessioi of such know-l- edge o the part of an employer must he shown before an unfair labor practice within the meaning of that sec- tion can he said to have occurred. lit P embek Oil Cor- poration, 165 NLRB 367. 373 (1967). enfd. in this regard 404 F.2d 105 (2d Cir 1968). There is no direct showing that Respondent had knouledge of Thomas' union activity before his dis- charge. However, it is settled law that "direct knowl- edge of an employee's . . . union activities is [not] a itnc qua non for finding that he has been discharged because of such activities. On the contrary, there is well estab- lished Board and court precedent that such knowledge may be inferred from the record as a whole." Wies Plow Weldilng Co.. Inc., 123 NI.RB 616, 618 (1959) The General Counsel suggests that an inference that Respondent had knowledge that Thomas supported the Unionr can be drawn from two souices, the union badge he testified he wore at work and the union bumper stick- er on his automobile. The first source finds no support in the record.: The second source is too speculative to warrant serious consideration. It presupposes that per- sons w ithin Respondent's supervisory or managerial hier- , St'c. m Ihl konneillorm. frl, t ' It sill h rctrlltlhercd that thtia tes rnil knlernili his hi, ilsg sorn a trloir hbaLge .,tile rknll hs 1tM het1 a epted is title 317 DECISIONS OF NATIONAL IA()OR RKEL.AI1ONS BH)ARI) archy were so familiar with Thomas' automobile that they could recognize it on sight. However, the record is devoid of proof showing that this is the case. There being no evidence, direct or circumstantial, to establish that Respondent had knowledge of Thomas' union activity before the termination of his employment, I find that this essential ingredient of a discharge in vio- lation of Section 8(a)(3) has not been proven.:"' Accordingly, I conclude that the General Counsel has failed to show by a preponderance of the evidence that Respondent violated Section 8(a)(3) of the Act by dis- charging Thomas. My order will, therefore, provide for the dismissal of paragraph 8 of the complaint insofar as it relates to Thomas. V:. THFI It:iECT OF R SPONI)ENT'S UNFAIR I.ABOR PRAC rICIES UPON COMMERCI Respondent's unfair labor practices occurring in con- nection with its operations set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. 'Htl REMI.I)Y Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, my order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. In the latter con- nection, my order will require Respondent to offer full and immediate reinstatement to Henry McClain and to make him whole for any losses he may have suffered by reason of the discrimination practiced against him. Any backpay found to be due to McClain shall be computed in accordance with the formula set forth in F: W. Wool- worth Company, 90 NLRB 289 (1950), and shall include interest in the manner prescribed in Florida Steel Corpo- ration, 231 NLRB 651 (1977). 40 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCIUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is 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. By the following conduct Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Engaging in surveillance of union activity. (b) Threatening an employee with discharge for en- gaging in union activity. (c) Creating the impression that employees' union ac- tivity was under surveillance. :1" he absence of such proof negates the General Counsel's pretext ar- gument. Rafael Igartua. Proprietor of .gudilla Children' Wear Plant. 174 NLRH 615, 619 1969). 'o See, generally,. Iviv Plumbnhing d leating Co. 138 NL.RB 716 (1962). 4. By discharging Henry McClain, thereby discourag- ing membership in the Union, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (1) by discharg- ing Willie Thomas. 6. The unfair labor practices engaged in by Respond- ent, as set forth in Conclusions of L.aw 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact., conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the fllowing recom- mended: ORDER 4 1 The Respondent, Crown Cork & Seal Company, Inc., Cheraw, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in, or attempting to engage in, surveil- lance of ally activity carried on by United Steelworkers of America, AFL-CIO, CLC, or any other labor organi- zation. (b) Engaging in, attempting to engage in, or creating the impression that it is engaging in, surveillance of em- ployees' union activity.(c) Threatening employees with discharge or with any other form of reprisal, or effectu- ating any such threats, for joining, assisting, signing a card for, or in any other manner supporting, United Steelworkers of America, AFL-CIO, CLC or any other labor organization. (d) Discouraging membership in United Steelworkers of America, AFL-CIO, CLC, or any other labor organi- zation, by discharging employees or by discriminating in any other manner against employees in regard to hire or tenure of employment or any term or condition of em- ployment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, or to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to re- frain from any or all such activities. 2. Take the following affirmative action which it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Offer Henry McClain immediate and full reinstate- ment to his former job, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of this decision enti- 41 In the eent no exceptions are filed as provided by Sec. 10246 of Ihe Rules and Regulations of the National L.abor Rclatilonis toard, he findinglg conclusions, and ()rder herei shall, as provided in Sc 1i)2 48 ll he Rules and Regulationis. he adopted by the Itoard and become is findings, conclusionls, ad ()rder. iand all oihjectons Ihereto shall he deeeltd .aived fr all purposes 31 CR()WN C()RK & SAl (()MPANY tied "The Remedy,'" for any loss of earnings he may have suffered by reason of his unlawful discharge. (b) I'reservc, and upon request, make availahible to the Board or its agenlts, fir examination and copying, all payroll records, social security paymnlent records, lime- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Chcraw,v South Carolina, copies of te alttached n1otice marked "Appendix. " '' I:' ill lh t ni t h1111i Ihis ()rdtr is enirl;rced h .I Jlgl giIellt i .i I llcltd Stllv, t utir t A1 ' \ppcalk. the s , tlins ill lhe Li olice r.eiadlg i'-i lt, hI ()rdcr ) 1, Nallllnll I h},r R/ltlllh o;11 %d" xh;lJl read "--wld Pwr,u Copies of said notice on forms provided by the Regional l)irector for Region II. after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 6h() consecutive days thereafter in conspicuous placcs, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by respondent to insure that said notices are not altered, defaced, or covered by any other material. It IS I R I IHIR ORDIiR]i) that paragraphs 7(c), 7(e), and paragraph 8 insofar as it relates to Willie Thomas. of the complaint be, and the same hereby are, dismissed. a i 1( I ; Jtldgilcill of thle t lilzi SiIICs (t'ilrl of Appeals lfliiorcing all ()riter ilt ilhc Natlll I I J ihr R allion, Hitoard " 319