Health Care Logistics, Inc.

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Health Care Logistics, Inc. and Jon B. Jacobs and Mark A. Cox and Robert D. Fox, Jr. Cases 9- CA-20594, 9-CA-20712-1, and 9-CA-20712-2 _ 14 Decernber_1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 24 , July 1984 Administrativ,e Law Judge Claude R. Wolfe issued the attached decision. The Respondent_filed exceptions and a supporting brief, and the, General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its 'authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusiOns -and to adopt -the recommended Order. _ ORDER The National Labor Relations Board adopts' the recommended Order of he administrative law judge'ana orders- that the Respondent, Health Care Logistics, , Inc., Circleville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth „in the Order except that the attached notice is substituted for that of the administrative law judge. The Respondent has excepted to some of the Judge's credibility find- ings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully exampled the record and find no basis for reversing the findings Near the beginning of his decision the Judge mistakenly stated that Jacobs was discharged on 8 December 1984 instead of 8 November 1984 Additionally, in his notice the . )ndge Inserted the name of, the wrong labor organization Involved The notice is revised to correct this error APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through .representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting the United Steel Workers of America, or any other union. WE WILL NOT in any, like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer ion B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any net in- terim earnings, plus interest. WE WILL remove from our files any reference to the terminations of Jon B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. on 8 November 1983, and WE WILL notify them in writing that this has been done and that evidence of these unlawful actions will not be used as basis for future, personnel ac- tions,against them.. HEALTH CARE LOGISTICS, INC. DECISION. STATEMENT OF THE CASE CLAUDE R. WoLFE,' Administrative Law Judge. This consolidated proceeding was litigated before me at Cir- cleville, Ohio, "on May 10 and 11, 1984, pursuant to charges timely filed and consolidated amended complaint issued April 17, 1984. It is alleged, and Health Care Lo- gistics, Inc.' (Respondent) denies, that Respondent vio- lated Section 8(a)(1) and (3) of the Act by terminating Charging parties Jon B. Jacobs, 2 Mark A. Cox, and Robert D. Fox Jr. in order to discourage union member- ship and activity among its employees. On the entire record and my observations of the testi- monial demeanor of the witnesses, and after considering the arguments advanced by the parties in their posttrial briefs, I make the following Respondent's name appears as amended at hearing 2 The charge prepared and signed by Jacobs shows the proper spelling of his name to be Jon 273 NLRB No. 109 HEALTH CARE LOGISTICS 823 FINDINGS AND CoNciustolys I. JURISDICTION Respondent, an Ohio corporation, is engaged in the manufacture of carts, cabinets, and related products used in the health care industry at its facility in Circleville, Ohio. During the past 12 months, a representative period, Respondent, in the course and conduct of these business operations, sold and shipped from its Circleville, Ohio facility goods, products, and materials valued in excess of $50,000 directly to points outside the State of Ohio. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The United Steelworkers of America (the Union) is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES3 At the time of the events giving rise to this proceeding Respondent was manufacturing medical carts and cabi- nets in a 2000-square feet one-story building, about the size of a three-car garage, divided into an open manufac- turing area, a paint room, and a restroom. The work force then was about 10 or 12 employees, including Op- erations Manager Ted Salyers and Shop Supervisor Robert Erwin 4 Salyers and Erwin spent their working time at this facility. Respondent's president Gary L. Sharpe had his office in a house three doors away from the manufacturing operation. Some time in early or mid-October 1983 the employ- ees, including Supervisor Erwin, began discussing the possibility of union representation There were several such informal conversations among the employees con- tinuing into early November. Jon Jacobs became the leader in these discussions, and expressed his feelings in favor of a union When a number of employees, includ- ing Cox and Fox, stated a desire to further explore the matter, Jacobs called Union Representative Hoover on November 7, about 1:30 p.m during a work break, and arranged a meeting between Hoover and the employees for November 10. After completing his call to Hoover, Jacobs returned to the work area and told all the em- ployees and Erwin of the scheduled meeting Sharpe de- cided on the evening of November 7 to let Jon Jacobs, Mark Cox, and Robert D. Fox Jr. go. They were termi- nated on Tuesday, November 8. Jacobs, Cox, Fox and other employees were clearly engaged in statutorily protected activity when they dis- The facts set forth below are derived from the credited aspects of the testimony of all witnesses, the exhibits, comparative testimonial demean- or, and careful consideration of the logical consistency and inherent probability of the facts found Although I may not, in the course of this decision discuss every bit of record testimony or documentary evidence. It has been weighed and considered To the extent that evidence not men- tioned herein might appear to contradict my facffindings, that evidence has not been disregarded but has been rejected as incredible, lacking in probative worth, surplusage, or irrelevant 4 Salyers and Erwin are alleged and admitted to be statutory supervi- sors and agents of Respondent cussed union representation, decided to meet with a union repregentative to further explore it, and arranged the meeting with Hoover through Jacobs. Respondent's knowledge of that activity would ordinarily be imputed from The presence of Erwin, Respondent's agent, during these activities, but Erwin, Sharpe, and Salyers credibly agree that Erwin did not tell Sharpe or Salyers of the employee union activities. I therefore conclude that knowledge of union activities may not be imputed to Sharpe or Salyers merely because Erwin had such knowledge. Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82 (1983). I do, however, agree with the General Coun- sel that the circumstances warrant the application of the "small plant rule" permitting a presumption of employer knowledge where the facility is small and open, the work force is small, employees made no great effort to conceal their union conversations, and management per- sonnel are located in the immediate vicinity of the pro- tected activity See, e.g., Class Watch Strap Co., 267 NLRB 276 (1983); NLRB v. Instrument Corp. of America, 714 F.2d 324 (4th Cir. 1983). The activities were carried out on Respondent's very small and open facility where Salyers was always present when at work. The no more than seven or eight employees involved took no special precautions to conceal their activities. It is highly im- probable that the employees' interest in union representa- tion, expressed in several conversations within .the shop, would remain a secret unknown to Salyers who spent his workday in the facility. The absence of any office or other private place where Salyers might have fortuitous- ly stationed himself and thus avoided any knowledge of any of the union talk in a building of such small dimen- sions lends support to this conclusion. I am persuaded the small plant rule is here applicable and the resulting presumption of employer knowledge on this ground has not been credibly rebutted. The timing of the termination in midworkweek and on the very next day after the meeting with the Union was arranged and announced to employees also indicates knowledge, Class Watch Strap, supra, as well as cause and effect. There is no evidence that Respondent expressed any hostility toward union ac- tivities during the October-November period in which the protected conduct occurred, but Jacobs gave credi- ble testimony of such expressions by Sharpe and Salyers in June 1983. 5 On a day in June, while investigating a workmen's compensation claim, Salyers told Jacobs that the brother of the employee involved had threatened to beat up Sharpe's father, or perhaps bring a union to Re- spondent's facility to "straighten things up" Salyers then told Jacobs that if a union representative walked in "we'll run him out." The following day Jacobs was dis- cussing the situation vis-a-vis the former employee with Sharpe when Sharpe 'commented that if a union ever got in his facility he would close it down. Salyer's statement 5 There are some differences between the version Jacobs gave on direct examination and that which he gave on cross-examination when confronted with his pretrial affidavit Neither version is denied by Sharpe or Salyers Jacobs' version, after Respondent refreshed his recollection with his pretrial statement, is credited because the written statement was closer in time to the events and more likely to be accurate than his later recollection 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not necessarily connote hostility toward unions, but strikes me as being more in the nature of a determination to respond to a threat with resolute action regardless of the identity of the emissary of the person issuing the threat. The comment of Sharpe does, however, amount to a declaration of obdurate opposition to unionization of his employees even to the extent of closing his business. The General Counsel has established the existence of union activity, Respondent knowledge, Respondent hos- tility, and precipitous adverse action hard on the heels of significant union activity. This is sufficient to establish a prima facie showing that the separations were discrimin- atorily motivated. This being so, the burden now shifts to Respondent to demonstrate that it would have taken the same action in the absence of protected activity Wright Line, 251 NLRB 1083 (1980). In 'addition to its claim, which I have rejected, -that it had no knowledge of the protected activities before it terminated the three employees, Respondent advances various other reasons for the separations. The major con- tention is that financial and production problems re- quired termination of the least productive employees, and that Jacobs, Fox, and Cox were selected on the basis of comparative performance The record fairly reflects that Respondent was in financial difficulty and had pro- duction problems prior to the onset of the discussions about a union, and continued in such straitened circum- stances into February 1984, long after the dismissal of the three, yet Respondent hired one employee on No- vember 21, 1983, and three in January 1984. By far the worst month for Respondent financially was September 1983, 6 Respondent's financial situation in November 1983 has not been shown to be more severe than in immedi- ately prior months Quite the contrary. The $8000 loss in November represents a considerable improvement over the $15,000 September loss. The record reflects nothing other than Respondent's ipse dixit to support a notion that the termination of three employees was urgently needed for financial, production, or other reasons on No- vember 8, 1983 The hiring of a new employee the same month and three More in January suggests the termina- tions were not in fact a necessary exercise of . good busi- ness judgment. Respondent's purported reasons for the selection of each of the three separations were enunciated at trial by Gary Sharpe, Respondent's president, in testimony that was often vague, circumlocutory, and evasive. 7 Re- 6 Respondent lost $15,000 in September and $8000 in November The loss in December dwindled to $1917, but this obviously could not have been due to the discharge of the three employees after only 5 working days in November 7 The following is a representative sample of Sharpe's periphrasis Q Mr Sharp, are you telling us this morning that these problems that you have mentioned from Mr Jacobs, Mr Cox, and Mr Fox were confined to them alone, that you had no problems with any other employees in your employ" A Well—I can't say—you know—it is an ongoing thing some- , times, things come up and it was a process there of I couldn't afford to carry unproductive employees and I had to make some decisions People don't like it when they don't get their paycheck and I didn't want, to be forced Into a situation where I couldn't make a payroll spondent's posttrial brief, also specifies reasons for selec- tion, as does Respondent's answer to the consolidated amended complaint in this case. These different exposi- tions are not always consistent each with the other or with additional evidence elicited from Respondent's wit- nesses. Jon Jacobs With respect to Jacobs, Respondent first advances the defense that Jacobs was a supervisor and therefore not protected by the Act. There is sufficient evidence in the record to indicate that Jacobs was foreman of the' second 'shift and was probably a statutory supervisor for 3 weeks or so in September 1983. This, however, is irrelevant be- cause Jacobs' protected activity and discharge occurred after the second shift was terminated at the end of Sep- tember 1983. The issue is whether he was a statutory su- pervisor commencing in October 1983 when he once again went on the first shift which was already super- , vised by Salyers and Erwin. Respondent's contention that there were -three supervisors on the first shift where there were no more than seven or eight employees work- ing together in a small area, a ratio of one supervisor to two or three employees if Jacobs be found to be a super- visor, is extremely improbable. I also note that Jacobs was paid $3.65 an hour, the same as Mark Cox who was clearly not a supervisor, but less than the $3.90 paid Erwin. Jacobs was given the title of field. maintenance super- visor on his return from the second shift to the first. Titles are not dispositive of supervisory status, 8 nor do conclusory statements that an employee possesses any or all of the supervisory authorities enumerated in Section 2(11) of the Act establish that he or she in fact does.6 Jacobs spent 30 to 40 percent of his worktime in October 1983, and until his discharge, traveling to customers' fa- cilities for the purpose of repairing Respondent's prod- ucts. He traveled and worked alone with no 'one to su- pervise. He had the authonty to purchase repair parts on Respondent's behalf as dictated by the needs of the arti- cle being repaired. This involved no significant exercise of independent judgment of the type involved in assess- ing possible managerial or supervisory status. When not on his field maintenance trips, Jacobs performed routine assembly work in the shop and conducted a materials in- Q Are you telling us that you have had similar problems with other employees such as the same you have had with Mr Cox, Fox and Jacobs" A You know, at any one time an employee may have a problem You try to work with them and sometimes given certain conditions, and you have to make a decision, should I bet on them that they will come along, do I have the time, the resources, the energy, should I bet on them or not, should I go with them, what can I do These—through September and October leading up—it was get- ting tighter and tighter, and consultation with Ted, why tsn't pro- ductivity better than It is I reached a point that I had to make some cuts, who were the least productive JUDGE WOLFE' The real question was, have you had production and quality problems with other employees, not why you selected these at that given time, but have you" THE WITNESS Yes 8 Saladmaster Corp, 216 NLRB 769, 773 (Santiago) (1975) 9 United States Gypsum, 118 NLRB 20, 25 (1957) HEALTH CARE 'LOGISTICS 825 ventory. The inventory was a solitary affair with no one else involved. On occasion Jacobs showed less senior employees how to do their work, and answered their work-related questions . He also occasionally transmitted Salyers' instructions to Erwin and other employees. There is no evidence he had any independent authority to nullify Salyers' instructions, and I conclude he was merely acting as Salyer's messenger. The only control Jacobs exercised over other employees at times relevant to this proceeding was that derived from his superior ex- periences This does not make him a statutory supervi- sor 10 A careful reading of the entire record convinces me that .Respondent has not shown by reasonable modi- cum of credible evidence that Jacobs at the time of his discharge possessed any of the supervisory authorities enumerated in the Act. Respondent therefore has not carried its burden of proving Jacobs was a supervisor at relevant times. The answers filed by Respondent in response to the complaint in Case 9-CA-20594 and the consolidated amended complaint assert that Jacobs was discharged due to poor work performance and misappropriation of Respondent's funds. Respondent's posttria/ brief does not mention the alleged misappropriation, but argues poor performance as the cause for Jacobs' selection. Sharpe's file memo, drafted the evening of November 7 and dated November 8, 1983, notes that he and Salyers concurred in firing Jacobs. He recites poor productivity of second shift under Jacobs, unsatisfactory dress when on field maintenance work, "verbal reports" that Jacobs was "mouthing off' to Salyers, and "reports" that Jacobs used poor judgment when sorting scrap. He also notes that Jacobs took 8 hours on November 7 to do an hour's work of making small dividers, "on another recent occa- sion" he and another employee took 6 hours each to build two wooden cart frames (although another man by himself built three large crates with hinged doors in 6 hours.) After he discharged Jacobs on December 8, Sa- lyers noted the following on the bottom of Sharpe's memo to file: .. The above employee was informed by under- signed on November 8, 1983 he was being terminat- ed for his poor unacceptable quality of work, failure to attain production goals, poor and discourteous at- titude in general toward co-workers and employer. Also, a payroll deduction had been made in his final check for his mis-use of Company Travel Funds. Silyers' note of misuse of company funds relates to Jacobs' purchase of a radio from his travel allowance while in Philadelphia doing field maintenance. Jacobs credibly testified that his personal radio, which he car- ried with him in the van, fell and broke. He could not get a motel room that night so he slept in the van and used $60 of his expense money to buy the radio. He re- ported the purchase to Sharpe when he returned, pre- sented Sharpe with the receipt, and offered to pay for the radio. Sharpe merely nodded his head and never '° Rich's Precision Foundry, 250 NLRB 1317, 1320 (1980), enfd 667 F 2d 613 (7th Cir 1981) thereafter mentioned- the radio purchase." Sharpe con- cedes the decision to discharge was made without refer- ence to the purchase of the radio. Salyers agrees that he first learned of the radio purchase when he had Jacobs' final check prepared on November 8, 1983. There is no evidence of any other incident that might possibly be construed as misappropriation. Accordingly, I find that misappropriation of Respondent's funds was not a reason for Jacobs' discharge as Respondent's answers contend. The positing of a false motive for discharge warrants an inference there is an unlawful motive the employer wishes to conceal." My decision with respect to Jacobs does not rest on this inference alone but it is entitled to some weight and has been considered along with the other relevant factors discussed in this decision. Sharpe says Jacobs was discharged because his per- formance had started deteriorating while he was on the second shift, continued to deteriorate, until it reached the point on November 7, 1983, that Jacobs took a day to do an hour's work. When pressed for particulars, Sharpe conceded that a major production problem on the second shift was paint failure caused by bad paint. This obviously cannot be blamed on Jacobs. Sharpe further explained that, although Jacobs had trouble 'supervising and made mistakes in judgment, "That's common. We all do and that's part of the growing process." Although agreeing that Jacobs was out of town several times doing field maintenance work in October, Sharpe asserts that during that month Jacobs took too much time doing his portion of the work on some night cabinets. The final in- cident which led to Jacobs' discharge was, testifies Sharpe, that Sharpe thinks Jacobs took all day on No- vember 7 , to produce only seven or eight small drawer dividers, an hour's work. Sharpe is not sure how many dividers were produced. In view of Sharpe's uncertainty and Jacobs' positive testimony on the matter, I credit Jacobs that on November 7 he produced 24 dividers and also gave assistance to other .employees in their work. Salyers gave no testimony on this matter. I further credit Jacobs that neither Sharpe nor Salyers ever complained about his work or attitude or told him his work perform- ance needed improvement. Both Sharpe and Salyers con- tented themselves with vague assertions that they had spoken to Jacobs generally about overall plant and em- ployee productivity. Salyers testified that Jacobs was fired because of his declining leadership ability on the first shift, attitude, and inability to produce products in an orderly fashion Sa- lyers indeed told Jacobs that his discharge was caused by a dropoff in his work and attitude. He, like Sharpe, of- fered little in the way of particulars. As far as the claim Of declining leadership ability on the first shift, there is no probative evidence to support the conclusion The same is true of the "attitude" criticism. Neither' Salyers " I do not credit Sharpe, who concedes Jacobs told him of the pur- chase, that he told Jacobs to set up a weekly deduction schedule with Sharpe's father, and became angered when he told his father to make up Jacobs' final check and only then found Jacobs had made no such pay- ments Jacobs was more believable Sharpe's father did not testify 12 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor Sharpe give any evidence to support the bare con- clusions of Sharpe's November ,8 memo insofar as it notes Jacobs dressed unsatisfactorily, "mouthed off' to Salyers, or used poor judgment when sorting scrap. Sa- lyers, like Sharpe, does advert to the amount of time Jacobs spent working on night 'cabinets, even though conceding they were not rush jobs, and says he is sure other employees worked with Jacobs on these cabinets but "can't recollect" whether they did or not Salyeis adds that Jacobs failed to carry out his instructions on occasion, but cites no specific occasion. Jacobs relates that he did indeed spend 14 to 16 days on the cabinets, and that this was due in large part to faulty instructions from Salyers. Salyers does not deny this claim and it is credited. Jacobs also credibly relates he finished the cabinets by himself except for the paint- ing Mark Cox According to Sharpe, Mark Cox was selected for layoff because all Cox wanted to do was shear and break work, wanted help on that work, and had no interest in performing other assembly functions even though he did so without protest. Sharpe's impression of lack of interest in duties other than shear and break was garnered from his observation that Cox took a long time and was lacka- daisical when on the other duties He adds that -the prob- lem of getting Cox to perform other functions was af- fecting Erwin's abilities as a supervisor because Cox always wanted a helper when shearing and breaking This confused proffer simply does not make sense. Sa- lyers testified that-he chose Cox as one to be eliminated because Erwin had said that Cox did not want to do anything other than shear and break because that is what Cox excelled in. This testimony was then amended by Salyers on cross-examination when he explained that Erwin actually said that Cox liked to do shear and break best and would excel at that. Salyers added that he did not from that statement of Erwin arrive at the conclu- sion Cox did not want to do anything else but shear and break, nor was he of that . opinion. SalYers agrees Cox would and did do other. work. Erwin relates that Cox was hired as a fabricator which usually includes only shear and break work He contin- ues that Cox occasionally did assembly work, and was not skilled at work other than shear and break, and it was sometimes a problem getting Cox to perform other functions. Erwin gives no details of any -problems en- countered with assigning Cox to other functions. Cox, who gave direct answers without hesitation and impressed me as a credible witness, agrees that his pri- mary job was shearing and breaking, and that he did other work once or twice a week as needed and instruct; ed by Erwin. He never refused to do other work, or stated he would only do shear and break work. He never received any complaints or warnings, written or oral, from supervision about his work and, on October 13, 1983, was given a 30-cent pay raise and a $50 bonus by Sharpe who told Cox the reasons were that Cox had done good work on some cabinets and Sharpe liked the way he was working. The work referred to by Sharpe was apparently shear and break work. Salyers laid Cox off about 3:15 p.m. on November 8, 1983, told Cox his work was good, and gave as a reason for the layoff the transfer of work to Wolf Welding. Robert D. Fox Jr When Robert D. Fox Jr: was discharged on Novem- ber 8, Salyers told him that he was fired because his work was unsatisfactory. Fox was told on hire that there was a 90-day probationary period He was still within that period at the time of his discharge. In addition to general statements that Fox was not a satisfactory fabri- cator, Sharpe and Salyers focus on two specific inci- dents. The first involved a failure by .Fox, in spite of ex- plicit instructions, to use the proper clamps and jigs in performing welding fabrication, with the result that the finished products, carts, were warped and unsatisfactory. Fox concedes some carts he worked on within a day or two of his discharge were crooked, but claims -this was due to a crooked jig. In the face of the testimony of Sa- lyers, Erwin, and employee Keith Hudson to the effect that the crooked carts were the result of Fox's failure to follow instructions and due entirely to his poor work, I do not credit Fox's contention that the problem was due to a defective jig, and therefore find his work was indeed unsatisfactory on this occasion. In so finding I am mind- ful that he received a 15-cent raise on October 13 for good work, but this does not mean his work in the first week in November was satisfactory. The second incident Respondent adverts to occurred on November 8 when Fox did unacceptable aluminum welding work. Fox admits this work was unsatisfactory, but avers he told Respondent he could not do aluminum welding. There is no-need to resolve this issue because it occurred on No- vember 8, after the decision to discharge Fox had al- ready been readied on November 7, and played no part in that decision. Conclusions Respondent's asserted reasons for a ' reduction of- em- ployees on November 8, 1983, and the selection of Jacobs and Cox lose persuasive effect because the evi- dence offered to support the reasons is Singularly uncon- vincing and sometimes refutes the very reason it is intro- duced to support. Much of the supporting testimony of- fered by Resiiondent is given to sweeping generalization, displays no objective basis, and is the product of circum- locution. Some of Respondent's evidence reveals the pre- textual nature of reasons advanced (e.g., the alleged misuse of company funds by Jacobs.) In short, Respond- ent's defense's are not convincing, and Respondent has failed to demonstrate that it would have taken the same action in the absence of union organizing activity. See Wright Line, 251 NLRB 1083(1980) Accordingly, I find the terminations of Jacobs and Cox were designed to dis- courage union membership and activity, and violated Section 8(a)(3) and (1) of the Act. With respect Lo Robert Fox, Respondent has demon- strated that he Was a probationary employee whose work was unsatisfactory. It therefore cannot be said that Fox might not have been discharged for cause in the absence of union activity. This does not, however, answer the HEALTH CARE LOGISTICS . 827 question of whether he would have been discharged in any case. The matter is not entirely free from doubt, but I am persuaded that the frailty of Respondent's reasons for having any reduction of force on November 8, 1983, and its efforts at trial to suggest that Fox's poor alumi- num welding, which was performed after the decision was made to discharge, was a reason for his discharge requires a conclusion that Respondent was in Fox's case, as well as the cases of Jacobs and Cox, consciously erecting pretextual defenses. As I have noted above, an inference of unlawful motivation is permissible in such circumstances. Moreover, the proffer of pretexts serious- ly diminishes the probative weight of evidence favorable to Respondent. On the evidence before me Respondent has not shown that it would have discharged Fox on No- vember 8, 1983, if there had been no threat of union ac- tivity present, and has therefore not rebutted the General Counsel's prima facie case. His discharge is found to be in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Health Care Logistics, Inc., 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. By discharging Jon B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. in order to discourage union activity and union membership, the Respondent violated Section 8(a)(3) and (1) of the Act. 4 The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the usual cease-and-desist order and notice posting, my recommended Order will require Re- spondent to offer Jon B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. unconditional reinstatement to former jobs, or substantially equivalent positions if their former jobs no longer exist, and make them whole for all wages lost as a result of their unlawful discharge. Said backpay and interest thereon is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). 13 There was some indication at hearing that Respondent no longer manufactures, and that there may be a successor liable to remedy the unfair labor practices found. This is a matter for compliance proceedings if the Board agrees the law has been violated in this case. I shall also recom- mend that Respondent be ordered to remove from its files any reference to the terminations of Jon B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. on November 8, 1983, and notify them in writing that this has been done and that evidence of these unlawful actions will not be used as a basis for future personnel actions against them. 13 See generally Isis Plumbing Co, 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Health Care Logistics, Inc., Circle- ville, Ohio, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Discouraging union activity or membership in the Union, or any other labor organization, by discharging or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment. (b)In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Jon B. Jacobs, Mark A. Cox, and Robert D. Fox Jr. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights or privileges, and make them whole for any loss of earnings they may have suffered by reason of their discriminatory discharge, in the manner set forth in the section of this decision entitled "The Remedy." (b) Remove from its files any reference to the termina- tions of Jon B. Jacobs, Mark A Cox, and Robert D. Fox Jr., on November 8, 1983, and notify them in writing that this has been done and that evidence of these unlaw- ful actions will not be used as a, basis for future personnel actions against them. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Circleville, Ohio offices and facilities copies of the attached notice marked "Appendix."15 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. ' 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 15 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 days from the , date of this Order what steps the Re- spondent has taken to comply. ,,,