Advance Development & Manufacturing Corp.

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Advance Development & Manufacturing Corporation and District Lodge 1170, International Associa- tion of Machinists & Aerospace Workers, AFL- CIO. Case 39-CA-615 23 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 30 November 1982 Administrative Law Judge David S . Davidson issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, ' and the General Counsel filed a brief in answer to the Respondent 's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs2 and has decided to affirm the judge 's rulings, findings,3 and conclusions and to adopt the recommended Order as modified.4 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 careful- ly examined the record and find no basis for re- versing the judge's findings . Contrary to our dis- senting colleague, we find that the judge did not err in refusing to credit the testimony of the Re- spondent's president Robert Fisher over that of the four discriminatees as to the substance of discus- sions Fisher had with the discriminatees on 13 April 1981 , and in discrediting the mutually cor- roborated testimony of Fisher , his son Curtis, and i The Respondent has requested oral argument The request is denied as the record, exceptions , and briefs adequately present the issues and the positions of the parties 2 The Respondent claims that the Board erred in refusing to accept a document, containing its exceptions and briefs , which was filed on 14 February 1983, and that its refusal to do so was arbitrary and amounted to a denial of due process The Respondent 's claim is without merit, for the document which the Board, through its Executive Secretary, proper- ly refused to accept, entitled "Memorandum of Exceptions" and consist- ing of more than 131 pages of exceptions and briefs , did not comply with the provisions of Sec 102 46()) of the Board 's Rules and Regulations, which requires that all briefs submitted to the Board "shall not exceed 50 pages in length " The Respondent was duly notified of the provisions of Sec 102 46(1) when it was served with a copy of the judge's decision Finally, on receipt of its brief dated 14 February, the Board granted the Respondent an extension of time, until 11 March 1983 , in which to resub- mit its exceptions and brief in proper form, which the Respondent has done and which the Board, as noted, has fully considered Under these circumstances, the Board 's refusal to accept the Respondent's 14 Febru- ary brief cannot be viewed as arbitrary , nor can it be said that the Re- spondent was denied due process or prejudiced in any way by the Board's actions 2 The Respondent contends that the judge's decision shows bias and prejudice. After a full review of the record and the judge's decision, we do not find any evidence to support the Respondent's claim that the judge's findings were the result of bias and prejudice 4 The judge's recommended Order shall be modified to include an ex- punction remedy his secretary-bookkeeper Maddocks, concerning the timing of Fisher's decision to terminate the dis- criminatees. Fisher's testimony concerning the 13 April discussions and other meetings was discredit- ed by the judge primarily on demeanor grounds. In this respect, the judge noted that while on the wit- ness stand Fisher was argumentative and appeared to be testifying from something other than his own recollection of events. He further noted that Fisher displayed "a great reluctance to be pinned down," demonstrated an "inordinate fear of saying any- thing which might vary from statements" made prior to the hearing, and was wary when respond- ing to questions on cross-examination. Finally, the judge noted that the testimony of the four discri- minatees was much more consistent than Fisher's version of the 13 April meetings. Under these cir- cumstances the judge concluded, and we agree, that Fisher's testimony lacked candor and should not be credited. We further agree with the judge that the testi- mony of Fisher, Curtis, and Maddocks concerning the sequence of events that transpired on the date of discharge should not be credited. While Fisher's testimony, as pointed out by our dissenting col- league, is to some extent corroborated by Curtis and Maddocks, his testimony is in other important respects in direct conflict with that of the latter two. Thus, contrary to Fisher's testimony, Mad- docks emphatically denied that Fisher consulted with her as to the reasons to be given for the dis- charge of the discriminatees. Further, Curtis denied Fisher's claim that he asked Fisher to spare discri- minatee O'Connell from discharge and also dis- agrees with Fisher as to when and whether the dis- criminatees' timecards were checked prior to their discharge. These conflicts in testimony, along with the circumstances surrounding the discharges, i.e., their abruptness, the fact that they resulted in the elimination of the entire first shift and that all four discriminatees were not equally culpable in taking a long lunch break, and the Respondent's failure to check the timecards of the discriminatees to deter- mine the length of lunch breaks, convinced the judge, as it does us, that the testimony of Fisher, Curtis, and Maddocks should not be credited. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Advance Development & Manufacturing Corporation, Guilford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 275 NLRB No. 36 ADVANCE DEVELOPMENT CORP 187 1. Insert the following as paragraph 2(b) and re- letter subsequent paragraphs. "(b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way." 2. Substitute the attached notice for that of the administrative law judge. MEMBER HUNTER, dissenting. Contrary to my colleagues in the majority, I would reverse the decision of the judge and find that the Respondent discharged employees Schwab, O'Connell, Ketchale, and Jump because, despite warning from the Respondent, they repeat- edly exceeded the Respondent's established lunch period. Further, contrary to the judge, I find that all the evidence, including the Respondent's writ- ten records, establishes that the Respondent decid- ed to discharge the employees before it had any knowledge of union activity, that is, before it re- ceived a letter from the Union demanding recogni- tion. On the morning of 13 April 1981-the date' of the discharge-the Respondent's president Fisher called each of the four employees into his office and gave him a final warning for taking excessive lunch breaks.2 It is undisputed that the Respondent had a designated lunch period for employees of 30 minutes from 12 to 12:30 p.m., and that, on several occasions between January and March, he admon- ished the employees for taking excessive lunch breaks.3 On the date in question, following his dis- cussions with the four employees, Fisher left for lunch a few minutes after noon. He was accompa- nied by his son, Plant Manager Curtis Fisher. The four alleged discriminatees also left for lunch at that time. When Fisher and Curtis returned to the plant at 12:50 p.m., they discovered that the four i All dates herein are 1981 2 Fisher so testified His testimony in this regard is supported by docu- mentary and other evidence Thus, it is undisputed that I1 days earlier, on 2 April, Fisher admonished the same employees for taking long lunch hours, as he had done on at least three other occasions in the previous 3 months The employees' timecards demonstrate that for the first 3 days of the following week they kept their lunch breaks under 40 minutes, that on Thursday, 9 April, they took 47 minutes, and that on Friday, 10 April, they took more than an hour Although the employees testified variously that in their discussions with Fisher on the morning of 13 April Fisher either said nothing about lunch breaks or complimented them on improv- ing with respect to their lunch breaks, the clear preponderance of all the relevant evidence supports a finding that the judge erred in crediting the employees and discrediting Fisher regarding these discussions Thus, Fisher's testimony is consistent with his 2 April admonishment of the em- ployees and the fact that in the following week the employees at first took shorter lunch breaks but later exceeded their allotted time, while the employees' testimony is inconsistent, with the same undisputed evidence 3 It is clear that Fisher tolerated some deviation from the standard 30- minute lunch break It is equally clear, however, that in January through March the employees repeatedly exceeded any reasonable deviation by taking lunch breaks of 45 minutes to 2 hours, and that Fisher's admonish- ments had no lasting effect on the employees' behavior employees still had not returned from lunch. The Respondent had not received the Union's letter at that time and had no knowledge of any union ac- tivities. Fisher, Curtis, and the Respondent's secre- tary Maddocks gave mutually corroborative and uncontroverted testimony that it was when he re- turned from lunch, and before he received the Union's letter, that Fisher decided to discharge the employees. Their testimony in this regard is con- sistent with the earlier warning that Fisher gave the employees and with documentary evidence showing a pattern of excessive lunch breaks on the parts of the four employees.4 Further, there is other documentary evidence which confirms the testimony of Fisher and Curtis that they returned to the plant on 13 April before the employees did, and belies the contrary testimony of the employ- ees. 5 While I am generally reluctant to overrule credi- bility findings, in these circumstances I would find that the clear preponderance of all of the relevant evidence demonstrates that the judge erred in dis- crediting the tesimony of the Respondent's wit- nesses and finding that Fisher did not make this de- cision to discharge the employees until after he re- ceived the Union's letter later in the afternoon of 13 April.6 Accordingly, consistent with the Re- spondent's contentions, I would find that the Gen- eral Counsel has not proved by a preponderance of the evidence that the Respondent's discharge of the four employees was motivated by antiunion consid- 4 The employees' timecards show that prior to November 1980 the em- ployees generally took the half hour allotted lunch break, but that there- after they bagan to take longer lunches In the first 3 months of 1981, they often took lunches of more than an hour, on several occasions took lunches of more than an hour and a half, and twice took lunch periods of 2 hours or more Crediting Fisher, the judge found that Fisher spoke to the employees about their excessively long lunch hours on at least three occasions in January , February, and March 1981 5 As the judge found, a telephone bill showing that a call was placed from the Respondent's facility to Curtis Fisher's home shortly after 12 50 p in confirmed Curtis' testimony to that effect Based partly on this doc- umentary evidence, the judge credited the testimony of Fisher and Curtis that they returned to the plant before the employees did He nevertheless discredited the Fishers' testimony concerning the timing of the decision to discharge the employees 6 The Board's established policy, which I accept, not to overrule a judge's credibility resolutions unless a clear preponderance of all the rele- vant evidence shows that they are erroneous, is subject to the overriding consideration that "the Act commits to the Board itself, not to the Board's [administrative law judges], the power and [the] responsibility of determining the facts " Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) This applies to factual findings based on credibility resolutions as well as other factual findings Id at 545 Where a judge's credibility resolutions are based on demeanor, the Board will normally attach great weight to them Id However, demeanor is only one of a number of factors to be used in determining credibility Id at fn 2 The Board has set aside a judge's credibility resolutions, even when they are based partly on demeanor, when the record as a whole clearly fails to support them Valley Steel Products Co, Ill NLRB 1338 (1955) See also Interboro Contractors, 157 NLRB 1295 fn 13 (1966) 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erations.7 Indeed the evidence weighs in favor of finding that the Respondent discharged the em- ployees for cause. 7 An additional factor which casts serious doubt on the supportability of the majority's finding that the Respondent discharged the four em- ployees for their union activities is the lack of evidence that the Respond- ent had specific knowledge that any of the employees had engaged in union activities There is no evidence that Fisher had knowledge of any union activities in the plant prior to the afternoon of 13 April when he received a letter from the Union requesting recognition The Union's letter did not state which employees of the Respondent supported the Union, and there is no evidence that even after receiving the letter Fisher or any other agent of the Respondent had knowledge of which particular employees had supported the Union 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. WE WILL NOT discharge or otherwise discrimi- nate against our employees in regard to hire or tenure of employment, or any term or condition of employment, because they engage in union activi- ties. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Russell Schwab, Mark O'Con- nell, Robert Ketchale Jr., and Richard Jump Sr. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge and that their discharge will not be used against them in any way. ADVANCE DEVELOPMENT & MANU- FACTURING CORPORATION DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge. Pur- suant to a charge filed on April 17, 1981, by District Lodge 170, International Association of Machinists and Aerospace Workers, AFL-CIO (Union), a complaint issued on June 25, 1981, alleging that Advance Develop- ment & Manufacturing Corporation (Respondent) violat- ed Section 8(a)(1) and (3) of the Act by discharging em- ployees Russell Schawb, Mark O'Connell, Robert Ket- chale Jr., and Richard Jump Sr., on April 13, 1981, be- cause of their union activities. In its answer, Respondent denied the commission of any unfair labor practices. At the hearing , the General Counsel was permitted to amend the complaint to allege also that Respondent vio- lated Section 8(a)(1) of the Act by threatening to with- hold wage increases from employees in May 1981 be- cause they joined the Union Respondent also denied that allegation. A hearing in this case was held before me on March 1 through 4, 1982, in Hartford, Connecticut. Briefs have been received from the General Counsel and Respond- ent. The principal issue in this case is whether Respond- ent's president discharged the four immediately after re- ceiving the Union's request for recognition because they engaged in union activities or because they repeatedly took excessively long lunch breaks. On the entire record in this case including my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a Connecticut corporation, operates a job machine shop in Guilford, Connecticut. Its annnual pur- chases of materials received directly from points outside the State of Connecticut are in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharges 1. Background Respondent corporation is wholly owned by its presi- dent, Robert Fisher. Respondent specializes in producing launching and arresting gear for aircraft carriers under contract with the United States Government. It also per- forms other more typical kinds of job machine shop work, some for the Government and some for private customers About 90 percent of Respondent's receipts come from Navy contracts, and about 60 percent of working time is spent on such contracts The work varies from the rather simple to the complex, but most of it requires a high level of reliability and precision and is 100 percent inspected. Operation of vertical turret lathes (VTLs) is vital to the performance of the Navy work Respondent President Robert Fisher is in charge of Re- ADVANCE DEVELOPMENT CORP. 189 spondent's operations; his son Curtis Fisher serves as vice president and plant manager.' There is a single office employee, Carolyn Maddocks, who serves as sec- retary, bookkeeper, and general office worker. Russell Schwab, whose supervisory status is in dispute, was des- ignated as foreman at the time of his discharge. He was the only experienced machinist employed in the shop and was the only employee possessing the skills needed to perform a variety of machining operations. In early April 19812 the remainder of the work force on the day shift consisted of VTL operator Mark O'Con- nell, VTL operator trainees Richard Jump and Robert Ketchale, welder Chris Nicholson, and general factory worker Ted Emons. Fisher's son Curtis was working temporarily at that time, and an additional general facto- ry worker Russell Pitkin worked until April 7 and was replaced by Jason Brown on April 13. A small night shift consisted of VTL operators James Martindale and Gary DeGenaro. Of the four employees whose discharges are at issue, Schwab had worked for Respondent since January 1976 and O'Connell since October 1979. Jump and Ketchale both started in September 1980. 2. The supervisory status of Russell Schwab Since March 1980, Schwab was designated by Re- spondent as a foreman.3 As the only skilled and experi- enced machinist in the shop, Schwab spent most of his time in productive work. He also sharpened tools, re- paired machines, set up machines for other employees, trained and assisted them, and checked their work. Schwab had no authority to hire, fire, discipline employ- ees, grant raises, or grant time off. According to Fisher, Schwab's duties as foreman were to deal with whatever came up on the production floor if it was within his ca- pacity and otherwise to come to him or Curtis for help. On one occasion, Schwab recommended the discharge of two employees for smoking marijuana in the men's room. Fisher did not discharge them, but assigned them perma- nently to the most unpleasant work in the shop in the hope, soon realized, that they would quit. On another occasion, Schwab on his own initiative warned his fellow employees that their lunch breaks were too long, considering it part of his job to do so. Schwab transmit- ted instructions from Fisher and Curtis to other employ- ees and made work assignments to general factory work- ers after consultation with Curtis. Fisher and Curtis con- sulted him about the work performance of other employ- ees, sometimes accepting and sometimes rejecting his recommendations.4 Schwab had a key to the plant door, i For the sake of clarity Respondent's president is referred to below as Fisher, and Curtis Fisher is referred to as Curtis 2 All dates below are in 1981 unless otherwise indicated 3 There had been no one designated as foreman in the shop for several years before that Fisher testified that Schwab was made foreman in the hope that Curtis could move from the production floor into the office to help Fisher However, according to Fisher, Schwab proved ineffective, and Curtis did not move into the office While Fisher initially so testified, he later belittled the effectiveness of Schwab's recommendations on the grounds that his conduct as fore- man had proven unsatisfactory and opened the plant for the other employees when the Fishers and Maddocks were not there. He did not handle employee grievances on Respondent's behalf, but some- times relayed employee grievances to Fisher acting as an advocate for the employees In view of the fact that Curtis was on the production floor most of the time, that there were only six to seven employees other than Schwab at work at any time, that most of Schwab's time was spent in manual work, that Schwab admittedly possessed no direct authority to hire, discharge, promote, discipline, or otherwise affect em- ployee status, that at best his recommendations were only sometimes followed, and that his assignments to em- ployees were made after consultation with Curtis, I find that Schwab was not a supervisor within the meaning of the Act but was rather a skilled employee who led and assisted less skilled employees in the performance of their work. 3. The practice as to lunch hours before April 1981 and Respondent's response to it Respondent normally allowed day-shift employees a fixed lunch break from 12 to 12.30 p in., as indicated by a bell which sounded in the plant. Because of personal problems of which Fisher was aware, for some time before the fall of 1980 Schwab sometimes kept irregular hours with Fisher's acquiescence. Starting in November 1980, the four dischargees began to take longer lunch breaks, particularly on Fridays, when with some regularity they took lunch breaks of 1 hour or more. On other days of the week their lunch breaks often exceeded half an hour but were usually less than an hour.5 Starting on Monday, January 12, there was a noticeable increase in the length of the lunch breaks taken by O'Connell, Jump, and Ketchale Their lunch breaks began to run 50 minutes or more, and some of them ran well over an hour, with one Friday lunch break running over 2 hours. From the times they punched out and in as well as from their testimony, it is clear that they often were together during their lunch breaks. Between January 7 and 17, Fisher was away from the plant on vacation. Within a day or two after his return, he became aware from their timecards that O'Connell, Jump, and Ketchale were taking long lunch breaks. Some time within the following week,6 Fisher called the three employees into his office and asked for an explana- tion. They replied that they had stopped bringing lunches to work and wanted to go out for lunch Fisher told them that he wanted their lunch breaks shortened. At this time Fisher learned from the employees that they brought sandwiches and beer for lunch. What Fisher said about drinking beer and the length of lunch breaks is in dispute 5 Schwab's timecards, while showing irregular lunch breaks, show fewer long lunch breaks than those of the other three employees and also show that Schwab frequently did not take his lunch break at the same time as the other three employees 6 Fisher so testified A conflict between his testimony and an affidavit given during the investigation of this case as to the date of his discovery of the long lunch breaks was satisfactorily explained by Fisher 190 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD From January 26 through April 2, Ketchale, Jump, While I am not persuaded that Fisher's version or the and O'Connell continued to take . long lunch breaks on versions of the employees can be wholly credited, I am frequent occasions . On many days their ,lunch breaks , ex- persuaded that in critical respects relating- to conversa- ceeded an hour and , on Fridays, lunch breaks of an hour tions about the long lunch breaks before April 2 and and a half or longer were common . Following a , lunch after, the employees are to be believed . Thus, while break in excess of 2 hours on Friday , February 20, from Fisher testified that he never tolerated drinking a single which .Jump did not return, for the, •next few days the beer during lunch breaks ., and -associated long ,lunch three employees' lunch breaks did not exceed 45 .minutes. breaks with drinking, the employees testified that Fisher However, thereafter their lunch, breaks again grew indicated no objection to one or two beers, but assumed longer, with another slight reduction for a period in the they were drinking more than two beers if they stayed middle of March . more than an hour. If Fisher had the concern and anxie- For the first 4 days of the week beginning March 30, ty over drinking and its possible consequences to his the three employees took lunch breaks in excess of an business which he expressed as a witness and testified hour. and on April 2 they took a break of an hour and a that he expressed'to the employees, I find it impossible half. . to believe that he would have allowed the long lunch Fisher testified that he spoke to the three employees at breaks to continue from January to April with the weak least two times between January and April 2, telling response to his talks with the employees which their at- them essentially what he had said in January . Although tendance records demonstrate While Fisher portrayed the employees each recalled only a single conversation himself as feeling handcuffed by the lack of qualified re; with Fisher before April 2 , their recollections were un- placements on the employment market and having been certain, and differences as to details, such as when the excessively tolerant, the man who appears through his conversation occurred and who else was present , suggest testimony was not a man who would tolerate an alleged- more than one such conversation . While Fisher was also ly dangerous and business -threatening situation to contin- vague, the two ' short periods , of reduction of lunch ue out of control for several months . 8 His tolerance is breaks, one immediately after February 20 when Fisher far more consistent with the version of the employees believed he spoke to them , tend to corroborate his testi- that Fisher expressed a more permissive attitude toward mony that he spoke with them on at least two occasions drinking beer at lunch and a less frenetic concern over in February and March . the length of their lunch hours than he portrayed in his However, I cannot credit , Fisher as to what he said in testimony. • January or on these occasions. Frequently in his testimo- With respect to what Fisher told the employees about ny, Fisher used hypothetical or conditional language, in- the allowable length of the lunch breaks before April 2, dicating that he was testifying from something other than both the testimony of Fisher and the employees is vague. recollection: He frequently disavowed independent recol - Jump testified that Fisher told him that he wanted lunch lection ,of background events, and his responses on cross- ' breaks kept under an hour, and there is no more concrete examination raised substantial questions as to his credibil - version. From that testimony and the record of perform- ity..That as ResponderiYs president and owner he had a ance following the talks, I find that Fisher asked the em- strong ' desire to prevail is understandable , and that he re- ployees to shorten their lunch breaks but imposed no flected that desire on the stand was to be expected . hard and fast limits before April 2. However, his reluctance to be pinned down , his argu- mentative' volubility, the suspicion with which he re- 4 Fisher's April 2 conversation with.O'Connell, ceived questions on cross-examination, and his wariness Jump, and Ketchale in.response compel the conclusion that Fisher 's testimo- ny lacked candor and was colored throughout by his in- tense desire to prevail.7 To be sure, the testimony of the dischargees was not unflawed In particular, Ketchale's reason for taking long lunch breaks, that there was not enough work, appears contrived in the light of undisputed record evidence as to available work. Their recollections of early conversa- tions about lunch breaks appear incomplete and vary in detail ., Their testimony concerning the return of Fisher to the plant on April 13 appear to have been colored more by what they surmised happened than by recollec- tion. They, of course, also have an obvious interest in the outcome of this proceeding. At one point Fisher took exception to the characterization of welder Chris Nicholson's termination as a discharge , testifying that he . had "by mutual agreement accepted the separation from my employment of Chris Nicholson " Yet , his own testimony as to Nicholson 's termination other- wise leaves no doubt that Nicholson was discharged and not separated by - mutual agreement On April 2 Fisher called Ketchale, Jump, and O'Con- nell into his office on their return from their hour and a half lunch break. The accounts of this occasion indicate that Fisher was again not entirely clear about the length of time he expected the employees to take for a lunch break. Fisher testified that he told them that 30 minutes was the prescribed lunch hourand he would give them leeway up to 45 minutes on Fridays to go to the bank. However, his prehearing statement and testimony at un- employment hearings all indicate otherwise and variously that he told the employees that he wanted them to keep their lunch breaks down to 45 minutes but would allow a Respondent introduced evidence as to Fisher 's treatment of. other employees terminated during the first several months of 1981 and con- tends that it corroborates Fisher's testimony that during this period he generally gave repeated warnings ' to employees and tolerated substantial misconduct before resorting to terminations I do not find the circum- stances parallel in the other cases,, and indeed the record shows that Fisher did not tolerate misconduct over any extended period of time when he deemed it a threat to health or safety ADVANCE DEVELOPMENT CORP them up to an hour on Fridays when they went to the bank, that 45 minutes was more than enough, and that less than an hour was adequate for a lunch break. The testimony of each of the three employees tracks each of these versions and leads to the conclusion that at various points Fisher said each of these things, leaving no hard and fast standard established by the close of the meet- ing.9 With respect to drinking, I cannot credit Ketchale's conclusionary testimony that Fisher expressed no con- cern over drinking, in the face of testimony of O'Connell and Jump which indicates the contrary. As between O'Connell and Jump, O'Connell's testimony strikes me as a more accurate and less self serving expression of his recollection than that of Jump who may have read into the same facts a more affirmative acquiescence by Fisher. Thus, I find that Fisher said that he had no choice but to assume that when they took long lunch breaks they were drinking. When one of them replied that they split a 6-pack of beer at lunch, Fisher did not say that he would not tolerate that. However, I do not credit Fisher that he told them that he would not toler- ate even one beer in the light of Fisher's long tolerance of the long lunch breaks with the knowledge that the employees were regularly drinking beer at lunch. I also credit the employees rather than Fisher that he did not characterize his talk with the employees as a final warning, a characterization which Fisher testified he repeated on April 13 after further alleged violation of his lunch break policy. On the following day, Friday, April 3, the three em- ployees and Schwab took their lunch breaks together and were back at work in 53 or 54 minutes. On Monday, April 6, Schwab, O'Connell, and Jump took lunch breaks of 36 or 37 minutes. Ketchale, for reasons not indicated, did not take a noon break but was off the clock later in the day for 31 minutes from 1:49 to 2:30 p.m. On Tues- day, April 7, of the four only Ketchale worked, and his lunch break was 27 minutes. On the following day, the lunch breaks of the four were from 31 to 39 minutes. On Thursday, all four apparently took their lunch break to- gether for 47 minutes. Again on Friday, except for Jump, they took their lunch break together and were off the clock from an hour and 5 minutes to an hour and 10 minutes. 10 5. Union activity Some time during the week of April 6, Jump and Schwab decided to seek union representation because of dissatisfaction over wages and benefits, and Jump said he would get union authorization cards for the employees to sign. On Thursday, April 9, after work, Jump and Schwab decided to seek union representation because of dissatis- faction over wages and benefits, and Jump said he would get union authorization cards for the employees to sign. 9 Indeed, had Fisher imposed the limits to which he testified in this proceeding, he would not have been pleased by the lunch break taken by the employees the very next day 10 Jump left the plant earlier in the morning to attend to personal busi- ness and joined the others at lunch, returning with them 191 On Thursday, April 9, after work, Jump obtained sig- natures on cards from Ketchale, O'Connell, and Schwab, as well as welder Chris Nicholson and night-shift em- ployees DeGenaro and Martindale Jump also signed a card and delivered them to Union Business Representa- tive Turek. i i On Friday, April 10, Turek sent Respondent a letter by certified mail advising him that the Union represented a majority of Respondent's production and maintenance employees and requesting recognition and bargaining. That letter was received by Fisher on Monday, April 13, under circumstances described more fully below. There is no evidence that Fisher had any knowledge of the union activity before he received the letter from the Union. 6. Jump's conversation with Fisher about his wage increase On Friday, April 10, after lunch, Fisher called Jump into his office to discuss his 6-month merit review. Fisher had missed the anniversary date, and Jump had reminded him of it the previous week. Fisher told Jump that he had reviewed his work and was very pleased with it. Fisher said that he had great potential with the Company but had not reached his full potential yet, that he had a long future with the Company, and that he was very pleased that Jump was keeping his lunch breaks under an hour. Fisher gave him a raise of 30 cents an hour retroactive for 2 weeks.12 7. The termination of Chris Nicholson Chris Nicholson was the only welder in Respondent's shop and was highly skilled. On Friday, April 10, as Fisher was passing Nicholson's work station, Nicholson called to him and told him that he had to have a raise of $1.10 an hour "or else." As he finished speaking, he forcefully struck the base of the piece he was working on with a sledge hammer which was in his hand. Fisher told him not to do that and said that it was not appropri- ate to discuss wages then and there. As Nicholson was scheduled to work the next day, Fisher said that he would talk to Nicholson about his wages in the office at that time. When Nicholson came in the next day, Fisher told him that he did not appreciate Nicholson making threats or 11 There are some inconsistencies between Jump and DeGenaro as to the time and place at which DeGenaro signed his card, and circum- stances support DeGenaro's version However, there is little question that cards were signed and delivered to Turek before he wrote Respondent requesting recognition 12 Jump so testified Fisher did not testify as to the substance of the conversation , but testified that his conversation with Jump took place earlier during the week ending April 4, when he gave Jump and increase retroactive to the week ending March 21 He testified that he had no reason to speak to Jump on April 10 about an increase which Jump had already received and which had already been discussed However, Re- spondent's secretary-bookkeeper Maddocks testified that employees were paid every Friday when they received paychecks for their earnings during the week which ended on the previous Saturday She testified that Jump received his retroactive raise on the paycheck he received on Friday, April 10 Thus, it appears that Jump had not received his in- crease before April 10 and that it is Fisher's testimony which should be discredited I have credited Jump 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taking a sledge hammer to finished work, Fisher'said that whatever Nicholson's "or else" was, he had better do it. As Nicholson had claimed to have had other job offers at higher pay, Fisher suggested that he had better take one of those jobs. Nicholson said that he did not have an actual offer and sought to remain, but Fisher told him that he no longer wanted Nicholson around the 'shop at any price. Nicholson then gathered his personal belong- ings and left. 8. Fisher's meeting with Schwab, O'Connell, Jump, and Ketchale on the morning of April 13 On the morning of Monday, April 13, Fisher called Schwab, O'Connell, Jump, and Ketchale into his office and spoke with each of them separately. There are sub- stantial differences between the employees' versions and Fisher's version of their meetings. The employees testi- fied that Fisher explained the discharge of Nicholson and talked to them about their own work and prospects. They denied that Fisher said anything about the length of their lunch breaks other than to commend their im- provement the previous week. While Fisher also testified that he discussed the Nicholson discharge and the merit increases of each of the employees, his description of the meetings focused almost entirely on the lunch breaks. According to him, he told each of the men' that he was unhappy with the length of their lunch breaks at the end of the previous week and repeated much of what he had said on April 2, again telling them that he was giving them a final warning. In the case of Shcwab, he testified that he criticized Shcwab's work, lack of leadership, and failure to set an example for the others with respect to the lunch breaks, stressing the possible consequences to his business if the men drank at lunch. On cross-examina- tion, Fisher conceded that his reasons for meeting with the employees were the Nicholson discharge, breakdown in communications in the shop, and his desire to give the men a pep talk and to get the shop running on an even keel. In making these concessions, Fisher displayed great reluctance to be pinned down and an inordinate fear of saying anything which might vary from statements he had made before the trial, characteristics shown else- where in his testimony. From Fisher's responses on cross-examination, it is clear at a minimum that his origi- nal version of the meeting was incomplete and distorted. While the testimony of the employees is not without flaws, I am convinced that Fisher's testimony is less reli- able than that of the employees. As set forth above, I have not credited Fisher's testimony as to what he told them about the permissible length of their lunch breaks on April 2, in part because of its inconsistency with his statements elsewhere, and I have found that he gave no hard and fast standard for the length of lunch breaks. In the light of that finding the Thursday and Friday lunch breaks were not substantial deviations from the general guidelines given by Fisher, and Jump's credited testimo- ny as to his April 10 conversation with Fisher shows that Fisher did not view Jump's lunch breaks the previ- ous week as excessive. Moreover, the versions of the em- ployees of the April 13 conversation are much more con- sistent than Fisher's version with the meetings' purpose ployees a pep talk. Furthermore, as stated above, al- though Fisher at the hearing expressed great concern- and anxiety over the length of the lunch breaks and their relationship to drinking, the relatively 'small improve- ments in the employees' practices after Fisher's previous conversations with them and his failure to take more de- cisive action over many months cast substantial doubt that the concern expressed'by Fisher at the hearing was the same as that expressed to his employees before their discharges. I have credited Schwab, O'Connell, Jump, and Ketchale as to these conversations and find the facts as follows. Fisher explained to Schwab that he fired Nicholson the previous Saturday because Nicholson had demanded more money and Fisher would not be threatened or have demands made on him by anyone Fisher referred to a previous experience with i former partner whose interest he had bought out, as a basis for his feelings. He then told Schwab that he would be up for review in May and that he was establishing a standard format for review so that everyone would be reviewed at a set time rather than at different times as in the past. Fisher expressed concern over the fact that he felt 'that there was an un- dercurrent of problems in the shop, but he did not speci- fy what they were. Fisher also said that it appeared that Jump was not satisfied with the' wage increase he had re- ceived, and Schwab agreed. i 3 Schwab then said that he had been unhappy with Nicholson getting the same wage" as Schwab. Fisher said' that welders made more money than machinists, and Schwab replied that with his length of service, knowledge of the operations, and position he should be earning more. Fisher said that it would be'dis-` cussed at his review. Fisher said nothing to Schwab about his lunch breaks or those of the other employees. Fisher next spoke to O'Connell and told him that there was an undercurrent in the shop which he wanted to get out and that he wanted to explain to him why Nicholson was fired as he felt that had something to do with it. Fisher said that Nicholson was fired because he tried to demand a raise and that Fisher refused to be intimidated. He said that Nicholson was a good worker but that he did more to undermine the morale of the shop than anyone else, that Fisher could not tolerate that kind of behavior, and that he had to get rid of him Fisher also told O'Connell that he was doing a good job cutting down on his lunch hours and hoped the em- ployees would keep it up. He told O'Connell that his next raise was due in October and approximately what it would be. He added that O'Connell had ' a very low scrap rate and was doing very good" work. The meeting lasted 15 to 20 minutes. Fisher did not' mention the length of O'Connell's lunch break on the previous Friday. - Fisher next called Jump to his-office and told him that, although-he had probably heard about it, Fisher wanted to tell him himself about the reasons for Nic'holson's dis- charge and proceeded to discuss them He then told Jump that he had a long future with Respondent and that he was very pleased with his work.. Fisher said to deal with the Nicholson discharge and give the em- 13 Jump had expressed his dissatisfaction to Schwab that morning ADVANCE DEVELOPMENT CORP nothing about the length of Jump's lunch break on the previous Thursday or Friday. In their conversation, Fisher said that there was an underlying problem in the shop and that he wanted to nip it in the bud. . Fisher next spoke to Ketchale. He told him that he had fired Nicholson because Nicholson had demanded money and no one dictated to -him. He stated he had bought out an earlier partner because he wanted no one dictating to him from above, or below. Fisher then said that Ketchale was doing a good job, was a good opera- tor, was very versatile, and could go a long way with Respondent. Fisher also told him that he was glad they were keeping their lunch breaks down to the prescribed time, and asked if Ketchale had any gripes. Ketchale said he had one complaint about the promise Fisher -had made to him about wages at the time he was hired. Fisher said that it was too late to do anything about that then. Fisher said nothing about the length of the lunch break Ketchale took on the previous Friday. At noon or a few minutes after, while Ketchale was still in Fisher's office, Fisher's secretary Maddocks came to the office to indicate that she was leaving for lunch. When their conversation finished, Ketchale left Fisher's office, washed up, and punched out for lunch at 12:11 p.m.14 - .9. The April 13 lunch break O'Connell and Jump punched out for lunch at 12:03 p.m. and Schwab at 12:05. They drove in one car to a shopping center about 1 mile away with Nicholson whom-they picked up on the way, to have sandwiches and their "usual six pack, " Ketchale punched out at 12:11 p.m. and drove in his car to meet them. O'Connell, Jump, and Nicholson split the- beer between them. Schwab did not drink beer, and Fisher was aware of that. After finishing lunch,-they drove back to the plant and punched in to return to work. Schwab punched in at 12:52 p.m. and the other three at 12:53. Thus, Ketchale was off the clock .42 minutes, Schwab 47 minutes, and O'Connell and Jump 50 minutes. - After finishing his conversation with Ketchale, Fisher left the plant for lunch in his car with Curtis. They re- turned from lunch about 12:50 p.m., before Schwab, O'Connell, Jump, and Ketchale returned. 15 14 Fisher testified that he terminated his conversation with Ketchale promptly when the noon bell rang, that he left for lunch promptly with his son, and that Maddocks was still in her office when Ketchale left Maddocks, however, testified that Fisher was still busy when she left for lunch by 12 05 pm and that she either told Fisher directly or asked someone else to tell Fisher she was leaving She denied speaking to Fisher, however, about going to get the mail, as Ketchale testified I find it unnecessary to decide whether a conversation about the mail occurred as the time of Fisher's visit to the post office seems clearly established However, I find that Maddocks otherwise corroborates Ketchale as to when he left Fisher's office. I credit Ketchale rather than Fisher as to when he left Fisher's office, noting in addition that there was no apparent reason for Ketchale to delay clocking out after leaving Fisher's office 11 O'Connell testified that when he returned to the plant he observed only Curtis Fisher's car in the area in front of the plant where manage- ment parked , and Schwab and Jump testified that O'Connell later made a remark about missing cars at the time of their return I have credited Fisher and Curtis that they returned shortly before the others, particular- ly in the light of the telephone bill; corroborating Curtis that he made a call to his wife from the plant at 12 54 p in that day I find the testimony of O'Connell, Schwab, and Jump, as well as the testimony of Ketchale 193 10. Fisher's receipt of the letter from the Union Fisher left the plant again to go to the post office about 1-30'p.m. At that time he picked up his mail which included the certified request for recognition from the Union and some Government checks in payment for work performed by Respondent.16 Fisher testified that he had no prior knowledge of his employees' union ac- tivities and that when he received the Union letter he was "thunderstruck." 11. The termination of Schwab, O'Connell, Jump, and Ketchale About 3 p.m., Fisher called Schwab, O'Connell, Jump and Ketchale into his office one at a time and told each of them that he was terminated. He gave each of them a pink slip indicating that he was terminated for "Repeated violation of company rules." In amplification he told each of them he was terminated for taking excessively long lunch breaks. He said nothing about drinking at lunch. 12. Concluding findings According to Fisher and Curtis, when they returned from lunch and saw that the employees' cars were not in the lot, Fisher decided that he could not tolerate the long lunch hours any longer and that he would terminate them They testified, along with Maddocks, that when Maddocks returned from lunch at 1:05 p.m., Fisher in- structed her to prepare termination slips for the four men and that she had started to do so when Fisher left for the post office. Fisher and Maddocks also testified that when Fisher returned from the post office he had two Govern- ment checks which he wanted to deposit as quickly as possible and that he interrupted Maddocks' work on the termination slips to have her prepare a bank deposit and an express mailing of a deposit to Respondent 's money fund account in New York. They . testified that Fisher then left for the bank and the post office -and returned to the plant to carry out the terminations. While their testi- mony contains considerable detail and is mutually cor- roborative in most respects, there are contradictions which, along with the circumstances leading up to the discharges, lead me to conclude that their testimony as to the timing and cause of the decision to discharge the four employees cannot be credited. Thus, while Fisher and Curtis agreed that Fisher de- cided to discharge the four employees immediately on their return from lunch, Fisher testified that Curtis asked if O'Connell could be saved and that he responded that it would be discrimination and that he could not make an exception for _him. Curtis, however, testified that when Fisher said that he could no longer tolerate the long lunches and had to discharge the four employees, Curtis that he unsuccessfully looked for Curtis after his return, likely to have been colored by their belief that Fisher went for the mail while at lunch 11 Postal clerk Philip Hamilton, who delivered the Union 's certified letter to Fisher, testified that he was at lunch or otherwise away from the delivery window from noon until approximately 1 10 p m, on April 13, corroborating Fisher's testimony that he did not pick up the mail while at lunch 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merely said that he had to agree. Fisher and Curtis also differed in their testimony as to when and whether the employees' timecards were checked before they were discharged. Fisher testified that the cards were not checked before the four employees returned to the plant, but that they checked the timecards thereafter to verify that they had the right men Curtis, however, testified that he checked the cards before the employees returned to the plant and reported back that all four men were still out to lunch but not when they had checked out. He testified that, after the men returned, he checked their timecards to verify that they had punched in. As between Fisher and Maddocks, there is a discrep- ancy with respect to discussion between them of the reason for the terminations. Fisher testified on direct ex- amination that, before he left for the bank and post office, Maddocks asked him what reason for the termina- tions she should show on the pink slips. He testified, "There's always a, gray area there about what should- you did, And, I said, well, Carol, I've been discussing this earlier and been thinking about it, what could we do? What could we possibly put down there? And I said, ah-let's put down repeated violation of company rules. How does that sound? She says, well, that's really what it is? And I said, okay, put that down."17 Maddocks tes- tified that when Fisher returned from the bank and post office she asked him what reason to show on the slips for the terminations and he supplied the reasons which she typed on them. When she asked if Fisher asked her what she thought he should give as a reason, she replied em- phatically, "Oh, no." Apart from the inconsistency between Fisher and Curtis as to checking the timecards, both their versions show that no effort was made to determine how long the four employees took for their lunch breaks before the de- cision was made to terminate them. Thus, the asserted trigger for the discharge was that the four employees had again overstayed their lunch hours. Yet, according to Fisher he made the decision without even checking the timecards to see when they left, and indeed without being certain whether he had the right four men. Even according to Curtis, the cards were checked but not for the purpose of reporting back how long the men had been gone. The testimony as to the discussion between Fisher and Maddocks of the reason for the terminations is illuminat- ing for a second reason apart from the inconsistency. Al- though both testified that the decision was communicat- ed to Maddocks when she returned from lunch, both agreed that the reasons were not mentioned until after Fisher had returned from his first trip to the post office, with Maddocks placing it even later. Yet, according to Fisher, he had earlier discussed with Maddocks the in- formation she needed for the slips, and Maddocks gave every appearance of being organized and efficient. Cer- " On cross-examination Fisher testified he believed he consulted with Maddocks, that "this wasn't an off-the-top-of-the head kind of answers, this took some reflection as to precisely what to put on the termination slip" commenting that he was agitated at the time He testified further, "I believe I would discuss this kind of thing with Carol If you are asking me did I discuss this thing with Carol, I would say no, if you asked me I believed I discussed it with Carol, I would say yes " tainly one would have expected Maddocks to ask the reason out of simple curiosity if nothing else when in- formed that the heart of the day shift was to be terminat- ed. Beyond that, however, Fisher's version indicates that the reason for the terminations was not straightforwardly apparent and revealable. If the reason given on the ter- mination slips was the true reason, there was little need for him to consult Maddocks or for Fisher to ask, "What could we possibly put down there?" Fisher's testimony in this regard associates readily with his testimony as to reasons for discharging other employees when he con- cededly stated false reasons, in one instance in order to avoid possible physical retaliation and in others to avoid interfering with other job opportunities for the dis- charged employees. Other circumstances contribute to weaken the credibil- ity of the version of Fisher, Curtis, and Maddocks. The decision to terminate all four employees was made abruptly, without even permitting them to complete their shifts despite the fact that there were no other VTL op- erators on the first shift and Schwab was the only gener- al machinist in the shop. The four employees represented half of Respondent's productive employees and, added to Nicholson's termination, these dischargees left Respond- ent's productive capacity crippled. Moreover, all four were terminated despite the fact that they were not equally culpable. Thus, Ketchale was off the clock for less than 45 minutes, a length of time which Fisher's own affidavit indicates was acceptable to him Fisher made no attempt to determine the length of Ketchale's absence despite the fact that Ketchale had left about the same time Fisher left the plant and he had a basis to know ap- proximately how long Ketchale had been away from the plant. The inclusion of Ketchale in the group to be ter- minated, apart from the failure to check the timecards of the others, is strong evidence that the length of the lunch breaks was not the true reason for the terminations. Schwab also fell in a different category from the others. Unlike them, Schwab had never been spoken to by Fisher about excessive lunch breaks. He had joined the others on long lunch breaks on some occasions but on many others he had not. Fisher knew of his personal problem, and had acquiesced in his irregular hours. Yet, Schwab was suddenly treated the same as the others and discharged for the same reason as them without prior warning despite his different circumstances. In rejecting the testimony of Fisher, Curtis, and Mad- docks, I have considered Respondent's arguments to the contrary but have found them nonpersuasive. To be sure, Fisher was corroborated by Curtis and Maddocks as to the sequence of events on April 13, and one does not lightly dismiss such corroboration. But experience shows that identity of interests in our society often serves to color testimony and even recollection. Here the identity of interests is adequately shown between Fisher and his son and between Fisher and Maddocks, a longtime de- voted employee who was cause to be grateful to Fisher. I have considered the testimony of Fisher and Maddocks as to the time required to compiled the information and make out the termination slips for the four employees, which Maddocks placed at 30 or 40 minutes. Even as- ADVANCE DEVELOPMENT CORP suming that her estimate was accurate, there was clearly time for Maddocks to do that work and to prepare the bank- and money fund deposits between the- time Fisher returned from his first visit to the post - office . and the time the employees were notified of their terminations. Under all the circumstances, I do not credit the testimo- ny of Fisher, Curtis, and Maddocks as to sequence of events and the considerations which led to the termina- tions of Jump, Ketchale, O'Connell, and Schwab. I find further that the evidence warrants the inference that the reason for the discharges was the employees' union activities. The discharges occurred within an hour and a , half of Fisher's receipt of the Union's demand for recognition . They eliminated almost all of Respondent's day shift and with Nicholson 's prior discharge more than half of Respondent's employee complement . Although allegedly triggered by an excessive lunch break that day, Ketchale clearly had not exceeded any limit indicated by Fisher . on April 2 , Fisher had acquiesced in Schwab's ir- regular hours, and Fisher had never told Schwab that he was to be held to the same limitations as the others or held responsible 'for their conduct. While there is no evidence that Fisher knew of any in- dividual employee's union activity or of any union activi- ty before he received the Union 's letter, his meetings with the employees on the morning of April 13 show that he was concerned about their morale, concerned about an undercurrent in the shop following the dis- charge of Nicholson, and aware that at least three of the four discharged employees were dissatisfied with their wages. Moreover, both the fact that he chose to give a pep talk to the four day-shift employees and his state- ment to O'Connell that Nicholson did more to under- mine morale than anyone else in the shop show his belief that morale among the day-shift workers, with whom Nicholson had worked , was poor . Thus, when the letter arrived asserting that the Union represented a majority of Respondent's employees, Fisher had strong reason to believe that any group of his employees who were inter- ested in a union would include these employees . Further- more, Fisher's reaction to Nicholson's attempt to get a raise and what he told the other employees about it es- tablish that Fisher was hostile to the notion that anyone might make demands on him, something which a newly selected union could be expected to do on behalf of the employees. I conclude that Fisher discharged Jump, Ket- chale, O'Connell, and Schwab in reaction to the receipt of the union letter in order to frustrate the Union's ef- forts to achieve recognition and not because of the lunch break practices of the employees . i 8 Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging them. 18 In reaching this conclusion, I have considered the findings in state unemployment compensation proceedings that the four employees were discharged for cause I do not find them of sufficient probative value to warrant a similar conclusion in this case The employees were not repre- sented by counsel in those proceedings, the records developed were not as complete as the record in this proceeding, and the decisions were ren- dered under a different statute, with different definitions, policies, and purposes from the National Labor Relations Act. See Justak Bros. & Co, 253 NLRB 1054 (1981). 195 B. The Alleged Threat to Withhold Employee Wage -Increases The allegation that-Respondent threatened to withhold employee wage increases because of their union activi- ties, added to the complaint by amendment at the hear- ing, is based entirely on the testimony of VTL operator Gary DeGenaro. According to DeGenaro one day in mid-May, while he, VTL operator Martindale, and Curtis were inspecting some parts, Martindale said he could not live on what he was earning and would like a raise. DeGenaro testified that 'Curtis said that he could not do anything for him at that time and when Martin- dale continued to complain, Curtis added, "I'm not the, one who told you to join the Union," and walked away. I have concluded, however, that DeGenaro is 'not to be credited as to this testimony, which was contradicted by Curtis. i 9 On cross-examination, DeGenaro showed great uncertainty as to whether the conversation oc- curred before or after he gave a statement in connection with the investigation of this case in which the conversa- tion was not mentioned. DeGenaro first mentioned it, to a representative of the General Counsel about the time he left Respondent's employment, and it appears that De- Genaro left Respondent's employment with less than warm feelings toward Respondent. In these circum- stances, I am not persuaded that DeGenaro's testimony as to a conversation almost 10 months before the hearing was based • on an accurate and uncolored -recollection. Accordingly, I shall recommend dismissal of this allega- tion of the complaint. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I. have found that Respondent unlawfully dis- charged Russell Schwab, Mark O'Connell, Robert Ket- chale Jr., and Richard Jump Sr., I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to each of them of the amount he normally would have earned from the date of his termination until the date of Respondent's offer of reinstatement, less net earnings, to which shall be added interest to be comput- ed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).20 . On the basis of the above findings of fact and the entire record in this case, I make the following 18 Martindale, who left his job and the area shortly after the alleged incident, was not available to testify 20 See also Isis Plumbing Co, 138 NLRB 716 (1962) 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Advance Development & Manufacturing Corpora- tion is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. District Lodge 170, International Association of Ma- chinists & Aerospace Workers, AFL-CIO is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By discharging Russell Schwab, Mark O'Connell, Robert Ketchale Jr., and Richard Jump Sr., because of their union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent, Advance Development & Manufac- turing Corporation, Guilford, Connecticut, its officers, agents, succesors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, because they engage in union activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Offer Russell Schwab, Mark O'Connell, Robert Ketchale Jr., and Richard Jump Sr., immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of discrimination against them in the manner set forth in the section of this decision enti- tled "The Remedy." (b) 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 (c) Post at its Guilford, Connecticut, place of business copies of the attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Officer in Charge for Subregion 39, 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. (d) Notify the Officer in Charge for Subregion 39 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 21 If no exceptions are filed as provided by Sec 102.46 of the Board's 22 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses at Labor Relations Board "