Storall Manufacturing Co., Inc.

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Storall Manufacturing Company , Inc. and Interna- tional Union of Electronic, Electrical, Techni- cal, Salaried and Machine Workers, AFL-CIO, Local 1151. Cases 26-CA-10428, 26-CA- 10483, 26-CA-10534, 26-CA-10595, 26-CA- 10704, and 26-CA-10758 26 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 October 1984 Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. 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,2 and conclusions,3 as modified, and to adopt the recommended Order as modified. i In its brief to the Board, the Respondent renews its motion to strike certain evidence concerning discnmmatee Gary Miller's dealings with a nonparty personnel agency which, in his effort to secure employment, he confused with Employment Consulting , Inc (ECI) Since this is back- ground evidence, upon which no violation is premised, it is not prejudi- cial to the Respondent The motion to strike is therefore denied We also deny the Respondent 's renewed motion to sanction the Union with contempt and dismissal of the complaint for its alleged breach of a stipulation entered into by the parties Pursuant to the stipulation, the parties agreed to seal and not to discuss outside the hearing the contents of certain financial records of ECI According to the Respondent, the Union breached the stipulation by distributing to unit employees a hand- bill containing information concerning the expenses incurred by the Re- spondent in securing temporary employees and the advice of a particular labor relations consultant A review of the record supports the Union's claim that the subject information is contained in materials not covered by the stipulation Accordingly, we find the Union has not breached the stipulation We likewise deny the Respondent 's motion to reconsider and/or motion to reopen hearing In that motion, the Respondent challenges the propriety of the judge's recommended Order directing it to reinstate dis- crimmatee Miller because of certain alleged misconduct which occurred during the strike starting 21 May 1984, but following the close of the hearing on 18 July 1984 The Respondent may raise the issue of Crump's suitability for reinstatement in the compliance stage of this proceeding Further, its contention that it has, subsequent to events which are the subject of the instant complaint , satisfied its bargaining obligation is irrel- evant to the issues presented 2 The Respondent contends that the judge 's interpretation of the evi- dence and his credibility findings exhibit bias and prejudice On carefully examining the judge's decision and the entire record, we are satisfied that the contentions of the Respondent in this regard are without merit It is the Board's established policy not to overrule a judge's resolutions with respect to credibility unless the clear preponderance of all the rele- vant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the judge 's credibility findings 3 Contrary to the judge, we find that the evidence fails to support the conclusion that ECI is a joint employer with the Respondent However, we find that ECI acted as the Respondent's agent in providing the tem- porary employees used by the Respondent to perform unit work , and the following services related to these individuals administrative paperwork, skill qualifying, interviewing, reference, verification, payroll , and insur- ance Member Dennis agrees with the judge that the Respondent was a joint employer with ECI of the temporary employees See her dissenting opm- 1. We find the evidence does not support the judge's finding that the Respondent violated Sec- tion 8(a)(1) by threatening employees with declin- ing work orders because of the union campaign. The judge found that, at a meeting of employees called by the Respondent, Executive Vice Presi- dent Jim Phillips reenacted a phone conversation in which a customer expressed concern that Storall would be unable to meet its orders in light of union trouble, and that Phillips then went on to threaten the employees with declining work orders because of the union campaign, in violation of Section 8(a)(1). The judge found the threat was illustrated by the credited testimony of employees Miller, Roy Kilgore, and Frankie Armstrong, and was not denied by Phillips. The record, however, shows that these employees gave conflicting versions of what, if anything, was said by Phillips after the re- enactment, that Phillips specifically denied making the statement the judge seems to have relied on in making his finding (Kilgore's version), and that no version of what was said by Phillips warrants the finding that Phillips unlawfully threatened employ- ees. According to Kilgore, after the reenactment, Phillips said that, since union activity began, work orders had been falling back and the warehouses were getting stockpiled. Not only does Phillips deny making this statement but, even if said, its ac- curacy as a description of an existing business con- dition brought on by union activity is not chal- lenged by the General Counsel. So viewed, we find it to be a statement of fact protected by Section 8(c) of the Act,4 rather than a threat of reprisal, as found by the judge. Moreover, Kilgore's version is contradicted by those of Miller and Armstrong, whose own versions lend little or no support to the judge's finding. Armstrong did not recall Phillips making any such statement and, consequently, no ion in TLI, Inc, 271 NLRB 798 (1984) She also agrees with the judge that the Respondent's decision to employ temporary employees on the night shift , instead of recalling laid-off unit employees, was a mandatory subject of bargaining See her discussion of category II management deci- sions in Otis Elevator Co, 269 NLRB 891 at 896 (1984) We find no evidence to support the judge's finding that Supervisor Royal Stokes interrogated Miller during a meeting at which Stokes veri- fied that the Respondent could start negotiations from zero We adopt, however, the judge's finding that Stokes' statement constituted a threat that negotiations would result in a loss of benefits and therefore violated Sec 8(a)(1) of the Act No change in the recommended Order is required as a result of this modification In the absence of exceptions, we adopt pro forma the judge's finding that the General Counsel failed to establish that President William Hurt's remarks to employees led them to believe that benefits or wages would necessarily decrease In the absence of exceptions , Chairman Dotson adopts pro forma the judge's finding that Supervisor John Fairhead, by jokingly asking em- ployee Frankie Armstrong if he passed out union authorization cards, un- lawfully interrogated Armstrong in violation of Sec 8(a)(1) 4 Leggett & Platt, Inc, 230 NLRB 463 (1977) Cf Crown Cork & Seal Co, 255 NLRB 14 (1981) 275 NLRB No. 39 STORALL MFG CO threat can be found based on his testimony. Miller testified that Phillips at some point said, "[B]ecause of this union stuff they were slowing down and couldn't get out and get out orders and it was really messing up everything." Besides its ambigui- ty, Phillips' statement, as recounted by Miller, de- scribed a situation that the Respondent found itself facing as an incidental effect of the ongoing organi- zational activity, rather than one that it would seek to cause. Therefore, the statement was both too ob- scure and vague to constitute a threat. Based on the foregoing, we find that the General Counsel has failed to establish by a preponderance of the evidence that the Respondent violated Sec- tion 8(a)(1) by threatening its employees with de- clining orders because of the union campaign. Ac- cordingly, we shall dismiss the allegation of the complaint on which the judge's finding is based. 2. We agree with the General Counsel that the judge erred in failing to find that the Respondent violated Section 8(a)(5) and (1) of the Act by refus- ing, since 18 November 1983,5 to discuss and proc- ess employee grievances with the Union. Between 24 October and 16 November 1983, the Union wrote seven letters requesting the Respond- ent to meet with it to discuss grievances arising since the Union's 18 October certification. The grievances related to various matters affecting the employees' terms and conditions of employment, including alleged harassment, reduced hours, denial of Christmas bonuses, and disciplinary warnings. While the Respondent, in a 16 November letter, re- sponded to some of these grievances, in an 18 No- vember letter it indicated that "issuance of warning notices in disciplinary action taken in reference to any bargaining unit employee is within manage- ment [sic] prerogative, and until such time as there is a collective bargaining agreement between the parties, and so long as Storall continues to imple- ment a prior existing employment policy, Storall does not intend to discuss the merits or lack there- of of a particular disciplinary action." Thereafter, the Respondent did not respond to union letters, at least six in number, that raised grievances concern- ing disciplinary action taken against unit employ- ees. It is well settled that grievances relating to terms and conditions of employment, including discipli- nary actions taken against employees, are proper 5 All dates are in 1983 unless otherwise indicated 221 subjects of collective bargaining.6 An employer's obligation under the Act with respect to individual grievances presented by the collective-bargaining representative of its employees is no different from its obligation with respect to contract negotiations. That is, an employer is obligated to discuss and process such grievances with the union in a sincere effort to reach resolution.7 The absence of a collec- tive-bargaining agreement incorporating a griev- ance procedure does not relieve an employer of this obligation.8 Here, the Respondent, through its 18 November letter, made clear its position that, until a grievance procedure was agreed on by the parties, it had no intention of discussing, let alone attempting to resolve, grievances concerning disci- plinary actions against unit employees. The Re- spondent thereafter indicated its adherence to this position by failing to respond to any of the griev- ances subsequently filed by the Union. We find that by this conduct the Respondent has refused to dis- cuss and to process grievances in violation of Sec- tion 8(a)(5) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Storall Manufacturing Company, Inc., Jonesboro, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete from paragraph 1(a) the phrase "by threatening its employees with declining work orders because of the union organizing campaign." 2. Insert the following as paragraph 1(d) and re- letter the subsequent paragraphs. "(d) Refusing to discuss and process employee grievances with the Union." 3. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraphs. "(b) Discuss and process employee grievances with the Union upon its request. "(c) 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." 4. Substitute the attached notice for that of the administrative law judge. 6 Orkin Exterminating Co of Florida, 152 NLRB 83, 117 (1965) 7 Arkansas Rice Growers Assn, 171 NLRB 75, 76 (1968) 8 Id See also Harowe Servo Controls, 250 NLRB 958, 1047 (1980) 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 interrogate our employees about their union activities. WE WILL NOT prohibit employees from soliciting other employees to sign union authorization cards during nonwork time. WE WILL NOT create the impression that we are engaged in surveillance of our employees' union activities. WE WILL NOT ask our employees to give us their union authorization cards. WE WILL NOT threaten our employees that nego- tiations would start from zero. WE WILL NOT threaten our employees that it would be futile to support International Union of Electronic, Electrical, Technical, Salaried and Ma- chine Workers, AFL-CIO, Local 1151, or any other labor organization. . . WE WILL NOT threaten employees with loss of jobs and with loss of jobs for family members of employees because of their union activities. WE WILL NOT threaten our employees that it will be hard for them to get rid of the union label; that the employee will be unable to find work in Jonesboro. and northeast Arkansas because of the union label; and that the employee would be easy to follow because his tracks are wide and deep. WE WILL NOT threaten our employees that the employees will lose their family if they continue to support the union. WE WILL NOT threaten to spread false derogato- ry information about our employees because of their union activities. I - WE WILL NOT discharge and refuse to reinstate, or otherwise discriminate against, our employees because they engaged in protected concerted strikes or activity on behalf of a labor organization. WE WILL NOT refuse to bargain in good faith with International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL- CIO, ' Local 1151, as the certified collective-bar- gaining representative of the employees in the fol- lowing described unit: All production and maintenance employees, in- cluding truckdrivers, fabricators, forklift oper- ators, welders, painters, grinders, janitors, line hangers, shipping and receiving employees, and testers, employed by us at our 5702 Kruger St., Jonesboro, Arkansas, facility. Ex- cluded: All other employees, including' all office clerical employees, salesmen, guards, leadmen; assistant supervisors, and supervisors as defined in the Act. WE-WILL NOT refuse to discuss and process em- ployee grievances with the Union. WE WILL NOT unilaterally reopen our night shift using temporary employees furnished by another agency without reemploying our laid-off employ- ees, without first negotiating with the Union. WE WILL NOT unilaterally cancel our employees' cash Christmas bonuses, and WE WILL NOT unilat- erally reduce normal daily working hours of our unit employees.- WE- WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise-of the rights guaranteed them by Section 7 of the Act. WE WILL bargain' in good faith at reasonable times with the aforesaid labor organization, on its request, as the -exclusive representative of the em- ployees in the above-described appropriate unit. WE WILL discuss and process employee griev- ances with the Union on its request. WE WILL offer immediate and full reinstatement to Tommy Crump, Danny Garner, Roy Kilgore, and Gary Miller to their former positions or, if those jobs no longer exist, to substantially' equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. WE WILL notify each of them that we have re- moved from our -files any reference to their dis- charge and that the discharge will not be used against them in any way. WE WILL offer the unfair labor practice strikers, on their unconditional applications to return to work, immediate and full reinstatement to their former jobs or to substantially equivalent positions, dismissing, if necessary, persons hired on or after 21 May 1984, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously 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 make our employees whole for any loss of earnings they suffered because of our un- lawfully refusing to grant their 1983 cash Christ- STORALL MFG. CO. mas bonuses and our unlawfully reducing normal daily working hours from 8 to 7 during November and December 1983, and January 1984, plus inter- est. WE WILL, on request, furnish relevant and neces- sary information to the Union as exclusive collec- tive-bargaining representative of our employees in the aforesaid unit. STORALL MANUFACTURING COMPA- NY, INC. . DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. The complaints herein are based on charges, including amended charges, which were filed on various dates be- ginning on October 5, 1983. The complaints allege nu- merous independent 8(a)(1) violations and 8(a)(1) viola- tions in the denial of requested representation in, and the subsequent holding of, disciplinary interviews along with the eventual suspension and discharge of employee Jerry Lewis for conduct which was the subject of the alleged disciplinary interviews; 8(a)(1) and (3) violations in the discharges of employees Crump, Garner, and Kilgore and the refusal to rehire employees Carl Cook and Gary Miller; 8(a)(1), (3), and (5) violations by Respondent uni- laterally reducing working hours for unit employees on November 10, 1983, from 8 to 7 hours per day, and Re- spondent, in December 1983, unilaterally refusing to grant unit employees a cash Christmas bonus; an 8(a)(1) and (5) violations in Respondent refusing to process grievances since November 18, 1983, refusing to meet and negotiate with the Charging Party (the Union) at reasonable times; refusing to furnish the Union requested information; refusing to furnish the Union requested in- formation regarding employees hired after March 22, 1984, to perform bargaining unit work; and by Respond- ent's unilaterally employing employees referred to it since March 26, 1984, rather than recalling or rehiring Gary Miller. The General Counsel also alleges that unit employees have engaged in an unfair labor practice strike since May 21, 1984. This matter was heard on var- ious dates between March 28 and July 18, 1984.1 On the entire record, and from my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the fol- lowing ' Following close of the hearing on July 18, 1984, Respondent filed a motion to strike certain testimony and a motion for sanction and to hold the Charging Party in contempt The latter motion has been contested factually by the Charging Party I deny both motions The evidence Re- spondent seeks to strike is not prejudicial to its position and may be rele- vant to material issue The motion for sanction/contempt seeks contempt sanctions which are beyond the scope of my authority and other sanc- tions which are unwarranted by the allegations FINDINGS OF FACT2 I. BACKGROUND 223 During an organizing campaign conducted at Re- spondent's facility in Jonesboro, Arkansas, a representa- tion case petition was filed by the Union on August 18, 1983. Following an October 7 election, the Union was certified on October 18, 1983, as exclusive bargaining representative of Respondent's employees in the follow- ing described unit: All production and maintenance employees, includ- ing truckdrivers, fabricators, forklift operators, welders, painters, grinders, janitors, line hangers, shipping and receiving employees, and testers, em- ployed by the Employer at its 5702 Kruger St., Jonesboro, Arkansas, facility. Excluded: All other employees, including all office clerical employees, salesmen, guards, leadmen, assistant supervisors, and supervisors as defined in the Act. Respondent admits that the Union has been the exclu- sive collective-bargaining representative of the above-de- scribed unit employees at all times since October 18, 1983. On August 11, 1983, 1 week before the Union filed its representation case petition, Respondent discharged em- ployees Tommy Crump and Danny Garner. A. The Alleged Illegal Discharges 1. The August 1983 discharges a. Tommy Crump Crump was employed by Respondent as a welder from the first of June 1983 until his discharge on August 11, 1983. Crump was considered a good welder by Plant Manager Dale Goodwin. He progressed and was elevat- ed to the top pay rate for welders in his probationary period, 6 or 7 weeks after he was first employed. There is no factual dispute regarding Crump's union activity. Crump testified that he talked to people about the Union and solicited employees to sign union authori- zation cards. Crump's immediate supervisor Royal Stokes admitted that Crump and other alleged discriminatees Garner and Kilgore, let him know that they were for the Union. According to Crump, he discussed union affiliation with Supervisor Stokes shortly after he was first em- ployed. At that time, according to Crump, Stokes spoke in favor of the employees organizing. Stokes disputes Crump's testimony in that regard.3 However, Stokes 2 The commerce facts and conclusions are not at issue Respondent ad- mitted that it is a corporation with a place of business in Jonesboro, Ar- kansas, where it is engaged in the manufacture of tool and storage boxes, and is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act Respondent also admitted that the Charging Party herein is a labor organization within the meaning of Sec 2(5) of the Act 3 Crump's testimony that Stokes originally spoke in favor of union or- ganizing is supported by the testimony of Roy Kilgore Kilgore testified that Stokes once told him that Storall would be a better place if it had a Union This particular issue is not critical to the complaint allegations 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not vigorously dispute Crump's testimony that on July 22, 1983, as Crump was passing out union authoriza- tion cards to other employees including Danny Garner during a break, Stokes told Crump that it was illegal "to be passing those cards out on company property." Crump asked why did Stokes care and Stokes replied that he could not let "this kind of thing happen on my shift." Stokes told _ Crump that he had been telling Re- spondent's Executive Vice President Jim Phillips. On cross-examination, Stokes admitted that he observed Crump passing out union cards to employees during breaktimes. Stokes testified that he did not think he told Crump that it was illegal to pass out cards, but Stokes testified that he was not sure.4 Crump testified that after 4 In view of their testimony, including Stokes' admission that he was not sure he did not tell Crump that his solicitation was illegal, I credit Crump's testimony along with Stokes' admission that he saw Crump pass- ing out union cards to other employees I also credit Crump's testimony that Stokes told him that it was illegal for Crump to distribute the cards and that Stokes had talked to Phillips about it In determining the overall credibility of Tommy Crump, I have also considered the contents of a tape recording of a September 27, 1983 phone conversation between Crump and Respondent's owner, William Hurt Crump and Hurt had several conversations including the one on September 27, regarding Crump's efforts to return to work for Respond- ent and Respondent's efforts to remedy several problems Respondent, in its 'brief, argues that the September 27 tape recording impeaches the entire testimony of Tommy Crump The tape recording was received and there was no evidence demon- strating defects in the tape Therefore, I shall fully credit the tape since it purports to be a verbatim account of the parties' September 27 conversa- tion - There is an obvious conflict at one point between the tape and Tommy Clump's testimony The tape shows that at one point early in the conver- sation, William Hurt told Crump that he would not go along with what Crump proposed in their meeting the previous night Crump , after hear- ing the tape, testified that he believed the tape was incorrect, that Hurt did not say he would not go along with Crump's proposal . To the extent Crump's testimony disagrees with the tape, I credit the tape and discredit Crump However, I do not find that the conflict between the tape and Crump's testimony justifies impeaching Crump's entire testimony I could make such a finding if the conflict demonstrated either that Crump was deliber- ately misrepresenting his recollection or that the contents of the tape showed that in other respects Crump misstated the truth As to the first point, the evidence does not support a finding that even though Crump's recollection disagreed with the tape, he deliberately mis- represented his recollection Crump testified before hearing the tape and after hearing the tape that he did not recall Hurt saying that he could not go along with Crump's proposal The record contains nothing, and I ob- served nothing in Crump's demeanor, which demonstrated that Crump was untruthful in what he remembered Therefore, I cannot find that Crump was anything more than ` mistaken in his recollection As to the second point, there appears to be no actual conflicts in the tape recording's reference to other events and Crump's recollection of those events The most notable example of such a reference involves Wil- liam Hurt's reference to a proposal by Crump in their meeting the previ- ous night Crump's testimony reveals that a number of proposals were made in the previous night's meeting including at least one by him Crump proposed that he be reinstated to his job with Respondent There- fore, the evidence reveals no conflicts between events discussed on the tape and Crump's testimony about those events Additionally, in questioning the significance of the tape recording to Crump's overall credibility, I have also considered the following facts (1) The evidence revealed that, although William Hurt was aware that the call was being recorded, Crump did not learn of the recording until long after the call Therefore, Crump was not motivated to prepare his conversation before or during the call in anticipation of the recording (2) Crump was not afforded access to the tape recording and the evi- dence did not show that he made notes or other references to the con- tents of the call Therefore, Crump, unlike Hurt, had no opportunity to review the verbatim conversation before his direct testimony the above-mentioned July 22 incident, he was placed on a dirtier job (grinding) on two occasions, and "nothing.I did was good enough for [Stokes] any longer." b. Danny Garner Garner, like Crump, was employed by Respondent as a welder from June to August 11, 1983. Garner had worked for Respondent previously in 1978 and in 1980. On both those earlier occasions his employment was ended when he was included in layoffs. Garner also engaged in union activity. He was given a card by Tommy Crump which he signed on July 22, 1983. Garner talked to several employees about the Union. Garner testified that Royal Stokes was present when he filled out his union card. Stokes asked Garner if Garner thought that having a union there would do any good and that Stokes did not "think it would help any- thing because they wouldn't have anything to bargain with " Crump and Garner both testified " that Stokes then asked for the cards and Crump gave Stokes his blank union authorization cards. - Stokes testified that he did not recall whether he saw Danny Garner sign a union card. Stokes denied telling Garner that the Union would do no good and he denied asking Crump or Garner for the union 'authorization cards. Discussion Oftentimes, Stokes testified that he could not recall events which, if true, would be most memorable. For ex- ample, as shown above, he could not recall whether he prohibited Crump from passing out union cards during break periods. On other occasions, his testimony was in- consistent. For example, early in his testimony Stokes denied talking to employees about the union organizing drive. Shortly thereafter, Stokes clarified his testimony to admit engaging in casual conversations with employ- ees about the Union. Stokes eventually testified that the discussions about the Union occurred on a daily basis. I observed Stokes' demeanor. He did not impress me as a candid witness. He seemed more interested in testi- fying in a_manner which was most likely to defend his actions as Respondent's supervisor. Therefore, I shall dis- credit Stokes' testimony to the extent it conflicts with credited testimony. - I shall credit the testimony of Danny Garner• regard- ing,his union activity and the events of July 22, 1983. c. August 9-11, 1983 On August 9, a chain of events was initiated which in- volved employees Tommy Crump, Danny Garner, and Therefore, in consideration of the above factors, I find that I cannot totally discredit Tommy Crump However, the tape recording did prove that Tommy Crump may. be mistaken in his recollection of some of the material events Therefore, I have critically considered his testimony in all material areas Only in those areas where Crump's testimony appears truthful and not in conflict with other credited testimony, have I credited Crump _ STORALL MFG CO 225 Roy Kilgore-all of whom are now alleged as illegal dis- chargees. (1) August 9, 1983 Danny Garner testified to two incidents involving him and Supervisor Stokes. In one, according to Garner, he asked Stokes for coffee in order to take medication Stokes refused Garner's request and also denied Garner's request that Garner be allowed to make coffee. Stokes told Garner that he could wait until his break to take his medication or not take it at all . Garner returned to work. At another point during his shift on August 9, Garner was instructed by Stokes not to again use the restroom in the back of the plant. Garner testified that Stokes told him not to leave his work station except during break- time. Garner asked other • employees including Tommy Crump, Roy Kilgore, and others during the next break if they had heard of any new work rules. Crump went to Stokes. Stokes denied the implementation of new work rules Subsequently, on August 9, Crump, Kilgore, and Garner discussed the events regarding Stokes and their perception that he was instituting new work rules. They decided to talk to Plant Manager Dale Goodwin about the perceived new work rules Subsequently, several days after his original testimony, Goodwin was recalled to testify by Respondent. On that occasion, Goodwin recalled that Crump also complained that Stokes talked to some people "at length, like 10 or 15 minutes at a time and [Stokes] didn't have much to say to other people." (3) August 11 Tommy Crump testified that on arriving at work on August 11, he learned from Dale Goodwin that he had been fired. Goodwin told him that he and Phillips had decided "it would be in the best interest of everyone concerned if they let [Crump] go." Goodwin admitted to Crump that Crump's work was excellent. Crump subse- quently talked with Jim Phillips who told Crump that he had decided "to support the people-his foreman." Danny Garner was told by Dale Goodwin on August 11 that he was being fired because of Garner's absentee- ism. Garner then spoke with Phillips. Garner asked why they had waited until then to discharge him for absentee- ism when he had been back to work for 3 days after having returned with a doctor's excuse. Phillips replied that he had thought it over and that this was the best thing to do. (2) August 10 After reporting to work, Crump, Garner, and Kilgore went to Dale Goodwin's office. According to Garner, he asked Goodwin if the same rules applied to their shift as to the first shift. Garner told Goodwin, "What Royal [Stokes] had told him Goodwin agreed to check into the matter. -Garner also recalled that Crump told, Goodwin that Stokes had been talking to Crump about the Union. Kil- gore,said that Stokes had threatened to fire him because Kilgore started out at a higher payscale. Crump recalled telling Goodwin about the August 9 incident after telling Goodwin they were having some problems and that they were there to try to work them out. After mentioning Garner's August 9 restroom inci- dent, Crump complained to Goodwin about Stokes' su- pervisory practices including keeping employees at each other's throats and cheating the employees out of break- time. Crump also recalled that Kilgore told Goodwin that Stokes resented the fact that Kilgore had started out at a higher rate of pay because of his prior work experi- ence. At the conclusion of the meeting, Goodwin said he would check into the matter and get back Kilgore testified that he told Goodwin about Stokes' resentment of his higher initial pay rate. He also recalled Crump `telling Goodwin that Stokes was talking to him about the Union. Garner told Goodwin about the "new rules" that Stokes was "going to start enforcing." ' Dale Goodwin testified that Tommy Crump was dis- charged because, in part, of what happened in the August 10 meeting involving Goodwin, Crump, Garner, and Kilgore. Goodwin testified that he cannot recall the specifics of that meeting, other than to recall that Crump complained that his supervisor (Stokes) would not bring him parts, and that the supervisor talked down to him. d. Conclusions The evidence supports a prima facie case that Crump and Garner were discharged in violation of Section 8(a)(1) and (3). Both employees' union activities came to the attention of Respondent on July 22 when Crump passed out and Garner signed a union authorization card. The Union came up during the employees' August 10 meeting with Plant Manager Goodwin. Moreover, that meeting which included a discussion of working condi- tions, also involved other concerted protected activities. Three employees, Garner, Crump, and Kilgore joined in concerted activity for the purpose of discussing with the plant manager, actions of their immediate supervisor during work, along with discussions about work rules.5 The testimony of Plant Manager Goodwin clearly estab- lishes that the August 10 meeting caused the immediate discharge of Crump and Garner. As shown above, Goodwin admitted that their discussions on August 10 contributed to the decision to discharge Crump. I shall discuss below Respondent's asserted defense. However, in consideration of whether the General Coun- sel established a prima facie case, I note the close timing between Crump and Garner's overt union activities and their discharge, the even closer timing between their concerted protected activity on August 10 and their dis- charges; Goodwin's admissions that the August 10 meet- ing led to the discharge of Crump; the antiunion animus of Respondent as shown below; and the absence of any proximate justification for the discharge of Crump and Garner. 5 Respondent concedes at its Br 27 that the August 10 meeting in- volved concerted activity by Crump, Garner, and Kilgore Respondent argues the activity was nevertheless unprotected That argument is con- sidered below under the section dealing with Respondent's defense 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent's defense Respondent's' plant manager, Dale Goodwin, testified that the decision to discharge Tommy Crump was made exclusively by him and Jim Phillips. Goodwin testified that Crump was discharged because he exhibited a bad attitude. In defining what he meant, Goodwin testified "Tommy [Crump] was not an easy man to talk to. He had a chip on his shoulder, his tone of voice that he used, sarcastic-type remarks, this type of thing." Good- win testified that he observed Crump's bad attitude the first time he talked to Crump, shortly after Crump start- ed working for Respondent. However, Jim Phillips gave a reason for Crump's dis- charge which differed from the grounds recalled by Goodwin. According to Phillips, he and Goodwin decid- ed to discharge Crump because Crump was trying to un- dermine supervision. In support of his position, Phillips testified to a conversation Crump had with Supervisor Michael Nutt some 2 or-3 weeks after Crump was hired, and an August 8, 1983 conversation Crump had with Phillips: According to Phillips, Crump spent over 1-1/2 hours in Phillips' office on the night of August 8, telling Phillips of Royal Stokes' deficiencies as a supervisor: That Mr. Stokes did not manage the people well, he did not communicate with the people well, he talked down to the people, he talked about the people, did not know how to make a tool box, et cetera, et cetera. Things along that nature. Goodwin testified that Danny Garner was discharged because of his attitude and his absentee record. Goodwin recalled that Garner demonstrated a bad attitude on the occasion of the coffee incident on August 9 with Super- visor Stokes. Goodwin testified that he recalled the coffee incident involving Garner wanting to argue with Supervisor Stokes about when the coffee would be pre- pared. Goodwin agreed that Garner's attendance record showed only one 7-day absence. On that occasion, the record shows that Garner was sick under a doctor's care. Garner's last day of absence was August 5, some 6 days before his discharge. Garner's record shows that he was not absent on any other. Shortly before Goodwin met with Crump; Garner, and Kilgore on August 10, Phillips received a phone' call from Royal Stokes Stokes told Phillips of the August 9 incidents saying, in Phillips' words, "The essence of the conversation was that it was either they that had to go or [Stokes] had to. go." According to Phillips, he then contacted Goodwin and asked Goodwin to look into the situation. - a. Analysis Respondent, through Dale Goodwin, concedes that Goodwin's August 10 meeting with Crump, Garner, and Kilgore contributed to the August 11 discharge of Crump.6 Respondent in its brief admits that the August 10 meeting was concerted but argues that the meeting did not involve protected activity. Before considering the legal question of protected ac-• tivity, I must first consider the record as to the motive behind the August 11 discharges. As shown above, the record establishes that both the union activity and the August 10 meeting with Plant Manager Goodwin con- tributed to the discharge of Crump and Garner. Before August 10, there was no indication Respondent anticipated discharging either Garner or Crump. On August 5, Garner returned to work after a week's ab- sence. If, as Respondent later asserted, absences led to Garner's discharge, the more. likely 'course would have been to discharge. Garner on August 5. Stokes, Garner's supervisor, was well aware of Garner's absence. More- over, the evidence revealed that nothing other than the August 10 meeting occurred which caused a review of Garner's absentee record at a time proximate to August 11. The coffee incident on August 9 was not serious enough to result in disciplinary action. Jim Phillips testi- fied Stokes was upset. However, Phillips' testimony also revealed that Stokes was upset with both Garner and Crump over their concerted complaints on 'August 9, rather than solely with Garner because of the coffee inci- dent.' Garner was not disciplined for his absences on August 5 or later, and there was no indication that discipline was under consideration. The record revealed that he was a well-respected em- ployee before his concerted activity. Phillips admitted that Crump was elected by the employees as one of the employee representatives on Respondent's "employee participation committee." Phillips did not rebut Crump's testimony that on August 4 or 5, l983,' Phillips referred to Crump as "one of the strongest people that he had on the employee participation committee." Additionally, Respondent's supervisors admitted that Crump was a good worker. Moreover, on August 4 or 5, Phillips asked Crump if he was still interested' in the coil line operator's job. Crump had, before that date, put in for the coil line op- erator's job. Respondent did not explain why' Crump was asked about his job preference if in fact it had deter- mined that he was not successfully concluding his proba- tionary period. Therefore, I find that the record establishes that Crump and Garner's discharges were precipitated by their union and concerted activity. That activity came to a head, in the words of Jim Phillips, on August 10 when Crump, Garner, and Kilgore met with Plant Manager Goodwin. In consideration of Respondent's arguments regarding the August 10 meeting, I find that the meeting was con- certed, that it included discussions of the employees' union activities and working conditions, and that the em- ployees that participated in that meeting are protected - ' Garner and Crump's complaint to Stokes was also concerted and 6 Additionally, Jim Phillips admitted. that Crump's presence in the protected since they were acting together and with other employees in August 10 meeting was the straw that broke the camel's back Later Phil- questioning Stokes' apparent change in work rules Even though on occa- lips clarified that testimony to mean that the August 10 meeting brought sion Crump spoke with Stokes alone, Crump was advancing the questions the situation to a head raised by several employees regarding the new rules STORALL MFG CO 227 from discipline resulting from their involvement in the meeting. In consideration of the underlying issue, the record es- tablishes, and I find, that the meeting involved the em- ployees' concerns about working conditions. Included in the expressed concerns were the on-the-job conduct of their immediate supervisor, a possible change- in work rules, and job security resulting from the supervisor's threat to discharge Kilgore. Three employees, Crump, Garner, and Kilgore, joined in presenting their concerns about the working conditions to management. Therefore, it is axiomatic that their activity was concerted. Respondent in its brief argues that the employees' ac- tivity, even though concerted, was unprotected in view of the 'evidence that Crump was engaged in an attempt to undermine the supervisor, Royal Stokes, and claim the supervisory position for himself. The record does not support that argument from either a factual or a legal standpoint. There is no evidence showing that Crump ever did anything to "undermine" Royal Stokes other than to complain about Stokes' practices to first Jim Phillips and later to Dale Goodwin in the August 10 meeting. All Crump's complaints involved Stokes' on-the-job supervi- sory activities. Crump's complaints to Phillips did. not constitute misconduct sufficiently serious to render Crump's other activities unprotected.8 In fact, Respond- ent's own policy manual provides for employees to make similar complaints to management. Additionally, Re- spondent had established an employee participation com- mittee, with Crump an elected employee representative, designed to provide a forum for employee queries. Crump's activities did not establish misconduct and it is clear from the record that he did nothing more than what employees are encouraged to do under Respond- ent's established practices. Moreover, the record shows that it was the August 10 meeting which precipitated the discharges of Crump and Garner. Additionally, Respondent offered no evidence of Crump's trying to claim Royal Stokes' position for him- self. Crump, as far as the record shows, never mentioned to anyone that he desired or was qualified to hold Stokes' position. Therefore, Respondent's contention that Garner's and Crump's August 10 concerted activity was unprotected is unsupported in fact and law. I find that the record estab- lishes that Crump and Garner were discharged because of their August 10 protected concerted activity and be- cause of their union activity in violation of Section 8(a)(1) and (3) of the Act In making the above finding, I specifically find that the General Counsel proved a prima facie case and that the record evidence failed to, show that Crump and Garner would have been discharged in the absence of 8 Note that a distinction must be drawn between a failure to prove dis- criminatory motivation and a proof of misconduct Under the circum- stances which demonstrate that an employee engaged in misconduct, the Board may determine that activity which is normally protected may lose its protected status (see NLRB v Burnup & Sims, Inc, 379 U S 21 (1964), Rubin Bros. Footware, 99 NLRB 610 (1952)) Here,,Crump's complaints about Supervisor Stokes do not constitute misconduct protected activities. Respondent's contention that Crump was discharged because he sought to undermine and re- place Supervisor Stokes finds factual support only to the extent of establishing that Crump, along with Garner and Kilgore, complained to higher management about their working conditions which had resulted from Stokes' su- pervisory practices. Rather than constituting legitimate cause° for discharge, those concerted complaints are pro- tected by the National Labor Relations Act. Here, the employees concertedly complained and that concerted activity in the words of Jim Phillips "broke the camel's back," resulting in the discharge. of Crump and Garner. 2. The discharge of Roy Kilgore, Roy Kilgore, along with Tommy Crump and Danny Garner, participated in the August 10,. 1983 meeting with Plant Manager Dale Goodwin. That meeting, resulted in the August 11 discharge of Crump and Garner. Howev- er, Roy Kilgore was not discharged until October 21, 1983. Kilgore's most recent employment with Respondent commenced around August 1, 1983. He had worked less than 2 weeks when Crump and Garner were discharged. Kilgore had previously worked for Respondent on two other occasions. He worked for Respondent from 1977 to 1978, and from 1979 to 1980. On those occasions he resigned to accept other employment and to move to California. During his earlier employment, as well as during his most recent period, Kilgore was classified as a welder. Shortly after..Crump and Garner were discharged, Kil- gore asked Royal Stokes why he was not fired along with Crump and Garner. According to Kilgore, Stokes replied that he "wanted to get nd of troublemakers." Kilgore testified that Royal Stokes asked him how he felt about a union shortly after his August 1 hire date. Kilgore responded to Stokes that he did not know much about the Union. Several weeks after Crump and Garner were dis- charged,9 Kilgore was asked by employee Frankie Arm- strong to be present as Armstrong's union representative while Armstrong was given a polygraph examination. Respondent retained: examiner George. Steward to ad- minister polygraph examinations regarding a break-in in its offices and the theft of some documents. When Armstrong appeared for the exam, George Steward refused to permit Kilgore to remain. Armstrong left without taking the exam. Subsequently, according to the testimony of both Armstrong and Kilgore, they were questioned by owner William Hurt as to why Armstrong wanted a representative during the taking of his poly- graph examination. i 0 9 None of the witnesses for either party dated this incident Other evi- dence showed the polygraph exams were administered to employees at Respondent's facility by examiner George Steward on September 27, 1983 10 Although Hurt denied talking to Armstrong, other evidence sup- ported the testimony of Armstrong and Kilgore Respondent's examiner George Steward agreed that two employees-Steward could not recall their names-appeared and that he refused to administer the exam with both present I observed Armstrong who is currently employed by Re- spondent, and Kilgore's demeanor, and I am -convinced they were truth- ful 228 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD The record supports the Charging Party and the Gen- eral Counsel's position that from the late September 1983 polygraph incident until his October 21, 1983 discharge, Kilgore was outspoken to management regarding, the Union and working conditions. On the night after the Union won the NLRB election, October, 7, Kilgore asked Supervisor Stokes why he was keeping employees Lally and Lewis over 'at their work stations after the other employees shut down near the end of the shift. Then on October 11 or 12, Kilgore told Supervisor Stokes that' employee Gary Miller had asked that Stokes be requested to stop Miller's harassment by another em- ployee. Kilgore testified that Stokes replied, "If the babies I've got working for me can't ask their own ques- tions, there ain't nothing I can do about it." On October 13, Stokes told Kilgore to report to Plant Manager Goodwin. The following testimony involves that meeting: ' ' A. Right after I got there, Mr. Goodwin asked me why I was trying to protect the employees out there and I told' him that I wasn 't and he said ac- cording to his understanding, that I Was and I then went into detail telling him what I had asked and asked him-and told Mr. Goodwin that I didn't feel I was trying to protect anybody, I was just being an employee asking questions. - Q. Now when you 'said you were telling him what you had asked, what are you referring to?' A. I was referring to me asking Mr. Stokes ques- tions about James Lally and'-Jerry Lewis and Gary Miller.- Kilgore's development into a prounion employee after the October NLRB-conducted election was referenced in the testimony of his supervisor, Stokes. Stokes testified, "They would run and call [union representative] Bridger everytime something went wrong out there-Kilgore would." On October 17, 1983, Kilgore passed out IUE hats to employees at the parking lot door into Respondent's plant. While' passing out the hats, -Kilgore saw several su- pervisors including Stokes, Plant Manager Goodwin, and others. Kilgore wore one of the IUE hats on October 17. When Kilgore started work that day, he hung the IUE hat above his work station. Kilgore was discharged on October 21, 1983 . His ter- mination notice shows that three of five listed reasons were checked. Those include: 1. Probationary employee-on trial for 90 days (didn't meet Storall's requirements). 2. Page #6-Rule #3 of, Storall's manual (deliber- ately limits production). ' 3. Page #1 of Storall's manual-attitude (person- ality and temperament). a. Conclusion - - Kilgore's discharge followed on the heels of the Octo- ber 18 certification of the Union as bargaining represent- ative of Respondent's unit employees. In view of that timing, Kilgore's established increased involvement in union and protected activities and Respondent's antiun- ion animus, I have determined that the General Counsel established a prima facie case that Respondent violated Section 8(a)(1) and (3) by discharging Kilgore. There- fore, I shall consider whether the record established that Kilgore would have been discharged in the absence of such'protected activities. In consideration of the reasons which Respondent listed on Kilgore's termination slip, the.only evidence of- fered in support of Kilgore's alleged poor attitude was evidence of Kilgore's protected activities. Moreover, the testimony of Plant Manager Goodwin demonstrated little if any reliance by Respondent on either reason one or five. Goodwin testified that Kilgore was discharged because he deliberately limited produc- tion. In that regard, both, Stokes and Goodwin testified that they observed Kilgore deliberately, slowing his work. Nevertheless, after those observations . neither said any- thing to Kilgore about his production. i i • -Additionally, Respondent was able to produce produc- tion records on Kilgore for only 3 days. The first of those,' October 18, shows Kilgore produced above the minimum level-of production. On the following day, Kil- gore left work "sick. His production record for the short time he worked'-revealed a level of production above the minimum . On October 20, Kilgore returned to work and produced at the approximate minimum production level.12 Against the background of the above production records, the testimony of Stokes and Goodwin revealed that other employees have produced below minimum limits without being disciplined. Therefore, Respondent's records establish that in comparison with other employ- ees, Kilgore was treated discriminatorily. In that regard, Kilgore was allegedly discharged because he intentional- ly failed to produce the minimum recognized level. That level was approximately 35 to 50 boxes per shift. Kilgore welded 52 boxes as per Respondent's records on the night of October 18. The next night Kilgore worked be= tween 2 and 3 hours and his production level of 16 dem- onstrated that he would have exceeded 50 boxes for the shift if he' had not left work. On October 20, Kilgore welded 46 boxes Respondent submitted that' it was unable to find production records on Kilgore other than those noted above for October 18, 19, and 20. Stokes testified that Kilgore was capable of producing 60 boxes per shift. The three nights' production was below that figure. - However, there was no evidence any employee was discharged for failing to achieve his po- tential. 11 Goodwin testified that he believed he spoke with Kilgore about production His testimony in that regard was disputed by Kilgore, and Goodwin's testimony reveals that particular alleged ' conversation oc- curred before he allegedly observed Kilgore deliberately slowing down In any event, Stokes admitted that nothing was said to Kilgore about his alleged deliberate slowdown and no discipline was awarded Kilgore 12 There was no clear showing of the minimum production level The testimony in that regard showed a minimum production level of between 35 and 50 welded boxes per shift STORALL MFG. CO Two rank-and-file employees testified 'about other welders. limiting their production. James Lally testified that 2 or 3 weeks before Kilgore's discharge, Kilgore told him -that he was not going • to, do any • more work than he had to. Additionally, Johnny McLaughlin was asked by Dale Goodwin if "Roy. Kilgore was one of those [employees] that was not maximizing his efforts?" McLauglin replied,."I don't know if he was doing it on purpose or what." • - • . _ Obviously, as Respondent correctly -asserts; the Act does not protect employees engaged in intentional slow- downs in production. However, the above-mentioned evidence as well as the entire 'record, failed io show that Kilgore intentionally slowed his work. Kilgore's ' com- ment to James Lally is ambiguous and cannot be con- strued to prove that Kilgore actually engaged in' a slow- down. Moreover, there was, no evidence showing that Respondent learned of Kilgore's comment to Lally. McLaughlin's testimony revealed, that, in his, opinion, several employees were not producing what they could. In response to Goodwin's question, McLaughlin implied that Kilgore was one of those employees, but McLaugh- lin clarified that he did not know if Kilgore was deliber- ately slowing down production. At the time Goodwin questioned McLaughlin, Kilgore's union and protected activities were known to Respondent. The above evidence shows that Respondent had an opportunity to, investigate the actions of Kilgore and the other welders. However, it is in" part because of Re- spondent's failure to go forward in its inquiry into the welders' production that I must rule in favor of the Gen- eral Counsel. After counseling Johnny McLaughlin, 'nothing was said to Roy Kilgore about his production. McLaughlin's comments to Stokes and Goodwin illustrated that several welders were producing below their potential. Yet, Re- spondent did nothing to investigate or discipline those other welders. In fact, the only name suggested to McLaughlin by Goodwin was Kilgore. Goodwin asked nothing about others, even though McLaughlin said there were others producing below their ability. McLaughlin was counseled about his suspected slow- down in production. He did not deny Respondent's con- cerns. Nevertheless, he was afforded an .opportunity. to improve. Other employees implicated by McLaughlin were not counseled or disciplined. On the other hand, after Stokes and Goodwin talked with McLaughlin, nothing was said to Kilgore. He was' not confronted with Respondent's alleged suspicion, and he was not given an opportunity to improve. On October 21, shortly after Kilgore distributed union hats, he was summarily discharged. Therefore, I find that Respondent treated Kilgore with disparity by discharging him with- out giving him the opportunity afforded `McLaughlin even though it was contemporaneously ignoring evi- dence of reduced production among other welders I find that Kilgore' was discharged because of his union and protected concerted activities in violation of Section 8(a)(1) and (3). , - 2:9 3. Jerry Lewis Jerry- Lewis was employed on the, paint line as a coil line operator from July 13 until he was discharged on November. 29, 1983.. Lewis was accused of stealing candy from a vending machine. After investigation into that incident, Lewis was suspended from work. Several employees, including Lewis, were given polygraph ex- aminations regarding the vending machine incident. The evidence demonstrated that the two employees that of- fered evidence showing Lewis' guilt passed their poly- graph examinations. Lewis, who denied that he stole candy, did not pass his polygraph examination. The General Counsel did not quarrel with the evi- dence regarding the vending machine theft. Instead, the General Counsel questioned whether Lewis was improp- erly denied requested representation at disciplinary inter- views. Lewis was awarded disciplinary warnings for produc- ing defective parts on two occasions. First, on November -7, 1983, then again on November 10, 1983. It is- uncon- tested that Lewis was interviewed on both occasions by Siiperyisor Clinton Holder. Lewis testified, but Holder denied, that on each occasion Lewis asked for but was denied representation during.the respective interview. Subsequently, on November 29, 1983, Lewis was inter- viewed and suspended from work because of the allega- tion that Lewis had stolen candy from a vending ma- chine at Respondent's facility. Again, Lewis alleged, but Respondent's witness denied, that Lewis asked for repre- sentation during the interview. Finally, Lewis was interviewed by a polygraph exam- iner on December ,2,. 1983. Lewis did not have a repre- sentative present during that interview. 13 On December 5, 1983, Lewis was discharged. In the termination letter, Executive Vice President Jim Phillips wrote that the dis- charge resulted from the November 28, 1983 taking of goods from a vending machine in the plant. Conclusions The seminal question 'is one of credibility. In that regard, the record does not support the General Counsel. Throughout his testimony, Jerry Lewis demonstrated confusion. Often he was unable to recall important dates. Moreover, 'Lewis failed to recall one date after having his memory refreshed by 'reading his pretrial affidavit. Additionally, Lewis- recollection of his November 7 and 10 disciplinary interviews differed markedly from the tes- timony ' of Supervisor Clinton Holder. According to Holder,' those interviews occurred both on the floor and iii his office, and involved no one other than Holder and Lewis. Lewis recalled that Dale Goodwin and Jimmy Barrett were also present on both occasions and that the interviews occurred in the-office. In material areas regarding his warnings, suspension, and discharge, Lewis' testimony was not supported by other evidence. For example, there was no showing that Lewis 'eve'r asked ' anyone 'to act as his representative in any of the meetings. Moreover, the contrary testimony 13 The General Counsel concedes that Lewis did not request a repre- sentative on Deceniber'2 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not appear to be unreliable. Regarding Lewis, Clin- ton Holder, Dale Goodwin, and John Fairhead offered contrary testimony regarding the three material Novem- ber interviews. All appeared truthful regarding those interviews. All responded in a straightforward manner on cross and none exhibited confusion regarding those matters. Of course, it is well established that the General Coun- sel has the burden of proof. I cannot find that the record establishes that that burden was met Jerry Lewis did not convince me that his testimony was reliable. Therefore, I do not credit his testimony regarding his three Novem- ber interviews. I find that the General Counsel failed to establish that Lewis requested, but was denied, represen- tation in those disciplinary interviews. Respondent did not violate Section 8(a)(1) in the discipline, suspension, and discharge of Jerry Lewis. B. The Independent 8(a)(1) Allegations The General Counsel alleged that Respondent violated Section 8(a)(1) in statements made to employees by ad- mitted Supervisors Royal Stokes, Jim Phillips, William Hurt, Dale Goodwin, Dean Mote, and David Mote. 1. Royal Stokes Tommy Crump testified that a couple of days after he started to work for Respondent on June 1, 1983, Super- visor Stokes approached him and: . . . told me that he knew there would be another attempt to organize and that he thought that a Union would be about the only way that people would have decent working conditions. He asked me what I thought about a Union. Stokes went on to tell Crump that he wanted a union because of what had happened at his previous employer. Tommy Crump testified to a second conversation with Stokes about the Union. On this occasion, Stokes came to Crump's work station on June 6, 1983: Q. Now, what did Mr. Stokes say to you on that occasion? A. Well, he said a lot of things. In particular, I can remember him telling me that he wanted to stay on the time clock so he could vote in a Union elec- tion, and that Dale Goodwin was the reason why we were hired in at a lower rate of pay than what employees are normally hired in at. Something about the night shift had to wait 90 days for their insurance to take effect and everyone else had to wait only 30 days. Q. Okay. A. Things like that. Q. Did you give Mr. Stokes any response to those remarks? A. Well, yeah. I asked him why would they do that. And he made some remark about that we were just temporary-temporarily hired to catch up on back orders and that after the orders were caught up, we would probably be terminated. Finally, around June 8, Stokes talked to Crump again- Q What did Mr . Stokes say to you on that occa- sion? A. Well, basically the same thing that he had said on the other occasions, that he wanted to stay on the time clock, that the company had offered to put him on a straight salary, that he had turned down the straight salary. He asked me what my feelings were about a Union and at that time, I told him that I felt like that he was right, that we needed a Union. As shown above, an incident occurred on July 22, 1983, which involved Stokes, Crump, Danny Garner, and other employees during their break. Crump testified: Q. Okay. Now, was there any specific employees that you were giving cards to at that time? A. I gave Danny Garner a card. I am not sure if I gave Charlie Becker or Carl Cook a card at that time or not. Q Okay. Now, did Mr. Stokes speak to you on that occasion? A. After he saw me pass the cards out, yes, sir, he did. Q. Okay. And what did he say to you? A He told me that it was illegal for me to be passing those cards out on company property. Q. Okay. Go ahead and tell us what else he said. A. Well, after he told me it was illegal for me to pass the cards out, I really didn't know what to say except ask him why would he care, you know, in view of the conversations that we had had. Q. Okay And what else was said? A. He dust told me, he said, "Well, I can't let this kind of thing happen on my shift." I again asked him why and he said something about, "Well, I have been telling Phillips," or something, words to that effect And he asked me for the cards, told me to give him the cards. Q. Okay. Did you give him the cards? A. Yes, sir, I did. Roy Kilgore testified that Stokes asked for his views on the union in early August 1983. Kilgore recalled that Stokes "asked me how I felt about the Union and my reply at that time was that I didn't know much about it." Garner corroborated Crump's testimony. After Garner filled out a union authorization card on July 22, Stokes asked him: . . . did I think that having a Union there would do any good and I told him that it couldn't hurt to get one in there, and he told me that he didn't think it would help anything because that they wouldn't have anything to bargain with. Q. And do you know if Mr. Stokes said anything to Mr. Crump? A. Yes, he asked him to give him the cards, au- thorization cards. Q. And did Mr.-did you hear anything else? STORALL MFG. CO. 231 A. We gave them to him and then Royal asked me if I would give him the card that I had filled out. And I told him that I gave it back to Tommy. Stokes then told Garner that Executive Vice President Jim Phillips would come out later that night to talk with Garner. However, Garner testified that he did not see Phillips. Current employee Frankie Armstrong testified to an August 13, 1983 conversation with Stokes during break: Q. What did Mr. Stokes say to you? A. He kind of asked me how the union was going, and I told him, I said "I am for the union." Q. Okay. A. And I told him "I would like for the union to come in to change a few things." And he said "Well, if the union come in," he would probably quit being a foreman and go back to a regular em- ployee. Armstrong had another conversation with Stokes around September 7, 1983: He come up and he asked me if I had a union card and I told him, "yes sir, I do." He said "Well, if you will give me a union card, I will sign it." I said "Yes sir, I will give you a union card." I do not know if he signed the card or not. Former employee Gary Miller testified about a con- versation with Stokes around early October (about 1 week before the election): Q. What did he have to say in that office? A. He just said he had a tape that he wanted me to listen to and I listed [sic] to it and we were talk- ing about the union and he said the first that-if the union come in the first they they would do is go on strike. That's about all he said on that. Q. Did he say anything else in that particular statement that you just testified about? A. No. Q. Did you ask him any questions? A. I just asked him, you know, about the union, what he thinks about it and that's about what he told me. He said if it did come in, it would-about the same thing Bill Hurt said, that we would start at zero and go up, and that's about all he said. Miller testified that Stokes, in that conversation, meant that a union just causes trouble and the employees would have a strike. However, Miller testified that he could not recall what Stokes actually said in that regard. a. Discussion As shown above, Royal Stokes offered somewhat con- fused and conflicting testimony which I have refused to credit. In that regard, although Stokes denied having a conversation with Tommy Crump on June 3, he admit- ted to idle talk, the substance which he cannot recall. Stokes also admitted talking to Crump about having to wait 90 days to be eligible for insurance. He denied tell- ing Crump that Dale Goodwin was responsible for the low rates of pay. Stokes also admitted that there were rumors that the night shift was temporary but he denied making a statement to that effect. Stokes testified that he could not recall whether he told Crump that a union was needed. He also admitted that Crump, along with Garner and Kilgore, let it be known that they favored the Union. Stokes testified that he did not know whether he told employees that it was illegal to pass out union cards on company property but he denied asking Crump or Garner for the union cards. Stokes at one point denied having a conversation with Crump or Garner concerning new work rules. However, within a few minutes he admitted to a conversation on August 9, wherein Garner asked him if he was making new rules. In view of his demeanor and his confused, often con- flicting testimony, I shall discredit the testimony of Royal Stokes. b. Conclusions (1) Interrogation In view of my credibility determination, I find that the record shows that Royal Stokes questioned Tommy Crump around June 3 and 8, Roy Kilgore in early August, and Frankie Armstrong on August 13 and Sep- tember 7, about their feelings toward a union and their union activities. On those respective dates, none of those employees were known union supporters. Although Tommy Crump and Roy Kilgore became strong support- ers of the Union, the record shows that Respondent learned of Crump's union involvement on July 22 and of Kilgore after mid-August. Therefore, the evidence shows that Stokes engaged in extensive interrogation of em- ployees not known to be union supporters on several oc- casions during the summer of 1983. The circumstances show that those interrogations occurred against a back- ground of coercion. On July 22, employees were prohib- ited from soliciting union cards (see below); in August, Crump and Garner were discharged because of their protected activities; and, as shown below, Respondent was engaged in other violative conduct. Therefore, I find that Royal Stokes interrogated employees in violation of Section 8(a)(l). (2) July 22 The evidence illustrated that Stokes prohibited his em- ployees to solicit employees to sign union cards during a break period. Stokes also asked for the union cards and the blank cards were given to him. Stokes told the em- ployees that he had been telling the executive vice presi- dent about their union activities and that the Union could not help because it would not have anything with which to bargain. I find that the above-mentioned activi- ty constitutes additional violations of Section 8(a)(1). (3) Threats After a speech by owner William Hurt, employee Gary Miller was called into the office by Stokes. Stokes played a tape recording of a conversation between Hurt 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Tommy Crump. Stokes then interrogated Miller. Miller asked whether Respondent could really go back and start negotiating from zero and Stokes told him that Respondent could. That activity by Stokes constitutes further violative action 2. Jim Phillips Carl Cook, who was rehired by Respondent on Febru- ary 27, 1984, and is currently employed, testified that he was approached by Executive Vice President Phillips around October 5 or 6, 1983: Well, one day before the election was coming up, he was coming out ,to each employee, one individ- ual at a time, and he come over to me, called me off my grinding area and he asked me if I was going to vote for the Union and I told him yes, I was going to vote for the Union and another thing, he told me if I voted for the Union, he said I would lose my job. Later, under examination by Charging Party, Cook added. .. . and another thing, he said the Union wouldn't do us no good because he said it wouldn't guarantee no food on my table or he wouldn't negotiate with a contract or nothing, with a Union. Jim Phillips denied the above conversation. According to Phillips, his only comments to the employees were di- rected to "pointing out the significance of them getting involved and voting." Frankie Armstrong testified that on October 6, Phillips asked him what the employees would want if the union came in. Again, Phillips' denied the conversation. a. Discussion Jim Phillips' testimony did not square with other evi- dence in the record. For example, Phillips testified that he learned nothing of the employees union activity until August 19, when he received a copy of the Union's rep- resentation case petition. The evidence is substantial that Respondent knew about those activities long before August 19. On July 22, Royal Stokes was given blank union authorization cards, which were being distributed to employees by Tommy Crump. Additionally, Respond- ent, in its answer to complaint allegations , admitted that one of its supervisors, John Fairhead, interrogated an employee about the Union in early August 1983.14 The record, including Fairhead's admission, supports the evi- dence that Respondent learned about the employees' union activities before August 1983. The July 22 incident involving Stokes, Crump, and Garner, plus Fairhead's admission of his interrogation of Armstrong illustrates that the distribution of union cards were known to Re- spondent during July. I am convinced that Phillips did 14 Employee Frankie Armstrong placed the interrogation by Fairhead around August 1 Fairhead did not recall the date other than early fall but he recalled asking Armstrong "if he knew anything about the cards being passed out and he said no, and I kind of yoked with him about who was, 'were you,' and he said `oh, no, not me "' not testify truthfully regarding his knowledge and activi- ties in Respondent's antiunion campaign. Carl Cook and Frankie Armstrong, on the other hand, appeared to testify to the best of their recollection. I credit their testimony. b. Conclusions I find that Cook's testimony establishes that he was in- terrogated and threatened with loss of his job in viola- tion of Section 8(a)(1). Cook was not a known union supporter at the time of his interrogation and the entire conversation had the tendency to coerce and intimidate employees. Armstrong's testimony supports Cook by showing that Phillips was interrogating employees about the Union. Frankie Armstrong and former employees Gary Miller and Roy Kilgore testified about an antiunion meeting of employees in the fall of 1983. Phillips acted out a phone conversation wherein a customer asked if Storall was having union trouble and would have a strike. The cus- tomer asked whether he should place his order with a competitor of Storall. Phillips then told employees that since the union activities began , work orders had been declining and the warehouse was stockpiled. Phillips admitted that he participated in "many meet- ings during the union campaign ." He admitted relating to employees a phone conversation with a customer. He did not admit telling employees that work orders had de- clined and the warehouse was stockpiled. c. Discussion and Conclusion As shown above, I do not credit Phillips' testimony re- garding his role in the union campaign . Here, the testi- mony of Kilgore, Armstrong, and Miller was not denied and I shall credit the testimony which illustrates that the employees were threatened with declining work orders because of the union campaign. That threat is inherently coercive and violates Section 8(a)(1). 3. William Hurt William Hurt, Respondent's president, admitted to tes- timony by Tommy Crump that he and Crump had a number of conversations subsequent to Crump's dis- charge. According to Crump's testimony, the conversations with Hurt began around August 21. The General Coun- sel alleged that comments by Hurt during some of those conversations created an impression of surveillance. The General Counsel contends that Hurt first gave an impression of surveillance when he talked with Crump alone around August 28: He told me that he knew how closely-how close I still was to employees in his plant and that I was going around talking to people about the Union and like I say, he told me he knew who I saw and Danny Garner testified that Hurt phoned him during the first week in September 1983. Garner testified that Hurt proposed that he: STORALL MFG' CO . . . give up involvement with trying to get a Union in at the plant and to put me back to work, but I would lose seniority. I had to start with a lower pay than what I was making. And I told him I didn't want, my job if I had to give up the in- volvement and lose everything too. Hurt denied that he offered to reinstate Garner. Subsequently, around September 15 or 16, according to both Danny Garner and Crump, Crump and Garner talked with Hurt in Hurt's office. On that occasion, Hurt told Crump and Garner that he knew what their union activities were and he knew that Crump had recently moved but that he had obtained Crump's unlisted phone number. Hurt denied meeting with Garner and Crump on this occasion. Around September 26, according to Crump and Garner, they met'-Hurt at Kettle's Restaurant in Jones- boro. During that meeting, Hurt told Crump that he was giving him a chance to get rid of his, union label by of- fering to put Crump back to work as a new employee -without backpay. Hurt allegedly told Crump that he would not work in Jonesboro or northeast Arkansas again if he did not get rid of his union label. Hurt told Crump that if he continued associating with "union thugs that [he] would end up losing [his] family." -Crump testi- fied that Hurt said he had "considered putting out some derogatory information about Crump such as "DWI and dishonorable discharge " When Crump pointed out that would be untrue, Hurt replied, who cares Crump recalled that Hurt asked Garner if Garner had a good time at the Kit Kat Club. When Garner told Hurt he had not been there, Hurt replied that he probably had some bad information Crump testified that Hurt told him that he had tried unsuccessfully to get his father to discharge Crump's wife. Both' Crump and Garner testified that Hurt told them there would be financial rewards if they would stop their union activities and help defeat the Union Hurt also asked Crump what it would take to make things right with him and his family. Hurt admitted meeting with Crump and Garner at Kettle's Restaurant. However, he denied many of the matters included in Garner's and Crump's testimony. a. Discussion In consideration of the issues involving William Hurt, I am mindful of the conflict between Crump's testimony and the tape recording of the September 27, 1983 phone conversation between Crump and Hurt (see fn. 4, supra). Due to that conflict, I will not credit Crump's testimony regarding conversations with Hurt in areas where there are material conflicts unless other evidence supports trump's testimony. However, in many material areas, Crump's, testimony is substantially corroborated by the testimony of Danny Garner. - Garner impressed me as a candid witness. He handled cross-examination well. He did not appear to be evasive or argumentative and his responses were in accord with probabilities and other credited evidence. In view of their close corroboration, I am convinced that Garner and Crump testified truthfully regarding Garner's early 233 September phone call from Hurt, and Garner and Crump's meetings with Hurt on September 16 and 26 William Hurt admitted telling Crump that it is going to be awful hard to get rid of the union label. He also admitted telling Crump, "Tommy your tracks are wide and deep. You're very easy to follow." However, on cross-examination, Hurt explained that his union label comment was made because unions are abnormal in Ar- kansas and the tracks wide and deep referred to Crump's absentee and tardy record at one of Crump's employers before he came to work for Respondent. Hurt also admitted telling Crump that he had recom- mended that his father layoff Crump's wife until after the union election at Storall. Hurt admitted asking about Garner going to the Kit Kat Club. Hurt's admissions lend strong support to the testimony of Garner and Crump. On the other hand, portions of Hurt's testimony, notably his explanation of his union label and tracks wide and deep comments, were patently false. Obviously, the union label comment had far deeper implications than a reference to an abnormal condition. The tracks wide and deep comment was accompanied by a present tense remark that Crump is easy to follow and not, as Hurt testified, a 'reference to a condition which no longer existed. On the basis of his demeanor and the full record, I am convinced that Hurt was not fully candid in his version of the Garner and Crump discus- sions. b. Conclusions In line with my credibility findings, I have determined that the General Counsel failed to prove any violations on August 28. That incident relies totally on the testimo- ny of Tommy Crump. I have credited the testimony showing that Respond- ent, through comments by William Hurt around Septem- ber 16, 1983, created the impression of surveillance by telling Crump and Garner that he knew what their union activities were and he knew that Crump had recently moved and knew Crump's unlisted phone number About September 26, Hurt engaged in activity which demonstrated coercion and intimidation to an extent not often found in labor relations proceedings. Hurt admit- tedly remarked that he tried to have his father lay off Crump's wife during Storall' s union campaign. He also admitted telling Crump that it would be awful hard to get rid of the union label and that Crump's tracks were wide and deep. Additionally, I find that Hurt threatened Crump that he would be prohibited from working in northeast Arkansas and that Crump would lose his family unless he abandoned the Union; that he was con- sidering putting out derogatory information on Crump which was false; he held out an impression of surveil- lance by asking Garner about his visit to the Kit Kat Club, and he promised Crump and Garner financial re- wards if they stopped their union activities. In early September, Hurt offered to reinstate Garner if Garner agreed to abandon the Union. Other evidence showed that Hurt spoke to groups of employees during the union campaign Several employ- ees, including Armstrong, Bragg, Melton, Miller, Bu- 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shong, and Kilgore, testified that Hurt threatened to start negotiations from scratch or zero: Hurt emphasized that threat by. referring to Kilgore's rate of pay, pointing out it could be lowered He told others that employees would probably. end up with less and that current bene- fits would be wiped out. Jerry Lewis testified that Hurt threatened the employ- ees with layoffs because their union activity would result in loss of orders. = Hurt admitted conducting employee meetings but denied threatening employees that negotiations would start from scratch. I do not credit Jerry Lewis' testimony that Hurt threatened the employees with layoff. As shown above, the record proved that Lewis' testimony was unreliable. Moreover, other evidence, including testimony under cross-examination of Frankie Armstrong, illustrated that Hurt used a poster (received in evidence as R. Exh. 1) in his meetings which cited Bendix Corp. v. NLRB, 400 F.2d 141 (6th Cir 1968). That poster specified that if the union tells you that what you have now is guaranteed, it is not telling the truth. In view of the above evidence, I find that the record failed to establish that Respondent coerced or intimidat- ed its employees by threatening that negotiations would result in loss of benefits or wages. The evidence demon- strated that while the comments by Hurt were vague, they were reinforced by the poster which emphasized that increases could not be guaranteed. This evidence failed to prove that employee's were led to believe that benefits or wages would necessarily decrease. 4. Dale Goodwin Frankie Armstrong testified that Goodwin came to him at his work station on September 7, 1983. Goodwin asked how the Union was going. When Armstrong re- plied it would come in and wages and benefits would im- prove, Goodwin called him a liar. Goodwin said if the Union came in, it would get what it wanted first then worry about the employees. Goodwin first testified that he did not recall then that the above incident did not occur. Discussion Frankie Armstrong impressed me as a candid witness. For example, when shown Respondent's Exhibit 1, Arm- strong admitted that Hurt had used the poster in employ- ee meetings. I am convinced that the above incident oc- curred as related by Armstrong.* I find that Goodwin's comments evidence illegal interrogation of an employee not known to be an open union advocate. 5. Dean Mote Several allegations concern the admitted supervisor, Dean Mote. Johnny Bushong testified that Mote told him on September 7 that he heard Bushong was on a union committee and had been kicked off. Mote admitted that Bushong's testimony was correct. Bushong was not shown to be a union advocate nor was he shown to have been on a union committee. Mote's September 7 com- ments evidence interrogation into Bushong's union ac- tivities which is coercive in violation of Section 8(a)(1). Jerry Lewis testified as to interrogation and threats to withhold wage increases by Mote on September 17. Mote denied those allegations. As shown above, I am unable to credit the testimony of Lewis. i 5 Therefore, I find that the General Counsel failed to prove illegal in- terrogation and threats to Lewis. Employee Jimmy Reed and Dale Mcllvoy testified that in response to a question 'on December 13, 1983, Dean Mote told them the employees would not receive their Christmas bonus because they had voted the Union in. Mote admitted that Reed asked about their Christmas bonus but he denied attributing loss of the bonus to the union election. Both Reed and McIlvoy appeared to tes- tify truthfully. As shown below, Respondent did deny employees their usual Christmas- bonus after the union election in 1983. Dean Mote testified that he told the em- ployees that he did not know if they. would receive a bonus. However, other evidence established that the bonus was canceled and a notice was posted to -that effect. Therefore, I discredit Mote and credit Reed and Mcllvoy. Mote's comments constitute an 8(a)(1) viola- tion. His threat that employees. were being denied their established Christmas bonus because they selected the Union tends to coerce employees because of their exer- cise of Section 7 rights. 6. John Fairhead Jerry Lewis and Frankie Armstrong were allegedly in- terrogated by Fairhead. Fairhead denied the testimony by Lewis. In view of my credibility findings above, I credit Fairhead and find that the evidence failed to show that he interrogated Lewis. Fairhead admitted that he asked Frankie Armstrong if he knew anything about union cards being passed out. Fairhead said he joked in asking Armstrong if he passed out the cards. Armstrong replied that he had not. - Armstrong was not shown to be a known union advo- cate. In view of the entire record showing numerous ille- gal actions by Respondent, I have determined that Fair- head's interrogation of Armstrong had the tendency to coerce and is, therefore, a violation of Section 8(a)(1). C Refusal to'Reinstate .On November 10, 1983, Respondent terminated its night shift. Several employees including Carl Cook and Gary Miller were released at that time. The General Counsel does not allege that Respondent engaged in any illegal activity at that time. Subsequently,. Carl Cook returned to work for Re- spondent on February 27, 1984. Gary Miller has not re- turned. , The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) by not recalling Gary Miller and by not recalling Carl Cook before February 27. 15 Lewis also testified about threats by David Mote in September and October 1983 In view of my credibility findings, I have determined that the General Counsel failed to prove those instances as well STORALL MFG CO. 1. Was Cook's reemployment improper? The General Counsel argues in her brief that Carl Cook was improperly required to submit a new applica- tion before returning to work in February 1984. Also, Cook was improperly denied reemployment before that date and Respondent illegally started Cook as a new em- ployee without seniority at a beginner's rate of pay. As to the General Counsel's points, the record estab- lishes that Cook was not treated differently than had been Respondent's past practice. For example, Cook ad- mitted that he worked for Respondent on previous occa- sions He was terminated in 1981 when Respondent shut down the night shift. In 1983, according to Cook, he was required to submit a new application before he returned to work. At that time, the union organizing activities had not commenced. Cook admitted that when he returned in June 1983, he returned as a new hire at the starting rate of pay. Therefore, I find that the testimony of Cook demonstrated that his February 27, 1984 reemployment was in accord with Respondent's established practice and was not improper. 2. Were Cook and/or Miller improperly denied reinstatement? The General Counsel also,argues that Miller was ille- gally denied reinstatement and that Cook was illegally denied reinstatement before February 27, 1984. a. Carl Cook As to Cook, the evidence failed to establish that he was available earlier. The only job opening shown before that date is one on January 19, 1984, which was filled by Terry Murck. However, Cook testified that he went to Oklahoma after his layoff and when he returned after hearing Storall may have a job, he was put to work on February 27. Cook was not shown to be available to return to work before February 27, 1984. Therefore, the General Counsel failed to prove its case as to Carl Cook. b. Gary Miller Despite the failure of proof as to Carl Cook, the evi- dence was substantial in support of Gary Miller. Respondent argues that laid-off employees did' not have recall rights under its established policy. However, the record did establish that it was Respondent's policy to reemploy employees involved in prior layoffs. Numer- ous employee witnesses,-including Danny Garner, Roy Kilgore, Carl Cook, and Gary Miller, were involved in prior layoffs and reinstatements by Respondent. i 6 Gary Miller worked for Respondent on two previous occasions before 1983. He was first hired in 1979 and laid off for.2 months in 1980. In 1980, he was recalled without reduction of pay rate or seniority. He continued until he was laid off in March 1982. Miller admitted that he called Storall during May, June, and July 1983, seeking employment. He was reem- 16 Even though the employees were not always "reinstated " to their former job without loss of pay scale or seniority , they were routinely re- employed often as new employees after applying for woik 235 ployed on August 1, 1983 He worked until the night shift was terminated on November 10, 1983. Miller' testified that he has regularly contacted the Company, once a week, since November 10, 1983, seek- ing to return to work. The question before me, as in any 8(a)(1) and (3) allegation, is, was Miller denied reemploy- ment after November 10, 1983, because of his protected activities? Beginning on January 19, 1984, Respondent hired em- ployees after its November 10, 1983 termination of the night shift Employees were hired for the paint line, the gas tank department, welding, coil line, 'and fabrica- tion.17 Miller worked in fabrication from 1979 through 1982 and again in 1983. During his 1983 employment, Miller was involved in the union organizing campaign . He passed out leaflets to employees on five or six occasions up until the election. Several supervisors were around when he passed out union literature . Additionally, around the first of Novem- ber 1983, -Miller was placed on the Union' s grievance committee Miller also wore an IUE cap at work. On one occasion at the beginning of the antiunion meeting of employees at Respondent' s plant as William Hurt walked in, he patted Miller on.the back and said, "It's nice to have a job, isn't it Gary."' 8 After the night shift's termination, Miller phoned Re- spondent regularly seeking work. Until late February 1984, Miller was continuously told by Jim Phillips that Respondent was not hiring. Finally, in response to a call by Miller, Phillips told him that Respondent had two openings, one in assembly and one in the paint depart- ment Miller immediately went to the plant,, filled out an application, and was interviewed by John. Fairhead. Miller testified that Fairhead commented on his seniority and remarked that he was pretty sure Miller could get the job. However, by letter from Fairhead dated March 1, 1984, Miller was told the-position had been filled by another applicant.'The letter went on to say: This decision not to reemploy you at this time is based partly on the poor performance demonstrated during your. past employment period at Storall and documented in your personnel file. After the termination of Miller's job, he talked with, William Hurt the following Monday. According to Miller, 'after he asked to be returned to work, Hurt told him. A. He said "Not right now." He said, "I told you guys when the union 'come in, if it did come in, that we was going to-it was going to make it rough on you. I have already cut down to seven hours and it could go to five." Q. Did he say anything else to you after he said this? . 17 After March 26, 1984, Respondent also used employees supplied to it by a temporary employee service, Employment Cohsulting, Inc Addi- tionally, since March 26, Respondent has continued to occasionally employ permanent employees . 18 In view of the record and my credibility determinations , I am con- vinced that Miller's testimony is correct 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - A. Then he threw some $20.00 bills down on the table and said "I've got a plastic box factory that is fixing to be making plastic boxes and no scrap. And these metal boxes are making a lot 'of scrap and I don't need it." He said, "What would you do if.you was me?" And he said that the new plastic box fac- tory would not have to have as many" people, and if it goes real good then "I might not even ha ve'to have the'metal boxes at all."19 As shown below, Respondent's employees struck on May: 21, 1984. Miller participated in the. strike In mid- June as Miller was walking the -picket line, Jim Phillips called him over and told him, "[Y]our fuckin' ass has.had it."20 . c. Conclusion Gary Miller was denied reinstatement or reemploy- ment after actively engaging in union activities. The record proved that from January 19, 1984, Respondent had openings which Miller could competently fill. 'Up until that time, it was Respondent's practice to routinely reinstate or reemploy former employees that had been`in- volved in a job layoff or termination. In its defense, Respondent demonstrated shifting rea- sons for its refusal to reemploy Miller. Until March 1, 1984, Respondent consistently told Miller there were no jobs available. However, on March 1, and at the trial; -Respondent changed its position to one of Miller being incompetent. Moreover, Respondent's March 1 letter in- dicated that Miller's personnel file would document.his poor performance. The record established that Respondent's March 1 letter was not correct. Documentation failed to show that Miller had performed poorly To the contrary, Miller was retained after his probationary period in 1983 showing that he had demonstrated good performance. The record illustrated that he was never disciplined be- cause of his work performance. Royal Stokes testified that he was Miller's immediate supervisor. Stokes recalled that Miller once filed a griev- ance against him Nevertheless, Stokes admitted that other than the grievance Miller ` filed, lie could ' recall only one other problem. On one occasion Miller argued 'that he should be permitted to sit during his work since the first-shift employees were permitted to sit. Stokes re- called nothing about production problems with Miller, and he testified, "Gary could work good." Stokes' testi- mony conflicts with Respondent's contention that Miller was not reemployed because he demonstrated poor work. 19 Hurt admitted that he was in the process of constructing a plastic box factory 20 Miller's testimony in this regard was corroborated by Union Inter- national Representative George Clark Jim Phillips admitted talking with Miller on the picket line According to Phillips, he told Miller that "the fuckin' trucks were going to run over his ass if he didn't watch it " Phil- lips testified that Miller had been involved in blocking the incoming and outgoing trucks ' No probative evidence was offered to show that Miller engaged in any picket line misconduct The record and my observation of the witnesses' demeanor convince me that Miller and Clark testified truthfully while Phillips did not The evidence demonstrates that Respondent's alleged grounds for refusing to reemploy Miller were pretex- tuous. The General. Counsel proved that Miller was denied reemployment because of the, employees' union activities in violation of Section 8(a)(1) and (3).21 D. The Alleged 8(a)(1), (3), and (5) Violations 1. Unilateral reduction in hours Respondent in its answer and through stipulations ad- mitted to unilaterally reducing workhours for unit em- ployees on November 10, 1983, from` 8 to 7 hours per day. Respondent continued to work the employees 7 hours per day until December when 70 percent resumed 8-hour workdays. The remaining 30 percent of the em- ployees returned to 8-hour shifts in January 1984. As to the 8(a)(5) allegations, Respondent offered a de- fense that its November 10 reduction of hours did not constitute a change in its practice. Nevertheless, no-evi- dence was offered to show that Respondent ever experi- enced a similar across-the-board reduction in workhours On occasion in 1981 and in 1982, Respondent reduced workhours for some of its employees. On one occasion in 1981, eight employees had their hours shortened and on another five employees. had their hours shortened, but both occasions lasted only a week or 10 days. During a week in June 1-982, two departments, one-half the plant's employees (44 employees) were reduced to 7-hour shifts. The other half of Respondent's employees continued to work 8-hour shifts. Two weeks later, and again in July 1982, for 1 week, less than half the plant was required to work 7-hour shifts. There was no occasion when, 'as in November 1983, the entire plant was required to work reduced workhours. In view of the above, I find that Respondent did engage in a change in working conditions when it re- duced the daily hours for all employees on November 10, 1983. At that time, the Union was the certified repre- sentative of the unit - employees. Respondent's action in- volved a mandatory subject of bargaining. By failing to notify and bargain about the change, Respondent en- gaged-in conduct violative of Section 8(a)(5). As to the 8(a)(3) allegation, Gary Miller credibly testi- fied that Respondent's president William Hurt told him on November 14, 1983, that by reducing the hours, Re- spondent was making good its prior warning that it would make it rough on employees if the Union came in. Hurt told Miller that Respondent could reduce the hours as low as five per shift.22 Therefore, the evidence is substantial that Respondent was motivated to reduce the hours because of its em- ployees' 'union activities. Respondent offered testimony that the hours were reduced because of their backlog and the general economy (see testimony of Jim Phillips). However, Respondent did not show evidence of objec- 21 I note, however, that Miller admitted that he participated in the strike and was not available for work which would have required him to cross the picket line That admission should be considered in back pay computations 22 As shown above, I find Miller to be a candid witness I do not credit contrary testimony by William Hurt (see above) STORALL MFG CO 237 tive consideration or documentary basis for that decision. No evidence was offered regarding the backlog and nothing was shown which would tie the backlog to simi- lar actions by Respondent in 'the past. Moreover-,- there was no showing of which economic indicators influenced Respondent's decision and Respondent did not -show how those factors- had been used in the past. Therefore, the record failed to. show that Respondent would have reduced hours for unit employees absent their protected activity. I find that Respondent reduced daily, workhours during November, and December 1983 and January 1984 in violation of Section 8(a)(1), (3), and (5): 2. Christmas bonus The parties stipulated that Respondent has awarded its employees cash bonuses each Christmas for the 5 -years before 1983. Additionally, other testimony showed that Respondent awarded the cash bonuses for several years before that 5-year period The parties also stipulated, in accord with testimony, that the amount of the bonuses was determined-by the length of each respective employ- ee's service with Respondent. In early December 1983, employees were notified on Respondent's bulletin board that they would not receive a Christmas bonus- To answer any questions that may arise: ' There will be no discretionary Christmas bonus paid this year You may pick-up your turkey at the end of your shift-Friday, December 16, 1983. /s/ Bill Hurt Around December 13 and 16, 1983, the Union distrib- uted leaflets to employees at Respondent's facility critical of Respondent's refusal to award Christmas bonuses. On December 16, Respondent awarded turkeys and gift cer- tificates of $125. William Hurt testified that he decided against a cash Christmas bonus because he heard that alleged discrimin- atees Tommy Crump and Jerry Lewis were making har- assing phone calls to supervisors of Respondent. According to Hurt and Phillips, after receiving a letter criticizing Respondent for depriving employees ' families of their Christmas, Hurt decided to award gift certifi- cates. Conclusions As shown above, the record demonstrates that Re- spondent retaliated against its employees during Novem- ber and December 1983 because they selected the Union. As to the Christmas , bonuses, Respondent offered no cogent basis for denying the 1983 bonus. Respondent's assertion that alleged discriminatees23 were making har- assing phone calls to supervisors was Snot proven. No probative evidence was offered in that regard. I find that the evidence supports the General Counsel's allegation that Respondent violated Section 8(a)(1) and (3) by refusing to grant its usual cash bonus in 1983. 23 A complaint had issued on November 10, 1983, alleging that Tommy Crump had been illegally discharged It is uncontested that Respondent made the decision to discontinue the cash bonuses and notified the employees of that decision, without notifying or bargaining with the Union. The employees were routinely- awarded cash Christmas bonuses which were gauged by their service time with Storall . Therefore, the instant situation in- volves regular compensation for services and must be distinguished from the Board's decision in Benchmark In- dustries, 270 NLRB 22 (1984). Respondent's belated gift certificates did not remedy its denial of the regular bo- nuses. Obviously, the certificates which were good in two local retail stores were not as valuable as cash. Moreover, the cash bonuses would have exceeded the amount of the certificates. Finally, the certificates were for $125 without regard to service time of the respective employee. I find Respondent's denial of its established Christmas bonuses constitutes' a violation of Section 8(a)(1) and (5) as well as Section 8(a)(3). 3. Failure to process grievance The General Counsel contends that Respondent violat- ed Section 8(a)(1) and (5) by refusing to' process griev- ances regarding disciplinary actions against employees at a time before contract negotiations started. Specifically, the General Counsel contends that Respondent demon- strated violative conduct on November 18, 1983, when it replied to the Uriion's demand that it discuss disciplinary actions against various employees to the effect that disci- plinary actions were within 'management's perogative until a grievance procedure was established in a negotiat- ed agreement provided management continued its estab- lished practice. The General Counsel did not show that Respondent engaged in unilateral change of established practice re- garding grievances or disciplinary procedure. Moreover, the General Counsel cited no authority for its position. In the absence of authority supporting the General Counsel's position, j I am unable to find that Respondent violated the Act by failing to process grievances on No- vember 18, 1983. 4. Failure to meet at reasonable times After being certified on October 18, 1983, the Union requested that` Respondent meet and bargain • by -letter dated November 15, 1983. Thereafter, the parties held their first negotiation meeting on December 8, 1983. During that meeting, Union Representative Clark asked Respondent when it' could meet again . Respondent's at- torney indicated he was unavailable until January 24, 1984. The Union,protested. Subsequently, the Union confirmed by a December 20 letter arrangements to meet on: January. 24, 1984. The Union indicated it was available for more than one day during the week of January 24. Respondent's attorney confirmed January 24 by letter dated December 23, how- ever, he indicated he was available for only that one day. When the.parties met on January 24, Respondent's- at- torney announced that he alone was authorized to nego- tiate for Respondent and that the Union should not con- tact his client. Union Representative Clark replied that he would negotiate with the attorney but that he would 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact the client whenever he got ready.. Respondent's representatives then terminated the meeting by walking out. The Union requested further negotiations, by letter dated February 8. On February 10, Respondent's attor- ney replied (in part): Until such time as the Union indicates its willing- ness to negotiate with the duly designated repre- sentatives of Storall Manufacturing Company, the Company sees no point in rescheduling any further meetings. The Union then contacted the Federal Mediation Con- ciliation Service and subsequent meetings were arranged by a mediator. Meetings held after arrangements by the mediator included February 22, March 7 and 8, and, April 16 and 17, 1984. When the hearing closed, the par- ties had not agreed to a contract. Conclusions The General Counsel argues that Respondent refused to meet within a reasonable time after December 8, 1983, and that Respondent's unreasonable action was exacer- bated when Respondent walked out of the January 24 meeting. Further, according to the General Counsel, Re- spondent was unreasonable in refusing to meet after Jan- uary 24, until requested to meet by a Federal mediator. The Board has long held that dilatory or evasive tac- tics, will be considered in assessing the totality of an em- ployei•'s conduct to determine good or bad faith (Crane Co., 244 NLRB 103, 111 (1979)). Where, as here, the fail- ure to meet occurs against a background of unfair labor practices committed by Respondent, it does constitute an 8(a)(5) violation. Bewley Mills, 111 NLRB 830 (1955). Here, Respondent delayed from December 8 until Jan- uary 24, on the assertion that its attorney's schedule did not permit an earlier meeting. Furthermore, the attor- ney's schedule did not permit meeting for more than 1 day in the week of January 24. However, the Board has refused to excuse employers from their duty to meet at .reasonable times on the grounds that their negotiating representative has a busy practice. 0 & F Machine Prod- ucts Co., 239 NLRB 1013, 1019 (1978); NLRB v. Ex- change Parts Co., 339.F.2d 829, 832 (1964), rehearing denied 341 F 2d 584 (5th Cir. 1965)., Here Respondent, on January 24, terminated negotia- tions after the= union representative agreed to negotiate exclusively with Respondent's duly designated represent- ative but refused to agree not to contact Respondent. Respondent has cited no authority for its position in breaking off negotiations. Moreover, no evidence was of- fered by Respondent to show that the Union has even taken any action to bypass Respondent's duly designated negotiations representative. I agree with the General Counsel on this issue. Re- spondent's background of unfair labor practices, and its conduct during negotiations, especially its reluctance to meet within a reasonable time after December 8, and its breaking off negotiations on January 24, without proving any justification for that action, illustrates a subjective intent of an unwillingness to reach a collective-bargain- ing agreement . Insulating Fabricators, Inc., 144 NLRB 1325 (1963), enfd. per curiam 338 F.2d 1002 (4th Cir. 1964); Carbonex Coal Co., 248 NLRB 779 (1980); Arkan- sas Grain Corp., 172 NLRB 1742 ( 1968). 5. Refusal to bargain in good faith by failing to furnish requested information and unilaterally subcontracting work Through use of temporary employees supplied by Em- ployment Consulting, Inc., Respondent reestablished its night shift on March 26, 1984. The General Counsel al- leged that action was unlawful. On March 19, 1984, Jim Phillips wrote the Union: Due to immediate market needs, Storall, Inc. will contract thru the Federal Government for 17 indi- viduals for a period of 90 days, beginning March 26, and continuing for 90 days for the purpose of re- sponding to customer needs. These individuals will not be employees of Stor- all; and they will be told that the term of the con- tract will be only 90 days. The pay rate • will be the same as currently in effect. The Union telephoned Respondent's attorney and the parties agreed to meet over Storall's decision to subcon- tract for temporary employees. The meeting was held on March 22. At the beginning of the March 22 meeting the union was given several form documents from a federally funded program called A.B.L.E., along with the follow- ing cover letter: March 22, 1984 Mr. George Clark International Representative IUE-AFL-CIO-Local 1151 Suite #4, Professional Building Forrest City, AR 72335 Dear Mr. Clark: Storall Manufacturing Company, Inc. has con- tracted with Employment Consulting, Inc. to utilize the A.B.L.E. Program (Abilities Based on Long Ex- perience) to fill a temporary production needs for a maximum of ninety (90) days. The A.B.L.E. Program qualifies` individuals 55 years old or older with an annual income of less than $4,960 00. At the end of the training period, on (1/2) of the salary paid to individuals will be refunded to the sub-contractor (Employment Consulting, Inc.). The reason for use of a sub-contractor is to handle the administrative paper work, skill qualify- ing, interviewing, reference verification, payroll, and insurance that is required to effect the program. The Federally funded program (A.B.L.E.) is the Job Training Partnership Act. STORALL MFG. CO When this 90 day program ends the sub-contrac- tor, Employment Consulting, Inc. will be able to use this trained individual on other assignments Our letter of March 19, 1984, expresses the paid rate of these individuals Jobs to be filled: 8 Welding.. 2 Grinding 2 Assembly 3 Fabrication 2 Shipping and Receiving 17 TOTAL- Sincerely, /s/ Stephen Stephen Biller, Attorney STORALL MANUFACTURING COMPANY During the March 22 meeting, the Union argued that Respondent should have -reemployed employees Gary Miller and Roy Shepherd that had been laid off upon Respondent terminating the night shift on November 10, 1983, before using temporary employees. Respondent told the Union to send Miller to Employment Consult- ing, Inc. (ECI) and that ECI would put Miller to work.24 The' Union asked Respondent for names and addresses of all- temporary employees. Respondent replied that it did not have that information. Respondent, in response to the Union's request, said it had no written contract with ECI.' The Union, as 'the meeting concluded, stated it was not finished negotiating on the `subject and that it was entitled to the information requested. - During the week of March 26, some 32 temporary em- ployees from ECI worked for Respondent.25 Of the 32 temporary employees, only 6 were participants in the A.B.L.E. program. The Union continued to request names and addresses of the temporary employees. . Conclusion As shown above, I have found that Respondent re- fused to reemploy Gary Miller after November 10, 1983, in violation of Section 8(a)(3). In view of Respondent's March 22, 1984 letter-to the Union, it is apparent that Respondent's decision to employ temporary employees on March 26, 1984, in- volved labor costs. Moreover, that decision impacted unit employees' including Gary Miller and Roy Shep- herd-two employees laid off when the night shift was terminated on November 10 (Weston & Brooker Co., 154 NLRB 747 (1965)). The temporary employees were placed under the control of Respondent subject to Re- spondent's supervision. They performed the same work as unit employees, at the same pay rates (see Phillips' March 19 letter to the Union above), under similar work- 24 Even though the Union was puzzled by this recommendation since Miller could not qualify for A B L E program due to his age, they sug- gested to Miller that he apply with ECI Miller went to the ECI office location but mistakenly applied with another employing agency, Execu- Match 25 Nine temporary employees worked for Respondent during the week before March 26 239 ing conditions. Even though Respondent could not dis- charge an ECI temporary employee, Respondent had the authority to refuse to work any of the employees The record shows that Respondent was a joint employer with ECI. - Therefore, the record demonstrates that Respondent's subcontracting decision involved a mandatory subject of bargaining (cf. Otis Elevator Co, 269 NLRB 891 (1984)). Although Respondent had occasionally used temporary employees, its past practice until March 26, 1984, was to man the night shift with regular employees (see above). The night shift was terminated from November 10 until March, 26, and Respondent, by reestablishing with tem- poraiy employees, engaged in a change in established working conditions. The General Counsel argues that that change was uni- lateral in view of the fait accompli presented by Re- spondent's March 19 letter. I agree. Respondent's letters and the record demonstrated that its subcontracting deci- sion was made several days before the March 19 notice to the Union. Thereafter, Respondent gave,no indication it was willing to reconsider its decision and the Union's suggestion that laid-off employees should be rehired was rejected. Subsequently, Respondent refused to provide the Union with essential information regarding the subcon- tracting issue. Even though documents listing names and addresses of temporary employees were in existence, as shown during the hearing herein, the Union was never given that requested information. Only names were pro- vided and those around June 20 (see below). Respond- ent's action constitutes an additional 8(a)(1) and (5)'viola- tion. Employers have a duty to furnish requested informa- tion to collective-bargaining representatives where there is a probability that the requested information is relevant and that it would be of use to the union in carrying out its statutory duties and responsibilities (NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967)). In addition to the above-mentioned request regarding temporary em- ployees, the Union, on June 4, 1984, asked Respondent to furnish it with the names and addresses, rates of pay, department, and classification of all unit employees whether full time, temporary, or part time. The Union was told by Respondent that it would not release ad- dresses of permanent employees. By letter to the Union dated June 20, 1984, Respond- ent enclosed: 1. A list of employees hired by Storall since May 30, 1984. - 2. A list of temporary employees of. Storall con- verted to full time employees. 3. Temporary employees currently employed at Storall On June 26, 1984, the Union responded to Respond- ent's June 20 letter as follows: I am in receipt of your letter to Dick Bridger dated June 20, 1984 containing certain information on employees at Storall 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In your first paragraph you state that you were enclosing the information in 'accordance with an agreement reached at the last negotiating session on June 4,1984. I feel I must set the record straight on that subject. First of all, we did not reach "an agreement on anything." I requested again, as I have several times in the past, the names, addresses, classification, rate of pay, etc., for all employees hired 'at Storall since October 7, 1983; whether through Consulting, Inc., Execu-Match, A.I.D., or any agency that Storall used to secure the Personnel. I further stated that I wanted the names, addresses, rates of pay, date of hire, etc., for all employees doing bargaining unit work in Storall regardless of whether they were temporary, permanent or whatever. In fact, I told you that I was requesting the same information on these employees that I requested on employees prior to the beginning of contract negotiations. You flat refused to give me the addresses and other information I requested. I stated to you that I felt I had a right to their addresses under the' Act. Your reply was "I'll just have to run that risk." - If you will remember, I objected to the two- let-ters Storall Management had distributed only to the non-striking employees' dated May 17, 1984 and May 30, 1984, stating I felt they contained- false and misleading information. Further, I stated that without the addresses of all the employees I had no way of communicating with the non-striking employees. I am again requesting the names, addresses, date of hire, date of birth, sex, race, marital status, labor grade, classification, job title, wage rate and shift of all employees, -whether temporary or 'permanent, hired since October 7, 1983. This request includes all employees working in Storall performing bar- gaining unit work that you classify as Storall em- ployees or employees of Execu-Match, Consulting Inc., A.I.D. or employees of any other agency pro- viding employees to Storall to perform bargaining unit work. The Union-in the above letter indicated that Respond- ent's June 20 response included only a.portion of the in- formation requested. The General Counsel argues that by continuing to fail and refuse to give the Union names and addresses of all employees hired by Respondent since October 7, 1983, and by refusing to give the addresses26 of all current temporary employees, Respondent has engaged in addi- tional bad-faith bargaining Respondent, at the hearing herein, did not offer any evidence in dispute of the Union's June 26 illustration that the requested information is relevant and needed by the Union in the excercise of its statutory duty. I find that the Union is entitled to that information and Re- spondent's refusal to satisfy the requests constitutes a violation of Section 8(a)(1) and (5). Although Respond- 26 Respondent did supply a list of current temporary employees on June 20, but the addresses were not included ent contended that it was concerned that employees would be harassed, no evidence was offered to prove Respondent had an objective basis for such a fear . United Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir. 1970). In response to the Union 's request for -Respondent's contract for services under the A B.L.E . program, Re- spondent first indicated there was only a verbal contract, then subsequently provided the Union with a copy of a contract which proved to be slightly different than the executed contract . Here, again, Respondent did not pursue its bargaining obligation in a manner designed to enhance the opportunities for agreement . Respondent has an obligation to provide relevant information which is accurate. II. THE ALLEGED UNFAIR LABOR PRACTICE STRIKE On January 26, 1984, during a meeting with Union Representative Clark, unit employees voted to strike. Prior to that vote, Clark pointed out to the employees that complaints had issued from the NLRB alleging that Respondent had engaged in unfair labor practices. Clark summarized those unfair labor practice allegations re- garding the -discharge of Crump, Garner, and Kilgore. Clark told the employees that he felt Respondent was continuing to engage in unfair labor practices. He men- tioned that Respondent had walked out of a January 24, 1984 bargaining session. - Clark told the employees their choices of action in- cluded waiting for the Board processes. in the unfair labor practice cases, or to strike The employees voted to set an April 1; 1984 strike deadline. Subsequently, the deadline was extended. Finally, on May 21, 1984, the employees struck Respondent's facility. At the.•close of the hearing, the strike was continuing. Clark met with the unit employees on May 11 and 17, when he again told them of the unfair labor practice pro- ceedings. On May 17, the employees voted again, unani- mously, to strike Unrebutted evidence shows the strike was postponed from April 1 to May 21, because of the instant hearing27 and in order to explore settlement of the unfair labor practices. Therefore, the evidence establishes that the May 21, 1984 strike was initiated by the unfair,labor practices which were established herein, 28 and is, - therefore, an unfair labor practice strike. The strikers are entitled to immediate reinstatement on making unconditional offers to return to work. NLRB v. Mackay Radio Co., 304 U.S. 333 (1938), Pace Oldsmobile, 256 NLRB 1001, 1010, 1011 (1981). 27 Subsequently, of course, the hearing was reopened on July 17 and 18, 1984 - - - 28 Jim Phillips testified about conversations he had with three employ- ees on the picket line where they discussed reasons why a contract had not been reached 'According to Phillips, at least one employee, Elvis Duggan, told Phillips that he was on strike because the Union could not accept the company's proposed contract Elvis Duggan denied that he told Phillips he was on strike because of the contract Instead, according to Duggan, he told Phillips, "We were on strike because of the refusal to bargain in, good faith on a contract" In any event, I find that Phillips' conversations do not establish a basis for determining. overall strike motivation Neither does his testimony overcome the strong evidence of the General Counsel regarding motiva- tion of the strike STORALL MFG. CO CONCLUSIONS OF LAW 1. The Respondent, StorallManufacturing Company, Inc., is .an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of Electronic, Electrical, Tech- nical, Salaried and Machine Workers, AFL-CIO, Local 1151 is a labor organization within the meaning of Sec- tion 2(5) of the Act 3. Respondent, by repeatedly interrogating its employ- ees about their union activities and desires; by prohibit- ing its employees to solicit other employees to sign union authorization cards during nonwork times; by asking its employee to give it their union authorization cards; by repeatedly creating the impression that it was engaged in the surveillance of its employees' union activities; by threatening employees that it was futile to -select -the Union as bargaining representative because the Union had nothing with which to bargain; by threatening its employees that Respondent could start negotiating from zero; by threatening its employee with loss of job if the employee supports the Union; by threatening its employ- ees with declining work orders because of the union or- ganizing campaign; by threatening to have. members of employees' families terminated from jobs outside Re- spondent because of its employee' s union activities, by threatening employees that it would be awful hard to get rid of the union label; by threatening that employees could 'be easily followed on asserting the employee's tracks are wide and deep, because of the employee's union activity; by threatening that the employee will not be permitted to work in Jonesboro or northeast Arkansas because of his union activity; by threatening that an em- ployee would lose his family if he continued to support the Union; by threatening to disseminate false derogatory information about its employee because of his union ac- tivities; and by threatening its,employees with loss of their Christmas bonuses because of, their union activities violated Section 8(a)(1) of the Act. 4. Respondent, by discharging Tommy Crump, Danny Garner, and Roy Kilgore and by refusing to reinstate Crump, Garner, Kilgore, and Gary Miller, violated Sec- tion 8(a)(1) and (3) of the Act. 5. All production and maintenance employees, includ- ing truckdrivers, fabricators, forklift operators, welders, painters, grinders, janitor, line hangers, shipping and re- ceiving employees,' and testers, employed by the Em- ployer at its 5702 Kruger St., Jonesboro, Arkansas facili- ty. Excluded: All other employees, including all office clerical employees, salesmen, guards, leadmen, assistant supervisors, and supervisors as defined in the Act consti- tute an appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. Since October 18, 1983, the above-named labor or- ganization has been, and is now, the exclusive bargaining representative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section,9(b) of the Act. 7. Respondent, by unilaterally reducing the daily working hours for unit employees from 8 to 7 hours per day during November and December 1983, and January 1984; and by unilaterally denying unit employees their cash Christmas bonuses in December 1983, has engaged 241 in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 8. Respondent, by failing and refusing to meet and ne- gotiate I at reasonable times following request of the aforesaid exclusive collective-bargaining agent (the Union) of its employees after December 8, 1983, by re- fusing to furnish the Union with requested information which was relevant and necessary to the Union; by uni- laterally subcontracting night-shift work and employing temporary employees rather than reemploying laid-off employees on March 26, 1984; by refusing to provide the Union requested information concerning Respondent's full-time, temporary, and part-time employees from Oc- tober 7, 1983, has violated Section 8(a)(1) and (5). 9. The strike among Respondent's employees which commenced on May 21, 1984, was an unfair labor prac- tice strike, from its inception resulting from the aforesaid unfair labor practices by Respondent. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall order that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Having found that Re- spondent, in violation of Section 8(a)(5), has failed in its obligation to bargain in good faith, I shall, in order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, construe the initial period of certification 'as beginning on the date Respond- ent commences to bargain in good faith with the Union as the recognized bargaining representative in the appro- priate unit.29 Having further found that Respondent terminated and has thereafter refused to reinstate Tommy Crump, Danny Garner, and` Roy Kilgore, and has refused to re- employ Gary Miller since January 19, 1984, in violation of Section 8(a)(3) and (1) of the Act, I shall order Re- spondent to offer the above-named employees immediate and full reinstatement to their- former positions or, if those positions 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 the dis- crimination against them. Having found that Respondent engaged in unilateral changes in working conditions in violation- of Section 8(a)(1), (3), and (5) of the Act, I shall order resumption of the status quo ante by requiring Respondent to restore back wages lost through its unlawful reduction in work hours during November and December 1983, and Janu- ary 1984; and Christmas bonuses lost through its unilater- al cancellation of cash Christmas bonus in December 1983. 29 Lawrence Textile Shrinking Co, 235 NLRB 1178 (1978); and cases cited at fn 7 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have further found that the strike which began on May 21, 1984, was an unfair labor practice strike from its inception. Accordingly, I shall-order that Respondent offer the strikers, upon their unconditional applications to return to work, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without preju- dice to their seniority and other rights and privileges, dismissing, if necessary, persons hired on or after May 21, 1984, and to make them whole for any loss of earn- ings they may suffer as a result of Respondent's refusal, if any, to reinstate them in a timely fashion by paying to each of them a sum of money equal to that each'would have earned as wages during the period commencing 5 days after the date on which each unconditionally offers to return to work to the date of Respondent's offer of reinstatement, less any net earnings during such period. The Board has found that the 5-day period is a reasona- ble accommodation between the interests of the employ- ees in returning to work as quickly as possible and the employer's need to effectuate that return in an orderly manner.30 Accordingly, if Respondent herein has al- ready rejected, or hereafter rejects, unduly delays, or ig- nores any unconditional offer to return to work,- or at- taches unlawful conditions to, its offer of reinstatement, the 5-day period serves no useful purpose and backpay will commence as of the unconditional offer to return to work.31 In each of the above instances where backpay is ap- propriate, such backpay and interest shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231' NLRB 651 (1977).32 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed33 - ORDER The Respondent, Storall Manufacturing, Company, Inc., Jonesboro, Arkansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of .the Act by repeatedly interrogating its employees about their union activities and desires; by prohibiting its em- ployees to solicit other employees to sign union authori- zation cards during nonwork times; by asking its employ- ees to give it their union authorization cards; by repeat- edly creating the impression that it is engaged in the sur- veillance of its employees' union activities, by- threaten- ing employees that it is futile to select the Union as bar-. gaining representative because the Union has nothing 30 Drug Package Co, 228 NLRB 108 (1977) - 31 Newport News Shipbuilding Co, 236 NLRB 1637 (1978) 32 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 33 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 with which to bargain; by threatening its employees that Respondent could start negotiating from zero; by threat- ening its employee with loss of job if the employee sup- ports the Union; by threatening its employees with de- clining -work orders because of the union organizing campaign; by threatening to have members of employees' families terminated from jobs outside Respondent be- cause of its employees' union activities; by threatening employees that it would be difficult to get rid of the union label; by threatening that employees could be easily followed on asserting the employee's tracks are wide and deep, because of the employee's union-activity; by threatening that the employee will not be permitted to work in Jonesboro or northeast Arkansas because of his union activity; by threatening that an employee would lose his family if he continued to support the Union; by threatening to disseminate false, derogatory in- formation about its employee because of his union activi- ties; and by threatening its employees with loss of-the Christmas bonuses because of their union activities. (b) Discharging its employees and refusing to reinstate them. because of their protected concerted activities or their union activities. (c) Refusing to bargain in good faith with International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL-CIO, Local 1151, as the certi- fied collective-bargaining representative of the employ- ees in the following described unit: - All production and maintenance employees, includ- ing truckdrivers, fabricators, forklift operators, welders, painters, grinders, janitor, line hangers, shipping and receiving employees,-and testers, em- ployed by the Employer at -its 5702 Kruger St.; Jonesboro, Arkansas facility. Excluded: All other employees, including all office clerical employees, salesmen, guards, leadmen, assistant. supervisors, and supervisors as'defined in the- Act: - (d) Unilaterally employing temporary employees to man its -night-shift operations from March 26, 1984, and refusing to employ its own employees, without first ne- gotiating with Union; unilaterally reducing daily working hours for unit employees; unilaterally' cancelling its em- ployees' cash Christmas bonuses, refusing to meet and negotiate with the Union at reasonable times, and refus- ing to furnish relevant information to the Union on re- quest. - (e) In any other manner interfering with, restraining, or coercing its 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) Bargain in good faith with the labor organization, on its request, as the exclusive representative by meeting and negotiating at reasonable times; and by furnishing the Union information it requests which is relevant and necessary (b) Offer immediate and full reinstatement to Tommy Crump, Danny Garner, Roy Kilgore, and Gary Miller to their former 'positions or, if those positions no longer exist, to substantially equivalent postions, without preju- STORALL MFG. CO. dice 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 the discrimination practiced against them in the manner set forth in the remedy section of this decision. (c) Offer the unfair labor practice strikers, on their un- conditional applications to return to work, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice ,to their seniority or other rights and privileges, dismissing, if necessary, persons hired on or after May 21, 1984, and make them whole for any loss of earnings they have suffered or may suffer as a result of the discrimination practiced against them in the manner set forth in the remedy section of this deci- sion. (d) Make all unit employees whole by paying back wages, with interest, as shown in the remedy section for loses incurred as a result of its unlawful refusal to grant. the employees' 1983 cash Christmas bonuses and its tin lawful reduction in daily work hours from 8 to 7, during November and December 1983, and January 1984. (e) Preserve and, on request, make available to. the Board or its agents for examination and copying, all pay- 243 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. (f) Post at its plant in Jonesboro, Arkansas, copies of the attached notice marked "Appendix "34 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices, are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 34 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 "