Sealectro Corp.

SEALECTRO CORP. Sealectro Corporation and International Association of Machinists and Aerospace Workers and Thomas MacDonald. Cases 39-CA-1933-2, 39- CA-2074, 39-CA-2142, 39-RC-480, and 39- CA-2121 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 15 April 1985 Administrative Law Judge George F. Mclnerny issued the attached decision. The Respondent filed exceptions, a supporting brief, and a brief in opposition to the General Counsel's exceptions. The General counsel filed an answering brief, cross-exceptions, and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions,2 but not adopt his recommended order. THE REMEDY3 Having found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging em- ployee David Betancourt and by transferring em- ployee Paul Clapps for discriminatory reasons, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent shall offer David Betancourt and Paul Clapps immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions without prejudice to their seniority or any other rights and privileges previously en- ' The Respondent has excepted to some of the judge's credibility find- rags. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge's conclusions that the Respondent unlawfully attempted to restrict the movement of employees in order to restrict union campaigning, we also rely on the credited testimony of employee MacDonald that he was instructed by Supervisors Wagner and Corvo to keep an eye on and report to the Respondent the movements of employ- ees Famighetti, Lamy, and Johnson or any union organizers to make sure these employees stayed at their machines. s The Order substituted below conforms to the judge's findings and Conclusions, including his conclusion in the text of his decision that the Respondent violated Sec. 8(axl) by soliciting an employee to revoke his authorization card, which we adopt The judge's recommended remedy fads to address the violation found regarding employee Clapps and does not provide complete relief for em- ployee Betancourt. The remedy below is substituted for that of the j udge. 151 joyed, dismissing, if necessary, any replacements hired in their stead. In addition, the Respondent shall make David Betancourt and Paul. Clapps whole for any loss of earnings and otherbenefits they may have suffered as a result of the discrimi- nation practiced against them. Having found that the Respondent unlawfully suspended James Fa- miglietti for 7 days in violation of Section 8(a)(3) and (1) of the Act, we shall order that the Re- spondent shall make James Famiglietti whole for any loss of earnings and other benefits he may have suffered as a result of the discrimination practiced against him. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Sealectro Corporation, Waterford, Connecticut, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discouraging membership in, or activities on behalf of, a labor organization by discharging, sus- pending, transferring, or otherwise discriminating in regard to the hire and tenure of employment, or in regard to any term or condition of employment. (b) Coercively interrogating employees concern- ing activities on behalf of, or support of, a labor or- ganization. (c) Threatening employees with loss of employ- ment or other reprisals if they joined or supported a labor orgainization. (d) Engaging in surveillance of employees be- cause they are engaged in, or are suspected of en- gaging in, union activities. (e) Soliciting employees' grievances and promis- ing to remedy those grievances in order to discour- age union activities. (f) Soliciting employees to spy on other employ- ees. (g) Soliciting employees to rescind union author- ization cards they have signed. (h) Restricting the movement of employees in order to restrict their union activities. (i) Placing warning notices in employees' files because of their union activities. (j) Giving unfavorable employee evaluations to employees in retaliation for their union activities. (k) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. 280 NLRB No. 15 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer David Betancourt and Paul Clapps im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights and benefits previously enjoyed, dismissing their replacements if necessary. (b) Make David Betancourt, Paul Clapps, and James Famiglietti whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination practiced against them, in a manner provided for in the remedy section of this decision. (c) Remove from its files any reference to the unlawful discharge of David Betancourt, the trans- fer of Paul Clapps, the warning notices and suspen- sion of James Famiglietti, and the adverse employ- ee evaluation of Carlton Johnson and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Watertown, Connecticut oper- ations copies of the attached notice marked "Ap- pendix."4 Copies of the notice, on forms provided by the Officer in Charge for Subregion 39, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed as to alleged violations of the Act not found in this decision. 4 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discourage membership in, or ac- tivities on behalf of, International Association of Machinists and Aerospace Workers, or any other labor organization, by discharging, suspending, transferring, or otherwise discriminating against employees in regard to their conditions of employ- ment. WE WILL NOT coercively interrogate employees concerning their activities on behalf of, or in sup- port of, a labor union. WE WILL NOT threaten employees with loss of employment or other reprisals if they join or sup- port a labor union. WE WILL NOT engage in surveillance of employ- ees because they are engaged in, or are suspected of engaging in, activities on behalf of a labor union. WE WILL NOT solicit employee grievances or promise to remedy employee grievances in order to discourage employees from engaging in union ac- tivities. WE WILL NOT solicit employees to spy on other employees. WE WILL NOT solicit employees to rescind their union authorization cards. WE WILL NOT restrict the movement of employ- ees in order to restrict their union activities. WE WILL NOT place warnings in employees' files because of their union activities. WE WILL NOT give employees unfavorable em- ployee evaluations in retaliation for their union ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. SEALECTRO CORP 153 WE WILL offer David Betancourt and Paul Clapps immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or any other rights and benefits pre- viously enjoyed, dismissing their replacements if necessary WE WILL make David Betancourt, Paul Clapps, and James Famighetti whole for any loss of earn- ings or other benefits they may have suffered as a result of the discrimination against them WE WILL remove from our records any refer- ence to the discharge of David Betancourt, the transfer of Paul Clapps, the discipline of James Fa- miglietti, and the discipline and adverse rating of Carlton Johnson, and notify them in writing that this has been done and that evidence of these un- lawful actions will not be used as a basis for future personnel action against them SEALECTRO CORPORATION Harvey Shrage Esq, for the General Counsel Frederick D Braid, Esq, and Ernest R Stolzer, Esq (Rains and Pogrebin, PC), of Mineola, New York, for the Respondent Mr Joseph J Bianca, of Oakville, Connecticut, for the Charging Party DECISION GEORGE F MCINERNY, Administrative Law Judge Tins case arises out of a series of charges filed with the Hartford Subregional Office of the National Labor Rela- tions Board (the Board) beginning on December 22, 1983 The first of these, in Case 39-CA-1933-2, was filed by the International Association of Machinists and Aero- space Workers, AFL-CIO (the Union) against Sealectro Corporation (the Respondent or the Company) Addi- tional charges were filed on January 27 , 1984, in the same case, Case 39-CA-1933-2, on March 2, 1984, in Case 39-CA-2074, and on April 20 and May 11, 1984, in Case 39-CA-2142 An additional charge, in Case 39- CA-2121, was filed against the Company on April 5 and May 17, 1984, by an individual, Thomas MacDonald As a result of these series of charges, several complaints were issued by the Subregional Office of the Board al- leging that the Company had violated the National Labor Relations Act On April 18, 1984, the subject matter of these complaints was consolidated with a sup- plemental decision in Case 39-RC-480, a case which had been filed by the Union, involving objections by the Union to conduct by the Company which allegedly af- fected the results of an election conducted in that case Following this consolidation, several amendments to the complaints were issued The Respondent Company filed answers to all these complaints denying the commission of any unfair labor practices Pursuant to notice, a hearing was held before me in Hartford, Connecticut, commencing on August 13, con- tinuing on August 14, 15, 16, and 17, and concluding on November 5 and 6, 1984, at which time all parties were represented and had the opportunity to present testimony and documentary evidence, to examine and cross-exam- me witnesses, and to argue orally Before the hearing reopened on November 5, 1984, the Union filed with me a motion to withdraw its objections to the election in Case 39-RC-480, and its request for a bargaining order contained in Case 39-CA-2074 After arguments by the parties and after consideration of a memorandum in opposition to the Union's motion filed by the Company, I ruled on November 6, 1984, allowing the Union's motion Thereafter the General Counsel moved to withdraw these portions of the complaints al- leging that the Company unlawfully refused to bargain with the Union I allowed this motion as well The Respondent took exception to these rulings and filed with the Board a request for special permission to appeal my actions This request was denied by the Board on December 12, 1984 Subsequently, the General Counsel and the Company have filed briefs winch have been carefully considered Based on the entire record, including my observations of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I JURISDICTION The Respondent, Sealectro Corporation , is a New York corporation with an office and factory in Water- town, Connecticut, where it is engaged in the manufac- ture and sale of radio frequency cable connectors, elec- tromc parts, and similar goods During the 12-month period ending December 31, 1983 , the Company re- ceived at its Watertown facility goods and materials valued at over $50,000 directly from points outside the State of Connecticut The complaint alleges, the answer admits, and I find that the Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Union Organization Campaign In October 1983 an employee of the Company named Carlton Johnson contacted Joseph Bianca, a Grand Lodge representative of the Union The two discussed Johnson's desire to unionize the Company's employees and they eventually determined to have an organization- al meeting on October 13 at the Red Bull Inn, a restau- rant in Waterbury, Connecticut Johnson and others noti- fied the employees of the meeting and, as the parties stip- ulated, 49 showed up 1 A second meeting was held at a 1 There were about 175 employees involved m the bargaining unit here 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VFW hall in Oakville on October 23, at which time some of the Company's employees signed union authori- zation cards. At another meeting, which was held for those willing to serve on an in-plant organizing committe, Bianca and the employees talked about plans for the campaign. The employees present were given about 30 union authoriza- tion cards to distribute to other employees . According to the undenied and credible testimony of Johnson and James Famiglietti, a Brown and Sharpe machine opera- tor, they distributed cards from their work stations and received signed cards at the same places . Cards were also distributed and picked up in work areas by employ- ees Steve Cutler and David Betancourt and probably by others as well. During the campaign, which went on from these meet- ings in October 1983 until an election conducted by the Board's Hartford office on February 2, 1984 , there is considerable undisputed evidence that the Union and the campaign were constant topics of conversation among employees at lunchtime, coffeebreak, before and after work, and during working hours as well. Union support- ers Famiglietti, Johnson, Paul Clapps, and Irene Mills participated in the distribution of union literature and other campaign paraphernalia such as buttons , hats, T- shirts, pencils, pens, and pocket protectors, all marked with the insignia of the Union. All of this activity was spirited and enthusiastic, but the evidence shows that there were few traces of the bitterness and hostility among pro and antiunion employees, or between employ- ees and management, which can frequently characterize these kinds of activity. B. Management Reaction in General This surface tranquillity did not mean that the manage- ment of the Company approved of the employees' union activities, or even that management took a neutral, hands-off, position. Beginning November 2, 1983, and continuing through January 30, 1984, the Company issued a stream of notices to employees expressing the Company's strong opposition to the Union and urging the employees to vote against representation. With re- spect to issues raised in the complaint, employee Robert L. Jacaruso testified, and his testimony was credible and undenied, that he was called into the office of Supervisor Fred Wagner on October 13, the day of the first union meeting. Wagner asked Jacaruso whether he was going to the meeting. When Jacaruso replied that he was, Wagner told him to call him at his home after the meet- ing, if it was not too late. Jacaruso did attend the meet- ing and did call Wagner afterwards. Wagner proceeded to ask Jacaruso how many people were there and for the names of those people. Jacaruso gave him the names of Jeannie Lamay, Carlton Johnson, James Famiglietti, Robert Dunn, and Tom McKenna. An employee named Thomas MacDonald testified, again credibly and undenied, that he had been an outspo- ken and well-known opponent to a previous union orga- nization drive about 3 years before. Indeed, he stated that he had acted as a company spy at union meetings at that time. Not surprisingly, early in October 1983, Mac- Donald was approached by Fred Wagner and Assistant Plant Manager Joseph Corvo, who wanted to know what MacDonald had heard about the current union campaign. MacDonald replied that he had not heard anything yet, but he knew something was afoot because he had approached a group of employees and one of them said, "[h]ere comes MacDonald, shut up." Corvo and Wagner told him to let them know if anyting else happened. Toward the end of October, either October 22 as re- ported by Jacaruso , or October 23 as recalled by Mac- Donald, both employees were called into Wagner's office. There they made arrangements for MacDonald and Jacaruso to go to the union meeting scheduled for October 23 and report to Wagner by telephone after the meeting. MacDonald and Jacaruso went to the meeting together, but called Wagner separately after they had re- turned home. Wagner asked them how many people were at the meetings . MacDonald told him that the lead- ers were Famiglietti, Johnson, Richard Pierce, Jeannie Lamay, and "a Puerto Rican kid" who worked nights. Jacaruso corroborated this in testifying about his own conversation with Wagner, but he testified that he did not mention any "Puerto Rican," either in general or specifically, by the name of David Betancourt. On the following Monday, Wagner called MacDonald into his office and pressed him to see if he could remem- ber any more names of those attending the union meeting as well as what had occurred there. Later on that Monday, Wagner and Corvo spoke to MacDonald, and instructed him to keep an eye on Famiglietti, Lamay, Johnson, or any union organizers to make sure these people stayed by their machines . If not, MacDonald was to report the facts to Wagner or Corvo. MacDonald also testified about a meeting in the Com- pany's cafeteria in early November 1983. About 15 or 20 employees attended this meeting, which was run by Company President Nick Maholis (or Mahalis) accompa- nied, at some time later in the meeting, by Plant Manag- er George Eschert. Maholis asked the assembled employ- ees what the problem was. MacDonald testified that MacDonald replied to this, mentioning the layout, the way the place was run, pension plans, profit sharing, and a credit union . Maholis said that there was no reason why the Company could not have a pension plan or a credit union. MacDonald then announced tht he had signed a card, but he was going to get it back from Fa- miglietti. After the meeting, Foreman Joseph Matazzo told MacDonald to sign a paper which he said would "take care of getting the card back." Robert J. Gary, an employee for 2-1/2 years, testified that he attended a union meeting at the Red Bull Inn and the next day he was approached at his work station by Matazzo. The foreman asked Gary if he had attended the meeting and Gary said he did. Matazzo then asked Gary how he felt "about a meeting" and Gary said he was un- decided. A week or so later Gary signed a union card. A week after that Gary was again approached by Matazzo, who asked if Gary had signed a union card . Gary said he had. Matazzo then asked if Gary would like to get the card back. Gary again said yes and Matazzo told him to come to his office. When they got there, Matazzo had SEALECTRO CORP. Gary sign a "paper" with some other names on it. Ma- tazzo then told Gary that the organizers of the Union "probably wouldn't be there any longer after this was all over with." He continued that the organizers "were just in there for the money, you know, they were young." Neither Matazzo nor Wagner testified here, leaving the testimony of MacDonald, Jacaruso, and Gary undenied as well as credible. C. Incidents Involving James Famiglietti Carlton Johnson was the person who began the union activity at Sealectro, but the testimony here shows that Famiglietti was the most visible union activist in the plant. Famiglietti is a machine operator in what is known as the Brown and Sharpe department. He is responsible for three machines,2 but according to his credible testi- mony the requirements for the job included a number of trips away from the machines both before and during the times the machines were actually running. Indeed, Fa- miglietti testified, credibly, that he was accustomed to sitting and working on crossword puzzles while the ma- chines were running. Another employee, Richard Lepore, called as a witness by the Respondent, testified that before the union campaign began, Famiglietti sat down by his machines most of the working day, but that he was "all over the plant" during the campiagn. Famiglietti testified that his supervisor, Fred Wagner, came to his work area maybe once or twice a week before the union campaign began, but afterward Wagner followed him constantly, every time he left his machine. In explanation for this, Wagner was quoted by Famig- lietti as complaining that if it was not for the union cam- paign, Wagner would not have to go through all this. It was "kind of rough on his legs" and made him very tired at the end of the day. Wagner also told Famiglietti that he was told by Plant Manager Eschert to keep a eye on Famiglietti. On December 6, 1983, Famiglietti was given a written warning by Supervisor John McKenna for doing cross- word puzzles on the job. Famiglietti remonstrated at this. In fact, as he testified, McKenna had not only observed him doing the puzzles for 5 years or so, but McKenna had actually supplied him with the puzzles every morn- ing. In this December 6 incident, after Famiglietti com- plained, McKenna said he would let it go this time. The record shows, however, that a handwritten warning was placed in Famiglietti's personnel file. On January 25, 1984, Famiglietti was approached by Eschert in Famiglietti's work area. Eschert pointed his finger at Famiglietti and told him that if he left the work area one more time he would be written up an that Es- chelt was the plant manager and, if Famiglietti did not believe that this warning was serious, to try leaving the work area. Famiglietti learned later that a warning was placed in his file because of this incident. Eschert testi- fied about this incident, and did not deny the conversa- 2 The testimony in this case shows that jobs are received by machine operators and their machines are either set up by setup people, or by themselves, and once set up the machines need only to be tended, or monitored, by the machine operators While a particular job is being run, the machines can be left running by themselves, barring accidents or shortages of stock. 155 tion and the fact that a warning was given, but stated that the reason was his observations of Famiglietti being away from his machines and not working. On January 31, 1984, Famiglietti testified that he was in the company cafeteria on his coffeebreak when Super- visor Al Poskus, who was at the next table, said to him that after the election on February 3, the chances were that Famiglietti would not have a job any more. Poskus testified that he had many contacts with Famiglietti during the campaign and that he considered that they were friends. He recalled one conversation in Wagner's office in the course of which Famiglietti told him that if the Union got in Poskus was liable to lose his job. On the morning of January 31, according to Poskus, Famig- lietti was talking to the people at his table in the cafeteria about the union victory party to be held on the night of the election. Poskus, at the next table, commented that he hoped Famiglietti could make it in the next day. After this Famiglietti got up and started banging the table, saying that he considered that remark to be threatening. Poskus testified that he said that he did not mean it that way.' Employee Richard Lepore, a witness to this incident who testified on behalf of the Respondent, stated that Famiglietti was not mollified by Poskus' explanation that he was only kidding, but said he was going to bring Poskus "up on charges." Poskus repeated that he was only kidding, but Famiglietti got up after fmishing his coffee and walked by Poskus without speaking. Paul Clapps, a witness for the General Counsel, was sitting at the same table as Famiglietti that morning, but he could not recall what was said. Clapps recalled the in- cident as a "heated exchange," but could not recall the words which were said. According to Famiglietti, the Company's concern with his activities did not cease after the February 2 election. On March 27, 1984, he testified that he was talking about profit sharing with several other employees during work- ing time when Matazzo came up and told the employees to break it up and get back to work. Later that day, Fa- miglietti was called into Wagner's office to meet with Wagner and McKenna. Wagner handed Famiglietti a warning slip form and asked Famiglietti to sign it. He re- fused, and McKenna told him that he was the only one reported by Matazzo for the incident. Later Famiglietti asked Supervisor Joseph Corvo why he was the only employee in the discussion broken up by Matazzo who actually got a warning. Corvo responded that "we're more interested in what you're doing." The final incident involving Famiglietti occurred on May 23, 1984. According to his version of the incident, Famiglietti had left his work area about 2 p.m. to pick up some materials. When he got to the room where the ma- terial was kept, the room was closed and the attendant was not there. Famiglietti waited around, as was the practice in the shop and, while so engaged, walked over to an employee named Mike Lembo, who worked in that area. He handed Lembo a pencil with the Union's name on it. He then held up a pencil and motioned to another employee named Pete Daddona to ask whether Daddona wanted it. Daddona nodded and Famiglietti walked over 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and gave him a pencil. At this point Famiglietti looked up and saw Supervisor Matazzo watching him. He then returned to his work area. Several minutes later Fred Wagner came up and asked Famiglietti if he was starting another union campaign. Still later Wagner returned to Famiglietti's work area and handed him a notice of his suspension for a period of 7 days. Additional testimony on this incident was supplied by employees Gary Finnemore, who was in charge of the stockroom, and Pete Daddona. Both Finnemore and Daddona placed Famiglietti in the stockroom area in the morning for 15 to 20 minutes, and both were agreed that he never signaled Finnemore, who was unloading trucks in the same area, that he needed some materials. Dad- dona confirmed the fact that Famiglietti gave out pencils but denied that he or Lembo had asked for them. Ac- cording to Daddona, Famiglietti just came up to Lembo and himself and handed them the pencils. D. Incidents Involving Carlton Johnson Johnson, like Famiglietti, was one of the leading union adherents inside the plant. The first incident involving Johnson which is alluded to in the complaint is a warn- ing notice placed in Johnson's personnel file and dated October 12, 1983. This warning states that Johnson had been warned to stay at his work station, and not to leave without telling his foreman, and is signed by Wagner and Eschert, but not by Johnson. In fact Johnson testified that he was unaware of the incident until he was shown the notice by the General Counsel shortly before this hearing. There was no mention of this warning by Es- chert, and Wagner, of course, did not testify. Johnson was extremely active and highly visible in the union campaign, handing out cards all over the shop; giving out hats, T-shirts, buttons, and other union para- phernalia; and generally discussing the Union with all who would listen. Sometime in the first week of November 1983, John- son reported a conversation with Wagner in which the latter said that he could identify with what Johnson was trying to do but that Wagner was management and he had to do what "they" told him to do. He then instruct- ed Johnson to stay near his machine. About a week after this, Johnson was asked by Es- chert, in Wagner's presence, which route he used from his work area to the toolroom. Eschert informed John- son that he did not want him using the route he had used, and again instructed him that he did not want him away from his machines. Johnson had never before been told what route to use or not to use in the course of his work in the plant. On November 14, 1983, Johnson was handing out union leaflets at the rear entrance to the plant just after 6:15 in the morning . Matazzo came up and asked John- son to do him a favor and not pass out the leaflets on company property. Johnson replied that he was informed of his rights, and if Matazzo knew his rights he would leave Johnson alone. A similar incident occurred on November 21. This time Johnson was passing out leaflets by the timeclock and Eschert asked him to hand out the literature outside the plant. Johnson told Eschert that he did not have to go outside to hand out the literature; that, besides, it was raining out; and that Eschert would have to call the police to put him out. There is no record of what Es- chert responded to all this, if he responded at all. Johnson also testified about a conversation with Wagner in November during which Wagner told him that he took a lot of time off; that he had a problem with absenteeism; that he spent a lot of time away from his machines; and that his production averages were below average. In November 1983 Johnson was given an em- ployee evaluation grading him as below average. A final incident involving Johnson took place on Feb- ruary 1, the day before the election. While Johnson was at his machines, he was approached by Company Vice President Jesse Fuchs who, apparently in a somewhat hysterical state, yelled at Johnson not to leave his ma- chine, not to talk to anyone for any reason, and still yell- ing said that he did not care why Johnson was away, he just did not want him away from his machines. Johnson voluntarily left the Company on March 20, 1984, to take another position. E. Incidents Involving Transfers of Employees The complaint alleges that the Respondent transferred inspector Paul Clapps from one department to another because of his union activities. Clapps had been an in- spector in the Company's secondary department for about 3 years. He became interested in the union orga- nizing campign and handed out 35 or so authorization cards; passed out literature; and distributed pencils, pens, hats, and assorted union giveaways. On January 18, 1984, Clapps was called into the office of Robert E. Wilcox, the Company's quality control manager, and Clapps' su- pervisor, and was informed that he and another inspec- tor, Bill Standard from the secondary department, were being transferred. Clapps was moved from a department with 50 employees to the Swiss department which em- ployed 17 or 18 people. Standard was transferred to the Brown and Sharpe department.3 Thomas MacDonald testified that a week or so before the election he asked Wilcox what was going on with the inspectors. Wilcox replied that Paul (Clapps) and a guy out in secondary (Standard) were pressuring employees into voting for the Union so they were going to be transferred, one to Brown and Sharpe (Standard) and the other to Swiss (Clapps). Wilcox denied that he told MacDonald he had trans- ferred Clapps and Standard because of union activity. He did say that he transferred Clapps from secondary to Swiss because there was a quality control problem in Swiss, and he thought Clapps could help. Similarly, Wilcox testified that he transferred Standard to Brown and Sharpe because one of the inspectors in Brown and Sharpe, Irene Mills, had some problems, personality and credibility problems, with employees in that department. Mills, who testified that she had exhibited no overt union activity up to that time, was transferred to secondary in Standard's place. 8 These latter two departments are named for the type of machines in- stalled there SEALECTRO CORP. Wilcox testified at length about problems with quality control generally, and with secondary and Swiss in par- ticular, to the point where he expressed serious concern for his own survival with the Company.4 The quality control was very bad around the first of the year in 1984 and, as Wilcox testified, the reject rate was reduced in Swiss after Clapps was transferred, but it was just as bad in March 1984 as it was before Clapps was transferred. Wilcox also testified concerning frequent transfers of inspectors from department to department. In the area of transfers MacDonald also testified to a conversation with an employee named Vinny Gonzalez, who told MacDonald that he was transfered to the sec- ondary department to try to talk the Spanish- and Portu- gese-speaking employees to vote against the Union.5 F. Election Day Incidents On February 2, while the election was actually going on, Irene Mills testified that she heard Supervisor Al Poskus state to employees in quality control that the Company had won the election by 3-to-1, and that he was going into secondary to tell the employees there that the Company had the vote "in the bag." Mills went to complain to the Board agent conducting the election about this incident, but he could not leave the election area to help her. She next went to the secondary depart- ment and began talking about the incident with an em- ployee there. Supervisor Tony Newbury came up to her and asked what she was doing there. She said she worked there, and he then asked if she was on the clock. She said she was not and Newbury then told her she would have to leave. Mills asked why and Newbury said that he was just asking her to leave, and that he wanted her to leave right away. 6 Theresa Mastracchio testified that she had a conversa- tion with Poskus on the day of the election. This was un- usual, because, according to Mastracchio, Poskus never came up and kidded around with employees. On this oc- casion there was, as she put it, "something different" about his stopping and talking to her at that time. Mas- tracchio also noted that Poskus stopped and talked to others, as well, on that day. The conversation at least in part was lighthearted, concerning in part whether Poskus should cut his hair and shave off his moustache. Mastracchio jokingly said that he would look younger if he did that. He then went out at lunchtime, had a haircut and shave, then came back and told the employees that because he had done what they suggested, they had to vote against the Union. Another part of this, or these, conversations concerned the Union. Mastracchio stated that Poskus started a con- versation about how she and her fellow employee, Shirly Tavares, were gong to vote, and the way others were going to vote. He also told these women that if they 4 Wilcox pointed out that the quality of products was unacceptable, but he was not permitted to add more inspectors. There was on objection to MacDonald's recitation of this conversa- tion into the record. As noted above, Mills stated that she was not active in the organiza- tional campaign before she was transferred to secondary in January Therefter, she stated, she became more active and passed out literature, and wore a union hat. 157 went for the Union, the secondary department would move to New York.7 Mastracchio's testimony in regard to the effect of this last remark was ambiguous. She testi- fied at one point that she did not take this serious, but then, reflecting on the unusual nature of this visit and conversation, she reported that he sounded like he was serious about moving the secondary department. Poskus recalled the conversation with Mastracchio and Tavares, recalled the hair and moustache part of the ex- change, and admitted that there was talk about the elec- tion. He denied making the statement that the Company, or secondary, would move to New York if the Union won the election. G. The Discharge of David Betancourt Betancourt was hired originally as a student trainee while he was finishing high school. After his graduation he received a $50 bond and a certificate from the Com- pany, and was given a full-time job. On October 18 Betancourt and another employee named Steve Cutler decided to go to the union meeting at the Red Bull Inn. Because they were on the second shift they were scheduled to be at work at the time of the meeting. They went to the office of Supervisor Tony Newbury and requested permission to punch out and go to the meeting.8 They went to this meeting and to a second meeting where there was just a small group of organizing committee people . Betancourt had not signed up to serve on the committee, but he did pass out union pencils and clips, and did get three cards signed by other Spanish-speaking employees. On December 20, 1983, Be- tancourt called the plant and talked to a person he de- scribed as "the secretary in the office, I guess. It was a lady." He told this person that he had car problems and his driver had had an accident, so if he could find a ride he would come in. The woman he talked to said thank you for calling and hung up. On the next day, 1:30 or 2 p.m., Bentancourt received a call from a Louise Bruno, a representative of the Com- pany, who informed him that he had been terminated be- cause of "Absence." H. Analysis and Conclusions 1. In general As I have noted, the organizational campaign here under question was, in the Company's own words, strongly opposed by all of its officers. Despite this oppo- sition, the Company's response to the campiagn was low- keyed and, on the surface of things, restrained and inof- fensive. The evidence also shows that there was a lot of talk by and among employees who were for or against 7 The Company has another plant in New York. 8 There is some question about what was said at that time, and who said it. Betancourt and Cutler both agreed that Newbury and Supervisor Ron Murray were in Newbury's office that evening. Betancourt recalled that Murray actually gave the two employees permission to go, after in- quiring whether they both wanted to go, and added, as they left, a re- quest that they tell him how the meeting went when they returned. Cutler testified that Newbury gave them permission to go, and did not state that Murray said anything 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, before, after, and during working hours. Many employees, like Famiglietti, were required in the course of their duties to travel from their work stations to other locations throughout the plant. Others having duties as inspectors or setup people also moved around during the course of the workday in the performance of their duties. In any case, the machines operate pretty much by themselves. Beyond the talk and the movement, and the inevitable visiting back and forth, the Union caused to be distributed quantities of pencils, pencil clips, pens, pocket protectors, hats, and T-shirts, all bearing the Union's name or logo, and exhortations in favor of union representation. The Company, along with the numerous leaflets and notices which it prepared, was aided by ap- parently unsolicited letters to employees signed by vari- ous antiunion employees. In addition, MacDonald testi- fied that in the middle of January he left work, with Fred Wagner's permission, and purchased some hats which bore the words, "Vote no" on them.9 On the basis of the record evidence, it is clear that the Company entered on a campaign designed to spy on the union activities of its employees, and when the identities of the in-plant leaders of that campaign were discovered, to enter on a pattern of restriction and harassment of the leaders. Even before the first union meeting on October 13, the credible and undenied evidence shows that Thomas Mac- Donald was approached by Fred Wagner and Assistant Plant Manager Joseph Corvo and asked if he had heard about a current union campaign. All MacDonald could tell them at that point was that he knew that something was going on. By October 13 Wagner knew that there was to be a union meeting that night because he called MacDonald and Robert Jacaruso into his office and so- licited them to report to him the names and numbers of employees attending the meeting . As the complaint al- leges, such solicitation of employees to spy on the Union is a violation of Section 8(a)(1) of the Act. Cummins Component Plant, 259 NLRB 456 (1981); Swan Coal Co., 271 NLRB 862 (1984). MacDonald's testimony which I have credited, shows that he told Wagner after the Octo- ber 13 meeting that the leaders of the campaign were Fa- miglietti, Johnson,' ° Pierce, Lamay, and a "Puerto Rican kid." On October 22 and 23, Wagner called on Jacaruso and MacDonald for a second espionage mission, which they duly fulfilled, and which I duly find was another viola- tion of Section 8(a)(1) of the Act. This last violation I find also includes a meeting on the Monday after the Oc- tober 23 meeting when, MacDonald stated, Wagner again asked him to see if he could remember more names No one asked MacDonald who paid for the hats. 10 It appears from this that the Respondent first found out the identity of the leaders at this time. At least there is no other evidence that man- agement knew before the evening of October 13 who the leaders were Thus, I cannot find that the General Counsel has shown that the Re- spondent knew of Carlton Johnson 's involvement with the Union on Oc- tober 12, when he was given a written warning for leaving his work area. There is nothing in the record which, in my view, would lead me to draw an inference that the Respondent would deliberately falsify the date on this warning or that the Respondent knew who was leading the union drive in the plant before October 13 . Accordingly, I will recommend that the allegation of that warning as a violation of Sec. 8(a)(1) be dimissed. of those who had attended the October 23 union meeting as well as what transpired there. After the October 13 meeting, employee Robert Gary was asked by Supervisor Joseph Matazzo if he had at- tended the union meeting the previous night. Gary an- swered that he had and Matazzo then asked how he felt about the meeting. The Board has recently isued deci- sions revising the rules on interrogations of employees by management. Those cases have moved away from the prior view that questions concerning union sympathies, even when addressed to open and active union support- ers, in the absence of threats or promises, are inherently coercive. 1 t The Board's view is stated in Rossmore House, 269 NLRB 176, 1177 (1984), holding that the per se rule of PPG disregarded the "circumstances surround- ing an alleged interrogation and ignored the reality of the workplace.12 In Graham Architectural Products Corp. v. NLRB, 697 F.2d 534 (3d Cir. 1983) the court, cited with approval in Rossmore House's pointed out that pro- duction supervisors and employees often work closely together, and one can exp sct that during the course of the workday they will discuss a range of subjects of mutual interest, including ongoing unionization efforts. To hold that any instance of casual questioning concern- ing union sympathies violates the Act ignores the reali- ties of the workplace.'4 In this case, however, Matazzo was a new supervisor in Gary's department. There is no indication of an ongo- ing, comfortable shop-floor relationship between Gary and Matazzo. Nor is there any indication that Gary was in any sense a self-proclaimed or known union adherent. Indeed, the questioning here took place on the day after the first union meeting, even before cards were signed and the in-plant organizing committee was formed. I find in this case that the interrogation of Gary by Matazzo was coercive and violated Section 8(a)(1) of the Act. The second incident involving Matazzo and Gary hap- pened about 2 weeks later, after Gary had signed a union card. According to Gary's credible and undisputed testi- mony Matazzo asked if Gary had signed a card and the latter said that he had, Matazzo then asked if Gary wanted the card back and Gary again said yes. Matazzo then brought Gary into his office where he had him sign a paper. After Gary had signed the paper Matazzo then told him that the organizers would not be there any longer when the campaign was over. Again I find this interrogation of Gary, in the context here, to be coercive and violative of Section 8(a)(1). If there was any doubt, the threat voiced by Matazzo that the organizers would lose their jobs put the matter outside the realm of normal workplace banter. In addition to the unlawful interrogation, I have found in this incident there is a further violation of Section 8(a)(1) in Matazzo's solicitation of Gary to get back his union authorization car and abandon his support of the Union. In the atmosphere generated by his interrogation of Gary, Matazzo could not have suspected that his next 1 PPG Industries, 251 NLRB 1146 (1980) 12 Rossmore House, 269 NLRB 1176 (1984) 13 Rossmore House, supra 14 Graham Architectural Products Corp. v NLRB, supra at 541 SEALECTRO CORP. request to Gary, that he get his card back, would be re- buffed. From Gary's point of view, the request by Ma- tazzo was necessarily and inherently coercive in these circumstances." s 7-Eleven Food Store, 257 NLRB 108, 116-117 (1981). MacDonald testified about a meeting held early in No- vember in the company cafeteria. The meeting was at- tended by 15 or 20 employees and was chaired by Com- pany President Nick Mahalis (or Maholis). Plant Manag- er George Eschert came in some time after the meeting had been underway. According to MacDonald's unrebut- ted testimony, Mahalis wanted to know from the em- ployees what the problems were. MacDonald explained about benefits, pension plans, profit sharing, and other employee concerns. Mahalis replied that the Company could consider a pension plan and a credit union. I do not believe there remains much question of the coercive effect of this type of conduct involving the solicitation of grievances during a union organizational campaign. See, e.g., Reliance Electric Co., 191 NLRB 44 (1971). 2. Famiglietti It cannot be said, from the record in this case, that Fa- miglietti is a model employee. His evaluations entered in evidence here, insofar as they are legible,16 show that he was considered "average" by his supervisors. Apparently this caused no problems for the Company, as Famiglietti was awarded periodic pay increases. The evidence also shows that the advent of the Union, and the organizational campaign, caused widespread ac- tivity not only by the Union and the Company, but also among the employees. There is no indication, as I have noted, that all this activity was marked by bitterness or rancor, or that the flood of literature, pens, pencils, hats, T-shirts, and other materials caused problems for either the Company or its employees. It is certain, though, and I find, that the Company did attempt to restrict the movements of, and keep under surveillance, particular union activist in order to cut down on their opportunities to campaign, at the same time not restricting the move- ment of antiunion employees. Famiglietti's credible and undenied testimony shows that his supervisor, Fred Wagner complained to him about instructions Wagner had received from Eschert to keep track of Famiglietti and to restrict his movements. Eschert took a hand in warning Famiglietti to stay in his work area, and threat- ened him with a disciplinary warning if he did not obey. In fact as Famiglietti testified, and the record reveals, he was given a warning on January 25, 1984.17 15 I cannot find a violation in the request by employee Richard Lepore to Matazzo to get his card back because in this latter case the request came from the employee rather than management Jimmy-Richard Co., 210 NLRB 802 (1974). Similarly, in the case where Matazzo asked Mac- Donald if he wanted his card back, I find no violation on the ground that MacDonald was well known as being antiunion and a company man. Cf. Rassmore House, supra. He had made it known generally that he wanted to get his card back. 16 There is a problem with some of these exhibits, but if I cannot read them I cannot use them as a basis for my findings. ' 7 Famighetti had a prior warning dated December 6, 1983, for doing crossword puzzles during working hours The curious thing about this is that the supervisor who signed this warning, John McKenna, was identi- fied as the same person who had been supplying Famighetti with the puz- 159 The Company's vigilance in regard to Famiglietti's union activities continued after the February 2 election. As I have noted, Famiglietti testified that on March 27 he was the only one of several employees seen talking in- stead of working who was given a written warning. I find it significant that Famiglietti was told by Supervisor Joseph Corvo that the reason for this was that the Com- pany was "More interested in what you're doing." Corvo did not testify or deny this. Famiglietti's suspension on May 23, 1984, was effected ostensibly because he was observed loitering near the stockroom for 15 or 20 minutes, then handed union pen- cils to two employees working in that area. The fact that Famiglietti was warned and suspended for this would be unremarkable t 9 but for the fact Famiglietti, again credi- bly and undenied, testified that Wagner asked if he "was starting another Union campaign" before giving him the warning and notice of suspension. These remarks by Corvo and Wagner, as well as Wag- ner's earlier remarks to Famiglietti that he was told to keep an eye on him, when considered in the light of the spying, surveillance, and interrogation, I have already found, constrain me to conclude that the Respondent's motives in attempting through Wagner and Eschert to restrict Famiglietti's movements,19 and the Company's warnings of January 25, March 27, and May 23, 1984, and Famiglietti's suspension on the last date were not based on desires to maintain an orderly and well-desci- plined workplace, but rather in retaliation for Famigliet- ti's union activities in violation of Section 8(a)(1) and (3) of the Act. Moreover, this conclusion is reinforced by the testimo- ny of Richard Pierce, who observed antiunion solicita- tions by employees proceeding unhindered under the eye and ear of Supervisor Matazzo; the testimony of Thomas MacDonald, who stated that antiunion employees were allowed to roam the plant, while those in favor of the Union were held down; the further testimony of Mac- Donald that another employee named Vinny Gonzalez told him that he was trasferred to the secondary depart- ment by management to talk to Portuguese- and Spanish- speaking women and attempt to get them to go non- union; as well as the testimony of Famiglietti and others that two employees, Jeff Schiavo and Cornelius Crespo, were walking up and down the aisles of the plant on the day of the election with "Vote no" signs. All of these in- cidents show that rules against leaving one's work area and talking to other employees were enforced against prounion employees, but not against antiunion employ- ees, as alleged, in the complaint. On the incident with Supervisor Poskus in the cafete- ria on January 31, I credit Famiglietti's version and do not credit Poskus. I find that the threat by Poskus that Famiglietti would not have a job after the election con- stitutes a further violation of Section 8(a)(1) of the Act. zles every morning for 5 years McKenna did not deny this, and I credit Fanughetri's version " See, e.g., Brigadier Industries Corp., 271 NLRB 656 (1984) 10 It is apparent from the facts here that those efforts were only partly successful, but the test is the attempt, rather than the result 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Carlton Johnson Johnson was hired on June 9, 1980. His job evaluations submitted in evidence here show that he was rated sever- al times up to November 1983 as "average" but in a rating given on November 14, 1983, he was rated "below average." In the November 1983 rating the form notes that Johnson "wastes time talking" and "wastes time away from job." These items are listed only on that par- ticular evaluation form. The form is signed, as were all the evaluations, by Fred Wagner.20 The evidence seems clear that Wagner was one of the principal enforcers of what I have found was an effort by management to lessen the impact of union activists in the workplace. In Johnson's case the record shows that he was late and absent frequently. He was given a warn- ing for this on September 29, 1982, and was suspended for 2 days on August 25, 1983. But the "below average" rating given on November 14, 1983, was based primarily on talking and being away from his job, items that were not noted before Johnson become involved in union ac- tivity. In these circumstances I infer and find that this rating was given Johnson by Wagner because of John- son's union activity, and as a part of the Respondent's campaign against the Union, and I find it to violate Sec- tion 8(a)(1) and (3) of the Act. In addition to this I find further violations of Section 8(a)(1) of the Act in Wagner's warning to Johnson in the first week of November to stay near his machine; the at- tempt by Eschert, also in November, to require Johnson to use a certain route from his machine to the toolroom; and in the somewhat hysterical encounter Johnson had with Vice President Jesse Fuchs on the day before the election. 4. David Betancourt Betancourt was discharged on December 19, 1983, after about 6 months of full-time employment, because of a poor attendance record. The record establishes that he engaged in some union activity. He passed out a few cards, pencils, pens, and other union giveways; he at- tended four or five union meetings; and he discussed the Union with Spanish-speaking employees. The Company knew about Betancourt's interest in the Union. On the evening of the first meeting, Betancourt and his fellow worker, Stephen Cutler, went to their supervisor to ask permission to leave work and attend the meeting.21 In addition, MacDonald testified that one of his intelligence reports contained the information that a "Puerto Rican kid" was one of the leaders of the union organizing drive. Thus, there is no question about unon activity and company knowledge of that activity. The question in Be- tancourt's case comes on the Company's motivation for the discharge. The General Counsel has shown by submitting for comparison the attendance records of a number of other ao It is difficult to read the signature, but a comparison with the other forms shows that it is Wagner's. 21 It really is not significant that Betancourt and Cutler differed on which supervisor gave them permission to go , but I cannot find, in these circumstances , that Ron Murray asked Betancourt to tell him how the meeting went. employees that several of those employees had attend- ance records as bad or worse than that of Betancourt. Moreover, Betancourt was given no warning that his ab- sences of tardiness were a problem, or that they consti- tuted a problem of such magnitude to warrant dis- charge.22 Because the record shows that a form of pro- gressive discipline was followed at Sealectro, it follows that Betancourt was treated in a disparate fashion by being discharged instead of being given a warning, coun- seling, or even a suspension. Accordingly, based on the facts that Betancourt had engaged in union activities; that the Company knew about those activities; and that the Company not only ex- pressed its animosity toward the Union in a number of releases and letters to employees, but also brought that animosity to bear on its employees in a number of ways, restricting their movements , issuing warnings, adverse re- ports, and supsensions; I fmd that the General Counsel has established a prima facie case that Betancourt's dis- charge was effected in retaliation for his union activities. Wright Line, 251 NLRB 1083 (1980). The burden thus shifts to the Respondent to show that Betancourt would have been treated the same way if there had been no union activity. The Company attempt- ed to assume this burden by presenting former Plant Manager George Eschert as a witness. Eschert attempted to show that Betancourt was discharged because he vio- lated a company rule requiring employees to notify their supervisor when they were not coming to work or were going to be late. The rules cited by Eschert does not appear in the Company's personnel manual, and he ad- mitted that the rule had not been consistently en- forced. 23 In addition, there is no evidence that the rule was consulted on the evening that Betancourt was dis- charged. Eschert testified that he considered other things besides absenteeism in making up his mind to discharge Betancourt, citing his alleged uncooperative attitude and failure to get along with other employees. These factors, of course, are not mentioned in Betancourt's discharge notice, nor were they mentioned to him when he was notified orally that he was to be discharged. These dif- ferent reasons propounded at this hearing for the dis- charge, none of which were ever discussed with or men- tioned to Betancourt, lead me to the inference that the real reason is an unlawful one which the Respondent is trying to conceal. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Vinyl Craft Fence Co., 241 NLRB 607 (1979). These reasons, together with the precipitate nature of the discharge, and the failure by the Respondent to follow its usual procedures, convince me that the discharge was in reprisal for Betancourt 's union activities Rollyson Aluminum Products, 231 NLRB 422, YS I note in this connection the warnings and suspension given Johnson before the union campaign began for many more absences and more tar- diness than Betancourt had. But Johnson was not discharged . Others had similar experience. as There was some confusion over the rule mentioned by Eschert with neither party really knowing where or in what way it was promulgated. There is such a rule in a sheet entitled "Orientation of New Employees" attached to Carlton Johnson's employment application in evidence here. This may have been what Eschert was referring to. SEALECTRO CORP. 427 (1977). The discharge is a violation of Section 8(a)(1) and (3) of the Act. 5. Other transfers and threats The complaint alleges that the Company restricted the movement of its employee Irene Mills in that on the day of the election Newbury ordered Mills out of the depart- ment where she worked. The record indicates that New- bury really did not know who Mills was, and I do not find that the General Counsel has made a case that this action by the Company was undertaken for antiunion considerations. I do think that the evidence shows that employee Paul Clapps was transferred because of his union activities. Clapps was active in the Union and he was transferred to a much smaller department, where he could influence fewer employees. I credit MacDonald's testimony that he was told a week before the election by Supervisor Robert Wilcox that Clapps was to be transferred because he was pressuring employees into voting for the Union. I do not credit Wilcox's denial of this, nor his asserted rea- sons for the transfers. This is a violation of Section 8(a)(1) and (3) of the Act. Finally I credit the testimony of Theresa Mastracchio and Shirley Tavares that Al Poskus told them on the day of the election that the secondary department would be moving to New York if the Union came in. This also constitutes a violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union adherence and sympathies; by soliciting and promising to remedy grievances; by soliciting employees to spy on the activities of other employees; by threaten- ing employees with reprisal if they selected the Union as their bargaining agent; by engaging in surveillance of employes thought to be engaged in activities on behalf of 161 the Union; and by restricting the movements of employ- ees thought to be engaged in activities on behalf of the Union, the Respondent engaged in conduct in violation of Section 8(a)(1) of the Act. 4. By discharing David Betancourt; by suspending James Famiglietti; and by placing warnings and adverse recommendations in the files of James Famiglietti and Carlton Johnson because of their activities on behalf of and membership in the Union, the Respondent violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect com- mence within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in and is engaging in unfair labor practices in violaiton of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminat- ed against David Betancourt in violation of the Act, I will recommend that it offer Betancourt full reinstate- ment to his former or a substantially equivalent position, and that it make him whole for any loss of pay or bene- fits he may have suffered as a result of the discimination against him by payment of a sum of money equal to that he would have earned as wages and other benefits from December 13, 1983, the date of the discimination against him, less his net interim earnings during that period, and interest thereon, to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See gen- erally Isis Plumbing Co., 139 NLRB 716 (1962). In addi- tion, I will recommend that James Famiglietti be paid 7 days' pay on account of his suspension in May 1984, and further that the notices of warnings, suspension, and ad- verse merit ratings given Famiglietti and Johnson be- tween November 1983 and May 1984 as well as the dis- charge of David Betancourt be removed from the files of the Respondent. [Recommended Order omitted from publication.]