J & B Smith Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 539 J & B Smith Company, Inc. and Truck Drivers Helpers Local Union No. 728. Case 10-CA- 21267 23 June 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 March 1986 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, J & B Smith Company, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. B Smith Company, Inc.' (Respondent or the Company) transferred Archie Foster to a less desirable and more onerous job on 9 September 1985, and discharged him on 24 September 1985 because of his union activities, thus violating Section 8(a)(3) and (1) of the National Labor Relations Act (the Act). The complaint also alleges that the Company engaged in unlawful interrogation on 2 and 17 September 1985. A hearing was held before me on these matters on 15 January 1985 in Atlanta, Georgia, and briefs were there- after filed by Respondent and the General Counsel. On the entire record, including my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Georgia corporation with an office and place of business located at Atlanta, Georgia, where it is engaged in the reconditioning, sale, and distribution of steel drums . During calendar 1984, a representative period, Respondent sold and shipped from its Atlanta, Georgia facility goods valued in excess of $50,000 direct- ly to customers located outside the State of Georgia. Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION The parties stipulated and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings Y In its exceptions , the Respondent, for the first time, contends that its petition, filed on 9 January 1986, under Chapter II of the Bankruptcy Code triggered the automatic stay provisions of the code and that en- forcement of the judge's decision by the Board would be "in derogation of the protection afforded Respondent by the Bankruptcy Code" We reject this contention because the Board 's proceedings fall within the ex- ceptions to the automatic stay provisions . See 11 U.S.C. § 362 (bX4), (bX5), NLRB v Evans Plumbing Co, 639 F 2d 291 (5th Cir 1981), Ahrens Aircraft v NLRB, 703 F 2d 23 (1st Cir. 1983); Eazor Express, 270 NLRB 464 (1984). Milton A. Jones, Esq., for the General Counsel. Susan L. Howick, Esq. (Macy & Sikes), of Atlanta, Geor- gia, for the Respondent. Frederick C. McLain, Esq., of Decatur, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The charge was filed on 9 October 1985 by Truck Driv- ers & Helpers Local Union No. 728 (the Union) and complaint issued on 22 November 1985, alleging that J & 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Description of Plant Operations The steel drums to be reconditioned consist of the drum itself and a plug, or bung, which screws into the drum. There is incomplete evidence in the record, in- cluding testimony from Respondent's witnesses, which suggests two cleaning processes, one a "bung type" process in which the bungs are first removed from the drums, and the other an "open head department," in which the bungs are subjected to a burner together with the drum. The drums receive various cleaning processes. First is a 100-foot apparatus called a "progressive flusher," which uses water and various chemicals. The drums are then conveyed to the floor of the plant, where they are inspected for dents and cleanliness. A machine called a "dedenter" eliminates dents, while a "chainer" rotates chains inside drums that are still dirty. The drums are then conveyed to "the platform" and are flushed first with hot water, then with muratic acid, caustic soda, and a rust inhibitor. There is a bad odor on the platform, and some employees cannot tolerate it. Meanwhile, old gaskets are removed from the bungs, and they are cleaned first in a "boiler" with a caustic so- lution, and then in a "bung blaster," a machine with a capacity of about 3 cubic feet. The bungs are tumbled ' Respondent's name was corrected at the hearing 280 NLRB No. 57 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and struck with steel shot impelled at very high speeds by a six-bladed wheel. This process removes paint and other impurities. The drums are then sealed with bungs, tested for leaks, siphoned out, dried, painted, and shipped. B. Foster's Employment History and Early Union Activities Foster was employed by Respondent in 1982, and was originally assigned to the platform. He "couldn't stand the acid," however, and after 3 to 4 weeks was reas- signed to cleaning bungs. Foster continued at this job until September 1985, when he was assigned back to the platform, and a few weeks later was discharged. In March 1984 Foster was given a "first warning" for 3 days' absence without a doctor's excuse (R. Exh. 4). This is the only documentary evidence of discipline im- posed on Foster prior to the fall of 1984, when he en- gaged in union activities.2 In August 1984 Foster asked Company President Rich- ard Smiths for a raise. The following month, September, Foster passed out 32 union authorization cards as part of an organizational campaign. Foster credibly testified that he was the only employee who distributed cards. There was a Board election, which the Union lost.4 On 24 September 1984 Supervisor Glen Alexander gave Foster a written first warning for violating a sec- tion of the Company's work rules that prohibited loafing and wandering throughout the plant, and on 5 October issued a second warning and a suspension for 1-1/2 days.5 Although Foster signed the September warning, he could not recall the details. Company President Smith stated that this warning was caused by Foster's asserted habit of wandering, but Smith could not remember "the exact moment or the time." Foster acknowledged that he was out of his work area in October, but testified that two workmen were putting up a door near his work station, and instructed him to leave. Foster explained this to Supervisor Alexander, but nonetheless received the suspension. Company President Smith first denied the door incident, then agreed that it took place and that Foster's work station was not "ap- propriate for his presence." However, Smith contended, Foster was disciplined because he did not do work or- dered by Alexander during the repair period. I credit Foster's firsthand report of this incident rather than Smith's unspecific hearsay testimony. Respondent gave no reason why Foster was given a suspension for 1-1/2 days instead of 3 days as required by the rules. Smith also asserted other instances when Foster was not at his work station. 2 Respondent sought to introduce evidence of a written warning in September 1983, but the authenticity of the document was not estab- lished 2 The pleadings establish that Smith was an agent of Respondent and a supervisor within the meaning of the Act. He had been associated with the Company since 1977, and acquired ownership in June or July 1983 4 Although the result of the election is not indicated specifically in the record, I infer that the Union lost from the circumstances of the case R Exhs 5, 6, and 7 The rules provide for progressive discipline, with a second offense resulting in a 3-day suspension , and a third offense resulting in discharge (R Exh 7) Smith agreed that he knew about Foster' s union activi- ties in 1984, but submitted inconsistent statements on the date that he acquired knowledge. At one point Smith denied knowledge in September, and asserted that he first learned of Foster's activities in October. On the other hand, Smith testified that he "learned of the Union's efforts to organize at the end of September." Asked whether he knew that Foster was getting union cards signed (which took place in September), Smith re- plied that he knew of Foster's involvement with the Union. In October 1985 Smith wrote a letter to the Board in which he stated that Foster "would have been fired in September 1984 for poor job performance if he had not become involved in the effort to organize the workforce" (G.C. Exh. 3). Shown this letter at the hear- ing, Smith argued that it was not written "under oath" and that some of the statements in the letter are errone- ous. I conclude that Respondent probably had knowledge of Foster's union activities prior to the 24 September warning and clearly had such knowledge prior to the 5 October warning and suspension. Although the com- plaint does not allege that either discipline was unlawful, Respondent relies on them to justify its discharge of Foster about a year later. C. Foster's Union Activities in 1985 and Conversations with Company President Smith 1. Summary of the evidence Foster affirmed without contradiction that he started distributing union cards again in August 1985. Both Foster and Smith agree that they had a conversation about this time, but the evidence is conflicting on the date and substance of the discussion. In fact, they had three separate conversations, but neither witness gave a clear account of them. On direct examination Foster testified that a conversa- tion with Smith started at Foster's work station "some- thing like the first of September." Foster asked Smith for a raise, and the company president said that he could not afford it. They then went to the office, where Smith asked Foster who was helping him pass out cards. Foster replied that he was doing it by himself, and Smith said they did not need a union-he could "run the place" without one. Foster asserted that this conversation took place before he actually started distributing union cards. Parts of Foster's pretrial statement were read to hime and he agreed that it affirms that the conversation took place a few days after the card distribution. Foster also agreed that in his affidavit he declared that Smith came to the blasting machine and asked Foster why he wanted the Union. Further, Foster's statement alleges Smith said that Foster had cost him $3000 the prior year when Foster "tried to organize a union." Smith had to pay it to "the guys" (attorneys). 9 Foster's ability to read was questionable. At one point he said he did not have his glasses J & B SMITH CO. 541 In his testimony, Foster continued to maintain that this conversation with Smith took place prior to Foster's dis- tribution of union cards, and denied that he had any con- versation with Smith about the Union after he passed out cards. However, Foster also affirmed that he had a con- versation with Smith "a couple of weeks" before his dis- charge (24 September) in which Smith became angry with him because he was trying to start the Union and was passing out cards . Smith directed Foster to shut off his machine, took him to the office, "reamed him out," and threatened to lock him up. Company President Smith agreed that Foster asked for a raise in 1985. The conversation took place at Foster's work station in August. Smith testified that he denied the request because Foster's work performance was inad- equate and because the Company was losing money. Al- though Smith asserted that he "did not recall any men- tion of the Union at that time," he agreed that he told Foster that the Company had retained expensive labor lawyers in connection with the "organizational effort" the prior year, and that the legal fees had been "very great." Smith made a general denial that he interrogated em- ployees about their union activities. However, his only specific rebuttal of the remarks attributed to him by Foster consisted of testimony that some of his statements were made in another conversation. Thus, Smith denied any threat to lock up employees in the conversation re- ported by Foster. Instead, Smith asserted such remarks were made in another conversation with Foster after the latter was discharged. Smith said that Foster came back to the plant "several weeks" after his termination, at which time Foster asked him why he had ignored orders regarding his work.? According to Smith, he then asked Foster whether the latter was "trying to hurt the Com- pany in any way." Smith testified that the Company had experienced three fires in 2 years or four fires in 3 years. Various incidents began about 4 months after Smith ac- quired ownership in mid-1983, and he was fearful of "someone starting a fire again ." Accordingly, Smith tes- tified he told Foster that the Company would prosecute him if he engaged in "sabotage . . . relating to fires or anything of that nature." Foster replied, according to Smith, "I'm going to do what I'm going to do." Foster, who testified prior to Smith's appearance, was asked about these matters on cross -examination. He testi- fied that "a pipe burst" in 1983 and several people went to the hospital. However, Smith was "gone" at the time. Further questions disclosed that he was still employed by the Company, but simply was not in the plant. Later, he "swept the water for a whole day." There was a fire in a paint booth, but Foster again was "gone." He explained that he and other employees were in a "whiskey store, a hangout, where we go every day, and we looked and saw the smoke." Respondent asked Foster whether Smith ever dis- cussed damage to the plant, and Foster replied that Smith threatened to lock up employees who did so. This conversation took place in the "early part of '85," ac- 7 Infra, sec. D cording to Foster. Smith also discussed a "test tank," and Foster replied that he knew nothing about it. 2. Factual analysis As set forth above, the complaint alleges that all of Respondent's unlawful conduct took place in September 1985. Unlawful interrogation assertedly took place on 2 September. Then, on 9 September, Foster was trans- ferred to a more onerous job. The second instance of in- terrogation allegedly took place on 17 September, and Foster was discharged on 24 September. The General Counsel's case on unlawful interrogation must be decided on the basis of the testimonies of Foster and Smith. Neither was a good witness. Foster was con- fused about chronology, while Smith was evasive. How- ever, it is clear from their accounts that they had at least one conversation, either in August (according to Smith) or early September (according to Foster). I credit Smith's testimony that this conversation took place in August, only at Foster's work station, and that Smith denied Foster's request for a raise. Smith noted the heavy legal expenses the Company had sustained the prior year during the organizational campaign. I also credit Foster's testimony that this conversation took place prior to his distribution of authorization cards-tes- timony that a somewhat frustrated counsel for the Gen- eral Counsel attempted to change by reading a pretrial statement to a probably illiterate witness. Because this conversation took place in August, it may well have oc- curred before Foster's distribution of union cards in that month. I also conclude that Foster and Smith had a second conversation a short time later. This conclusion is based on those parts of Foster's testimony in which he asserts a conversation with Smith "a couple of weeks" before his discharge on 24 September. This would place the con- versation in the first week of September, subsequent to Foster's request for a raise in August. Based on the evi- dence outlined above, I conclude that Smith came to Foster's machine, accused him of passing out cards, and asked him why he wanted a union. Smith then ordered Foster to come to the office, where he asked him who was helping him pass out cards. Foster replied that he was doing it himself. Smith "reamed him out," and threatened to lock him up. Although Foster did not clearly distinguish two sepa- rate conversations, his testimony considered as a whole warrants an inference that he was taken to Smith's office on only one occasion. Despite the fact that the substance of what Smith said is scattered throughout Foster's testi- mony, I conclude that the statements he attributes to Smith took place on the same occasion. In reaching this conclusion, I have considered Smith's testimony that he did not "recall any discussion of the Union at that time." Smith was referring to the August conversation. Although Smith made a general denial of unlawful interrogation, he said nothing specifically about statements attributed to him by Foster in his office or im- mediately prior thereto when he came to Foster's ma- chine, except to assert that he made some of the state- ments in another conversation. Smith's contention that 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he spoke about locking up employees at another time does not constitute a specific rebuttal of the other state- ments attributed to him by Foster in Smith's office. As for the "locking up" conversation, Smith's version-that Foster came back to the plant after his discharge, at which time Smith asked him why he had not obeyed orders and threatened to lock him up-seems less proba- ble than Foster's, who described a conversation with Smith about plant damage while Foster was still an em- ployee. Of course, Smith may well have repeated his threat to lock up employees during his September con- versation with Foster in the office. In any event, these questions are irrelevant to the only 8(a)(l) issues framed by the complaint-whether Smith asked Foster in Sep- tember why he wanted the Union, and who was helping him distribute union cards. I find that Smith in fact did ask Foster these questions, on only one occasion, in the first week of September 1985. D. Foster's Transfer Back to the Platform on 9 September 1. Background and issues Company President Smith agreed that he transferred Foster back to the platform on 9 September. I conclude that the transfer took place subsequent to Smith's con- versation with Foster in the first week of September. The issues raised by the complaint are whether this was more onerous work, and whether the transfer was un- lawfully motivated or, as argued by Respondent, was for a valid business reason. 2. Summary of the evidence As set forth above, Foster originally worked on the platform for a few weeks when he was first employed in 1982, but "couldn't stand the acid," and was transferred to cleaning bungs. A short time after his transfer back to the platform on 9 September 1985, Foster again became ill and was sent home by Line Production Supervisor Larry Echols.8 Foster returned to work the next day and protested working on the platform, but Echols told him that he had to work there. Foster was moved to an- other position on the platform, and did not again become in. Supervisor Echols testified that it was common for employees to become ill while working on the platform. There were some employees who had worked there a long time, and apparently had become accustomed to working with the chemicals. However, new employees would only stay there a few weeks and would then quit. Echols affirmed that work on the platform was the least desirable job on the production line and that, although Foster did not receive a reduction in pay, his transfer back to the platform was a demotion. Company President Smith testified that he felt "very strongly about the safety and welfare" of his employees. Asked on cross-examination whether he had been in- formed that employees became sick on the platform, Smith answered, unresponsively that employees had re- 8 Echols was no longer employed by Respondent at the time of the hearing. quested being moved from it, and that these requests were granted. Asked again whether employees became sick, Smith contended that he had no recollection of this, but admitted that employees said they did not want to work there. Respondent argues that the reason for the transfer was Foster's inadequate performance of his job of cleaning bungs. The factual issues are (1) the source and condition of the bungs that were being cleaned; (2) the appropriate method of cleaning them, including the amount of bungs to be loaded into the bung blaster and the time the latter should have been run; (3) the time, if any, that Respond- ent changed its own perception of how bungs should be cleaned; (4) the date of any instructions given to Foster about how to clean the bungs; and (5) his response to these instructions. John Scarborough, who filled various managerial posi- tions with Respondent, described two sources of the bungs, those from a "closed top drum," which are re- moved prior to processing, and drums from an "open head line," which have already been through a "burner" during processing. The latter bungs are the hardest to clean and require more time in the bung blaster. It is the operator's function to take the bungs out of the blaster and, those which have been "burnt," use his judgment and place some of them back into the blaster. Scarborough asserted that the bung blaster was a new machine, and that he learned how to operate it about 1980 by reading an operating book that came with the machine. Scarborough said that he taught Foster how to operate it in early 1983. The supervisor testified that there was nothing wrong with the way Foster loaded the machine. However, he ran it too long, causing some of the bungs to become damaged by the tumbling action of the blaster. The appropriate timing is a 3-minute blast and a 2-minute tumble. However, Foster would "walk off and leave the machine, not blasting, but tumbling .... After the timer would go, he would leave it on tumble, maybe 15 or 20 minutes." This would "destroy" the bungs, according to Scarborough. Respondent intro- duced a normal bung (R. Exh. 1), and one slightly oval shaped, which it called abnormal (R. Exh. 2). Scarborough said that he gave Foster numerous verbal warnings about these infractions "beginning in the first part of `84." Although they were serious enough to war- rant written warnings, Scarborough said he was too busy to write them. Scarborough asserted that there was an investigation of the bung blaster in the summer of 1985. Supervisors Barry Savransky and Larry Echols thought that the bungs became oval shaped because they remained too long in the burner before getting to the bung blaster or were being run over by a truck. Scarborough discounted the latter possibility, saying that there was no way in which the bungs could be run over by trucks-they were put into a drum after being detached. However, Scarbor- ough conceded that the employees "liked to play basket- ball" with the bungs and attempt to hit the drums. "So, the guys have to pick them up around the drum." Scarborough then ran two tests on the bung blaster, for 5 and then 15 minutes, using both bungs that had J & B SMITH CO. come through a burner and some that were "perfect," al- though painted and dirty. After the 5-minute test, 8 to 10 bungs out of 200 were defective, whereas the 15-minute test resulted in damage to 40-50 percent of the bungs. Company President Smith also denied that any bungs could have been run over by trucks. However, he con- ceded that a "minor percentage" of the bungs were bad before Foster received them. Asked whether a bung could have become oval shaped in the courtyard, Smith answered unresponsively that "60 percent of them weren't in the courtyard."9 Like Scarborough, Smith testified about 5- and 15- minute experiments in the summer of 1985 . He described the bungs that went into the test somewhat differently from the way Scarborough described them-the bungs in both test groups had been "burned." The results, accord- ing to Smith, were slightly different from those described by Scarborough-10-percent damage resulting from the 5-minute test, and 50-percent "deformed or bent" after 15 minutes. This was the only "scientific test" Smith conducted. As a result of the experiment, Smith asserted he became aware in August 1985 that Foster was destroying "thousands of dollars" worth of company property. Thereafter, on four occasions, he told Foster not to run the bung blaster more than 5 minutes, and Foster replied that Smith did not understand the process. Foster contin- ued to run the blaster too long, according to Smith. Al- though Foster thus continued to produce oval-shaped bungs, Smith did not keep a record. The company president also asserted that "one of the problems with Mr. Foster's performance is that we ad- vised him not to fill it so full"-whereas Scarborough testified that there was no problem with Foster's loading of the blaster. Smith therefore decided to transfer Foster away from the bung blaster . First, he tried Foster at janitorial work, but Foster was "less than outstanding," and was only working part-time at the job. Smith then "begged" other managers to take Foster, but the only opening for him was on the platform. The testimony of former Supervisor Echols is quite different from that of Scarborough and Smith. He af- firmed that Foster was under his supervision, and that he never had any problem with Foster. Although the latter was normally on the bung blaster, Echols transferred him to the platform on occasion as needed. Echols said that Foster obtained some of his bungs from a barrel into which they had been placed by em- ployees when the drums entered the plant. However, when the employees felt they did not have enough time, the bungs were left on the ground, and were driven over by trucks. Foster "showed an interest" in his job by working late "to pick up extra bungs." Contrary to Smith and Scarborough, Echols testified that the appro- priate amount of time that a bung should be left in the blaster depends on the condition of the bung. Echols transferred Foster from the bung blaster to the platform on the instructions of Smith, who said that 9 The witness estimated that 10 to 20 percent were in the courtyard- leaving the source of 20-30 percent unexplained 543 Foster was making the bungs oval shaped by "cooking" them too long. Smith had not previously discussed Fos- ter's job performance with Echols, and the latter simply obeyed the company president. Foster testified that Scarborough ordered him to pick up bungs from the courtyard "because they said they wasn't going to buy any more." Both Smith and Scar- borough knew that they were damaged. "Trucks been running over them for 20 or 25 years." Foster therefore picked up all the bungs that he saw, even though he knew that they were bad and that he could not use them. Foster agreed that Scarborough told him that Foster was running the bungs too long in the blasting machine. However, according to Foster, Scarborough "doesn't know nothing about that machine," and "don't know how long it takes to clean them." Actually, some bungs can first be run through a "boiling machine," and then cleaned in the blaster in 5 minutes. However, "old rusty bungs" take 10 to 15 minutes, and some of them have al- ready been bent taking them out of the drums. Further, they "bend easy when they were burned." Foster testi- fied that he was told about damaged bungs only once, "just before [he] was discharged." He already knew about them, however, because he had been picking them up in the courtyard pursuant to instructions. 3. Factual analysis a. The nature of the platform job I credit former Supervisor Echols' unrebutted testimo- ny and conclude that work on the platform was more onerous than other jobs in the plant, including Foster's job of cleaning bungs. b. The Company 's asserted reason for transferring Foster It is apparent that three types of bungs were recondi- tioned in the bung blaster. The easiest to clean were those which had been removed from the incoming drums before processing, and had been stored in a barrel. These were simply dirty and covered with paint, but structural- ly undamaged. Then, there were the bungs which ac- companied drums on the "open head line" through a burner, and became themselves burned and weakened in the process. Finally, there were bungs that never made it to the barrel, became the subject of basketball games or were simply dropped on the ground and became "old rusty bungs" run over for years by incoming trucks. Fos- ter's graphic description of the last category is corrobo- rated by Echols and, tacitly, by Company President Smith. Supervisor Scarborough cited the opinions of other supervisors that bungs had become oval shaped by being too long in the burner or by being run over by trucks. Asked about the latter possibility, Company President Smith was unresponsive. It is obvious that the percentage of bungs successfully rehabilitated by the bung blaster would depend on the mixture of good to bad bungs placed into it. Respond- ent's description of its "scientific experiment" does not include any credible account of such input. Scarborough agreed that both test groups included "perfect" and 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "burned" bungs, but did not specify how many came from the courtyard, nor the percentage in each category. Smith blithely described both groups as "burned." In these circumstances, I conclude that Respondent's evidence is insufficient to establish a "scientific" valida- tion of its asserted appropriate procedures. Scarbor- ough's explanation-that the machine operator should first run a batch of bungs (for 5 minutes) and then return those that had been burned back into the blaster for fur- ther processing-involves wasted effort. It also consti- tutes an admission by Scarborough that not all bungs can be cleaned in 5 minutes. Foster's explanation-that some (perfect) bungs take only 5 minutes, while others take 15-seems more time efficient and sensible. For this reason, I place little weight on Smith's testimony about the numerous times that he observed Foster running the machine too long-the bungs inside the machine may well have required 15 minutes. It is clear that Respondent first discovered "the right way" to clean bungs in the summer of 1985. According- ly, Scarborough's testimony that he first gave verbal warnings to Foster "early in 1984" for failing to observe these procedures is patently erroneous. Further, Scarbor- ough and Smith contradict each other on whether Foster was overloading the machine. I do not credit Smith's assertion that he spoke to Foster on four occasions about running the bung blaster too long. Instead, I credit Foster's testimony that he was told about damaged bungs only once, just before he was discharged. I credit former Supervisor Echols' testimony that Smith never discussed Foster's work performance with Echols, and simply ordered him to put Foster to work on the platform. For these reasons, I conclude that Respondent has not established a valid business reason for transferring Foster. E. Foster's Discharge 1. Summary of the evidence According to Foster, on 24 September he was work- ing on the platform, and asked Supervisor Hicks for per- mission to go to the bathroom. Hicks told this to Super- visor Savransky. Foster returned after 10 minutes in the bathroom. Savransky was standing at the platform with papers in his hand, and asked Foster to go to the office with him. The supervisor left Foster standing outside the office, went in, and came out again with what looked like the same papers. They were in fact papers discharg- ing Foster. Savransky told Foster that he was fired for "wandering around the building." Foster replied that he had simply gone to the bathroom for 10 minutes, but Savransky replied, "You're fired." Foster went into the office to get his check, and saw Company President Smith at that time. According to Smith, about 10 a.m. he observed Foster leaving his work station. Smith averred that he has a stopwatch and that he timed Foster's bathroom break. It took 32 minutes. Savransky also observed this. Smith deemed this to be an "unreasonable" length of time, and Savransky terminated Foster. Smith testified that "Fos- ter's perception was that he was only away from his job for a few minutes." The company president asserted that another employ- ee, Alfred Wilson, had been discharged for spending 30 minutes in the bathroom on several occasions. Smith then denied that Foster was treated any differently be- cause although he spent excessive time in the bathroom on only one occasion, he was in "various places in the plant including the bathroom on numerous occasions, and was warned for those violations." Smith contended that Foster had "continually been on the verge of being fired." Prior to October 1984 he was an "awful employee," and received the warnings de- scribed above. Smith did not fire him at that time on advice of counsel because of the union organizational campaign. Then, "all of a sudden, through some miracle in October of 1984," Foster started to follow the work rules "rigorously," but then, in the spring of 1985, began to be "an awful employee again." He "again got his wan- derlust, and began circulating around the plant." Foster received verbal warnings because of this. Smith declared that the reason there were no written warnings was the fact that the Company had a succession of managers, and that Smith was working 16 hours a day, 6 days a week. Former Supervisor Echols testified that he was told that Foster was discharged for "wandering off and not staying at his work site." Echols denied that Foster "wandered," except to take 10-minute bathroom breaks and that Foster took such a break when he had been sick on the platform. Echols did not testify specifically about Foster's discharge, and Savransky did not make an ap- pearance. 2. Factual analysis I credit Supervisor Echols' denial that Foster "wan- dered," except to take bathroom breaks. I further credit Echols' statements that these were normally 10 minutes in duration, and that this was the amount of time that Foster spent in the bathroom on the occasion when he became ill. Foster was not ill on 24 September when he was discharged, and it is unlikely that he would have taken more time in the bathroom when healthy than when he was sick. Smith's testimony has an element of unreality, e.g., the "miraculous" metamorphosis of Foster from "awful" to "good" employee, and back again. Foster's schedule of union activities in 1984 and 1985 suggests that whatever changes took place were those in Smith's mind rather than Foster's work performance. The Union lost the election in 1984, and Foster immediately became a "good" employee. However, approaching the end of the 12-month period barring another election 1 ° and Foster's resumption of union activities, he again became a "bad" employee. Nonetheless, he received no written warnings in 1985. Smith's excuse that he was too busy to issue written warnings is implausible in light of his prior dili- gence in doing so. In sum, Smith was an unreliable wit- ness who sought to create a record that would justify Foster's discharge. 10 National Labor Relations Act, Sec. 9(c)(3) J & B SMITH CO. I credit Foster's testimony that he did not spend more than 10 minutes in the bathroom on 24 September, and I reject Smith's contrary assertions. Foster was discharged after a routine visit to the bathroom, and was told that he was being discharged for "wandering around the building." Foster protested that he had only been to the bathroom for 10 minutes to no avail. The discharge papers had been prepared before he returned to his work station. F. Legal Conclusions 1. The alleged unlawful interrogation As set forth above, in the first week of September 1985, Company President Smith asked Foster why he wanted the Union, accused him of passing out union cards, and asked the identity of other employees helping him to do so. When Foster replied that he was the only one distributing cards, the company president "reamed him out" and threatened to lock him up. Under the "to- tality" of these circumstances, I conclude that Respond- ent's inquiries about the reasons for Foster's support of the Union and the identities of individuals assisting him were coercive and violative of Section 8(a)(1) of the Act. tt 2. The alleged discriminatory transfer and discharge Respondent spent a great deal of money opposing the Union in the 1984 campaign-which it had every right to do. However, the fact that it did so demonstrates that it opposed the union movement. Foster was a union ac- tivist in that campaign, and Respondent knew it. Indeed, he was the only employee who distributed union cards. After such activity, he was administered discipline that, although not alleged to be unlawful, was questionable in its validity, and was imposed in circumstances that sug- gest union animus. That animus became explicit during Smith's second conversation with Foster in September 1985. The absence of any justification for the discharge is described above, as well as the fact that another employ- ee was allowed several extended periods in the bathroom before being discharged. I do not accept Smith's attempt to avoid a conclusion that he was engaged in disparate treatment-on the ground that Smith "wandered" else- where-because I do not accept his basic premise. I therefore conclude that the General Counsel has estab- lished a prima facie case that both the transfer and the discharge were unlawfully motivated. Respondent has not proved that it would have trans- ferred or discharged Foster in the absence of his union activities. Although he was "on the verge of being fired" for a long time, according to Smith, the only discipline which he received prior to his union activity was a warning for being absent without a doctor's excuse. I therefore conclude that Foster was an acceptable em- ployee in his existing job prior to his protected concerted activities. When his union activity ceased in 1984, he became a "good employee," and was disciplined again 11 Rossmore House, 269 NLRB 1176 (1984), enfd sub nom Hotel & Restaurant Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), Corrugated Partitions West, 275 NLRB 894 (1985) 545 only after having again engaged in union activities and after coercive interrogation. None of the charges leveled against him by Respondent has merit, for the reasons given above. I therefore find that by transferring Foster to a more onerous and less desirable job on 9 September 1985 and by discharging him on 24 September Respondent thereby violated Section 8(a)(3) and (1) of the Act.12 CONCLUSIONS OF LAW 1. J & B Smith Company, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers & Helpers Local Union No. 728 is a labor organization within the meaning of Section 2(5) of the Act. 3. By asking Archie Foster why he was for the above- named labor organization , and who was assisting him to get authorization cards signed on its behalf, Respondent engaged in coercive interrogation violative of Section 8(a)(1) of the Act. 4. By transferring Archie Foster to a more onerous and less desirable job on 9 September 1985, and by dis- charging him on 24 September 1985, because of his union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the pur- poses of the Act. It having been found that Respondent on 9 September 1985 unlawfully transferred Archie Foster from a posi- tion cleaning bungs to a more onerous and less desirable position on the platform and, on 24 September 1985, dis- charged him, it is recommended that Respondent be or- dered to offer him immediate and full reinstatement to his former position cleaning bungs or, if that position no longer exists, to a substantially equivalent position which does not constitute a position on the platform. Such rein- statement shall be without prejudice to his seniority or other rights and privileges, and Respondent shall dismiss, if necessary, any employee hired to fill the position cleaning bungs, and shall make Foster whole for any loss of earnings he may have suffered by reason of Respond- ent's unlawful conduct, by paying him a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of an offer of rein- statement, less net earnings during such period, with in- terest thereon to be computed in the manner established by the Board in F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).13 12 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), Red way Carriers, 274 NLRB 1359 (1985) 13 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will also be recommended that Respondent be or- dered to remove from its personnel records all references to its unlawful transfer and discharge of Foster and, be- cause Respondent relied on them to justify its discharge and its warnings issued to Foster in September and Octo- ber 1984, it will further be recommended that Respond- ent be required to notify Foster in writing that such action has been taken and that evidence of such action or the aforesaid warnings will not be used as a basis for future personnel action against him. On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended 14 ORDER The Respondent, J & B Smith Company, Inc., Altanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Asking employees why they favor Truck Drivers & Helpers Local Union No. 728 or who is helping em- ployees get union cards signed for the labor organization or any other labor organization. (b) Discouraging membership in the labor organiza- tion, or any other labor organization, by transferring em- ployees to a more onerous and less desirable job, dis- charging them, or otherwise discriminating against them because of their activities in support of the above-named labor organization, or any other labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neccesary to effectuate the policies of the Act. (a) Offer Archie Foster immediate and full reinstate- ment to his former position cleaning bungs or, if such po- sition no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employee hired to fill the position, and make him whole for any loss of earnings he may have suffered by reason of Re- spondent's unlawful conduct, in the manner prescribed in the remedy section of the decision. (b) Remove from its personnel records all references to its unlawful transfer and discharge of Archie Foster, and all its warnings issued to him in September and Oc- tober 1984, and notify him in writing that such action has been taken and that evidence of the transfer, dis- charge, or the warnings will not be used as basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 14 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 essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Atlanta, Georgia, copies of the attached notice marked "Appendix."'s Copies of the notice, on forms provided by the Regional Director for Region 10, 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 15 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the 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 or- dered us to post and abide by this notice. WE WILL NOT ask employees why they favor Truck Drivers & Helpers Local Union No. 728 or the identities of employees who are assisting them to get union cards signed for the labor organization or any other labor or- ganization. WE WILL NOT transfer employees to more onerous and less desirable positions, discharge, or otherwise discrimi- nate against them because of their activities of the above- named labor organization or any other labor organiza- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Archie Foster reinstatement to his former job cleaning bungs, and compensate him, with in- terest, for any loss he may have suffered because of our unlawful discharge of him, and WE WILL remove all ref- erence to that discharge and our unlawful transfer of him, and our September and October 1984 warnings issued to him, and inform him, in writing, that we have done so. J & B SMITH COMPANY, INC.