Culmtech, Ltd.

CULMTECH, LTD. 163 Culmtech, Ltd. and George Boston, David Gostinski, Donald Pachucki, Jr„ Donald Pachucki, Sr., and John Ward Paul Vida and International Union, United Mine Workers of America. Cases 4-CA-15595 and 4-CA-15743 4 March 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 24 November 1986 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs., The General Coun- sel also filed a brief in opposition to the Respond- ent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and 1 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. We agree with the judge that the General Counsel established a prima facie case of discrimination with respect to the discharges on 7 January 1986 of employees Donald Pachucki, Sr. and Donald Pachucki, Jr. We agree particularly with the judge's analysis of the evidence as to timing in relation to the telephone call from union official Fred Casaia and the pre- textual reasons for the discharges. See Wright Line; 251 NLRB 1083, 1088 fn 12 (1980), enfd. 662 F 2d 899 (1st Cir. 1981). As to evidence of the Respondent's knowledge of prounion sentiment among employees we note that the Respondent's foreman, Dick Troup, admitted to be a super- visor within the meaning of Sec 2(11) of the Act, had a conversation in December 1985 with employee David Gostinsky, himself later a victim of a discriminatory discharge, wherein Gostmski voiced his support for a union and his belief that a union would "straighten this plant out" We further note the otherwise unexplained remark by Plant Superintendent John Barney to Pachucki, Sr, made at the summary discharge meeting held about 1 hour after the delivery of the telephone message, that Pa- chucki, Sr., was "unhappy" with his job, In this light we conclude that the circumstances surrounding the 7 January discharges are sufficient to infer that the Respondent suspected that one of the Pachuckis was en- gaged in union activity and fired them both for that reason We do not find it necessary to find, as to the Respondent's direct knowledge of the Pachuckis' union activity based on the telephone message itself, that Casaia necessarily mentioned his union position in identifying himself and rescheduling his meeting with Donald Pachucki. With respect to the discriminatory discharges of Gostmski, George Boston, and John Ward, the judge found that the Respondent learned of their union activities when Foreman William Tocheny overheard their conversation at the timeclock on 24 January 1986. Testimony by the Re- spondent's plant manager, John, Bianco, reveals that Tocheny was a su- pervisor within the meaning of Sec 2(11) of the Act in that he was the only foreman on the night shift, used independent judgment in assigning work and changing work assignments, had independent authority to permit employees to leave work early, and was considered by Bianco to be "in charge" of the night shift 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, Culmtech, Ltd., Inkerman, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 2 As part of the remedy the General Counsel seeks an order which will include a visitatonal clause authorizing the Board, foi compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the order We have concluded that under the cir- cumstances of this case such a clause is not warranted Carmen P. Cialino, Esq., for the General Counsel. Richard M Goldberg; Esq., for the Employer. DECISION FRANK H. ITKIN, Administrative Law Judge. Unfair labor practice charges were filed in the above cases on February 6 and April 14, 1986. A consolidated complaint issued on June 30, 1986. The General Counsel alleges that Respondent Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by threatening an employee to,close its facility; by soliciting employee complaints and grievances and promising increased bene- fits; by soliciting an employee to dissuade other employ- ees from supporting the Union; and by terminating and refusing to reinstate employees Donald- Pachucki Jr., Donald Pachucki Sr., John Ward, David Gostinski, and George Boston. Respondent Employer denies violating the Act as alleged. Hearings were held on the issues raised in Wilkes- Barre, Pennsylvania, on August 11 and 12, 1986. Upon the entire record, including my observation of the de- meanor' of the witnesses and, after due consideration of the briefs filed by counsel, I make the following FINDINGS OF FACT Respondent Culmtech is an employer engaged in com- merce as alleged. The United Steelworkers of America and the ' International Union, United Mine Workers of America are labor organizations as alleged. As the par- ties stipulated, the Employer was engaged in the 'con- struction of its coal mining and processing facility at In- kerman, Pennsylvania, from about Jul, 1 to December 31, 1985. On January 1, 1986, the Employer began pro- duction at Inkerman. George Boston was hired on August 14, 1985; Donald Pachucki Jr. was' hired on Sep- tember 26; Donald Pachucki Sr. was hired on October 28, 1985; David Gostinski was hired on November 2, 1985; and John Ward was hired on November 2, 1985. The Employer had in effect a policy whereby it fully paid insurance premiums to Blue Cross/Blue Shield on behalf of production 'and maintenance employees who had successfully served a probationary period. Pursuant to this policy, the Employer notified Blue Cross/Blue 283 NLRB No. 25 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shield -on November 12, 1985, that employee Boston would receive coverage on the effective date of Novem- ber 13, 1985. Blue Cross/Blue Shield was similarly noti- fied on December 5, 1985, for employee Pachucki Jr. and his effective date was December 25, 1985; on Janu- ary 6; 1986, for employees Gostinski and Ward, and their effective'dates were January 31, 1986; and on January 6, 1986, for' employee Pachucki Sr., and his effective date was January 26, 1986. See G.C. Exh. 2.1 Fred Casaia is subdirector of the -United Steelworkers Union. His office is in the IBE Building in Wilkes-Barre. Casaia testified that on January 7, 1986, he telephoned Respondent Employer. Casaia explained: I felt it was very necessary for me to get hold of Don Pachucki. I have an organizing staff under me and they had set up a meeting with this gentleman to discuss organizing at [his] place of employment .... [Prior] commitments wouldn't allow me to be there the day that the meeting was scheduled; so I wanted to postpone that meeting for, I believe it was [to] the 10th of January. . . . I had no way of getting in touch with Mr. Pachucki other than call- ing [his] place of employment. Casaia recalled his telephone conversation to Culmtech, as follows: The young girl that answered the phone . . . asked who I was. I told her who I was and what I wanted. . '.. I was told that he [Pachucki] was out in the field . . that she would make sure that he would get the message.2 Donald Pachucki Sr. testified that he was the "head equipment mechanic" for the Employer; that his son Pa- chucki Jr. worked as his "helper for mobile equipment"; and that during the latter part of December 1985, he had spoken to Paul Vida, David Gostinski, John Ward, Lenny Schall, and Mike Andrew at work "regarding getting a Union into" Culmtech. Vida, at the time, was a foreman. These "conversations" took place "frequently" at the "plant garage," in the "breaker" and "more or less all over." It was decided among the employees that Gos- tinski and Ward "were going to contact the Union" and Pachucki Sr. "would be the spokesman." Pachucki Sr. next testified that about 6 a.m. on Janu- ary 7, 1986, he started work at the plant. He was to in- stall new brakes on a "Hough 400." This assignment had 'i It was also stipulated that Boston received a $2 hourly pay raise ef- fective December 30, 1985, and the "reason for raise listed on personnel records" was "transfer-ment increase", Gostinski received a $1.50 hourly pay raise effective the same date for the same "reason"; Pachucki Jr received a $1.50 hourly pay raise effective October 7, 1985, and the "reason" was "merit increase"; and Ward received a $1 50 hourly pay raise effective December 30, 1985, and the "reason" was "transfer." Pa- chucki Sr, who was then receiving a $10 hourly rate, was not given a raise 2 On cross-examination, Casaia'noted that Pachucki "and others" were scheduled to he at the "meeting", the "purpose" of the "meeting" was "for putting together a campaign", "they were my committee people " On redirect, Casaia further noted that he did not specify in his telephone conversation to Culmtech "whether it was [for] junior or senior" Pa- chucki-he "was not aware of the fact there was a junior and a senior at the time ", been given to him by David Small, the owner of Culm- tech. He had to "take, the parts down to State Equipment . to 'try to match them up with new parts" and was, consequently, "out of the facility" during the day. After he returned to the plant about 2:30 p.m., Pachucki° Jr., his son, handed him "a phone memo" and said "Jeanie [the plant secretary] handed me this ... I don't know who this person is ... it's got to be for you." (See G.C. Exh. 3.) The "phone-memo," dated January 7, is ad- dressed to "Don Pachucki," from "Fred Casaia," and states: "reschedule for Friday morning 9 or 10 a.m.," and requests a "call back" at the Union's telephone number. Later that same day, about, 3:10 p.m., Pachucki Sr. "quit work" for the day. He went to his truck which was parked - in front of the garage and "started it up." However, Plant Superintendent John Barney and Fore- man Kevin Lewis "stood behind his truck." Barney ap- proached Pachucki Sr. and said that "he wanted to see [Pachucki Sr.]." Barney, according to Pachucki Sr., then questioned the employee ' "about the parts" for the "Hough 400" and "who gave [him] authorization to start working on the machine."-' Barney instructed Pachucki Sr. "to see" Barney "in his office" and "bring [his] boy with [him]." Pachucki Sr. and Pachucki Jr. immediately went into Barney's office, where they had the following conversation: ... Mr. Barney told -me [Pachucki Sr.] I -was un- happy there with my job, and I told him, I wasn't unhappy.... He said, I made up my mind I can [get] rid of the department and . . . you're through. I asked him, what do you mean, Pm through? He said, you're done . . . get going . . . take [your son] with you... . Pachucki Sr. had never received any complaints or warnings about his work; he had never been told that he was violating company, procedures; and he had in fact received "compliments" from Small, the owner. Further, Pachucki Sr. had been told that his son, Pachucki - Jr., was "doing a good job."s Donald Pachucki Jr. testified that he started working for Respondent as a laborer, he then became -a .plant me- chanic,'and he "started helping his father as a mechanic's helper." He identified General Councel's Exhibit'3 as the telephone message from the secretary, Jeanie. He gave this message to his father and they were both fired by Barney later that same day. Pachucki Jr. recalled: He [Barney] told my dad that he was ' unhappy there, andi my dad kept asking, what do you mean unhappy, and he wouldn't say . . . ; at the end .. . he just said, you're through . . . take your boy with you . . . Barney had stated: "we're phasing out the department. Pachucki Jr. added: "but we had work there for another two weeks."4 3 Pachucki Sr identified G C Exh 4 as a "want ad" appearing in the local newspaper for Culmtech "the Saturday after I got fired " Barney did not testify in this proceeding 4 Pachucki Jr. acknowledged that once he had received a verbal warn- ing from Plant Manager, John Bianco. Pachucki Jr had been assigned to Continued CULMTECH, LTD. 165 David Gostinski worked as a welder for the Employ- er. He testified that he started working at the facility while it was being constructed and, when the plant start- ed production, he was kept on as a welder. Plant Manag- er John Bianco informed Gostinski that "we have heard nothing but good about your work . . . we did like your work . . . and we are going to keep you as a permanent employee." Employees Pachucki Sr., Pachucki Jr., Boston, and Ward were also in `this "group of men they wanted." Gostinski next recalled that he spoke with coworkers Ward, Boston, Clark, Vida, Pachucki Jr., Pachucki Sr., Tomaselli, and Magione "regarding unionization of the plant." These "daily" conversations took place "in the breaker, in the shop, in front of the time slots." In De- cember 1985, Gostinski also had a conversation pertain- ing to unionization with Plant Foreman Dick Troup. Gostinski explained: Mr. Troup and I were alone. We were talking about the problems the plant had . . . he mentioned that he was in the Mine Workers at one time ... I said, well, they have a lot of expertise in this field so they could probably help us find a lot out ... I voiced my support of a union and said that would be what would straighten this plant out ... he said, we could fix the plant ourselves, we don't need the union ... . Gostinski similarly told Foreman Bernie Gorcenski about "the problems we were having" and they both "agreed" that "a union could help the plant." Thereafter, on January 22, 1986, Gostinski reported for work at 11 p.m. He was to work until 7 a.m. the next day. Foreman William Tocheny told Gostinski that they were going to work in the "sizing plant." Apparently, to do the particular job there, they would have to let the plant "run down"-"you can't work on it while it's moving . . . they had to run the system out." Therefore, there was at least a 45-minute delay in getting started. During this delay, Gostinski assisted Tocheny in getting the necessary tools and explaining to Tocheny "how to pack the heavy media pump." Then, from about 12 mid- night until 2 a.m., Gostinski assisted in "packing the pump" with Foreman Tocheny. At 2 a.m., "we went to a different site to assist two men who were helping" the onsite 'contractor foreman for Hamilton Industries, Norman Ward. Hamilton Industries . Hamilton Industries was engaged in "rebuilding the cam shaft system" in the "breaker." In performing this particular job, Norman Ward "became very angry because we didn't have the tools we needed." Nevertheless, they "continued to per- form that task until the end of [the] shift." There was, however, as Gostinski further noted, a "power outage" between 4 and 5 a.m. and "we were ordered out of the put oil into pumps and gear boxes Pachucki Jr was then instructed to do another job. Consequently, he did not "put" the oil "into the gear boxes." Bianco later faulted Pachucki Jr. for this and Pachucki Jr explained that he "was taken off the job by" Foreman Dick Troup As noted supra, Pa- chucki Jr had received a merit pay increase during October 1985. He also had successfully completed his probationary period during Decem- ber 1985 breaker' by our foremen, both foremen., "Tocheny and Norman Ward-because it was unsafe." At 7 a.m., Gos- tinski "punched out." Gostinski next testified that after he "punched out," Foreman Troup "called" him to the office, and the two had the following conversation: He [Troup] called me into the office, and he says I understand that-and we were alone-I under- stand you were in my desk the other day. And I said, yes, I was. And he said, what were you look- ing for? And' I says I was looking for a three-quar- ter inch drive extension tool I needed for the job. And he says, what were you on, and I says I was fixing a belt, refuse return or refuse line, and he said that if you needed a tool, he says, where do you usually go? I said, well, I usually go here, because we always come here for the tools, That's where they are kept. Or we go in the breaker. And then he said, well, I understand you were looking at a union book. And I said, well, I was looking where I was supposed to look for the tool. I lifted it up and I saw, right on top where the tool usually is, there is a small union book, about this big around, it was the 1978 bylaws book for the United Mine Workers, and he says, what were you doing looking at it? I says, well, I picked it up for 30 seconds. You know, when you pick up something, you are going to look at it. If you identify a tool you pick. up, you have to look at it, look at what you pick up, and I took about 30 seconds. I looked at it, put it down and found the tool I needed. He said that we didn't need a union and that he could take care of the problems in the breaker .. . we could solve the problems in "the breaker. And I did voice my opinion freely to him. Be- cause he was a mineworker at one time, I said that it's evident that you can't straighten the breaker's problem out. We need somebody else to help us with them. He said that, you know, we were considering you to take `over Paul's position. That was a fore- man on the third shift. They had just removed him. And I says, well, I wouldn't take it anyway. He says I know you wouldn't, he says, but that's the reason you didn't get the job, because you were reading that book about unionization. Gostinski, as he further testified, reported, for work at 11 p.m. on January 23. He worked his full shift that night. About 7 a.m. on January 24, as Gostinski was get- ting "ready to punch, out," Gostinski, John Ward, Boston, and Clark "were talking about starting a union." Foreman Tocheny was "two or three feet away." Gos- tinski recalled: We did talk about a union . . . we said the plant has problems [and] we want to solve the problems 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Later that same day, January 24, coworker John Ward telephoned Gostinski at home "and said John Bianco just gave me a call and said not to bother coming in, that we're'fired." Gostinski nevertheless reported for work on the evening of January 24. He was then informed by Foreman Gorcenski that he was "fired." On the following day, January 25, Gostinski went to the plant and,spoke with Plant Manager Bianco. They discussed, inter alia, a "letter" or "memo" pertaining to his' firing. (Cf. G.C. Exh. 8.) Gostinski then pressed Bianco, "Why was I fired?" Bianco replied: "It's none of your business." Later, by letter dated February 3, 1986 (G.C. Exh. 5), the Employer notified the Pennsylvania Office of Employment Security that Gostinski was fired "due to leaving the jobsite without foreman' s permission and was, caught rummaging through foreman's desk John Ward testified that he started his employment at Culmtech on November 2, 1985, and he received a pay increase in early 1986. Initially, he was "put on steel erection" as an- ironworker in the "sizing plant." Later, during January 1986, he was "hired on permanent as a welder/mechanic" on the third shift. Ward, on or about January 6, 1986, "called the United Steelworkers in Wilkes-Barre" and "set up a meeting for Wednesday the 8th . .. to get pledge cards and get everything started to organize; " Ward then apprised the Steelworkers' rep- resentative that coworker "Pachucki is interested in it ... he would be the one . . . to talk to ...." Ward also spoke to his coworkers frequently at the plant "about a Union [and] about better working conditions Ward recalled that Pachucki Sr. and Pachucki Jr. were both "discharged" on January 7; "we figured it was because of the Union activities"; "and we just sort of eased off a little bit for a couple of days ...." Then, Ward and his coworkers (including Gostinski and Boston) contacted the United Mine Workers. Ward ex- plained "why" they then turned to the United Mine Workers: Well, at that point, because of the confidence breach with calling the Steelworkers for one reason, and for another reason that Boston and Vida knew a person with the Mine Workers. Ward reported for work at 11 p.m. on January 22, 1986. William Tocheny was his foreman. The employees were "going to work with Norman Ward [of Hamilton Industries] in the sizing plant to redo the shaker ... . Ward, like Gostinski, related the ensuing sequence of events on his shift until 7 a.m., when they checked out. He too noted the absence of "proper tools," the "power outage," and resulting delays. Thereafter, Ward reported for work at 11 p.m. on January 23. "Nothing was said at all" to Ward or his coworkers "concerning the perform- ance of the night before." At the end of this shift, on the morning of January 24; when we were punching out, we were gathered around the timeclock and we were talking among ourselves about the Union because ... George [Boston] was supposed to have pledge cards .. . we were just wondering when he would be getting the pledge cards and when he could -start handing them out and try to get everything going. This group included Ward, Gostinski, Vida, Clark, Tom- maselli, and Boston. Foreman Tocheny was "right behind us ... about two or three feet."6 Later that same day, January 24, Ward received a tele- phone call at home from Plant Manager Bianco, "stating that I was not to report to work that night . . . we're being fired." Bianco stated : "[Ward] did not perform [his] duties on the night of the 22nd." Bianco also ap- prised Ward that Gostinski and Boston were "fired"- Gostinski "is getting fired for the same reason" and Boston "was fired for another reason which was none of [Ward's] business." Ward then testified: I asked him what the real reason was, why I was being fired ... and he just told me it was none of my business. Ward had "never" received any complaints or warnings about his work. In fact, Norman Ward of Hamilton In- dustries had complimented his work. George Boston's testimony corroborates in significant part the testimony recited above (Tr. 130-148). He worked for the Employer in the construction of the plant and was later made a "permanent employee" -with Gos- tinski, Ward, Pachucki Sr., and Pachucki Jr. He was twice asked to be, a foreman, but declined the offer. He never received any complaints or warnings about his work. He was repeatedly complimented by his superiors. Boston participated in the "conversations at Culmtech regarding unionization of the plant." He spoke with Gos- tinski, Ward, and other coworkers "quite often" about a union. He contacted an "official" with the United Mme Workers in an effort to get the organizational effort at the plant underway. The following week he was fired. Boston worked on January 22. Foreman Tocheny as- signed him his duties. He recalled the absence of proper tools and a power outage that evening:, He worked the next night, January 23. He. was not criticized or faulted for his work on January 22. He discussed the Union with his coworkers as he checked out on the morning of Janu- ary 24. Foreman Tocheny was standing, nearby. Later that day, Foreman Troup telephoned him at home and said, "You are discharged." Troup then faulted Boston for "shitting around" at work on January 22. Boston pressed Troup for the "real reason" and was told: "It's none of your business." 5 Gostinski had filed a complaint with the Pennsylvania Human Rela- tions'commission. He claimed that "one of the reasons [he] was fired was because of [his] religious affiliation" See Tr pp 77-101, G C Exhs 6 and 7 The commission did not find any basis for this complaint and an appeal is presently pending 6 Tocheny had been appointed foreman that week', As foreman, he as- signed Ward "his duties " 7 Boston later went to the plant and was told by'Bianco that he was fired for "proscrastmation of assigned duty " He pressed Bianco for the "real reason," and was again told- "It's none of your business " CULMTECH, LTD. 167 Paul Vida was employed by Culmtech from August 1985 until March 1986. He served as a foreman from mid-December until mid-January. In that capacity, he "assigned" work to the employees and was "responsible for their work." While serving as foreman, he frequently discussed "unionizing the plant" with Boston, Gostinski, Ward, Pachucki Sr., and Pachucki Jr. He even gave Boston the telephone number of an official of the United Mine Workers. On February 17, 1986, Vida was called into Bianco's office, and there they had the following discussion: Well, he [Bianco] said he was getting some com- plaints about me. I said, what, my work? He said, no, your work is fine. He said, you are trying to or- ganize a Union. I said, yes. We then talked about it a little bit, discussed, you know, what the plant was like being built, and he said that the Company [is] just starting out, a Union wouldn't be good at this ,time, and if the Union did get in it would be a sink- ing ship, and he will not get off a sinking ship .. .; he said the plant would probably close down if the Union came in ... Later, on February 26, Vida attended a meeting in the plant. All the employees were present. David Small, the owner, spoke. Vida testified: He [Small] said there is no reason why the Union should come here; you will have to pay Union dues. We will offer you an incentive pay on the amount of coal that is produced. He said, if a strike did occur, he would shut the plant down and get new employees. A man asked him, why the five men were dis- charged; he said for not doing their work. A man asked what about a pension plan, he said he would check with the board ... if there was a strike he would close the plant . . . he wanted an open door policy. In other words if you have a complaint, he wants the men to come to the management and work it out without the Union. Two days later, on February 28, Bianco again called Vida into his office. Bianco "said, I [Vida] had a lot of influence with the men and I could control them, be- cause there was something in the plant concerning the Union ... he said, I could control the men ... in other words I could have it stopped if I wanted to .... John Bianco, plant manager for Respondent, testified that he had "two meetings" with employee Vida in his office. Bianco asserted: ' 8 On cross-examination , Vida acknowledged, inter aha, that manage- ment had discussed "giving an incentive on coal produced " "from the be- gmnmg of the plant." Vida explained- There was talk before the plant went into production, but there was never anything that ever came of it Vida also acknowledged that Bianco did not ask him "to talk to any- body else to try to get them not support the Union" "in so many words " And, Vida recalled that Bianco, on February 17, "said the plant would probably close if the Union comes in. It is too early . The plant is just starting out . 11 What they pertained to was an employee at the plant had approached me . . . feeling pressured by Vida and other employees concerning Union issues. I did call in Vida and told him that I had had a complaint and I would appreciate it if he did his Union soliciting, ' his handing out of literature, that it must be done on his own time and not the Compa- ny's time. It must be done on his time and the fellow-worker's time. Bianco placed this meeting in mid-February 1986. Two or three days later; according to Bianco , Vida was again observed handing out literature "in front of the shop during Company 'hours." It was "right after a shift change." Bianco again faulted Vida in his office. Bianco claimed that was "the extent of [his] discussions with" Vida. He denied, inter alia, making any threatening or coercive statements attributed to him by Vida. Bianco later attended a meeting of employees on Feb- ruary 26. Small, the Company president and owner, spoke to the employees about the Union. According to Bianco: What we did was tell all the employees to become fully aware of the issues so they can make an honest decision .... Bianco claimed that an employee then "asked"' about a "pension plan.",Small responded: "We were going to try and put one in effect." Bianco insisted that this subject "was, brought up [earlier] at the Christmas party" in mid- December.9 Small, assertedly, did not "make any prom- ises to the employees on February 26. Small , assertedly, told the employees on February 26: Nothing had been done with the pension plan; he could not himself put a pension plan into effect ... he would have to check with the board ... he was very interested in seeing it go through .... Bianco next testified that Pachucki Sr. and Pachucki Jr. were both terminated previously on January 7, 1986. Bianco asserted that "we ran into quite a few problems" with Pachucki Jr. "and he had been warned on 'numer- ous occasions" by myself and the shift foreman about "the quality of work and about his applying himself " Bianco claimed that Pachucki Jr. had been trans- ferred from "plant mechanic" to "mechanic helper" under his father because of his "problem." Bianco also claimed that : "We felt that if we let Don Jr. go that his father would walk off the job, and we needed [the father for a , particular job.]" Elsewhere , Bianco claimed that Pachucki Sr. also "started dragging his feet" and that he was "warned" about "purchasing parts" "on his own." Bianco insisted that on January 7, when the two Pa- chuckis were fired, he had no "idea anything was going on" about a union. As for the later firing of employees Ward, Gostinski, and Boston on January 24, according to Bianco , manage- 9 According to Bianco, the "pension plan," an "incentive plan," "wages," "vacation and -holiday benefits" were all "brought up at the Christmas party." 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment had decided that, because of the "numerous inci- dents in the plant prior to this discharge date . . . the verbal recommendation of Norman Ward [of Hamilton Industries] and the letter that [Norman Ward] submitted and the problems that the plant was going through, war- ranted the discharge of these three . . . ." Bianco, asser- tedly, had "warned" Boston on "numerous occasions" about his work. Then, on January 22, Boston , and appar- ently his coworkers, failed to complete the "repair work to be done in the clean coal sizing station." Bianco insist- ed that there was a "complete set of tools" and the delay in finishing the job was because Boston was a procrasti- nator. The assigned repair job was "very critical." Bianco further insisted that on January 24, when Ward, Boston, and Gostinski were fired, he was not aware of any union activity at the plant "not to [his] knowledge." He claimed that he first learned of union activity at the plant in mid-February. On cross-examination , Bianco acknowledged that Pa- chucki Sr. was discharged on January 7 "in the middle of a job" involving the repair of brakes on a machine necessary "to move coal." Bianco identified Jean McIn- tyre as the office employee "involved with employee re- lations" who would, inter alia, relay telephone messages to personnel and file their workmen's compensation papers. In addition, Bianco acknowledged that during late December or early January, he became "aware" that Gostinski was "very dissatisfied" with his pay and was "complaining." Bianco then warned Gostinski "to quit causing trouble." Bianco testified that Norman Ward of Hamilton Indus- tries was, in effect, his "co-supervisor" on the night shift on January 22-Norman Ward of Hamilton Industries had "authority over the employees." Bianco identified General Counsel's Exhibit 8, a memorandum dated Janu- ary 24, as the only written communication received from Norman Ward concerning the performance of the night shift on January 22. According to Bianco: The following morning [January 23] [Norman Ward] was very upset verbally and we asked him to put it in a letter ... . General Counsel's Exhibit 8 states: This memo is to make aware that on Wednesday evening, the writer reported to the site, at 11 PM, to work on modifying the Clean Coal Sizing Screen with men from the night shift. It must be noted that their [sic] was no urgency in getting down to work. First I was told that they did not have enough tools to do the job, after hunting around, some tools were found. They did not have burning equipment-this was found in the Prep. Plant. Most of the remarks were made by the millwrights Q. Ward, D. Gostanski, G. Boston). By 1:30 AM we got down to a steady turn of work. At 6 AM these men were assisted by the Winniedorffers. We made good time, but were slowed down due to the conrod ends which had to be ground down to make a fit in the bearings at the screen ends. This grinding added two hours extra to the job. Bianco acknowledged that there were "more people in- volved" on January 22 other than Ward, Gostinski, and Boston, and they were not "discharged or disciplined." Bianco was not present at the plant during the night of January 22, and Norman Ward did not testify in this pro- ceeding. Tocheny, the Employer's foreman and supervi- sor on the night shift, no longer employed by the Com- pany, also did not testify . Tocheny was then "supervisor over maintenance." Richard Troup, a foreman for the Employer , testified that he was "over the construction part of the plant" when the two Pachuckis were terminated . He denied knowledge of any union activity at the time. He denied knowledge of any union activity when Gostinski, Ward, and Boston were later fired. He claimed that "if there was any talk about the Union," he "would have heard." He also denied telling Gostinski, inter alia, that "he did not get a foreman's job . . . because of reading a Union book or any Union activity." Bernard Gorcenski, now a welder mechanic for Re- spondent, testified that he was a "lead man" on January 24; that on January 24, Ward and Boston were "contact- ed by phone that their employment was terminated"; and that "they couldn't get hold of Gostinski so they told [him] when he came in that night . . . ." He asserted that he was not aware of any Union activity at the time, "I had no knowledge of that." David Small, the president and chief executive officer of Respondent, testified that he held employee meetings on February 26, 1986, "to make the Company's position known" on the union organizational effort. He, asserted- ly, was "asked questions" about a "pension plan." He had "discussed" this subject earlier at the Christmas party. He again indicated that he "was in favor of it." He, assertedly, was "asked" about an "incentive plan." He had "discussed" this subject earlier at the Christmas party. He again indicated that he "was in favor of it." He again repeated that "employees of a company should share in the profitability and we would tie that sharing to the productivity of coal"-"once [the Company] did become profitable . . . that kind of plan would be insti- tuted." Small denied any knowledge of union activity when Pachucki Sr., Pachucki Jr., Boston, Gostinski, and Ward were fired. He particularly faulted Boston, Gostinski, and Ward because they "basically doped off and dragged their feet and procrastinated and the job wasn't done" on the night of January 22 . He claimed that "was the straw that broke the camel's back"-"we felt that the problem was that the maintenance crew on the graveyard shift was simply not getting the jobs done ...." He asserted that Norman Ward of Hamilton Industries "made it quite clear that the reason that the work wasn 't done was be- cause of these three individuals" Ward, Gostinski, and Boston. As noted, Norman Ward did not testify. (Cf. G.C. Exh. 8, quoted supra.) On cross-examination, Small faulted the performance of Pachucki Sr. as "one of the prime causes of problems in the plant" the "mobile equipment didn't run"; "he was too slow"; "he dragged his feet." Small similarly faulted CULMTECH, LTD. 169 the performance of Pachucki Jr. And, as for the "grave- yard maintenance shift," Small acknowledged that Ward, Gostinski, and Boston were "not the only individuals working the shift" on January 22. The others, as noted, were not fired. I credit the testimony of Casaia, Pachucki Sr., Pa- chucki Jr., Gostinski, Ward, and Boston as detailed above. Their testimony is in significant part mutually corroborative. They impressed me as trustworthy and re- liable witnesses. And their full and complete account of the pertinent sequence of events withstood the test of cross-examination. On the other hand, I do not credit the testimony of Bianco, Small, Troup, and Gorcenski inso- far as their testimony conflicts with the above testimony of Casaia, Pachucki Sr., Pachucki Jr., Gostinski, Ward, and Boston. The testimony of Bianco, Small, Troup, and Gorcenski was at times vague, incomplete, inconsistent, and shifting. They did not impress me as reliable or trust- worthy witnesses. In particular, I find incredible here management's asserted nondiscriminatory reasons for the sudden firing of Pachucki Sr., Pachucki Jr., Gostinski, Ward, and Boston. As discussed below, I find these be- lated, iuisubstantiated, shifting, and contradictory reasons advanced by the Employer for the sudden firing of the five employees to be pretextual, and the real reason to be the suspected union activities of these employees. i o In addition, on this record, I am persuaded that the testimony of Vida, as recited above, is more complete and reliable than the testimony of Bianco. Bianco admit- tedly called Vida into his office on February 17 and 28. I find incredible Bianco's assertion that he twice sum- moned Vida to his office only to tell Vida that he, Bianco, received a "complaint" from a fellow employee and he "would appreciate it if" Vida solicited and dis- tributed for the Union "on his own time" and "the fellow-worker's time." The purpose of this meeting, ac- cording to Bianco, was to protect a complaining employ- ee who assertedly had been "pressured by Vida and other employees concerning Union issues." Further, I find Vida's recollection of Small's statements to the as- sembled employees on February 26 to be credible. Small's recollection and Bianco's recollection of Small's statements to the employees were at,times vague and in- complete. And, as stated, I do not regard Small and Bianco, on this full record, to be reliable witnesses. Discussion The credible evidence of record, as recited supra, makes it clear that management summarily discharged employees Pachucki Sr. and Pachucki' Jr. on January 7 because of their suspected union activities, in violation of Section 8(a)(3) and (1) of the Act. Pachucki Sr. and Pa- chucki Jr. were both hired by the Employer during the construction of its Inkerman facility. Management was pleased with their work and they were later kept on as permanent employees. Management complimented the work of both employees. Pachucki Sr. was made "head xo I note that Foreman Norman Ward of Hamilton Industries, office secretary Jean McIntyre, Foreman and Supervisor William Tocheny, and Superintendent John Barney, all involved in the pertinent sequence, did not testify in this case equipment mechanic" receiving a $10 hourly rate. Pa- chucki Jr. was given a "merit increase" and later as- signed to assist Pachucki Sr. "as a mechanic's helper." The two employees had received no reprimands from the Employer. Then, during late December, Pachucki Sr. spoke to his coworkers, including employees Gostinski and Ward, about "getting a Union into" Culmtech. The employees decided that Gostinski and Ward "were going to contact the Union," the United Steelworkers, and Pachucki Sr. "would be the spokesman." Arrangements were made for the employees to meet with the Union's representa- tives. However, Casaia, the Union's subdirector, could not attend a scheduled meeting and, consequently, he telephoned the plant on January 7 to so advise Pachucki. Casaia was then unaware that there was a Pachucki Sr. and Pachucki Jr. working at the plant. Accordingly, he simply left a message with the plant secretary, Jean McIntyre, for Pachucki, explaining to her that the sched- uled meeting was postponed. Later that same day, Super- intendent Barney summoned Pachucki Sr. and Pachucki Jr. into his office. There, Barney faulted Pachucki Sr. for being "unhappy" at Culmtech. Barney then apprised Pa- chucki Sr., "You're through . . . take your boy with you . . ." Barney, at the same time, claimed that the Em- ployer was "phasing out the department." There was, however, work which remained to be done, including the repair of a machine critical to the processing of coal. In fact, management promptly placed a "want ad" in the local newspaper for a replacement "mechanic." Else- where, Plant Manager Bianco claimed that Pachucki Sr. had been "warned" about "purchasing parts" "on his own" and he had "started dragging his feet" at work. Bianco also claimed that "we ran into quite a few prob- lems" with Pachucki Jr., but "we felt that if we let, Don Jr. go that his father would walk off and we needed [him]." The credible evidence of record does not support these inconsistent assertions by the Employer. I find and conclude that the Employer became aware of the union activities of Pachucki Sr. by January 7, when Union Representative Casaia telephoned the plant to advise Pachucki that the scheduled union organiza- tional meeting was postponed. That same day, manage- ment summarily fired both Pachucki Sr. and Pachucki Jr. Significantly, Casaia's telephone message pertaining to the postponed union meeting did not specify Pachucki Sr. or Pachucki Jr. The credible evidence shows that, up to this point, both employees were highly regarded by management. And, it was only hours after this union ac- tivity surfaced when they were suddenly fired. Further, I reject as pretextual management's unsubstantiated, incon- sistent, contradictory, 'shifting, belated, and incredible reasons assigned for this firing. The weaknesses of these asserted reasons only serve to bolster the inference that management suddenly fired both Pachuckis on January 7 because of suspected union activities, in violation of Sec- tion 8(a)(3) and (1) of the Act. Subsequently, when employees Gostinski, Ward, and Boston attempted to renew, this organizational effort at the plant, management summarily fired them too, in fur- ther violation of Section 8(a)(3) and (1) of the Act. Gos- 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tinski, Ward, and Boston, like, Pachucki Sr. and Pachucki Jr., started working for the Employer during the con- struction of the plant. Later, they were kept on as per- manent employees. They were given pay increases." Gostinski credibly testified that he was complimented by management for his good work. Gostinski was even told that he-was being "considered" for a foreman's position. And, Boston was twice asked to become a foreman-he too was repeatedly complimented by his superiors. Employee Ward credibly recalled that when Pachucki Sr. and Pachucki Jr. were both fired on January 7, "we figured it was because of the Union activities" and "we just sort of eased. off a little bit for a couple of days." Then, Ward and his coworkers-including Gostinski and Boston-turned to the United Mine Workers for organi- zational-assistance. As Ward explained, on January 24: When we were punching out, we were gathered around the time clock and we were talking among ourselves about the Union because . . . George [Boston] was supposed to have pledge cards .. . we were just wondering when he_ would get the pledge cards and when he could start handing them out and try to get everything going. This group included` Ward, Gostinski, and Boston. To- cheny, the Employer's foreman and supervisor on the night shift, was standing "right behind" them "about two or three feet." Earlier, Gostinski had made known to Foreman Troup his strong "support of a Union." Troup, however, in- formed Gostinski, "we don't need the union." Then, on the morning of January 23, Troup faulted Gostinski for "looking" in his desk at a- "Union book." Gostinski ex- plained to Troup that he was looking for a tool and saw the union book there. Troup instructed Gostinski, "We didn't need a union." Troup, at the same time, revealed to Gostinski: "We were' considering you to take over ... foreman on the third shift . . . the reason you didn't get it the job [was]; because you were reading that book about unionization." During the afternoon of January 24, Gostinski, Ward, and, Boston were notified at home that they were fired. Management claimed that they had failed to "perform" their "duties on the night of [January] 22nd." The em- ployees had not been warned -or criticized about their work. And, when they pressed management for the "real reason" for their fining, they were told: "It was-none of [their] business." Management claims that the three employees were fired because of proscrastination on the night of January 22. As noted, Tocheny, the Company's supervisor on the night shift, did not testify. In addition, Norman Ward, foreman of Hamilton Industries, who was also directing the night shift, did not testify. The credible evidence of record, detailed above, fails to support this,and related assertions. Indeed, management later notified the' Penn- sylvania Office Of Employment Security that Gostinski was fired "due to leaving the jobsiie without foreman's " The Employer's "reason for the raise" for Boston and Gostmski stated "merit increase." The "reason for the raise" for Ward was "trans- fer." permission and was caught rummaging through fore- man's desk .... ' Here, too, management's unsubstanti- ated, inconsistent, contradictory, shifting, belated, and in- credible reasons assigned for this sudden firing only serve to bolster the inference that it was really their union activities which caused this action: In sum, I find and conclude that the Employer violat- ed Section 8(a)(3) and (1) of the Act by discriminatorily discharging employees Pachucki Sr., Pachucki Jr., Ward, Boston, and Gostinski. The General Counsel -alleges that Respondent Employ- er also violated Section 8(a)(1) of the Art by threatening an employee that it would close its facility if the employ- ees selected union representation and, in addition, by so- liciting this same employee to dissuade his coworkers from supporting the Union. The credible evidence of record supports this allegation. Thus, as employee Vida credibly recalled, Plant Manager Bianco summoned Vida to his office; stated "you are trying to organize a Union"; warned that a "Union wouldn't be good at this time- .. if the Union did get in it would be a sinking ship ..."; and then "said the plant would probably close down if the Union came in.," Later, Bianco again summoned Vida to his office. This time, Bianco said that Vida "had a lot of influence with the men" and "could control" them with respect to the union effort. Vida understood that Bianco was, in effect, saying that Vida "could have it stopped if he wanted to ...." I find and conclude that Bianco's conduct, assessed in the context of the Employer's discriminatory firing of the five union protagonists, tended to interfere ,with em- ployee Section 7 rights, in violation of Section 8(a)(1) of the Act. Cf. Purolator Armored, 268 NLRB 1268, 1275- 1280 (1984). Bianco threatened Vida with the closing of its facility if the employees chose union representation. Bianco then enlisted the support of Vida in opposing the Union. This conduct, in context, tended to impinge on employee Section 7 rights. The General Counsel also alleges that the Employer solicited employee complaints and grievances and,prom- ised its employees increased benefits and improved terms and conditions of employment if they voted against union representation . In my view, the credible evidence of record 'does not sufficiently support this allegation. Thus, employee Vida credibly recalled how Company Owner Small addressed the assembled employees. Small, during his meeting, was asked, inter alia, "about a pen- sion plan" and said "he'would check with the board" of directors. An "incentive plan" was discussed. Small also "wanted an open door policy." Management had 'dis- cussed these and similar improved benefits with the em- ployees a few months earlier. The testimony of record falls far short of sufficiently establishing an unlawful so- licitation and promise of benefits. I would therefore dis- miss this allegation of the complaint. Cf. American Laster Corp., 280 NLRB 483 (1986). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as alleged. CULMTECH, LTD. 2. The United Steelworkers of America and the United Mine Workers of America are labor organizations as al- leged. 3. Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging employees Pachucki Sr., Pachucki Jr., Boston, Gostinski, and Ward. 4. Respondent violated Section 8(a)(1) by threatening an employee to close its facility if they chose union rep- resentation and by soliciting an employee to dissuade his coworkers from supporting the Union. Respondent has not committed other 8(a)(1) violations alleged. 5. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Employer will be directed to cease and desist from engaging in such unlawful conduct or like and re- lated conduct and to post the attached notice. Respond- ent Employer will also be directed to offer employees Pachucki Sr., Pachucki Jr., Gostinski, Ward, and Boston immediate and full reinstatement to their former jobs or, in the event such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharges, by making payment to them of a sum of money equal to that which they normally would have earned from the date of Respondent Em- ployer's discrimination to the date of its offers of rein- statement, less net earnings during such period, with backpay and interest to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 651 (1977), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). See; generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, Respondent Employer will be directed to preserve and make available to the Board, on request, all payroll records and reports and all other records neces- sary to determine backpay and reinstatement under the terms of this decision. Further, Respondent Employer will be directed to remove from its files any reference to the disciplinary actions and discharges found unlawful herein in accordance with Sterling Sugars, 261 NLRB 472 (1982). On these findings. of fact and conclusions of law and on the entire record, I issue the following recommend- ed'2 ORDER 171 charging and failing or refusing to reinstate its employ- ees. (b) Threatening employees that it would close its facil- ity if the employees chose union representation. (c) Soliciting employees to dissuade other employees from supporting the Union. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer employees George Boston, David Gostinski, Donald Pachucki Sr., Donald Pachucki Jr., and John Ward immediate and full reinstatement to their former jobs or, in the event their former jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have sustained by reason of Respondent's unlawful action, with interest, as provided in this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and' reports, as well as other records necessary or useful in analyzing and computing the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the dis- charges of Boston, Gostinski, Pachucki Sr., Pachucki Jr., and Ward, and notify them in writing that this has been done and that evidence of their unlawful discharges will not be used as a basis for future personnel actions against them. (d) Post at its Inkerman, Pennsylvania facility copies of the attached notice marked "Appendix."i 3 Copies of the, notice, on forms provided by the Regional Director for Region 4, 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 28 days from the date of this Orderwhat steps the Respond- ent has taken to comply. IT IS FURTHER RECOMMENDED that the remaining alle- gations of the complaint be dismissed. The Respondent, Culmtech, Ltd., Inkerman, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in the United Steelwork- ers Of America, the United Mine Workers Of America, or any other labor organization, by discriminatorily dis- 12 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. 13 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 " 172 DECISIONS 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 discourage membership in the United Steelworkers of America, the United Mine Workers of America, or any other labor organization, by discrimina- torily discharging and failing or refusing to reinstate our employees. WE WILL NOT threaten our employees that we will close down our facility if they choose union representa- tion. WE WILL NOT solicit our employees to dissuade their coemployees from supporting the Union. WE WILL NOT in-any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer employees George Boston, David Gos- tinski, Donald Pachucki Sr., Donald Pachucki Jr., and John Ward immediate and full reinstatement to their former jobs or, in the event their former jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges , and,make them whole for any loss of earnings they ' may have sus- tained by reason of our unlawful conduct, with interest. WE WILL remove from our files any references to the discriminatory discharges of Boston , Gostinski, Pachucki Sr., Pachucki Jr., and Ward, and WE WILL notify them that this has been done and evidence of their unlawful discharges will not be used as a basis for future personnel actions against them. - CULMTECH, LTD.