Continental Radiator Corp. And Great Lake, Inc.

234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Continental Radiator Corporation and Great Lake, Inc. and Kenneth' Dailey and John Kuzdzal and Laura Polight and- International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW). Cases 7- CA-23796, 7-CA-24140, 7-CA-24260, 7-CA- 24712, 7-CA-25305, and 7-CA-25450 16 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 6 May 1986 Administrative Law Judge David L. Evans issued the attached decision. The Respondents, Continental Radiator Corporation (CRC) and Great Lake, Inc. (GLI), filed excep- tions and a supporting brief. The Charging Parties filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and conclusions as modified and to adopt the recom- mended Order as modified.2 The consolidated complaint alleges that Re- spondents CRC and GLI are alter egos and/or a single employer and that they engaged in various acts violating Section 8(a)(1) and (3) of the Act. 1 The Respondents have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings While not affecting our decision, we correct the following factual errors contained in the judge's decision. (1) In the introductory para- graph the judge found that the charge in Case 7-CA-24712 was filed on 17 June 1984 when it was in fact filed on 17 June 1985 (2) In the first paragraph of sec. III,A,2 of his decision, the judge states that the Union filed a petition to represent CRC's production and maintenance employ- ees on 7 July 1984. We find instead that the petition (in Case 7-RC- 17352) was filed on 17 July 1984. (3) Regarding the contents of sec III,A,4,e,l, we find that the conversation between CRC President Karl Geiger and employee Kenneth Heidel occurred on 20 June 1985, not 20 June 1984. Likewise, regarding sec. III,A,4,e,2, we find that the events involving employee Jeffrey Toomer occurred in May and early June 1985, not 1984. (4) In the first paragraph of sec. III,B,3, of his decision, the judge attributed to CRC Plant Supervisor Donald Mooney the refer- ence to discriminatee Kenneth Dailey as "loud mouth Ken" However, the record and the judge's discussion of the facts reveal that the state- ment was made by CRC Vice President Harold Nichols. 2 The judge granted the General Counsel's request that the order in- clude a visitatorial clause authorizing the Board, for compliance pur- poses, to obtain discovery from the Respondents 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 circum- stances of this case such a clause is not warranted. We shall modify the recommended Order to delete the visitatorial clause and also to conform to the violations found by the judge. Further, we shall include injunctive language prohibiting any "like or related" misconduct. It is unnecessary to modify the notice The judge found that CRC and GLI engaged in the alleged unlawful conduct as a "joint or single employer." The Respondents have excepted to the judge's finding of joint liability. We have carefully considered the Respondents' arguments and agree with the judge that CRC and GLI violated the Act as allegeds and that the facts support the judge's fording that CRC and GLI are a single" employer under the Board's standards.4 However, as ex- plained below, we conclude that regarding joint li- ability for the remedy, Respondent GLI is also, as alleged in the complaint, the alter ego of Respond- ent CRC.5 In Advance Electric, 268 NLRB 1001, 1002 (1984), the Board stated that it will find alter ego status where two employers have "`substantially identical' management, business purpose, operation, equipment, customers, and supervision, as well as ownership." In addition, the Board considers whether there has been any hiatus in operations, whether the companies use the same building, and "whether the purpose behind the creation of the al- leged alter ego was legitimate or whether, instead, its purpose was to evade responsibilities under the Act."6 No one factor is determinative ,of alter ego status. a Contrary to the Respondents' contentions, we find that the judge's recommended remedy and Order are consistent with the terms of the parties' settlement agreement. Allegations of unlawful 8(a)(1) conduct predating discriminateo' Kenneth Dailey's discharge on 27 August 1984 and the status of the Respondents as alter egos and/or a single employer were not disposed of by the settlement agreement to the extent they "have any bearing on the Dailey discharge or remedy therefore" As found by the judge, the predischarge violations of Sec. 8(a)(1) establish animus and unlawful motivation, essential elements of the General Coun- sel's prima facie case. Further, a finding of joint liability protects Dailey's reinstatement and backpay remedies. In concluding that the judge acted within the bounds of the settlement agreement, we note also that the agreement prohibits the General Counsel from seeking any remedial pro- visions for conduct "expressly disposed of by settlement herein." A care- ful review of the agreement and its corresponding notice demonstrates that although posttermination allegations of violative 8(a)(1) conduct were settled, no pretermination allegations of 8(a)(1) misconduct were "expressly disposed of" or in any way remedied by the settlement Ac- cordingly, we conclude that the General Counsel's request that the un- lawful pretermination conduct be remedied and the judge's agreement with that request are within the scope of the settlement agreement's terms 4 Nominally separate business entities may be regarded as a single em- ployer under the Act where there is functional integration of operations, centralized control of labor relations, common management, and common ownership or financial control. Radio Union v Broadcast Service, 380 U.S 255, 256 (1965), NLRB Y. Browning-Ferris Industries, 691 F.2d 1117, 1121- 1124 (3d Or. 1982), Weldment Corp, 275 NLRB 1432 (1985). 5 In light of our conclusion that Respondents CRC and GLI are alter egos, we find it unnecessary to rely on the judge's finding that the two entities constitute a "joint employer," a theory of employer liability not alleged in the consolidated complaint. In doing so, we note that the con- cept of joint employer should not be confused with the theories of single employer or alter ego. See, e.g., NLRB v. Browning-Ferris Industries, supra at 1121-1124; Apex Decorating Co, 275 NLRB 1459, 1462-1463 (1985) We also find it unnecessary to consider the judge's discussion and application to the facts of this case of 0 Voorhees Painting Co., 275 NLRB 779 (1985) 6 268 NLRB at 1002, quoting Fugazy Continental Corp, 265 NLRB 1301, 1302 (1982), enfd 725 F 2d 1416 (D.C. Cir 1984) 283 NLRB No. 34 CONTINENTAL RADIATOR CORP. As set forth in the judge's decision, the record establishes that CRC was created in 1976 to manu- facture and distribute automotive radiator cores and related parts. At all material times, Karl Geiger was president of CRC and owned 65.625 percent of its stock. CRC's vice president, Harold Nichols, and secretary-treasurer, Martin Ewald, each owned 6.25 percent of the stock. The remain- ing stock was owned by Assistant Secretary-Treas- urer Ron Weigand (3.125 percent) and Richard DeSiro (18.75 percent). From 1976 until January 1984, T CRC occupied a building it owned on 17th Street in Detroit, Michigan. In January, due to al- legedly deteriorating conditions at the 17th Street facility, CRC moved 2 miles to a facility on 2000 Beard Street which it leased until 1 February 1985 from its owner, Karl Geiger. In July 1984, the Union began an organizational campaign among CRC's production and mainte- nance employees that culminated in a majority of employees voting for the Union in a representation election on 24 August." On 27 August, the first workday following the election, active union sup- porter Kenneth Dailey was terminated.' In addition to finding this discharge an 8(a)(3) violation, the judge concluded that CRC violated Section 8(a)(1) of the Act on numerous occasions both before and after the representation election. In November, Geiger received' a petition, signed about 28 August by 16 CRC employees, requesting that the Union's election victory be set aside on various grounds.9 About 30 November, while CRC's election objections were pending before the Board, Geiger incorporated GLI, ' with himself as sole officer and owner, to engage in the manufac- ture, assembly, and distribution of automotive' radi- ator cores and -related products. Between Novem- ber and 31 January 1985, GLI employed only three to five employees. Although it is unclear precisely what work the employees performed, other, than possibly producing a few radiator or car tube "pilot" models, it appears the employees received training (for such tasks as soldering) at the' 17th Street facility vacated by CRC10 and that some of them also worked at the Beard Street facility. All dates are 1984 unless otherwise indicated The Union, which won the election by one vote, was certified by the Board on 10 December 1985. 9 There rs no evidence the petition was at any time presented to the Board's Regional Office 10 We reject the Respondents' contention that GLI is a corporate suc- cessor to Great Lakes Industries, a sole proprietorship owned by Geiger's brother, Heinz Geiger As found by the judge, Heinz operated his busi- ness under an assumed name from August 1983 until 21 March when he filed a certificate "discontinuing business" under that name. Karl Geiger's attempts to continue business under the sole proprietorship 's assumed name failed. In any event, we find particularly illustrative of the lack of merit in the Respondents' argument Geiger's admission that GLI had no employees prior to the fall of 1984. 235 On 31 January 1985, CRC posted a notice in- forming its employees that "due to circumstances beyond our control," the Company was "forced to move our operation to 17th Street."' Twenty-three of its twenty-six employees were immediately laid off. On 1 February 1985, GLI commenced oper- ations at the Beard Street facility pursuant to a 1- year lease executed 25 January 1985 by Geiger on behalf of GLI. Of the 23 employees laid off by CRC, 14 were hired immediately (or within days) by GLI. In addition, those GLI employees work- ing at 17th Street were transferred to the Beard Street facility. Of the three employees retained by CRC to complete remaining orders at Beard Street, two soon became GLI employees. By about 6 Feb- ruary 1985, GLI had a complement of 26 employ- ees, CRC's exact complement at the time of the mass layoff. All CRC employees who signed the postelection petition to overturn the Union's victo- ry were, by 6 February 1985, again actively em- ployed. Conversely, and most importantly, the only CRC employees not hired by GLI or retained by CRC were ' active union supporters,." These em- ployees, seven in number, were not recalled by CRC until about May 1985. The record establishes that most former CRC employees hired -by GLI performed the same duties on the same type of equipment (if not the exact machines) during the same working hours previ- ously in effect at CRC. The close relationship be- tween CRC and GLI is evidenced by employee Laura Policht's testimony regarding her conversa- tion on 4 February 1985 with CRC's former vice president, Nichols. Policht reported to GLI that day as requested earlier by Geiger. Upon arriving, Policht encountered Nichols, who informed her that CRC had "diversified" and was now GLL He presented her with the choice of being laid off or working for GLI doing the "same job" she had done for CRC. Policht learned, upon inquiring, that she would receive the same wages and benefits at GLI that she previously received at CRC and that her CRC seniority would transfer to GLI. Po- licht decided to work for GLI. Nichols then asked Policht, who did not sign a union card or engage in any other union activity, if she was a friend of former CRC employee `'Sharon Osborne, who had been an active union supporter and with whom Po- licht shared a machine at CRC. When Policht re- plied "no," Nichols said "good." Further; while Policht and other selected employees (who were outwardly antiunion or whose union preferences were unknown) were approached to work for 1I This number excludes two CRC employees not hired by GLI or re- tained by CRC for reasons unrelated to the matters at issue here 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD GLI, Osborne's attempts merely to enter the Beard Street shop on 7 February 1985 were thwarted.12 Policht continued to work for GLI until 29 May 1985, when she reported, as instructed, to the 17th Street facility and became a radiator assembler for CRC, with the same benefits, wages, and seniority received at GLI. Addressing the elements of an alter ego determi- nation, we fmd, based on Geiger's proprietary in- terests in CRC and GLI, substantially identical ownership between the two enterprises. Leases be- tween Geiger and the two entities were signed by Geiger on behalf of himself and as president of the two corporations. Geiger clearly was the dominant force in establishing- the business purpose of both companies. Concerning the element of common manage- ment, the facts reveal that as of 1 February 1985, CRC's former officers became GLI's managers. Moreover, -with the exception of Mooney, every CRC supervisor became a supervisor for GLI. Mooney returned to the 17th Street facility to su- pervise CRC's severely diminished work force. In light of the above, we fmd that CRC and GLI had substantially identical management and supervision. Regarding equipment, the record shows that both. CRC and GLI lease equipment from Kar Tool, a company owned by Geiger. While CRC occupied the Beard Street facility it used two baking ovens, the newer of which remained at Beard Street for use by GLL Likewise, two of the four fin machines used by CRC on Beard Street were left behind for GLI's use. In fact, there is no evidence that GLI had any equipment of its own when. it took over the Beard Street facility. Con- cerning stock and supplies, employee testimony es- tablishes that GLI used CRC's purchase order and other forms (with, a superimposed sticker), commin- gled GLI's and CRC's stock and finished products for single shipments to customers, and used GLI employees to deliver CRC supplies. In addition, ra- diator cores manufactured by CRC at the 17th Street facility were sometimes packed and stored in boxes marked "GLI." While GLI purchased large numbers of CRC radiator cores, it also produced its own cores for subsequent assembly into com- plete radiators. These facts ' reveal an overlapping and integration of operations between the two enti- ties and clearly support a finding of alter ego status. The record also establishes that GLI and CRC Share, a substantially identical customer base. In fact, two-thirds of GLI's customers in February 12 In addition, rather than hire Osborne to work together with Policht on the same fin machine used by them at CRC, GLI hired a new em- ployee 1985 were CRC's customers in January 1985. Mor- ever, GLI and CRC used substantially the same suppliers in 1984 and 1985 for numerous items, in- cluding solder, tubing, acids, and "leaders." The final factor to be considered in an alter ego analysis is employer motivation. In addressing this factor, we.begin by noting the similarity of business purpose and operations between the two entities. As found above, both companies engaged in the business of manufacturing, nonretail sale, and distri- bution of automotive radiator cores and related products. Although GLI manufactured additional products and engaged in distribution on a larger scale than did CRC, these facts do not preclude a finding of alter ego status. On the contrary, GLI's increased distribution and manufacturing function provides some insight into employer motivation in that the increase is due in large part to GLI's ex- pansion into more lucrative, but related, areas. Thus, while CRC continued for a time to produce old-style, less marketable radiator cores, GLI man- ufactured more modern, technologically competi- tive radiators and components. The Respondents failed to explain why GLI was created to occupy CRC's former Beard Street premises, largely with CRC's former employees and equipment, to engage in newly assigned work on an expanded scale while CRC returned with a skeleton crew to the former- ly abandoned, smaller, dilapidated 17th Street facil- ity. Geiger testified that CRC moved back to 17th Street as part, of an overall plan to increase "effi- ciency" and "reduce overhead." However, the Re- spondents failed to proffer evidence as to what fi- nancial benefits resulted from the move and wheth- er any of the physical problems at the 17th Street facility which necessitated CRC's move to Beard Street in the first place were ever remedied. The evidence leads to the conclusion that GLI was formed to continue CRC's operations in a disguised form while causing the demise of CRC, all in an at- tempt to avoid any union obligations or responsibil- ities under the Act.13 We find further evidence of unlawful employer motivation in the Respondents' hostility - towards the Union. GLI was incorporated 3 months after the Union prevailed in the representation election and only weeks after Geiger received an employee petition seeking to overturn the Union's election 18 Following GLI's formation, CRC's production was apparently at a virtual standstill until early May 1985, allegedly due'm large part, to liti- gation over, and the need for subsequent repairs to, an indispensable baking oven As stated above, a newer, operative baking oven was left behind at Beard Street for GLPs use While CRC had a work force of about seven or eight employees in October 1985, it ceased doing business the following month Although it appears CRC is in receivership, we agree with the judge that CRC's continued existence can be presumed in the absence of any evidence of corporate dissolution. CONTINENTAL RADIATOR CORP. victory. The -formation of GLI allowed CRC to follow through on its preelection threats not to bargain with the Union and effectively to close shop if the employees selected the Union as their collective-bargaining representative. Animus is ap- parent in additional unlawful campaign conduct, such as threats of reduced wages, unlawful interro- gation, and solicitation of grievances. When CRC lost the election, the unlawful conduct continued. Thus, union supporter Dailey was unlawfully ter- minated and, as found by the, judge, 1984 Christmas bonuses were withheld from organizing committee members, employees were interrogated and threat- ened, efforts were made to induce employees to withdraw charges pending before the Board, and seven union supporters were laid off for about 3 months (and then recalled to the dilapidated 17th Street facility) while those employees who signed - the petition to overturn the election immediately returned to work. 14 Such extensive misconduct un- derscores the depth of the Respondents' commit- ment to avoid unionization. Based on our consideration of all the factors out- lined above, we find and conclude that GLI is the alter ego of CRC. In so concluding, we rely par- ticularly on the timing of GLI's emergence to coin- cide with the demise of CRC and on the employ- ment by GLI of a majority' of former CRC em- ployees to perform the same tasks on' the same or similar equipment and machines, at the same prem- ises, for substantially the same customers, with no hiatus in operations. We rely also on the fact that Respondents CRC and GLI have substantially identical ownership, management, and supervision and share a substantially identical business purpose. Finally, we note the strong pattern of discrimina- tion against CRC's prounion employees and the evidence of unlawful employer motivation. In short, we find that GLI was formed to accomplish a shift of work from CRC in an attempt to rid the Company of its prounion work force and avoid any responsibilities arising under the Act. Having found that GLI is the alter ego of CRC, we conclude that GLI violated the Act as alleged and, accordingly, is obligated; jointly with CRC, to remedy the violations found in this decision. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Continental Radiator Corporation and Great Lake, Inc., Detroit, Michigan, their officers, 14 As noted in the judge's decision, and above in fn 3, the allegations of misconduct occurring after Dailey's discharge on 27 August were dis- posed of by settlement agreement 237 agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following as paragraphs 1(f) and (g). "(f) Discharging or otherwise discriminating against employees with respect to their hire or tenure of employment or any term or condition of employment because of their union activities or other exercise of their rights under the National Labor Relations Act. "(g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(e). "(h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents has taken to comply." K. C. Hortop, Esq., for the General Counsel. Robert L. Hindelang, Esq., of East Detroit, Michigan, for the Respondents. Nancy Schiffer, Esq., of Detroit, Michigan, for the Charg- ing Parties. DECISION STATEMENT OF THE CASE DAVID L. EvANS, Administrative Law Judge. This matter was originally tried before me on 7 through 11 October 1985 in Detroit, Michigan. The hearing was re- opened, and reclosed, on 1 April 1986. The pertinent docket entries are as follows: The original charge in Case 7-CA-23796 was filed by Kenneth Dailey against Re- spondent Continental Radiator Corporation (Continental) on 29 August 19841L; the original charge in Case 7-CA- 24140 was filed by John Kuzdzal against Continental on 24 December; the original charge in Case 7-CA-24260 was filed by Kuzdzal against Continental and Respond- ent Great Lake, Inc. (Great Lake) on 5 February; and the original charge in Case 7-CA-24712 was filed by Laura Policht against both Respondents on 17 June. The original complaint and notice of hearing issued on 1 Oc- tober; an order consolidating cases and amended com- plaint and notice of hearing issued , on 11 February; an order consolidating cases and second amended complaint and notice of hearing issued on 25 March; and an order consolidating cases and third amended consolidated com- plaint and notice of hearing issued on 7 August 11985. These complaints allege that Continental and Great Lake constitute a "single integrated business enterprise and/or single employer" or that they are "alter egos" of one an- other, and these complaints further allege that the Re- spondents have committed various violations of Section 8(a)(1) and (3) of the National Labor Relations, Act. One such allegation involves the discharge of Dailey on 27 August. Other allegations include threats, interrogations, and an unlawful solicitation of grievances before ]Dailey's 1 All dates herein are between 1 June 1984 and 31 May 1985 unless otherwise specified. 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discharge. Still other allegations concern' conduct occur- ring after Dailey's discharge, including threats and an in- terrogation regarding charges filed and testimony given under the Act, an unlawful withholding of a 1984 Christ- mas bonus, and an unlawful mass layoff of Continental employees on 31 January. Respondents timely filed an- swers that deny that they constitute a single employer, or alter egos, under the Act, and they further deny all alleged violations of the Act. These matters were tried before me at the original hearing. After the original hearing, the General Counsel, the Charging Parties, and the Respondents submitted briefs that have been carefully considered.2 On 12 December International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW) (the Union) filed the charge in Case 7- CA-25305. The complaint on that charge issued on 24 January 1986. On 31 January 1986, the Union filed the charge in Case 7-CA-25450, and the complaint on that charge issued on 6 March 1986. The latter complaints allege the facts that on 24 August 1984 the Union won a Board-conducted representational election and that 10 December 1985 the Board certified the Union as the col- lective-bargaining representative of the production and maintenance employees of Continental. These latter com- plaints further allege that, by virtue of the certification, the Union is the exclusive' collective-bargaining repre- sentative of the production and maintenance employees of Great Lake, as well as those of Continental, because those two corporate entities are, as had been alleged in the first set of complaints, alter egos or they constitute a single employer. These latter complaints further allege, inter alia, that on 15 November 1985 the two corpora- tions laid off Continental's employees in violation of Sec- tion 8(a)(3) of the Act, that on the same date Continental ceased operations, and that after the 10 December 1985 certification Great Lake refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Great Lake duly filed answers to these latter complaints, but Continental did not. After motions to further consoli- date cases and reopen the record were filed by the Gen- eral Counsel, the hearing was reopened on 1 April 1986, as previously mentioned. At the beginning of the re- opened hearing, Counsel for the General Counsel repre- sented that the Union had submitted a request to with- draw all 8(a)(5) charges; he further moved to dismiss all such allegations, and he announced that the General Counsel, the Charging Parties, and Great Lake had en- tered into a written settlement agreement.3 The settle- ment agreement provides for a Notice to Employees, backpay for certain individuals, and further provides: The parties agree that this Settlement Agreement disposes of all allegations of these cases except for [sic] the discharge of Kenneth Dailey, the alleged violations of Section 8(a)(1) which predate Mr. bai- ley's discharge and the allegation that Continental 2 The General Counsel has moved to strike certain extra record factual representations in Respondents' brief. Respondents did not oppose, and the motion is granted. a No one appeared on behalf of Continental at the reopened hearing and Continental is not a signatory to the settlement agreement. Radiator and Great Lake, Ina., are alter egos and/or a single employer as they have any bearing on the Dailey discharge or remedy therefore. The parties agree that in deciding these issues the admin- istrative law judge may base his decision on the entire record in this proceeding; however, the Re- gional Director and General Counsel will not seek any remedial provisions [for] the conduct expressly disposed of by settlement herein provided compli- ance is maintained. I approved the settlement agreement at the reopened hearing; therefore, the only violations for which remedy shall be ordered are those specified in the above-quoted paragraph of the settlement agreement, to wit Dailey's discharge and those violations that occurred before it. However, it is necessary to consider the violations that occurred after Dailey's discharge because they demon- strate the animus possessed by Continental's chief execu- tive, Karl Geiger. As I find, Continental withheld the 1984 Christmas bonuses from the most active prounion employees, and it conducted a mass layoff of prounion employees in February 1985. Furthermore, it is factually undenied that Geiger threatened and interrogated em- ployees, in the clearest of terms, with reprisals because they had filed charges under the Act. These outrageous unfair labor practices bespeak of deep-seated antiunion hostility and willingness to violate the law. Respondents did not develop this animus overnight, and it would be fatuous to ignore these violations that occurred subse- quent to Dailey's discharge in attempting to determine the real reason for that discharge. Therefore, although an order covering them will not issue because of the settlement agreement, the proven4 postdischarge violations will be considered to shed light on the issue of Continental's motivation in its discharge of Dailey. On the record as a whole, including my observation of the witnesses and on consideration of the briefs submit- ted, I make the following FINDINGS OF FACT 1. JURISDICTION Although Continental is no longer operating and, ac- cording to documents submitted by Great Lake,5 is in receivership, it has not been dissolved according to any evidence presented herein. Therefore, Continental's con- tinued existence is presumed. 4 At the reopened hearing, no evidence was offered regarding the 15 November 1985 layoff or any other issue 5 Continental was created in 1976, Great Lake was incorporated in November 1984. Both entities are Michigan corporations that have oper- ated from facilities in Detroit. Respondents manufacture (or have manu- factured) and distribute (or have distributed) automobile radiators and re- lated parts from these facilities During 1985 each Respondent received gross revenues in excess of $1 million and purchased directly from suppli- ers located outside the State of Michigan goods and materials valued in excess of $50,000 Therefore, both Respondents are now, and have been at all times material herein, employers engaged in commerce within' the meaning of Sec. 2(2), (6), and (7) of the Act. CONTINENTAL RADIATOR CORP. 239 H. THE LABOR ORGANIZATION INVOLVED The Union, is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background and supervisors involved Karl Geiger owns 65.625 percent of the stock of Con- tinental Radiator. The remainder of the stock is held thusly: Harold Nichols holds 6.25 percent Ron Wei- gand6 holds 3.125 percent; Martin E. Wal holds 6.25 percent; and Richard DeSiro holds 18.75 percent. When Continental began operations in 1976, it utilized a build- ing that it owned on 17th Street in Detroit In January 1984, when the 17th Street facility was in a state of ad- vanced decay, according to the testimony of Geiger, Continental moved into a building on Beard Street, De- troit, which is 2 miles from the 17th Street location. Continental did not buy the Beard Street building; it leased it from its sole owner Karl Geiger. y its terms, the lease was to terminate on 1 February 1985. Continental employed about 25 employes at Beard Street until 31 January at which time it laid off 23 of its 26 employees. Continental returned to the 17 h Street lo- cation, leaving the Beard Street building to Great Lake. Supervisors of Continental while it was located at Beard Street were Geiger, the president; Harold ichols, vice president; and Donald Mooney, plant -supervisor and sales representative . The complaint alleges, ai d Respond- ents deny, that, Franklyn Reed, marketing irector and administrative assistant to Geiger , was a s pervisor of Continental within Section 2(11) of the Ac . Employee Luis Luciano testified that in November 198 Reed gave, him a written warning notice , but the notice was not placed into evidence, and there is no evide ace of who authorized the notice. Two other employees, Adolph (Blackie) Seledon and Policht testified that hey consid- ered Reed; to be a supervisor, but the bases for their con- clusions were not elicited, except that Poli ht testified that she once asked Reed to implement arise for her; however, the raise had previously been promised by Geiger. During ,the campaign preceding to the 24 August election Reed did hand,out Respondent's anti 'on prop- aganda, but there is no evidence that he was performing anything other than a delivery function. Therefore, it ap- pears from this record that Reed performed no more than ministerial administrative functions for Continental; that is, there is no evidence that he was vested with any of the supervisory indicia enumerated by Section 2(11) of the Act, and I find and conclude that the Ge eral Coun- sel has failed to prove that Reed was a supervisor or agent within Section 2(11) or (13) of the Act. c Employee witnesses referred to Weigand as "Wagon-head" at the hearing. ' Walter Garson, Jr & Associates, 276 NLRB 1226 (1985), relied on by the General Counsel is distinguishable In that case the disputed agents also served as a conduit for dissemination of the employer 's propaganda, but in doing so they conducted systematic group meetings with employ- ees, the first of which was attended by an owner of the employer. In 2. Alleged predischarge violations of the Act Employees of Continental began distributing authoriza- tion cards on behalf of the Union in early July. An orga- nizing committee was formed, and employee-members wore buttons identifying them as such. Employees who were members of the organizing committee were Sharon Osborne, Seledon, John Kuzdzal, Luciano, Ronald Sheri- dan," and dischargee Kenneth Dailey. On 7 July the Union filed a petition to represent Continental 's produc- tion and maintenance employees. Pursuant to this peti- tion an election was scheduled for 24 August. Seledon testified that about 3 weeks before the election he and employee Alfredo (Freddie) Aponte were work- ing together on a radiator . Nichols ^ approached Aponte and stated that if the Union were voted in "some of the people making $5.50 an hour they will be having their wages cut and the people [who] . are [making] less they won't lose anything if the Union got in." Seledon testi- fied that -at the time he was making $5.50 an hour. Nich- ols did not testify.9 Seledon further testified that a week _ later he and Nichols were talking on the shop floor, when he re- marked to Nichols that Continental would have to nego- tiate with "the people" if the Union were selected. Nich- ols replied, that Geiger would negotiate, but, "Mr. Geiger would never come to an agreement with you people." Osborne testified that a week or two before the elec- tion she was at her machine when she was engaged with Nichols in a conversation. She testified that Nichols-was speaking against the Union and stated: ... that if the people went out on strike, they would not have a job. The ones that would come to work would be continually working. And the ones out on the street would not be having a job, be- cause there is no UAW in the shop at that time. . . . He also told me that if they wanted to, him and, I guess, Mr. Geiger, wanted to take the shop and move it down South. That they could do that for cheaper wages for, people to work . . . if the UAW got in that they could do that very easily. Kuzdzal, who is of Polish descent, testified that a week before the election Reed called him to the lunch- room at a time when no one else was present . According to Kuzdzal, Reed asked why "I am starting this Union stuff'? Kuzdzal replied that he had not started it but he was supporting the Union even though he was no longer on the organizing committee. Kuzdzal replied that it made no difference because "unofficially [ was still' sup- porting the Union." Reed further asked Kudzal if he knew what happened to union supporters in Poland; Kuzdzal replied, "No," andReed replied, "they locked such circumstances the Board held that the individuals in question were "clothed by Respondent with the apparent authority of its agents and agent with respect to personnel matters and particularly with respect to the Union organizing efforts." Such is simply not the case here. 8 Sheridan quit Continental in October. 9 Aponte did not testify either, Seledon testified, without objlection or contradiction, that Aponte is now in the armed services. 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD them up." (Before this incident Kuzdzal had worn T- shirts that bore the legend "Solidarity" in Polish.) Reed did not testify, so Kuzdzal's testimony is unrebutted. Al- though I found Kuzdzal credible it is to be noted that, as I have held, above, the General Counsel failed to prove that Reed was a supervisor of Continental. , Kuzdzal further testified that about 2 days after the preceding conversation with Reed, he was called to the office by Nichols. At that time according to Kuzdzal, "he asked me why I am doing this? Why didn't I come speak to him first?" Kuzdzal did not reply. Nichols then asked if Kuzdzal knew that his wife, a worker in the office, had received certain benefits from Continental. Kuzdzal replied that he did. Nichols did not testify, and I find Kuzdzal's testimony of Nichols' questioning to be credible. On the day before the election Geiger gave a speech to 'an assembly of all employees in the lunchroom. Ac- cording- to Dailey, Kuzdzal, and employee Kenneth Heidel, Geiger told the employees that they did not need a union and that they could come to management with their problems and it would take care of them. Although Geiger testified, he did not deny the statements attrib- uted to him by these three employees whom I found credible. 3. Discharge of Dailey The complaint alleges that Continental discharged em- ployee Kenneth Dailey in violation of Section 8(a)(3) and (1) of the Act. Continental answers that none of its supervisors or agents knew of Dailey's union activities and that Dailey was discharged for cause. Dailey was hired by Respondent on 11 June and dis- charged on Monday, 27 August, the first workday after the Friday, 24 August, election. Dailey was an unskilled worker, 26 years of age. He was assigned to learn to solder radiator corners under the tutelage of Seledon. Se- ledon held no title but did train one or two new employ- ees a year for Continental. In addition to soldering, Dailey, on two occasions, was assigned the job of cutting brass tubes to length for employees who placed them into the radiator cores. Before his last day of his employ- ment Dailey was not warned or otherwise disciplined for any offense. On 11 July Dailey signed an authorization card for the Union. Thereafter he began distributing literature for the Union and solicited support for it among the other em- ployees. He wore two union buttons, At first he wore a button that was 1-1/4 inch in diameter that bore the legend "JOIN-VOTE UAW." Later, after he joined the organizing committee, Dailey wore a button that was 2-1/2 inches in diameter that said "Organizing Commit- tee" at upper and lower arcs in addtion to the legent "UAW" in the middle. 1 ° Respondent called two supervi- 10 Apparently Dailey did not wear a union button every day; Conti- nental produced a photograph of Dailey and other employees as they lis- tened to Geiger's speech mentioned above, and Dailey did not have a union button on at that time. However, this fact does not require the con- clusion, advanced by Continental, that Dailey never wore a union button sors to testify about the Dailey discharge; these were Geiger and Plant Floor Supervisor Don Mooney, both of whom denied seeing the buttons and further denied any knowledge of Dailey's union activities or sympa- thies. The General Counsel presented the following evidence to support his contention that Respondent did know about Dailey's union activities: Employees Luis Luciano and Seledon testified that they saw Dailey wearing the buttons from time to time. Dailey further, credibly, testi- fied that during the campaign, on an occasion when Mooney was handing out Respondent's campaign litera- ture, he told Mooney that he was for the Union. Finally, Sharon Osborne, who was employed by Continental at the time of the hearing, testified that about 2 weeks before the election she and Continental's vice president, Nichols, had a conversation about the amount of a raise Osborne had recently received. The conversation drifted over to the topic of the Union. According to Osborne: .. , he also said to me that he wanted to know if I wanted Ken-loudmouth Ken and punk Ron [Sheri- dan] and John Kuzdzal, or however you say his last name, to be my representatives for the UAW. And I said, I happened to be on the committee also. , . . I said, "Who is Kenny?" and he says, "The boy that works in the back with Blackie [Seledon] with the red hair." Nichols did not testify; therefore, this testimony stands unrebutted, and I find it credible. Dailey, who has red hair, t 1 was working with Seledon at the time. Dailey was discharged at the end of the workday on 27 August. Dailey's timecards reflect that he was late on the following days immediately preceding his discharge: Monday, 20 August, 3 minutes; Tuesday, 21 August, 1 minute; Wednesday, 22 August, 3 minutes; Thursday, 23 August, 7 minutes; Friday, 24 August, 14 minutes; and Monday, 27 August, 20 minutes. Mooney testified that when Dailey arrived at work on 27 August he asked the employee why he was late, but Dailey did not answer. Mooney told him, "Look, this is the third time in a row. Consider this a warning." Mooney further testified: At the end of the day, I called him in the_ office and I told him, I said, "Kenny, you are just not working out. You are not the man I am looking for. If you need to use us for a reference, feel free." And that was that. He turned and left. In addition to this, Dailey credibly testified that he asked Mooney if there were not another reason, but Mooney just repeated his statement that he was not the man he (or Continental) was "looking for." The General Counsel contends that Dailey was dis- charged because of his union activities and that Respond- ent selected Dailey to inflict retribution on the employ- ees for having selected the Union as their collective-bar- gaining representative in the election conducted on the 11 In fact, when Respondent's witness employee Leona Gieraga testi- fied, she once referred to Dailey and stated, "[W]e called him `Red."' CONTINENTAL RADIATOR CORP. Friday before the Monday on which Dailey was dis- charged. Respondent defends the allegation on the dual bases that it did not know of Dailey's union activities and that Dailey was discharged for several causes. The causes enumerated by Respondent are: (1) tardiness and absences; (2) walking around and talking when he should have been working; (3) being "goofy" as one employee witness described him; (4) hitting a female fellow worker; and (5) unsatisfactory work performance. Of the 55 workdays between 11 June and 27 August (inclusive) that Dailey was on the payroll he was late for 12 of them, or 22 percent of the time. His timecards re- flect that he had only one tardy arrival between 11 June and 5 July; thereafter, he was late for periods of 5 min- utes or less on 27 July and 1 , 4, 8, 14, 20, 21, and 22 August , Then, as previously noted, -he was 7 minutes late on 23 August, 14 minutes late on 24 August, and 20 min- utes late on 27 August. Respondent submitted into evi- dence Dailey's "Daily Attendance Record" that is a cal- endar for the year 1984 on which tardiness and absences are recorded. The only tardy arrivals recorded on this document are the last three. This record and the time- cards further reflect that Dailey was absent for reported illness on 2 and 9 August. Mooney testified that on 2 August Dailey appeared "in bad shape" and alcohol could be smelled on his person. Dailey denied that he had been drinking or that alcohol caused his illness that day; Dailey credited his temporary illness that morning to having inhaled acid fumes at the plant as he was working. Mooney excused Dailey for the day . No other employee was affected by fumes that date, and I find Dailey's story about the fumes absolutely incredible on this point. In support of its defense that Dailey was discharged, in part, because he chronically walked around the shop, talking to other employees , Respondent called Mooney and employees Herminio Murrias, Laurie Rajnish, and Leona Gieraga. Mooney testified that he regularly had trouble with Dailey's being away from his work station and either talking to other employees or just sitting and loafing. Mooney testified that he had wanted to fire Dailey much earlier, but an "advisor" (apparently a nonlawyer) told him not to do so because it would "look bad" during an election campaign. The consultant ad- vised Mooney to keep notes on Dailey and other em- ployees, which Mooney did. Nine notes on Dailey were received in evidence. The first one is undated but ac- cording to Mooney would be for mid-July; it states that he assigned Dailey to help Alfredo Aponte to do a job, but Aponte had to do it while Dailey watched. The second, dated ' 16 July, states: "not doing anything-at 4:00-was sitting on his ass." The third, dated 24 July, states that "Mino" [Murrias] complained that "all Ken does is walk around." The fourth, dated 2 August, states tha Dailey "said he is sick. Had to go home, worked 1 hour (hungover)." The fifth, dated ' 8 August, states that Mooney told Dailey "to go cut tubes for CT [large radi- ators] . . . goofing aroung all the time." The sixth one is undated, but would apparently have been in August; it states: "Had to tell him again about not working. Had him cut tubes again. Told Blackie [Seledon] and Freddie [Aponte] why." The last three notes refer to his last 241 three cases of tardiness, including the one on the day of discharge, 27 August. Mooney testified that employees Murrias and Santos Luciano had, on occasion, com- plained to him that Dailey was not working while they and other employees were. Mooney further testified that in order to put Dailey in a position where he would have to work, and could be seen by anyone in the shop, he assigned Dailey to the work of cutting brass tubes for the employees who were placing them in the radiators. Mooney did not warn Dailey that anything would happen to him if he did not stop wandering around.12 Murrias did testify that he had seen Daley walking around, but he also testified that Dailey walked around, "about the same" as the other employees . Murrias flatly denied that he ever approached Mooney about Dailey's not working, and I credit Murrias on this point. As far as "complaining" to Mooney, the most Murrias testified to was that "Yes, he [Mooney] asked me if he [Dailey] was working or walking around. I would say sometimes he walk[s] around." Santos Luciano did not testify. Con- trary to the sixth note in Mooney's file on Dailey, Sele- don flatly, and credibly, denied that Mooney once told him "why" Dailey had been assigned to cut tubes. Employee Laurie Rajnish testified that she worked 15 feet from Dailey's work station and that "he goofed off most of the time . . . most of the day he really didn't work. He went talking with other people ." When asked what Dailey's job was, Rajnish testified "he really never hardly did the same thing . . . he was always at a differ- ent job." When asked what Dailey's job was, Rajnish tes- tified "he really never hardly did the same thing . . . he was always at a different job." When asked specifically if she had ever seen him soldering with a torch, Rajnish re- plied, "No." It is undisputed that Dailey 's regularly as- signed job was soldering with a torch , and only on two occasions was he assigned to something else, tube-cut- ting. Gieraga, who worked in assembly with Rajnish, was asked what she saw Dailey doing the most. She replied: Well, he was back by the soldering and then-okay, if they didn't have no work down there, Harold [Nichols] sent him over to cut tubes for us or what- ever, and like I says, he had the mouth. He would be talking and goofing off all of the time. Gieraga further testified that although Dailey was usual- ly assigned to soldering: - [I]f there wasn't no job for him, he was assigned to cut tubes for our department or whatever, and he would be cutting and then he would stop then and talking or whatever, and going to other people talk- ing with them and that stuff. Seledon, with whom Dailey regularly worked, flatly denied that Dailey walked around the plant and talked to other employees when he should have been working. Se- ledon testified that when there was not enough soldering work to keep Dailey busy, he would go to Nichols and 12 Mooney did credibly terstify that once when he ordered Dailey to go cut tubes, he replied, "I know, walking around talking " 242- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ask that supervisor to find something for Dailey to do. Dailey was not asked if he did, in fact, walk around and talk to other employees when he should have been work- ing. Dailey did deny being ever spoken to by any member of management about his work performance or walking around; he specifically denied that he was ever told that he was being assigned to cut tubes because he had been walking around. In support of its contention that Dailey was "goofy," a term employed by witness Gieraga, Respondent relies on Gieraga's explanation of her use of that term which was: "I stayed away from him. I didn't like to associate too much because he was often in trouble. He was someone you can't get along with." Rajnish testified that she was twice struck by Dailey. The first time was in the early weeks of Dailey's em- ployment when Dailey struck her on the arm. The second time, according to Rajnish, was when she was standing in line waiting to vote in the 24 August Board election. According to Rajnish, Dailey asked her if she was for the Union or not; when she replied that she was not, Dailey cuffed her on the back of the head. Gieraga testified that she witnessed the latter incident. Dailey denied both incidents; however, I credit Rajnish and Gieraga. There is no evidence that any of Continental's management knew of either incident before Dailey was discharged. In support of its contention that Dailey was dis- charged for unsatisfactory work performance, Respond- ent relies on Mooney's testimony that: I don't think he ever learned it. I have been doing this for 18 years. I think you get a pretty good idea if somebody is going to catch on or not. He still could never run a torch. It took him two hands. I mean he would have to set it down and turn it on -and hold it instead of using it like a pistol. He never caught on to it. When asked to compare Dailey with other employees who have trained for 78 days to learn soldering, Mooney replied: Terrible. I mean, I have seen guys that altered the torches so they could get it to work with one hand ..., . This guy -never caught on. Seledon, in his direct testimony, stated that Dailey was a "good" worker and by that he meant that Dailey "wasn't- slow picking up-picking up doing the work." Seledon testified- that by this he meant that Dailey was not slow learning how to do the work. However, while he was on direct examination, Seledon vacillated. For ex- ample, Seledon was first asked on direct examination what kind -of worker Dailey was, and Seledon replied, "A good worker." When asked to be more specific, Sele- don replied: - He wasn't that good, but he knew what to do. He couldn't control the torch like I do. He couldn t adjust the flame.. . . He would set the flame, but he could do the job. On cross-examination, Seledon was asked what he meant; he responded: Sometimes I had to-I had to go over some of the job because it was lumpy; and to smooth it out or I had-he left a hole in the bottom; we had to fill it in. Or I told him to fill that in. Too much solder or not enough solder on the corners. And when he first started out, it didn't sweat all the way through; and I showed him, now just one or two, three times; I would say maybe a dozen times I showed him how to sweat it in to get into the plate. It was good and it wasn't-it wasn't 100 percent. I would say it was 75 percent okay. It was good enough to send out to the customer. . . . What I mean by 100 percent, the job being good, all even, no runs or no gobs of solder in between the fins or the tubes. Seledon denied that he told Mooney or any other super- visor that he was having to correct approximately 25 percent of Dailey's work. Dailey denied that he was ever spoken to by Mooney or any other supervisor about pro- ducing poor quality work, and there is no testimony to contradict this statement. In fact, Mooney did not testify, that he ever inspected any of Dailey's work. 13 4. Alleged postdischarge violations of the Act a. Background (1) Election and petition for new election At the 24 August 1984 election the vote was 16 for the Union, 15 against, and no votes were challenged. Conti- nental filed objections to conduct affecting the results of the election. A hearing on the objections was conducted on 18 and 19 October. A hearing officer's report issued- on 6 December; it recommended that the Board overrule Continental's objections. Continental filed exceptions to the report on 27 December. In an unpublished decision that was issued by the Board 10 December 1985, the Union was certified as the collective-bargaining repre- sentative of Continental's production and maintenance employees. Within the week after the 24 August election 16 em- ployees signed a petition addressed to the National Labor Relations Board asking that the election be set aside because of threats to employees and the inability to read English or Spanish of two employees (and who therefore could not have understood the ballot question). The employees of Continental who signed the petition were Eric Klump, Santos Luciano, Reinaldo Santana, John Castiglione, Herminio Murrias, Juan Santana, Laurie Rajnish, Deborah McLeod, Marie Yerger, Nick Perelekos, Jeffrey Washelewski, Carlos Santana, Bryan Lang, Wilfredo Aponte, Leona Gieraga, and Robert Dziuban. This petition was presented to Geiger, but 13 Dailey received a 25-cent-per-hour wage increase after his first 30 days of employment with Continental. Mooney testified that he was not responsible for giving this raise, but he would have. gone along with it because Dailey had performed satisfactorily for the first few weeks of his employment CONTINENTAL RADIATOR CORP. there is no evidence that it was presented to the Board's Regional Office. Employees who did not sign the peti- tion were Seledon, Sheridan, Luis Luciano, Charley Aponte, Kenneth Heidel, William Heidel, Kuzdzal, An- thony Lucaj, Osborne, Larua Policht, Jeffrey Toomer, and Judy Vargas. (2) Creation of Great Lake and its relationship to - Continental In November 1984, while Continental's objections to the 24 August election were pending, Geiger incorporat- ed Great Lake, Inc. with himself as the president and sole owner. The business of Great Lake was to assemble complete radiators and distribute them to retail outlets, whereas Continental Radiator Corporation had primarily built radiator cores for other companies to assemble into complete radiators, although Continental had done some distributing. Great Lake employed about six employees between its creation in November 1984 and 31 January 1985. As previously noted, Continental Radiator Corpora- tion was created in 1976, and Karl Geiger owns 62.625 percent of the stock. Great Lake, Inc. was incorporated on 30 November 1984.14 The first three to five employ- ees of Great Lake were trained at the 17th Street loca- tion that Continental had abandoned in January 1984. All the jobs they learned to do there is unclear, but some employees were trained to do the soldering of radiator cores. Between November and 1 February, some of the Great Lake employees also worked at the Beard Street address. On the day after the 31 January mass layoff of the Continental employees, Great Lake began operating out of the Beard Street facility. The Great Lake employ- ees who had been training at 17th Street were then 'trans- ferred to the Beard Street. Additionally, by 6 February all employees who had signed the petition to set aside the 24 August union election victory (and four who had not Seledon, Policht, Charley Aponte, and Lucaj) were transferred to Great Lake's payroll and continued work- ing at Beard Street. Also Great Lake hired 3 new em- ployees so that by 6 February, Great Lake had a com- plement of 26 employees, exactly what Continental's em- ployee complement had been at Beard Street before the 31 January layoff. Great Lake purchases radiator cores from Continental Radiator (who, after May was producing, cores at the 17th Street address), and also makes some cores itself. Great Lake also purchases other radiator parts such as upper and lower tanks and channels15 and assembles them into complete radiators. It also produces radiator kits that are boxes which include the core and other parts necessary to assemble a complete radiator; these are purchased (for less cost than an assembled radiator) by 14 Heinz Geiger, brother of Karl, operated a proprietorship called Great Lakes Industries from 27 August 1983 until 21 March 1984 when he filed with the State of Michigan a "Certificate of Discontinuance of Business Under An Assumed Name " When Karl Geiger desired to incor- porate another business, he attempted to use the name that Heinz had abandoned, however, because there was then another Michigan corpora- tion with a similar name, he could not Therefore, he chose the name "Great Lake [singular], Inc," instead 15 These are conduits on the sides of a radiator 243 radiator and automobile repair shops for assembly by the purchasers' employees. Sixty-five percent of Continen- tal's 1984 customers were customers of Great Lake, Inc. in 1985. Great Lake also has become a distributor for General Motors radiators. In 1984 Continental distribut- ed a few items that are purchased rather than manufac- tured, but on a small scale compared with what Great Lake began doing after the layoff of the Continental em- ployees. Continental had two ovens for the finishing of radia- tors. One was old and in need of repair; that is the one Karl Geiger sent over to the 17th Street facility when he laid off the Continental employees at Beard Street. After the oven was repaired in May, as described below, Con- tinental began recalling employees (who were not al- ready working at Great Lake) to the 17th Street facility. The core-production business of Continental at 17th Street has steadily atrophied, so that at the time of the original hearing Continental's employee complement was down to six employees. Geiger testified that the reason for the removal of Continental from the Beard Street location to the 17th Street location was "efficiency." Why it was more effi- cient to set up a new corporation, Great Lake, for the purposes of handling part of the core production and all the new distribution function, at the same premises, was not explained. The only expense Continental reduced by the move was rent. Continental's lease at Beard Street expired on 1 February. Geiger, who owned the building, chose not to renew Continental's lease (or, at least, chose not to renew it at the same rate). Therefore, Continental Radiator was compelled to return to the 17th Street building that it owned. However, the building, as previ- ously mentioned, had been abandoned in early 1984 be- cause it was dilapidated. What repairs to the 17th Street building were required to make it useable and the cost of those repairs are, not disclosed in the record. In addition to Karl Geiger, president, the officers of Continental Radiator at all times herein have been Harold Nichols, vice president, Martin E. Wall, secre- tary-treasurer, and Ronald Weigand, assistant secretary- treasurer. When Continental was moved out of the Beard Street location, Nichols and Weigand remained with Great Lake as supervisors. Mooney went of the 17th Street facility to, continue supervising Continental Radia- tor employees there. There is no evidence that the employees newly hired by Geiger at Great Lake had any skills not possessed by those who were laid off by Continental; that is, the work at both places was ' unskilled soldering, assembly, and shipping and receiving work. b. Monetary payments at Christmas 1984 Of the 26 employees who were employed by Conti- nental during the week before Christmas 1984, 2216 re- ceived monetary payments from $40 to $200. The four employees who did not receive any payments were John Kuzdzal, Luis Luciano, Adolph Seledon, and Sharon Os- 16 See G C Exh 17, and note that listed employees Calles and Ortiz were not employed by Continental at Christmas 1984. 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD borne, none of whom signed the petition for a new elec- tion, and all of whom were the remaining 17 members of the organizational committee. The General Counsel 'con- tends that- the four employees who did not receive any cash payment's at Christmas 1984 were discriminated against in violation of Section 8(a)(1) and (3) because they were members of the' organizing committee and be- cause they did not sign the petition to overturn the 24 August election. Continental contends that the monetary awards were personal gifts from Karl Geiger and not benefits of the'employment relationship. 19 In 1983 Continental employed 20 employees at Christ- mastime; each of these 20 received monetary awards from $25 to $175.20 Geiger testified that he took $2030 of his own money and gave it to the company treasurer to cover checks that were issued by Continental for the 1984 Christmas payments. Geiger testified that he did this because the employees would have had a easier time cashing a check from Continental than they would have had cashing his personal checks. Geiger testified that no tax deduction was made on Continental's 1984 taxes for these payments. When Geiger was asked if any deduc- tions were made for the 1983 Christmas payments, he stated that he could not remember. When asked why not all of Continental's employees received the gifts Geiger replied: I usually give a gift to people who reciprocate, who I expect another gift [from] or who I expect at least a Christmas card from. When asked specifically why Kuzdzal did not receive a cash Christmas gift, Geiger replied that he did not expect to receive a Christmas card or gift from Kuzdzal; Geiger acknowledged that Kuzdzal did receive a cash gift ($85) in 1983. When asked why Osborne did not receive a Christmas cash gift, Geiger replied, "I can't tell you the reason, no." When asked why Luis Luciano did not get a 1984 Christmas cash payment, Geiger replied he did not know Luciano; Luciano received $20 at Christmas 1983. Osborne testified that she got a $25 cash payment in 1983. At the time Nichols `told her that she would have received more money if she had been employed longer but she then had only been employed for 3 months. In 1984, when she had not received any cash payment for the year, she approached the office secretary to ask the reason. Apparently the secretary relayed this question to Nichols,because later in the day Nichols approached Os- borne at her machine. According to'Osborne: i'! By Christmas 1984, Dailey had been discharged, and Sheridan had quit is They and all other employees of Continental received $25 gift cer- tificates redeemable at a local department store. Continental also gave out these certificates to all employees at Christmas 1983 is Although this issue is encompassed in the 1 April 1986 settlement quoted above, it is necessary to consider this allegation as it bears on the issues of animus that may have affected the decision to discharge Dailey and the remedy for that discharge; that is would Dailey have received a cash award at Christmastime 1984, but for his unlawful discharge, as found herein 20 Compare G C Exh. 7, which lists seniority dates with G C. Exh 17, which lists the payments made in 1983 and 1984, note that Wilfredo Aponte,,Calles, Kenneth, and William Heidel, Lucaj, and Pohcht were not employed by Continental at Christmas 1983. Mr. Nichols told me that, "this piece of paper would explain everything on what you people are going to be getting. From now on, you will have to associate with the Union people, ' your Union repre- sentatives." And that, "We are not going to be dish- ing out any more money." Osborne testified that she did not read the paper which Nichols gave her at that time. Kuzdzal testified that when he did not receive a Christmas payment he asked Nichols the reason. According to Kuzdzal, Nichols re- plied "company discretion" Nichols did not testify and this testimony by Osborne and Kuzdzal was credible, c. Layoff of 31 January On 31 January the following notice to all Continental employees was posted: CONTINENTAL RADIATOR CORPORATION To: All Employees Due to circumstances beyond our control, we are forced to move our operation to 17th Str., Detroit We are sorry to announce that during this transac- tion the following employees , effective January 31, 1985, will be laid off: Name Hire Date Marie Yerger 4-23-79 Nicholas Perelekos 7-19-82 Jeffrey Toomer 6-18-79 Luis Luciano 9-1-82 Deborah McLeod 9-3-79 Charley Aponte 10-1-82 Reinaldo Santana 1-8-80 Juan Santana 6-20-83 John Castiglione 2-5-80 Laurie Rajnish 6-21-83 Carlos Santana 5-27-80' Sharon Osborne 8-3-83 John Kuzdzal 9-2-80 Kenneth Heidel 1-19-84 Hermino Murrias 6-30-81 Judy Vargas 2-1-84 Jeffrey Washelewski 7-13-81 Laura Policht 2-1-84 Santos Luciano 11-9-81 Wilfredo Aponte 1-25-84 Adolph Seledon 5-11-82 William Heidel 6-19-84 Anthony Lucaj 6-22-84 Hopefully we can conclude this project within a few weeks. Management will do their best to make your layoff as short as possible. Recall will be by seniority and Qualification_, If you have any ques- tions during your layoff feel free to call 963-0855. Don Mooney will gladly answer your questions. Rather than "a few weeks," there was no recall by Con- tinental until May. Three employees of Continental were not laid off on 31 January. They are Leona Gieraga, CONTINENTAL RADIATOR CORP. 245 Robert Dziuban, and Eric Klump, each of whom was senior to the employees listed above. Within the week following the layoff the following Continental employees were transferred to the payroll of Great Lake: Gieraga, Dziuban, Klump, Yerger, McLeod, Reinaldo Santana, Castiglione, Carlos Santana, Murrias, Santos Luciano, Perelekos, Charley Aponte, Juan Santana, Rajnish, Lucaj, Policht, and Seledon. Additionally, Washelewski was first transferred to Kar Tool, another company owned by Karl Geiger, then later to Great Lake. All of these employees, except Seledon, Charley Aponte, Po- licht, and Lucaj had signed the petition for a new elec- tion that was given to Geiger, as mentioned previously. The remaining employees were not employed by either Respondent for 5 months when Continental reopened, on 17th Street, in May; these were: Osborne, Vargas, Ken- neth and William _Heidel, Luis Luciano, and Kuzdzal, none of whom signed the petition and all of whom are alleged to have been laid off in violation of Section 8(a)(3) and (1). Policht, who did not sign a union card and did not engage in any other union activity, testified about her transfer. Policht testified that about quitting time on 31 January, the day the above-quoted layoff notice was posted, Geiger approached her at the fin machine that was her regular workplace. According to Policht, Geiger stated: "I am always looking for good workers. Don't go to the unemployment office. Maybe I have a job for you at Kar Tool." Geiger told her to come to work on Monday morning, 4 February, and talk to Nich- ols. Charley Aponte was standing near Policht and Geiger at the time. Aponte asked Geiger if he could come to work on Monday also; Geiger told him to report the next day. On 4 February Policht reported to the Beard Street facility (which still had, an outdoor sign stating "Continental Radiator"), and walked,through the employee entrance. As she walked through the employee entrance toward the office she noticed that all employees were working at their same jobs except "a few." When she reached the office she spoke to Nichols. 'Policht testi- fied that Nichols told her: He said that Continental had not rented the building or owned the building, and that they were diversified, I think was the word he used. And that it was Great Lake now. And I had a choice of either staying on the layoff or working for Great Lake. And I asked him if I would be doing the same job. And he said yes.... And I asked him if I went to the other building later, because on the notice it said "a few weeks layoff," I said, "Would I be running doing-doing the same , thing?" And he said, "Yes." and I said, "Would you have a fin machine there too"? And he said, "Yes." And he said, "Yes." And I said, "And one here"? He said, "Yes." And I said, "Well, we would be doing the same thing there as here"? And he said, "Yes.',' And he asked me if I wanted to start working. I told him, "Yeah, I would work for Great Lakes."' and he said, "Well, what about later"? Antid I said, well it depended what the rest of the--I seen that almost all the employees were at the same place. And I couldn't decide what to do- to go to-I [start] work here and then I will see where most of the friends and employees go and I will go with them. I asked him if the amount of pay was the same. He said, "Yes." And if the benefits were the same; he said, "Yes." And the seniority; he said, "Yes." And I said, "if I work for Great Lakes, I would still have my seniority from Continental"? And he said, "Yes." Nichols asked Policht when she could go to work, and Policht replied that she could go to work right then. Nichols asked if she was a friend of Osborne and Policht replied, "No. We had talked together so much at the ma- chine, we really never talk [to] each other after work." Nichols replied: "Good." Policht then went to work at the same fin machine job that she had worked for Conti- nental. The only difference in the operation was that she was required to operate all four fin machines, in series apparently, whereas before she and Osborne had operat- ed them together. At some point during the week Nich- ols approached her and stated that another employee would be hired to assist her. Within the week employee Diane Hernandez was hired to work on the fin machines also. Policht continued in this job until 29 May `when she received a telegram to report to work for Continental at the 17th Street facility. She was given a job as radiator assembler with the same benefits, rate of pay, and senior-, ity. She' reported to Mooney who had been her supervi- sor at Continental. Nichols did not testify; Geiger testi- fied, but contradicted none of this testimony of Policht. Employee organizing committee member Luis Luciano testified that on the afternoon of the layoff, 31 January, he asked Nichols if he could come back the following day to pick up a few of his personal things; Nichols re- plied that Luciano should' get the items now so that "I wouldn't have to be coming back again." Geiger testified that Washelewski begin working for Kar Tool shortly after the layoff of the Continental Ra- diator employees, but "he applied for a ,job," Whether Washelewski was asked to apply, for a job, as was Po- licht, is not disclosed in the record. There is no evidence that any other employee was invited to apply for jobs with either Kar Tool or Great Lake. When Policht was transferred from Great Lake to Continental in May, Continental also recalled Kenneth and Bill Heidel, Kuzdzal, Luis Luciano, Osborne, Toomer,, ands Bargas. Gieger testified that the delay was caused by the fact that the oven that was transferred to 17th Street was not working; it was owned by another party, with whom Continental was in litigation; it would cost $6000 to repair; Continental was not willing to spend that much money on the oven until the litigation was resolved; it was not until March that the owner of the oven stated, in state court, that he did not wish the oven returned to him; on hearing this the repairs were authorized; and the employees were recalled to 17th Street when the repairs were completed in May. 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD d. Geiger's interrogation of Policht about her testimony In February, while Policht was working for Great Lake at the Beard Street facility, she met with a Board agent to give testimony regarding charges that had been filed by that point. Jeffrey Washelewski, who had been employed by Continental Radiator until the layoff and was given a job with Kar Tool, then Great Lake, by Geiger when the layoff came on 31 January, was also present. On the day following her giving an affidavit, Nichols approached Policht as she was working and told her to go to the office to fill out a job application for Great Lake. When Policht and Nichols got to the office Geiger was there. As Policht was filling out an applica- tion, Geiger stated to Nichols that Policht had been a good worker and asked Nichols when she had last re- ceived a wage increase. Policht interjected that the last time she had gotten a wage increase was during the summer of 1984. Geiger instructed Nichols to give Po- licht a raise and told Nichols to leave the room so that he could visit with Policht. When Nichols left the room, Geiger walked over to Policht, sat down beside her, and stated, "I talked to everyone here at Continental [sic] and everyone that knows you and works with you and they all say the same thing. You are a snitch." Policht replied that she did not believe Geiger. Geiger then stated that the Board agent "shouldn't push his way into your house." Policht replied that she invited the Board agent to her house. Geiger asked what she and the Board agent had discussed, and Policht replied that the Board agent had questioned her about why she was working while other Continental employees were not. Policht told Geiger (falsely, because she feared for her job) that she had told the Board agent that she knew nothing about the matter. Geiger did not deny this testimony by Policht.21 e. Geiger's solicitations and threats to employees about their charges (1) Kenneth Heidel On 20 June, while Kenneth Heidel was working at Continental, he approached Geiger and began a conver- sation that included a range of topics. The conversation at some point turned to the topic of the pending charges. According to Heidel, Geiger handed, him a piece of paper with, Heidel's name and address on it; below that was: Dear Mr. Gottfried, [Regional Director] I am a charging party on the above identified complaint. I am requesting that my name be with- drawn' as a charging party and that I not be includ- ed in any settlement or hearing as a charging party. 21 Policht further testified that later in the month she approached Reed and asked about the raise that Geiger had ordered Reed told her that the Union had put a "freeze" on raises and promotions so that she would not get the raise While Policht was credible in this testimony, it has been previously noted that the General Counsel failed to prove that Reed was a supervisor or agent of Continental within the meaning of the Act Please send a notice to me as at the above ad- dress indicating that my name has been withdrawn from the charge. According to Heidel: He said that he wanted us to sign a piece of paper saying we wanted to drop our charges and that if we did he would keep the plant open and we could keep working and we would get a raise. . . . [He] wanted me to sign a piece of paper and he wanted me to talk to my brother and the other employees about signing this piece of paper too. Heidel told Geiger he would talk to the other employees about Geiger's proposal. In early June the employees of Continental Radiator who had been laid off from 1 February to May were told that they would only receive 60 percent of their va- cation pay in 1985. According to Kenneth Heidel, at some point during the above conversation with Geiger, Geiger said that he would pay Bill Heidel, Kenneth's brother, and Jeffrey Toomer their full vacation pay in- stead of the 60 percent. Kenneth Heidel told Geiger that he would think about what Geiger had told him. This meeting between Kenneth Heidel and Geiger concluded when Mooney walked into the office and told Geiger that it was time to go to a "lunch date." Accord- ing to Heidel, Geiger told Mooney to make sure that he, Jeff Toomer, and Bill Heidel all got raises on their next checks. The testimony- by Heidel concerning the withdrawal of charges, the pay of vacation pay to Bill Heidel 'and Toomer, and the raises to himself, Bill Heidel and Toomer was not denied by Geiger, and I find it credible. Heidel further testified that on his next paycheck he re- ceived a 25-cent-per-hour wage increase., (2) Jeffrey Toomer Jeffrey Toomer was laid off with the other Continen- tal Radiator employees. As noted above he was recalled in May, and in early June he approached Geiger in the Continental office to ask for a raise. According to Toomer: Well, I asked him for a raise and he told me that he didn't have to give me one and he told me that, you know, that if I am going to be fighting him on the charges and if I didn't want to sign off on the charges and go, you know, go with the company that I wasn't going to get a raise and I wasn 't going to get my full vacation pay. Because I was laid off, so he said he was going to deduct that from my va- cation pay . . . whatever percentage was of months that I was laid off. Like if I was laid off three months I was only going -to get 75 percent of it. . . . And he wanted to know if I wanted, you know, to drop my charges, and I told him that I would have to think about it. Toomer further testified that 2 weeks later he was told to go to the office by Mooney. There he met with Geiger who asked him if he had decided to drop charges CONTINENTAL RADIATOR CORP. and showed him a paper identical to the one previously shown to Kenneth Heidel with Toomer's name and ad- dress on it. Toomer replied by stating that he was afraid of losing his protection from discharge if he dropped the charges. Geiger replied that "he could take care of it, but he couldn't make no promises," according to Toomer. None of this testimony by Toomer is denied by Geiger. B. Analysis and Conclusions 1. Violations preceding Dailey's discharge Because the General Counsel has failed to prove that Franklyn Reed was a supervisor or agent of either Conti- nental or Great Lake within Section 2(11) or (13) of the Act, I shall recommend dismissal of the allegations based on his conduct. The mid-August statements by Nichols to Osborne that if the UAW "got in," Geiger could move the plant to the South for cheaper labor, was clearly a threat within Section 8(a)(1) of the Act. Sertaflm, Inc., 267 NLRB 682 (1983); National Micronetics, 277 NLRB 993 (1985). Nichols' mid-August calling of Kuzdzal to the office, and questioning him about why he was advocat- ing the Union's selection and why he had not come to Nichols fast, likewise violated Section 8(a)(1). Although Kuzdzal had been openly displaying his union allegiance by wearing union buttons, the inquiry necessarily as- sumed a coercive character by Nichols' using the office, the locus of managerial authority, to extract information and express his displeasure at Kuzdzal 's activities. See, for example, Dektronics, Inc., 179 NLRB 87, 94 (1969), and National Can Corp., 159 NLRB 647 (1966). Respondent further violated Section 8(a)(1) of the Act when in August Nichols told Aponte, who was standing within 3 feet of Seledon, that if the employees selected the Union, there would be , a wage cut for employees who were making $5.50 an hour as was Seledon. The threat to cut wages if a union was selected clearly would have had a coercive impact on any employee who heard it, or any employee to whom such a threat was subse- quently disseminated, even if they were making less than $5.50 per hour. Nichols' statement that Geiger would never reach an agreement with "you people" (as was credibly testified to by Seledon) is further a violation of Section 8(a)(1) of the Act in that it was a clear threat that Respondent would not bargain with the Union even if it were select- ed by the employees as their statutory representative. .On the day before the 24 August election, Geiger gave a speech to all Continental employees in which he told them that they did not need a union and that if they did have problems they should bring to them to him. Pre- cisely such statements were held to be a solicitation of grievances with an implied promise of remedy in viola- tion of Section 8(a)(l) of the Act in K & K Gourmet Meats, 245 NLRB 1331 (1979), and I reach the same con- clusion here. 247 2. Violations following Dailey's discharge a. Withholding the 1984 Christmas bonuses Of the four organizing committee members left after Dailey was discharged in August and Sheridan quit in October none received a monetary payment at Christ- mastime 1984. All the employees who were not on the organizing committee received a bonus at Christmas 1984. All employees who were working in 1983 received a bonus in 1983, and they received a larger bonus in 1984, except Toomer who received $85 in 1983 and' $50 in 1984. These statistical coincidences, alone, constitute compelling evidence that the distribution of Christmas payments was motivated by animus against the organiz- ing committee membership of those who were denied a payment at Christmastime 1984. Further evidence is con- tained in Nichols' statement to Osborne when she in- quired as to why - she got no bonus in 19'84. In 1983 Nichols promised Osborne a larger 1984 bonus for longer service. However, when bonuses were handed out to other employees in 1984, Nichols told Osborne: "You will have to associate with the Union people , your repre- sentatives . . . we are not going to be dishing out any more money." Thus, the denial of a bonus to Osborne was bluntly attributed to the successful ,efforts of the or- ganizing committee of which Osborne had previously told Nichols she was ' a part (when they were discussing the organizational campaign and Dailey 's possibly, be- coming her "representative"). Geiger testified that the distributions in 1984 were per- sonal "gifts" to those whom he expected something in return, at least a Christmas card , and Respondent makes much of the fact that' Continental did not deduct the 1984 payments from its 1984 income tax. Of course, Geiger's argument that the payments were made to those from whom he expected something in return immediately takes the payments out of ,the realm of "gifts" and'places them in the realm of quid pro quo or compensation. Geiger himself abandoned this patently implausible22 de- fense as he testified that he could give no reasons for giving nothing to Osborne in 1984 and he could even re- member Luciano (although he had liked Luciano, or his work, well enough to have given him a ",gift"/bonus in 1983). Nor may Respondent take refuge in Continental's passing up the 1984 tax deduction involved in the distri- bution. By the time the 1984 corporate income tax return had been filed, the charges had been filed with the Board. Deducting the payments in such circumstances would have been a obvious admission against interest, as Geiger had assuredly realized.23 Therefore, the failure of 22 According to this record, the employees were neither personal friends nor relatives of Geiger, they would not have gotten the gifts but for the employment relationship Moreover, if Geiger's expectation of Christmas cards was the sole criterion for the distributions, these could be no explanation for wide variations in the amounts of the "gills" that were from $40 to $200 23 Geiger took great pains to point out that the 1984 payments were not deducted form the 1984 corporate returns , but he claimed inability to remember whether the 1983 bonuses had been deducted. Having thor- oughly considered the "tax angle" of his largess , Geiger's claimed loss of memory was necessarily false 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Continental to deduct the payments on its 1984 income tax returns (which can still be amended) is meaningless. Finally, the "personal gifts" theory is believed by Re- spondent's communications to the employees. The first communication was in the form of the checks distribut- ed, themselves. They were company, not personal, checks. Geiger testified that he gave the money to the company treasurer who, in turn, wrote company checks because the employees would have an easier time cash- ing company checks. Aside from the fact that there is no basis for concluding that the employees' banks would have refused to accept Geiger's personal checks as col- lection items, no employees (according to this record) were told that even though they were being paid with Continental checks, the payments were personal gifts from Geiger. That is, by the checks themselves, the em- ployees were left with the impression that the "gifts"/bonuses were from the company, not Geiger per- sonally. Also, Kuzdzal asked Nichols why he had re- ceived no bonus, and asked specifically if it was because of his union activity; Nichols told Kuzdzal, twice, that the matter was determined by "company discretion." Nichols did not say that Geiger had not expected a Christmas card ' from Kuzdzal (or Osborne or Seledon or Luciano) and he did not say it was because Geiger con- sidered the Christmastime distributions to be personal gifts. Finally, Nichols did not tell Osborne that she was receiving nothing in 1984 because Geiger thought less of her then than he did in 1983; Nichols told her she should look to the Union, and nothing was said about the pay- ments being "personal." In, summary, I find and conclude that Continental issued Christmas bonuses to all employees except the four remaining employee-members of the organizing committee because of the activities of that committee and the results that committee produced, the 24 August election victory for the Union, and that by such conduct by Respondent violated Section 8(a)(3) and (1) of the Act. Pinter Bros., Inc., 233 NLRB 575 (1977). b. Layoff of31 January 1985 The General Counsel contends that the employees transferred to Great Lake, rather than being laid off for 3 months, and received their favored treatment because they had signed the petition to overturn the 24 August union election victory. It is a fact that none of the em- ployees who signed that petition were required to endure 3 months of unemployment; those who did not (except for Seledon, Lucaj, Charley Aponte, and Policht)24 were. Since only those who exercised their right to re- frain from signing the antiunion petition were laid off,25 24 The fact that four nonpetition signers were transferred to Great Lake's payroll, rather than really being laid off, does not dilute the sig- nificance of the fact that all petition- signers were protected from actual layoff; the General Counsel is not required to prove the negative-why those four were not discriminated against 25 Wilfredo Aponte had signed the petition to set aside the 24 August election, and was listed on the 31 January notice as being laid off. How- ever, Aponte had been suspended, pending discharge on 28 January and he was not, in fact laid off, he was discharged after an investigation of misconduct a prima facie case of discrimination is presented by the statistical evidence alone.26 Independent evidence of unlawful motivation for the layoff is also contained in the record. That Geiger had a predisposition to manipulate the work force to defeat or- ganizational efforts was forecast by Nichols who, it is undenied, told Osborne that Geiger would move his op- erations to the South to get cheaper labor if the employ- ees selected the Union as their collective-bargaining rep- resentative. Additionally, the solicitation of grievances by Geiger and the threats and interrogations of Seledon and Kuzdzal by Nichols, and the unlawful withholding of the 1984 Christmas bonuses from organizing commit- tee members, as found infra, further demonstrate Re- spondent's animus and fortify the conclusion that the General Counsel has presented a prima facie case of un- lawful discrimination in the selection of employees for actual layoff on 31 January. Therefore, Respondent has the burden of demonstrat- ing that the layoff of the nonpetition signers would have occurred in absence of their protected activity of refus- ing to sign the petition to set aside the 24 August elec- tion.27 No reason was given for creating the-new corporation, Great Lake, rather than assigning the new work of ex- panded distribution to the existing business entity, Conti- nental. Nor was any reason given for hiring three new employees, and transferring to Great Lake's payroll all the petition-signers (plus Seledon, Lucaj, Charley Aponte, and Osborne) to do essentially the same work for Great Lake as has been done for Continental. All the jobs were unskilled; indeed, except for one "driver," each of Great Lake's employees employed during the first week of February was classified as a "laborer," ac- cording to General Counsel's Exhibit 11, which- was pro- duced by Respondents. That is, no plausible reason has been advanced for laying off only these who failed to sign the petition to set aside the Union's victory in the 24 August election. Therefore, Respondents have not overcome the Gen- eral Counsel's prima facie case and it must be concluded that its layoff of employees William and Kenneth Heidel, Osborne, Toomer, Vargas, Kuzdzal, and Luis Luciano violated Section 8(a)(3) and (1) of the Act.28 c. Other postdischarge violations Finally, Geiger's undenied interrogation of Policht about her cooperation with the Board agent investigating the charges herein, his calling her a "snitch," and his un- denied threats and inducements to Kenneth Heidel and Toomer in an attempt to get them to withdraw their Board charges are further violations of Section 8(aXl) and further evidence of the animus assuredly possessed by Respondent Continental when Dailey was discharged some months before. 28 San Angelo Packing Co., 163 NLRB 842, 845, 846 (1967). 27 Wright Line, 251 NLRB 1083, 1089 (1980), enfd ' 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB Y. Trans- portation Management Corp., 462 U.S. 393, 400-403 (1983). 28 Lear Siegler, Inc, 277 NLRB 782 (1985) CONTINENTAL RADIATOR CORP. 3. The discharge of Dailey I have credited Dailey's testimony that, at least once, he told Mooney that he favored the Union and that in the several days before the 24 August election he wore the "UAW" and "UAW Organizing Committee" buttons to work. The uncontradicted testimony of Osborne fur- ther makes it clear that Respondent not only knew of Dailey's union sympathies, but it also shows that Re- spondent knew that Dailey was at the forefront of the organizing effort. It is quite common for leading in-plant organizers to become union stewards or to take other local union offices if an organizational attempt is success- ful. Mooney assuredly knew this; therefore, the uncon- tradicted testimony of Osborne that Mooney referred to "loud mouth Ken" as a potential "representative for the UAW" is compelling evidence that Respondent not only knew of Dailey's sympathies but also that he was one of the most active employee organizers and a potential agent of the Union that Continental so intensely opposed. Evidence of animus, or unlawful, motivation, is con- tained in the discharge itself and how it was handled. On the first working day after the Union won the 24 August election by a one-vote margin, the least senior29 member of the organizing committee members, and therefore the most colorably vulnerable, 30 was discharged. Discharges following immediately upon heels of union activity, spe- cifically the activity of an election won by a union, has been held to be evidence of unlawful motivation.31 Of course, such threats as Nichols' threat to Osborne that Geiger could move to the South for cheaper labor if the Union won is evidence of a, particularly virulent vari- ety of animus. This threat, the other threats and the in- terrogation by Nichols, and solicitation of grievances and offer to remedy them by Geiger himself constitute fur- ther evidence of Respondent's animus toward the organi- zational activities of its employees in general. In addition, Mooney cautioned Osborne that "loud mouth Ken" could become her representative if the Union was select- ed; the invocation of the pejorative by Mooney clearly demonstrates specific animus toward Dailey's activities on behalf of the Union. Finally, Respondent's postdis- charge conduct further demonstrates an overall antiunion 29 Compare Dailey's hire date of 21 June 1984 with those listed on the layoff notice quoted above. 3° Indeed, at the hearing Respondent raised the contention that Dailey was subject to a 90-day probationary period . The effect of the probation- ary period in a shop that had no grievance procedure was not explained, but Respondent raised the contention to make an argument that somehow Dailey was subject to more scrutiny, or had fewer rights or protections, than other employees However, Dailey and William Heidel (who was also hired in June 1984) testified without contradiction that they were not told on being hired that they were subject to any, sort of probation By making only the most oblique of references to the "probationary period" argument in the brief, Respondent appears to have abandoned the contention that Dailey was subject to some sort of review that other employees were got Therefore, plenary, discussion of the issue of the ex- istence of a probationary period is not required . However, I feel con- strained to state that I found credible the testimony of, Policht and Dailey (and found incredible the contrary testimony of Mooney) that Continen- tal first posted a notice that there was a probationary period during the campaign preceding the 24 August Board election There, is no credible evidence that any probationary period existed before the organizational drive herein 91 See, for example, Rogers Furniture Sales, 207 NLRB 68 (1973), and Paoli Chair Co, 213 NLRB 909 (1974) 249 motivation with which the decision to discharge Dailey was assuredly approached. This conduct includes: (1) the withholding of the 1984 Christmas bonuses from the or- ganizing committee members; (2) the layoff of seven of the employees who failed to sign the antiunion petition that would have set aside the 24 August union victory at the Board election; (3) Geiger's undenied interrogation of Policht about her cooperation with the Board agent investigating the charges herein; and (4) Geiger's unden- ied threats and inducements to Kenneth Heidel and Toomer employed in an attempt to get them to with- draw their Board charges. As the General Counsel has established a prima facie case of unlawful motivation, the burden shifts to the Re- spondent to demonstrate that it would have discharged Dailey even in the absence of his protected conduct. Continental produced a veritable litany of reasons for Dailey's discharge: he walked around and talked; he was absent and tardy; he was "goofy"; he twice struck an- other employee; and he could not do the work. Although Dailey had been tardy several times in the 2 months preceding his discharge, Respondent's permanent "Dailey Attendance Record" makes note only of his last three tardy arrivals at work. Presumably, if the other tar- dies had been of significance to Respondent, they would have been recorded in more convenient form than the timecards themselves. It appears that Respondent paid little attention to tardiness until Dailey was late 3 days in a row.32 Indeed, Respondent stipulated that no employ- ee received a written warning for tardiness or attendance between 1 January 1982 and Dailey's discharge after 2- 1/2 years later. As for the last three times Dailey was late, it is noteworthy that Mooney said no more to Dailey then that he should "consider this a warning." Then Dailey was allowed to work a full day, placing the discharge inside the next pay period for no apparent reason.33 Presumably, if a decision to discharge Dailey had already been made, or if the three tardy arrivals had been a legitimate cause for the discharge, Mooney Would not have bothered to give Dailey a "warning" about anything and he would not have let him start, and finish, the day at work.34 Seledon denied that Dailey walked around the shop just to talk to other employees. Against this testimony Respondent produced employee witness Rajnish and Gieraga who testified, that Dailey "goofed off' for "most of the day" or "all of the time." It is ' inconceivable that even the most patronistic of employers would allow any employee to waste "all" or "most" of his working time, and it is clear to me that Rajnish and Gieraga were en- 32 Apparently tardiness of 3 minutes or less was excused, when Mooney finally warned Dailey on 27 August, he mentioned only the last "three in a row," even though Dailey had been late 3, 1, and 3 minutes on the 3 days before 23 August. 33 Discharging an employee during a pay period for accumulated transgressions has been held to be evidence of pretext . See, for example, McGraw-Edison Co., 172 NLRB 1604 (1968), enfd. 419 F.2d 67 (8th Cir. 1969); James Ray Co., 176 NLRB 31 (1969); and Brake Parts Co, 178 NLRB 247 (1969) 34 For this reason I discredit Mooney's testimony to the extent he sought to convey the impression that a decision to discharge Dailey had been made before the 24 August election 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaging in , extreme exaggeration in an effort to please their employer who had spared them from the effects of the layoff of 1 February, as discussed above. Mooney testified that he frequently saw Dailey walk- ing around, or loafing and that he recorded such in- stances on the advice of a labor relations consultant: Mooney further testified that employees Murrias and Santos Luciano had complained to him about Dailey's not working. Murrias, when called by Respondent, flatly, and credibly, denied that he had ever complained to Mooney about Dailey; in fact, Murrias testified that Dailey walked around the ship "about the same" as other employees. Luciano was not called by Respondent and no explanation for not doing so was advanced. As for the records that Mooney kept on the advice of the con- sultant, the most that can be said is that Mooney started the case building on Dailey as early as July when the union movement started. It should be further noted that although Mooney took the time and trouble to build a record on Dailey, he did not bother to warn the employ- ee that -he was doing anything wrong, or that he could be punished for what he was doing (or not doing). If Continental had wanted production as bad as it wanted a case against Dailey, Mooney assuredly would have at least told Dailey to stop wandering around. This Mooney -did only once, according to his own testimo- ny.ss As far as Dailey's not doing his soldering work effi- ciently, it should be noted that Seledon testified that al- though - Dailey was not perfect, there were worse em- ployees- who' trained under him; he complained to man- agement about them, but the employees were retained and nothing was done except, apparently, to give them more' time to improve, something that Dailey was not given. It is further noted that Mooney did not testify that he ever inspected any of Dailey's work product; certain- ly, he never warned Dailey about inefficiency or that he should learn how to handle the soldering torch better. Although I have credited the testimony that Dailey struck Rajnish, there is no 'evidence that any manage- ment' representative learned of the incidents at any time before the 27 August discharge. Finally, in support of contention that Dailey was "goofy," 36 Respondents rely solely on a conclusionary interjection in her testimony by Gieraga. This was not evidence; and the contention- need not be addressed fur- ther. In summary, I find that Respondent has not met its burden of showing that Dailey would not have been dis- charged even absent his known protected union activi- ties, aand I reach this conclusion because of: (1) the timing of the discharge, coming as it did immediately after the election that the Union won by one vote; 37 (2) 35 "Prolonged observation" rather than telling an employee to "get to work" was held to be evidence of pretext in Champion Parts Rebuilders, Inc, 260 NLRB 731 fn. 1 (1982), enfd 717 F 2d 845 (3d Csr , 1983) 38 R. Br 2 and 5 37 Had Continental's objections to the 24 August election been sus- tained by the Board, the removal of any of the union supporters such as Dailey would have had the obvious effect of causing a tie at the rerun, a fact assuredly not lost on Continental's management the total lack of -warnings to Dailey that his job was in jeopardy because of anything he had been doing wrong;38 (3) the discharge was effected during the middle of a pay period for no apparent reason; (4) no reason was given at the time of the discharge;39 and (5) the insubstantial nature of the tardiness/absence, wander- ing around, and poor work performance defenses, and the totally frivolous nature of the fighting and "goofy" defenses. Finally, (6) Mooney acknowledged that he told Dailey: "If you need to use us for a reference, feel free." A positive recommendation was clearly implied, and its offer belies any contention that Dailey was discharged for cause. Accordingly, because the General Counsel has estab- lished a prima facie case of unlawful motivation that Re- spondents have failed to rebut, I conclude that Respond- ent discharged Kenneth Dailey in violation of Section 8(a)(3) and (1) of the Act.40 4. Single-employer and alter ego allegations and liability of Great Lake The complaint alleges that Continental and Great _ Lake are alter egos or constitute a single employer. The General Counsel advances these allegations only because she seeks to have Great Lake remedy the unfair labor practices of Continental, not because she seeks a bargain- ing order against Great Lake. Because -the, - General Counsel is not attempting to secure an order requiring Great Lake to assume a bargaining obligation originally incurred by Continental, it is not necessary to decide if the two business entities are in the status of alter egos; the obligation of Great Lake may be decided, under the joint, or single, employer theory of liability. O. Voorhees Painting Co., 275 NLRB 779 (1985). As stated by the Board in that case: The standard applied by the Board in determining joint employers status is "whether two or more em- ployers share or co-determine those matters govern- ing the essential terms and conditions of employ- ment." [Quoting Pacemaker Driver Service, 269 NLRB 971 fn. 2 (1984).] 38 Specifically, until the 27 August discharge, Dailey was not warned about tardiness even though on 23 and 24 August, Mooney made two tar- diness memoranda to the file he was keeping on Dailey, and even though Mooney conceded that be had "on occasions" warned other employees about being late. 39 Mooney's statement that Dailey just was not the man Continental (or he) was looking for is tantamount to refusing to give any reason at all; this is a factor frequently recognized by the Board as an indication that there was no legitimate reason for an employer's action. 40 As I have also found herein that Respondent unlawfully withheld bonus payments to the prounion employees at Christmas 1984, and be- cause Dailey would have continued to be employed absent the, discrimi- natory action taken against him, it is appropriate to order, as part of the remedy herein, that Dailey receive a bonus for, Christmas 1984 The smallest bonus Respondent gave any employee in 1984 was $40 That amount was given to four of the five employees who were employed at Christmas 1984, but not Christmas 1983 The fifth such employee re- ceived $50. (See G C Exh. 17.) It would be speculation that, absent the discriminatory motive of Respondent, Dailey would have received the larger amount Therefore, it is appropriate to order that Dailey receive $40, plus interest, as the amount he would have received at Christmas 1984, absent the discrimination against him CONTINENTAL RADIATOR CORP. Here, Geiger did no more than add a few product lines for distribution; he continued to manufacture some radia- tor cores and import others. Rather than assign the addi- tional work to the employees who had selected the Union (which he had opposed so vehemently), he as- signed the new work to newly hired employees and those who had signed a petition to overturn the 24 August election . In a crude attempt to disguise his obvi- ous unlawful objective of avoiding his bargaining obliga- tion, Geiger created the new corporation, Great Lake, assigned the favored (and antiunion or nonunion) em- ployees to it, and banished to the dilapidated 17th Street location those (except Seledon) who had participated in the organizational attempt. The managerial manipulations in which Geiger en- gaged are similar to those performed by one Kneisley in K & S Circuits, Inc., 255 NLRB 1270 (1981). There, Kneisley held all the stock of one company, the employ- ees of 'which selected a union. In an attempt to dilute the effectiveness of an organizational drive, Kneisley created two other corporations of which he was president as well as owner. Although there was scant evidence of Kneisley's actual control of the newly created corpora- tions, the Board held that "it strains credulity too much" to believe that Kneisley exercised only "potential" con- trol of the newly created corporations . There, as here, there was at least some degree of functional operation and, until the organizational attempt, all such operations were conducted "under one roof." 255 NLRB at 1272. As the testimony of Policht discloses, employees who were transferred to the Great Lake payroll were credited with their seniority earned at Continental ; they were paid the same rate, and they continued to do the same work, using much of the same equipment. The identical nature of the employment benefits demonstrates a single source of determination of "those matters governing the essential terms and conditions of employment ." See O. Voorhees Painting Co., supra. That is, the terms and con- ditions of employment at the two corporations were nec- essarily determined by the same source, Karl Geiger, who was the majority shareholder of Continental, and the sole owner of Great Lake, and who also was the source of the corporate schemes employed to evade his bargaining responsibility. Accordingly, I find and conclude that Great Lake, Inc. is a joint, or single, employer with Continental, and Great Lake, Inc. is liable for the remedy of Continental's unfair labor practices that were not included in the I April 1986 settlement agreement, the discharge of Dailey and the violations that preceded that discharge. CONCLUSIONS OF LAW 1. Continental Radiator Corporation and Great Lake, Inc. constitute a'single employer within the meaning of Section 2(2) of the Act, and they are engaged in com- merce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the' meaning of Section 2(5) of the Act. 251 3. By the following acts and conduct Respondents vio- lated Section 8(a)(1) of the Act: (a) In mid-August Nichols threatened employee Os- borne that Respondent could move the plant to get cheaper labor if the employees selected the Union as their collective-bargaining representative. (b) In mid-August, Nichols interrogated employee Kuzdzal regarding his union membership, activities, and desires. (c) In August, Nichols threatened employees Aponte and Seledon that certain employees would have their wages reduced if the Union were selected as the collec- tive-bargaining representative. (d) In August, Nichols threatened employee : Seledon that Geiger would never bargain with the Union if it were selected as the collective-bargaining representative by the employees. (e) On 23 August, Geiger informed the employees that they did not need a union and solicited their grievances in an effort to dissuade them from voting for the Union. 4. By the discharge of employee Kenneth Dailey on 27 August, Respondents violated Section 8(a)(3) and (1) of the Act. IV. EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondents Continental Radiator Corporation and Great Lake, Inc. set forth above, occur- ring in connection with their operations described in sec- tion I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. THE REMEDY Having found that Respondent Continental Radiator Corporation has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist from engaging in these unfair labor practices . Having further found that Respondent Great Lake, Inc. is a joint em- ployer of Continental Radiator Corporation, I shall rec- ommend that each of them be ordered to take , certain af- firmative action to remedy these violations, NLRB v. Gi- bralter Industries, 307 F.2d 428, 431 (4th Cir. 11962). I shall further recommend that Respondents be ordered to offer reinstatement to Kenneth Dailey and pay to him backpay, with interest. Backpay is to be computed on a quarterly basis in the manner prescribed in F W Wool- worth Co., 90 NLRB 289 (1950), with interest thereupon as established in by the Board in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Because of the proven proclivity of the sole owner of Great Lake, Karl Geiger, to utilize corporate formalisms as a method for defeating the purposes and policies of the Act, it is altogether appropriate that I grant the Gen- eral Counsel's request for a visitatorial clause that will permit free examination and inspection of all corporate 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD records necessary to assure that compliance with the Order herein is achieved. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed41 -ORDER The Respondents, Continental Radiator Corporation and Great Lake, Inc., Detroit, Michigan, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with plant removal if they select International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW) as a collective-bargaining representative. (b) Interrogating employees about their union member- ship, activities, and desires. (c) Threatening employees with wage reductions if they select the Union as their collective-bargaining rep- resentative. (d) Threatening that Respondents would not bargain with the Union if it is selected as their collective-bargain- ing representative. (e) Soliciting grievances and promising remedy thereof in an effort to dissuade employees from voting for the Union. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Kenneth Dailey full reinstatement to his former job or, if such job no longer exists, to a substan- tially equivalent job without prejudice to his seniority or other rights and privileges, and make Dailey whole, with interest, for any loss of earnings and other benefits, in- cluding his 1984 Christmas bonus, suffered by reason of his unlawful termination. (b) Remove from its files of both Respondents any ref- erence to the unlawful discharge and notify the employ- ee in writing that this has been done and that the dis- charge will not be used against him in any way. (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- essary to, analyze the amount of backpay due under the terms of this Order. (d) Post at their Detroit facilities copies of the at- tached notice marked "Appendix."42 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous , places including all places 41 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. 42 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.", 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. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten employees With plant removal because of their known or suspected activities on behalf of International _ Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) or any other labor, organization. WE WILL NOT interrogate employees about their ac- tivities on behalf of the Union. WE WILL NOT threaten employees with wage reduc- tion if they select the Union as their collective-bargain- ing representative. WE WILL NOT threaten employees with statements that we will not bargain with the Union even if it is selected as their collective-bargaining representative. WE WILL NOT solicit grievances of employees and promise to remedy such grievances in order to dissuade employees from voting for the Union. WE WILL NOT discourage activities in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) by discharging employees or by otherwise discriminating against em- ployees in any manner with respect to their hire or tenure of employment or any term or condition of em- ployment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by the National Labor Rela- tions Act. WE WILL offer to Kenneth Dailey full reinstatement to the job he held before he was unlawfully discharged or, if that job no longer exists, to a substantially equivalent position of employment without prejudice to his seniori- ty or other rights and privileges. CONTINENTAL RADIATOR CORP. 253 WE WILL make Kenneth Dailey whole, with interest, discharge will not be used as a basis for future personnel for any loss of pay he may have suffered as a result of action against him. our discrimination against him. WE WILL expunge from our files any reference to the CONTINENTAL RADIATOR CORPORATION discharge of Kenneth Dailey and notify him, in writing, GREAT LAKE, INC. that this has been done and that evidence of his unlawful