Migali Industries, Inc.

820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Migali Industries, Inc. and District 65, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases 4-CA- 15141, 4-CA-15141-2, and 4-CA-15368 16 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 December 1986 Administrative Law Judge Karl H. Buschmann issued the attached deci- sion, The Respondent filed exceptions and a sup- porting brief. The General Counsel filed cross-ex- ceptions and a brief in support of the cross-excep- tions and in opposition to the Respondent's excep- tions. The Respondent filed a brief in response to the General Counsel's brief and cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order3 as modified. i The General Counsel excepts to the judge's failure to include in his recommended Order a visitatorial clause authorizing the Board, for com- pliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order. We find no merit'm the Gen- eral Counsel's exception, having concluded that, under the, circumstances of this case, such a clause is not warranted. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings In adopting the judge's finding that the Respondent had knowledge of Louis Iulmcci's union activities, Chairman Dotson and Member Babson do not rely on the small-plant doctrine 3 The judge's decision is ambiguous as to whether Bruno Migali violat- ed Sec. 8(a)(1) when, following the Union' s request for recognition, he asked Raymond Ellis on 21 March 1985, "What is that all about, Ray?" Because the record establishes that Ellis was an open union adherent, who had accompanied the union organizer when the latter requested rec- ognition, and as Migali's question was general, we conclude that Migali's inquiry could not reasonably have tended to coerce Ellis in the exercise of his rights under the Act We therefore dismiss this allegation. Rossmore House, 269 NLRB 1176 (1984) Backpay due Ellis because of the reduction of his workweek will be computed under Ogle Protection Service, 183 NLRB 682 (1970), not F. W. Woolworth Co, 90 NLRB 289 (1950), as provided in the remedy section In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621. Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) The judge inadvertently failed to include in his recommended Order and notice a provision ordering the Respondent to cease and desist from its refusal to bargain with the Union about its vacation policy or any other conditions of employment. We shall therefore modify the judge's 285 NLRB No. 107 We do not agree with the judge's recommenda- tions that the 8(a)(1) allegation, in the complaint, based- on. the Respondent's vice president Ernest Migali's April 1985 discussion with Maritza Torres concerning the Union, and the 8(a)(5) and (1) alle- gations in the complaint based on the Respondent's 2 August 1985 institution of a progressive discipli- nary system, be dismissed. A. April 1985 Discussion The judge credited Torres' testimony that during their discussion Migali told her that business was slow and if the employees voted for the Union they could get laid off or the plant could close down. Migali showed her slips of accounts payable. The judge found Torres' testimony indicated that Migali was using a slip of accounts payable in an attempt to demonstrate the Respondent's economic problems. In light of this he concluded that the record was too vague to determine if Migali's state- ments 'were a prediction of the adverse conse- quences that would naturally follow unionization or were threats that the Respondent would lay off its employees or close the plant if the Union was selected. Contrary to the judge we find that Migali's remark to Torres constituted a threat that the Re- spondent would lay off employees or close, the plant if the employees chose union representation. Migali's reference to the Respondent's alleged eco- nomic problems was not, as the judge correctly found in connection with the unlawful reduction in the workweek, supported by objective evidence. The fact that Migali showed Torres a slip of, ac- counts payable (which Torres was not in a position to evaluate) does not change the threatening nature of Migali's comments. In these circumstances we find that the Respondent violated Section '8(a)(1) by threatening layoffs and plant closure if the em- ployees selected the Union. B. Disciplinary Policy We do not adopt the judge's dismissal of that portion of the complaint alleging that the Respond- ent violated Section 8(a)(5) and (1) by unilaterally implementing a new disciplinary policy. The record shows that on 2 August 1985, during the course of the parties' contract negotiations, the Re- spondent posted a notice that informed employees of a new progressive system of discipline providing for written warnings for lateness and absenteeism. By the terms of the notice, the policy was effective immediately. At a negotiation session in late recommended Order and shall issue a new notice to the employees that includes this provision. MIGALI INDUSTRIES, August (the first following the posting of the notice), the Respondent provided the Union with a copy of the new rules. We note particularly that the policy was effective immediately, that it consti- tuted a change in a term of employment that is a mandatory subject of bargaining, and that the Re- spondent provided the Union with a copy of the new rules only after the policy was implemented. We find that the Respondent violated Section 8(a)(5) and (1) by taking this action.4 In doing so, we note that although there is no clear evidence that employees were disciplined pursuant to this new policy, this does not preclude a fmding of a violation where, as here, the policy took effect im- mediately. See, e.g., Electri-Flex Co., 238 NLRB 713, 731 (1978). Similarly, the absence of clear evi- dence that the Union requested bargaining on this matter is not dispositive, as the Board does not re- quire a union to request bargaining when confront- ed with a fait accompli. See, e.g., Insulating Fabri- cators, 144 NLRB 1325, 1331-1332 (1963). We shall order the Respondent to discontinue the unilaterally implemented disciplinary system and to remove any written warnings placed in the employees' personnel files pursuant to that system. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Migali Industries, Inc., Camden, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Insert the following as paragraphs 1(a) and (b) and reletter the subsequent paragraphs. "(a) Refusing to bargain with District 65, United Automobile, Aerospace and Agricultural Imple- ment, Workers of America, AFL-CIO about its va- cation policy,, progressive disciplinary systems, or other terms and conditions of employment." "(b) Threatening its employees with layoffs or plant closure if they selected the Union." 2. Substitute the following for paragraph 2(a). "(a) On request, bargain with the Union as the exclusive representative of the employees in the ap- propriate unit concerning the vacation policy, dis- ciplinary system, and any other terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement." 4 Chairman Dotson agrees with the judge for reasons set forth in the judge's decision, that the evidence in the record is insufficient to establish that the Respondent refused to bargain when it announced its progressive disciplinary policy Therefore, he would adopt the judge's recommenda- tion that the allegation be dismissed. 821, 3. Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs. "(d) Discontinue the unilaterally instituted pro- gressive disciplinary policy system, remove any written warnings from the employees' personnel files issued pursuant to that system, and notify them that this has been done and that the written warnings will not be used against them in any Way." 4. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with the Union about our vacation policy, progressive disciplinary system, or other terms and conditions of employ- ment. WE WILL NOT cause the discharge of any em- ployees or otherwise discriminate against any of you for supporting District 65, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO or any other union. WE WILL NOT reduce the workweek of our em- ployees or fail to restore any leadermen to a full workweek schedule or otherwise discriminate against any employee because of the Union. WE WILL NOT convey the impression to our em- ployees that it is futile to vote for the Union or that we will not bargain with the Union. WE WILL NOT coercively question our employ- ees about their union support or activities. WE WILL NOT threaten our employees with lay- offs or plant closure if they select the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL, on request, bargain with the Union about our vacation policy, progressive disciplinary system, and any other conditions of employment, and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit. WE WILL discontinue our unilaterally instituted progressive disciplinary system and will remove any written warnings from the employees' person- nel files issued pursuant to that system and notify them that this has been done and that the written warnings will not be used against them in any way. WE WILL offer Louis Iuliucci immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent' position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. WE WILL make whole all employees whose workweek was reduced, including- Raymond Ellis whose workweek was not restored like the other leadermen, for any loss of earnings and other bene- fits resulting from our discrimination against them, with interest. MIGALI INDUSTRIES, INC. Phyllis Allen, Esq., for the General Counsel. Alan R. Schmoll, Esq. (Capehart and Scatchard„ P.A.), of Moorestown, New Jersey, for the Respondent. - Ira Jay Katz, Esq., of Philadelphia, Pennsylvania, for the, Charging Party. DECISION KARL H. BuscHMANN, Administrative Law Judge. These cases were tried in Philadelphia, Pennsylvania, 24- 25 February 1986. The charges were filed by the Union 21 June 1985 in Case 4-CA-15141 , on 3 July 1985" in Case 4-CA-15141-2 and on 15 October 1985 in Case 4- CA-15368. A consolidated complaint in Cases 4-CA- 15141 and 4-CA-15141-2 issued 30 August 1985. That complaint was further consolidated with Case 4-CA- 15368 on 20 - December 1985. The primary issues are whether the Respondent violated Section 8 (a)(1), (3), and (5) of the National Labor Relations Act (the Act) by (a) interrogating its employees, (b) threatening them with discharge or the closing of the plant, (c) informing them that it would not bargain with the Union; (d) reducing their workweek; (e) withholding wage increases of cer- tain employees, (f) refusing to permit an employee access to the office, and changing the employee's working con- ditions; and (g) refusing to restore an employee to a full workweek, and causing the discharge of one employee. On the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the General Counsel and the Company, I make the fol- lowing FINDINGS OF FACT The Company, Migali Industries, Inc., a New Jersey corporation, located in Camden, New Jersey, is engaged in the manufacture of refrigeration units. It has about 18-, 20 employees who build the units, including cutting and molding of sheet metal, lining the inside, and inserting the coils and compressors. Bruno Migali is the president and his son Ernest is the vice president of the Company. It is admittedly an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent's employee Louis Iuliucci talked to his fellow employees about union representation in late 1984. He subsequently contacted the United Auto Work- ers. He obtained union authorization cards and solicited among his fellow workers for their signatures. On 20 March 1985 Betty Jean Ollek, the union organizer for District 65, United Automobile, Aerospace, and Agricul- tural Implement Workers of America, AFL-CIO met with' the Respondent's employees. On 21 March Ollek, accompanied by several employees, approached Bruno Migali at his office and requested recognition. Migali re- sponded, "[Y]es sure whatever they want ... but you know, I am laying them off I might even be closing." When asked whether he recognized the Union, Migali stated that he' would have to discuss the matter first with his attorney. Migali testified that he had indicated that Ollek had come at an inopportune time because he was considering layoffs. Raymond Ellis, who worked for the Respondent as a crater and as leaderman, was among the employees who had accompanied Ollek with her request for recognition.' Ellis testified that he had returned to his work station after the episode when Migali came to him asking, "[W]hat is all that about Ray?" Ellis replied, "[W]ell the guys wanted a union so that took action ." A similar inci- dent occurred when Migali approached Julio Berrios and asked him if he had signed any cards . Berrios testified that he denied signing a card because he did not want to get fired. In a meeting with the employees on the follow- ing day, 22 March, Migali informed his employees that the Company had financial problems, sales were down, business was slow, and his steel supplier was involved in a strike. Migali then announced that the employees had a choice between a layoff of the newer employees and a 3- day workweek for all employees. The employees voted in favor of a 3-day workweek for all employees. Migali implemented that option the last week in March 1985. Thereafter, the employees reported for work on Wednes- day, Thursday, and Friday. Several days after the meeting, Migali went to his sec- retary Maritza Torres and asked her if she had signed a card. She answered that she did, Migali then asked her if Elaine Lee, the bookkeeper, had signed a card. Torres replied, "No." Migali then walked away saying why had not anyone talked to him about it. MIGALI INDUSTRIES In April 1985, a hearing was scheduled on the Union's petition to represent Migali's employees. Raymond Ellis, who among others had attended the election, was leav- ing the premises with a briefcase. As employee Felipe Vasquez followed, him, Migali asked him, "Why do you want to follow a blind man with a suitcase?" Ellis testi- fied that after the union hearing Migali denied him per- mission to use the Company's offices and telephone or to pick up his paycheck in the office. At the election in April the employees selected the Union as their bargaining representative. It was certified by the Board on 3 May 1985. Within a week or two, Migali had recalled several em- ployees for the full 5-day workweek schedule and he hired additional employees. However, certain employees, including Maritza Torres, Raymond Ellis, and Louis lu- liucci, were not immediately recalled for the 5-day work- week. Migali hired Robert Landry in May 1985 as a plant manager. Landry instituted several changes in the employees' working conditions, including a progressive disciplinary system. The Company also closed for the Fourth of July holiday for the first time in many years and expected employees to take their vacation during that time. In response to the Union's request to bargain over the issue, Migali simply answered that ' he could have simply laid off the employees. Louis luliucci, who was among the few employees not reinstated to the full workweek, left the Respondent's employ on 26 August 1985 for another job. It is the General Counsel's position that all allegations in the complaint are substantiated by the record, and that the Respondent violated Section 8(a)(1), (3), and (5) of the Act. The Respondent, conceding certain factual alle- gations and denying others, alleges that the adverse fi- nancial conditions were responsible for the Company's actions. For example, the 3-day workweek was, accord- ing to the Respondent, instituted for economic reasons and not because of any union animus. Analysis Alleged Interrogations. The complaint alleges four in- stances of unlawful interrogation by Bruno Migali, the Respondent's president. The record shows that on 21 March 1985, after Union Agent Ollek had made her demand for recognition, Migali asked Raymond Ellis, "What is all that about Ray?" Ellis replied that the em- ployees wanted a union. Thereafter, Migali went to Julio Berrios, a mechanic at the Company, and asked him if he had signed any cards. Berrios replied that he had not signed any cards because he did not want to get fired. Migali also interrogated his secretary Maritza Torres. He asked her if she knew anything about the Union and whether she had signed a union card. When she an- swered that she had signed a union card, he also asked whether Bookkeeper Elaine Lee had signed a card, to which she replied, "no." He then asked why no one told him about it. Although Migali's conduct in questioning Ellis was vague and general, the record shows that his questioning of Torres and Berrios was pointed, specific, and coercive. Berrios showed his apprehension when' he denied that he had signed a card for fear of getting fired. Moreover, Migali, the owner and chief executive, ap- 823 proached the employees and deliberately, apparently without exchanging any other words, asked them wheth- er they had signed a union card. The conversations were not casual or conducted in a conversational manner. I therefore conclude that the Respondent coercively inter- rogated the employees in violation of Section 8(a)(1) of the Act. Migali's remark directed at Felipe Vasquez in the pres- ence of other employees at the representation hearing cannot be regarded as interrogation, as alleged in the complaint. The record shows that Vasquez was follow- ing Raymond Ellis who carried a briefcase. Migali said to Vasquez why did he follow "a blind man with a brief- case." Vasquez apparently said nothing. Julio Berrios also heard that remark but did not interpret it as a ques- tion but simply as a statement. Migah's remark was therefore more in the nature of a rhetorical question or a sarcastic observation than a serious question. I therefore dismiss this aspect of the complaint. Alleged Threats. It is alleged in the complaint that Migali uttered threats about the Union to the employees, including Louis Charon and Maritza Torres. Charon tes- tified that Migali told the employees that this was a family shop owned by him and that nobody would tell him how to run the shop. He further said that the Com- pany did not need a union and the employees could get along without a union, and if the employees did not want to work like that, they did not have to work. Considering Migali's remark in its entirety, its meaning is clear. Even if the Union were elected as the employ- ees' bargaining representative, it would not change Miga- li's manner of management, because he was the owner and nobody would tell him how to run the shop. More- over, if the employees did not want to get along without a union, they should not work for the Company. Migali thereby conveyed a sense of futility and a refusal to bar- gain with the Union. I therefore find that the Respond- ent violated Section 8(a)(1) of the Act. In April, Ernest Migali, the Respondent's vice presi- dent, talked to Maritza Tortes about the Union. He said that business was slow and if the employees voted for the Union, they could get laid off or the plant could close down. He also showed her a slip of accounts pay- able and similar information when he made that state- ment. In his testimony Migali denied threatening any- body with plant closure. Because Migali may not have considered his remark to have been a threat and because Torres' demeanor as a witness appeared convincing and honest, I have credited Torres' version of the conversa tion. However, the record is not clear whether Ernest Migali's statements amounted to a prediction of adverse consequences of unionization, or whether he threatened, plant closure if the employees were to vote for the Union. Torres' testimony indicates that Migali attempted to demonstrate the financial predicament of the Compa- ny with slips of accounts payable when he made that remark. The record is simply too vague to establish the total context of the conversation or to find a violation. The reduction of the employees' workweek. Alleged in the complaint as a violation of Section 8(a)(3) and (1) is the Respondent's reduction of the employees' 5-day 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD workweek schedule to a 3-day workweek immediately after the union representative requested recognition. The Respondent's answer to the allegation was that its poor financial situation required layoffs, and that the layoffs were planned prior to the union request. In this regard, the record shows that on Thursday, 21 March 1985, Betty Ollek, the Union's representative, accompanied by several employees, met with Migali to request recogni- tion of the Union as the employees' bargaining represent- ative. Migali, who had no prior knowledge of any union activity at his plant, promptly responded that he was considering layoffs and plant closure. On the following day, 22 March, Migali assembled his employees and of- fered them a choice of a layoff of the recently hired em- ployees or a reduction in the workweek of all employees to a 3-day workweek schedule. To be sure, Migali justi- fied his action by pointing to the Company's financial difficulties and his explanation that layoffs were planned and announced prior to his contact with the Union on 21 March. However, several employees (Torres, Ellis, and Iuliucci) testified in one way or another that the employ- ees had no prior notice of any layoffs and were surprised by the Company's action. Migali's testimony of a prior meeting where he generally admonished his employees about thefts and lack of production was confirmed by Charon's testimony, but his answer to a leading question by counsel cannot be interpreted to have corroborated Migali's reference' to a prior warning of layoffs. More- over, I found Migali's testimony to be generally unclear and vague and particularly unpersuasive on this point. The evidence shows that the Respondent had not given, any advance indication of any layoffs. The record is also not persuasive that the Company's financial difficulties were responsible for its actions, par- ticularly when the Company's parallel conduct is consid- ered in the context of a general reduction of the work- week. Migali's testimony of financial hardship referred to inventory levels, profit-and-loss statements as well as ac- counts receivable and accounts payable. But the record contains only stock lists and inventory statements that were incomplete, as well as other documents specifically prepared for the trial. For example, the stock lists for the period prior to March 1985 were not available and are not in the record. None of the documents firmly estab- lished that the Respondent was in a financial predica- ment. The testimony of Bruno and Ernest Migali explain- ing the financial situation was not challenged, but it did not convincingly explain why certain employees were re- called almost immediately, why the Company hired new, untrained employees on a full-time basis before recalling those still on a reduced workweek, and why the Re- spondent was willing to invest $20,000 in an adjoining building in order to expand its operation. For example, the Respondent recalled Julio Berrios, Louis Charon, Elaine Lee, and Billy deGroffl to the full 5-day work- week schedule after they were on a reduced schedule for only 1 week. This may be explained because deGroff is related to Migali, and because Migali had received infor- mation that Berrios and Lee had refused to sign union ' The record shows that the work schedule of Migali's nephew de- Groff was never reduced cards. On the other hand, Raymond Ellis, a prominent union supporter, was not recalled until 14 August 1985 and Iuliucci, the most prominent union activist, was never recalled to the full 5-day workweek schedule. In the meantime, the Respondent hired Preston Burch to a full-time job. He also hired Joyce Rickards on a full-time basis to perform duties similar to Torres', the Company's secretary who had admitted signing a union card and who was still on a 3-day workweek at that time. As soon as Iuliucci left his job in August because he could not afford to remain on the reduced workweek, the Re- spondent hired Robert Westenberger on 10 September as replacement to a full-time position. Finally, the Respond- ent placed an advertisement in May and June 1985 for a sheet metal mechanic, while several employees remained on the reduced workweek who might have been able to perform that work. The General Counsel has shown that the Respondent responded to the employees' request for union represen- tation by instituting a general reduction in the workweek of the employees. The Respondent's suggestion that the layoff or reduction had been announced prior to the union contact is not supported by the record. Consider- ing the Respondent's timing of its actions, as well as its hostility towards the Union as revealed by its interroga- tions and threat, and the pattern of recalling the most prominent union activists last, shows that the Respondent was motivated by union animus. Wright Line, 251 NLRB 1083, 1089 (1980). The Respondent's economic defense is not persuasive. Migali testified that a layoff "had been coming on for a year or two" and that the problem of low orders started in 1983. The Company's financial problems therefore existed for at least a year or two, yet Migali failed to take action until the Union made its re- quest. Moreover, during the critical time, he invested a substantial sum of money in an adjoining building in order to expand his business. While certain employees were still on a reduced workweek, the Respondent hired full-time employees. Other reasons for the layoffs, em- ployee absence and the stealing of tools, had been prob- lems for years, all of which renders the Respondent's de- fense implausible. I accordingly find, that the Respond- ent's reduction of the workweek was unlawfully motivat- ed and in violation of Section 8(a)(3) and (1) of the Act. Discriminatory conduct- involving employees Raymond Ellis and Louis Iuliucci. The complaint alleges that the Respondent discriminated against Ellis and Iuliucci by refusing to permit Ellis to enter the Respondent's office to receive his paycheck or to use the telephone and by failing to restore his work schedule to a full workweek. The Respondent's failure to restore the workweek of Iu- liucci, which resulted in his termination, is similarly al- leged as a violation of the Act. It is uncontested that the Respondent did not recall Ellis until 5 August and that luliucci was never recalled until he decided to accept a full-time job elsewhere. The record is clear that Ellis had openly and prominently supported the Union. He had accompanied Union Agent Ollek when she approached Migali with the request for recognition. He had told Migali that _ the employees wanted union representation and, on the day of the union MIGALI INDUSTRIES 825 hearing, Migali referred to him as "a blind man with a suitcase." He was also on the negotiating committee. Ellis testified that, contrary to past practice, he was not permitted to enter the office to pick up his paycheck or to use the Company's telephone after the union hearing. The consistent testimony of the employees was that Ray- mond Ellis was classified as a leaderman, as were Billy deGroff, Louis Charon, and Julio Berrios. With the ex- ception of Ellis, all leadermen were recalled to a full workweek almost immediately, ostensibly because they were able to perform several functions in the plant. Ellis, like the other leaderman, was also capable of performing a variety of functions, including crating and installing liners. Yet Ellis' hours were not restored until 14 August. Because Migali was under the impression that Berrios, Charon, and deGroff did not play a prominent union role but knew that Ellis did, the inference is that Migali dis- criminated against Ellis. The inference becomes stronger in the light of Migali's comments about him on the day of the union hearing. I find, therefore, that the Respond- ent violated Section 8(a)(3) and (1) by not restoring Ellis to the full workweek along with the other leaderman. Insofar as Ellis' use of the office is concerned, the record is not sufficiently clear as to what extent Ellis was permitted to use the telephone and the office before and after the union hearing. The difference may be so slight as being de minimis. For example, Ellis testified that prior to the Union, management told him to use the telephone during lunchtime although there was no prob- lem in using it during other times so long as he would inform Migali of his intentions to use it. After the advent of the Union, Ellis conceded that he was able to use the telephone but was told that it was a business phone to be used only in emergencies. In addition, there was another telephone which could be used in Bob Landry's office. Insofar as picking up his paycheck is concerned, the record is also not clear whether he was prohibited from entering the office to obtain his paycheck only on the day of the hearing and to what extent he had free access to the office prior to that time. I would therefore dismiss the aspects of the allegations dealing with Ellis' access to the telephone and the office. Iuliucci was never recalled to the full workweek schedule. He was the Company's only welder and had worked for the Respondent for 6 years. He testified that he could ' not continue to live on a 3-day workweek in- definitely. He had worked on the reduced workweek for 5 months and repeatedly asked Migali, his son, and Tom Landry when he would be able to return to a full work- week schedule. When he told them that he "can't live on a three-day workweek," they told him "talk to the Union." Yet Migali also told him that "he [Migali] was the only one that could guarantee [them] a 40-hour workweek and not the Union." Iuliucci left the Compa- ny in search for full-time employment. On 10 September the Respondent hired a replacement for Iuliucci, Robert Westenberger. This employee was immediately hired on a full-time basis. Iuliucci was the most prominent union activist. He had initially contacted the Union, solicited the union cards among his fellow employees, and was a member on the negotiation committee. Under the small-plant doctrine and considering Migali's record of aggressive interroga- tion of employees, it can be inferred that Migali quickly ascertained the identity of the chief union promoter among his employees . Indeed, Migali's statement to him to go to the Union for help underscores that conclusion. The evidence is clear that the Respondent 's refusal to re- store this employee to a full workweek was motivated by union animus. The Respondent refused to inform Iuliucci when he would be restored to ' a full-time position even though Iuliucci pressed his employer repeatedly . Yet his successor was employed on a full-time basis. The Re- spondent's action resulted in luliucci's decision to seek full-time employment elsewhere, because he could not continue to "live on a three-day workweek." It is ac- cordingly clear that the Respondent's action must be construed to be a constructive discharge in violation of Section 8(a)(3) and (1) of the Act. Sullivan Transfer Co., 247 NLRB 772 (1980). Denial of a wage increase. The allegation in the com- plaint that the Respondent denied a promised wage in- crease to all leadermen was not substantiated by the record . The only reference to a promised wage increase for leadermen came from Louis Charon who testified that during a meeting in the spring 1985 all leadermen were informed by Migali that they had received a 50- cent pay raise. In response to Charon's plea for more money, Migali said that he would give them a raise in 3 or 4 months. Migali testified that he had not given any wage increases to any employees after the Union came on the scene because his attorney told him that it was against the law. The record does not really establish that Migali had made a firm promise of a wage increase to the leadermen. Migali may have made that statement with good intentions or merely expressed his hope that he might be able to do so when the time came. More- over, the record is devoid of any evidence of an estab- lished practice to grant pay raises of this kind. There is no evidence that Migali withheld a promised wage in- crease in retaliation for the leactermen 's support of the Union. Indeed, Migali's impression was that most of his leadermen were not in support of the Union. Failure to bargain. The final allegations in the com- plaint charge that the Respondent failed and refused to bargain with the Union over two issues: a change in the vacation schedule for the employees and a new system of discipline. The Union was certified on 3 May 1985 as the employees' bargaining representative. In June-the precise day is disputed-the Company posted a notice informing the employees (R. Exh. 2): Notice The plant will be closed for vacation the week of July 1st 1985-You will be given Monday July 8th as a holiday to take place of the July 4th. Employ- ees will report back to work Wed. July 10th. The testimony shows that for at least 4 or 5 years prior to 1985 the employees were able to select the time of their vacation and that the plant continued operating during the Fourth of July holiday. Maritza Torres was able to get additional vacation time for her honeymoon 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in 1985, but the employees generally were told to take the Fourth of July holiday as their vacationtime. On 28 June, Union Agent Ollek contacted Migali about the change in the Company's vacation policy and requested that the Union `wanted to bargain over the issue. Migali's response was "what would you rather that I do lay them off?" Migali, further stated that if the employees had any problem with the matter why did they not come to him earlier. The record is clear that the Company's vacation policy in the several years prior to the certification of the Union was that the employees were able to take their vacation at different times with advance notice to man- agement. In 1985 after the Union was certified, Migali changed the policy without notice to the Union: When requested to bargain over the issue, Migali declined. The Respondent's conduct in this regard amounted to a refus- al to bargain in violation of Section 8(a)(5) and (1) of the Act. On 2 August Migali announced a progressive system of discipline for lateness or absenteeism. The notice was posted and subsequently the employees began to receive written' warnings pursuant to the policy. Torres testified that prior to the Union's certification she had received oral warnings, but thereafter she had received a letter. The record generally indicates that the Respondent's policy announced in August was a change in policy. The Respondent argues that the warning system was put in place by Plant Manager Robert Landry to aug- ment preexisting work rules to ensure better compliance- Ollek testified that the Respondent provided her with a copy of the new rules during a negotiating session in late August. This would have been the next negotiating ses- sion after the posting of the notice. The record is not clear, however, whether the new policy was actually im- plemented prior to the time of the negotiating session or whether it had been simply announced. It is also not clear whether the Union requested to bargain over the issue. The Union was apparently notified of the policy in August. Because the record is not clear on those points, I would dismiss this allegation of the complaint. CONCLUSIONS OF LAW 1. By coercively interrogating employees, the Compa- ny violated Section 8(a)(1) of the Act. 2. By conveying the impression to the employees that it would be futile to select a union or that it would not bargain with the Union, the Respondent violated Section 8(a)(1) of the Act. 3. By reducing the workweek of the employees be- cause of the Union, the Respondent violated Section 8(a)(3) and (1) of the Act. 4. By refusing to restore the workweek of its leader- man Raymond Ellis and by constructively discharging Louis Iuliucci because of their support of the Union, the Respondent violated Section 8(a)(3) and (1) of the Act. 5. The Union, District 65, United Automobile, Aero- space and Agricultural Implement Workers of America, AFL-CIO, was certified on 3 May 1985 as the exclusive bargaining representative in the following unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All full time and regular part time pro- duction, shipping and receiving, and plant clerical employees working at the Employer's plant now lo- cated at 1475 South 6th Street, Camden, New Jersey. Excluded: All office clerical employees, manage- rial employees, guards and supervisors as defined in the Act. 6. By failing and refusing to bargain with the Union about a change in the employees' vacation schedule, the Respondent violated Section 8(a)(5) and ,(1) of the Act. The other allegations in the complaint were not sub- stantiated. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having constructively discharged em- ployee Louis Iuliucci because of the Union, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter- est as computed in Florida Steel Corp., 231 NLRB 651 (1977). Having reduced the workweek of its employees because of the Union and having failed to restore the workweek of leaderman Raymond Ellis because of his union support, the Respondent must make them whole for any loss of earnings and other benefits, in accordance with the cited cases. On these findings of fact and conclusions of law and on the entire , record, I issue the following recommend- ed ORDER The Respondent, Migali Industries, Inc., Camden, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Causing the discharge of or otherwise discriminat- ing against any employee for supporting District 65, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO or any other union. (b) Reducing the workweek of its employees because of the above-named Union or any other union and failing to restore the workweek of its leadermen or otherwise discriminating against any employee, because of their union support. (c) Conveying to the employees the impression that it would be futile to select a union or that it would not bar- gain with the Union. 2 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 MIGALI INDUSTRIES (d) Coercively interrogating any employee about union support or union activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the appropriate unit concerning the vacation policy or any other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment. (b) Make the employees, including Raymond Ellis, whole for any loss of earnings or any other benefits suf- fered as a result of the discrimination against them in the manner set forth in the remedy section of this decision. (c) Offer Louis Iuliucci immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of this decision. (d) Remove from its files any reference to the unlaw- ful discharge and notify the,employee in writing that this has been done and that the discharge will not be used against him in any way. 827 (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. - (f) Post at its facility in Camden, New Jersey, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. - IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 3 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."