Animal Humane Society Of South Jersey, Inc.

50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Animal Humane Society of South Jersey , Incorpo- rated and United Food and Commercial Work- ers Union, Local 1360, AFL-CIO-CLC. Cases 4-CA-12843, 4-CA-12847, 4-CA-12866, 4- CA-12904, 4-CA-12928, 4-CA-12952-1-2-3, and 4-CA-12960 11 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 16 March 1983 and 5 March 1987, respec- tively, Administrative Law Judge Claude R. Wolfe issued the attached decision and supplemental deci- sion. The Respondent filed exceptions to the origi- nal decision but not to the supplemental decision, which concerned only an aspect of the issue of ju- risdiction.' The General Counsel filed cross-excep- tions and a supporting and answering brief.2 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,3 and conclusions as modified and to adopt the recom- mended Order as modified.4 I The Respondent has requested oral argument Although the Re- spondent's exceptions were prepared without the assistance of an attor- ney and do not comply fully with the Board's Rules, including the re- quirement of page citations to the record, we have searched the record carefully for evidence supporting the Respondent's contentions The issues presented do not warrant oral argument We therefore deny this request 2 The General Counsel moved to strike "a statement from Fred Buker," that was referred to in the Respondent's exceptions as having been filed with the exceptions We have found no copy of such a state- ment and it is therefore not part of the record Moreover, the contents of the missing statement, to the extent described in the Respondent's excep- tions, do not appear to be germane to the issues before us 9 The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 Additionally, we are satisfied that the Respondent's contentions that the judge was biased are without merit There is nothing in the record to suggest that his conduct at the hearing, his resolutions of credibility, his rulings, or the inferences he drew were affected by bias or prejudice In affirming the 8(a)(1) violation in the Respondent's prohibiting John Walkden from talking to other employees during "working hours," we do not rely on TR. W Bearings, 257 NLRB 442 (1981), but on Our Way, Inc, 268 NLRB 394 (1983), which overruled TR W Bearings in part " In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed 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 accrued prior to I 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) With the exception of the two findings discussed below, we agree with the judge's resolution of all the issues in this proceeding. 1. While we agree with the judge's finding that the Respondent violated Section 8(a)(3) and (1) by reassigning employees Bissonette and John Walk- den exclusively to kennel cleaning after they were reinstated in April 1982, we find insufficient evi- dence to support his further finding that their reas- signment caused employee Eddis to lose hours of work, resulting in an additional 8(a)(3) and (1) vio- lation. Eddis testified that his workweek dropped to about 20 hours after a Board hearing which, the record independently shows, was held on 21 April. However, the judge did not rely on that testimony and discredited Eddis on certain other disputed issues. He relied instead on the Respondent's pay- roll records, which, however, do not support a loss of hours related to the Bissonette and Walkden reassignments. From the beginning of 1982 until his lawful discharge in May 1982, Eddis' weekly re- corded hours ranged from 24-1/2 to 40. His mean workweek during each of the 4 full months he worked in 1982 went, progressively, from 31 hours to 30-1/2 to 36 to 34. His hours for the week in which Bissonette and Walkden were reassigned were the same as for the preceding week, 30-1/4. A slight drop to 26-1/2 hours for the next week, which was his final full week of work, is an insuffi- cient variation to warrant its attribution to the un- lawful reassignments of the other employees. We therefore reverse the judge's finding and dismiss the allegation.5 2. We also find the 6 May 1982 discharge of James Sztubinski to have been the result of his stealing a $15 donation and not because of union activity, notwithstanding the Respondent's unlaw- ful statement to another employee that indicated an antiunion motivation in the discharge of Sztubinski and others. As the judge found, the Respondent established that it had adequate proof of Sztubinski's theft, thus placing him on a different footing from other employees who were only suspected of theft and whose explanations were sufficient to warrant giving them the benefit of the doubt. What per- suaded the judge that the real reason for Sztubin- 5 Bissonette and Walkden were later discharged unlawfully because of their union activities However, we do not adopt the judge 's finding that Walkden's discharge was unlawful also because it was in retaliation for Walkden's pursuing an unemployment compensation claim Self Cycle & Marine Distributor Co, 237 NLRB 75 (1978 ), on which the judge relied, is no longer good law D A Collins Refractories, 272 NLRB 931, 932 (1984) See generally Meyers Industries, 281 NLRB 882 (1986) Member Johansen , who did not participate in Meyers, concurs in this result Unlitigated factors, urged by the Respondent to preclude reinstatement for Bissonette and Walkden , may be litigated at the compliance stage See generally Dean General Contractors, 285 NLRB 573 (1987) 287 NLRB No. 9 ANIMAL HUMANE SOCIETY ski's discharge was not the valid ground of theft, but the unlawful one of union activities, was the statement to employee Eddis by one of the Re- spondent's principal figures that he had fired Bis- sonette, just as he had fired Sztubinski and John Walkden (all three were known union supporters), "because nobody is going to come down here and tell me how to run my kennel, my life," adding that no "thug or goon or the NLRB" would tell him whom to hire or fire. We acknowledge that this statement, in the context of the Respondent's contemporaneous unfair labor practices, constitutes a prima facie showing to support the inference that the union activity was a motivating factor in the discharge. We are persuaded, however, that the Respondent would have discharged Sztubinski in any event, based on the theft alone. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U S. 393 (1983). Thus the Respondent introduced evidence to show that at least one other employee had been discharged for theft, and no evidence exists here that employees known by the Respond- ent to have engaged in similar conduct were kept in its employ Further, consistent with its claim throughout this proceeding, the Respondent told Sztubinski at the time of the discharge that he was being discharged because of the theft. On the whole record, despite the statement to Eddis, we find that Sztubinski's misconduct caused his dis- charge. Therefore, we reverse and dismiss the alle- gation concerning Sztubinski's 6 May 1982 dis- charge.6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Animal Humane Society of South Jersey, Incorporated, Turnersville, New Jersey, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraphs 1(c) and 2(d) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that, of the administrative law judge. CHAIRMAN DOTSON, dissenting. Unlike my colleagues and the judge, I would not assert jurisdiction over the Respondent in this case. The Respondent is a nonprofit charitable institu- 6 Consequently, we do not pass on the judge's recommendations that Sztubinski be denied reinstatement and backpay because his misconduct caused him to forfeit such remedies 51 tion 1 engaged in, picking up and providing shelter and other services for lost, stray, and unwanted animals in the Southern New Jersey area. The Board, in my view, should not assert jurisdiction over any labor dispute involving this type of em- ployer unless the evidence shows that this particu- lar class of institutions has a substantial impact on interstate commerce.2 As no such showing has been made here, I would decline to assert jurisdic- tion over the Respondent and would dismiss the complaint in its entirety.3 ' The Respondent is registered with the Charities Registration Bureau, an agency of the State of New Jersey 2 See my dissenting opinions in Alan Short Center, 267 NLRB 886, 889 (1983), Salvation Army, 271 NLRB 195 (1984), Volunteers of America, 272 NLRB 173, 175 (1984) a As I would not assert jurisdiction over the Respondent, I find it un- necessary to reach the question whether the Respondent satisfies the Board's jurisdictional standards 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. WE WILL NOT discourage membership in United Food and Commercial Workers Union, Local 1360, AFL-CIO-CLC, or any other labor organization, by discharging any of our employees, assigning them to less desirable work, reducing their hours of work, or in any other manner discriminating against them in regard to their tenure of employ- ment or any term or condition of employment. WE WILL NOT discharge or threaten to discharge employees for attending a National Labor Rela- tions Board hearing. WE WILL NOT discourage union membership by issuing written warnings to employees or restrict- ing their access to work-related areas. WE WILL NOT physically assault or threaten em- ployees or their families with physical injury if em- ployees engage in union activity or fail to cause the withdrawal of representation petitions filed with the National Labor Relations Board. WE WILL NOT threaten to close our Turnersville, New Jersey facility or discharge our employees if they select United Food and Commercial Workers Union, Local 1360, AFL-CIO-CLC as their col- lective-bargaining agent. WE WILL NOT Solicit or demand that our em- ployees cause the withdrawal of unfair labor prac- 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tice charges or representation petitions filed with the National Labor Relations Board. WE WILL NOT threaten to bring suit against em- ployees if they do not withdraw unfair labor prac- tice charges. WE WILL NOT threaten to damage employees' reputations if they support a union. WE WILL NOT prohibit employees who support a union from associating with other employees at the facility, nor will we prohibit employees from en- gaging in union-related conversations during work- ing hours. WE WILL NOT call our employees derogatory names because of their union activity , nor will we tell employees that other employees were dis- charged because of their union activity. WE WILL NOT tell our employees that we are seeking a reason to discharge them because of their union activities. WE WILL NOT interrogate our employees with respect to their union activities or those of others, nor we will solicit them to seek out and report to us on the union activities of other employees. WE WILL NOT tell our employees that we will not allow a union to represent them or that it is futile to engage in protected activity or seek the as- sistance of the National Labor Relations Board. WE WILL NOT solicit employee grievances to promise to negotiate directly with or grant benefits to them if they cause the withdrawal of a represen- tation petition filed with the Board. WE WILL NOT promulgate new work rules, threaten to enforce, or enforce existing rules more strictly because employees engage in union activi-, ty, and WE WILL immediately rescind the new work rules imposed by us 3 April 1982, and advise you in writing that we have done so. 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. WE WILL, on request, bargain collectively with United Foods and Commercial Workers Union, Local 1360, AFL-CIO-CLC as the exclusive bar- gaining representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody that understanding in a written, signed agreement . The bargaining unit is. All full-time and regular part-time employees employed by us at our Turnersville, New Jersey location, but excluding all guards and supervisors as defined in the Act. WE WILL offer Ruth Bissonette and John Walk- den immediate and full reinstatement to their former positions as dog wardens without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest computed on any such backpay. WE WILL offer Nancy Walkden immediate and full reinstatement to her former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, together with interest computed on any such backpay. ANIMAL HUMANE SOCIETY OF SOUTH JERSEY , INCORPORATED William Slack and Barbara Joseph, Esqs, for the General Counsel. G. Donald Siemer, for the Respondent DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This consolidated proceeding was tried before me at Philadel- phia, Pennsylvania , on October 18, 19, 20, and 21, 1982, pursuant to changes timely filed and duly served, and consolidated complaint issued May 27, 1982, and amend- ed August 17, 1982. It is alleged that Animal Humane Society of South Jersey , Incorporated (Respondent) en- gaged in numerous violations of Section 8(a)(1), (3), and (4) of the Act, which preclude the holding of a fair elec- tion and require a bargaining order - in addition to the usual remedies . Respondent denies that it has committed unfair labor practices. On the entire record' and my observation of the wit- nesses' demeanor as they , testified before me , and after consideration of the General Counsel's brief2 and the po- sitions expressed by both parties during the trial, I make the following3 i There are numerous minor errors in the transcript of the proceedings, but none are significant enough to affect the quality of the evidence before me or the conclusions drawn therefrom 2 Respondent filed no brief, and its request for an extension of time to file a brief, both mailed and received after the brief due date, was denied as untimely filed 3 Much of the evidence from which the factfindings are drawn is un- controverted Where credibility resolutions are necessary, they have been made after consideration of relevant objective evidence, the inherent probabilities in all the circumstances, the presence or absence of convinc- ing corroborating testimony , inconsistencies and evasions, the common fallibility of human recollection of minute detail, the interests of witnesses in the outcome of the litigation , and comparative testimonial demeanor It is obvious from the findings which witnesses were credited and which were not No witness impressed me as one with total recall , and two, Towles and R Siemer , were particularly evasive as their testimony re- flects ANIMAL HUMANE SOCIETY 53 FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is a nonprofit New Jersey corporation with its facility located at Turnersville, New Jersey, where it is engaged in picking up and providing shelter and other services for lost, stray, and unwanted animals During the 12 months ending March 31, 1982, Respond- ent provided services valued at $20,000 to Atlantic City, New Jersey, $25,000 to Camden, New Jersey, and $7200 to Winslow Township, New Jersey During the same period, each of these three municipalities purchased and received goods valued in excess of $50,000 directly from points located outside the State of New Jersey 4 There is no evidence any of these municipalities exercise any con- trol over the working conditions of Respondent's em- ployees, and I find they do not All such control is exer- cised by Respondent who is clearly able to engage in meaningful collective bargaining with a labor organiza- tion.5 Accordingly, I find Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 6 II. LABOR ORGANIZATION United Food and Commercial Workers Union, Local 1360, AFL-CIO- CLC (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. III SUPERVISORS, EMPLOYEES, AND AUTHORIZATION CARDS The Respondent was created by G. Donald Siemer and his ex-wife, Rosalie Siemer, on a piece of property owned by R. Siemer and surrounded on three sides by a farm owned by R Siemer and managed by G. Siemer. The parties stipulated that R. Siemer is one of Re- spondent's trustees with authority to hire and fire its em- ployees; that Siemer is a consultant to Respondent with authority to effectively recommend the hiring and firing of its employees; and that James Towles is the facility manager and a supervisor within the meaning of the Na- tional Labor Relations Act. There is abundant evidence in the record to support a conclusion, which I make, that each of the Siemers in fact has and exercises all the su- pervisory authorities enumerated in Section 2(11) of the Act Accordingly, I find that the Siemers and Towles are supervisors and agents of the Respondent within the meaning of the Act The complaint alleges, and Respondent denies, that the following employees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. All full time and regular part-time employees em- ployed by the Animal Humane Society of South Jersey, Incorporated at its Turnersville, New Jersey 4 The combination of recurring and nonrecurring expenses is necessary to reach a figure for each locality in excess of $50,000 Such combination is proper for determining jurisdiction East Side Sanitation Service, 230 NLRB 632 (1977) 5 See National Transportation Service, 240 NLRB 565 (1979) 6 Southern Alleghenies Disposal Services, 256 NLRB 852 (1981) location, but excluding all guards and supervisors as defined in the Act. An all-employee unit is presumptively appropriate under the Act,' and Respondent has proffered nothing to rebut this presumption The unit alleged is therefore found to be appropriate for purposes of collective bar- gaining. The identity of Respondent's employees is a more dif- ficult question There are individuals acknowledged by both Respondent and the General Counsel as Respond- ent's employees during the union organizing campaign involved in this case. These persons are David Eddis, John Walkden, Ruth Bissonette, Robert Carter, Lori Miklea, and James Tucker It is not clear whether Re- spondent contends that Fred Mark Buker was a supervi- sor, but Siemer, in his capacity as Respondent's repre- sentative during the trial,8 asserted that Buker was the assistant manager in March 1982. Respondent presented no evidence and none was adduced to support a finding of supervisory status for Buker. The record evidence shows that Buker's duties and responsibilities were like those of other rank-and-file employees Accordingly, I find that Buker was a unit employee at all times material. Siemer's uncontroverted testimony establishes that Louis and Eddie Hammond were employed by him, not the Respondent, to work on the farm and only per- formed work for Respondent in an emergency. The Gen- eral Counsel agrees with Siemer that the Hammonds were not employees of Respondent, I so find Remaining in issue is the status of James Sztubinski, Sue Freiburger, Walter Bowers, Nancy Walkden, Bonnie Fletcher, and Keith Remington. James Sztubinski worked as a dog warden driving Re- spondent's vehicle on a regular daily basis. He used the timeclock as other employees of Respondent to clock in and out each day. While on duty he was dispatched by Respondent to various locations to pick up animals His duties as dog warden were identical to those of acknowl- edged employee John Walkden. On May 5, 1982, R. Siemer issued a notice of termination to him on Respond- ent's letterhead. I do not believe R. Siemer was firing someone who was not employed by the Respondent Sztubinski's duties, as well as his regular use of the em- ployee timeclock, confirm that he was a unit employee at all times material to this proceeding According to Siemer, Sue Freiburger was employed by him, not the Respondent, in March 1982. He testified that Freiburger worked about 25 hours a week doing kennel cleaning and animal census work He does not say what, if any, work she performed for him apart from work related to Respondent's business, and in the ab- sence of any such evidence I conclude all her work was for Respondent on whose behalf Siemer was acting as an agent. On this evidence I am persuaded that Freiburger was, in March 1982, a regular part-time employee of Re- spondent To the extent that G Donald Siemer may have hired and paid her from his own funds, which I doubt in view of his concession that he received in 7 Mid Allegheny Corp, 233 NLRB 1463, 1464 (1977) 8 Respondent elected not to be represented by an attorney 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD excess of $900 per month from Respondent, which was used to pay for work done for Respondent, he and the Respondent for whom the work was done were point employers 9 This does not obscure the simple fact that Freiburger was an employee of Respondent, nor does it diminish Respondent's legal liability for any unfair labor practices by its agents, of whom G D. Siemer was the most prominent in Respondent 's antiunion campaign and who, in fact, runs the operation on a day-to-day basis. Walter Bowers, according to Siemer, was employed by him in March 1982 working around the kennel as needed to clean up Siemer states , and there is no evdence to the contrary, that Bowers was sent by him to work an hour or two a day in the kennel as needed in Marh 1982 for a total of 8 to 10 hours a week, although at one point Bowers worked 3 or 4 hours a day at the kennel. Al- though Siemer avers that Bowers "mostly worked around the kennel" in context with the rest of Siemer's testimony on this subject I am persuaded that this refers to the portion of his time working on Respondent's premises that Bowers spent cleaning kennels . On this scant evidence, I conclude that Bowers worked regular- ly, although on an unscheduled basis, performing the same duties as some of Respondent 's full-time employees. While so doing he was subject to the same supervision and was most probably reimbursed for his time so spent from the funds furnished Siemer by Respondent. In the circumstances, particularly the fact that Bowers works' at the kennel several days each week even though such work may be as little as 1 hour on a given day, his inclu- sion in the employee unit as a regular part-time employee would appear consistent with the Board's well-estab- lished standard of including part-time employees who "perform work within the unit on a regular basis for a sufficient period of time during each week" . . . to demonstrate that they have a substantial and continuing interest in the wages, hours, and working conditions of the full-time employees in the unit " " Accordingly, I find Bowers was a regular part -time employee in March 1982. Bonnie Fletcher worked at the kennel about 30 hours a week from February 1982 until she left in August 1982. She received her work instructions from James Towles and spent about 60 to 70 percent of her worktime driv- ing a truck . She also groomed dogs and cleaned the kennel Her wages were sometimes paid in cash and sometimes by check drawn on Respondent and signed by R. Siemer Stipulated employees were also paid in both fashions. The reasons for these alternative methods of payments are not clear , but the record contains no evi- dence that Fletcher performed any work on the farm or otherwise for Siemer personally. Bonnie Fletcher was a regular part-time employee of Respondent within the collective-bargaining unit set forth above Nancy Walkden was hired by Siemer in 1981 . Thereaf- ter she worked at dispatching, cleaning kennels, and census taking for the Respondent until her discharge on 9 See, a g , Manpower, Inc, 164 NLRB 287 (1967) 10 The duration of Bowers ' employment is not established , but it ap- pears from Siemer's testimony to have been for at least several weeks 11 Farmers Insurance Group, 143 NLRB 240, 244-245 (1963) or about April 2, 1982. She punched the timeclock as did other employees and was paid in cash by Siemer for her time worked She did no work for Siemer on the farm or for him personally I conclude that Siemer hired her in his capacity as an agent of Respondent and thereafter paid her from the monthly funds he received from Re- spondent to be so used Nancy Walkden was a unit em- ployee, and testimony to the effect that she was a volun- teer or just around waiting for her husband is not cred- ited Keith Remington signed a union authorization card on March 23, 1982, but there is no persuasive evidence he worked more than a day or two thereafter or that he was present at the kennel before March 22, 1982 John Walkden's testimony that Remington was a maintenance person and part-time warden/driver amounts to nothing more than a conclusion . Siemer testified that Remington went to work for him on the farm for about 2 days, but was sent over to help clean the kennels one day, after which Siemer let him go because he lacked the tempera- ment for kennel work I credit Siemer , and conclude that Remington worked for Siemer on the farm for 2 or 3 days, helped to clean the kennels on one of those days, was thereafter released as unsatisfactory , and never became an employee of Respondent. The evidence simply will not support a finding that Remington was any more an employee of Respondent than the Ham- monds, who did casual work at the kennels, but who were not Respondent's employees. Keith Remington is ex- cluded from the bargaining unit There are other persons working at the facility from time to time as volunteers. The parties are in agreement, and I find, that these individuals are not employees. Shawn Martin and Rick Luck fall in this group Summing up, Respondent's unit employees at the time authorization cards were signed in March 1982 were David Eddis, John Walkden, Ruth Bissonette, Robert Carter, Lori Miklea, James Tucker, Fred Mark Buker, James Sztubinski, Sue Freiburger, Walter Bowers, Bonnie Fletcher, and Nancy Walkden John Walkden signed a union authorization card on March 22 Eddis, Sztubinski, Tucker, Bissonette, and N. Walkden signed on March 23. Buker and Miklea signed on March 30. The cards are ex- press authorizations for the Union to represent the signa- tories in collective bargaining, were all properly authen- ticated, and were signed by 8 of the 12 unit employees by March 30, 1982. IV UNFAIR LABOR PRACTICES12 There was no union activity among Respondent's em- ployees until March 22, 1982.13 On that day they pre- sented various job-related complaints to the Siemers, but received no satisfaction Disgruntled, several employees 12 There are many violations of Sec 8(a)(1) alleged and found The well-established test applied in each such instance is "whether the Em- ployer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employee 's rights under the Act " G H Hess, Inc, 82 NLRB 463 fn 3 (1949) Accordingly, each finding of violation is to be read as containing a finding that such a tendency was present `a All dates are 1982 unless otherwise stated ANIMAL HUMANE SOCIETY 55 repaired to Sztubmski's lodgings from whence John Walkden called the union offices and arranged a meeting with union organizer Marchione for that evening Walk- den met with Marchione, discussed the Union and au- thorization cards, signed an authorization card, and took cards to distribute to fellow employees The following day, March 23, Walkden and his wife, Nancy, who signed a card, solicited other employees to sign cards. Several did. The cards were returned to the Union, which then filed a petition for a representation election with the Board's Philadelphia Region on March 25. The Regional Office served a copy of the petition on Respondent by certified mail received and signed for by Rosalie Siemer on March 30. R Siemer responded, by letter on April 3 to the Board's Regional Office, by stat- ing, inter alia, that Respondent had 6 rather than 13 em- ployees as the petition claimed, and she would not like to see the group split up because of one discontented orga- nizer who had a right to start his or her own kennel else- where Her letter describes the petition as a form show- ing that 13 persons desired to form a union. R Siemer's letter and the receipt for the petition establish, notwith- standing her incredible protestations to the contrary, that she, and therefore Respondent, was aware of union ac- tivity among the employees on March 30 and opposed it. On April 3,14 G. Donald Siemer berated John and Nancy Walkden as sneaks because they had gone to the Union without receiving his permission, and continued that he would not allow a union to come in, would not run the business with a third partner, and would fire ev- eryone and sell the facility.15 Third partner obviously means the Union. Each of these four statements violated Section 8(a)(1) of the Act. Siemer then told Nancy Walkden there was no more work for her, and he would call her if any came in. Walkden was then doing dispatching work, Siemer had told her that she would be working on an upcoming dog census, and had purchased maternity clothing for Walk- den to wear while doing so. Respondent offers no per- suasive evidence that there was in fact a lack of the type of work being performed by Walkden. Lisa Mahon, who left Respondent's employment prior to the advent of the Union, returned to work as a census taker after N. Walk- den was terminated on April 3. I conclude she replaced Walkden. Siemer's characterization of the Walkdens as sneaks who had gone to the Union establishes his knowl- edge or belief that they were union adherents. Add to this his accompanying threats and the absence of a be- lievable, lawful reason for the termination of N. Walk- den, and the conclusion is unescapable that the General Counsel has established by a preponderance of the evi- dence that she was discharged in retaliation for union ac- tivity, and the discharge violated Section 8(a)(3) and (1) of the Act. Respondent's efforts to contact N. Walkden for a census clinic a week after her dismissal , as testified 14 The witnesses say either April 3 or 4 April 4 was a Sunday and it appears employees are paid on Saturday It is more probable they would be present on a Saturday than a Sunday when the kennel is closed 11 Siemer does not directly deny that he made these statements, but takes comfort in an assertion that he does not own the facility or the land under it, and therefore could not close it to by Lori Miklea, failed, and I find she was never of- fered reinstatement. On the afternoon of April 3, R. Siemer displayed and read to John Walkden and David Eddis a list of rules pertaining to employee conduct that were in effect at a nursing home whose employees were represented by the same Union. She further stated that if they wanted to play union games she would also play them, and specifi- cally advised Walkden and Eddis that henceforth it would be grounds for discharge if employees drank coffee during working hours, smoked, or talked to other employees. David Eddis is an inveterate coffee drinker while he works R. Siemer told him he would be fired if he continued to do so during working hours. No smok- ing signs have been posted at the faciliy since prior to the union organizing, and Siemer had frequently ex- pressed his distaste for cigarette smoking It is clear, however, that employees did smoke on the premises during working hours, albeit outside the office, with no discipline levied against them. Similarly, employees had regularly discussed nonwork-related matters while they were working without reprimanded or discipline. The promulgation of the new rules, together with the threat to strongly enforce old rules, were responses to protect- ed union activity, and violated Section 8(a)(1) of the Act. The same day, April 3, Siemer instructed John Walk- den that he would be cleaning the kennels and perform- ing the same work Eddis did. Eddis was not a driver, but spent his workday cleaning kennels, feeding animals, and the like When Walkden asked why, Siemer merely said it was what they had decided they wanted him to do. Walkden was hired as a dog warden and had never been regularly assigned to kennel cleaning, although it appears he may have assisted in such cleaning on rare occasions. On April 4, James Towles, a stipulated supervisor, told Walkden that Siemer was on an antiunion venture and was cutting Walkden's hours in hopes that Walkden would convince his fellow employees to have the elec- tion petition "pulled " Respondent's payroll records show that Johti Walkden worked an average of 32.1 hours per week in January, 39 in February, 34.69 in March, but no more than 24-1/4 hours any week in April. Considering Respondent's habit of sometimes paying employees in cash not recorded on a payroll record rather than by payroll check, and John Walkden's credible testimony that as a dog warden he frequently worked on Sunday and Monday, his scheduled day off, from 8 to 12 hours each day, in addition to working nights on emergency calls,16 for all of which he was paid in cash, I am persuaded that Walkden's claim that he worked between 50 and 60 hours a week prior to his assignment to the kennels is not an improbable estimate. When Walkden complained to Siemer about this reduc- tion in hours, the only reply he got was that Siemer wanted him to do the kennel work and that job only re- quired the hours Walkden was getting Regarding testimony adduced by Respondent to the effect that Walkden requested and was given a 4-day 11 Lori Miklea corroborates Walkden's claim of frequent weekend and night work 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD workweek in March prior to the union activity that Walkden denies, I note that he still worked 39 hours on the record during the last week in March Moreover, even crediting Respondent's evidence on this point, there is no evidence that this scheduling required reassignment or that Walkden was ever told of any such reassignment prior to April 3, the very same day R Siemer indicted her displeasure with employee union activities in her letter to the Board, and the very same day both Siemers made statements to employees violative of Section 8(a)(1) of the Act, and the very same day N. Walkden was un- lawfully discharged. Finally, Towles' statements to John Walkden on April 4 constitute admissions by Respondent setting forth the real reason for his job reassignment The General Counsel notes that Towles testified the assignment of Walkden was caused by kennel renovation and a need for cleaners, but the Siemers claim it was caused by Walkden's speeding and damage to a truck he was driving The truck was damaged at the end of 1981 according to Siemer Walkden agrees, credibly testifying that it blew up in November 1981 at a time he was not driving it and he was only working part time on week- ends with a different truck Siemer concedes that he also drove the truck that was damaged It was not until April 29, long after Walkden's reassignment, that Respondent was advised by D'Andrea Tire, Inc, that problems with the truck were caused by driver neglect. If it be true that the truck was in fact damaged in 1981, it is passing strange indeed that no action was then taken against Walkden, and even stranger that the reason for the damage was not ascertained until April 1982. On the record before me it is just as likely the G. Donald Siemer caused the damage as Walkden, and I do not be- lieve that the Respondent was particularly concerned about it until it saw a chance, after the reassignment, to construct a defense that in fact did not exist. Respond- ent's efforts in this direction are transparent pretexts de- signed to disguise the true motive expressed by Towles. The speeding issue is equally specious. Towles speaks of complaints about Walkden speeding throughout his em- ployment, but nothing was done about it The resurrec- tion of this item as a reason for reassignment also betrays a willingness to utilize false reasons to avoid the legal li- ability for the true reason. In short, Respondent's con- flicting and pretextual reasons do not rebut the General Counsel's proof that John Walkden was unlawfully reas- signed because Respondent was aware of and resented employee union activity, but, rather, buttress it 17 There is not the slightest iota of persuasive evidence that Walkden would have been reassigned to cleaning kennels absent the union activity of the employees. I am inclined to the conclusion that Respondent not only sus- pected but knew of Walkden's leading role in that activi- ty by April 3, but it is not necessary to draw that specif- ic inference in view of the overwhelming preponderance of the direct evidence in favor of finding the actions against the Walkdens on April 3 to be violative of Sec- tion 8(a)(3) and (1) of the Act A hearing on the representation petition was set by the Board for April 12 On April 9, Siemer called John Walkden and David Eddis into his office John Nardo- lilli, who was identified to Walkden by Siemer as a motor vehicle agent for Respondent, was also present. Siemer opened the conversation by stating he had just got off the phone with a Board agent, and the employees had opened up a can of worms they could never close and were getting him and the other employees in trouble because he had to produce records showing who worked there, and most employees were on unemployment com- pensation or welfare and being paid under the table. He continued that the employees had to pull the election pe- tition before April 12, and that he would negotiate wages and fringe benefits with them if they did He added that he could not have a third party in the kennel, and R. Siemer would dispose of all the trucks and shut down the facility rather than let a union get involved. The promise to negotiate directly with employees, the demand that the petition be withdrawn, and the threat to sell the trucks and close the facility to avoid a union each violated Section 8(a)(1) of the Act. During this meeting Nardolilli'8 volunteered that if they did not pull the petition he could break Walkden's leg and stop Nancy Walkden's pregnancy. Siemer was present throughout Nardolilli's comments with a smile on his face and made no effort to restrain or disavow Nardolilli's statements. A conclusion is warranted that Nardolilli was there at Siemer's invitation for the express purpose of intimidating the employees to such an extent they would abandon union activity Nardolilli was an ap- parent agent of Respondent so far as Walkden and Eddis were concerned in view of his presence in the office for no apparent purpose other than to support Siemer, his threats to enforce Siemer's desires by violence if neces- sary, and the failure of Siemer to make any effort to pre- vent or disavow Nardolilli's threats. Siemer's smiling countenance while Nardolilli made extreme threats of physical injury suggests complete agreement with and adoption and condonation of those threats. Accordingly, Respondent, by its agent Nardolilli, violated Section 8(a)(1) of the Act by threatening employees with physi- cal injury if they did not cause the election petition to be withdrawn At the end of this meeting Siemer scheduled a meeting for that evening with employees designated by their peers to negotiate employee benefits Walkden attended with Buker'9 as the sole employees present. Present for Respondent were both Siemers Union Agents Mar- chione and Diatchenko were standing with Buker and Walkden outside the diner where the meeting took place when the Siemers arrived. The union agents requested permission to attend the meeting, but were refused by the Siemers Marchione, noting that R Siemer had a tape recorder, advised the employees to be careful what they said because it would be recorded. Walkden and Buker presented the Siemers with a list of demands, including wage increases, health insurance, 17 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) 18 Nardolilli was not called as a witness i8 Buker did not testify ANIMAL HUMANE SOCIETY 57 and sick days Siemer responded that employees would receive all these benefits if they pulled the election peti- tion This promise of benefit to induce withdrawal of the petition had a reasonable tendency to interfere with the exercise of statutory rights, and violated Section 8(a)(1) of the Act Walkden promised to take this proposal back to the other employees Siemer opined that sounded good and cautioned Walkden not to forget what "John" had told Walkden This latter comment plainly refers to John Nardolilli and represents both an express adoption and repetition of those threats by Respondent in the person of G Donald Siemer, its agent, and violated Sec- tion 8(a)(1). After Buker and Walkden left, the union agents ap- proached the Siemers and were told by Siemer that the Union should just forget about the April 12 hearing and withdraw its petition because he would give the employ- ees what they wanted and did not need a third party. Walkden called the other union adherents and advised them of Respondent's offer They decided not to trust the Siemers, but to support the Union's petition. On April 10, about 7.30 or 8 am, Siemer told Eddis that Buker and Walkden had said they were going to "pull" the petition. R. Siemer and Ruth Bissonette en- tered. R Siemer told her husband, in the employees' presence, that she was resigning from Respondent and was considering closing the kennel because she could not have a third partner in the business This threat to close rather than have a union violated Section 8(a)(1) Either before or after that conversation'20 Siemer had a private talk with Bissonette wherein they discussed her subpoena to the Board hearing on April 12 Siemer told her if she went to the hearing on Monday she would have no job Tuesday even if he had to shut down This threat to dis- charge Bissonette for attending a Board hearing violated Section 8(a)(1) He also stated that he would not have the Union as a third party (another 8(a)(1)) violation and accused the employees of carrying on a personal vendet- ta against him and trying to cause the death of the busi- ness. Later that day, Siemer met with Eddis and Bissonette. He told them Buker and Walkden had decided to pull the petition and would meet with employees on the matter before Monday, April 12. Bissonette again ad- vised that she was subpoenaed to the April 12 hearing, and showed him the subpoena. Siemer retorted that em- ployees attending the hearing would have no jobs on Tuesday, and thus again violated Section 8(a)(1)' Sztubinski entered toward the end of this conversation and asked for his pay 21 Siemer told him he was being let go because fellow employees were complaining about his work Sztubinski left the office, but Siemer talked to him privately outside the office and assured him he would be recalled to work, but not his normal duties, after the union problem was resolved. Bissonette and John Walkden were in the habit of complaining because Sztubinski regularly quit work in the early afternoon. Rosalie Siemer testified to a specific arrangement whereby Sztubinski would start early and 20 After seems more probable 21 It was payday leave early to practice and play baseball. He had this same arrangement with Respondent during a prior period of employment According to Towles, employees had made complaints to him on several occasions in early 1982 about Sztubinski's leaving early. There is no credi- ble evidence that Sztubmski's leaving early resulted in warnings or discipline before the discharge, even though it had been going on long before any union activity. Moreover, R. Siemer's testimony about the arrangement for Sztubinski to play baseball establishes that Sztubms- ki's early leaving was in accordance with his employ- ment agreement with Respondent The context of unlawful statements and discharges preceding and surrounding Sztubinski's severance on April 10, together with Siemer's private assurances of recall when the union problem was solved, which is most reasonably construed to mean the departure of the Union as Respondent desired, is sufficient to establish a strong prima facie case that this discharge was motivated by the existence of employee union activity, which Re- spondent was mightily striving to extinguish The ad- vancement of employee complaints about an employer- approved practice as a reason for discharge is on its face a weak reed on which to lean. There is no evidence Siemer made any adjuration to Sztubinski to mend his at- tendance ways at such time as the promise to recall was effectuated Respondent's defense strikes me as an excuse rather than a reason The very fact of an offer of recall after the union problem was dealt with is sufficient to es- tablish that, but for the presence of the Union, Sztubmski would not have been dismissed on April 10 The reason advanced by Respondent is rejected as a pretext seized on in the heat of an intensive effort to defeat employee union activity For all these reasons, I find the General Counsel has established by a preponderance of the sub- stantial evidence in the record that Sztubinski's discharge was part of an unlawful effort to destroy employee union activity, and therefore violated Section 8(a)(3) and (1) of the Act. Although employees and management appeared at the Board's offices on April 12, the hearing was continued until April 21 When John Walkden, Ruth Bissonette, and David Eddis, all of whom had attended the April 12 hearing re- ported to work on the morning of April 13, they were confronted by G Donald Siemer who abruptly dis- charged Bissonette and Walkden Bissonette asked why. Siemer replied that there would be a letter explaining the reasons The failure to tender such a letter to the dis- charged employees then and there persuades me that such a letter had not yet been written. When Walkden and Bissonette left the premises, Eddis asked what he was supposed to do Siemer instructed him to do his regular work and to watch his step because although Siemer had not found anything on him yet he would find something. This statement to Eddis was a clear warning that Siemer was seeking a reason to fire him, as he had the others, and violated Section 8(a)(1) of the Act The General Counsel correctly asserts that the dis- charge of the two employees at Respondent's first oppor- 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tunity after the hearing, which Respondent had warned employees not to attend on pain of discharge , is prima facie violative of Section 8(a)(4) and (1) of the Act.22 Respondent set forth its purported reasons for the dis- charge in letters hand delivered by Siemer to Walkden and Bissonette on April 13 in a diner as the two awaited a phone call from the Union. The letter to John Walkden, dated April 13, sets forth the following specific reasons for his dismissal- 1. You did call the manager a liar , grab him and throw him against the wall as he was discussing a time card problem with you. 2 You did intimidate employees and interfere with them in the performance of their work on the job 3. You did cal [sic] a volunteer at home and ver- bally abuse her 4. You did willfully or carelessly mishandle and ruin equipment of the Society placed in your care. 5 You did fail to perform assigned duties of kennel cleaning, leaving the work area duty [sic] and untidy 6. You did not fill out records and reports cor- rectly despite being warned several times and de- spite having the correct method shown to you. 7. You did missappropriate [sic] or use property belonging to the Society by failing to turn in funds collected while on duty. 8. You did fail to show up for court to testify to an animal cruelty case , and did fail to sign charges against a resident who damaged Society equipment while in your care, despite being directed to do so by management. Respondent proffered no probative evidence in sup- port of items 2, 3, 5, 6, or 7 and Walkden credibly denied the conduct alleged therein. Item 4 has been disposed of above regarding the al- leged truck damage that cannot be attributed to John Walkden on the evidence before me. No other mishan- dling or receiving of equipment by Walkden was shown at hearing. Item 1 concerns an altercation between John Walkden and James Towles more than a month before Walkden's April 13 discharge . Walkden places it in January . Towles places it on March 6 in a complaint of simple assault he filed with the Township of Washington, County of Gloucester, New Jersey Court. It is interesting to note this complaint was not filed until May 11. The record does not reflect the disposition of this complaint. From the testimony of Towles, Walkden, and G . Donald Siemer, I conclude that Towles and Walkden argued over Towles' alleged conduct in writing critical com- ments on Walkden's timecard . Towles denied so doing. Walkden called him a liar. Towles in return called Walk- den a liar Walkden seized Towles by the lapels and pushed him against the wall . No blows were struck. Siemer separated them and made Walkden apologize He did so. Towles confirms that ended the matter , nothing more was said about it, and he told Siemer not to dis- charge Walkden over this incident. Why Towles much later filed a complaint is unexplained , but I am inclined to the view the filing was an extension of Respondent's efforts to perfect a false reason for discharge. Item 8 is credibly explained by Walkden . In December 1981, Siemer instructed Walkden to sign charges against a person for attacking the vehicle Walkden was driving. Siemer promised to draw up the charges for Walkden to sign. Before Siemer did so, Towles preferred charges, in January 1982, against another person , apparently a neigh- bor of Walkden's attacker, for involvement in a dog inci- dent . The record is rather murky, but this incident was evidently the same one in which the vehicle was at- tacked. Walkden did not go to court with Towles There is no evidence he was asked or directed tb go. When Towles returned he told Siemer that Walkden had not been at court . Siemer asked Walkden why. Walkden ex- plained he was waiting for Siemer to give him the charges to sign This evidently satisfied Siemer because he said he would get the charges to Walkden on the morrow, but never did so. Nothing further was said to Walkden about this matter. The only remotely colorable reasons advanced by Re- spondent for Walkden's discharge are items 1 and 8. Both occurred before the union activity, both were dis- posed of to the apparent satisfaction of all parties con- cerned, and nothing was ever said to Walkden about either after his apology with respect to item 1 and his ex- planation with respect to item 8. Respondent thus ad- vances six totally unsupported reasons and two that con- cern matters remedied long before the discharge. This dredging up of unsupported allegations and closed inci- dents is suspect, and I find these reasons advanced are pretexts manufactured after the fact of discharge in order to disguise the true motive. That motive was, I find, to discourage union activity by discharging John Walkden for attending the April 12 representation case hearing. The advancement of pretexts supports this conclusion.23 Accordingly, I find the discharge of John Walkden vio- lated Section 8(a)(4) and (1) of the Act as alleged Bissonette's discharge letter was not produced by any party, but she credibly testified it specified consistently being on the road too long, mishandling and abusing company property , slandering Siemer, and some other reason she did not recall There is some evidence that Bissonette had a habit of losing contact with the dis- patcher by lingering around local police stations and not coming in on time , but it had occurred over a long period of time and there is no showing it had gotten worse or Respondent was overly concerned about it. She had lost a "beeper" before union activity began, but had paid for it by arrangement with Respondent. Bissonette had made some unflattering remarks about Siemer to her associates . Siemer evidently gained his knowledge of these remarks from Lori Miklea who testified she told him what Bissonette had said. Miklea's testimony indi- cates, however, that she so told him either July 1981 or after Bissonette left Respondent's employment . It is un- 22 The discharge of an employee for attending a Board hearing is un- lawful Earringhouse Imports, 227 NLRB 1107 (1977) 23 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 ANIMAL HUMANE SOCIETY 59 believable that remarks reported in July 1981 would have only become reason for discharge in April 1982, and it is impossible for after-discharge reports to have been reason for the discharge At trial, Respondent made much of Bissonette's conviction on an animal cruelty charge, for which she was charged by the Society for Prevention of Cruelty of Animals and convicted in a local court for cruelty to animals. Respondent admittedly knew of the charge against Bissonette in February but neither warned nor disciplined her. Bissonette's convic- tion on the animal cruelty charge occurred long after her discharge. None of the Respondent's reasons, either in the discharge letter or added on at trial, withstand close scrutiny, and its efforts at trial to adduce evidence to impugn her personal associations and her attitude to- wards Jews bespeak a deliberate effort to concoct false reasons to justify the termination Respondent's proffered reasons fall far short of raising even a hint of a valid reason for Bissonette's separation on April 13. A prepon- derance of the substantial evidence on the record re- quires a finding that her separation was, like that of John Walkden, and for the same reasons, violative of Section 8(a)(4) and (1) of the Act On April 13, 14, and 21 the Union filed charges in Cases 4-CA-12843, 4-CA-12847, and 4-CA-12866, re- spectively. Collectively, they allege as unlawful the dis- charges of the Walkdens, Bissonette, and Sztubmski, and changes in working conditions of the John Walkden and Bissonette At the April 21 hearing, the Company and the, Union agreed to a representation election and a set- tlement of the various charges. As a result, John Walk- den and Sztubinski returned to work on April 22, and Bissonette returned on April 24, but was assigned to kennel cleaning and forbidden to drive Respondent's ve- hicles. Nancy Walkden was not recalled This settlement and election agreement was not approved by the Region- al Director because of events occurring thereafter that precipitated a new union charge on April 30 The assignment of John Walkden to kennel cleaning has been found unlawful, and his continued assignment to that work after April 22 was a continuation of the dis- crimination against him Respondent advanced no reason supported by evidence for taking Bissonette off driving, and I conclude that Respondent merely continued on its way trying to coerce its employees into abandoning union support. The work given to Bissonette was not by any stretch of the imagination reinstatement to her previ- ous job that she was and is entitled to by virtue of her unlawful discharge therefrom. There was considerable testimony about the relative difficulty and desirability of kennel cleaning as opposed to dog warden work Most of it was a waste of time because dog warden work is quite clearly cleaner, less strenuous, and freer from close supervision. Driving a vehicle, with occasional pickup of an animal, dead or alive, is a far cry from spending the day cleaning up after live animals and handling as many as 140 dead ones a day To further belabor the relative desirability of the two jobs would be an insult to the reader. The loss of hours, and thus wages, by both, which the evidence establishes, would itself be undesir- able. In light of the character of Respondent's other unfair labor practices, it is reasonable to conclude the re- assignment of Bissonette was designed to discourage union activity and violated Section 8(a)(3) and (1) of the Act, as did Walkden's continuing kennel assignment 24 It is alleged, and I find, that the assignment of Bisson- ette and Walkden to cleaning deprived Eddis, the regular kennel cleaner, of hours he would have worked. Re- spondent's records reflect a drop off in Eddis' hours after the third week in April. Eddis' losses were caused by un- lawful actions against other employees, and for that reason, Respondent violated Section 8(a)(3) and (1) by causing Eddis to lose work.25 After April 22, employees were barred by Respondent from entering areas to which they previously had free access, and were required to get express supervisory per- mission before going into any of these areas to secure necessary work implements. Along with these restric- tions, Siemer told Sztubinski, within a few days of his return to work, that employees who signed union cards were not to associate with other employees but would punch in, punch out, and eat lunch in a new room set aside for them Siemer's statements were reasonably cal- culated to interfere with Sztubmski's free exercise of his statutory rights, as did the action of restricting the access of employees to work-related areas for no good reason shown. Both the statements and the restrictions, which I find were designed to retaliate against union adherents and` defeat union activity, independently violated Section 8(a)(1) of the Act. The unlawfully designed restrictions, particularly with regard to securing necessary tools and the like,26 also violated Section 8(a)(3) of the Act as a discouragement to union membership and activity I do not agree that Sztubinski's job duties were changed as alleged. He was restricted, as noted above, but there is no convincing evidence that his work as a dog warden was changed in any particular During the week of April 25, Siemer had a conversa- tion with Sztubinski wherein he asked if Walkden had threatened Sztubinski to cause him to join the Union, if he knew who the union ringleader was, and if it was John Walkden or Bissonette Sztubinski gave negative answers and Siemer asked him to ask other employees if they had been threatened by John Walkden in the course of signing authorization cards. Siemer added that , he would get even with John Walkden when he found out, and would not allow a third party in the kennel, but would close it first From all this it appears quite clear that Respondent knew or strongly suspected John Walk- den was the leading union activist It is also patent that Respondent was seeking information, perhaps showing some sort of threat, that he could use to get rid of Walk- den and thus get even with him for fostering union activ- ity among the employees. The interrogation into the union activities, the solicia- tion of Sztubinski to spy and report, and the threats to 44 The General Counsel , out of an excess of caution , I suppose, would have me find individual violations of Sec 8(a)(3) in every minute aspect of the assignments of John Walkden and Bissonette I shall not do so be- cause all are part and parcel of the same conduct found to be unlawful, and all are disposed of by the remedy • - 25 Rich 's Precision Foundry, 250 NLRB 1317, 1321 (1980) 26 Federal Alarm , 230 NLRB 518, 527 (1977) 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD retaliate against Walkden for his union activity and to close the facility rather than let a union in violated Sec- tion 8(a)(1) of the Act. On April 22 or 23 '27 G Donald Siemer told John Walkden and David Eddis that he had received charges from the Board preferred by Nancy Walkden and Sztu- binski 28 Siemer drew the employees' attention to the printed language on the charge from setting out penalties for willful false statements thereon, and told Walkden that if he did not get his wife to pull her charges, and if Sztubinski did not pull his, then he would have both ar- rested and fined for lying. After Walkden explained it was up to his wife, Siemer told him that if he quit, the election petition could be "pulled" and he would pay both Walkdens all their back wages if these two events came about. Siemer continued that neither Walkden nor his wife would ever again be in one of his vehicles, and John Walkden would never be any more than a kennel cleaner if he stayed He added that he was not going to let a third party in and R Siemer would sell all the trucks except her personal vehicle, which would be the only one Walkden would ever drive Siemer then told Eddis that he still had a chance because his reputation was not shot yet, like those of Walkden and Bissonette 29 Siemer's request that the petition be withdrawn, the threats to keep John Walkden on kennel cleaning for- ever, the threats to bring suit against employees named in the charges and the solicitation to cause the charges to be withdrawn'30 the threat implicit in the comment that Eddis' reputation was not yet shot, and the announce- ment that the reputations of John Walkden and Ruth Bis- sonette were shot all plainly flowed from Respondent's hostility toward employee union activity and determina- tion to relahate against employees so involved, and vio- lated Section 8(a)(1) of the Act. Bissonette's uncontroverted and credited testimony that John Nardohlh told her privately in the latter part of April that "we" had ways of taking care of people like her and she could get her legs broken and her chil- dren would be hurt was a continuation of his earlier threats of physical violence against union supporters. These threats issued in Respondent's office, and Re- spondent should be held responsible for them in view of its earlier adoption and condonation of similar statements by Nardolillt I do not believe Nardolillt dust wandered into the office and issued threats gratuitously for no par- ticular reason other than his affection for Respondent. It is more likely that the Respondent solicited his services 29 The General Counsel argues April 29, but John Walkden remem- bers April 22 or 23 Walkden's date seems more probable in light of Eddis reference to the third week in April, the fact that the charge men- tioning N Walkden was received by Respondent on April 16, and the further fact that Respondent obviously knew of the charge filed on April 21 and naming Sztubinski because the aborted settlement of April 21 car- ried that charge number, among others, and provided for a remedy for Sztubinski 28 The charges were filed by the Union 29 This account of the conversation is based on the credited portions of the testimony of Walkden and Eddis Walkden was a more impressive witness than Eddis, and seemed to be much more certain in his recitation Eddis corroborates him in general Siemer admits asking Walkden to have his wife withdraw charges, and threatening her prosecution 20 Consolidated Aluminum Corp, 256 NLRB 345 (1981), Shirt Shed, 252 NLRB 292, 301 (1980) to reinforce its campaign of antiunion coercion His threats to Bissonette violated Section 8(a)(1) of the Act. The complaint alleges that written warnings given to John Walkden, Bissonette, Eddis, and Sztubinski in April and May were violations of Section 8(a)(3) and (1) of the Act Respondent did issue written warnings in various forms prior to the Union's presence on the scene, and it cannot be assumed that merely because some issued thereafter they were not warranted Each warning al- leged therefore requires individual consideration. John Walkden was issued a written warning on April 29 headed "Hindering employees and discussing union activities while working " The body of the warning refers to previous oral warnings about hindering employ- ees with long conversations during working hours It also instructs Walkden not to discuss "unionism during working hours and while on the clock", is quite vehe- ment that there is no room at the facility for "greed, anger, animosity, arguing, and lies", and threatens "ap- propriate steps" if Walkden does not refrain from threat- ening or persuading employees on the property On April 22 Siemer had told Walkden he was not al- lowed to talk to other employees during working hours Siemer claims the written warning stemmed from a time he found Buker and Walkden talking about the Union when they should have been working This does not ex- plain why he cast the entire blame on Walkden. The proscription of union-related conversations in the warning and orally on April 22 is illegally overbroad and hence violative of Section 8(a)(1) of the Act,31 and there is no evidence that John Walkden hindered anybody with long conversations, threatened anybody, or de- served the gratuitous references to greed, anger, etc As earlier noted in this decision, there were no restrictions on employee conversation before union activity began This warning was but another arrow in Respondent's quiver of unlawfully coercive tactics designed to defeat the Union As such, the very issuance of the warning de- signed to discourage union activity and membership vio- lated Section 8(a)(3) and (1) of the Act 32 ' The General Counsel has not shown by anything other than a conclusion to the effect Sztubinski's warning of May 4 for failing to pick up a confined dog was his first and occurred in a context of other unfair labor practices that the warning was unlawful I cannot, and do not, conclude that everything Respondent did violated the law just because Respondent violated the law in many other respects The warning does not appear to stray far from the facts of the incident, and Respondent's constitu- tion and bylaws set forth that a confined dog is an emer- gency. Sztubinski's explanation struck me as an effort to dissemble when he gave it, and I do not credit him on this warning. The warning of May 3, issued to Ruth Bissonette be- cause she had not managed to clean the kennels and feed the dogs in 8 hours, is a violation of Section 8(a)(3) and (1) of the Act. The assignment of Bissonette to the ken- nels was discriminatorily motivated, which makes warn- 31 TR W, 257 NLRB 442 12 Dean Meat Co, 227 NLRB 1012, 1019 (1977) ANIMAL HUMANE SOCIETY 61 ings thereafter for performance on that job suspicious. She had little experience in the job , and there is suffi- cient credible evidence to conclude that other employees took as long and longer to merely clean the kennel, and they were not warned . Bissonette credibly testified that a portion of the day in question was devoted to tasks other than cleaning and feeding . She was one of Respondent's prime targets for intimidation or elimination , and I am persuaded the warning was continued unwarranted har- assment of Bissonette because she was a known union leader. David Eddis was issued written warnings on April 22, 25, and 26. Respondent confronted him at trial with four other warnings dated February 9, July 22, and Septem- ber 8, 1981, and April 23, 1982. Eddis denied receiving any of these four, and Respondent did not prove that he had. The April 22 and 25 warnings alleged he took too much time to clean. In each instance there is conflicting evidence in the record about how much time was re- quired. Estimates that it had in the past taken Eddis as much as 12 hours to clean the kennel, the subject of the April 22 warning for taking 8 hours to clean with an- other employee, were given by Respondent's witnesses Towles and Fletcher. With respect to the April 25 warn- ing for taking 3 hours to clean outside runs, Eddis credi- bly asserted it normally took him 3 - 1/2 to 4 hours. Con- sidering it has not been shown that Eddis received prior written warnings for consuming so much time, and there is no indication the other unidentified employee involved in the April 22 incident was warned, I conclude the warning was without reasonable cause and represented a sudden tightening of standards for Eddis in line with Siemer's contemporaneous implied threat of April 22 or 23 to get something on Eddis to affect his reputation. Accordingly, I conclude these two warnings were manu- factured to build a case against Eddis' performance and to discourage union membership and activity , and violat- ed Section 8(a)(3) and (1) of the Act. The April 26 warning relates that Eddis was insolent to G. Donald Siemer in front of the Winslow Township dog warden. On that occasion Siemer instructed him to clean out the warden's truck. Eddis replied that he had been instructed never to clean out a driver's truck. Eddis testified this was indeed his instruction, and Towles con- firms that drivers were supposed to clean out their own trucks and no employee had previously been required to clean out the Winslow Township truck. Nevertheless, Siemer ordered Eddis to clean out the truck . Eddis re- sponded that Siemer should get manager Towles to order him to do so because Siemer had told him that very day he was only a volunteer consultant. 33 Siemer went to fetch Towles. When Towles came out Eddis had finished cleaning the truck. Eddis was perhaps insolent and even insubordinate in that he well knew that Siemer was de facto in charge of the kennel. On the other hand, his reaction was pro- voked by an order contrary to the established rule and 99 I credit Eddis on this because at the hearing Siemer did present himself as a mere consultant for Respondent, even though he later ac- knowledged one point, that he took a much bigger hand in running the facility than anyone else practice. On the whole, it seems reasonable to conclude that Siemer was giving an unwarranted order in further- ance of his program of harassing known union adher- ents. 34 The record is rife with fabricated reasons for taking actions against union adherents , and I believe Siemer's order to Eddis was deliberately designed to pro- voke Eddis into an indiscretion. That he was successful in this effort should not redound to Respondent 's benefit by enabling it to further its plan of building a case against Eddis, which Siemer's remarks of April 22 or 23 reasonably imply it was going to do. The written warn- ing was a result of unlawful motivation and violated Sec- tion 8(a)(3) and (1) of the Act. After John Walkden returned to work on April 22 he was receiving partial unemployment compensation. On May 6, Siemer told Walkden that he could not collect this compensation and work, and that he must immedi- ately leave the premises and get a letter from the Unem- ployment Compensation Bureau certifying that he was no longer collecting the compensation. Walkden's credi- ble testimony to this effect receives support from a May 6 memo issued to him by Rosalie Siemer stating that Walkden was clocking out early "to clarify compensa- tion" and bearing the additional notation before John Walkden's signature that "Because I was told I cannot work and collect unemployment." Moreover, Siemer agrees that he told Walkden he could not work so long as he was receiving unemployment compensation. Walkden went to the unemployment office and was told that he was eligible for partial compensation so long as his hours were cut, and that a letter would not be sent to Respondent stating Walkden was not collecting com- pensation . When Walkden returned to work the follow- ing morning he met Siemer at the entry . When Siemer requested the letter he had earlier demanded that Walk- den secure, Walkden told him the unemployment agen- cy's response. Siemer reacted by telling Walkden he was not working for Respondent while he was collecting un- employment compensation and committing fraud . Siemer also asked where Walkden's uniform was. Walkden ex- plained it was in his car because he did not know what work he would be assigned to. Siemer told Walkden he was not working anyway because he had not brought the letter from unemployment , and he was fired. Siemer then gave Walkden a memo, dated May 7, relating that Walkden appeared for work out of uniform and had not cleared up "the fraud problem of being on employment and being employed at the same time." The memo con- tinues as follows: We cannot employ you while you are accepting un- employment checks as you said you are . We will need something in writing from unemployment stat- ing you no longer are on unemployment compensa- tion.... The memo is signed by G. Donald Siemer and sup- ports Walkden's version , which I have credited. Walkden never returned to work, a reasonable ap- proach because he was expressly discharged notwith- 34 Eddis had been in attendance at the Board meetings. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD standing the conditional language in the memo On May 12, R Siemer sent his final pay with a memo attached stating he had quit by failing to return to work. This is directly contradicted by her letter of May 28 to the Un- employment Claims Office, in which she advised "He was FIRED'!!" and stated Walkden's May 6 discharge35 was due to "extremely poor work output and slowdown coupled with absenteeism and gross insubordination." These latter reasons contradict both her memo stating he quit and Siemer's memo of May 7. The continued harassment of John Walkden because of his union activity combined with his discharge for failing to fulfill a condition beyond his control is enough to con- stitute a prima facie case that he was fired to discourage union activity. Respondent's complete failure to make any effort to investigate the truth of Walkden's explana- tion, as well as the absurd claim that Walkden quit, which is contradicted by equally fictional and inconsist- ent expositions of the reasons for his discharge, convince me that Respondent again created false reasons to con- ceal an unlawful motive for the separation and was so eager to get rid of Walkden that its bumbling inventions conceived in haste run aground on the shores of reasons. Such transparent dissembling illustrates the lengths to which Respondent was prepared to go in order to get rid of union supporters. A violation of Section 8 (a)(3) and (1) is clearly made out of this evidence and is confirmed by Siemer's admission to Eddis, more fully set forth below, that Walkden's discharge was caused by union activity It is also settled that a discharge for pursuing unemployment claims violates Section 8(a)(1) of the Act, as is Siemer's threat not to let Walkden work so long as he collected the compensation 36 James Sztubinski had been subjected to unlawful inter- rogation, threats, and discharge prior to his last dis- charge on May 6 These factors and Respondent's con- temporaneous unlawful discharge of John Walkden and Ruth Bissonette as set forth below, are sufficient to sug- gest unlawful discharge on May 6. It is also fair to con- clude from the record that Respondent assiduously sought colorable reasons to be used as tools to perfect the discharge of employees it wanted to sever because of their union activities. The problem in Sztubinski's case is that the evidence preponderates in favor of a conclusion that he converted a $15 donation to his own use and deliberately concealed that conversion from Respondent The testimony of Lori Miklea, James Towles, Rosalie Siemer, and G Donald Siemer to this event is complementary and credible, even though I have not credited them on other matters. In short, Sztubinski received a $15 donation from a lady for picking up her dead dog on May 3 or 4, and did not report it or turn it in His denials and explanations did not have the ring of truth, and struck me as desparate fabrications. Sztubinski was found guilty and fined $50 and assessed court cost of $25 by the Atlantic City Mu- nicipal Court on October 12 for having, "on or about" 36 Walkden was fired on May 7, but I do not disagree with the infer- ence that it was decided on or before May 6 36 Self Cycle & Marine Distributor Co, 237 NLRB 75 (1978) May 7,37 committed an act of theft by accepting $15 for service performed for his Employer, keeping the money, and filing a false report thereon "in violation of 2C'20- 9 " It appears from the court documents that the owner of the dog involved testified in that proceeding The court's decision is not determinative of the issue before me, but it does have probative weight and tends to sup- port Respondent's version, which I have credited on grounds of comparative demeanor and consistency of corroborative testimony. Although an employer may be making a conscious effort to build a case for discharging a union adherent because he is such an adherent, when that adherent pre- sents the employer with a valid reason for discharge the employer may use this fortuitous event as a cause for dis- charge without violating the Act.38 Sztubmski's conduct would normally constitute a valid ground for discharge. It is true that Respondent suspected others of the same conduct, but there is no evidence contrary to its explana- tion of a lack of proof in those instances Bissonette was warned because she utilized donations for other pur- poses, but it does not appear that she concealed this con- duct, or used the money for purposes unrelated to her work To hold that Sztubinski may not be fired for his conduct would be contrary to the Act's provision that the Board may not order the reinstatement of any indi- vidual discharged for cause If this were all the evidence on the matter, I would be inclined to find no violation, but it is not The determina- tive factor is Siemer's statements to David Eddis on the afternoon of May 7 that he had fired Bissonette, dust like he had fired Walkden and Sztubinski, because no one was going to come down and tell him how to run his kennel and his life because he had too much at stake He expanded on this by adding that no thug, goon, or the NLRB or anybody would tell him to hire or fire or how to run the facility because he would close up. He then demanded that Eddis pull the petition. Eddis replied that he had no charges against Respondent but would sign some if Siemer kept harassing him. Siemer repeated that no union was going to tell him what to do and the Board's attorney was a mental case who was not going to tell him what to do A clearer exposition of implaca- ble hostility toward union activity, or the Board for that matter, is hard to imagine In one extended statement, Siemer violated Section 8(a)(l) "by threatening to close the facility, demanding that Eddis "pull" the petition, and clearly conveying the futility of protected union ac- tivity39 or seeking Board assistance, and admitted dis- charging Walkden, Bissonette, and Sztubinski because of the union activity.40 31 The notation that the incident occurred "on or about" May 7, which is incorrect, is of no greater consequence than the General Coun- sel's complaint allegations that repeatedly utilize "on or about" language, a perfectly permissible device to place matters in issue whose actual date will be established by the evidence 38 Stoutco, Inc, 218 NLRB 645, 650-651 (1975) 39 M B D Co, 193 NLRB 494, 501 (1971), Firmat Corp, 255 NLRB 1213 (1981) 4° Elk Brand Mfg Co, 253 NLRB 1038 (1981) ANIMAL HUMANE SOCIETY 63 The admission that Sztubinski was discharged for union activity outweighs the conclusion that Respondent probably had a valid reason to discharge him, and effec- tively blunts any argument that Sztubinski's would have been fired if there were no union activity . Accordingly, I find Sztubinski's discharge violated Section 8(a)(3) and (1) of the Act. Ruth Bissonette was discharged on May 7 . Her version of relevant events that day follow . Siemer called her to the office about noon and said he wanted to discuss the Union. She said she could not. He insisted and got the same answer. He loudly said that she would do as he said. She said she was not allowed to talk to him about the Union and he could not force her to. He responded that if she could not do what he wanted she should clock out and go home . She clocked out and started to leave. R. Siemer made a comment. She answered, Siemer yelled at her not to talk to R. Siemer that way, and said she could sign all the "damn" charges she wanted but neither she nor the Board could make him do anything. He then grabbed her, spun her around, called her trash and troublemaker, and said she could come back when she could give him the respect he deserved . Her re- sponse was that she would give him the exact same re- spect he gave her . Sometime during this give and take Siemer said he wanted to be sure she would not discuss the Union with coworker Lisa Mahon. Siemer gives a different version , as follows: Bissonette was preparing to go on census with Lisa Mahon. He told Bissonette that Mahon was in charge and should be obeyed without argument. He added that he did not want them discussing union problems because the census work was complicated enough . Bissonette whipped out a little book and charged he was telling her not to talk about the Union . There was then a big argu- ment culminating in Bissonette leaving because he told her he had enough, did not want her there, she should get out and go home and cool off. As she left she passed R. Siemer and made some unspecified "smart aleck" re- marks that infuriated Siemer. He then told her to get off the property. She began to curse again, and that was the last straw. He told her she was fired and he did not want to see her again. She came to work the next morning, and he told her he did not need her or want her around anymore. Rosalie Siemer merely recalls that Bissonette yelled at Siemer. She neither knows what was said nor saw Siemer touch Bissonette. The versions of Bissonette and Siemer agree in some respects, but differ in others . The differences are signifi- cant, and I credit Bissonette 's version because she seemed the more candid and did not take refuge in gen- eralities. For instance, she details what Siemer merely characterizes as an argument. Additionally, I cannot be- lieve that Bissonette made infuriating comments to R. Siemer sufficient to warrant ordering her off the proper- ty. R. Siemer surely would have taken note of such harsh remarks directed at her. Her lack of knowledge of Bissonette's comments indicates that either Bissonette made no such remarks or they were so innocuous that they made no impression on R. Siemer one way or an- other. Throughout the hearing I observed that Siemer was inclined to magnify the statements and conduct of others while seeking to portray himself as a benevolent, soft-spoken, and reasonable individual somewhat above aggressive behavior . This image does not quite square with Respondent's extensive unfair labor practices, which I find were in major part, if not all, orchestrated by him, and his efforts during the hearing to raise ques- tions about employees' characters for no apparent pur- pose other than to prejudice the judge. Bissonette is, I observed, a somewhat volatile person , and I have no doubt there was a strong clash of wills on May 17, but her account seemed more spontaneous and truthful than that of Siemer. Accordingly, I have credited her version with the exception that it seems likely that Siemer did give the difficulty of the census as a reason or an excuse for forbidding union discussion on the job. Bissonette was under no obligation to discuss the Union with Siemer . His efforts to force her to so do vio- lated Section 8(a)(1) of the Act, as did his vilification41 and physical touching,42 which were reactions to her re- fusal to do so. His prohibition of union conversation in the absence of any valid no-solicitation rule,43 and his pronouncement that he could not be deterred by the Board from conduct of this sort also violated Section 8(a)(1) of the Act. Finally, the discharge was a direct result of Bissonette's refusal to surrender her right to re- frain from discussing the Union with her employer. G. Donald Siemer, the architect and prime mover in the an- tiunion conduct of Respondent, was intent on destroying union support and, outraged by Bissonette's refusal, grabbed the moment to dispose of another union adher- ent. By so doing, Respondent, by its agent G. Donald Siemer, violated Section 8(a)(3) and (1) of the Act. This conclusion is confirmed by Siemer 's admission to David Eddis on an afternoon in May that he had fired her just like he had fired John Walkden and Sztubinski because no one was going to tell him how to run his kennel and his life, because he had too much at stake. Against the above backdrop of three unlawful dis- charges on May 6 and 7, preceded and accompanied by other extensive unfair labor practices , many directed at David Eddis, we now come to the discharge of Eddis on May 8. The General Counsel has prima facie established by a combination of union activity by Eddis, knowledge of and hostility toward that activity by Respondent, and the timing of Eddis' dismissal immediately after the un- lawful discharge of other union supporters , that Eddis' discharge was motivated by antiunion considerations. Re- spondent defends that Eddis was discharged for his con- duct and statements in the presence of customers in Re- spondent's office on May 8. Eddis' version of the May 8 events is in sharp contrast to that of all other witnesses , and relates the following sequence. About 9 :30 a.m. he observed Siemer cleaning the cages outside the kennel with a hose . When he asked Siemer what he was doing, Siemer used obscene lan- guage and complained that Eddis should have been through cleaning in the kennels . Eddis said he would be 41 Garrison Valley Center, 246 NLRB 700, 708-709 (1979) 42 King Trucking Co., 259 NLRB 725 fn 3 (1981) 43 Price's Pic-Pac Supermarkets, 256 NLRB 742, 746 (1981). 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out at the cages as soon as he could . Siemer responded that either Eddis cooperated or Siemer would fire him Eddis asked for what reason and why Siemer did not stop harassing him and leave him alone. Whereupon, Siemer said he was going to check Eddis ' work, and took Eddis inside where he complained that Eddis should have been finished cleaning the "f--g" cages Again Eddis told Siemer to leave him alone and he would be outside as soon as he could. Siemer continued to complain about Eddis' work . Eddis said that if Siemer did not leave him alone he would "sign charges" against him Siemer told Eddis he was fired Eddis walked from the grooming room into the office where R Siemer started pushing him and asking if he wanted her to take a picture of how mad he was. There were a number of customers present Eddis turned to them and announced that the argument going on concerned a labor dispute, he had been unjustly fired, and Respondent owed him money because its check had bounced While all this was happening Siemer continued arguing with Eddis Sud- denly, R. Siemer punched Eddis and threw him to the floor where he was held by James Towles while Siemer pummeled him Extricating himself, Eddis got to his feet and said he was going to "sign charges on them." He then clocked out while Siemer was saying "you're with them now You're fired You ruined it on yourself, be- cause you didn't pull those petitions , you should have pulled these petitions." Eddis repeated that he was sign- ing charges. R Siemer then waved her finger in Eddis' face and started to hit him , but Siemer pulled her away and told her she had no business putting her hands on Eddis. When Eddis then started to leave the office, his way was barred by the Siemers and Towles , who all stood in front of the door Succeeding in getting by the three people , Eddis ran down the driveway . Someone pulled his shirt and tripped him so that he fell . He got up and ran toward the gate with Siemer exclaiming, "you ain't going nowhere," and R. Siemer saying , "shut the gates" to Towles She and Towles started to close the gate A police car approached R Siemer hit Eddis on the side of the head, and both she and Towles left the gate area. Somewhere during the fracas Siemer said he had told Eddis this would happen if he was not on Siemer's side and would not pull the petition . Siemer added that Eddis was now with "them ," and if he ever came around the facility again Siemer would kill him. The Siemers, Lori Miklea, Shawn Martin, and custom- er Thomas Hallman testified on behalf of Respondent. Notwithstanding some disparities between their respec- tive versions, they corroborate each other in most signifi- cant respects Like Eddis, the testimony of the Siemers and Hallman contain some internal inconsistencies, but not enough to require rejecting testimony corroborated by others. Shawn Martin appeared to be a candid witness on the events of the day , recounting only that which he sincerely believed to be an accurate recollection Hall- man had no apparent interest in the affray apart from the fact it occurred in his presence and contained language offensive to him, and he impressed me as a credible wit- ness of most points 44 A fair synthesis of Respondent's evidence results in the following account Siemer was hosing down the kennels when Eddis accused him of doing so in order to cut Eddis' hours Siemer asked what Eddis was doing and when he would be done so that he could do the outside work Eddis replied that he was cleaning the cat cages, and would be done in 1, 2, 3, or 4 hours . Siemer inspect- ed Eddis' work and told him he had a half-hour to finish it. When Siemer then walked into the office Eddis fol- lowed There were several customers present Eddis loudly announced his hours were being cut , there was a labor dispute , Respondent did not pay the workers, and Siemer was a "f--g Jew bastard " who was "f--g" and "ripping oft" the employees . R. Siemer told him to shut his mouth and she did not want it on her proper- ty.45 Siemer ordered Eddis off the property and told him he was fired, Eddis punched out, threw his time- card, and told Siemer , "I'll get back at you f--g Jew bastard," as he stormed out the door . No one touched him, held him , hit him, or threw him down, nor did anyone try to close the gates or otherwise impede his passage from the office.46 Eddis was, I am convinced, indeed "getting back" at the Siemers when he testified before me and embroidered his testimony with unbelievable detail I do not believe ,he was physically assaulted in any of the various ways he claims, or that he was discharged until he cursed the Siemers. Eddis' version is rejected as larded with fabrica- tion and wholly incredible . Respondent's version is far more convincing , and I find Eddis' discharge was preci- pitated by his loud and extended cursing of the Siemers in the presence of several customers, with language he well knew was personally offensive to them Respondent did harass Eddis because of his union activities, and probably welcomed the opportunity to rid itself of a union adherent , and may even have planned to, but that does not make the discharge unlawful 47 I am persuaded that Respondent would have discharged Eddis in any event for his reprehensible behavior, whether a union was on the scene or not. Eddis gave Respondent ample cause to discharge him on the spot , and Respondent obliged him That Eddis also shouted about wages, hours, and labor disputes is immaterial . He was dis- charged because he called Siemer a "f--g Jew bas- tard," and that is not protected activity Accordingly, the discharge of Eddis on May 8 did not violate the Act. There was much to do at trial about Respondent's re- quirement that employees wear uniforms . Respondent 44 Hallman probably did not, as lie claims , write his letter to Respond- ent on May 8 because it is dated May 12 This does not destroy his other- wise believable testimony 45 Shawn Martin credibly testified that Eddis had previously been warned about using the term "Jew" in a derogatory , manner R Siemer has a Jewish parent and takes offense at such usage 46 R Siemer's conduct in rushing to get a photo of the ridiculous uni- form he was wearing that day was perhaps silly but violated no part of the Act 47 Klate Holt Co , 161 NLRB 1606, 1612 (1966), Stoutco, Inc, 218 NLRB 645 , 650-651 ( 1975), P G Berland Paint City , 199 NLRB 927 (1972) ANIMAL HUMANE SOCIETY 65 had been trying to make its employees wear the pre- scribed uniforms long before the union activity com- menced. Nothing proffered by the General Counsel out- weighs Respondent's evidence of an ongoing effort to secure employee compliance and the lack of any con- vincing evidence that Respondent was using the uniform rule as an illegal tool of harassment. CONCLUSIONS OF LAW 1. Animal Humane Society of South Jersey, Incorpo- rated (the Respondent) is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Union, Local 1360, AFL-CIO-CLC (the Union) is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The following unit of employees is appropriate for collective bargaining: All full time and regular part-time employees em- ployed by the Animal Humane Society of South Jersey, Incorporated at its Turnersville, New Jersey location, but excluding all guards and supervisors as defined in the Act. 4. At all times since March 30, 1982, and continuing to date, the Union has been the exclusive representative of all the employees within the appropriate unit for pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By coercively interrogating employees about their union activities and those of others, Respondent violated Section 8(a)(1) of the Act. 6. By threatening to retaliate against leading union ad- herents, Respondent violated Section 8(a)(1) of the Act. 7. By soliciting an employee to seek out and report the union activities of other employees, Respondent violated Section 8(a)(1) of the Act. 8. By threatening to bring suit against employees if they did not withdraw charges filed with the Board, Re- spondent violated Section 8(a)(1) of the Act. 9. By soliciting and demanding that employees cause charges and a representation petition filed with the Board to be withdrawn, Respondent violated Section 8(a)(1) of the Act. 10. By soliciting employee grievances and promising to negotiate directly with and grant benefits to employ- ees if they caused a representation petition filed with the Board to be withdrawn, Respondent violated Section 8(a)(1) of the Act. 11. By threatening employees and their families with physical injury if they did not cause a representation pe- tition filed with the Board to be withdrawn , Respondent violated Section 8(a)(1) of the Act. 12. By threatening to discharge employees if they at- tended a Board-conducted representative hearing, Re- spondent violated Section 8(a)(1) of the Act. 13. By threatening to close the facility and discharge the employees if they selected the Union to represent them, Respondent violated Section 8(a)(1) of the Act. 14. By telling employees it would not allow the Union to come in, Respondent violated Section 8(a)(1) of the Act. 15. By calling employees sneaks because they contact- ed the Union without first securing Respondent's permis- sion, Respondent violated Section 8(a)(1) of the Act. 16. By instructing employees who supported the Union that they were not to associate with employees who had not, Respondent violated Section 8 (a)(1) of the Act. 17. By threatenig damage to the reputation of employ- ees if they supported the Union, Respondent violated Section 8(a)(1) of the Act. 18. By implying to employees that it was seeking a reason to discharge them because they engaged in union activities, Respondent violated Section 8(a)(1) of the Act. 19. By telling employees it was futile to engage in pro- tected activity or seek Board assistance, Respondent vio- lated Section 8(a)(1) of the Act. 20. By calling an employee trash and a troublemaker because she engaged in union activity, Respondent vio- lated Section 8(a)(1) of the Act. 21. By telling an employee that other employees had been discharged for engaging in union activity, Respond- ent violated Section 8(a)(1) of the Act. 22. By threatening an employee with loss of work be- cause he was collecting partial unemployment compensa- tion, Respondent violated Section 8(a)(1) of the Act. 23. By physically assaulting an employee because she engaged in union activity, Respondent violated Section 8(a)(1) of the Act. 24. By threatening employees with permanent assign- ment to less agreeable work and shorter work hours than those previously enjoyed because the employees support- ed the Union, Respondent violated Section 8(a)(1) of the Act. 25. By promulgating new work rules and threatening stronger enforcement of existing rules because its em- ployees supported the Union, Respondent violated Sec- tion 8(a)(1) of the Act. 26. By prohibiting its employees from engaging in un- ionrelated conversation during working hours, Respond- ent violated Section 8(a)(1) of the Act. 27. By restricting employee access to work-related areas because of their union activity, Respondent violat- ed Section 8(a)(3) and (1) of the Act. 28. By assigning driver John Walkden to kennel clean- ing and reducing his hours of work on April 3, 1982, for the purpose of discouraging union membership and sup- port, Respondent violated Section 8(a)(3) and (1) of the Act. 29. By discharging Nancy Walkden, on April 3, 1982, in order to discourage union membership and support, Respondent violated Section 8 (a)(3) and (1) of the Act. 30. By discharging James Sztubinski on April 10, 1982, in order to discourage union membership and support, Respondent violated Section 8(a)(3) and (1) of the Act. 31. By discharging drivers Ruth Bissonette and John Walkden on April 13, 1982, because they attended a Board-conducted representation hearing, Respondent violated Section 8(a)(4) and (1) of the Act. 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 By reassigning driver John Walkden to kennel cleaning on April 22, 1982, and assigning Ruth Bissonette to kennel cleaning on April 24, 1982, and thereby reduc- ing their hours of work for the purpose of discouraging union membership, Respondent violated Section 8(a)(3) and (1) of the Act. 33. By reducing the hours of work of David Eddis on and after April 24, 1982, for the purpose of discouraging union membership, Respondent violated Section 8(a)(3) and (1) of the Act. 34. By issuing written warnings to its employees for the purpose of discouraging union membership, Respond- ent violated Section 8(a)(3) and (1) of the Act. 35. By discharging James Sztubinski on May 6 and John Walkden and Ruth Bissonette on May 7, 1982, for the purpose of discouraging union membership and activ- ity, Respondent violated Section 8(a)(3) and (1) of the Act. 36. By discharging John Walkden on May 7, 1982, be- cause he had filed for and was receiving partial unem- ployment compensation, Respondent violated Section 8(a)(1) of the Act. 37. Respondent did not violate the Act. by discharging David Eddis. THE REMEDY In addition to the usual cease-and-desist and notice- posting requirements, my recommended Order will re- quire Respondent to offer unconditional reinstatement to John Walkden, Nancy Walkden, and Ruth Bissonette and make them whole for all wages lost as a result of their unlawful discharges. Respondent will also be re- quired to make John Walkden whole for wages lost during the period of his assignment to kennel cleaning between April 3 and 13, 1982, the date of his discharge. The recall of John Walkden and Bissonette to kennel cleaning on May 22 and 24, 1982, respectively, did not constitute reinstatement to their former positions that still existed, and their earnings as kennel cleaners shall be offset against the backpay due them as a result of their unlawful discharge on April 13, 1982 David Eddis will be made whole for wages lost as a result of the unlawful assignment of John Walkden and Bissonette to share his work in May until his discharge. By virtue of his misap- propriation of Respondent's funds to his own use, James Sztubinski forfeited his rights to reinstatement and back- pay. Ludwig Fish & Produce, 221 NLRB 1306 (1975); Uniform Rental Service, 161 NLRB 187, 190 (1966); Offner Electronics, 134 NLRB 1064 (1961) All backpay ordered and interest thereon is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977).4 8 Respondent will also be required to remove from its files any references to the various discharges of John Walkden, Nancy Walkden, Ruth Bissonette, and James Sztubinski and notify them in writing that this has been done and that evidence of those unlawful discharges will not be used as a basis for future personnel actions against them or unfavorable recommendations to other employ- ers. Respondent will further be required to remove from its files all written warnings found to have been unlaw- fully motivated, and any references to said warnings, and notify the employees to whom they were issued that this has been done and that evidence of these unlawful warn- ings will not be used as a basis for future personnel ac- tions against them or unfavorable recommendations to other employers. A broad order is warranted because Respondent has engaged in such widespread misconduct as to demon- strate a general disregard for employees' fundamental statutory rights. See Hickmott Foods, 242 NLRB 1357 (1979). The General Counsel requests a bargaining order, and in the circumstance of this case one is required. The Union attained a majority in the appropriate unit on March 30, 1982. Even excluding Sztubinski49 and Eddis, the Union had 6 valid authorization cards in a remaining unit of 10 employees. As soon as it learned of the union campaign Respond- ent embarked on a widespread campaign of intimidation and coercion, and committed 32 separate violations of the Act including coercive interrogations, solicitation of an employee to spy and report on union activities, solic- iting and demanding that employees cause the withdraw- al of charges and a representation petition filed with the Board and threatening suit against employees if the charges were not withdrawn, threatening with discharge and discharging employees because they attended a Board hearing, discharging employees because of their union activities, numerous threats to close the facility and discharge the employees if they selected the Union to represent them, calling employees derogatory names because they support the Union, threatening to damage employees' reputations, telling employees it was futile for them to select a union representative or to seek preotec- tion from the Board, threats of severe physical injury, an actual physical assault on an employee because of her protected activity, threats of assignment to less agreeable work and fewer work hours, the implementation of such assignments and reductions in hours of work, promulga- tion of new work rules and threatening more stringent enforcement of others, and the issuance of unlawfully motivated warnings. There is more, as the decision re- flects, but this recitation suffices to establish that here we are dealing with an intransigent employer determined to totally destroy any inclination by its employees to exer- cise their statutory rights. Respondent has not made any conciliatory deviation from its implacable course of un- lawful acts. Even though it signed a settlement agree- ment on April 21, Respondent went right ahead and not only resumed, but accelerated its unlawful campaign. The very next day Respondent discriminated against John Walkden in job assignment and barred employees from access to areas that they had previously freely fre- quented. Thereafter, a multitude of new unfair labor practices erupted. I have no confidence whatsoever that traditional remedies short of a bargaining order will be effective in instilling confidence in employees that they 48 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 4 9 Ludwig Fish & Produce, supra ANIMAL HUMANE SOCIETY 67 may freely exercise their statutory right to select a col- lective-bargaining representative in an election if they so choose. The Supreme Court has approved the imposition of bargaining orders when the unfair labor practices are so outrageous and pervasive that their coercive effort cannot be eliminated by traditional remedies and a fair election is therefore impossible , or in the "less extraordi- nary cases marked by less pervasive practices which nonetheless still has the tendency to undermine majority strength and impede the election process ," and warrants a bargaining order where the Board finds there is little possibility of insuring a fair election through the use of traditional remedies. 50 Respondent's acts are so outra- geous and pervasive that it is impossible to imagine that their lingering coercive effect can be eliminated by tradi- tional means, and any argument that there is any reason- able possibility of now ensuring a fair election by tradi- tional remedies is totally unrealistic in the circumstances of this case. I conclude the violations of the Act are suf- ficiently extensive and grave as to foreclose any reasona- ble likelihood that a fair election can be held in the fore- seeable future. The employees' signed authorizations are, therefore, the most reliable indication of their desire for representation available . I shall therefore, in the absence of a bargaining request, recommend the beginning of Re- spondent's bargaining obligation be established as April 3, 1982, the date of Respondent's first unfair labor prac- tice. 5 1 On these findings of fact and conclusions of law, I issue the following recommended52 ORDER The Respondent, Animal Humane Society of South Jersey, Incorporated, Turnersville, New Jersey, its agents, officers, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership to the Union, Or any other labor organization, by discharging any of our em- ployees, assigning them to less desirable work, reducing their hours of work, or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment. (b) Discharging or threatening to discharge employees for attending a Board hearing. (c) Discharging or threatening to discharge employees for lawfully collecting unemployment compensation. (d) Discouraging union membership by issuing written warnings to employees or restricting employee access to work-related areas. (e) Physically assaulting or threatening employees or their families with physical injury if they engage in union activity or fail to cause the withdrawal of representation petitions filed with the Board. (f) Threatening to close the Turnersville, New Jersey facility and discharge the employees if they select the Union as their collective-bargaining agent. (g) Soliciting and demanding that employees cause unfair labor practice charges and representation petitions to be withdrawn. (h) Threatening to bring suit against employees if they do not withdraw unfair labor practice charges. (i) Threatening to damage employees ' reputations if they support the Union. (j) Promulgating new work rules or more stringently enforcing or threatening to more stringently enforce ex- isting rules because employees engage in union activity. (k) Prohibiting employees who support the Union from associating with other employees at the facility. (1) Prohibiting employees from engaging in union-relat- ed conversations during working hours. (m) Calling employees derogatory names because they engage in union activity. (n) Telling employees that other employees were dis- charged because of their union activity. (o) Implying to employees that Respondent is seeking a reason to discharge them because they engage in union activities. (p) Soliciting employees to seek out and report to Re- spondent on the union activities of other employees. (q) Telling employees it is futile to engage in protected activity or seek Board assistance. (r) Telling employees that Respondent will not allow a union to represent them. (s) Coercively interrogating employees about their union activities or those of others. (t) Soliciting employee grievances and promising to negotiate directly with and grant benefits to employees if they cause a representation petition filed with the Board to be withdrawn. (u) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with the Union as the exclusive representative of all employees in the unit described below with respect to rates of pay , wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written , signed agreement . The appro- priate unit is: All full time and regular part-time employees em- ployed by the Animal Humane Society of South Jersey, Incorporated, at its Turnersville, New Jersey location, but excluding all guards and super- visors as defined in the Act. 5° NLRB v Gisse! Packing Co, 395 U S 575 (1969) 51 Trading Port, 219 NLRB 289 ( 1975). 52 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. (b) Offer John Walkden and Ruth Bissonette immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD result of the discrimination against them, in the manner set forth in the remedy section of the decision (c) Offer Nancy Walkden immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of the decision. (d) Make David Eddis whole for wages lost as a result of the unlawful assignment of John Walkden and Ruth Bissonette to share his work in the manner set forth in the remedy section of this decision (e) 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. (f) Remove from its files any reference to the dis- charges of John Walkden, Nancy Walkden , Ruth Bisson- ette, and James Sztubinski and notify them in writing that this has been done and that evidence of these unlaw- ful discharges will not be used as a basis for future per- sonnel action against them or unfavorable recommenda- tions to other employers. (g) Rescind and remove from its files any references to those written warnings issued to John Walkden on April 29, to Ruth Bissonette on May 3 , and to David Eddis on April 22, 25, and 26 , 1982, and notify the employees that this has been done and that evidence of these unlawful warnings will not be used as a basis for future personnel actions against them or unfavorable recommendations to other employers. (h) Rescind the new work rules imposed by Rosalie Siemer on April 3, 1982. (i) Post at its Turnersville , New Jersey office and facil- ity copies of the attached .notice marked "Appendix "53 Copies of the notice , on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 53 If this Order is enforced by a judgment of a United States court of appeals, the words in the nonce 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 "