Coradian Corp.

CORADIAN CORP. 1207 Coradian Corporation and Local Union No. 3, Inter- national Brotherhood of Electrical Workers, AFL-CIO. Cases 29-CA-12425, 29-CA-12474, and 29-RC-6555 19 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 12 February 1987 Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the Charging Party filed exceptions and an an- swering brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified, to modify the remedy,' and to adopt the recommended Order as modified.2 We agree with the judge for the following rea- sons that the 22 May 1986 memo to employees signed by the Respondent's branch operations man- ager, Joseph R. Sofia, read in conjunction with the memorandum attached to it (which detailed the Respondent's previous experiences with IBEW Local 3), contained an unlawful threat to'close the Respondent's operation.3 Although the underlying memorandum purports to relate objective facts about the Respondent's prior history with IBEW Local 3, and the General Counsel has not chal- lenged the truth of the statements therein, Sofia's cover memo strongly implies that the events re- counted in the memorandum will occur once again, nearly 9 years after the most recent event discussed in the memorandum. The cover memo further im- plies that such events will render operations in the metropolitan New York City area impossible for the Respondent, without offering any current evi- dence for this prediction. The Respondent's predic- r In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after I January 1987 shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out to the 1986 amendment to 26 U.S.C § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 We do not adopt the judge's inclusion of a visitatortal clause in his recommended Order In the circumstances of this case , we find it unnec- essary to include such a remedial provision and we shall modify the Order accordingly. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). tion was thus not based on objective evidence and did not constitute opinion protected by Section 8(c) of the Act. We find the facts in this case clear- ly distinguishable from those in Atlantic Forest Products, 282 NLRB 855 (1987), on which the dis- sent relies. Here, the Respondent's memo not only recited its prior 9-year-old history with IBEW Local 3, which under Section 8(c) and such cases as Atlantic Forest Products, it had the right to do, but it also impermissibly suggested that these events would occur again and threatened to move or shut down its New York operations by stating quite clearly that only a vote for the incumbent Teamsters would allow it to meet its "need to do business within the New York area." No such threats, implicit or otherwise, were made in Atlan- tic Forest Products.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Coradian Corporation, Latham, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." DIRECTION It is directed that the Regional Director for Region 29 shall within 10 days from the date of this decision, open and count the ballots of Peter McDonald, Joseph Romagnolo, and Israel Padin in Case 29-RC-6555 and prepare and serve on the parties a revised tally of ballots and appropriate certification. 3 In adopting the judge's finding that the Respondent violated Sec. 8(a)(l) by this threat to close, we do not rely on and specifically disavow the judge's reliance on sentiments regarding the Charging Party ex- pressed by Sofia at the hearing. 4 Chairman Stephens would reverse the judge's finding that the 22 May memo violates Sec. 8(a)(1) of the Act The memorandum states facts that no one challenges as untruthful concerning the Respondent's previ- ous bad experience with Local 3. It expressly identifies the years when those difficulties occurred The cover memorandum clearly states the Re- spondent's view that having its employees covered by Teamsters con- tracts has helped it become profitable, and the two memoranda, consid- ered together, suggest the Respondent's opinion that Local 3 contracts would not be helpful with respect to work in the New York area In Chairman Stephens' view, this coupling of opinion with an apparently truthful account of past events does not rise to the level of threats to close a plant if the employees select a particular union, and it comes within the protection of Sec 8(c) for the same reasons that the speech at issue in Atlantic Forest Products, 282 NLRB 855, 859-861 (1987), was found lawful 287 NLRB No. 128 1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Beatrice Kornbluh, Esq., for the General Counsel David Grandeau, Esq., of Latham, New York, for the Re- spondent. Norman Rothfeld, Esq., of New York, New York, for the Union. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge On 16 May 19861 and 17 June, Local 3, International Brother- hood of Electrical Workers, AFL-CIO (Local 3) filed charges, respectively, in Cases 29-CA-12425 and 29- CA-12474 against Coradian Corporation (Respondent). On 20 June the Regional Director for Region 29 issued a consolidated complaint, which alleges, inter alia, that Respondent unlawfully (a) discharged employees Peter McDonald and Joseph Romagnola because of their activities in behalf of Local 3 and because of other con- certed activity, (b) interrogated its employees, (c) solicit- ed the grievances of its employees and promised to re- solve them to induce them not to join Local 3, (d) prom- ised its employees wage increases, and (e) threatened its employees with plant closure and other reprisals if they joined Local 3. On 24 June the Regional Director issued a report on challenged ballots, order consolidating cases and notice of hearing, which consolidated for hearing Cases 29- CA-12425 and 29-CA-12474 as to which the complaint, discussed above, was issued, and Case 29-RC-6555, which involves the challenged ballots of Israel Padin, and the two dischargees, McDonald and Romagnola 2 The consolidated complaint and challenged ballots were combined for hearing, which was held before me on 14 and 15 October in Brooklyn, New York. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Respondent, and Local 3, 1 make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, having its prin- cipal office and place of business in Latham, Albany County, New York, and in other places of business in- cluding Plainview, Long Island, New York, is engaged in the sale, installation, and service of telecommunication equipment and related services During the past year, Respondent sold telecommunication equipment to, and performed installation and service of such equipment I All dates hereafter are in 1986 unless otherwise stated 2 The petition was filed by Local 3 on 24 April A stipulation for certi- fication was executed by the parties and approved by the Regional Direc- tor on 15 May, and an election was held on 29 May in a unit consisting of all installers , repair technicians, and add-on technicians employed by the Respondent at its One Dupont South, Plainview, New York location, excluding all other employees, guards, and supervisors as defined in the Act The election resulted in a vote of two ballots for Local 3; two bal- lots for Local 868, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Local 868) and three challenged ballots, which are determinative of the outcome of the election valued in excess of $50,000, directly for, firms located outside New York State Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent's answer dented knowledge or information as to the labor organization status of Local 3. Local 3 has been certified by the Board numerous times over the years as the representative of employees I take adminis- trative notice of the many cases in which Local 3 has been found to be a statutory labor organization In fact this Respondent has recognized Local 3 and maintained a 2-year collective-bargaining agreement with it from 1975 to 1977. I accordingly find and conclude that Local 3 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent had a collective-bargaining agreement with Local 3 from 1975 to 1977. The contract was not renewed, and an election was held in 1978 with Local 3 and the Communications Workers of America participat- ing 3 Joseph Sofia, Respondent's branch manager, testified that when he worked as a technician for the Respondent, he helped organize and "brought in" Local 868, Team- sters In 1983, an election was held with Locals 3 and 868 participating. Local 868 won the election, and a 3- year contract was executed between Respondent and Local 868 in February 1983 The contract covered the five technicians who were employed at the time of the events at issue B. The Organizing Drive After the contract expired in late February 1986, the technicians became concerned that a renewal agreement had not been agreed to. They voiced their concern among themselves and to Respondent's officials. The em- ployees met on Fridays, which were paydays, the one day of the week all could be expected to be at the office, and discussed the union situation Most of this activity appeared to have taken place in March. Romagnola asked Respondent's supervisor, Michael Sofia, when the new contract would be settled Employee Michael Yergel stated that Romagnola was outspoken, candid, and openly said that the men should bring in another union Respondent's witness Julie Errante stated that Ro- magnola remarked, about once per week, that incumbent Local 868 "stinks." He occasionally made these remarks in the presence of Respondent's officials-the Sofia brothers. Employee McDonald, too, spoke with fellow employ- ees Romagnola, Yergel, and Evan Sampson about their belief that they were underpaid. McDonald also com- plained to the Sofias that he was underpaid, and asked for the status of the new contract. The Sofias replied that the were working on it McDonald also told the Sofias that he was not happy with the "way things were 9 The outcome of that election was not placed in evidence CORADIAN CORP going," because they were not being represented Yergel also stated that he asked Joseph Sofia about the status of the contract and he was "put off' by Sofia telling him that they were in contact with the Local 868 representa- tive and that he (Sofia) would call him. Joseph Sofia ad- mitted that McDonald complained about not receiving a raise As a result of the technicians' resolve to do something to obtain representation, inasmuch as they apparently heard nothing about renewal of the expired Local 868 contract, Yergel contacted Local 25, International Broth- erhood of Electrical Workers, AFL-CIO (Local 25). About late March, Yergel and Romagnola met with a Local 25 representative Romagnola signed a card for Local 25 and he arranged and attended a meeting with the other employees at the Local 25 office. A "state of the company" meeting was held in March, attended by Respondent's president, its three vice presi- dents, the Sofias, and the technicians.' Romagnola stated that when the meeting ended he asked employee Samp- son, who was with him in the men's room, to sign a card for Local 25 Sampson was signing a card when Supervi- sor Michael Sofia entered with Yergel Yergel testified that on entering the bathroom he saw Sampson filling out a card on the sink 5 Michael Sofia testified that when he entered the men's room he saw Romagnola and Sampson sniffing a white powder that he assumed was cocaine. He told no one of his observations I cannot credit Sofia. As a supervisor with the authority to recommend the discharge of em- ployees, which he has exercised in the past, I find it hard to believe that he would not tell his brother, the manager of the branch that employed the two technicians, that they were engaged in illegal activity on company time and property, at a meeting attended by the highest com- pany officials That this activity occurred and no action was taken against Romagnola is all the more improbable in view of Respondent's written personnel rules, which state that "the sale, use, distribution or possession of ille- gal narcotics while on company time and property . . . is contrary to company policy and represent grounds for dismissal." I therefore credit Romagnola and Yergel that Romag- nola and Sampson were in the men's room and Sampson was signing a Local 25 card in plain view when Michael Sofia entered. During this period of time when the technicians were speaking together about Local 25, someone wrote on a company bulletin board used to schedule work the words "Local 25 meeting." Employee Yergel stated that he saw Joseph Sofia erase the message, saying that he did not want to "see that shit on the board anymore " Sofia did not testify about this event, but employee Er- rante stated that she, and not Sofia, erased it She further stated that when she obliterated the message she asked "what is this shit doing on my board." I need not resolve ° Also in attendance were the staffs of the Plainview, New York, New Jersey, and headquarters offices 5 I credit Yergel His account was corroborated by Romagnola His minor error in stating that this occurred during the organizing for Local 3 is harmless Local 25 was the Union being organized at that time Local 3 was not contacted until later 1209 this conflict inasmuch as (a) the message did not belong on a company work-schedule board and could properly be removed by Respondent and (b ) this evidence was ad- duced apparently to show Respondent's knowledge of the union activity of its employees and its opposition to such activities Evidence of knowledge and animus exists apart from this incident. After meeting with Local 25 representatives and sign- ing cards for that Union , Romagnola and Yergel again met with Local 25, but this time its representative in- formed them that because most of Respondent's work was in New York City , they should be represented by Local 3, and not Local 25, which has jurisdiction outside New York City. Thereafter, on 15 April , employees John Corcoran, McDonald, Sampson , and Yergel went to Local 3 All signed cards that day except Corcoran .6 Three days later, Romagnola signed a card for Local 3 One week later he was fired About 10 to 14 days before Romagnola was dis- charged, he announced in the office that "we're to join Local 3, we're going to join the union " Michael Sofia replied in a joking manner "Oh , so you guys want Local 3, huh " McDonald stated that Sofia 's remark did not sound threatening and did not scare him, but neverthe- less he saw the attitude of the Sofias change, and he be- lieved that the employees were "being alienated." About the same time , the men met one morning in Mi- chael Sofia's office before the start of the workday. The door was open and the men were discussing the union situation One of the employees saw that Joseph Sofia was standing in the doorway and the union conversation ceased . Michael Sofia entered his office and asked if this was a union meeting or "union talk "7 On another occasion, at the time that the Local 25 cards were signed, Romagnola asked Sampson and Yergel to speak with him about the Union in Michael Sofia's office before the start of the workday 8 They conversed about the Union for 15 minutes with the door closed Errante opened the door and asked what was going on , Romagnola said that they\ were talking, and closed the door They then left and saw, the Sofias stand- ing outside looking unhappy McDonald stated that before Romagnola was dis- charged, the Sofias told him that if the men joined Local 3 or if Respondent became a Local 3 shop, the employ- 6 I cannot draw the inference that Corcoran informed Respondent of the union activities of Romagnola and McDonald Corcoran was opposed to the organizing drive, and told the workers that if the Union was suc- cessful, the Sofias would lose their jobs and the shop would close Al- though Corcoran might have been somewhat more friendly with the Sofias than the other employees, there is no basis to find, as the General Counsel suggests, that Corcoran told Respondent about the union activi- ties of the two dischargees Indeed, as later discussed, the fact that Joseph Sofia asked Yergel how the men felt about Local 3 and how they would vote, shows that Corcoran did not supply him with any such in- formation 7 This was testified to by McDonald , Romagnola, and Yergel 6 Errante said that this conversation occurred between 9 and 10 a in I do not credit her it is unlikely that the Sofias would have permitted a long conversation in a supervisor's office if it had occurred more than I hour after the 8 a in official start of the workday 1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees would lose their jobs as technicians and instead would be pulling cable "someplace." The petition was filed by Local 3 on 24 April. Romag- nola was fired on 25 April. The petition was mailed by the Board to Respondent, and Joseph Sofia signed a re- ceipt for it on 29 April. In the first week in May, Joseph Sofia called employee Yergel into his office. Sofia told him that Local 3 filed a petition for an election, and asked him if he knew how he would vote. Yergel replied that he did not know. Sofia asked him how the employees felt about the cur- rent situation and Yergel answered that they were un- happy with Local 868 because (a) the contract was not renewed and (b) they did not believe that they were being represented or would be helped by that Union if they lost their jobs. Sofia then asked him if he knew how they would vote and Yergel said "no." Sofia then said that when he (Sofia) was a technician 3 years ago, Local 3 unsuccessfully attempted to organize the shop. Sofia told Yergel that during that election campaign, Local 3 agents followed him home and told him about the Union. Sofia mentioned that Respondent and its Plainview office "are doing well now," and asked Yergel how the men felt. Yergel replied that they were upset that Romagnola was fired. Sofia said that he could not discuss it but that he had documentation in support of the discharge. Sofia then asked if the men were complaining about anything else. Yergel said he did not know and suggested that Sofia inquire of the men directly. Sofia then said "but you are the shop steward." Yergel denied being the steward and Sofia suggested that Yergel become the steward because he was well liked. Yergel acknowledged liking work at Respondent, and Sofia asked if there was anything he was unhappy about. Yergel replied that he received a good evaluation for a raise 4 months earlier from Michael Sofia but had not yet received the raise.9 Sofia immediately checked Yergel's file, looked at his paycheck, and called the vice president of operations at headquarters in Latham. Sofia told Yergel that he would look into the matter and asked him if he knew what he (Sofia) could expect at the election. Yergel said "no." Sofia then said, in a slightly angry voice, that he had a "game plan" too, and that he would not "stand for" anyone using Respondent "as a vehicle to get into Local 3." The conversation then ended. Thereafter, Yergel re- ceived the raise. Yergel testified that it was not unusual for him to speak to Joseph Sofia. If he had a problem he could talk to Sofia about it, and on occasion, Sofia asked him how the workers felt as to various subjects. Yergel further stated that although his answers to Sofia were truthful, he felt pressured to lie in order to save his job. For ex- ample, when Sofia asked him how he would vote, he feared being discharged and he answered that he did not know, although he did in fact know how he would vote. The conversation with Sofia did not change his mind as to how he would vote in the election however. Yergel further stated that if Sofia had not asked him the ques- 9 The evaluation was apparently performed pursuant to the contract's provision for annual performance appraisal tion he would not have mentioned his raise and probably at a later date would have asked Michael Sofia about it. Joseph Sofia testified that his conversation with Yergel was intended to get Yergel's feelings, hear his "gripes," and "enlighten" him as to Sofia's feelings. Sofia said they had a general conversation in which Yergel mentioned that he did not receive a raise. Sofia checked and found that the raise was not put into effect, and Sofia "made it happen for him." Sofia claimed that his conversation was not unusual because he frequently speaks to the techni- cians. Sofia denied asking Yergel how the employees would vote in the election but admitted telling him of his experience with Local 3 and Respondent's history with that Union. I credit Yergel's version of his conversation with Sofia. Yergel impressed me as an honest, truthful person who testified forthrightly and in a straightforward manner. For reasons to be discussed, I do not credit Joseph Sofia. On 7 May, McDonald was discharged. On 15 May, an election agreement was signed and approved. The Respondent's experience with Local 3 and its opinion of that union were amply demonstrated in Joseph Sofia's testimony and in election material given to the employees 1 week before the election. Sofia testified that his competitors, which were Local 3 shops, found it impossible to compete with non-Local 3 companies, and that he has seen such Local 3 firms put out of business by Local 3. The election material, signed by Sophia, stated that the: Teamsters had brought us to profitability and kept us very competitive in the New York metro- politan area. This Company has a need to do business within the N.Y. area, I ask for your support in reelecting Teamsters as your bargaining unit. Other election material, distributed at the same time, was written 3 years before, and referred to the 1983 elec- tion. That material stated, in part, that in 1975 Respond- ent signed a contract with Local 3: The Company quickly found that dealing with Local 3 led to many prohibitive costs and work rules which nearly forced the company to close its New York metropolitan operations. UTC soon found that Local 3 was more at home with electric contractors than telephone interconnect companies. In these circumstances, on June 30, 1977, when the agreement with Local 3 expired, the company took the steps necessary to remain competitive. The com- pany contracted no further with Local 3! Contracting out its wire-pulling and installation work to union shops, UTC started developing its own work force; it became independent of the hiring hall with all its abuses. Only then did UTC- later Coradin-become the strong company it is today, able to compete effectively in the tough met- ropolitan market place. CORADIAN CORP 1211 C The Alleged Violations of Section 8(a)(1) of the Act The complaint alleges that about 2 May Respondent, by Joseph Sofia, interrogated its employees concerning their union activities, solicited grievances of its employ- ees and promised to resolve them, promised its employ- ees wage increases, and threatened its employees with plant closure The test for determining whether an employer en- gaged in conduct in violation of Section 8(a)(1) is wheth- er the conduct reasonably tends to interfere with the free exercise of employee rights under the Act Golden Fan Inn, 281 NLRB 226 at fn. 8 (1986). 1. Interrogation According to Yergel's version, which I have credited, Sofia asked him in early May (a) if he knew how he would vote, (b) how the other employees felt about the current situation, and (c) if he knew how they would vote. Such questions, coming from the highest-ranking Re- spondent official in the Plainview office, at a private meeting in his office only about 1 week after Romagno- la's discharge, could only have had a coercive effect on Yergel This is especially so in that, during the conversa- tion, Sofia told Yergel of his negative experience with Local 3 and that he would not tolerate any employees using Respondent as a "vehicle" to get into Local 3. In addition, Sofia asked Yergel if he knew what he (Sofia) could expect at the election, which, taken together, was a clear demand that Yergel vote against Local 3 There was no evidence of a legitimate need for such questioning and Yergel was not assured against reprisals Such questions constitute unlawful interrogation in viola- tion of Section 8(a)(1) of the Act Long-Airdox Co., 277 NLRB 1157, 1171 (1985); Noral Color Corp, 276 NLRB 567, 571-572 (1985); Halliburton Co, 265 NLRB 1154, 1185 (1982) Respondent argues that inasmuch as Yergel stated that his conversation with Sofia did not change his mind as to how he would vote, and his answers were truthful, no violation has been established The Board has long held that [T]he test of interference, restraint, and coercion . does not depend on the successful effect of the coercion Rather, the illegality of an employ- er's conduct is determined by whether the conduct may reasonably be said to have a tendency to inter- fere with the free exercise of employee rights under the Act [Waco, Inc., 273 NLRB 746, 748 (1984) ] Here, under an objective test, the inquiries of Yergel were clearly coercive. This was made clear when, during cross-examination by Respondent, Yergel stated that ' When he asked me how I was going to vote I was in fear of losing my job and I told him that I didn't know how I was going to vote. When in fact I did know how I was going to vote Yergel added that he felt pressured to lie to save his job 2. Solicitation of grievances and promise to resolve them During their conversation in early May, Sofia asked Yergel if there was anything specific he was unhappy about Yergel mentioned that he had not received a raise, notwithstanding a good evaluation 4 months earlier Sofia checked, learned he had not received the increase, told Yergel that he would look into it, and later secured it for him Sofia admitted holding the meeting so that mutual feelings could be exchanged and to hear any "gripes" Yergel had. It is clear that Sofia solicited Yergel's grievances at the meeting and promised to and did correct the griev- ance mentioned by Yergel. The solicitation of grievances at a preelection meeting, during the course of an organization campaign, and the immediate resolution of the grievance, by the grant to Yergel of the wage increase, violates the Act Farm Boy Food Mart, 278 NLRB 409, 412-413 (1986), Radio Broad- casting Co., 277 NLRB 1112, 1123 (1985). Employees who were solicited in such a way "would tend to antici- pate improved conditions of employment which might make union representation unnecessary." Uarco, Inc , 216 NLRB 1 (1974) Respondent argues that (a) Yergel's admissions that it was not unusual for him to talk to Sofia, he was able to talk to Sofia whenever he had a problem; and Sofia looked to him for "input" on how the workers felt on many subjects and (b) the raise was a contractual in- crease for which Yergel was evaluated and to which he was entitled months before the union matter began, con- stitute defenses to this allegation. I do not agree. Although Yergel may have spoken to Sofia before this meeting, there is no evidence that such prior conversa- tions took place in the formal, intimidating, atmosphere as existed here with Yergel being unlawfully interrogated and feeling pressured to lie to save his job. This meeting was clearly designed to solicit Yergel's feelings about Local 3 in a coercive setting In addition, the only reason Yergel mentioned the raise was in response to Sofia's question If Sofia had not asked him he would have asked Michael Sofia about it. Thus, Joseph Sofia was not the person to whom Yergel would have addressed such an inquiry. Moreover, it does not appear that the raise was automatic According to the contract, the perform- ance appraisal was to take place annually, on the em- ployee's employment anniversary date, which it did, but: These performance appraisals will be major factors in determining periodic increases in an employee's hourly wage Salary increase for annual merit review will be based on the following table: Outstanding 8-11% Superior 7-8% Satisfactory 5% Developing Inadequate - Thus, the raise was not automatic; but rather was based only in part on the performance appraisal. Further, the amount of the raise was not definite Therefore, 1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when the raise was discussed at the meeting, Yergel could not have known that he would definitely receive it, or its amount. The fact that the raise was not automat- ic was made clear by Sofia, in that after telling Yergel that he would look into it, asked Yergel if he knew what he (Sofia) could expect at the election If the raise was automatic, Sofia would not have asked the question be- cause Sofia could not have affected the issuance of a contractually required increase Rather, Sofia was clearly asking for a quid pro quo-the raise in exchange for a vote against Local 3 in the election-a request he could have made only if he had the power to approve, or not approve, the raise 10 3 The alleged threats a The threat to close The complaint alleges that about 2 May, Joseph Sofia threatened employees with plant closure. In the memo, set forth above, distributed to employees 1 week before the election, Joseph Sofia urged a vote for Local 868, stating that that Union "brought us to profit- ability and kept us very competitive in . . . New York . . . . This company has a need to do business within the New York area."1 i The accompanying letter, written during the union election campaign 3 years before, stated that a prior contract with Local 3, which expired nearly 9 years earlier, caused "many prohibitive costs and work rules which nearly forced the company to close its New York metropolitan operations," and when the contract expired, "the company took the steps necessary to remain competitive," by contracting "no further" with Local 3, "contracting out wire-pulling to union shops, and becoming independent of the hiring hall" with all its abuses. "Only then did [Respondent] become the strong company it is today, able to compete effectively in the tough metropolitan market place " The clear import of these statements, coupled with Joseph Sofia's hearing testimony that he had seen some competitors put out of business by Local 3, and others unable to compete in the marketplace due to that Union, is that Sofia predicted that if Respondent contracted with Local 3 it would no longer be able to compete in the New York area That statement carries with it the clear implication that Respondent would be forced to close if Local 3 was selected as the employees' bargain- ing agent. 12 10 In view of my finding that Respondent solicited and promised to resolve grievances , I need not consider the complaint allegation that Re- spondent promised its employees wage increases That allegation appears to be related to the solicitation and promise to Yergel that his grievance, not receiving a wage raise, would be remedied There is no other evi- dence of a promise of wage increases I I I reject Sofia's incredible testimony that the purpose of the memo was to give employees a history and to ensure that they voted, and not to persuade them to vote for Local 868 The memo clearly states that Sofia "asks for your support in reelecting Teamsters as your bargaining agent " 12 1 reject Sofia's incredible testimony that it made no difference to the Respondent whether a contract was executed with Local 3 or Local 868 He first stated that "a contract is a contract as far as I am concerned, "but later testified that he would prefer a contract with Local 868 In view of the strong sentiment expressed in his hearing testimony and the 22 May memo and its accompanying letter in opposition to Local 3, The Supreme Court in NLRB v. Gissel Packing Co., 395 U.S 575, 617 (1969), established certain standards for determining whether an employer's statements about the effects of unionization are permissible The Court stated that any evaluation of employer's statements "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dis- missed by a more disinterested ear." . . an employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his com- pany. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable pre- diction based on available facts but a threat of retal- iation based on misrepresentation and coercion, and as such without the protection of the First Amend- ment [395 U S. at 618.] The Court continued, saying. As stated elsewhere, and employer is free only to tell "what he reasonably believes will be the likely economic consequences of unionization that are out- side his control," and not "threats of economic re- prisal to be taken solely on his own volition" [Supra at 619.] Here, the 22 May memo made it clear that the proba- ble consequence of signing a contract with Local 3 was that Respondent would be unable to compete with other companies and would be forced to close Dutch Boy Inc., 262 NLRB 4, 7 (1982) The statements in the memos "were not limited to the consequence of agreeing to any particular contract or contract language," but gave the impression that if Local 3 were selected as the employ- ees' bargaining agent, Respondent would have to close. Engineered Control Systems, 274 NLRB 1308, 1312-1313 (1985). There is no objective support for Respondent's as- sumption that by contracting with Local 3, its operations would, of necessity, become unprofitable and it would be unable to compete in the New York area. Great Scot of Florida, 256 NLRB 885, 890 (1981). The fact that Re- spondent had an earlier contractual relationship with Local 3, which apparently is the basis for its belief that which allegedly nearly caused Respondent to close, one cannot believe that Sofia would not care which union Respondent contracted with CORADIAN CORP 1213 Local 3 would cause it financial ruin, is not a defense to this allegation Respondent's only contract with Local 3 expired nearly 9 years before the memos were given to these employees in May 1986 and there was no showing what demands Local 3 might make now Great Scot, supra. Moreover, Joseph Sofia, who distributed the memos, was not even employed by Respondent during the term of Local 3's contract with it and could not, therefore, base any prediction on objective facts coming within his personal knowledge at the time of such con- tractual relationship I accordingly find that the 22 May memos constitute an unlawful threat to close Respondent's operation if Local 3 won the election, in violation of Section 8(a)(1) of the Act b The threat to discharge I find, based on employee McDonald's credited, un- contradicted testimony, that the Sofias told him that if Respondent becomes a Local 3 shop or if the men joined Local 3, the employees would no longer be doing techni- cian work-they would lose their jobs and be "pulling cable someplace " I further credit this testimony for the reasons that this view was set forth in the memos issued by Respondent on 22 May-2 weeks after McDonald's discharge In the memo, Respondent stated that Local 3 was a union pri- marily for electrical contractors and not telephone inter- connect companies like Respondent Further, that one of the costly phases of the Local 3 contract was the "wire- pulling" operation, and when the contract expired, Re- spondent "contracted out its wire-pulling . . . work to union shops . and started developing its own workforce " The remark to McDonald reflected Respondent's view, later given to the employees in the memos, that membership in Local 3 necessarily meant that the member would perform "wire-pulling" or "cable-pull- ing" work in an electrical contractor's shop, and would also mean that because such work would not be done at Respondent, the Local 3 member would not be working for Respondent I accordingly find that the statement to McDonald was an unlawful threat to discharge him if Local 3 was selected as the employees' bargaining agent, in violation of Section 8(a)(1) of the Act D The Alleged Violation of Section 8(a)(3) of the Act 1 Joseph Romagnola a Facts Romagnola was hired in July 1985 at a wage rate of $8 75 per hour In October, he told Joseph Sofia that he had a job offer from another company. Sofia gave him a raise of $1.25 in order to induce him to stay, telling him that he was a good worker. Romagnola was a service technician who repaired equipment at customers' premises. He worked a regular 8 am to 5 p m workday, and would rotate after-hours' emergency work with the other technicians. At such time he would be on call, contacted by beeper, from 5 pm to 8a.m Romagnola was trained for 1 week on Rolm equip- ment, which many of the customers had Other techni- cians and the Sofias received more extensive instruction in Rolm devices, and Romagnola believed that his train- ing was insufficient Several incidents occurred prior to Romagnola's dis- charge that require discussion. (1) 20 December 1985 Romagnola reported to a customer, where he found no power to the system According to Romagnola, he called Joseph Sofia and told him the system was dead, and the problem was caused by the customer 13 According to Sofia, Romagnola called him without doing any trouble- shooting Sofia then had to tell him how to check the equipment, which he did, and found that a tripped circuit breaker was the cause of the problem Romagnola reset the switch and the system operated Sofia stated that he was dismayed at Romagnola's fail- ure to utilize basic testing techniques before calling him, but never discussed this incident with him 14 Nevertheless, Sofia saw fit, allegedly at that time, to write and place a memo in Romagnola's file regarding the incident. For the following reasons, I do not believe that the memo was written contemporaneously with the event, as testified by Sofia Four documents, purporting to be an original and three copies of the memo, were received in evidence The document identified as the original, and which ap- pears to be an original (G.C. Exh. 6D), bears the date "12/20/85" on the top Of the three copies, which in all other respects are identical to the original, two bear the date "12/20/85," but one bears the date "12/20/86 " All four documents state in the text that the incident oc- curred on "December 20, 1986," an impossibility, since even at the time of the hearing, that date had not yet ar- rived Sofia, who admitted that he may have typed these documents because they do not bear a secretary's initials, could offer no explanation, other than a typographical error, to account for the discrepancies in the dates. It appears to me that the memo was written after the incident, probably long after the incident, in 1986 If the original document was written and typed on 12/20/85, as it states, the only way a copy bearing a 12/20/86 date could be made is if the original document was altered or retyped In addition, if someone was writing a letter in late 1985, it would not be his natural inclination to write on it two dates in 1986 That would occur only if it was written in 1986 What I believe occurred is that the doc- ument was written in 1986, and typed "12/20/86 " Later the error was noted and an original was retyped with a "12/20/85" date, and copies made from that However, the one copy bearing the "12/20/86" date was retained and inadvertently, by Respondent, produced at the hear- ing. The further error in the text of "December 20, 13 On such occasions, the customer, even though it had a prepaid serv- ice contract, would be charged for the service call 14 Romagnola denied asking Sofia how to fix the system 1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986" was not noticed, however, and was therefore not changed on any of the four documents The language in the memo itself further convinces me that the document was written after the fact The last paragraph states that: The reason this incident 'is worth mentioning is for the fact that Joe had just successfully completed a formal Rolm Maintenance course and his current status as Senior Technician does not warrant this type of response. A memo written contemporaneously with the event usually deals with the incident itself The statement "the reason this incident is worth mentioning" seems to be a later attempt to justify earlier action and appears to be an attempt to recall and document a prior event not deemed worthy of comment at the time it occurred Moreover, it should be noted that at the time of the incident, Romag- nola had been employed for 5 months without incident and had received a raise 2 months earlier Based on the above, I conclude that the 20 December memo was not written at the time of the incident in 1985 as testified to by Sofia, but rather was written some time in 1986 as an after-the-fact attempt to justify Romagno- la's discharge in order to show that documentation exist- ed at the time of the events At a minimum, this does not serve to inspire confidence in Respondent's defense. At a maximum , it impairs Sofia's credibility and is an attempt to show that documentation existed at a time when it did not, so that one would be impressed with the severity of the offense to the extent that it was deemed necessary to memorialize in a memo in Romagnola's file Whereas in fact, as admitted by Sofia, he never mentioned the inci- dent to Romagnola and, assuming that Romagnola did call for instructions, as also admitted by Sofia, when a technician calls for help "I would never turn anybody away that's looking for help." Supervisor Michael Sofia, too, testified that, as the technicians' supervisor, he helps if he is able to do so, by accompanying them when they have problems and showing them what to do (2) 26 February 1986 In the afternoon, Romagnola was at a customer in Suf- folk County, Long Island He was called and directed to report to an account in upper Manhattan, about 65 miles away, which would have taken him 2 hours to travel to. Romagnola called Michael Sofia and asked why he had to go because he was so far away Sofia replied that he was the only person available. Romagnola agreed and was returning to the office to pick up a part for the new call when he was told by Sofia that another technician had been sent to make the repair, and he did not have to go 15 A memo was written concerning this incident too, al- legedly on the day it occurred. The last paragraph states- 15 The other technician , Zenon, was working in Manhattan, much closer to the account than Romagnola However, Zenon was employed by Respondent 's New Jersey office and Sofia had to, in effect, borrow him for the repair I think for a Senior Technician I, he acted unpro- fessional in this situation On other occasions Joe has challenged me by saying-if I didn't like the work he was doing-fire him. Romagnola stated that his concern in questioning the assignment was his belief that he would not be able to arrive at the new account within the 2 hours that Re- spondent guarantees to its customers that it will have a technician at the location. Romagnola stated that he was never spoken to about this incident Sofia did not testify otherwise. Neverthe- less, a memo, purportedly written the day of the inci- dent, was placed in Romagnola's file. I do not believe that the incident, or the memo, is in- dicative of any wrongdoing by Romagnola The "un- professionalism" referred to in the memo consisted of Romagnola's questioning the wisdom of his assignment to an emergency repair located more than 2 hours away (which would have caused Respondent to default in its 2-hour guarantee) when in fact a technician located much closer was immediately found. Moreover, although Romagnola challenged the assignment, when he was told that he was the only one available and must go, he did agree to go and in fact was en route when the call was reassigned. Therefore, he undertook to complete the as- signment Furthermore, I believe this memo suffers from the same taint as the 20 December 1985 note in that it was not written on the date of the event, as testified by Sofia. The reference in the last paragraph to other occasions, in which Romagnola allegedly told Sofia that if he did not like his work he should fire him, has no relation to the 26 February incident. It was not alleged that Romagnola said this on 26 February and it was thus meaningless for Sofia to mention it in his report of the questioned assign- ment, especially because the discharge occurred 2 months later. The reference therefore to an invitation to fire could only have meaning if made after the discharge, in order to justify the firing. I accordingly find that the 26 February letter was written after Romagnola's discharge as an afterthought in order to document and justify his firing Michael Sofia stated that perhaps before that incident, a new customer, Mytel, called and requested that Ro- magnola never return there because he harrassed a female secretary. Sofia stated that he spoke to Romag- nola about this incident, but did not place him on proba- tion. It must be noted that the Respondent's personnel rules provide that grounds for dismissal include "discourteous . . . actions to customers" and "sexual harassment of customers or their employees" But no disciplinary action was taken against him. (3) 19 March 1986 Romagnola was assigned to an emergency call at night at an important account, Pepsi-Cola, at which none of the phones were working. He admitted calling Joseph Sofia at home at least twice around midnight for instruc- tions on repairing the Rolm system, and to report that he CORADIAN CORP. - 1215 locked the keys in his vehicle. Sofia gave him advice on how to fix the equipment When Romagnola left the cus- tomer he had restored service to 75 percent of the phones and was told by Sofia to obtain a part at the Re- spondent's warehouse and return to the customer by 8 o'clock the following morning to complete the repair. Romagnola claims not to have known the combination to the warehouse lock and thus could not obtain the part and therefore did not go to Pepsi-Cola the next morning. Instead, he reported to Respondent's office about 8 a.m., where, according to Joseph Sofia, he was asked why he did not call the night before to get the combination. He said he did not think to do that and was told that it was a "lame excuse," to which Romagnola shrugged his shoulders. Sofia sent another man to finish the job. A memo allegedly written at the time, concluded that Ro- magnola's "total response and professionalism in this matter was out of line and is not what is expected of a Senior Technician and is worth mentioning with regard to his personnel file." Romagnola defends his actions by testifying that he was unfamiliar with Rolm equipment and that he fre- quently called when he had problems and questions with his calls. He stated that no one complained that he called too much, and he was told in the past by Michael Sofia that if he had a problem regarding the work he should call him or Joseph Sofia. In fact, Joseph Sofia testified, regarding this incident, that Romagnola "called me look- ing for help and I offered it. I would never turn anybody away that's looking for help." (4) 23 April 1986 On 23 April, 2 days before Romagnola's discharge, Julie Errante, a customer service representative, alleged- ly wrote the following addressed to Joseph Sofia, con- cerning Romagnola: The above Technician is beginning to interrupt my work day. He is constantly calling me to ask ri- diculous questions on products for which he re- ceived training. Today he was at an account that has a Rolm CBX, he asked me how to change an attribute on a trunk. Mr. Romagnola went to Rolm training for 2 weeks and the command he asked me about is one of the basic and first things you learn. I feel this em- ployee is not living up to his standard when he must call a Customer Service Representative to ask something so basic. He calls from nearly every ac- count. Romagnola stated that he was told by Michael Sofia that if he had a problem with a service call, he should call him or Joseph Sofia or, in their absence, Errante.16 He admitted calling Errante between I and 10 times with such questions. Errante has been employed by Respondent for 3 years. Although she had no technical experience, she learned 16 Employee McDonald corroborated Romagnola 's testimony, stating that Joseph Sofia told him to call if he was unsure of how to make a repair, and when he called he spoke to the Sofas or to Errante He was never criticized for calling. on the job by asking questions of the Sofias and her sister, who was also employed as a customer service rep- resentative, and by reading books. She was knowledgea- ble about the Rolm system, and admitted that other tech- nicians also occasionally called her with questions. Errante stated that Romagnola had been calling her since he was hired "which was understandable because he was new," but that on 23 April it was getting "a little out of hand," and her point was that Romagnola called with simple technical questions that he should have been able to figure out himself. In the pretrial investigation, Errante told two Board agents that she had written this memo 3 to 4 weeks before Romagnola was fired, but had not written it within a couple of days before his discharge. She cor- rected that version at the hearing when she was shown the memo, and it refreshed her recollection that she wrote it 2 days before the firing. It does seem odd, how- ever, that she would not have remembered writing it when she did and would have denied doing so to the Board agent who questioned her not long after the firing." (5) 24 April 1986 Joseph Sofia wrote the following memo 1 day before Romagnola's discharge: On Wednesday, April 23, 1986, Joe Romagnola was predispatched to be at Glen Cove Hospital at 8:00 A.M. At 8:20 A.M. Joe came into the office rather than Glen Cove Hospital. Mike Sofia rescheduled Joe's dispatch to another account. The point is that Joe's constant inability to be at work, at the predispatched location at 8:00 A.M. causes a hardship on the Control Center, his super- visor, the Customer and this Company. Immediate termination procedure should take place. Romagnola admits that when he is predispatched the day before, he is to report to the customer at 8 a.m_ the following day. Joseph Sofia stated that on 24 April, Ro- magnola entered Respondent's office at 8:20 a.m. Sofia thought it unusual that Romagnola was in the office so frequently because he (Sofia) believed that service calls had to be made. Sofia called the dispatcher and asked whether there were any calls for Romagnola to make. The dispatcher informed him that Romagnola had been predispatched to report at a hospital account that morn- ing. He ordered Michael Sofia to send Romagnola on a different service call, which he did. He then wrote the above memo, discharging Romagnola. At the hearing, Romagnola denied being late on 24 April. Sofia stated that he decided to fire Romagnola as a result of this last incident, but used as input in making the decision the February 1986 episode, referred to above, in which Romagnola questioned his assignment from Long Island to upper Manhattan. 17 Errante was unsure when the Board agent questioned her, but stated that it was a long time ago. The charge was filed on 16 May. 1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sofia further stated that in deciding to fire Romagnola he did not know that there would be a union election. (6) 25 April 1986 Romagnola stated that he was called into Michael Sofia's office and told by him that he was fired because he (a) did not live up to his expectations when he was given a raise in October and (b) had an attitude problem. Romagnola told Sofia that he had no attitude problem because no customer complaints were received about him Romagnola added that he (Romagnola) knew why Sofia was firing him. Sofia then said that he had nothing to do with it and he was sorry. Romagnola asked if he could use Respondent as a job reference and Sofia agreed, saying that he had "no gripes" with Romagnola. Sofia also offered to call him if "side" work became available. Romagnola stated that up to the time he was fired, nei- ther Sofia had complained about his work or his attitude He further testified that he was often asked by them to correct the work of other technicians He also stated that he was late only one or two times. Errante stated that although employees are expected to report at 8 a m , that rule was not strictly enforced. Joseph Sofia admitted never speaking to Romagnola about his failure to abide by company rules, but he di- rected that Romagnola be spoken to. Michael Sofia stated that he spoke to Romagnola whenever he did something wrong, but Romagnola's response was to invite Sofia to fire him if he did not like the work he did. Interestingly, when asked who the worst technician was, Michael Sofia testified that it was Sampson.18 b General Counsel's prima facie case Romagnola was a leading, outspoken supporter of a change of union representative in this small unit He at- tended the first union meeting with Yergel and arranged further meetings with a union representative for the other employees He was present when Sampson signed a card, and was seen doing so by Michael Sofia. Romagnola organized and attended weekly meetings of the workers at which they spoke about the union situ- ation in Michael Sofia's office. On one occasion, they spoke about the Union with the door open. Joseph Sofia stood in the doorway and later Michael Sofia asked if they were holding a union meeting or engaging in union talk. On another occasion, employee Errante, who testi- fied on behalf of Respondent, attempted to open the door but it was closed by Romagnola, after which they were met with the Sofia's unhappy stares He also told the Sofias that Local 868, the Union that Joseph Sofia helped organize and which he preferred over Local 3, "stinks " Two weeks or less, before he was fired, Romagnola announced to Michael Sofia that "we" are going to join Local 3 or "the union " Thereafter the Respondent's atti- tude toward the employees changed and they felt "alien- ated " One week later, Romagnola signed a card for Local 3 and I week after that he was discharged. 18 Sampson quit after the election Although Respondent may not have known that Local 3 filed a petition at the time it discharged Romagnola- the petition was filed 1 day before the firing but not re- ceived by Respondent until 4 days after the discharge-it is clear that Respondent was well aware of Romagnola's outspoken dislike for Local 868 and support for Local 3. This fact, considered together with the instances of il- legal solicitations of grievances, interrogations, threats of discharge and plant closure, coupled with Joseph Sofia's (a) warning that he would not tolerate any employees' using Respondent as a "vehicle" to become a member of Local 3 and (b) hearing testimony that his competitors have been put out of business by Local 3 and rendered unable to compete, provide a strong prima facie showing that Romagnola's union activities were a motivating factor in Respondent's decision to discharge him. Wright Line, 251 NLRB 1083 (1980). 1 so find. C. Respondent's Defense Having found a prima facie case of unlawful motiva- tion in discharging Romagnola, the burden shifts to Re- spondent to prove that it would have fired Romagnola in the absence of his union activities. Wright Line, supra Joseph Sofia stated that he decided to fire Romagnola after the 24 April incident, because he and the customers had "suffered long enough," and he used, as input in making the decision, the February 1986 episode in which Romagnola questioned his assignment from Long Island to upper Manhatten. Regarding that latter incident, Ro- magnola questioned the wisdom of sending him on a 2- hour journey when it was Respondent's policy to guar- antee a technicians' arrival within 2 hours Romagnola did not refuse the assignment. In fact he agreed to go and was enroute when the job was reassigned. I find no wrongdoing by Romagnola with regard to that incident. The other incidents, cited by Respondent, do not sup- port a finding that he would have been fired in the ab- sence of his union activities. The incidents of 20 Decem- ber 1985 and 19 March and 23 April 1986 involved criti- cism for his calling the office for instructions in making repairs Nevertheless, both Sofias testified that they are willing to help technicians who call for assistance. Ro- magnola and McDonald stated that they were told to call the Sofias or Errante when questions arose. I there- fore find no basis for faulting Romagnola for calling for instructions. Respondent further alleges Romagnola's failure to appear at the assigned locations on 19 March and on 24 April, as reasons for the discharge, the latter being the incident that triggered the firing. On 19 March he was supposed to have returned at 8 a.m. to finish the repair at a customer. He had restored service to 75 percent of the phones in the totally dead system when he left the customer after midnight the pre- vious night. He did not report to the customer the next morning because he could not obtain the needed part at Respondent's warehouse the night before because he did not know the combination to the warehouse lock In- stead he appeared at Respondent's office at 8 a.m. In view of the late hour at which he arrived home the night before, his success in repairing 75 percent of the system, CORADIAN CORP and his failure to call Sofia again for the combination and thus report to the customer on time are not major offenses. He did attempt to get to the customer in a rea- sonably timely manner by arriving at work at 8 a m. the regular starting time, in order to get the needed part. Regarding the 24 April incident, Romagnola appeared at Respondent's premises at 8 20 a m., whereas he was al- legedly supposed to be at a customer at 8 a.m having been predispatched the day before. Romagnola denied being late on 24 April, but a document received in evi- dence stated that he was supposed to be at the account at 8 a.m. Even assuming that Romagnola was not at the account at 8 a.m. there is no evidence that this has oc- curred before Thus, there is no basis for Joseph Sofia's memo complaining about "Joe's constant inability to be at work at the predispatched location at 8.00 am." The 19 March incident was not a predispatch situation. He was simply to return to complete a repair There is no evidence that Romagnola failed to appear at predis- patched locations on time, especially in view of the evi- dence that the 8 a.m. starting time is not strictly en- forced. The 24 April incident was remedied immediately with the assignment of another techinician to the custom- er, and Romagnola's reasssignment to another task. Moreover, I credit Romagnola's testimony that he had never been criticized or warned for any work-related problem. Significantly, when asked to identify the "worst" technician, Michael Sofia named Evan Sampson Furthermore, there was no reference to his alleged late- ness when Romagnola was discharged. i 9 B & P Truck- ing, 279 NLRB 693, 698-699 (1986) My findings that documents concerning Romagnola's alleged malfeasance were not prepared at the time of the events in question, as testified by Respondent's officials, but rather were written after the fact, in order to provide supporting evidence for his discharge, serves to impair the credibility of the Sofias, as to those matters, and also as to their denials that Romagnola was fired for his union activities. I therefore find that Respondent has not met its burden of proving that it would have discharged Romag- nola in the absence of his union activities. Wright Line, supra 2 Peter McDonald a Facts McDonald was hired in November 1982 as a service technician. About January 1985, nearly 1-1/2 years before his dis- charge, McDonald was placed on probation for 30 days for "poor attitude." He was not suspended or discharged then At the end of the 30 days, Michael Sofia told him that he had "improved " On 20 March McDonald called in sick That evening, Joseph Sofia phoned McDonald in order to give him an 19 It should be noted that Respondent had grounds for firing Romag- nola about February 1986 when he allegedly harassed a female employee of a customer, and in March 1986, when Supervisor Michael Sofia alleg- edly saw him sniffing a white powder, which he assumed was cocaine, on company time and property, both of which were in clear violation of Re- spondent's rules It did not do so 1217 assignment for the following day. Sofia testified, as cor- roborated by Errante who was with him then, that when he phoned McDonald's home, McDonald's father an- swered and said that his son was working at Scotch Communications that day. McDonald did not have a phone number for his son, but told Sofia that he (Sofia) could contact him on his beeper A few minutes later, Peter McDonald called Sofia and was given an assign- ment for the next day. Sofia aked him where he was and McDonald answered that he was having his tax returns prepared. Sofia testified that he wanted to get more facts before he accused McDonald of engaging in outside employ- ment Thereafter, Sofia phoned Scotch and asked for McDonald The person who answered said he was not in and asked if she could take a message. Sofia declined. A few days passed and Sofia again called, with the same result. By this time, according to Sofia, 4 to 5 weeks had elapsed and on 7 May, Sofia decided to confront McDonald The contract between Respondent and Local 868, al- though expired at that time, had apparently still been honored by Respondent. Dues were still being deducted and forwarded to that Union The contract provides. Conflict of Interest-No employee shall become a contractor for the performance of any telephone work or the sale of telephone material or services without the Employer's express written consent. McDonald stated that on 7 May in the middle of the workday he was called to return to the Respondent's office Joseph Sofia asked him if he was working for Scotch Communications McDonald replied that he knows of it Sofia then said that he knew for a fact that on 20 March he called in sick and worked for Scotch. McDonald denied doing so Sofia said that he could not tolerate that and had to fire him, adding that he had not lived up to Respondent's standards during his tenure there McDonald was thus fired in the middle of the workday in the middle of a pay period. Michael Sofia drove McDonald home that day, and according to McDonald, Sofia said that he was very surprised to learn that he was fired and said that his attitude and work had improved. McDonald asked if he could use Respondent as an employment reference and Sofia agreed. Joseph Sofia's version of his 7 May conversation with McDonald differs in that he testified that McDonald ad- mitted working for Scotch "on the side," but denied working for Scotch during Respondent's work hours Michael Sofia testified that when he drove McDonald home, he told Sofia that he did not care that he was fired because he could now work full time for Scotch. At the hearing, Joseph Sofia stated that the delay in firing McDonald, from 20 March to 7 May, was due to his need to (a) do "research and fact finding" to make certain that the facts were true and (b) consult with his corporate office Sofia also testified that he was advised by headquarters to confront McDonald with the Scotch facts and if McDonald denied involvement, he should warn him; but if he admitted working for it he should 1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fire him. However, Sofia's pretrial affidavit stated that the nearly 7-week delay was because he (a) had man- power problem-he needed McDonald, (b) had problems with Romagnola at that time, and (c) liked McDonald. In evaluating McDonald's discharge, we must examine only what Joseph Sofia knew about Scotch Communica- tions, and McDonald's relationship with it, at the time of the firing. If we assume Sofia's testimony to be truthful, on 7 May he (a) believed that McDonald had worked for Scotch Communications at least 1 day and (b) was told by McDonald that he works for it on the side. However, Sofia testified that he did not know (a) what type of work Scotch was engaged in, (b) how often he worked for Scotch, or (c) what he did for it.20 The General Counsel seeks to compare the treatment accorded to McDonald with that of Michael Sofia, who engaged in outside work, as a supervisor, more than I year before McDonald's discharge. Joseph Sofia first learned of it when his director, Bill Smith, called and asked if he knew that his brother Michael was president of Mas Communications. Joseph knew nothing about Mas, and was given its phone number by Smith. Sofia called Mas and Michael's wife answered. She advised him to talk to Michael. Joseph told Michael that he could not be engaged in two businesses at one time, and he had to decide whether to resign from Mas or from Respondent. Michael withdrew from Mas and provided proof of such withdrawal to Joseph. Mas was formed when Michael Sofia was a supervisor at Respondent. Former customers of Respondent who stopped using Respondent and began utilizing Rolm, called Sofia at home, and used Mas because that compa- ny could perform the work cheaper than Rolm. Work was performed for Mas' one customer, Citibank, at night and on weekends for 6 months. Mas is still in operation, but Michael Sofia ended his relationship with that company when confronted by his brother. Michael receives no renumeration from Mas. The Sofias stated that there is no company policy pro- hibiting outside work by supervisors. The union contract forbids "conflicts of interest" engaged in by unit mem- bers. However, in a case of a conflict of interest by a su- pervisor, Michael Sofia stated that the Respondent makes a decision whether to permit the work. In fact, Michael testified that he was told to stop work with Mas because he did not recieve permission from Respondent to per- form outside work. zo Testimony at the hearing showed that Scotch was formed 1-1/2 to 2 years before the hearing. Its president was David Fusco, a lifelong friend of McDonald and an accountant. McDonald, who was one of the found- ers of Scotch, was a vice president in that firm when it was formed, but remained an officer for only I month during which time he performed no work for it and received no pay. McDonald stated that the company was formed so that Fusco, a systems analyst, could buy computers at whole- sale prices. Later, however, McDonald stated that Fusco sought to inter- est him in utilizing the firm to operate a small interconnect company at which he (McDonald) could install equipment . McDonald declined the offer and withdrew as an officer. McDonald flatly denied doing any work for Scotch or any outside work for any other company and denied working for another company on 20 March McDonald stated that at the time of the hearing, Scotch was "dormant." b. The General Counsel's prima facie case McDonald was active in behalf of Local 3 and signed a card for that Union . He spoke among his fellow em- ployees regarding a change of unions and attended the meeting with his colleagues in Michael Sofia's office at which Joseph Sofia was seen at the doorway and at the end of which Michael Sofia asked the men if this was a union meeting of if they were engaging in union talk. McDonald told the Sofias that he was underpaid, that he was not being represented, and that he was not happy with the current state of affairs at Respondent. McDonald was also the subject of a threat to dis- charge in that he was told by Joseph Sofia that if the men joined Local 3 or if Respondent became a Local 3 shop they would lose their jobs and would be pulling cable someplace. The timing of the discharge, coming 8 days after Re- spondent received the Local 3 petition, supports a ford- ing of unlawful motivation. Respondent's knowledge that a Local 3 campaign was just begun, McDonald's attendance at a meeting con- cerning union matters at the shop, coupled with, as in Romagnola's case, the instances of illegal solicitations of grievances, interrogations, threats of discharge, and plant closure, considered with Joseph Sofia's (a) warning that he would not tolerate any employee's using Respondent as a "vehicle" to join Local 3 and (b) animus toward Local 3 expressed at the hearing, provide a strong prima facie showing that McDonald's union activities was a motivating factor in Respondent's decision to discharge him. Wright Line, supra. I so find. c. Respondent's defense (1) Failure to investigate Respondent asserts that McDonald was discharged for violating the contract's prohibition on outside work. The contract forbids an employee from becoming a contrac- tor for the performance of telephone work without the employer's "express written consent." As testified at the hearing, McDonald, during the time that he was with Scotch Communications , did perform such work, and he had not received Respondent's writ- ten consent. However, at the time of the discharge, Joseph Sofia knew only that McDonald had worked for Scotch on 20 March, when told by McDonald's father, and he learned of that after Respondent's regular work- ing hours. He did not know what type of work Scotch was engaged in, how often McDonald worked for Scotch, or what work he did for it. Thus, when McDon- ald was discharged, Sofia was told that he worked for "Scotch Communications." No investigation was done, prior to the discharge, to ascertain the type of work Scotch was engaged in. Accordingly, based on the infor- mation Sofia possessed on 7 May, McDonald may not have been in violation of the contract if Scotch had been involved in nontelephone work. Speed-O-Lith Offset Co., 241 NLRB 928, 932-933 (1979); McCormick Longmeadow Stone Co., 155 NLRB 577, 579 (1965). CORADIAN CORP (2) The delay in discharging McDonald Although Respondent sought to enforce the contrac- tual' provision, it delayed for nearly 7 weeks the dis- charge that it believed the contract permitted. Thus it could fairly be said that Respondent permitted and con- doned McDonald's outside work from 20 March, when it first learned of it, until 7 May. Sofia thus ignored the contract's provision, and tolerated McDonald's work until Local 3 began its organizing drive. Rex Printing Co, 227 NLRB 1144 (1977), Great Atlantic & Pacific Tea Co., 210 NLRB 593 (1974); Thurston Motor Lines, 159 NLRB 1265, 1308 (1966). The timing of a discharge is also relevant as when it follows the employer's discovery of union activity or where the employer unduly delays in effectuat- ing the discharge until after union activity occurs. [Gulf-Wandes Corp., 233 NLRB 772, 773 (1977).] The fact that Respondent delayed in discharging McDonald for an alleged offense that it became aware of nearly 7 weeks before he was fired, supports a finding that McDonald would not have been fired for this al- leged impropriety even in the absence of his union activi- ties. Pilliod of Mississippi, 275 NLRB 799, 812 (1985); United Artists Theatres, 275 NLRB 158 fn. 2 (1985); A & T Mfg. Co, 265 NLRB 1560 (1982). Under these circumstances, I am not persuaded by Re- spondent's varied reasons for the delay in firing McDon- ald. I reject Joseph Sofia's hearing testimony that the delay was occasioned by the need to do research and factfinding to make certain that the facts were true. No investigation was necessary and none, in fact, was done. Flite Chief Inc., 229 NLRB 968, 976-977 fn. 44 (1977). On 20 March, when Sofia first learned of McDonald's connection with Scotch, he possessed all the facts he ul- timately relied on in firing McDonald nearly 7 weeks later. His "research and fact finding" consisted of making two phone calls to Scotch, asking for McDonald. Thus, he learned nothing new through his investigation. More- over, Sofia's prehearing affidavit gave different reasons for the delay: (a) manpower problems-he needed McDonald, (b) he had problems with Romagnola, and (c) he liked McDonald These shifting, contradictory rea- sons for the delay provide further support for a finding that Respondent has not met its burden of showing that it would have fired McDonald in the absence of his union activities. These reasons, too, demonstrate that Sofia made a deliberate decision to overlook McDonald's outside work because of other considerations-manpow- er problems with Romagnola, and his liking of McDon- ald Indeed, waiting from 20 March to 7 May did not re- lieve any of these problems because (a) the manpower problem still existed in that Romagnola had been dis- charged, but replaced by Padin and an inexperienced man, (b) the problems with Romagnola terminated with his discharge on 25 April, but McDonald was not fired for another 1-1/2 weeks, and (c) his concern for McDon- ald presumably would have continued. 1219 (3) Disparate treatment The contractual provision does not provide for auto- matic discharge if the employee becomes a contractor for the performance or sale of telephone work or serv- ices.21 Rather it states that such work shall not be done without the Employer's express written consent. Thus, if Respondent was willing, it could have consented to McDonald's performance of work for Scotch At the least, Sofia could have asked McDonald to give up his work for Scotch. It would be logical for him to do so because he (a) described McDonald as a "totally competent" employee who could "handle everything" a person in his classification was required to perform, (b) liked McDonald, and (c) gave his brother, Michael, the choice of giving up conflicting outside employment when such was discovered. Michael Sofia testified that he was told to stop doing outside work because he did not receive Respondent's permission to perform such work. Such policy, that side work could not be performed without Respondent's per- mission, is identical to that set forth in the contract, on which Joseph Sofia relied in discharging McDonald. Nevertheless, Michael Sofia was given the option of ceasing his outside work, which' he did, but McDonald, not being given that choice, was summarily fired Indeed, Michael's outside work, in my view, represented a more egregious conflict of interest than McDonald's, in that Michael performed work for former customers of Respondent, who left Coradian and became customers of Rolm. The customers then left Rolm to become clients of Mas, Michael's company, because Mas performed work cheaper than Rolm. These former Coradian cus- tomers thus had work done by a supervisor of Coradian at a time when Coradian performed work on Rolm equipment. I reject Respondent's argument that it could make a valid distinction between Michael Sofia and McDonald because conflicts of interests are prohibited only in the contract, covering unit employees, and no policy exists prohibiting such conduct by supervisors. First, the con- tract does not prohibit conflicting employment. It pro- hibits such activities if not agreed to by the Employer. Presumably, if such permission were granted, a conflict- ing activity could be undertaken by an employee. Fur- ther, Michael Sofia's conduct in not revealing to his brother that he had outside employment implies that he knew it was wrong. Second, Michael's concession that he was told to cease such employment because he did not have permission from Respondent is so similar to the policy, set forth in the contract covering McDonald's outside employment, as to permit a valid comparison of the treatment accord- ed the two. The Board has found that disparate, favor- able treatment accorded to supervisors engaging in out- side employment is a factor to be considered in determin- ing whether unit employees were discriminatorily dis- charged or properly fired for engaging in outside work. 21 The list of 17 prohibited personnel practices, which are grounds for dismissal, does not include any restriction on conflict of interest or out- side work 1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Speed-O-Lith Offset Co, 241 NLRB 928, 932-934 (1979); Hilltop Baking Co., 93 NLRB 694, 712-713 ( 1951). In both cases, the Board found that the employees were dis- charged in violation of the Act. Here, when Respondent learned of the conflicting out- side employment of Michael Sofia, it gave him the choice of quitting his other work, or resigning from Re- spondent . In contrast, when Respondent learned of McDonald 's outside work, he was summarily dismissed in the middle of a workday in the middle of a pay period. Such disparate treatment cannot be clearer I therefore find, for all the above reasons that Re- spondent has not met its burden of proving that McDon- ald would have been discharged in the absence of his union activities. Wright Line, supra III. THE REPRESENTATION CASE A. The Challenged Ballots of Peter McDonald and Joseph Romagnola The ballots of McDonald and Romagnola were chal- lenged by the Board agent because their names were not on the list of eligible voters. The Employer contends that both employees were discharged for cause prior to the election Local 3 argues that they were discrimina- torily discharged in violation of Section 8(a)(3) of the Act. It follows from my conclusions that McDonald and Romagnola were discriminatorily discharged and that the challenges to their ballots must be overruled. I find, therefore, that McDonald and Romagnola were entitled to employee status on 29 May, the date of the election. I shall therefore recommend that the challenges to the bal- lots of McDonald and Romagnola be overruled, and that the two ballots be opened and counted B. The Challenged Ballot of Israel Padin 1 Facts Local 3 challenged the ballots of Israel Padin on the grounds that he is a supervisor and that he was recently transferred to Respondent's Plainview location in order to dilute Local 3's strength in the election Respondent contends that Padin is not a supervisor and is eligible to vote. Local 868 did not take a position Padin was hired by Respondent in April 1983 and worked in its Jericho, New York location. In April 1985, when that office was relocated to Plainview, Padin was transferred to New Jersey as a supervisor In April 1986, Padin asked his manager and Joseph Sofia for a transfer to Plainview Padin's parents were getting divorced and his mother wanted her children to return to her home on Long Island and help pay her bills. The transfer was approved, and in late April he re- turned to his mother's house and began work at Plain- view effective about 2 May.22 He has continued to live on Long Island thereafter 22 The transfer coincided with the 30 April expiration of the lease on his New Jersey apartment On his return to Plainview, Padin was assigned and worked as a service technician and not as a supervisor There were no openings for supervisors in Plainview. Padin denied exercising any supervisory authority while in Plainview, and no evidence was adduced that he acted as a supervisor. The only evidence offered was that he acted as a regular unit employee Joseph Sofia denied transferring Padin to Plainview to affect the outcome of the election Employee Yergel stated that 1 or 2 days after the elec- tion Padin asked him why he challenged his vote Yergel replied that he knew that he was a supervisor and should not have been voting Padin answered that he coud not wait until this union matter is over so that he could return to his "old position " Padin testified that he told Yergel that he could not wait until this "whole thing" is over It was his hope that the union matter would cease so that he could return to doing the work of a technician, without having to deal with "company politics," such as the challenge to his ballot, although he added that the union matter did not affect the performance of his duties. He testified that when he requested the transfer he had no discussion with the Sofias regarding when or if he would return to New Jersey. Padin further stated that he did not know about the election until the first week of his work in Plainview 2 Analysis and discussion Padin was a supervisor when he worked in New Jersey However, during his tenure at Plainview he was not a supervisor, exercised no supervisory authority, and performed work as a rank-and-file technician 23 Accord- ingly, I cannot find that Padin was a supervisor I also cannot find that Respondent sought to dilute Local 3's support by transferring Padin to Long Island The evidence is uncontroverted that Padin, without knowledge of the election, initiated a request to be trans- ferred to Plainview due to family problems No discus- sion was had with him concerning a return to New Jersey and he does not anticipate such a return. Some suspicion may be aroused due to the fact that the transfer was effected at the time that an election was upcoming to attempt to dilute Local 3's support, since theoretically as a former supervisor in New Jersey, Padin could be relied on to vote against Local 3 However, such doubt concerning Respondent's motives cannot overcome the substantial evidence that (a) Padin had a legitimate reason for requesting the transfer, (b) his pres- ence was needed-after the election Respondent hired eight additional employees, and (c) he performed unit work for which he was qualified Golden Fan Inn, 281 NLRB 226 (1986) The only troublesome question is Padin's alleged state- ment to Yergel. That statement that Padin wanted the union matter concluded so that he could return to his old 29 Much was made of Padm's attire He typically wore a white shirt and suit to work Although some work performed by the technicians in- volved entering filthy areas, other work, such as working in offices, could be performed without getting one's clothing dirty I cannot find that Padin was a supervisor simply because he was "overdressed" for the job CORADIAN CORP position, carries with it the inference that he was in Plainview temporarily, to vote in the election, and once his duty was completed he would return to New Jersey as a supervisor However, Padin's version is the one I accept, that he told Yergel that he hoped the union situa- tion would be over so he could continue his work as a technician without concern for the politics of the elec- tion and challenge to his ballot. In view of the other evi- dence that Respondent was not responsible for causing his transfer to Plainview, I can reach no other conclu- sion I accordingly find that the challenge to the ballot of Israel Padin should be overruled, and that his ballot be opened and counted C Conclusion as to the Challenged Ballots Inasmuch as I have overruled the challenges to the ballots of Peter McDonald, Joseph Romagnola, and Israel Padin, I shall recommend that the representation proceeding be remanded to the Regional Director for the purpose of (a) opening and counting these three bal- lots and (b) preparing a revised tally, including the counts of these three ballots, on the basis of which he shall then issue the appropriate certification CONCLUSIONS OF LAW 1 Respondent Coradian Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Peter McDonald and Joseph Ro- magnola because of their membership in and activities on behalf of Local 3, Respondent violated Section 8(a)(3) and (1) of the Act 4 By interrogating its employees concerning how they or other employees would vote in the election, by threat- ening its employees with discharge if they become mem- bers of Local 3, by threatening its employees with plant closure if Local 3 won the election or if Respondent became a Local 3 shop, and by soliciting the grievance of employees and promising to resolve them in order to induce them not to join Local 3, Respondent violated Section 8(a)(1) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Peter McDonald and Joseph Romagnola, I recommend that Respondent be ordered to reinstate them and make them whole for any loss of earnings they may have suf- fered as a result of the discrimination against them. The amount of backpay shall be computed in the manner set 1221 forth in Isis Plumbing Co, 138 NLRB 716 (1962), as modified in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, Coradian Corporation, Plainview, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee for joining or supporting Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, or any other union (b) Interrogating its employees concerning how they or other employees would vote in the election (c) Threatening its employees with discharge or plant closure if they join or assist Local 3 or any other union, or if they vote for Local 3 in the election. (d) Soliciting the grievances of employees and promis- ing to resolve them, in order to induce them not to join Local 3 (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Peter McDonald and Joseph Romagnola im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, 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 result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Plainview, New York facility copies of the attached notice marked "Appendix."25 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- 24 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 25 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply therewith. For the pur- pose of determining or securing compliance with this Order, the Board, or any of its duly authorized repre- sentatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of ap- peals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. IT IS FURTHER ORDERED that Case 29-RC-6555 be severed from the complaint cases and that it be remand- ed to the Regional Director for Region 29, and that the challenges to the ballots of Peter McDonald, Joseph Ro- magnola, and Israel Padin, which were cast in a repre- sentation election conducted in said case on 29 May 1986 be, overruled and that the Regional Director be directed to open and count the challenged ballots of Peter McDonald, Joseph Romagnola, and Israel Padin, and to prepare and serve on the parties a revised tally of ballots and an appropriate certification. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning how they or other employees would vote in an election. WE WILL NOT threaten our employees with discharge or plant closure if they join or assist Local 3 or any other union, or if they vote for Local 3 in an election. WE WILL NOT solicit the grievances of employees and promise to resolve them, in order to induce them not to join Local 3. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Peter McDonald and Joseph Romag- nola immediate 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 ben- efits suffered as a result of the discrimination against them. WE WILL remove from our files any reference to the unlawful discharges of Peter McDonald and Joseph Ro- magnola and notify them in writing that this has been done and that the discharges will not be used against them in any way. CORADIAN CORPORATION