Baumgardner Co.

BAUMGARDNER Co. 977 Elmer R. Baumgardner t/a Baumgardner Company and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 32, AFL-CI0.1 Cases 6-CA-19251, 6-CA-19564, 2 and 6-RC- 9687 May 12, 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 2, 1987, Administrative Law Judge Harold Bernard Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed an op- position brief. 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, 3 and conclusions4 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 We correct the judge's inadvertent omission of this case number. 3 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.24 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge's finding that Respondent engaged in objection- able conduct, we rely only on the conduct the judge found objectionable that occurred during the critical period. We adopt the judge's finding that owner Baumgardner's conversation with employee Heiman created the impression of surveillance in violation of the Act We find that the Respondent's reliance on Schrementi Bros., Inc., 179 NLRB 853 (1969), is not persuasive because here there is no evidence that employee Heiman was an open supporter of the Union. Absent such evidence, it is reasona- ble to infer that Heiman might assume from Baumgardner's statement that his union sympathies or activities, whatever they were, were the sub- ject of investigation. We find it unnecessary to pass on the additional al- leged incidents of the creation of an unlawful impression of surveillance the judge discusses, as findings of such additional violations would be cu- mulative and would affect the Order. 4 In adopting the judge's conclusion that the Respondent discharged employee Welsh in violation of Sec. 8(a)(3) and (1), we find that the cir- cumstances here, including the Respondent's general knowledge of union activity among its employees, the general timing of the discharge, the Re- spondent's 8(a)(1) conduct, and the Respondent's pretextual reason for the discharge, support an inference of knowledge of Welsh's union activi- ties See, e.g., Abbey's Transportation Service, 284 NLRB 696 (1987) See also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). We, therefore, find it unnecessary to pass on the judge's reliance on the "small plant" doctrine. judge and orders that the Respondent, Elmer R. Baumgardner t/a Baumgardner Company, Fayette- ville, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED in Case 6-RC-9687 that the election held on May 29, 1986, is set aside and the case is remanded to the Regional Director for Region 6, who shall conduct a new election in the appropriate unit at such time as he deems the cir- cumstances permit the free choice of a bargaining representative. [Direction of Second Election omitted from pub- lication.] Joseph M McDermott, Esq. and Ronald J. Anchykovitch Esq., for the General Counsel. Jan G. Sukove, Esq., of Chambersburg, Pennsylvania for Respondent. Jeffrey Neil Young, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD BERNARD, JR , Administrative Law Judge. I heard these consolidated cases in April and May 1987 at Gettysburgh and then Chambersburg, Pennsylvania, pur- suant to complaint (and later order consolidating there- with hearing on objections to election in Case 6-RC- 9687) alleging Respondent engaged in unlawful interro- gation of employees concerning union activities, threat- ened employees with more onerous working conditions, bankruptcy, and plant closing if employees chose union representation, created the impression it was engaged in surveillance of employees' union activities, and dis- charged employee Melvin Welsh Jr because of his sup- port for union representation, thereby violating Section 8(a)(1) and (3) of the Act and, further interfering with the conduct of the representation election held 29 May 1986 requiring that the results thereof' be set aside and a new election conducted. Based on the entire record in this case, including the demeanor of witnesses and co- gently written briefs filed by the parties, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent, a sole proprietorship with facilities locat- ed in Fayetteville, Pennsylvania, cleans used motor oil and sells it. Annual sales directly to points outside Penn- sylvania exceed $50,000, and I find as admitted, that Re- spondent is an employer engaged in commerce within the meaning Of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. As further admitted, and as the record facts herein demonstrate, I find that owner Elmer Ten votes cast for Petitioner, 14 against. (G,C. Exh. 14.) 288 NLRB No. 109 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baumgardner, Plant Supervisor Junior Clugston, and General Plant Process Foreman Ken Shearer are super- visors and agents of Respondent within the meaning of Section 2(11) and (13) of the Act. H. THE UNFAIR LABOR PRACTICES A. Background Respondent's facilities consist of three main buildings housing its office, 2 shops, where 14 mechanics work, and a screen shack—control room where the used oil is cooked, screened, and purified and where 12 employees work. In addition to Elmer Baumgardner, Clugston, and Shearer, the operations are further supervised by Baum- gardner's son Dick (Dirk), daughter Lynn, and Anna Gamby, operations officer, all the foregoing combining with a reasonably drawn impression from the record as a whole to indicate a tightly knit, closely run, compactly sized enterprise. B. Employee Union Activities Screen shack employees Paul Gabert, Fred Wade, Charles Gordon Jr., and Richard Smelser discussed the advantages of union representation late March 1986 in the drivers' room leading to Gabert contacting Teamster Local 32 President Philip Crawford on 7 April to discuss plant working conditions. Wade and Gabert met with Crawford on 9 April, discussed matters with him regard- ing employment concerns, and took union authorization cards back to the plant. The two circulated in the plant when not working, on break time, and when just getting off work, and secured 13-signed cards from coempIoyees. By 12 April they brought back 12 signed cards to Craw- ford's office, and by 16 April, Crawford was given a total of 15 cards. C. Union Request for Recognition On 16 April Crawford wrote Baumgardner informing him a majority of employees had signed union authoriza- tion cards and requesting he sit down to negotiate a con- tract on behalf of the plant operation employees. (G.C. Exh 2(a)) He never received a response. D. Respondent's Interrogation and Threats of Plant Closing Through Supervisor Ken Shearer Paul Gabert testified that on 17 Apnl the delivery date to Respondent of Crawford's letter seeking recognition and negotiations—at around 1 p.m. Plant Processing Foreman Ken Shearer called him at home and asked him if anyone had talked to him about the Union, approached or confronted him about it. Shearer told Gabert that Elmer Baumgardner was walking through the plant with the paper (letter) he had received from the Union stating that Baumgardner would never let the Union in, that he would close the plant down before he would ever let the Union come in, or recognize the Union. Gabert testified that Shearer asked him how he felt about the Union and when Gabert told him he was strongly for it Shearer cursed, "I'll be a sonofbitch" and hung up. He further testified that Shearer entered the screen shack control room that afternoon and told Gabert in the presence of another employee, Lee Dile, that Baumgardner got the letter, was very upset, and was threatening to close the plant. Employee Dile recalls Shearer questioning him about whether anyone from the Union had approached him about a week after he signed a card but places a statement by Ken Shearer that Shearer felt sure Baum- gardner would close the plant if the Union was voted in at a later date, right after an employee meeting in Baum- gardner's office a week before the election held on 29 May. Gabert recalled further that Shearer, about 2 weeks later, after the 17 April incidents, either the end of April or early May entered the screen shack and told Gabert and coemployee Sam Phillips, after first viewing union literature posted on the screen shack walls and lying around, irritatedly that "we. . . all of us could be very possibly out of a job, he said, because Elmer Baum- gardner will close the plant before. . . Mr. B. will close down the plant before he'd ever let the union come in." Phillips corroborated the account of the threat by Shear- er but described it with more earthy terminology. Em- ployee Kyle Ditzler testified that in the latter part of April in the screen shack, while employee Phil Horn was present, Shearer, seemingly in response to union litera- ture and posters in the screen shack said he did not want the Union in and if the Union did get in that the plant might close—referring to Baumgardner saying this—and he would also have to be a little harder on us. Ditzler opined that Shearer seemed to be trying to scare employ- ees away from the Union. Shearer's testimony raised very bleak prospects for its acceptance. He first testified that Elmer Baumgardner gave no instructions to supervisors to talk to employees about the union letter on 17 April specifically and une- quivocably denying that anything was said regarding their union activities or interest therein. However, on cross-examination he admitted that Elmer Baumgardner on 17 April, immediately after a meeting in his office, specifically instructed Plant Foreman Junior Clugston to go around the plant to see if anybody knew about the union letter, and that Clugston made a copy of the letter and did so around 3:30 or 4 p.m. Baumgardner himself further cast doubt on Sh'arer's testimony when Baum- gardner admitted he asked employee Jim Daniels Sr. on the very same occasion Shearer testified about, whether they, Supervisors Clugston and Shearer, or employee Jim Daniels Sr. knew anything about the union activity, referring to the letter. It is Respondent's own position that Supervisors Clugston and Shearer were recalled to the office from the plant and allegedly instructed not to continue efforts to question employees about the Union that day. Shearer even admitted he "probably" went back to the control shack (screen room) and questioned employee Eric Pouge in Shearer's office (described by Shearer as being "open" to plant operators) whether he had received the letter regarding the Union, and ques- tioning him whether he had heard anything about the Union. He further admits specifically warning employee Ditzler about how the Union coming in would result in harder conditions but explained he was referring to more "paper work" in the event of an oil spill and there being BAUMGARDNER CO. 979 more channels to go through, recalling he said to em- ployees, ". . if the Union gets in, it'd be harder on me because of increased paperwork, and it would be just harder on evelybody, it would be a different working situ- ation." Shearer was unable to recall whether he had questioned employee Dile concerning the Union or threatened employee Dile about a plant closing but testi- fied he had numerous talks with Supervisor Junior Clug- ston—about 10 in the first 2 weeks after Respondent learned about the union organizational drive as follows: there was a lot of discussions with [sic] the compa- ny's that have unions now that, you know, that are plants being shut down. He could not recall, he testified, if he had any general conversations with employee Paul Gabert about the Union. He admitted, further, that he töld employee Ditzler he did not want the Union to come in. Further, Shearer was not asked to deny Ditzler's account that Shearer told employees in the screen shack in late April that if the Union got in the plant might close—referring to Baumgardner's saying this Instead Respondent coun- sel asked Shearer only: "Did you ever tell Kyle Ditzler that if the union got in, the plant would close?" and Shearer said no, leaving Ditzler's account of how the closing was raised by Respondent intact. Given the foregoing admissions, flat contradictions, in- ternal inconsistencies, and a testimonial deportment on the stand, which evinced an overly careful hesitancy and leaning towards protecting partisan interest, I do not credit Shearer's account over that of employees when they differ, and find the latter in said respect to be reli- able. E. Threats and Interrogation by Supervisor Junior Clugston Several employees testified that Plant Supervisor Junior Clugston interrogated them about their union sen- timents and conduct from 17 April to the election and communicated threats by Baumgardner to close the plant if the Union came in. Clugston admitted questioning em- ployees but denied making reference to a plant closing. Employee Timothy Heiman testified that Plant Super- visor Clugston, shortly after lunch around 21 April asked him and employee John Emory in the paint shop if they knew anything about the union letter—which Clugstou had with him The two said no. A few days later while Heiman was in the mechanics shop at the bolt bin he heard Clugston tell employee Bob Runk that Clugston had heard : aumgardner saying that if the Union comes down here, we'll close the plant down. Heiman was 5 feet away. Employee Jeffrey Parson testified that 1 month after he signed a union card Clugston came to him in the plant garage with a letter from the Union re- garding a majority of employees having signed union cards and after Parson read the letter asked him if he knew anything about that stating, ". . . if Elmer [Baum- gardner] wanted he could close the doors before he'd let the Union in." Employee Charles Gordon recalled that 1 week after he signed a union card 2 Clugston came out of the parts room and asked him if he knew anything about the Union, what was going on about it and asked him if he knew who was behind it Gordon testified that out of fear for his job being lost he did not tell Clugston what he knew. Employee Richard Smelser testified Clugston also questioned him—the day he believes Baumgardner received the letter—at the parts room between 4 and 4:15 p.m.---about the letter. Clugston questioned if Smelser knew anything about it and the employee re- plied he had been approached by a fellow employee. Clugston wanted to know who that employee was and when Smelser said he would rather not say, Clugston persisted in his questioning asking him what shift the person worked on, whether it was first or second shift. Smelser refused to reply. Two days before the 29 May election, when Smelser returned from a union meeting to his work at 6 p.m. Clugston approached him and asked what promises the Union had made at the meeting. Smelser replied none, and, out of concern for risking a business relationship beneficial to him told Clugston he was not in favor of the Union and did not think it would win the election. Linwood Verdier, welder mechanic, recalls being questioned by Clugston a month to 6 weeks before the election, right after a safety meeting, whether he knew anything about a letter from the Union, as Verdier was "coming in" the plant. Verdier replied that he had signed a card, whereupon Clugston smiled and nothing further was said. The persistent, widespread, and detailed questioning of employees described by them as continuing even under protest against revealing the identity of a fellow employ- ee engaged in soliciting card signers is inconsistent with Clugston's testimony characterzing those efforts as re- sulting merely from surprise at the union letter and an effort, pictured by Respondent witnesses to merely ascer- tain the bona fides of the union letter, whether it was a "hoax" or not. Further illustrative of an inconsistency betraying the falsity of the professed reason for Clug- ston's interrogation of employees is his own admission in testimony that he reported back to Baumgardner that, one guy admitted to signing a union card. I consider his testimony that he did not feel one way or the other about employees being organized by the Union, was un- concerned about it, .and was not really aware of how Baumgardner felt about the Union until only 1 week before the election, and did not "really" know if the owner was concerned, though probably so, to be unwor- thy of belief. Finding this the case, I am unable to credit his denials of communicating any threats of plant clo- sures or of certain questioning of employees, which still left some employee accounts not specifically addressed by his testimony to be intact in any event. In short, noting in addition, his admission that Shearer had told employees matters would be more strict with a union in, because It would not be a family affair anymore Shear- 2 7 April which means the described event occurred around 14 April some 2 days prior to Gordon's alleged hospital admittance on 16 April so that such admittance is not inconsistent with an earlier encounter with Clugston. 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er's testimony that he and Clugston discussed the union situation and plant closings- numerous (10) times before the election, combine to deflate into untruths his pro- fessed lack of concern over union representation for em- ployees. The employee accounts, though with some faulty recall regarding a date or two, are in the main en- tirely credible and convincing. F. Further Interrogation and Threats by Owner Baumgardner On the Tuesday before the election, in the screen shack at 6 p.m., while fellow employee Jeff Ewing was present, employee Paul Gabert testified that Elmer Baumgardner approached Gabert and told him he heard or was informed that Gabert felt very strongly for the Union and when the latter agreed this was true, Baum- gardner questioned him why he was so high on the Union, why he wanted a union so bad, whereupon Gabert told him the reasons. Gabert testified that Baum- gardner thereupon said "you know, if the Union would ever get in here you would be the first to go," explaining when asked by Gabert why, because of an earlier drink- ing while driving offense. Gabert further testified that during a meeting of employees in Baumgardner's office a week before the election—there being only one such meeting indicated by the record—the owner told em- ployees he would close the plant down before he ever gave in to a closed shop. Employee Timothy Helman testified that several days days after 21 April (a few days after he had overheard the Clugston threat to employee Bob Runk that Baum- gardner said he would close the plant down if the Union came in) Baumgarnder spoke to Heiman in the paint shop—while employee John Emory was present,-stating, "Tim I hear you're for the Union," and that he, Baum- gardner would do his best to keep the Union out, and that "if you're not happy working here, why don't you go somewhere else?" Heiman said he had signed a card to bring the Union up for a vote and had open ears for both sides. Employee David Dile, attended the employee meeting referred to in Gabert's testimony, and corroborates the latter's statement about a threat by Baumgardner to close the plant recalling the owner saying the Union would ask for a closed shop but he would close the plant before he would have that. Questioned further Dile stated that Baumgardner was not tying in a plant shut-down "direct- ly" to a closed shop demand, that the witness recalled Baumgardner saying he would close the plant if employ- ees voted for the Union. The day before the election, or on election day, em- ployee Charles Gordon testified he received a message at home from his mother stating Baumgardner had called and he was to go in to the plant an hour before the elec- tion. Gordon was on leave of absence with an eye injury. He went in, spoke with Dick Dawe, service manager, asking him to ring Baumgardner about going to his ap- pointment. Gordon then met with the owner alone in the latter's office for a 10- to 15-minute talk by Baum- gardner, which seemed longer than that to the employee. The owner asked Gordon if the employee knew what the Union was all about, both sides of the story, that the owner knew other companies that had unions. Gordon testified that Baumgardner said the company, referring to his company, might go bankrupt if the Union got in, without explaining how or why. Melvin Welsh, welder, testified that on the day of the election Baumgardner asked him in the presence of coemployees Crouse and Fry what we thought of the election—no further details on the occurrence were elic- ited during Welsh's testimony. Regarding these employees' testimony, beginning with Gordon's, I note that Service Manager Dawe, who testi- fied he was not always present in the parts room was un- certain and ambivalent concerning Gordon's presence in the parts room the day Gordon testified he met with Baumgardner, first testifying (1) he could not recall a conversation with Gordon that day then, in the blink of an eye and under prodding, that (2) Gordon never re- quested any call by him to Baumgardner, then (3) that Gordon was not in his office that time of day because he was not scheduled until 4:30, but, that yes, (4) it was true Gordon was on leave for an injury to his eye so there- fore the scheduling reference was really irrelevant, but, yes, (5) Gordon was there after the election to get change for the pop machine; but, no, (6) he could not swear to it and fmally, (7) he really did not know if Gordon was there after the election. If Dawe'sjestimony was intended to shore up Baumgardner's denial of any meeting with Gordon, it failed to do so for want of con- sistency and reliability. Partly for reasons having to do with Respondent owner Baumgardner's own conduct de- scribed above, as well as his responsibility for the con- duct of his agents and his testimony regarding what he did and did not do regarding the termination of employ- ee Melvin Welsh Jr., discussed below, I am not inclined to credit his denials concerning any of the employee re- ports of their interrogation and exposure to his threats of plant closings detailed above. John Edwin Ocker III, an employee put on the stand by Respondent, testified he had heard rumors around the plant of a plant closing. Under leading by Respondent counsel he said Baumgardner, at the 22 May employee meeting said, "It would not close." Under cross he flatly asserted there was no discussion of strikes, then stated he did not remember after being shown the question-and- answer sheet (G.C. Exh. 3) admittedly read from by Baumgardner, and further could not remember how many times Baumgardner spoke about plant closings, though the latter stated during his testimony that he mentioned the subject three times, at the start, in the middle, and at the end. It is revealing in a corroborating sense that the five-page long sheet read by Baumgardner contains, inter alia, reference to the following: And strikes or other actions that can damage the employer could eventually result in a loss of jobs or closing the facility altogether. [Emphasis added.] [G.C. Exh. 3.] The only other employee out of 20 to 25 in attendance offered to support Respondent's position regarding the meeting wherein Baumgardner denies he threatened to close the plant was J. Roger Smith, who was fed highly P BAUMGARDNER CO. 981 leading questions and whose testimony really constituted therefore, the testimony of Respondent counsel rather than his own. Confronted with nonleading questions on cross-examination the witness couldn't even remember, he said, whether the General Counsel's Exhibit 3 was the paper Baumgardner read from, or even whether or not the paper Baumgardner read from was more than one page long. (It was five pages long.) Faced with the cred- ible testimony of employees who testified in far greater detail as to what Baumgardner said at the meeting I credit them over Respondent's witnesses whose perform- ance was flawed in the respects noted above, and addi- tionally regarding Baumgardner, as further detailed below. Baumgardner was stonily impassive and impenetrable on the stand, in sharp contrast to the kind of person he tried to portray in his testimony—a man who would assure Paul Gabert "over and over"—he said, that his position with the Company at the election would not be jeopardized by his serving as a union observer. I saw no stich person in his icy demeanor and tightly controlled, carefully rehearsed performance in court, nor in his han- dling of the Welsh termination, which further reflected adversely on his credibility as discussed below. I cannot believe he repeatedly assured employees at the 22 May meeting against a plant closing under any circumstances, as Respondent contends through an unacceptably forget- ful employee witness obviously prepped on only this one question and who could not even remember if the Gen- eral Counsel's Exhibit 3 was longer than one page, and by a second employee led through examination because the text used by Baumgardner--from which he admitted- ly departed during question and answer interludes (during which he admittedly stated he would never accede to a union or closed shop)—the text itself read by Baumgardner outlines specifically circumstances under which the plant could close—as described above. The self-contradiction admittedly so established in Respond- ent's position invites disbelief regarding any such assur- ances being communicated to employees by the Compa- ny's owner, that is, Respondent cannot pretend on the one hand to say that employees were assured at the meeting by Baumgardner that the plant would not be closed under any circumstances while expressly admit- ting on the other hand that indeed employees were in- formed of union-connected circumstance—strikes called by the Union—under which the plant could be closed, without incurring disbelief towards their witnesses' testi- mony. I find no reason to disbelieve the employee accounts mainly corroboratory that they continued to be confront- ed by the spectre of a union victory connected plant closing—an idea planted earlier by Respondent Supervi- sors Shearer and Clugston—at the 22 May meeting during Baumgardner's remarks. G. Analysis I find that throughout the entire period 17 April 1986 through the election day 29 May 1986, Respondent offi- cials made threats to employees, on the dates noted above, that the plant would close if the Union came in, if the employees chose union representation. Such threats interfered with employees' rights under Section 7 of the Act in violation of Section 8(a)(1) in the Act. Williamson Memorial Hospital, 284 NLRB 37 (1987); Continental Can Co., 282 NLRB 1363 (1987); Minnesota Boxed Meat, 282 NLRB 1208 (1987); and SDC Investment, 284 NLRB 131 (1987). I further find that Respondent's pervasive, detailed questioning of employees on each and every occasion de- scribed above, notwithstanding that the situs for the oc- currences was sometimes the workplaces in the plant where employees frequented regularly or there may have been in one or two instances a "normal" or "friendly" element involved, took place in an atmosphere overshad- owed by the coercive threats of a plant closure made by Respondent officials directly in many instances to the employees at times when such employees had not yet openly declared union support as described above, or confronting them as reports circulated around the small- size plant force from Respondent officials throughout the entire period 17 April to election day 29 May, the day Respondent unlawfully further threatened employee Gordon with possible company bankruptcy if the Union got in. See Tomco Carburetor Co., 275 NLRB 1, 4 (1985). In short, the plant was rife with reports of a plant clo- sure, documented above, so that the questioning of em- ployees concerning who was behind the Union, what their identity was, what shift they were on, what did they feel about the Union, what did the Union promise them and the like, without any assurances against reprisal or any showing of a valid purpose was, in my view, cou- pled inextricably with the unlawful threats described above—including the threat, hereby, also found unlawful of things being harder for employees if the Union came in. I conclude therefore that said questioning by Re- spondent constituted unlawfully coercive interrogation of employees concerning their protected union activities and that Respondent thereby violated Section 8(a)(1) of the Act. Establishment Industries, 284 NLRB 121 (1987); Minnesota Boxed Meat, supra (questioning coupled with threatened plant closing); Continental Can Co. (threat of plant closure or more onerous working conditions); Wil- liamson Memorial Hospital, supra; and Daniel's Pallet Service, 283 NLRB 34 (1987). Additionally, it is concluded that Respondent engaged in conduct creating the impression that it was keeping the union activities of its employees under surveillance when its officials approached employees with the open- ing statements I hear or have been informed you are for the Union. (Baumgardner to employee Gabert on Tues- day before election.)3 Questioning without any prelimi- nary, and where subject was unbroached and questioning directed towards an employee who was not a known active or open union adherent after a union meeting con- cerning what promises the Union had made at the union meeting. (Plant Foreman Clugston of employee Smelser 2 days before the election.) Respondent's owner further contributed to creating this unlawful impression, ap- proaching employee Tim Heiman at the paint shop sev- 3 It is axiomatic that Baumgardner's threat that Gabert would be the first to go if a union got m violated Sec. 8(a)(1) of the Act. 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD eral days after 21 April and declaring, while another em- ployee, John Emory, was present that "Tim I hear you're for the Union," inviting him to leave since he therefore was not happy, the implication arising there- from, being employed at Respondent's plant. Given the established context of widespread interrogation into em- ployees' union activities in order for Respondent to ac- quire knowledge concerning those activities, it is plainly evident why Respondent's further conduct telling em- ployees it knew they were for the Union and asking an employee what promises the Union had made after a union meeting that same day, would create the impres- sion that Respondent was keeping a close watch on them in such regard, and I fmd such conduct created the im- pression of unlawful surveillance. United Merchants & Manufacturers, 284 NLRB 135 (1987), and, especially, Kidde Inc., 284 NLRB 78 (1987), and California Dental Care, 272 NLRB 1153 (1984). H. The Termination of Melvin L. Welsh Jr. Welder mechanic Melvin Welsh, considered by super- vision to be a good welder and a good worker, if slow at times, worked the first shift with three other employees until, along with those four, Respondent hired Arthur Frey and Kenny Crouse a month or so before the elec- tion to assist on a temporary basis in hooking up tanks. In the absence of Chief Engineer Percy Glynn, Junior Clugston supervised Welsh. On 9 April Paul Gabert spoke to Welsh about getting a Union in, and gave him a union authorization card, which Welsh signed later and returned to Gabert the next day in the screen shack. It is recalled that it was Paul Gabert's and others locus of union organizing ef- forts and the place supervision first went to question em- ployees about union activities. Welsh spoke to several plant employees, Howard Fox, "Butch," Kenny Crouse, Arthur Frey, Anthony Baker, and Tim Helman approv- ingly about the Union engaging in open discussions daily with Frey and Crouse while working throughout the day up on the hill where trailers were parked about what the Union could do for employees if it got in by way of im- proved wages, and benefits. Welsh also attended a union hosted meeting on 28 May at a restaurant with 8 to 15 other employees before the election held on 29 May. In mid-June, after getting only two 10-cent-an-hour wage increases the previous spring and fall, Welsh asked Glynn, chief engineer, to ask Baumgardner about a pay increase. Glynn did so and told Welsh on 25 June on the latter's inquiry concerning the status of his request that Baumgardner said no, as it would be untimely under the Company's incentive program. Welsh admits that when he asked Glynn to make the request earlier he told 'him he was out looking for a better paying job. Welsh testi- fies that Glynn specifically asked him whether the place he had sent an application [to] had called Walsh and that he replied no, but ([ the pay was more he would probably go. Chief Engineer Glynn testified he spoke to Welsh on Wednesday, 25 June, and Welsh said if he did not get the raise he'd be leaving the following Monday. Glynn on further examination described Welsh as having said he would be planning on leaving on Monday. Glynn also said Welsh had stated he had a job offer, and that Glynn informed Baumgardner about it the same day—explain- ing he had to run back and forth from the shop to the office concerning the matter. It is instructive to note that notwithstanding Glynn's account, at variance with Welsh's testimony of a purely conditional intention to, at best, plan to leave on Monday if the pay were better elsewhere, is an assertion of an expressed intent to leave Monday or a plan to leave then, yet Glynn himself admits he asked Welsh the next day, Thursday, whether he had heard from his employer and if he was leaving for sure which flies in the face of Respondent's position that Welsh announced an unequivocal intent to leave on Monday during the Wednesday discussion, else why would Glynn be checking out the unequivocably stated intention he allegedly reported to Baumgardner? The po- sition of Repsondent on this key element is further weak- ened, in my view, by the impressive degree to which Glynn was unable to describe any response at all by Baumgardner to Glynn's report that a good employee was leaving a then somewhat important position, a lapse in an otherwise steady stream of certainties given in re- sponse to questions concerning what he allegedly report- ed to Baumgardner. Furthermore it seems unlikely Welsh would be seeking what could only be anticipated as being another 10-cent raise at the same time he had accepted an offer at another plant. In any event, the key to ascertaining further what hap- pened later to Welsh is further disclosed by subsequent events. Baumgardner, ever willing to walk through the plant and converse with employees in the small-size force inquired no further into events and wrote up a letter Friday afternoon, which Clugston gave to Welsh, stating, "It is our understanding that you have accepted employment elsewhere and that today is your last day with us. Thank you for your services and good luck in the future." (G.C. Exh 4.) Baumgardner said he did this as a courtesy, but admitted that when he wrote the letter and gave it to Clugston, Welsh was still working, on the plant premises, and there is no indication he made any effort to either confirm the Respondent's alleged "under- standing" with Welsh directly or to communicate before- hand through Glynn, or himself, to Welsh how the Com- pany was construing matters. It is simply out of charac- ter with how the record indicates this closely knit, family owned and operated business concern would nor- mally handle such a matter, by a remote control, like arm's length dealing in haste rather than simply finding out the facts by simply asking Welsh whether he was quitting on Monday or, at least whether he understood his discussions with Glynn were being viewed in such light. It is reasonable to infer that as an experienced and intelligent businessman, knowledgeable in such matters, Baumgardner knew this was a matter of no small impor- tance and significance for Welsh's livelihood. For his part Welsh promptly on reading the letter told Clugston that he had not quit but was told he would have to talk to Glynn or Baumgardner. He did not call the latter because he knew he had left on vacation for 2 weeks. Glynn also was not there and when Welsh called Monday he learned Glynn was away on a trip. The next „ BAUMGARDNER CO. 983 day he called Glynn again but Glynn told him in reply to Welsh's question why Welsh had gotten the letter, de- nying to Glynn that he had ever quit, Glynn told him he did not know, and referred him to Baumgardner. Welsh tried to contact Baumgardner numerous times by phone on the latter's return from vacation without success, calling the company, identifying himself to the receptionist and asking to speak with Baumgardner, and being told he was busy but would get back to him. He made four or five calls from his Mother's house to Baumgardner's office, four or five from his own home, and three from the Union's office as to which he recalls on the first effort a female receptionist said wait a minute and hung up. When Welsh called back the receptionist said Baumgardner was on another line and Welsh asked to hold, to wait on the line until after several minutes she got on the line and said Baumgardner would call Welsh back. Union President Crawford recalls that during the time described he dialed the Baumgardner number for Welsh, once advising Welsh to ask to speak to Baumgardner, his son, or any supervisor, but that all were busy according to Welsh, who asked the person taking the call to have it returned, leaving the phone number at the local union office and at his home. Welsh never received an answer to his numerous efforts to contact Baumgardner and get his job back, and I find it highly revealing of Respond- ent's lack of bona fides in separating Welsh that Baum- gardner offered the incredible testimony that he never received any message concerning Welsh trying to talk to him on the phone because the evidence is in the prepon- derance that he did, and the only reason for not accept- ing a call in a professedly "courteous" relationship it will be recalled was given as the reason for the separation letter, would be that the accepting of such a phone call would provide Welsh the opportunity to disabuse Re- spondent's "understanding" that Welsh had accepted em- ployment elsewhere and intended "today" as his "last day with" Respondent, and clearly disavow any intent to quit. Respondent, in my view, revealed its motive to unlaw- fully rid itself of a prounion employee by failing to estab- lish it had any proper reason for its haste and secrecy in deciding, Welsh had quit. Surely, if Welsh had quit, there would be no harm in waiting until Monday before issu- ing the letter as another employee simply filled in for Welsh without incident as it happened, or as noted in asking him outright if he had quit given the seriousness of the Respondent's proposed actions towards Welsh. Furthermore, if he reported to work on Monday there would have been no harm whatever to Respondent or problem for the about to vacation Baumgardner either as Glynn handled assignments when Baumgardner left on vacation regarding the project Welsh had been working on. Confirming even further Baumgardner's animosity to- wards Welsh because of his prounion support, the only reason in this record to explain this conduct towards Welsh, a good mechanic, a good worker, rejecting his calls callously, is Baumgardner's testimony that he would not have responded to Welsh's calls even if he had been informed of the numerous messages trying to reach him from Welsh. This evidences even more a strong animosi- ty. Although Baumgardner stated as his reason for not doing so that the matter was in "litigation," he offered no basis whatsoever for any assumption that Welsh's calls would in any way if answered by Baumgardner, jeopardize or prejudice the alleged "litigation." Putting it another way, even if Respondent assumed Welsh was calling about possibly getting his job back, or to explain he had not quit there is no reason why under nonsinister circumstances, Respondent would not simply take the call—perhaps even reconsider Welsh's status. It can be reasonably inferred from this highly damaging admission that Baumgardner either had something to hide or pro- tect from exposure so that he dared not risk even grant- ing Welsh the courtesy of returning his call, and what that would be on this record, I believe was the risk that Respondent's case for terminating Welsh as a quit em- ployee would possibly be weakened during any commu- nications with him, as the truth might come out. Given Welsh's open union activities in the compactly, sized operation warranting the inference that Respondent was aware and had knowledge thereof, Respondent's ad- mitted and established antiunion animus, and the total collapse, in my view, of its defense for snatching the chance to call Welsh a quit as proven both by the cred- ited testimony of Welsh and the conduct of Baum- gardner throughout in hiding from him, I conclude Re- spondent terminated Welsh because of his union activi- ties in violation of Section 8(a)(1) and (3) of the Act. Nissen Foods (USA) Co., 272 NLRB 371, 378 (1984); Mister Fox Tire Co., 271 NLRB 960, 968 (1984); and, Class Watch Strap Co., 267 NLRB 276, 281 (1973). In reaching this conclusion I have applied the test set forth in the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1981), and found that the General Counsel has established a prima facie case of dis- criminatory discharge by a preponderance in the evi- dence and reasonably drawn , inferences therefrom. Since the Respondent's proffered reason for the separation of Welsh from employment is herein found to be a false reason, because I find Welsh had never quit his employ- ment on the date or dates indicated, but rather Respond- ent forced the facts into such a construction, its asserted reasons did not exist or were not relied on. Accordingly the inference of Respondent's wrongful motive arising from the General Counsel's satisfaction of the Wright Line test is left intact and the discharge is found unlaw- ful. Bridgeway Oldsmobile, 281 NLRB 1246 fn. 2 (1986). CONCLUSIONS OF LAW 1. Respondent Elmer R. Baumgardner t/a Baum- gardner Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Elmer Baumgardner, sole proprietor of Respondent, Ken Shearer, and Junior Clugston are supervisors and agents of Respondent within the meaning of the Act. 4. Respondent Elmer R. Baumgardner t/a Baum- gardner Company violated Section 8(a)(1) of the Act by 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD threatening employees with plant closure, job loss, that the Company would go bankrupt, and more onerous working conditions if the Union came in or employees voted for the Union. 5. Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their ac- tivities and feelings concerning the Union. 6. Respondent violated Section 8(a)(1) of the Act by creating the impression it was engaged in surveillance of the union activities of its employees. 7. Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging employee Melvin L. Welsh Jr. from his employment with Respondent. 8. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take the following affirmative actions, including the posting of an appropriate notice, designed to effectuate the policies of the Act. I recommend Respondent be ordered to offer Melvin Welsh Jr. full reinstatement to his former position or its equivalent, if his former position no longer exists, and make him whole for any loss of earnings or benefits he may have sustained as a result of Respondent's unlawful conduct against him, and to remove any reference to his discharge from its files. Said loss of earnings and benefits shall be determined as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest as computed in Florida Steel Corp., 231 NLRB 651 (1972). See generally Isis Plumbing Co., 138 NLRB 716 (1962). 4 I do not rec- ommend a visitatorial clause, as requested by the General Counsel, in the absence of any showing of special cir- cumstances that would warrant the inclusion of one. See a L. Willis, Inc., 278 NLRB 203 fn. 1 (1986). The Representation Case Election Objections Respondent's unlawful conduct in violation of Section 7 rights of its employees permeated the entire preelection period, start to finish and it is therefore recommended that the close results thereof, indicative of such conduct's likely improper influence on employees' freedom of choice, be set aside and a new election be conducted at a time and date deemed appropriate by the Regional Di- rector for Region 6. Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1963). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.C. § 6621. 5 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. ORDER The Respondent, Elmer Baumgardner t/a Baum- gardner Company, Fayetteville, Pennsyvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with plant closure, job loss, that the Company would go bankrupt, and more onerous working conditions if the Union came in or employees voted for the Union. (b) Unlawfully interrogating employees regarding their union activities or feelings or creating the impression that Respondent is engaging in surveillance of employ- ees' union activities. (c) Unlawfully discharging any employee because of the employee's union activities. (d) 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 Melvin Welsh Jr. immediate reinstatement to his former position, or if not available, to a substantially equivalent position, without prejudice to his seniority, or other rights and privileges, and make him whole for any loss of earnings by reason of the discrimination against him in the manner described in the remedy section of this Decision. (b) Remove from its files, delete any reference to the unlawful termination of Melvin Welsh Jr., notifying him in writing that this has been done, and that the discharge will not be used against him in the future. (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 in its plant in Fayetteville, Pennsylvania, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 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" BAUMGARDNER CO. 985 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act give employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect concerted activities. WE WILL NOT threaten employees with plant closure, job loss, company bankruptcy or harder working condi- tions if the Union comes in or employees voted for the Union, International Brotherhood of Teamsters Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 32, or any other union. WE WILL NOT coercively interrogate any employees concerning union activity or create the impression that we are keeping employee union activity under surveil- lance. WE WILL NOT discourage membership in International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Local Union No. 32, or any other labor organization, by discharging or otherwise discriminating against any employee with respect to wages, hours, or other terms and conditions or tenure of employment. WE WILL NOT interfere with, coerce, or restrain our employees in the exercise of the rights set forth at the top of this notice. WE WILL offer Melvin Welsh Jr. immediate reinstate- ment to his former position and we shall make him whole for any loss of earnings he may have suffered by reason of our discrimination against him plus interest, as set forth in the decision of the administrative law judge. WE WILL notify Melvin Welsh Jr. that we have re- moved from our files all references to his discharge, noti- fying him specifically that this has been done and that this unlawful action will in no way be used against him in the future. ELMER R. BAumGARDNER T/A GARDNER COMPANY