Corry Contract, Inc.

396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Corry Contract, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 6-CA-191801 June 28, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On January 15, 1987, Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel filed exceptions, a supporting brief, and a motion to strike portions of the Re- spondent's answering brief. The Respondent filed an answering brief, cross-exceptions, a supporting brief, and a response to the General Counsel's motion to strike. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions as modified3 and to adopt the recom- mended Order as modified.4 i On July 2, 1987, the Board granted the Petitioner 's motion to sever Case 16-RC-9694 from the unfair labor practice case before us. In addi- tion to severing the representation case, the Board granted the Petition- er's request to withdraw its election objections, and to certify the election results 2 The parties have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. The judge stated that one-half of Respondent 's work force was re- leased because of a decline in business The record reflects that only one- third of the work force was laid off during the beginning of 1986 The judge also stated that a conversation between Supervisor McFate and employee Sellon occurred the day before the election . The record re- flects the conversation occurred Tuesday of the week preceding the election on June 10, 1986 We correct these errors These errors do not affect the ultimate determinations of the judge We deny the General Counsel's motion to strike portions of the Re- spondent's answering brief because, rather than objecting to the introduc- tion of new evidence, the General Counsel is objecting to purported ms- characterizations of record evidence a We find the judge improperly went beyond the scope of the com- plaint by finding 8(a)(1) conduct in President Bill Kafferlin 's statements that he would be hard to bargain with if the employees chose to be rep- resented by a union and that the Respondent would not be obligated to bargain with a union selected by the majority of the employees, and Su- pervisor McFate's comments to Sharon Sellon that the Respondent was receiving union busting information from a law firm The complaint did not allege these incidents, the General Counsel did not amend the com- plaint at the hearing, and the General Counsel did not either at the hear- ing or in her brief to the judge argue that these incidents were violations Hence, the allegations were not actually litigated. We agree with the General Counsel that Plant Manager Anthony's statement to employee Eberle that, if employees were listening to em- ployee Spoven, the latter was a troublemaker and had caused trouble for his previous employer by filing grievances, constitutes 8(a)(1) conduct The statement was made in the context of threats by the plant manager of loss of jobs , benefits, and overtime and would plainly tend to impinge on employees' Sec 7 rights See Garrison Valley Center, 246 NLRB 700, 708-709 ( 1979) The judge found that the General Counsel failed to es- AMENDED CONCLUSION OF LAW Substitute the following for Conclusion of Law 2. "2. The Company violated Section 8(a)(1) of the Act by threatening employees with loss of jobs and benefits in retaliation for their union activities, tell- ing employees that management would find a way to discharge prounion employees , and telling em- ployees not to listen to an employee because he was a troublemaker and caused trouble for his pre- vious employer by filing grievances." ORDER The National Labor Relations Board orders that the Respondent, Corry Contract, Inc., Corry, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees in retaliation for their protected union activity. (b) Threatening employees with loss of jobs and benefits in retaliation for their union activities, tell- ing employees that management would find a way to discharge prounion employees, and telling em- ployees not to listen to an employee because he was a troublemaker and caused trouble for his pre- vious employer by filing grievances. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Thomas Eberle immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent posi- tablish a prima facie case with regard to the layoffs of employees Rogers and Miller. While we adopt the judge's findings in this regard , we do not rely on the inferences the judge made relating to the employees named in the original charge Given the judge's finding that the Respondent threatened loss of em- ployment in retaliation for union activity and other 8(a)(l) conduct, we find it unnecessary to pass on the allegation that the Respondent violated Sec 8(a)(1) by employee Kraft's statement that employees could be fired for wearing a union button because finding the additional violation would essentially be cumulative and would not materially affect the Order 4 The judge recommended a broad remedial order Such an order is warranted only when a respondent is shown to have a proclivity to vio- late the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for employees ' fundamental statuto- ry rights Hickmott Foods, 242 NLRB 1357 (1979) Inasmuch as the Re- spondent's unlawful acts are not of such nature, we shall modify the rec- ommended Order and notice to provide the narrow cease-and-desist lan- guage We shall modify the recommended Order to require that the Respond- ent remove from its files any reference to Eberle's unlawful discharge and notify him, in writing , that it has done so and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him. See Sterling Sugars, 261 NLRB 472 (1982) 289 NLRB No. 50 CORRY CONTRACT tion, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make whole Thomas Eberle for any loss of pay or benefits he may have suffered by reason of the Respondent's discrimination against him with interest thereon to be computed in the manner pre- scribed in New Horizons for the Retarded.5 (c) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (d) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Corry, Penn- sylvania, copies of the attached notice marked "Appendix."e Copies of the notice, on forms pro- vided by the Regional Director for Region 6, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order that steps the Respondent has taken to comply. a In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987 Shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts accrued prior to January 1, 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). 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge any employee in retalia- tion for his union activities. 397 WE WILL NOT threaten employees with loss of jobs and benefits in retaliation for their union ac- tivities. WE WILL NOT tell employees that management would find a way to discharge prounion employ- ees. WE WILL NOT tell employees that other employ- ees are troublemakers and caused trouble for their previous employer by filing grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Thomas Eberle immediate and full reinstatement to his former position and, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL make whole Thomas Eberle for any loss of pay and other benefits he may have suffered as a result of the discrimination against him with interest. WE WILL notify Thomas Eberle that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. CORRY CONTRACT, INC. Ronald J. Andrykovitch, Esq., for the General Counsel. Richard Perhacs, Esq. (Elderkin, Martin, Lelly, Messina & Zamboldi), of Erie, Pennsylvania, for the Respondent. Mr. Wiley Welborn, Staff Representative, of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge . A hear- ing in this proceeding was held on 8 and 9 October 1986 at Corry, Pennsylvania, on a complaint issued by the General Counsel against Corry Contract, Inc. (the Re- spondent or the Company) and on objections to an elec- tion held by the Board. The complaint issued on 6 August 1986 on a charge filed by United Steelworkers of America, AFL-CIO-CLC (the Union) on 6 June 1986. The principal issue presented is whether the Respondent unlawfully discharged three employees in violation of Section 8(a)(3) of the Act. Briefs were filed after the close of the hearing by the General Counsel and the Re- spondent. On the entire record, and from my observation of the witnesses, I make the following' ' A motion by the General Counsel to correct certain inadvertent errors in the transcript, unopposed, is granted 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Corry Contract, Inc., a Pennsylvania corporation, is engaged in the production and nonretail sale of office furniture. During the 12-month period preceding issu- ance of the complaint in the course of its business it pur- chased and received at its Corry, Pennsylvania facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. I fmd that the Respondent is an em- ployer within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED I find that United Steelworkers of America, AFL- CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED Whether the Respondent, in its campaign to defeat the Union's June 1968 election, exceeded the bounds of per- missible Board law is a minor question in this overall case. In the event, that election will be set aside and a new one ordered. By the time this proceeding is decided by the Board it will be quite a full year since the last election, and therefore the Union would be entitled to another election in any event. The real question of substance is whether the Re- spondent illegally "discriminated" against three named employees-Sheila Rogers, Richard Miller, and Thomas Eberle. I used the word "discriminated" advisedly, be- cause the complaint says the Respondent violated Sec- tion 8(a)(3) of the Act as to these persons, and the statu- tory prohibition there literally reads not to "discrimi- nate." The complaint says the Company "discharged" these three employees on 8 May 1986. It then goes on to allege further that "since that date" the Company re- fused to "recall" them. If a man is fired or discharged from his job, and the motive was illegal, what matters that he was never thereafter "recalled"? How does that failure constitute another unfair labor practice? The fact that the man stays "discharged," day after day, and is not "recalled," adds nothing to the case in support of the complaint. Unless, of course, the complaint was intended to allege two separate acts of illegal discrimination, one in the initial "discharge," and another in the later "refus- al to recall." Which is it? There is no proof in this record about anyone trying to come back after the layoffs and being refused. I have difficulty following the reasoning of the complaint, especially in the light of the undisputed and clear relevant facts of record. At the beginning of the year 1986 there were about 100 production and maintenance employees in this plant. About 20 of them were released in March because of a decline in the volume of business, about 20 more were laid off in April for the same reason, and 11 or 12 more were laid off on 8 May. That all these people were sent home, half the total complement of 100, because the Re- spondent had no work for them is not disputed on this record. There is not only documentary evidence proving the decline in the volume of business, but the General Counsel's own witnesses admitted they were told before it happened that such a reduction in force was being planned. In fact the Company held a special meeting of all employees in March-before any indication of union activity at all-expressly to inform them that this was ex- actly what was going to happen. Also, a notice to all em- ployees was posted in "January or February," as Ms. Rogers recalled, telling them the reduction in force was imminent. Of all the people sent home in these mass layoffs, the complaint here selects two-Rogers and Miller-and says they were "discharged" on 8 May because they were unioneers.2 Considering the record in its entirety, the evidence does not suffice to prove the complaint alle- gation of illegal motive in the release of these two em- ployees. Although it is clear the Respondent was at the time of the events opposed to having the Union repre- sent its employees, and although it is true it had knowl- edge of practically all those employees who favored the Union, there is no convincing evidence the Respondent selected Rogers and Miller for layoff because of their union feelings. I do not think the record proves a prima facie case for these two persons. Moreover, the facts of record suffice to establish a perfectly proper reason why the Respondent joined these two workers, among others, that day in the general layoff. I shall therefore recom- mend dismissal of the complaint as to these two employ- ees. Rogers signed a union card on 11 April, and testified that she attended union meetings regularly thereafter at the union hall, that she wore a union button and T-shirt at work, and that she distributed union literature at plant entrances. But Rogers also testified that no one ever threatened her because of her wearing the union insignia, and that no one ever made any comment about it at all to her. In short, this was the alleged discriminatee herself admitting the Respondent never gave any indication of animosity against her because she was one of the many employees who behaved as she did. In other words, the complaint as to her therefore becomes: Rogers favored the Union; the Employer knew it; the Employer was op- posed to having the Union represent its employees; it fired Rogers; ergo-the reason why it fired Rogers was because of her union activity. In my considered judg- ment, I do not think that reasoning suffices to prove a prima facie case. When an employer fires 30 employees during an active union campaign, and only 1 of them is alleged to have been selected because of such activity, there must be at least some evidence that the employer picked her for such reason. There is no such evidence here as to Rogers. The case in support of the complaint as to Richard Miller is not much different. He signed a union card on 29 April and testified he wore a union button, gave out leaflets, and went to union meetings. This man also testi- fied that he attended the union meetings after he had left the Company on 8 May, and that he distributed the leaf- lets also after being laid off that day. As to Miller's ac- 2 The complaint also says employee Eberle was discharged on 8 May, but that is wrong Eberle was discharged on 15 May CORRY CONTRACT tivities in aid of the Union's organizational campaign- going to meetings and distributing union leaflets-which he engaged in after his layoff, or "discharge," they could hardly have been a motivating cause for what the Re- spondent did before those things happened. Could this be the reason why the complaint doubletalks and says the unfair labor practice was in the refusal to recall? Although the General Counsel made much of the fact all three of the employees involved in the complaint signed union cards before their release, there is no evi- dence, indeed it is not even claimed , that the Respondent had knowledge of those particular facts before those cards were entered as evidence at the hearing in this pro- ceeding, 5 months later. Miller testified about conversations he had with man- agement representatives concerning the union activity that was going on . During the years he worked for this Company he was absent a number of times for illnesses, some of them for very long periods . The last such ab- sence took place when he was hospitalized from 7 De- cember 1985 to 5 May 1986 . The day after 5 May, when he was put back to work, George Valletti: a supervisor, said to him: "I didn't know you were wearing that badge ... that's all he said." With 50 percent of the employees wearing union buttons at work, of what significance was it for the supervisor to have said he noticed a button on a particular employee? The reason why all of them wore those buttons was precisely so that everybody in sight in the plant would become aware of them! Miller also testified that when, on 13 May, 5 days after he had been laid off, and the only day he distributed union leaflets near the plant, he saw Bob Anthony, the factory manager, come out of the plant, and that he, Miller, told the supervisor: "[H]ere Bob, take one of these. He says no. I said come on take one. He says all right. So, he walked over and took one . . . and he said, goddamnit, Dick, you know better than this . . . . You been in a union before . . . they never done nothing for you." This was the alleged discriminatee himself admit- ting that the Respondent did not even know , before the discharge, that he was in any way involved with the Union. This is not surprising, for he had only been back on the job for 3 days before he was laid off . With this from the witness, can I fmd he was released because of his subsequent union activity? As already stated Rogers and Miller are the only em- ployees said to have been laid off on 8 May because of their union activities . But the record also shows, as the General Counsel's own witnesses conceded , that about half the total group at work at the time wore union but- tons and T-shirts. That reality is also indicated by the re- sults of the election the following month, when 43 voted for and 45 voted against the Union. I think it fair to assume-certainly in the absence of any contrary evidence-that the hand of destiny fell as heavily on the prounion employees as it did on the an- tiunion group. The General Counsel does not contend that there was a top heavy selection of unioneers to sup- port the present allegation of discrimination in general. If on 8 May Rogers and Miller were the only T-shirt wear- ers who were laid off while all the rest were known an- tiunion employees, a different picture would be present- 399 ed. Instead, there is positive indication that even that day, as I presume also happened at the April layoff of 20 people, other known unioneers were sent home. The charge, filed by the Union on 6 June , lists nine employ- ees (not including Eberle) as having been discharged on 8 May in violation of Section 8(a)(3) of the Act. The complaint then reduces the number to five . At the start of the hearing the General Counsel removed two more names from the complaint. As it stands only Rogers and Miller are now said to have been illegally selected that day. But if the Union charged that nine suffered illegally, it necessarily means that the Union knew they were open adherents of the union movement , and that the Company knew that to be so. The same inference must be made with respect to the General Counsel's having listed four employees in his complaint; if he did not know he could prove they were, all four unioneers to the knowledge of the Company, he would never have included them in his pleadings. All this adds up to is a perfect affirmative defense of discharge for just cause . There is no contention that the Company was not justified, for business reasons, in re- leasing 11 or 12 employees on 8 May. Absent evidence of deliberate selection of any one of them for illegal reason, nothing wrong can be found with the fact it sent Rogers and Miller home that day. There are two reasons why this part of the complaint fails on this record. The first is that with so many union- eers having been laid off on 8 May, to say nothing of an equal percentage laid off earlier, practically none of the whole bunch ever recalled, what was so special about Rogers and Miller that day that only they of the whole group can be said to have suffered "discrimination"? Nothing! They were but two of many unioneers, all in the same position and all treated alike. A second argument by the General Counsel rests on what the Respondent's witnesses described as an estab- lished practice of permanently removing from its payroll any employees in layoff status for 60 days . Sixty days after 8 May-by 8 July-the Company altered its records to Mark Rogers and Miller as no longer having employee status. This meant all benefits ceased to apply to them, and that in the event they were ever offered an opportunity to return, or invited to come back, they must return under the usual routine examination and con- siderations that are applied to all new employees-proba- tionary period, physical examination, qualifications, etc. Rogers testified she had never heard of such a rule throughout her employment. Eberle said he first saw the rule when he received it as a printed copy with his ter- mination notice 60 days after his layoff. He said the rule was enclosed with his termination notice . Sharon Sellen, another witness, gave like testimony. Barbara Kimmey, the Company's personnel manager, testified the posted rule had been in effect since 1982, when it was first posted for all employees to see. She said the practice of sending a copy to laid-off employees when the 60-day layoff status ended was instituted to clear any misunderstandings about continuing benefits. The Company placed into evidence a copy of the rule, dated 1982, from its regular records . William Kafferlin, 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Company's president, corroborated Kimmey. On the question of whether the Company in fact had in the past removed laid-off employees from its records, I must be- lieve the management witnesses. After the Respondent had rested its case, the General Counsel recalled Richard Miller as a rebuttal witness. He testified that in 1980-1981 he was on disability for a lengthy period, and that when he returned he resumed work on the same basis as when he had left . Then came the following from the witness: Q. Mr. Miller, you were rehired as a new em- ployee, of May of 81, when you returned from this illness, weren't you? A. No, I wasn't rehired. Q. You were not rehired? A. No sir. Q. What happened to you? A. I brought a doctor's slip back from the VA Hospital. They let me work, I came right back to work, was on the same job as when I left. Q. Okay, what about your pay? A. My pay was dropped. I worked there, I would say, probably, a week, when they dropped my pay and they said then, at that time, that they would, had to do something about a plan or some- thing. Q. What? A. A plan, some kind of a plan, where they- they had to start a new plan . They never had a plan before, in the shop, until-they told me at the time, there was never a plan in the shop. When I was off that year, they said there was no plan where you could be off 6 months and you started all over as a new employee. When I came back from that hospi- tal, I started with the same pay and everything I left there with. And, then, after I worked there for a while, then they were going to start a plan, but I'd never seen the plan. Q. Okay, did you receive accident, sickness insur- ance benefits, when you were off? A. Accident and ... . Q. Yes, 26 weeks worth. A. I've let's see, 26 and that, I believe, I did. Q. Then they ended after 26 weeks, right? A. Right. Q. You say they told you about the plan. Who is they? A. That was Bob Anthony and Bill Kafferlin. When I came back to work and that, I didn't know how to discuss and come out with a ballot. But, Bob Anthony came back to me and told me that they would have to start me all over again. And, I had already come back and started working with, what I left with. Q. So, he did tell you you have to start all over again? A. Right. After I already came back and got my own pay, when I left. Q. Right. But, you already back you were told that you would be started all over again? A. Right. This testimony by a Government witness comports with the present assertion of the Respondent's witnesses that a rule on returning employees was established in 1982. I therefore find nothing wrong with the Company, in 1986, recording its laid-off employees as "terminated" after 60 days of a layoff period. Actually, all the testimony about employees knowing or not knowing about the rule and its meaning dies in this case in view of the company records . There was re- ceived a prepared summary of information from the original records about people having been terminated ex- actly 60 days after their layoff. All parties agreed the prepared summary correctly reflects the records them- selves, which were always available to the parties throughout the hearing. One exhibit alone shows that 36 employees who were laid off were permanently terminat- ed precisely 60 days after their layoff during the years 1984 and 1985. This was before any union activity oc- curred. One man, listed on the exhibit, was laid off in 1982 and marked "terminated" 60 days later. Enough! With respect to Thomas Eberle, a totally different pic- ture is presented. He was not laid off with others, as a group, unioneers and nonunioneers. He was singled out for discharge. The work he was doing-maintenance- was not reduced in the overall lessening of the volume of business. His release had nothing to do with the gen- eral reduction in force . His work was simply given to an- other man, more junior than him in tenure , and not even claimed to have been more qualified. Indeed , there is no question of Eberle's desirability as an employee for he was retained many times despite forced absences. Eberle was fired on 15 May. As to him, too, the de- fense is economic necessity, the importance of replacing him with another man whose skills were more diversified and would cost the Company less. Unlike the picture presented concerning Rogers' and Miller's release, Eberle's dismissal followed direct threats to him intended to stop his prounion activity. He signed a union card at the 29 April meeting of the Union, attended all weekly meetings, and immediately started wearing a union button marked "organizer." He also distributed union literature about the plant. At one meeting he spoke up about several of the needs of the employees that could be obtained through the Union- such as safety equipment, which was lacking, and merit raises. Some employees who were opposed to having a union also attended the meetings, prominent among them an employee named Rick Kimmey, the son-in-law of the owner of the Company, and the husband of the Compa- ny's personnel manager. A few days after the meeting where Eberle spoke up about the need for safety devices, Bob Anthony, the plant manager, told him at work that "the safety equipment is ordered for the acid tank. It should be in shortly." That management was aware of Eberle's pronounced activities in favor of the Union is the clearest fact on this record. Eberle also said that later that same week Anthony looked at him, saw the union button on the employee's hat, and called him a "shithead." Eberle continued to tes- tify that the following Saturday, also at work, Anthony started another conversation with him about the Union, CORRY CONTRACT and said "that if we were going to get a union in, that the union would cost us jobs, and benefits, and over- time." When Eberle came back saying that if the Compa- ny put the benefits for the employees in writing the em- ployees would not vote for the Union , Anthony respond- ed: [I]f we were listening to Terry Sproveri, he was nothing but a troublemaker. That he had filed a grievance with Corry-Jamestown, and he just caused the Company a lot of trouble. Q. Do you recall anything else about the conver- sation? A. Yes. After that, he said that if-with getting the union, we were just skinning our own necks. At the hearing Anthony testified it was Eberle who first brought up the subject of the safety equipment in conversation with him. He then admitted having made the derogatory remark to the man. I see no reason for him to have spoken so offensively to the employee right after mention of the complaint Eberle had voiced at the union meeting only a few days earlier, except it be re- sentment by the manager towards the man's instigation of others towards getting a union in the workplace. I do not believe Anthony's testimony that it was Eberle who spoke to him first about the lack of safety equipment. I can only find that the manager learned about what took place at the union meeting from the husband of the per- sonnel manager. Rick Kimmy was not only outspokenly antiunion, but persisted in being present at one union meeting after another despite repeated protests by the regular employees for him to stay away from there. In the end they were forced to expel him from their meet- ings. Anthony denied having voiced any of the threats as testified by Eberle. I credit Eberle against the plant man- ager. This finding rests not only on the demeanor of the witness, and his admitted animosity towards the man, but also on the fact-as will appear below-that one of the main points urged by Kafferlin, the owner, in his cam- paign against the Union , was a repeated assertion that unionism was a danger to their jobs. I find that by his statements to Eberle that if the Union prevailed in the scheduled election employees would lose their jobs and other benefits, by his threats constituted violations of Section 8(a)(1) of the Act chargeable to the Respondent. Eberle also testified that before his discharge on 15 May, Sam Smith, another supervisor, said to him, "[I]f we were going to get the union, it was going to cost us jobs. And, that if the union did come in, Bill [Kafferlin] would find some way of getting rid of the union organiz- ers." Smith also denied having made these statements. Again, I credit the employee against the supervisor, and I find that Supervisor Smith's threat to Eberle that em- ployees, and union organizers, would be discharged by the boss if the Union prevailed in the election to take place, the Respondent violated Section 8(a)(1) of the Act. It is admitted that from the end of April to the elec- tion held by the Board on 19 June the Respondent tried continuously to convince the employees they would be 401 better off voting against union representation. It sent let- ters regularly to individual employees urging its view. On 17 June, 2 days before the election, Kafferlin held a number of meetings with the employees , gathering from 15 to 20 at a time from the various departments, where he spoke to them about the coming election . From the testimony of Sharon Sellen, an employee in the press de- partment: "[H]e started out by reading off his statement and telling us pretty much why we did not need the union, and that . . . what the union was going to cause, like, the union was going to put us out on strike, or that they couldn't help us . . . . He said that if the union got in, that the union would put us out on strike . He said that we wouldn't have any choice, that if the union voted strike, we would have to go out on strike . He said that if we got the union in, he would be hard to bargain with, and it will be difficult to get a contract with him. ... he said that companies that we were dealing with now, don't want to deal with a union , and we'd lose business, and he stated that IBM, which is stationed, or situated at the Steelworkers Union, would be one compa- ny which would not want to work with a union compa- ny . . . . He said people that were laid off would be ter- minated and not called back." Sproveri, from the assembly department, testified about what Kafferlin said to his group at a meeting the same day . From his testimony: "[W]e got to discussing the Union. And, he had informed us that he was-had experience with negotiating with Unions, and that he could be hard to deal with, just as hard to negotiate with as the Union people could . And that through negotia- tions we could eventually lose some of the benefits that we have. . . . And, he said, that IBM would-in essence, he said, that IBM would rather not deal with a Union shop." Employee Glenda Bounds also testified about the meeting she attended: He told us that he didn't have to bargain with the union if he didn't want to. He told , at that time, that the people that were on layoff, and that were terminated, were not to be called back at all. He said-told us that the union couldn't do anything for us, and that the union was taking our rights away, they were making our decisions for us. And, he said that the Union could make us go out on strike, and then he would hire other people, that we wouldn't have any rights for anything if we had a union. After this came Kafferlin's testimony. He started with a negative response to a purely leading question, by de- nying having said "the Company would not agree to give the union anything if it won the election or words to that effect." Then came the following from the wit- ness: Q. Did you, during the course of these meetings, discuss whether or not the company would refuse to bargain or refuse to negotiate with the union? A. We did discuss it, yes, sir. Q. What did you say about it? 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. I said that we would negotiate, but that we would negotiate as hard bargainers. The witness' testimony was evasive and therefore not really credible. For example: Q. Did you ever say that it would be hard for the union to get a contract from you? A. I said we would negotiate. Q. Did you ever say that specific statement that I said? A. I don't recall that I said that it would be hard to get a contract. Again: Q. Did you ever say that the union was taking the employees' rights away? A. I didn't say they were taking their rights away, I said they were acting without their approv- al. Q. You made that statement? A. I did make that comment, that they were al- ready acting without their approval. Kafferlin denied telling the employees the Union would call them out on strike , and then added: "I said that we had been reviewed by customers, they had asked about our union status, and that we had our contract under negotiation, that the customer was sensitive to the fact that we did or did not have a union, and that that was one of the conditions under which we would be given an opportunity to bid." Between Kafferlin and the employee witnesses I credit the testimony of the latter group . The owner's message was clearly one to intimidate the employees , to create a fear in them that if they voted in favor of the Union 2 days later, they ran the risk of losing their jobs. The message could not have been clearer . Kafferlin's explana- tion of his statements that loss of jobs was a probability if the Union prevailed rests on his unsupported assertion that his customers, or at least prospective customers, would refuse to do business with him if there were a union representing his employees. There is no evidence to that effect, nor did the Respondent come forth with objective proof of its present assertion. See Long-Airdox Co., 277 NLRB 1157 (1985). I believe the employees who testified he said he would refuse to bargain in good faith with the Union in the event. I therefore find that by the owner's telling the assembled employees he would not bargain fairly with a union, that they would lose their jobs if the Union should prevail, the Respondent violated Section 8(a)(1) of the Act. This, coupled with the direct threats of retaliation spoken to Eberle personally by more than one supervisor as they saw him pushing for the Union as an organizer while still at work, the finding is fully warranted that a prima facie case in support of the complaint as to that man is proved. The now advanced defense of discharge for cause does not suffice to offset the case in support of the complaint. Wright Line, 251 NLRB 1083 (1980). Eberle's work con- tinued as it always did; it all had nothing to do with the economic changing conditions of the Company. The tes- timony is not quite clear as to just who was used in his place beginning on 15 May. Anthony, the supervisor who had directly threatened Eberle with loss of employ- ment and who also said it is he who decides which em- ployee must be laid off now and then, testified he re- placed Eberle with a man named Robert Nichols, be- cause Nichols was also capable of doing inspection work. But the company records, offered into evidence by the Respondent, show Nichols was in laid-off status at the time Eberle was sent home. He had been laid off on 9 May and was recalled on 27 May, according to the records. Eberle was fired on 15 May! This fits into Eberle's testimony that Anthony told him, on 15 May, that his job was being eliminated. Eberle also testified that a man named Bruce Pierce, a maintenanceman as he was, was doing his work later. This testimony is supported by that of employee Sharon Sellen, who said Pierce has been doing Eberle's work on a regular basis since the release of Eberle . Pierce, who testified for the defense, was not convincing. From his testimony: Q. Isn't it true that since the time that Eberle was laid off, you're doing the same work that he did prior to his layoff, is that correct? A. No. Q. What job are you doing now? A. I am doing his job now, but before I was working in the new building. Q. My question was, since Eberle was laid off, you, after-since the time Eberle's been laid off, you were the one who's doing the work that he did prior to the time he was laid off? A. Right. Eberle had been on the job 5 years. The Company was glad to take him back every time he could not avoid an absence. Except for a single warning about a drawer fall- ing to the floor accidentally in 1985, he was never given any disciplinary notice or warning of any kind. And even if Anthony did use employee Nichols to do Eberle's work later, for a while, it is still a fact the job was given to another regular man, Pierce, instead of re- calling Eberle. Against the very convincing affirmative evidence of illegal motivation in the discharge of the man, I find the so-called defense of just cause unpersua- sive, I conclude that Eberle was discharged on 15 May because of his persistent prounion activities, and that by such action the Respondent violated Section 8(a)(3) of the Act. There is also testimony of unfair labor practices com- mitted in violation of of Section 8(a)(1) by Charles McFate, an admitted supervisor. One day, before the election, McFate called employee Sellen into his office where he talked to her "an hour and 45 minutes," ac- cording to Sellen. She testified the supervisor told her that "we'd be better off if we went, you know, if we didn't have a union . . . that he knew that we wouldn't get anywhere by . . . voting in the union." Asked on cross-examination to repeat her testimony, Sellen did so: "he said he had family who worked in a law office in Oil City. And, he gave me this long name of people, or CORRY CONTRACT 403 names, for a lawyer firm. And, he said that that was where he was getting his information for union busting." As to this conversation in his office, McFate was eva- sive at times, and therefore not credible to me against the employee's testimony. He denied having said to her that he was getting "union busting" information. Then came the following cross-examination: Q. I have a question, the reason you called MS Sellen into your office, was to just talk to her and attempt to discourage her from supporting the union, is that correct? A. Not, entirely. It's nothing unusual to have, call people in and discuss work, work attitudes, and that type of thing. Q. Work attitudes? A. You know, thinking of, you know, work relat- ed. I find that by calling an employee into his office in pri- vate conversation to tell her the employees would be "better off" without a union, and that he, the supervisor, was obtaining "union busting" information, McFate, on behalf of the Respondent, violated Section 8(a)(1) of the Act. The complaint also alleges certain other violations of Section 8(a)(1) said to have been committed by three em- ployees-Roger Mimmick, Lynn Mokwa, a receiving clerk, and Paul Kraft, a layout employee. One witness said she heard Kraft tell another employee he, or she, could be fired for wearing a union button. The only other significant misconduct charged to these three per- sons is the fact that Mokwa went about the plant polling the employees about their union sentiments before the election. He kept a chart with names and checked off those in favor and those against the Union. The Re- spondent disputes the alleged supervisory status of all three of these employees at the time of the events. I do not think the evidence sufficient to prove any one of these three men was in fact a supervisor at the time, or an authorized agent of the Respondent, and shall there- fore ignore the related evidence there is on this record about their antiunion activity. Apart from the testimony of the personnel manager that none of these three men exercised any of the author- ity listed in the statutory definition of a supervisor, the Government witnesses themselves conceded they had not themselves seen these men act with authority in a su- pervisory capacity. Some of them voted in the election, without challenge. What the witnesses offered to prove the asserted supervisory statues are claims of such au- thority voiced by the disputed employees themselves. But agency is not proved out of the mouth of the agent. None of the three men was called as a witness. It is a fact the real supervisors were aware of Mokwa's going about the place asking one employee after another how he felt about the coming election. Maybe the Re- spondent should have stopped him from doing that. But then, it did not, as indeed it could not, stop the prounion people from advertising their contrary attitude by the buttons and T-shirts half of them wore throughout the place of work. Mokwa's activity was of the same nature as the the publicity activities of the prounion employees. There is one more allegation in the complaint that I find unsupported by the evidence. About a week after his discharge, Eberle came back to the plant for his final check. He accepted union leaflets from a professional union organizer before entering the building. He did not go to the office but went into the regular workplace, in the maintenance department. Kafferlin happened to see him there. He took Eberle by the arm and urged him in the direction of the office. In the words of Eberle him- self "he [Kafferlin] escorted me to the front office." The complaint characterizes this incident as "physical assault" by the owner. I do not agree. Eberle had no business being inside the plant that day, especially in view of his then activity as an organizer and distributor of union lit- erature. He was not denied his right to go to the office for whatever was due him. I therefore make no finding adverse to the Respondent based on that visit to the plant. IV. THE REPRESENTATION PROCEEDING Case 6-RC-9694 As the result of the 19 June 1986 election now stands, the Union lost by a very narrow margin. It filed timely objections, claiming improper interference with a fair election by the Company before the voting took place. On investigation the Regional Director decided a hearing should be held on some of the objections. And because at the same time the Union filed its charge in Case 6- CA-19180, and the Regional Director decided to issue a complaint in that case. He then consolidated the two proceedings for a single hearing. As explained, and as found above, the Company com- mitted a number of unfair labor practices before the elec- tion date, including the outright discharge of one of the union organizers. Some of the unfair labor practices found involved certain aspects of the objections filed by the Union; there is even a certain overlap between the two kinds of improper conduct by management officials. Whether the unfair labor practices found fall within the scope of the objections or within the area of the com- plaint is of no moment. Indeed, if by chance there may have been minor additional incidents not clearly shown on the record in support of the objections, there is no need to belabor them here. Without doubt the election must be set aside and a new one ordered. Unfair labor practices committed so shortly before an election, aimed exactly at restraining the employees who felt prounion from so voicing their choice in the election, demands that the results be set aside, regardless of whether the more grievious misconduct was listed in the Union's ob- jections. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Respondent must be ordered to cease and desist from again committing the unfair labor practices found herein. Thomas Eberle must be reinstated to his former position, and he must be made whole for any loss of earnings he suffered in consequence of the illegal discrimination against him. In view of the nature of the unfair labor practices committed, the Respondent must be ordered to cease and desist from in any other manner violating the statute hereafter. CONCLUSIONS OF LAW 1. By discharging Thomas Eberle on 15 May 19867 the Respondent has violated and is violating Section 8(a)(3) of the Act. 2. By the foregoing conduct, by threatening employees with loss of employment in retaliation for the union ac- tivity, by threatening employees with loss of benefits be- cause of their union activity, by telling employees that management would find a way to discharge prounion employees, by telling employees Respondent would be hard to bargain with if it choose to be represented by a union, by telling employees that collective bargaining with the Union of their choice would mean loss of bene- fits being enjoyed, by telling its employees the Respond- ent would not be obligated to bargain with a union se- lected by a majority of the employees, and by telling em- ployees that management was obtaining union busting in- formation, the Respondent has violated and is violating Section 8(a)(1) of the Act. 3. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]