Fairprene Industrial Products Co., Inc.

FAIRPRENE INDUSTRIAL PRODUCTS Fairprene Industrial Products Company, Inc and Fairfield Employees Association Case 39-CA- 3445 January 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On June 24, 1988, Administrative Law Judge Marion C Ladwig issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The General Counsel also filed cross-excep- tions and a supporting brief, and the Respondent filed an answering 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, i and conclusions and to adopt the recommended Order as modified The judge found, inter alia, that Supervisor Wayne Hurd's questioning of employee Doris Jack- son was not coercive The General Counsel con- tends that Hurd's questioning of Jackson was coer- cive because Hurd failed to follow the safeguards set forth in Providence Hospital 2 We agree with the General Counsel The undisputed testimony establishes that on March 31, 1987, the day after the Union gave notice to the Company of its intention to strike at midnight on March 31, Hurd approached Jackson and asked whether she would report to work if the Union went on strike Jackson answered that she would not report to work but that she would not picket In Providence Hospital, the Board found that if an employer asks employees whether they plan to par- ticipate in a strike, the employer must fully explain the purpose of the inquiry, assure them that it will not take reprisals as a result of their response, and otherwise refrain from creating a coercive atmos- phere Hurd did not provide Jackson with an ex- planation for his strike inquiry, nor did he give her ' The Respondent has excepted to some of the judge s credibility find rags 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has requested oral argument This request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties 2 285 NLRB 320 fn 2 (1987) 797 assurances against reprisal when he questioned her Because Hurd did not follow the requirements set forth in Providence Hospital, the Respondent violat ed Section 8(a)(1) by coercively interrogating Jack son regarding her intentions in the event of a strike ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Fairprene Industrial Products Company, Inc, Fairfield, Connecticut, its officers, agents, suc cessors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs "(a) Coercively interrogating employees regard- ing their intentions in the event of a strike " 2 Substitute the following for current paragraph 1(e) now lettered (f) "(f) 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 " 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT fail to bargain in good faith with Fairfield Employees Association as the exclusive representative of our employees in the bargaining unit WE WILL NOT discharge or otherwise discrimi- nate against any of you for engaging in union or protected concerted activity WE WILL NOT discharge or otherwise discrimi- nate against any of you for being named in an NLRB charge WE WILL NOT threaten to suspend any of you for wearing a sign with a lawful prounion message WE WILL NOT coercively interrogate any of you regarding your intentions in the event of a strike 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 292 NLRB No 84 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer the following employees immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from our refusal to reinstate them, less any net earnings, plus interest: Valerie Adintori Larry Burt Maureen Dirga Rodney Hoheb Joseph Indenbaum Doris Jackson Kurt Kalaus Warren Kalaus David Nelson Paul Pelletier George Pospisil Ralph Toms Leslie Wargo Clarence Wheeler Richard Womic WE WILL notify each of them that we have re- moved from our files any reference to the refusal to reinstate and that the refusal to reinstate will not be used against them in any way. FAIRPRENE INDUSTRIAL PRODUCTS COMPANY, INC. Thomas W. Meiklejohn, Esq., for the General Counsel. William H. Smith Jr., Esq., of Columbia, South Carolina, for the Respondent. Paul Chill, Esq., of New Haven, Connecticut, for the Union. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. This case was tried at Hartford, Connecticut, on February 29 and March 1, 1988. The charge was filed April 6, 19871 (amended May 21 and September 25), and the complaint was issued September 27 and amended at the trial. The Union (a small unaffiliated association) called a strike on April 1 without giving the 8(d)(3) notices. The strike ended early Friday morning, April 3, when the Union accepted the Company's last offer and the Compa- ny agreed to reinstate all the strikers. That afternoon, after receiving confirmation that the 8(d)(3) notices had not been filed, the Company discharged 15 of the former strikers for having engaged in an unlawful strike. The primary issues are whether the Company, the Re- spondent, (a) unlawfully reneged on its agreement to re- instate all the strikers; (b) discriminatorily discharged the 15 former strikers; (c) discharged two of them for having been the subject of an earlier charge; and (d) unlawfully threatened and interrogated employees, violating Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act. ' All dates are in 1987 unless otherwise indicated. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a corporation, manufactures gaskets at its facility in Fairfield, Connecticut, where it annually ships goods valued over $50,000 directly outside the State. It admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Bad-Faith Bargaining 1. Promise of no reprisals The Union, which has represented employees at the Fairfield plant since 1951, had never before engaged in a strike. In 1984, after the Company purchased the plant from Du Pont and retained all except 3 of the approxi- mately 100 employees, the Union signed a 3-year agree- ment with the Company covering the following appro- priate unit: All production, maintenance, shipping and office employees employed by Fairprene Industrial Prod- ucts Company, Inc. at its Fairfield facility, exclud- ing watchmen, executive and administrative person- nel, confidential secretaries, and guards, professional employees and supervisors as defined in the Act. Under this agreement, which was effective until March 31, 1987, the unit employees retained their Du Pont se- niority. (Jt. Exhs. 1 & 2; Tr. 46, 110, 223.) Human Resources Manager Anthony Tecci was the Company's chief spokesman in the February and March negotiations for a new agreement (Jt. Exh. 1, par. 5; Tr. 224-225). The Union sought the participation of one of the three vice presidents. Vice Presidents Kenneth Lakich, Paul Timmons, and Michael Coco manage the plant, reporting to Chief Executive Officer Jerry Zucker in Charleston, South Carolina (Tr. 184-186).) After con- sulting with the vice presidents, Tecci reported back that they were too busy to attend the meetings and that he would be the chief spokesman for the Company. (Tr. 106.) All except three of the unit employees went on strike April 1 (Tr. 47). That first day the Company sent the strikers letters (Jt. Exhs. 6 & 7), warning them that it would begin hiring permanent replacements Monday, April 6, and that checks for insurance premiums must be received from the strikers by that date for April cover- age. About 1 p.m. on Thursday, April 2, after the strikers began receiving the warning letters, Union President Samuel Anzolletti telephoned Tecci and said he "felt it was in the best interest of all the employees and of the FAIRPRENE INDUSTRIAL PRODUCTS 799 Company to get everybody back to work, for the team to negotiate on a day to day basis ' Tecci stated he would forward the proposal to his superiors (Tr 48-49 ) About 5 30 that Thursday afternoon Anzolletti, with Area Representative Joseph Indenbaum, went to the plant gate and spoke to Tecci As credibly testified by Anzolletti (who impressed me most favorably by his de meanor on the stand as an honest , forthright witness) Tecci stated that the Union s proposal was not satisfac tory, that "they felt that their proposal was a fair propos al, ' and that they were no longer interested in negotiat ing further " Tecci added, however, that the Company was interested in getting the plant back in operation and the Company proposed that if we accepted their last pro posal there would be no reprisals then against any of the picketers Anzolletti responded that it was obvious he would need some time to get to the people but as a show of good faith we would pull our picket lines down (Tr 49-51, 127) As recalled by Indenbaum (who also appeared to be an honest witness) Tecci said that Anzolletti's proposal to return to work and go back to the negotiating table had been flatly rejected, but that the Company was anx ious to have the employees back to work and if the Union would accept the Company s firm and final prestrike offer, all the striking employees would be re turned to work and that no reprisals would be taken against any of the picketers (Tr 128- 129) Indenbaum also credibly recalled that Anzolletti said As a gesture of good faith that we were going to suspend our picket ing (Tr 130) I discredit, as fabrications Tecci's claims that (1) he made no statement about reprisals not being taken, (2) he never heard the word reprisals" before, (3) there was no longer [a company] offer that was available to [the Union] " (4) he did not tell Anzolletti what it would take to settle the strike and (5) the vice presidents had not given him permission to tell Anzolletti that all the strikers would come back to work (Tr 303-306 315- 317, 324) Neither Vice President Coco nor Vice Presi dent Timmons admitted authorizing Tecci to promise no reprisals Coco claimed that he merely told Tecci to report back to Anzolletti That his proposition was un acceptable and I don t know that [Tecci] asked me what he should tell the Union the Company wanted (Tr 229-233) Although Timmons admitted telling Tecci to inform Anzolletti that what would be acceptable to the Company was A ratification of the new contract (Tr 276-281) he, like Tecci and Coco appeared by his de meanor on the stand to be more interested in supporting the Company s cause than candidly giving a full account of what happened After weighing all the evidence I find that in this Thursday afternoon meeting with Union President An zolletti and Area Representative Indenbaum Human Re sources Manager Tecci relayed the vice presidents' promise of no reprisal against any of the pickets if the Union would accept the Company's last proposal 2 Agreement to reinstate all strikers As promised, Union President Anzolletti removed the pickets that Thursday evening He told the pickets to come back tomorrow morning, to discuss a new pro posal from the Company ' (Tr 51, 130) About 7 30 the next morning, April 3, Anzolletti first went to the plant gate and got Human Resources Manag er Tecci s permission for the union membership to meet on company property to vote on the Company s new proposal (Tr 51-52, 306-307, 323) He then met with the membership that was congregated on the front lawn (Tr 53) As Anzolletti credibly testified, he presented "the pro posal that we received from the Company the night before, explaining that it was exactly the same as before the strike except that there would be no reprisals against any of the picketers " He stated he was con cerned about strikers crossing the picket lines Monday morning `because they couldn t afford to pay the insur ance premiums," about there being a violent confronta tion, and about a prolonged strike He said he felt it was in the best interest of all parties concerned that they accept managements proposal The membership then ` elected to go back to work (Tr 54-55 ) Anzolletti signed a note that Union Moderator Pete Geoghan had handwritten (Jt Exh 9, Tr 55) It read The Fairfield Employees Association will ratify the proposed contract by management and will report Monday April 6th, 1987 Anzolletti asked former Union President Paul Pelletier to accompany him to the plant gate to talk to Tecci (Tr 56) As they started walking toward the gate David Kiley, another former union president, stopped Anzolletti and told him Sam, make sure all the people are coming back As Kiley credibly testified, Anzolletti said okay " (Tr 348 ) At the plant gate about 8 30 a in Anzolletti, holding the note in his hand, spoke to Tecci As Anzolletti credi bly testified (Tr 56-58) I said Tony I just took a vote from my membership and he asked me if I had anything for him I said, Yeah, I have something for you, but there s some questions I want to get clear first the first thing I d like to ask you is I want to make sure all my people are coming back to work Monday and he simply said Yes And then I told him that we had three people scheduled for a layoff that Friday and I asked him if it would be possible if he could have the paperwork [done] He responded by telling me that [Human Resources Assistant] Susan Cunningham was in the plant somewhere, warn t sure where she was, if he could get in touch with her he would get the paperwork made out and those guys could come in and get their pink slips and if not they'd have to come back Monday I also asked him about the three individuals that I couldn t get in contact with I asked for his as sistance to call em up and tell em the strike was ended and to report to work Monday I also asked him about the individuals that were working shift and those people that had been sched uled off Monday in the Mechanical Depart ment He said [if] you weren t sure who should be scheduled off or if you were supposed to work, or 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD if you weren't sure what shift you were supposed to be on, to call your supervisor and ask him And then I asked him [once] more, I just wanted to make sure that all my people come back to work Monday, and he said yes and I handed him [the note] They then scheduled a meeting for 10 o'clock Monday morning to initial agreed changes in the collective bar gaming agreement and discussed Anzolletti s taking a va cation day Former Union President Pelletier , who was standing "to the right side of the guard shack" on Anzolletti s left (Tr 120), recalled (Tr 117-119) that Mr Tecci came out and the guard went back in the guard shack and myself, Sam, Mr Tecci were left standing outside Sam told Mr Tecci that he had a letter for him but he wanted a few things cleared up first and the first question he asked was, "Is everyone going back, there is going to be no retaliation, everyone is going back And Mr Tecci said, Yes, everyone is going back, no retaliation And then Sam went to ask him, Okay, when are we going back? Do you want us to go back today?" Mr Tecci said, No, Monday will be find [sic] Then Mr Anzolletti asked him Well, how about the mechanics that work Tuesday through Friday, do you want them coming in on Monday? Mr Tecci said, No, just have them come in on their regular time Mr Anzolletti also said to Mr Tecci that he wanted a [vacation] day Monday, and Tony [said] Yeah, fine, no problem with that And Mr Anzolletti also asked Well what happens to these people that are laid off' and Mr Tecci said, Well have them come in and I will make the arrangements Then Mr Anzolletti gave Mr Tecci the note and walked away Q Do you recall anything that Mr Anzolletti said dust before he gave him the note? A No, I don t (By his demeanor Pelletier impressed me as an honest witness ) Human Resources Manager Tecci and Vice Presidents Coco and Timmons all gave testimony to dispute that there was any agreement to reinstate all the strikers Tecci claimed that Anzolletti did not say anything before handing him the note (Tr 308-309, 330) He also claimed that "To the best of my recollection, no there was not anyone else present (Tr 327, 330) Both Coco and Tim mons were watching through office windows Both claimed that there was no conversation before Anzolletti handed Tecci the paper They also claimed that Anzol letti was alone-contrary to the credited testimony by Anzolletti, Pelletier, and the rebuttal witnesses current employees Kiley (Tr 348) and Katherine Lamson (Tr 338) Coco claimed that the meeting lasted 30 to 45 sec onds, certainly ` less than a minute," and Timmons claimed 30 to 40 seconds, `maybe 45 seconds, no more " (Tr 200-205 241, 248-255 270-271, 292-297) I discredit these claims as fabrications There was also conflicting testimony about when the Company decided which day the strikers could return to work Vice President Timmons recalled that after this second (8 30 a m) meeting Tecc reported that Anzolletti asked if they should return to work that day and he said no, Monday would be more appropriate (Tr 295) Former Union President Pelletier similarly recalled (as quoted above) that Anzolletti asked Tecci Do you want us to go back today9' and Tecci answered, No, Monday will be fine' In contrast Tecci recalled that in the first meeting that morning Anzolletti stated that if the employees voted to accept the proposed contract, "they were ready to come back to work that day" and that Tecci responded "I thought Monday would be best, but I told him I would get back to him after the discussion [with his membership] " Tecci claimed that he then reported this to the vice presidents (after the first meeting, not after the second meeting as Timmons recalled) and they agreed" (Tr 332-334) Anzolletti recalled asking Tecci at the 7 30 a in meeting if the membership elected to agree to the [company proposal] did he want them back to work that morning, and Tecci informed me that the Company felt that the week was basically shot and Monday morning was soon enough -without any men tion of Tecci getting back to him after the vote I credit Anzolletti's recollection and also Pelletier's testimony that Anzolletti asked the question at the second meeting (getting a confirmation) I find that the credible evidence supports the General Counsels contention that the Company in the negotia tions to end the strike agreed to reinstate all the striking employees if the Union accepted the Company s last offer In the 8 30 meeting that Friday morning, after the Company s authorized spokesman twice confirmed the Company s reinstatement promise the Union accepted the contract offer, ending the strike 3 Discharge of former strikers Throughout these negotiations to settle the strike, Human Resources Manager Tecci concealed from Union President Anzolletti the information that the Company was considering the possibility of discharging some of the employees for engaging in the strike Tecci admitted (Tr 320) Q And you kept that information from him cor rect9 A I did not reveal that information, no, sir, I didn t Q Did it occur to you that that might be some information that the union would be interested in? A I followed the directions of my vice presi dents and that was never brought up About 10 a in on Thursday (the second day of the strike) the vice presidents conferred with Chief Execu tive Officer Zucker about the indication that the 8(d)(3) notices had not been filed with the appropriate Federal FAIRPRENE INDUSTRIAL PRODUCTS and state agencies Vice President Coco testified that Zucker's feeling was that, if indeed, the strike was an illegal strike, we had the option to not rehire people that we felt might not be in the best interest of the long term goals of Fairprene (Tr 194-195) When Anzolletti first called about 1 o clock that Thursday, trying to settle the strike, Tecci was already making telephone calls-as requested by the company at torney-to ascertain if the notices had been sent (Tr 313-314) Tecci admitted on cross examination that An zolletti said it was time to get employees back to work' Q And you said you felt the same way? A Yes, sir Q Now, did you tell him at that point that the company was considering the possibility of getting nd of some of the employees because the strike was illegal? A No, sir, I did not Q Now you knew there was a possibility at that point that the strike was illegal? A There was a possibility, yes, sir The Company continued to conceal this information from Anzolletti when he arrived at the plant gate about 5 30 that Thursday afternoon with Area Representative Indenbaum, continuing his efforts to negotiate a strike settlement Despite the possibility that the Company would decide to discharge some of the strikers, Tecci (as found above) relayed the vice presidents promise of no reprisals against any of the pickets Shortly after this meeting, about 6 p in as credibly tes tified by Production Supervisor David Vayda (who ap peared on the stand to be an honest, forthright defense witness) the vice presidents met with the salaried em ployees After production problems were discussed the supervisors were informed that the strike is possibly an illegal strike They were asked if they did not have an obligation to hire back any or all of the employees, to ponder over that evening which employees they felt would not be in the best interest of the Company to rehire (Tr 172-173) The strike ended before the Company confirmed the Union s failure to file the required 8(d)(3) notices The Company by amending its last proposal (promis ing no reprisals against the strikers) succeeded in settling the strike Union President Anzolletti immediately re moved the pickets that Thursday evening and early Friday morning the union membership voted to accept the new proposal and return to work The strike ended about 8 30 am, April 3 when An zolletti presented the Union's handwritten note, agreeing to `ratify the proposed contract by management This occurred at the plant gate after Human Resources Man alter Tecci (the Company s chief spokesman in all the ne gotiations) twice confirmed the Company s agreement to reinstate all the strikers and scheduled all except three of them to return to work the next week on their regular shifts These three (unidentified) employees were to be given pink slips and laid off from their employment, as previously planned 801 Although the pickets were gone and the strike had been settled, the Company proceeded that Friday morn ing to get a list of the former strikers who the supervi sors felt were not in the best long term interests of the company' (Tr 39-40, 173-174, 205-208, 246, 271-272, 297-298) Then after Tecci finally confirmed around 10 or 10 30 am (Tr 37) that the required notices of the labor dispute had not been filed, the vice presidents met a "good three hours (Tr 273) As Vice President Coco testified, they discussed first, whether or not we should exercise this option" of not retaining some of the em ployees, second, `how many employees it should in volve,' and third, `who those employees are (Tr 208) Despite the fact that the former strikers were already scheduled to return to work, the vice presidents decided to proceed with their option ' They reduced the list from 24 to 14 names, added the name of employee Larry Burt (discussed below), and decided to discharge 15 of the employees (Tr 246-247, 299) About 2 30 that Friday afternoon, at the conclusion of the meeting, the vice presidents gave Tecci the list of 15 names (Tr 208, 273) without informing him why any of them was being dis charged (Tr 30) They instructed him to contact legal counsel and be certain of the wording that should be placed in a letter' to the Union (Tr 209) After preparing the letter as instructed (with legal advice), Tecci called Union President Anzolletti to the plant and handed him the letter about 3 30 p in (Tr 19- 20, 58-59, 311) Although Tecci positively denied on the stand that he considered the strike to be over at that time (Tr 19), the letter bearing his signature (Jt Exh 10) belies the denial After pointing out the Union s failure to file the 8(d)(3) notices, the letter refers to the strike in the past tense and to the returning employees The strike was unlawful Since the strike was unlawful, every striker has made himself or herself subject to lawful discharge We do not wish to take such drastic action We also understand that the employees have voted to return to work, agreed to Fairprene s last offer, and the Union wishes to meet with us at 1000 A M on Monday April 6 1987 to conclude the contract On those conditions we welcome the return of the great majority of you to our continuing business relationship However, in the best interest of Fairprene and of our returning employees we feel that certain of the unlawful strikers should not be returned to work The following persons will not be permitted to return to work at Fairprene, and are discharged [Emphasis added ] I find that the Company s contention that the strike con tinued until Monday morning is an afterthought The letter listed the following discharged persons Valerie Adintori David Nelson Larry Burt Paul Pelletier Maureen Dirga George Pospisil Rodney Hoheb Ralph Toms 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Joseph Indenbaum Leslie Wargo Dons Jackson Clarence Wheeler Kurt Kalaus Richard Womic Warren Kalaus It came as a complete surprise to Anzolletti Not only had the Company assured him twice that morning that all my people are coming back to work Monday, but he had never heard about Section 8(d)(3) of the Act (Tr 59, 86, 88) As found the Union had never engaged in a strike Anzolletti immediately contacted the Union s attorney and joined with him in drafting a reply to Tecci (Tr 59- 60, 101-102, Jt Exh 12), stating in part I agreed on all contract terms with you in the morning of April 3 1987 At that time, we agreed that all employees would be brought back I hope you will agree to your original settlement pro posal and avoid substantial legal proceedings About 10 a in Monday , April 6 Anzolletti handed the letter to Tecci at the initialing of the agreed changes (Jt Exh 11) in the collective bargaining agreement (Tr 60) (The new agreement (Jt Exh 17) effective from April 6 to April 5 1990, was signed May 26) On April 7 Tecci responded (Jt Exh 13) stating in part On Friday morning, early , your Union took some kind of show of hands vote at Fairprene s front lawn Shortly after that occurrence you asked to see me at the front gate and handed me a handwritten note I read the note told you that Management was anxious to have the employees return to work but that I would get back to you You said the Union would meet with us at 10 00 A M Monday to agree to Fairprene s proposal That is the whole substance of our exchange I made you no promises Your note stated that the Union had already decided to ratify the contract on Monday On Friday April 3 1987 several hours after the events between us on Friday morning we received information that your Union had not given notice of a labor dispute With these new facts new actions were called for The strike was unlawful a fact we had not known until finally verified Meanwhile early Monday morning April 6 Tecci met each of the 15 discharged employees at the plant gate and told them they would not be permitted to return to work because `it would not be in the best interest of Fairprene (Tr 23-24) 4 Contentions of the parties The General Counsel concedes in her able brief (G C Br 23) that employees who engage in a strike in viola tion of Section 8(d) may be discharged for discriminato ry reasons because they are no longer employees Fort Smith Chair Co 143 NLRB 514 518 (1963) enfd sub nom Furniture Workers Local 270 v NLRB 336 F 2d 738 (D C Cu 1964) She contends however (G C Br 26) that when the Company agreed to reinstate all the strikers and the Union agreed to end the strike, the strik ers at that point had been reemployed within the meaning of Section 8(d) The statue does not require that the employees return to work to regain em ployee status Therefore, the strikers once again became statutory employees She argues (G C Br 25) that to allow [the Company] to renege on its agreement to reinstate all the strikers would fly squarely in the face of the purposes of the Act in general and of Section 8(d) in particular She later argues (G C Br 28) The sanction of loss of employee status provides a powerful incentive for labor organizations to pro vide the notice mandated under Section 8(d)(3) the involvement of mediation services is in tended to encourage the peaceful resolution of labor disputes However, once the parties have resolved their dispute, as the parties in this case had, no fur ther statutory purpose is served by allowing em ployers to exercise [this] punitive power Once an unlawful strike has ended, there is no longer any reason to deprive employees of the protections of the Act The Company in its brief (R Br 9) makes the conten tion (found above to be an afterthought) that the strike did not end until the first shift Monday morning, April 6 when all but the fifteen strikers were returned to work Also relying (R Br 3) on the Board s decision in Fort Smith Chair Co, above as well as the court s open ion on review the Company contends (R Br 5) that until Monday morning all the strikers lost their status as employees and the Union was not their bargaining repre sentative Regarding the allegation that on April 3 the Company and Union reached a full settlement agreement through which the Company agreed to reinstate all strik mg employees the Company (besides arguing credibility) contends (R Br 5-6) One does not settle unlawful activity The unlaw ful participants are required to cease and desist, and the strikers had not yet ceased and desisted The strike was an unlawful strike in violation of Section 8(d)(3) of the Act and therefore Section 8(d)(4) stripped the strikers of all employee status There was thus not only no duty to negoti ate it was not possible to negotiate while the un lawful 8(d)(3) strike was continuing [citing no au thorny for this extreme position] It was impossible under the law for the [Union] to negotiate on any matter involving the strikers The strikers were not Fairprene s em ployees The strikers were not members of the col lective bargaining unit represented by the [Union] The [Union] had no status whatever to negotiate on their behalf The Act makes it that way [without explanation] FAIRPRENE INDUSTRIAL PRODUCTS 803 The Company concludes (R Br 29) that all the Unions testimony relating to the Company s alleged agreement to reinstate all striking employees is irrele vant to the Section 8(d)(3)(4) circumstances created by themselves 5 Concluding findings While the illegal strike continued, each of the strikers lost his status as an employee of the employer as man dated by Section 8(d) of the Act During this time the Company was privileged to discharge any of the strikers it chose But the Company chose instead to negotiate a settle ment of the strike and resume normal production It did so by promising no reprisals and agreeing to reinstate all the strikers Early Friday morning, April 3, the union membership voted to accept the Company s last offer- with this addition-and to return to work The Company scheduled the employees to return on their regular shifts beginning Monday morning April 6, and the strike ended Several hours later, after receiving confirmation that the Union had failed to file the required 8(d)(3) notices, the Company reneged on its promise to reinstate all the participants in the strike It decided to proceed with its preparations to discharge the former strikers who it be lieved were not in the best long term interests of the company ' About 3 30 p in April 3, it notified the Union that its strike had been unlawful and that 15 of the former strikers were discharged The Company waited too long to discharge the strike participants Section 8(d) provides that the loss of status for the employee shall terminate if and when he is reemployed I find, in agreement with the General Counsel, that when the full strike settlement agreement was reached and the Company scheduled the employees to return to work, the strike ended and the strikers were reemployed within the meaning of that sections provi sion I therefore find that by reneging on its promise to rein state all the strikers the Company engaged in bad faith bargaining and violated Section 8(a)(5) and (1) of the Act B The 8(a)(3) and (4) Violations With the exception of Larry Burt (whom the vice presidents added to the supervisors list of former strikers to be considered for possible discharge (Tr 182-183 247, 299-300)), the Company has given no specific reasons for each discharge The General Counsel presented the following evidence to make a prima facie case that 12 of the 15 former stnk ers (omitting Rodney Hoheb, George Pospisil, and Ralph Toms) were discharged because of union and protected concerted activities and that 2 of the 12 were discharged also because they were the subject of an earlier NLRB charge Valerie Adintori lived with Leslie Wargo who had been a union representative about 17 years (Tr 30) Larry Burt had been a union representative (Tr 150) His workmanship attendance and punctuality were good and his personnel file contained no record of any disciplinary action (Tr 33, 181) Although he wore a masking tape sign reading Go on strike on the back of his shirt about a week before the strike until required to take it off (as discussed below), his supervisor did not recommend his discharge (Tr 181) Maureen Dirga testified for the Union in an arbitration of the bonus plan (Tr 158-160), engaged in other union activity and was told by a supervisor that he was dead set against anybody being involved with union (Tr 160-161), and complained in writing to Vice President Lakich (Tr 161) Her personnel file contained no record of any disciplinary action Joseph Indenbaum was an area representative and was on the Union s nine member negotiating committee (Jt Exh 1, par 5) His personnel file contained no record of any disciplinary action (Tr 36) In addition he had com plained of disparate treatment and, with David Nelson was the subject of an NLRB charge filed by the Union (Tr 122-126 J Exh 3) Doris Jackson testified against the Company in an arbi tration case on behalf of the Union (Tr 137) Kurt Kalaus was the Union's recording secretary and was on the Union s negotiating committee (Jt Exh 1, par 5) He had been a union representative about 7 years (Tr 34) Warren Kalaus is the father of Kurt Kalaus His per sonnel file contained no record of any disciplinary action and his workmanship, attendance, and punctuality were good (Tr 34-35) David Nelson s personnel file contained no record of any disciplinary action (Tr 36) In addition he with In derbaum, was the subject of an NLRB charge filed by the Union Paul Pelletier had served as the Union s president (Tr 114) and as a union representative about 14 years (Tr 35) He was on the Union's negotiating committee (Jt Exh 1 par 5) In his last appraisal his supervisor said he had ranked me among the top employees in his de partment" (Tr 119) Leslie Wargo was an area representative and was on the Union s negotiating committee (Jt Exh 1 par 5) He had been a union representative about 17 years (Tr 30) Clarence Wheeler had a pending grievance against the Company at the time of his discharge (Tr 142) Richard Womic had been a union representative about 11 years (Tr 164) and his personnel file contained no record of any disciplinary action (Tr 36) He had filed a grievance that was taken to arbitration (Tr 165-167) I find that the General Counsel has made a prima facie showing sufficient to support the inference that union and protected concerted activities were a motivating factor in the discharge of these 12 employees and that the naming of Indenbaum and Nelson on an earlier NLRB charge was also a motivating factor in their dis charges As the General Counsel points out in her brief (G C Br 28) The record establishes that a dispropor tionately high proportion of union officers, activists and their relatives were included among the employees termi nated Many were long term employees with good em ployment records, and none were given any reason for 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their selection." Concerning Indenbaum and Nelson being the subject of an earlier charge, I agree with the General Counsel (G.C. Br. 28 fn. 6) that "An employer violates Section 8(a)(4) by discriminating against employ- ees because they are named on an unfair labor practice charge filed by someone else." Cafe La Salle, 280 NLRB 379, 395 (1986). I find it clear that the Company has failed to rebut the General Counsel's prima facie case by carrying its burden to demonstrate that it would have discharged the 12 former strikers in the absence of the protected activi- ties, or Indenbaum and Nelson if they had not been the subject of an earlier charge. Wright Line, 251 NLRB 1083, 1089 (1980). The Company had not discharged, or even reprimanded, Burt after he removed the sign from his shirt the week before the strike. I therefore find that the Company on April 3 discri- minatorily discharged the 12 employees in violation of Section 8(a)(1) and (3) and Indenbaum and Nelson also in violation of Section 8(a)(4). C. Threat and Interrogation Sometime during the week before the strike, Human Resources Manager Tecci saw Burt leaving the lunch- room from his break, wearing a handprinted masking- tape sign "Go on strike" on the back of his shirt. Tecci told him to take the sign off, but he merely shrugged his shoulders and returned to work. He was working when Supervisor Vayda arrived and asked him to take the sign off. Burt continued to refuse to remove the sign until, in the office, Tecci told him "you'll have to go home until you take the sign off." Upon the intervention of two union representatives, Burt took off the sign and Tecci said, "Okay, let's drop the issue .. . the thing's over, let's everybody get back to work." (Tr. 61-62, 115-116, 150-157, 169-172, 174-176.) Contrary to the Company's contentions in its brief (R. Br. 27) that the threatened suspension was based on Burt's (1) failure to comply with the bulletin board pro- vision in the agreement (Jt. Exh. 2, p. 27); (2) violation of the no-strike clause (pp. 30-31); and (3) direct interfer- ence with production, I find that the threat was based on the disfavored content of the prounion message on the sign he was wearing. I therefore find that the Company coerced Burt in the exercise of his Section 7 rights in violation of Section 8(a)(1) of the Act. Publishers Printing Co., 246 NLRB 206, 209 (1979), enfd. 650 F.2d 859 (6th Cir. 1981). On the afternoon of March 31, after the Union gave notice to the Company of its intention to strike at mid- night (Jt. Exh. 5), Supervisor Wayne Hurd approached employee Doris Jackson and asked if she would come in if the Union went on strike. She answered no, she would not come but she would not picket. (Tr. 137.) I find that the General Counsel has failed to prove that Hurd's question tended to be coercive. ]: therefore find that the allegation of coercive interrogation must be dismissed. CONCLUSIONS O.F LAW 1. By agreeing to reinstate all the striking employees employees after the strike ended , the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act: Valerie Adintori David Nelson Larry Burt Paul Pelletier Maureen Dirga George Pospisil Rodney Hoheb Ralph Toms Joseph Indenbaum Leslie Wargo Doris Jackson Clarence Wheeler Kurt Kalaus Richard Womic Warren Kalaus 2. By discriminatorily discharging the following 12 employees because of union and protected concerted ac- tivities, it violated Section 8(a)(1) and (3): Valerie Adintori Larry Burt Maureen Dirga Joseph Indenbaum Doris Jackson Kurt Kalaus Warren Kalaus David Nelson Paul Pelletier Leslie Wargo Clarence Wheeler Richard Womic 3. By discriminatorily discharging employees Joseph Indenbaum and David Nelson for being the subject of a charge filed under the Act, it violated Section 8(a)(4). 4. By threatening to suspend an employee for engaging in protected concerted activity, it violated Section 8(a)(1). 5. The General Counsel has failed to prove that the in- terrogation of an employee tended to be coercive. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having reneged on its agreement to reinstate all the strikers and refused after the strike ended to reinstate 15 employees (12 of whom must be offered reinstatement with backpay also because of their dis- criminatory discharge), it must offer the 15 employees reinstatement and make them whole for any loss of earn- ings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- but refusing since April 3 to reinstate the following 15 poses. FAIRPRENE INDUSTRIAL PRODUCTS 805 ORDER The Respondent, Fairprene Industrial Products Corn pany, Inc , Fairfield, Connecticut, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing to bargain in good faith with Fairfield Em ployees Association as the exclusive bargaining repre sentative of the employees in the bargaining unit (b) Discharging or otherwise discriminating against any employee for engaging in union or protected con certed activity (c) Discharging or otherwise discriminating against any employee for being named in an NLRB charge (d) Threatening to suspend any employee for wearing a sign with a lawful prounion message (e) In any like or related manner 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 the following employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or pnvi leges previously enjoyed, and make them whole for any loss of earnings and other benefits sufered as a result of the refusal to reinstate them, in the manner set forth in the remedy section of the decision Valerie Adinton David Nelson Larry Burt Paul Pelletier Maureen Dirga George Pospisil Rodney Hoheb Ralph Toms Joseph Indenbaum Leslie Wargo Dons Jackson Clarence Wheeler Kurt Kalaus Richard Womic Warren Kalaus (b) Remove from its files any reference to the refusal to reinstate and notify the employees in writing that this has been done and that the refusal to reinstate will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Fairfield, Connecticut copies of the attached notice marked Appendix 3 Copies of the notice, on forms provided by the Regional Director for officer in charge for Subregion 39, after being signed by the Respondent'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 cus tomanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de faced, or covered by any other material (e) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the complaint is dis missed insofar as it alleges violations of the Act not spe cifically found ' 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