Kenrich Petrochemicals, Inc.

KENRICH PETROCHEMICALS Kenrich Petrochemicals, Inc. and Local 8-406, Oil, Chemical and Atomic Workers International Union, AFL-CIO and Karen McPartlan and Barbara Knorowski . Cases 22-CA-15105, 22- CA-15258, and 22-CA-15319 May 31, 1989 DECISION AND ORDER 13Y CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On December 30, 1988, Administrative Law Judge Steven B. Fish issued the attached decision. The Respondent filed exceptions and a supporting 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 conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board, adopts the recommended Order of the administrative law judge and orders that the Respondent, Kenrich Pe- trochemicals, Inc., Bayonne, New Jersey, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings To the extent there are inconsistencies in the testimony regarding the 8(a)(1) statements made by the Respondent's president (Monte), we note that the judge's findings on these issues reflect his implicit crediting of the testimony that supports those findings 2 In adopting the judge's conclusion that the Respondent violated the Act by discharging Helen Chizmar, we agree with the judge that the as- serted conflict of loyalty argument was pretextual (a finding that but- tresses the evidence that she was discharged for antiunion motives) and that the Respondent failed to establish a legitimate reason for the dis- charge Robert T. McGovern, Esq. and Maria Balzano, Esq. for the General Counsel. William A. Behan, Esq. (Norris, McLaughlin & Marcus), Somerville, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN B . FISH, Administrative Law Judge. Pursuant to charges filed by Local 8-406, Oil, Chemical and Atomic Workers International Union, AFL-CIO (the 519 Union or Local 8-406), and by Karen McPartlan and Barbara Knorowski individuals, in Cases 22-CA-15105, 22-CA-15258, and 22-CA-15319 respectively, the Re- gional Director for Region 22 issued an order consolidat- ing cases, second amended complaint and notice of hear- ing on December 8, 1987.1 Said complaint alleges that Kenrich Petrochemicals Inc. (Respondent) violated Sec- tion 8(a)(1) and (3) of the Act by promising employees a wage increase, threatening employees with loss of bene- fits, more onerous working conditions, unspecified repris- als, pushing and assaulting an employee, changing em- ployees status from part time to full time, withdrawing the use of a telephone from an employee, requiring em- ployees to present medical verification for absences, causing employees Knorowski, McPartlan, and Catherine Chizmar to be absent from work, discharging McPartlan, refusing to reinstate Knorowski, and by discharging Helen Chizmar, its office manager, because of the union activities of its employees, including relatives of Chiz- mar. The hearing with respect to the allegations raised by the complaint was heard before me in Newark, New Jersey, on January 6, 7, and 11, 1988. Briefs have been received from the parties and have been carefully considered. On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation, with an office and place of business in Bayonne, New Jersey, where it is engaged in the manufacture and sale of resins, plasti- cizers, rubber chemical dispersions, and coupling agents. During the past year, Respondent has derived gross rev- enues in excess of $50,000 from the sale of its products directly to customers located outside the State of New Jersey. It is admitted, and, I so find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is also admitted , and I so find that Local 8-406 is a labor organization within the meaning Section 2(5) of the Act III FACTS A Respondent's Operations As noted Respondent is engaged in the manufacture and sale of resins, plasticizers, dispersions, and coupling agents at its Bayonne, New Jersey location. Respondent's production employees have been repre- sented by Local 8-406 for approximately 20 years. Re- spondent also maintains an office clerical staff consisting of secretaries and clerks. This group of employees, which were under the direct supervision of Office Man- ager Helen Chizmar, consisted of seven employees as of I All dates are in 1987 unless otherwise indicated 294 NLRB No. 41 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD May 1987. Of these seven employees, Chizmar was relat- ed to -Barbara Knorowski (her sister), Karen McPartlan (her daughter), and Cathy Chizmar (her daughter-in- law). Additionally, Frank Sakowski, the father of both Chizmar and Knorowski, was a former plant employee of Respondent who organized the shop and served as the Union's first shop steward and negotiator for its first contract with Respondent. Salvatore Monte is Respondent's president and a member of the -board of directors. Erica Monte, Salva- tore Monte's wife, is a vice president and a board member as well Charles Lucania is employed as Re- spondent's vice president of operations B. The Union's Organization of the Clerical Unit In May 1987 all of Respondent's clerical employees signed authorization cards for the Union at a meeting conducted at the Union's office. Shortly thereafter, the Union sent a letter to Respondent received by it on May 22, demanding recognition and asserting that the employ- ees had unanimously selected the Union to represent them. Monte admitted that when be first received the Union's letter, he was "sort of shocked," and felt "a little betrayed." Then, according to Monte, he "looked at the players " Judy Kobryn had already given notice of her leaving, and Monte "decided that Linda Ferrano was going to be a confidential secretary, so she couldn't vote " Of the five remaining employees, he concluded that McPartlan and Knorowski being close relatives of the Union's first shop steward were not likely to change their minds about the Union. As Monte phrased it, "I fig- ured . . . the family is not going to back off from this position of going for the Union. I mean it's in the family culture." Monte believed that he could be successful in persuading employees Michelle Bobb and Marge McNal- ly from joining the Union, but was not sure about Cath- erine Chizmar. Although Catherine Chizmar was the daughter-in-law of Helen, she had expressed some disen- chantment to Monte over the years about her mother-in- law, so Monte "wasn't sure which way 'she would go." On May 26 the Union filed a petition at the Regional Office seeking to represent Respondent's office clerical employees. Shortly thereafter, in early June, after a dis- cussion with Cathy Chizmar, Monte became convinced that she would support the Union.2 Thus, he claims that he felt that since the union was going to win an election, he may as well "get on with it, and acknowledge the Union " Accordingly, on June 16, Respondent's attorney sent a letter to the Union suggesting that a card count be con- ducted, instead of a Board election. Respondent agreed therein to recognize and commence negotiations with the Union should it demonstrate its majority at the card count. - The Union subsequently rejected this alternative and insisted on an NLRB election, which was conducted on July 2. A majority of ballots were cast for the Union and a Certification of Representative was issued on July 10. C. The Discharge of Helen Chizmar As noted, Respondent received the letter from 'the Union requesting recognition on May 22. On that same day, Lucania called Helen Chizmar and some other man- agers to his desk. He showed the letter from the Union to the managers and stated that the girls in the clerical staff had all signed up for the Union. He added that Re- spondent would be "arguing that the girls were coerced into this Union, but . . . that would only buy time be- cause it was a unanimous decision by the girls." At that point Lucania turned to Chizmar and said "here read the letter, but you probably know all about it already." Chiz- mar made no response In fact, Chizmar had known about the Union's orga- nizing efforts, but had not been informed about it until May 21, the afternoon before receipt of the letter. At that time all the clericals approached Chizmar in a group, employee Judy Kobryn acting as spokesperson Kobryn informed Chizmar that the employees had "voted for a union at Kenrich," and they felt that they owed it to Chizmar to tell her Chizmar responded that she was shocked and asked why they did it. Kobryn re- plied that the employees had not received any salary in- creases for 3 years, they had no job security, and their pension had been taken away. Kobryn then added, "there's nothing you could do about it really, Helen, the letter should be here by tomorrow " Chizmar admitted that she did not inform either Lu- cania or Monte on the May 21 or thereafter the informa- tion about the Union that she had obtained. Chizmar tes- tified that she toyed with the idea of calling Monte, but after discussing the matter with her husband, concluded that it would not do any good to call, because the letter was going to arrive the next day Moreover, Chizmar felt that if she called, Monte would "think I'm involved in this." On May 29, the very day Monte received the petition from the NLRB, Monte called Chizmar into his office at the end of the day. Monte informed her that "We have to let you go, Helen. We just can't afford you anymore. You're making, we think we can get somebody, for $20,000 less and that's what we plan to do," Monte handed her an envelope containing checks for salary, va- cation, sick pay, plus 1 month's severance pay. Chizmar said thank you. As she was walking out the door, Monte stated, "You did a good job "3 That same evening a going away party for employee Judy Kobryn was held at a restaurant near the plant. While at the bar, Knorowski and Jill Bernicker, Re- spondent's buyer and an admitted agent, discussed Chiz- mar's termination. Bernicker informed Knorowski that Monte stopped her in the parking lot and notified her that he had let Chizmar go. Bernicker added that she in- quired of Monte, "Why did you do that?" According to Bernicker, Monte replied, "I couldn't keep her for finan- a The above description of the conversation is based on the straightfor- ward, concise, and credible testimony of Chizmar Monte "couldn't re- member" whether he gave Helen Chtzmar any reason for her termination at the time I find this vague and imprecise response on this issue to be 2 The substance of this discussion will be detailed more fully below unpersuasive KENRICH PETROCHEMICALS cial reasons and I was not going to put up with any union bullshit." Later on the other clerical employees of Respondent, including Kobryn , McPartlan, and Cathy and Helen Chizmar, joined Bernicker and Knorowski and sat down at a table Once again the subject of Chizmar's discharge was discussed , and Bernicker repeated to the group her exchange with Monte , as related above. The above recitation of these discussions is based on the mutually corroborative and consistent testimony of McPartlan, Knorowksi, and the Chizmars Bernicker, for her part, admitted making the above observations about Chizmar's discharge, but asserts that these comments merely reflected her opinion . She could not recall whether she had spoken to Monte about the reasons for the discharge or whether she related to the employees what Monte had said about such action. I find her vague and disingenuous testimony on this matter not to be credible, and find, as set forth above, the mutually cor- roborative testimony of the employees to be accurate.4 Sometime in June, Monte had two conversations with Cathy Chizmar, during which the subject of Helen Chiz- mar's discharge arose. The first conversation occurred after Cathy Chizmar had expressed her concern to Lu- cania that her job might be in jeopardy, in view of what had happened to Helen Chizmar as well as McPartlan and Knorowski 5 Lucania responded that Cathy Chizmar did not have to worry about being fired. A few minutes later, Monte called Cathy Chizmar into his office. After assuring Chizmar that he had no inten- tion of discharging her, he asked why she felt that way. Chizmar mentioned Helen Chizmar 's termination Monte replied, "well, you know, I see what goes on with Helen Chizmar, what went on with Helen Chizmar. . . . You know I had to fire Helen because she couldn't do the technical end of the job." Monte then began discussing the union situation 6 After lunch on that same day, Monte spoke to Cathy Chizmar in the parking lot. He said to her, "You know, Cathy, I have to watch what I say to you. You know, you're protected by law, I can't fire you." Monte then added- "You know why I have to fire Helen Chizmar, because I couldn't afford her . . . and because no matter what I did for her she was never happy." Monte testified on behalf of Respondent , that he made the decision to terminate Chizmar, and set forth his al- leged reasons for his action. Monte testified that he dis- charged Chizmar because he felt that the appearance of the Union created a conflict of interest between Chiz- mar's obligations to management and her family loyalties. As Monte phrased it, "I had a conflict of interest that she was going to represent me as management managing an office There was a fox watching the chickens. You 4 I note that Bernicker testified as to the basis of her opinion that Chiz- mar was fired because of the "union bullshit " She stated that Chizmar's three relatives worked there , and "I know I come from a close family, with three people doing something, I think I'd know about it That was common sense to me " s As will be detailed below , Respondent had dust changed the hours of McPartlan and Knorowski to full time 6 This portion of the conversation will be detailed below 521 can't have a fox watching the chickens , that was the conflict. Can't have it " Monte explained further that in his view there was no way Chizmar could properly represent him managing an office full of relatives . He pointed out, "how could she sit across the bargaining table as a mother of a daughter and daughter in law and insist on representing manage- ments rights " He added that he would not feel comfort- able discussing bargaining strategies with Chizmar, where he felt she would then discuss these matters with her relatives As support for his belief that such a conflict would occur, Monte points to a history of complaints that he has received over the past few years, that Helen Chizmar had shown favoritism to her relatives in the performance of her supervisory responsibilities . According to Monte, he had been receiving complaints from employees direct- ly, and through his wife Erica, since April 1986 , accus- ing Chizmar of giving preference to her relatives in job assignments and other personnel matters. In fact, Monte asserts that these problems caused some of his employees to quit Respondent's employ, including his private secre- tary, Donna Matta, in April 1986.7 Moreover, Monte further asserts that later on in 1986, he spoke to Cathy Chizmar, who at that time had not yet become Helen's daughter-in-law. Cathy Chizmar (at that time Strifilino) allegedly confirmed to Monte that Helen Chizmar was playing favorites in her assignments , and in fact referred to Helen Chizmar as a "no good two faced phony." According to Monte, these kinds of complaints and problems about Helen Chizmar continued from April 1986, to the time that he discharged her. Monte admits that he never spoke to or confronted Chizmar with these allegations that were made about her because he claims that Helen "would deny it," and because , "Helen had been with me such a long time that I still viewed Helen as management , and these were just staff people bitch- 11 ing Monte claims that as a result of these complaints, he began to think about terminating Chizmar because of the divisiveness that she was causing in the office , but he did not do so because "the job was getting done." As Monte testified, "I mean they got the letters out, they got the orders in, everything was being done, so it is office crap, let it go." Additionally Monte testified that he felt that he needed "a real bonafide reason " to fire her, and that "if someone has been with me a while it takes a lot to get me to fire somebody." According to Monte, when he received the Union's recognition demand on May 22, "in my mind at that point she was pretty much gone." Monte continued, "be- cause I cannot conceive of her receiving that notification and having that clerical unit form without Helen know- ing about it. Just impossible." T Linda Ferrano, Matta's replacement as Monte's secretary , testified and confirmed that she believed that Helen Chizmar gave her assign- ments that she thought should have been given to other employees, in- cluding Chizmar's relatives She also confirmed that she had on various occasions since April 1986 , registered complaints about her beliefs in this regard to both Sal and Erica Monte 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. The Change in Hours for Knorowski and McPartlan On June 1, the next workday after Chizmar's dis- charge, Monte notified McPartlan and Knorowski that, starting the next pay period, their previous part-time status would end, and their hours would be 8.30 a.m to 5.30 p.m. Monte informed them that he did not want any more part-time employees working for Respondent Knorowski began her employment at Respondent in 1962 as a full-time employee, and she continued on that basis until 1967, when she left the job to have children She returned to work in 1972 on a consultant basis pur- suant to a request by Monte, and she left to have a an- other child in 1974 She returned to work in 1975 and began working 4 hours a day In 1979 when her smallest child began school, her hours were increased to 6 hours a day (8:30 a.m. to 2.30 p m.), which continued until June 1 1987, when the change was made to full time by Monte. Over the years Knorowski had mentioned to both Lucania and Atlas, the controller, that she needed to work part time because of her family situation. Sometime in 1986, Lucania asked Knorowski if it was possible for her to work more hours. Knorowski replied that she could not do so at the present time. Lucania re- plied, "0 K." McPartlan began her employment with Respondent in 1975 in the summer, and thereafter worked flexible, part- time hours while she was attending high school and col- lege She left in 1980 to have children In 1983 Monte requested that she return to work on an as-needed basis. She continued to work in that manner until May 1984, when she met with Lucania to discuss becoming a regu- lar employee.8 During this meeting it was agreed that McPartlan would become a regular employee, eligible for benefits, but with a flexible part-time schedule of a minimum of 20 hours per week Lucania at the time told McPartlan that Respondent wanted full-time employees and that eventually wished to have her work full time She replied that she was only capable of working 20 hours per week because of her small children, and would only agree to work these hours. Subsequently, at various times, both Monte and Lucania would ask her if she could work full-time hours, but she declined, reminding them that she could not do so due to her children Lu- cania and Monte replied okay, but asked if she could put in more hours on occasion. She would comply with these requests when she could do so, and was able to put in more hours when she could make accommodations for her children. On September 24, 1986, Lucania on behalf of Re- spondent issued a memo entitled, "Personnel Policies and Secretaries." The memo includes various items such as lunch periods, vacations, holidays, as well as an an- nouncement that all employees are to work a regular schedule with no individual flex-time permitted. According to Monte, this portion of the memo was generated by complaints to him from Dr. Sugarman, for whom McPartlan acted as secretary. He allegedly com- plained to Monte at that time that he never knew when 8 Previously she had been paid "off the books " McPartlan was going to be around Thus Monte felt that he would eliminate the prior practice of flex-time hours. Accordingly, on September 30, 1986, Helen Chizmar in response to Lucania's memo, issued a new schedule setting forth the hours of certain employees. This memo indicated hours for Maryellen Wierzbicki of 8:30 a.m. to 5 p m., with 1 hour lunch, Knorowski of 8:30 a.m to 2:30 p in. with no lunch, and for McPartlan 9 a.m. to 3 p.m. with no lunch. This represented no change in hours for Knorowski, as she had previously been working this same schedule The record does not disclose what Wierzbicki's schedule had been prior to this memo being issued. McPartlan had been working a flexible schedule, guaranteeing Respondent 20 hours per week, but in reality she would usually work more hours, averaging close to 30 hours a week. The decision to change the hours of McPartlan and Knorowski from part time to full time was made by Monte, without consultation or discussion with Lucania, Respondent's vice president of operations Monte testified that he eliminated the part-time hours of Knorowski and McPartlan because their part-time status had been viewed "by everyone" as another exam- ple of favoritism for Chizmar's relatives. Moreover, he had always wanted to have all employees working full time Therefore since he had terminated Chizmar, there was no longer any "obstacle" to his carrying out his desire to eliminate the use of part-time employees E Monte's Efforts to Dissuade Employees From Supporting the Union As set forth above, on receiving the Union's demand, Monte after looking "at the players" calculated that McPartlan and Knorowski as close relatives of the Union's first shop steward, would not "back off' from supporting the Union. Because he had concluded that Ferrano would be his confidential secretary, and Kobryn was leaving, this left Cathy Chizmar, Bobb, and McNal- ly as employees who Monte felt could be dissuaded from supporting the Union. After consulting with his attorney about to what he could say, Monte called a meeting of these three employ- ees on June 3 Also present were Lucania, Erica Monte, and Eric Spielgelhalder.io Monte began the meeting by announcing that he was recording the meeting, on advice of counsel, so that nothing he says will be misinterpreted. He then men- tioned that the law allows him to designate a confidential secretary, and he had chosen Linda Ferrano for this po- sition. Therefore she will not be participating in the elec- tion process Thus the election will involve the three em- ployees present, plus McPartlan and Knorowski. 9 I note that Lucania appeared to be responsible for personnel matters such as this type of action Indeed, the memo sent out by Respondent on September 24, 1986, dealing with various personnel policies such as vaca- tion, lunch, overtime, holiday, plus a new rule eliminating flexible hours was issued by Lucania 30 Spielgehalder was Respondent's founder, and the father of Erica Monte, but whose role in running the Company had been passed on to Monte KENRICH PETROCHEMICALS Chizmar asked, "shouldn't they be included in the meeting?" Monte replied that it was his right as a manag- er to talk to who he wanted to Monte continued by stating , "I can't make any threats or any promises under federal law, that 's the law. I can't threaten you, I can't promise anything because the proc- ess has to go forward without any encumbrances on your free will or your right to make your own decision, that's the law, so my hands are tied " Monte added that "I have to ask you and I want you to know that I want you to vote against the Union " Monte then proceeded to remind the employees of the austerity program that Respondent was going through, emphasizing the economic problems, calling of bank loans and the fact that management officials including Monte himself had taken a 20-percent pay cut. During the course of the meeting Monte made two references to the possibility of Respondent granting its employees a 7-percent wage increase He prefaced the first reference to such a possibility by mentioning that Respondent was not showing a profit yet and was dust about breaking even. Monte then continued: But its been my goal all along that once we hit 1.2 million dollars a month in 1987, I was going to give everybody a 7 percent raise and you can vouch it by asking Erica, you can ask Charlie, its a figure I have had all along I even told you that once Cathy a couple of months ago that I had a 7 percent raise in mind. Remember you said you needed a raise? Chizmar then responded, "Yea, you didn't use, [sic] all you said to me was yea I need one too. That's all you said to me " Monte answered, "Well I was trying to let you know I need one too. I would like to institute some raises in the Company." At that point Monte returned to discussing problems Respondent was having with its bank loans , and referred to the fact that he had recently hired new salesmen in order to increase sales. He then returned to discussing the raise question: So I was planning to give you guys a 7 percent raise once the sales hit 1 2 million dollars a month in 1987. That's been my plan and that's been my goal, even ask Erica I've been saying it all along, when we hit 1.2 million I'm going to gave the people 7 percent, we never hit. We never hit, the last time we hit 1 2 million was April of 86, and that was after coming off of this disastrous March and that's the truth and that's what I had in mind and that's what I still have in mind. So that is not a promise nor a threat that is merely a statement of fact. I have to talk this way. I'm asked each of you personally to vote against the union. If what I'm telling you isn't true and it's bullshit then you can always vote the union later. But what I'm telling you is the truth if you don't believe that and you find that I'm not telling you the truth than you can make that judgment and you can always vote a union that 's your, right. But I 523 have never lied to anybody here as far as I know consciously ever. I don't say one thing and do another. I don't promise unless I can deliver . That's my nature I'm a very honest person. Okay Monte proceeded to again ask for a vote against the Union, and again emphasized "like I said I can't promise, I can't threat [sic] I just stated the facts of the position of the Company." Monte concluded the meeting by repeating that Fer- rano was going to be his confidential secretary and "she has nothing to do with this whole process, so you don't have to worry about whether she is going to go for this side or that side and everybody's got to play games be- cause I have that right and that 's the law " Finally, Monte asked the employees if they would join him for lunch. They all declined his invitation. According to Respondent 's witnesses, Monte and Lu- cania, the decision to grant a 7-percent wage increase when sales reached $ 1.2 million per month was made by management in August 1986 Moreover they contend that this decision was communicated to employees and management at various meetings and in individual con- versations over the succeeding year, and well before the Union's organizing They further assert that the matter was "common knowledge" around the shop, to the extent that employees would constantly be checking the sales book which was available on Cathy Chizmar's desk, to see if the threshold was being reached Helen Chizmar, one of General Counsel's witnesses, essentially corroborated the testimony of Lucama and Monte that it was "common knowledge" around the shop that employees would be receiving a raise when sales hit $1 2 million per month and that employees would come by the sales book, look at it, and say "ok I can't wait till we hit $1.2 million." Lucania specifically testified that he personally notified a number of employees about this matter, including Kobryn, Wierzbicki, McNally, and Knorowski Knor- owski, although a General Counsel witness, did not deny Lucama's testimony in this regard, and furnished no testi- mony on this subject. Cathy Chizmar was the only General Counsel's wit- ness to testify about this issue, and she denied knowing anything about Respondent 's alleged announcement that a raise would be given when sales reached $ 1.2 million. In fact she asserts that when she previously asked Monte about a raise, he did not tell her about such a scenario and merely responded that he would like a raise also. I credit Respondent's witnesses with respect to this issue, and conclude that Respondent had formulated and disclosed to its staff well before the Union 's appearance, its position that a 7-percent raise would be granted to employees when sales reached $1 2 million per month. I rely particularly on the testimony of Helen Chizmar, General Counsel's witness and alleged discriminatee, who substantially corroborated the testimony of Lucama and Monte in this area . Moreover I note that McPartlan and Knorowski, two other of General Counsel's wit- nesses who testified in other matters , furnished no testi- 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony in this area, and did not deny the assertion that the proposed raise was "common knowledge" in the shop." As detailed above, Monte called Cathy Chizmar into his office after being told that she had expressed fears of being terminated in view of the recent treatment accord- ed to her relatives. After assuring Cathy Chizmar that he had no intentions of firing her, and explaining why he had fired Helen Chizmar, Monte began to discuss the Union. He said to her: If you vote in a union you have to start from scratch. No benefits, no salary, no vacations ... . Both sides have proposals and if you don't like our proposals you have the right to go on strike. . . . I don't know if you know it, but if a union ask you to go on strike, you have to go on strike. And if you go on strike I have the right to replace you and that's the only time I can see somebody sitting at your desk Monte then asked Chizmar, "how would you like to punch a time clock?" Chizmar responded, "Sal, it wouldn't bother me " Monte concluded the conversation by saying that the "Union doesn't really know how to negotiate for an office staff." As is also detailed above, Monte spoke to Cathy Chiz- mar in the parking lot later that same day, and again dis- cussed Helen Chizmar's discharge. After completing his remarks about that subject, Monte continued, "you know what the worst thing that can happen to Kenrich, is the union would come in, because, you know I'm the Presi- dent of the company and I know what's best for the company." Chizmar responded that all the employees had agreed "together as a whole" to join the union, and "there was no leader." F The Events of June 18 Monte testified that he believed that his efforts to per- suade Cathy Chizmar to withdraw her support for the Union were not successful Thus, as noted above he au- thorized his attorney to send a letter to the Union dated June 16, proposing a card check. On June 14, Monte's father died in Florida. While Monte was in Florida for the funeral, he received reports from his wife that employees in general, and Knorowski in particular, had been attempting to persuade Linda Ferrano to support the Union. These reports particularly annoyed Monte, since he contends that he thought the matter had been resolved by his sending the letter to the Union and that it would be agreed that Ferrano was his confidential secretary. Monte admitted in reference to Knorowski's attempts to persuade Ferrano to join the Union, "that really, that frosted me." Thus, on June 18, Monte arrived at Respondent's office about 8:30 a.m. Knorowski approached Monte as he was walking towards her in a narrow corridor, i 2 sur- rounded by file cabinets on both sides. Knorowski reached out, clasped Monte's hand, and offered her con- dolences on the death of his father. Monte pushed her hands away from his, thereby knocking her into the filing cabinet He said to Knorowski, "I don't want your fucking condolences " Knorowski then came off the cabinets, and Monte bumped her shoulder with his shoul- der as he continued walking, and Knorowski again was knocked against the filing cabinets. Knorowski began to cry hysterically, and claimed, "he hit me, he hit me." Monte admitted that he rejected Knorowski's condo- lences because he felt that her sympathy was not ex- pressed sincerely in view of her union activities while he was away mourning his father. As Monte expressed it, "the so called application of sympathy flew in the face of her behavior pattern while I was away bereaving my dad." Knorowski at that point went back to her desk, still crying and holding her side. Cathy Chizmar asked Knor- owski what happened, and she replied "Sal pushed me against the filing cabinet." Knorowski also informed Chizmar that she had offered her condolences to Monte, and he had pushed her against the filing cabinet and said, "I don't need your fucking condolences." Chizmar told Knorowski to calm down, and tried to contact Bob McLean, the shop steward for the plant em- ployees. At that point, Monte came into the office and, seeing Knorowski still crying, said to her, "what the hell's wrong with you." Chizmar then asked Monte why he had pushed Knorowski. Monte replied to Chizmar, "it's none of your fucking business." Chizmar then told Monte that he should not have pushed Knorowski, and accused him of being a "hypocrite" and a "bastard " Monte then came right up to Chizmar's face and said "if you don't like the way I run my fucking business, get the fuck out, I don't need you." With that Monte vio- lently pushed a three-tier bin filled with papers off her desk onto the floor causing the papers to go flying Monte then proceeded down the hallway about 15 feet away from Knorowski, who was at her desk and still crying. Monte turned to Knorowski and said to her, "why don't you cry somewhere else you, fucking cunt " McLean, the shop steward, then entered the area. Chizmar informed him that Monte had pushed Knor- owski up against the filing cabinets and had called both Knorowski and Chizmar some rather foul names. McLean approached Monte and asked him what hap- pened. Monte replied, "You know what happened, It's got to do with this fucking Union." McLean requested that Monte take it easy, and spent sometime consoling Knorowski, who was still sobbing He then went out to call Al Ferrante the union president At that moment Monte came back into the office and said to the employees, "you don't know what your get- ting yourself into by bringing in a fucking union." Meanwhile McLean called Ferrante from the produc- tion office and reported what had occurred. Ferrante ad- " Indeed, Lucania testified without refutation that he told a number of employees, specifically Knorowski, among others, about Respondent's policy in this regard I2 The corridor is 35-3/4 inches wide It is not disputed that it is not possible for two people to pass each other in this corridor, without one of the individuals stepping aside KENRICH PETROCHEMICALS vised him to take Knorowski and Chizmar out of the building. Ferrante advised McLean that he would call Knorowski himself and make that suggestion. Ferrante then called Knorowski at her desk. As she was explaining to Ferrante what Monte had done, Monte went over to Knorowski, pointed his finger in her face, pounded on the desk, and yelled two or three times, "Are you on a fucking personal phone call?" Finally, Knorowski looked up and said no. Ferrante who heard Monte's screaming, advised Knorowski that in view of Monte's yelling and screaming it would be best if she and Chizmar leave the premises. Knorowski got off the phone and asked Monte, "why did you do that to me? All I said to you was I'm sorry for your father passing away." Monte replied that he could not grieve right for his father with all the "fucking union bullshit that was going on " Monte then walked into his office. Knorowski in- formed Chtzmar that Ferrante had advised that in view of Monte's behavior, they both should leave the prem- ises. Chizmar agreed, particularly since her heart and her head were pounding and she had suffered from high blood pressure for 5 years. She felt that "there was no way I could sit in that office after Sal was in such a rage, all day long." Knorowski and Chizmar notified Lucania that they were not feeling well and were going home Lucania re- plied, "You have to do what you have to do." As Knorowski and Chizmar were leaving, Monte came out of his office and confronted Chizmar He screamed at her, "Where the fuck are you going?" Chiz- mar responded that she was going home and that she didn't feel good. Monte answered, "you're not fucking sick." Chizmar replied that she was sick and added, "I don't have to stay here and take your abuse" Monte concluded by saying, "I'm telling you right now, if you go home, I'm not paying you for the fucking day." Knorowski and Chizmar left the premises without fur- ther incident or discussion. Later on that same afternoon, shortly before 2 p.m., Lucania received phone calls from employees NcNally and Bobb. They each informed Lucania that they were sick and were not returning to work from lunch.13 That same afternoon, McNally called Ferrano on the phone and advised her that someone from the Union had sug- gested that all the clerical employees go home because of the events that had occurred earlier in the day. Ferrano did not go home early, however, and stayed until the end of the day. She did not report her conversation with McNally to anyone from management. 14 G. The Removal of McPartlan's Telephone As noted, McPartlan was on vacation during the week including June 18, the date of the incidents described above involving Monte, Chizmar, and Knorowski. McPartlan returned to work on June 22. On her next working day, June 23, she discovered that the handset is McPartlan was on vacation during this week 14 The above description of the events transpiring on June 18 is de- rived from a synthesis of the credited testimony of Knorowski, Chizmar, Monte, Lucanta, Ferrano, and McLean 525 from her telephone was missing. She asked her cowork- ers and Lucania if they knew anything about why her re- ceiver was missing They did not, but Dakwala, the plant manager, gave her a spare which she plugged into her phone. A few minutes later, Monte came over to her and said, "I'm the one who pulled that telephone out. I don't want you to have a phone. Pull that thing out" McPartlan protested that she needed a telephone to do her work Monte replied that if she needed to make calls for busi- ness such calls could be arranged, and repeated his in- struction that she pull the phone out. Monte walked out. McPartlan tried to call the Union, but Monte walked back in, so she hung up the phone. Monte stated, "I told you to pull that thing out." McPartlan again insisted that she needed the phone for work, and added that if there is a fire, she would need a phone to call for help. Monte left and came back again and once more ordered McPartlan to remove the phone. She refused Monte then reached over and yanked out the receiver himself McPartlan at that point went to Lucania and com- plained about Monte removing her phone. She told him that she needed the phone and it was a fire hazard. She added that she was also afraid of being assaulted. Lu- cania replied that no one is going to assault her. McPart- lan responded, "well it happened last week " As for the fire problem, Lucania responded that it was his responsi- bility as vice president of operations to notify the fire de- partment in the event of a fire McPartlan left Lucania's office and called the Union on the pay telephone. She reported the incident to Demski of the Union, and advised him that she was upset and was "afraid to sit back there without a tele- phone." Demski asked if she had any sick time. She re- plied that she did. Demski suggested that if she was upset, she should go home. McPartlan then went to see Lucanta, and advised him that she was taking a sick day, that she was upset and could not work, and that she was going home. Lucanta replied, "you got to do what you got to do " As she was heading out the door, McPartlan encoun- tered Spiegelhalder. McPartlan complained to Spiegel- halder, that "it was a disgrace what's going on around here." She added that she was not going to "sit back there without a phone," and mentioned that she was not going to be the next person assaulted. When Spiegel- halder appeared puzzled by her remarks, McPartlan told him to go into Monte and "ask him what he did to my aunt last week." Lucanta then took Spiegelhalder into the office. As McPartlan was walking through the front office, Erica Monte instructed McPartlan to make sure and bring a doctor's note when she returned. McPartlan said okay and left the premises. Monte testified that he made the decision to remove the telephone privileges from McPartlan. He contends,"for a period of days immediately preceding that Karen was making extensive use of the telephone .. . and obviously not company business . . . I just felt that she was abusing the privilege of the phone." As to the basis for his belief that McPartlan was "abusing 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the privilege," Monte testified that he was informed at the dinner table by his daughters and his wife that they observed her making what appeared to them to be per- sonal calls They allegedly asserted that with respect to McPartlan , they observed her whispering and that she would hang up the phone when they tried to find out if the call related to business .' 5 Monte admits that he did not know who McPartlan was talking to on any of these calls, but claims that he thought she was talking to her mother, to the Union, or to Knorowski or Cathy Chiz- mar It is also undisputed that Respondent did not have any rules or policies about using the phone for personal calls, and that neither Monte nor any management official ever spoke to McPartlan or warned her about using the phone for personal calls. McPartlan's phone was returned without explanation by Monte around July 9 H Respondent 's Requirement that Employees be Examined by a Company Physician As outlined above, Chizmar and Knorowski left Re- spondent's premises after their "confrontation" with Monte on June 18. On June 19 and 23, Knorowski's hus- band called Lucania , notified him that Barbara was ill and under a doctor's care . He did not know when she would be returning to work and that a doctor's note would be mailed in. Chizmar was examined by her own doctor on June 19 She sent a letter to Respondent dated June 19, with a note from her doctor attached . The letter indicated that on June 18 she had become "ill and had to leave the office due to the unprovoked and violent conduct of Sal- vatore Monte " The letter added that her condition did not improve on Friday, June 19, and she had to seek medical atten- tion The letter from her doctor certified that he examined Chizmar on June 19, and that she is unable to work through Thursday June 25, "due to an acute exacerba- tion of her hypertension and an anxiety related situa- tion." McPartlan as also noted, left work after her "confron- tation" with Monte with regard to her telephone on June 23. On that same day, Respondent sent mailgrams to Chiz- mar, McPartlan, and Knorowski , followed up by a clari- fying letter, dated June 24. In substance , these correspondences indicated that Re- spondent did not accept the employees claims of illness- es, and that it believed that they were engaged in "con- certed activity against Kenrich " Accordingly , the employees were told that they will not be paid for any lost time unless they were examined by the company doctor, Dr. Richard Williams, on Thursday , June 25 at 2:45 p.m. at his office. On June 23 , Lucania sent a telegram to Dr. Williams, asking him to examine the employees to "verify their al- leged continuing illness." The telegram continues, "we 15 Monte had three daughters who worked part time at Respondent Neither Erica Monte nor any of Monte 's three daughters testified are currently involved in an attempt to unionize our office clerical staff and we believe these two 's individ- uals are involved in a job action to seriously hamper company operations." McPartlan reported to work on June 25, without having received any correspondence from Respondent about the appointment . She brought , as she had been in- structed by Erica Monte, a note from her own doctor This note indicated that McPartlan was examined by him, her condition was diagnosed as "acute gastroenteri- tis"' 7 and that she could return to work on June 25 She gave the note to Erica Monte when she arrived. Ten minutes later Lucania handed her a copy of the letter described above, which had been sent to her con- cerning the doctors appointment on that afternoon. McPartlan questioned why she had to see a company doctor because she had brought in a doctors note, and was ready to work. Lucania replied , "You got to go the doctor." McPartlan said 0 K. and went to see the doctor as ordered. Each of the three employees was examined by Dr. Williams on June 25. He gave each of them a document entitled "Disability Certificate " For Knorowski, the note stated that she was partially incapacitated from "June 18 to indefinite," with a diagnosis of "acute anxie- ty neurosis." The note adds that Knorowski was referred to Psychiatrist Dr. Jacoby as soon as possible. Chizmar's note indicates her period of incapacity to be June 18 to 25 . Under remarks, the note reads "Hyperten- sion Controlled . DX Anxiety State " As for McPartlan, her note from Dr. Williams sets forth her period of incapacity from June 23 to 25, with a diagnosis of "gastroenteritis " On receiving these notes from the employees, Re- spondent paid them for the sick days that were due them. Respondent had no past practice, policy or require- ment that employees either bring in doctors ' notes or see the company doctor when they are out sick. In this connection , Lucania testified that normally the "Company doctor," is used to examining plant employ- ees when they are hired . He admitted that the Compa- ny's doctor had not been used in the past to examine clerical employees. The reason that Respondent allegedly chose to require McPartlan, Knorowski, and Chizmar to see Dr. Williams was explained by Lucania . He contends that the action was taken because each of the three employees had left work immediately after incidents involving Monte, and none of them appeared to be sick when they left There- fore, Lucania asserts that Respondent believed that the employees were engaged in a concerted sick out,' 8 and "The The telegram only referred to Knorowski and Chizmar because McPartlan apparently had not at the time as yet been included in the group that Williams would examine '7 Mcpartlan admitted that her sysptoms, i e , "diarrhea", did not de- velop until after she went home on June 23 18 As further support for this belief, Respondent notes that on June 18, the afternoon of the confrontation between Monte and Chizmar and Knorowski, employees Bobb and McNally called in sick and did not return from lunch These two employees did report for work the next Continued KENRICH PETROCHEMICALS wished-merely to verify that they were truly sick in order to be eligible for sick pay. I The Discharge of McPartlan As detailed above, McPartlan's hours (along with those of Knorowski), were changed on June 1 from part time to full time She was able to adhere to that schedule for the months of June through August, due to a combi- nation of factors such as her own vacation and the fact that her children were attending summer camp. Meanwhile, after the Board election certifying the Union as the collective-bargaining representative of the employees, McPartlan was selected as shop steward and a member of the Union's negotiating committee. On August 7, the Region issued its initial complaint in Case 22-CA-15105, alleging in part that Respondent has violated Section 8(a)(1) and (3) of the Act by changing the hours of employees on June 1 from part to full time. McPartlan admitted that she was aware of the issuance of such complaint In September, when her children resumed school, McPartlan could no longer adhere to an 8 30 a.m. to 5 p.m. schedule. Thus, she spoke to Monte about her prob- lems. She explained her difficulty in so doing, and point- ed out the past history of her being permitted to work part-time hours Monte responded, "Well you know, Karen I would really like to help you out but I can't . . With all this Union stuff that's going on there's no way I could help you. . . . "I've been advised by my lawyers that I can't make any kind of agreement with you outside of the collective bargaining agreement." McPartlan then decided to send a letter to Respondent dated September 11, with copies to the Union. The letter reads, "confirming our arrangement of May 2, 1984 which was later reaffirmed in writing on Septem- ber 30, 1986, please note on the payroll records that I will once again resume my school year hours of 9:00 a.m. to 3.00 p in effective September 14 1987." Respondent responded in a letter dated September 14. The letter was handed to McPartlan on September 14 by Erica Monte, as well as being sent to her by mail As Erica Monte handed McPartlan the letter, she added, "I'd just like to reiterate that your hours are 8.30 to 5 00 o'clock " McPartlan replied, "those aren't my hours, they were always 9.00 to 3 00 " The letter acknowledged receipt of McPartlan's letter which Respondent charac- terized as a request to change your working hours The response was, "your work hours are and continue to remain 8.30 a.m to 5 p.m., Monday through Friday. We expect you to be present during these hours " On September 15, McPartlan arrived for work at 9 a.m. She discussed with Monte Respondent's letter char- acterizing her letter as a request to change her hours She asserted to him that she was not asking him to change hours, but just to stick to the schedule that had been agreed on That same day Monte handed McPart- lan a letter reiterating Respondent's position that her day, June 19 These two employees were not required to be examined by Dr Williams because, according to Lucama, these employees were not paid for the afternoon that they were out 527 hours were 8.30 a.m. to 5 p.m and that Respondent did not "at this time, have a need for part time workers." McPartlan left work at 3 p in on September 15. On September 16, she again reported at 9 a in and left at 3 p.m These actions of McPartlan resulted in two warning letters being sent and or handed to McPartlan, emphasiz- ing that her hours were 8:30 a.m. to 5 p.m., and threaten- ing disciplinary action, including discharge, if she contin- ued to report to work late and or leave early On September 16, McPartlan responded by letter, again with copies to the Union. McPartlan acknowledges receiving Respondent's letters, and continues, "as you are well aware, my work schedule since May 1984 has been 9:00 a.m. to 3.00 p in If you insist on me working from 8:30 a.m to 5:00 p.m., you will force me to leave After all our years of a good relationship I would ask you to reconsider because I really think what you are doing is an unfair labor practice." The response to this letter was a discharge letter dated September 17. This letter noted that McPartlan once again, on September 17, worked from 9 a in to 3 p in., in "flagrant disregard of company rules." Therefore, Re- spondent characterized this as "willful misconduct, which the company can no longer tolerate." Thus, McPartlan was terminated "effective immediately " During this period of time, the Union was conducting negotiations with Respondent concerning the plant em- ployees, which, as noted, the Union also represents. During the course of these negotiations, Ferrante, the union president and its chief negotiator, brought up the subject of McPartlan's discharge. Monte responded that he was going to get rid of the whole family. Respond- ent's lawyer told Monte to be quiet.19 On September 28, the last day of the contract, the plant employees voted to strike Respondent. The parties continued negotiating on that day, and the Union made two demands to settle the contract and call off the strike. The demands were a "sympathy strike" clause and McPartlan's reinstatement to her job at her prior part- time hours of 9 a.m. to 3 p.m. Monte agreed to these de- mands, and the strike was called off McPartlan was notified on September 29 to return to work at her part-time schedule on September 30. She re- sumed work on that date at a schedule of 9 am to 3 pm J. The Refusal to Reinstate Knorowskz As discussed supra, Knorowski did not return to work after her alleged "assault" and confrontation with Monte on June 18 As also noted, the disability certificate signed by the "Company" doctor diagnosed her condition as "acute anxiety neurosis" and referred her for psychiatric treatment. Respondent also received a letter from Knorowski's personal physician, Dr. Ellen Black, dated June 22, stat- 19I credit the precise and unequivocal testimony of Mclean in this regard over Monte's vague and uncertain "I don't recall that statement " I additionally rely on the fact that Lucania, another of Respondent's wit- nesses, was present at all the negotiation sessions and, although testifying on matters, gave no testimony as to this rather significant remark by Monte 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing that Knorowski is under the doctor's care, and to "please excuse her from work until further notice." Lucania then sent a letter to Knorowski, date June 26, indicating that the above letter was unacceptable, since it did not state the nature of the illness nor any expected date of return. In response to this Dr. Black replied by letter dated July 1. This response gives the diagnosis as "acute anxiety disorder. Progress is guarded." The letter goes on to indicate dates of her visits and concludes "she remains in treatment " No proposed or possible date of return to work was set forth Subsequently, Knorowski applied for and obtained dis- ability under Respondent's insurance program, as well receiving State disability payments. In connection with her disability claims filed with Re- spondent's carrier, Knorowski filled out a form in con- junction with Dr. Jacoby, the psychiatrist, dated Septem- ber 3. This form describes her sickness or injury as an "adjustment disorder with mixed features " Further, in describing how and where the "injury" occurred, the form reads, "emotional injury June 18, 1987." Finally the form sets forth an expected return to work for Knorowski as November 1, 1987. In connection with her disability claims, Dr. Jacoby filled out a questionnaire dated September 23. This ques- tionnaire revealed some of Knorowski's symptoms, "de- pression, anxiety and tearfulness" and listed as primary cause of disability, "upset over loss of fob " Finally Dr. Jacoby concluded by observing "would probably benefit from a return to work." It was also necessary for Dr. Williams, Respondent's doctor to fill out a form for the carrier, which he did, dated October 5, 1987. This form appears to describe the diagnosis as "emotional disorder," with nature of treat- ment as "psychotherapy." At another portion of the form, Dr. Williams appears to have written, "severe re- action, overriding fear of returning to work." The bottom of this form also indicates that Knorowski could resume full-time employment on November 1, 1987. On November 2, Knorowski reported to work. Lu- cania after asking how she was feeling, stated that "we have to sit down and talk." Knorowski then asked Chiz- mar to be present as the alternate shop steward. They met in Lucania's office. At some point during the meet- ing, Monte was also present Lucania informed Knor- owski that she was being laid off as of that day, because her position was filled. Knorowski questioned why her position was filled, and noted that she had seniority. Lu- cania responded that Respondent did not know when or if she was returning to work. Knorowski replied that she had filled out various doctor forms, and that Respondent knew that she would be returning to work. Lucania re- peated, this time supported by Monte, that someone had been hired to replace Knorowski, and added that if there are any future clerical openings she would be returned to work. Chizmar asked, "do you mean to tell me if somebody goes on disability and then comes back to work, they'll be out of a job?" Lucania replied if Respondent had to fill the position, the employee must go on layoff status Chizmar then brought up the case of Mike Battaglia, an came back to work and twice he was given . a job." Monte responded to this assertion, "Mike called-me up, Mike came to see me. He told me he wanted his job back. I didn't even know if Barbara wanted her job back. She wasn't in contact with me." Chizmar replied to this comment that Sal had not even given Knorowski a chance, because it hired someone 2 weeks after she was out. Monte concluded by stating, "I have no choice. I have to lay off Barbara. I have no positions open-right now." Subsequently Knorowski received a letter dated No- vember 2, from Lucania. The letter confirms the discus- sion held that day, "wherein you were advised that your former position had been filled while you were out on indefinite leave due to personal illness commencing on June 18, 1987 " The letter goes on to state that due to the unavailabil- ity of any openings, she was being placed on "indefinite lay off' and would be recalled to the next available opening in the office clerical unit. Monte and Lucania both testified to Respondent's po- sition on the matter, which essentially confirms its letter, and its conversation with Knorowski on November 1. Respondent needed to fill Knorowski's position, and it did not know whether Knorowski ever intended to return to work. Both Monte and Lucania testified that Respondent re- placed Knorowski by hiring employee Barbara Mateland as a sales order clerk on July 27. Respondent had put an advertisement in the paper on July 4. It also hired Maria Lucania as a sales order clerk on July 13.20 Respondent also hired four to five other clerical employees in June, July, and August in various other clerical positions in- cluding accounts payable, inventory clerk, secretary, and the last hire, Monte's confidential secretary on August 18 According to Monte, between the time that Knor- owski left and Mateland was hired, his daughters were sitting in Knorowski's chair-and filling in and performing her work. When Mateland was hired, his daughter, Debbie, trained her to become familiar with Respond- ent's operations Monte and Lucania discussed Knorowski's situation and concluded that they had not heard from her and did not know if she was ever coming back to work. Admit- tedly neither Monte nor Lucania attempted to contact Knorowski to see if she intended to return to work. When asked why he did not, Monte replied, "I didn't want to go near that " Monte further testified: I quite frankly didn't think she wanted to be in the same office with me anymore because of this inci- dent, that is what I think was the situation, so I didn't think she was ever coming back . . . I thought she didn't want to come back and never see me again. I figured what the hell, the desk is sitting there . . . so I had to get somebody to replace her 20 The record contains no testimony as to why Lucania was not con- employee in the lab, and pointed out that "twice he sidered Knorowski's replacement KENRICH PETROCHEMICALS Respondent's first notification that Knorowski intend- ed to return came on insurance papers filed by her in early September, in which the November 1 date was mentioned . Monte and Lucania discussed with Respond- ent's attorney what position to take when and if she ac- tually returned. They concluded that they would not offer her a position and would merely place her on a preferential hiring list Lucania testified concerning Respondent's past treat- ment of plant and office employees who were out on various kinds of disability and sought to return to work. Generally, according to Lucania, when an employee re- turns to work from disability , Respondent "in most cases;" takes the employee back when they finally recov- er. As Lucania testified, "the nature of our operations, we can be flexible and re-schedule and move people around " As for specific cases, Lucania recalled the case of Judy Kobryn, who was out of work for 6 to 8 weeks with a broken leg . During this period of time, work was brought to her home to type, her job was not filled, and she was permitted to return to work. Additionally he recalled the case of Maryellen Wierz- bicki, an accountant, who was out for 4 to 6 weeks. In her absence, a supervisor performed her functions, her job was not filled, and she was allowed to return to work Lucania also testified about employee Mike Battaglia, whose case, as noted, was mentioned by Chizmar on No- vember 2. Battaglia, a lab technician , was first out on dis- ability in the spring of 1985 for 1 year, and he was per- mitted to return. His job was not filled for the entire year because Respondent was able to perform his job with the remaining staff. Battaglia was out with a back injury on disability from February 1987 to July 1987. His position as a lab technician was filled during the period of his second disability Respondent received a letter from the insurance com- pany, dated July 24 1987, indicating that Battaglia can return to work, but at "a lighter duty than Mr. Battaglia was used to before " Respondent at that point in effect created a new job for Battaglia, as Lucania described it, as a general office gofer and chauffeur for Spiegelhalder. In fact, a memo was distributed outlining Battaglia's new duties .21 Lucania also testified about Respondent 's treatment of plant employee Cesar Gonzalez. He injured himself fall- ing off a roof, and was initially out of work on compen- sation for a year . His position was filled after 2 months, once the position had been posted . Gonzalez attempted to come back to work , and Respondent agreed to take him back if he was physically able to perform . Respond- ent was going to employ him in a different position, but he could not physically handle the job, and went back on compensation . Subsequently, the insurance company doctors recommended that Gonzalez undergo a myelo- gram . He refused this treatment. Therefore his compen- 21 Lucania admitted that there was no discussion between he and Monte about Respondent attempting to find work for Knorowski to per- form as it had done with Battaglia 529 sation was eliminated and Respondent sent a letter termi- nating Gonzalez' employment. The Gonzalez incident is the only time that Lucania can recall where Respondent ever terminated or refused to allow an employee to return to work after being out on disability. No other evidence was presented by Re- spondent that it had ever refused to permit an employee to return to work who was attempting to return to work after recovering from disability. • IV ANALYSIS A. The Alleged 8(a)(1) Statements The complaint alleges and the General Counsel con- tends that Respondent violated Section 8(a)(1) of the Act by promising during Monte's June 3 speech to employees that it would grant a 7 percent raise once sales hit $1.2 million . The General Counsel argues that these com- ments were "undertaken with the express purpose of im- pinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). I do not agree I have found above, consistent with the testimony of General Counsel 's own witness Helen Chizmar , as well as Respondent's witnesses , that Respondent had formu- lated a plan to grant a 7-percent wage increase when sales reached $1.2 million per month, well before the advent of unionization . Moreover , and most significantly this plan was announced to Respondent 's supervisors and employees , and had been as Helen Chizmar herself ad- mitted a "matter of common knowledge " in the shop. In these circumstances, Monte's reference to this possible increase although raised in the content of an antiunion speech, was merely a reaffirmation of and a reminder to its employees of its previously announced plans to grant the increase when sales reached a certain level. There- fore, these remarks are not violative of the Act Car- tridge Actuated Devices, 282 NLRB 426 (1986); Clark Equipment Co., 278 NLRB 498, 500 (1986). The General Counsel also alleges that Monte's plea to employees that they "can always vote the union in later," if they later learned that what he was telling them was not true, is also violative of the Act. S.L. Industries, 252 NLRB 1058, 1076 (1980); St. Francis Federation of Nurses v. NLRB, 729 F.2d 844 (D.C. Cir 1984) Once again I do not agree with the General Counsel's position I find Monte's remarks in this regard to be too vague to rise to the level of illegal promises of benefit. These kinds of statements are within the limits of permis- sible 8 (c) statements . National Micronetics, 277 NLRB 993, (1985); Clark Equipment, supra; at 500 Indeed, these statements cannot reasonably be con- strued as a promise to show "responsiveness to employ- ees' dissatisfaction which led them to seek representa- tion " Cf. S. L. Industries, supra at 1096. It is clear from the context of Monte's statements that his reference to "if what I'm telling you isn't true," deals with his previ- ous discussion of the 7 percent wage increase. Thus, be- cause I have already concluded that Monte's promise to grant the increase when and if sales reach $1.2 million 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not unlawful, then it follows that his plea to in effect "vote the union in later," if he fails to deliver on his promise, is similarly not violative of the Act I shall therefore recommend dismissal of these allega- tions of the complaint. On or about June 10, Monte, in his attempt to per- suade Cathy Chizmar, who was in his mind the crucial vote in the union election, to abandon the Union, dis- cussed with her his views of unionization. After making his remarks relative to his view of bargaining,22 Monte asked, "how would you like to punch a time clock?" This rhetorical question constitutes a threat that time- clocks would be instituted if the Union becomes the em- ployees representative, and is violative of Section 8(a)(1) of the Act American Sunroof Corp., 248 NLRB 748, 766 (1980). I so find Prior to making this comment, Monte as I have found above said' the following to Chizmar: If you vote in a union you have to start from scratch No benefits, no salaries, no vacation. . . . Both sides have proposals and if you don't like our proposals you have the right to go on strike. Both sides quote approvingly from different portions of Plastronics, Inc, 233 NLRB 155, 156 (1977), which ac- curately depicts the analysis which must be made in as- certaining whether bargaining-from-scratch statements, such as that made by Monte, are violative of the Act. Such statements are unlawful [W]hen, in context they effectively threaten em- ployees with the loss of existing benefits and leave them with the impression that what they may ulti- mately receive depends in large measure upon what the Union can induce the employer to restore. On the other hand such statements are not objection- able when additional communication to the employ- ees dispels any implication that wages and/or bene- fits will be reduced during the course of bargaining and establishes that any reduction in wages will occur only as a result of the normal give and take of collective bargaining . . . The totality of all the circumstances must be viewed to determine the effect of the statements on the employees ,[Id at 156 ] In this instance, I agree with the General Counsel that Monte's statements fall within the former portions of the above-cited quote, and are violative of the Act. After mentioning the necessity of starting from scratch when a union comes in, Monte emphasized, "no benefits , no sala- ries, no vacations." The clear inference remarks is that bargaining would start only after all of these benefits were eliminated, Mississippi Chemical Co, 280 NLRB 413 (1988), and that the Union would have to persuade Re- spondent to restore even the present benefits if it could. TRW United-United Greenfield Division , 245 NLRB 1135, 1142 (1979) See also Forentein View Place, 281 NLRB 26, 30, (1986). 22 The legality of these remarks will be further discussed below Respondent urges that Monte's comments are;no more than a permissible description of the realities of collec- tive bargaining. Indeed it is lawful to inform employees of the "realities of collective bargaining, which includes the possibility that the Union, in order to secure some other benefits, might trade away some existing benefits." Tufts Bros, 235 NLRB 808 (1978) In my view Monte's subsequent remarks that "both sides have proposals, and if you don't like our proposals, you have the right to go on strike" do not suggest the possibility that benefits might be lost by the Union trad- ing away benefits 23 These are "not assurances that such losses, if any, would be the result of the normal give and take of collective bargaining and not of employer retalia- tion." Taylor Dunn-Mfg. Co, 252 NLRB 799, 800 (1980). The clear import of these statements appears to be that Respondent will adopt a regressive bargaining posture, i.e., begin negotiations by withdrawing the benefits that he described, and that the union would be forced to strike to force it to restore these benefits to the employ- ees. Textron Inc., 199 NLRB 131, 133-135 (1972); Aero- vox Corp., 172 NLRB 1011, 1012 (1968). I note, significantly, that Monte's remarks were not in a context free of other unfair labor practices.24 It is well settled that the presence of contemporaneous threats or unfair labor practices is often a critical factor in deter- mining whether there is a threatening color to the em- ployer's remarks. Coach & Equipment Sales Corp., 228 NLRB 440, 441 (1977); Taylor-Dunn, supra; Belcher Towing Co., 265 NLRB 1258, 1268 (1982). Here Monte as found above, during the same conversation with Chiz- mar, unlawfully threatened to institute a timeclock for employees in the event they selected the Union. More- over, a little over a week before this conversation, Re- spondent changed the hours of Chizmar and employee McPartlan from part time to full time. As will be de- tailed below, this action was unlawfully motivated. Therefore, this evidence of a discriminatory change of hours, plus the contemporaneous unlawful threat, both involving Chizmar, the same employee to whom Monte addressed his bargaining from scratch comments, is highly indicative that these comments should be con- strued as an implied threat Fountain View, supra; TRW- United, supra; Taylor-Dunn, supra Accordingly, based on the above analysis and authori- ties, I concluded that Monte's remarks to Chizmar on June 10 are violative of Section 8(a)(1) of the Act. On June 18, as detailed above, Monte had a confronta- tion with Knorowski, characterized by the General Counsel as an "assault,"25 which resulted in various statements made by Monte to both Knorowski and Cathy Chizmar. During the course of these events, Bob McLean the union shop steward for the plant employees, was called in to the area by the employees. After McLean asked what had happened, Monte replied, "You know what 23 Cf Histacount Corp, 278 NLRB 681 , 689 (1986), Fiber Glass Sys- tems, 278 NLRB 1255 , 1259 (1986) 24 Cf Kawasaki Motors Mfg Corp, 280 NLRB 491, 492 (1986 ), Htsta- count Corp , supra 2 s The lawfulness of this alleged assault will be dismissed infra KENRICH PETROCHEMICALS happened,' it's' got to do with this fucking union" McLean 'then requested that Monte take it easy and went out to call the union president. At that moment, Monte addressed the employees and said, "You don't know what your getting yourself into by bringing in a fucking union " I find in agreement with the General Counsel that this remark by Monte consti- tutes an unlawful threat of reprisals, which reasonably tends to discourage employees from engaging in protect- ed concerted activities. John J. Hudson, Inc., 275 NLRB 874, 879 (1985), Carrick Foodland, 238 NLRB 568, 571 (1978) I note that this remark was made immediately after the employees called on McLean, the steward, to assist them after Monte had "assaulted" Knorowski, and verbally abused Chizmar and Knorowski primarily because of the employees' union activity.26 In this circumstance Monte's remarks cannot reason- ably be construed, as contended by Respondent, as merely "an expression of Monte's belief that employees were making a mistake by organizing with union," but is a statement that impliedly threatens reprisals in violation of the Act. Prior to McLean entering the scene, I have found that Monte approached Knorowski, still sobbing from his prior "assault" and abusive language directed towards her. After Monte continued his abuse by stating, "what the hell's wrong with you " Chizmar interceded on Knorowski's behalf. Monte told Chizmar "it's none of your fucking business," and concluded his discussion with her by saying, "If you don't like the way I run my fucking business, get the fuck out, I don't need you." After pushing a three-tier bin off of Chizmar's desk, Monte turned to Knorowski, who was still hysterical, and commented, "Why don't you cry somewhere else you fucking cunt." It is well settled that invitations to quit to employees motivated by their union or other protected activities are coercive and threatening, because it conveys to employ- ees the clear message that support for the union and con- tinued employment are not compatible L A Baker Elec- tic, 265 NLRB 1579, 1580 (1982), and cases cited therein; Maywood, Inc, 251 NLRB 979, 983 (1980). See also Bill Scott Oldsmobile, 282 NLRB 1073 (1987). I find that both of these statements by Monte fall within the proscriptions of the above cases, and are vio- lative of the Act. Although Monte did not mention the Union in either of these remarks, it is clear that he was aware that Knorowski and Chizmar were two union ad- herents, and in fact Monte had been unsuccessful in per- suading Chizmar who he thought might have been a weak link, to abandon her support for the Union. More- over, as I have outlined, the incident which preceded these comments, i.e, the "assault," was precipitated by Monte's annoyance at Knorowski' s union activities while he was grieving his father. Finally, with respect to the statement made to Chizmar, she was complaining about 26 As will be discussed more fully below, Monte admitted that the reason for his rejection of Knorowski's expression of condolences was based on her engaging in union activities while he was grieving for his father This rejection by Monte precipitated the entire incident on June 18 531 Monte's treatment of Knorowski, which constitutes pro- tected concerted activity in and of itself, regardless of any union activities Thus the invitation to Chizmar that she quit because of these complaints is independently violative because it will reasonably be construed as a threat that further complaints will result in discharge. Bill Scott, supra Therefore I conclude that Respondent has violated Section 8(a)(1) of the Act by Monte's state- ments to Knorowski and Chizmar 27 B. The Discharge of Helen Chizmar It is well established that a discharge of a supervisory employee because of the union activities of employees who were members of the supervisors' family is violative of Section 8(a)(1) of the Act 28 Such a discharge, result- ing not from any participation in union or concerted ac- tivities by the supervisor, but from the exercise of Sec- tion 7 rights of the employees, has the direct, severe and unmistakable thrust of interfering with those employee relatives in the exercise of their rights Advertiser's Mfg, supra. In evaluating whether Respondent's termination of Helen Chizmar is governed by the above precedent, it is necessary as, it is in all cases dealing with motivation issues, to first consider whether the General Counsel has established that protected conduct was a motivating factor in Respondent's decision. Wright Line, 251 NLRB 1083, 1089 (1980) In my view, the General Counsel has established a strong and compelling prima facie case that protected conduct, i e., the union activity of Chizmar's relatives, was a motivating factor in Respondent's decision to dis- charge her. All three of Helen Chizmar's relatives, McPartlan (her daughter), Knorowski (her sister), and Cathy Chizmar (her daughter-in-law) signed cards for the Union When Monte received the Union's demand for recognition, it stated that the employees had unani- mously signed cards, thereby establishing Respondent's knowledge that these three had been card signers More significantly, Monte admitted that when he received such demand, he "looked at the players," to assess his chances of persuading a majority of the employees to abandon their union support. After eliminating Kobryn, who was leaving, and Ferrano who he intended to designate as confidential secretary, five employees remained in the unit. Monte concluded that McPartlan and Knorowski as close relatives of the Union's first shop steward were not likely to change their minds about the Union 29 As 271 find Zartic, Inc, 277 NLRB 1478, 1497 (1986), cited by Respond- ent with respect to these statements to be inapposite The remarks in Zartic Inc, supra, merely indicated that no one was going to tell the em- ployer how to run his plant, and contained no suggestion either express or implied that employees should quit or go somewhere else as in the in- stant case 28 Advertiser's Mfg Co, 280 NLRB 1185 (1986), enfd 823 F 2d 1086 (7th Cir 1987), Dewey Bros, 187 NLRB 137, 142 (1970), enfd 457 F 2d 511 (5th Cir 1972), Consolidated Foods Corp, 165 NLRB 953, 959 (1967), Golub Bros, 140 NLRB 120, 121 (1962), Brookside Industries, 135 NLRB 16, 17 (1962) 29 As noted, the father of Helen Chizmar and Knorowski and the grandfather of McPartlan, was the Union's first shop steward 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Monte himself admitted, "The family is not going to back off . . . from the Union. It's in the family cul- ture."30 However, Monte believed that he would be able to dissuade employees Bobb and McNally, but was not sure about Catherine Chizmar. Although she was also a member of the family, it was only through marriage, and she had previously expressed some disenchantment with her mother-in-law Thus, the requisite knowledge of the union activities of Chizmar's relatives is firmly established. The evidence also discloses ample evidence of Re- spondent's animus towards its clerical employees efforts to unionize. Thus, when Monte first received the Union's demand, he admitted that he felt "shocked" and "be- trayed" by such developments. Immediately a managers meeting was called, and Lucania notified the managers that the clerical employees had all signed up for the Union. Lucania added that Respondent would be "argu- ing that the girls were coerced into this union," but "that would only buy time because it was a unanimous deci- sion by the girls." Lucania then turned to Helen Chiz- mar, and said, "here read the letter, but you probably know all about it." This remark tends to show that Re- spondent was attempting to blame Chizmar for the fact that her relatives had chosen to bring in a union. Additionally, the record reveals that during negotia- tions with the Union, Monte made the remark to the union negotiators, that he was going to "get rid of the whole family," referring to the Chizmar family. Such a statement is highly indicative of Respondent's intent to discharge Helen Chizmar because of the union activities of members of her family. See Golub Bros., supra at 121. Moreover, Bernicker as Respondent's agent, attributed to Monte, the comment that he had terminated Helen Chizmar in part because, Monte "was not going to put up with any union bullshit " Finally, I have found below that Respondent commit- ted a number of unlawful 8(a)(1) threats of reprisal, which also adds to the record evidence of Respondent's vehement animus towards its clerical employees efforts to select the Union as their collective-bargaining repre- sentative. The timing of Respondent's actions in terminating Helen Chizmar is even more persuasive evidence of the unlawful nature of its decision. Thus Monte admitted that once he received notice of the Union's demand, Helen was "pretty much gone." The following week, on the same day that it received the Union's petition from the Board, Chizmar was terminated. Having found that a strong prima facie case of dis- criminatory motivation has been established, the burden then shifts to Respondent to prove by a preponderance of the evidence that it would have taken the same action absent the protected conduct NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, supra. Respondent attempts to meet this burden by asserting that the real reason that it terminated Chizmar was that 30 Indeed when Monte eventually held this meeting to try to convince employees not to vote for the Union, he was so sure of Knorowski's and Mcpartlan's sentiments that he failed to invite these employees to the meeting the unionization of the clerical staff created an.inherent conflict of interest for her, and that Monte thereby lost confidence in Chizmar's ability to provide her undivided loyalty to Respondent. Respondent points to the fact that three out of five members of the bargaining unit were close relatives of Chizmar, and that Respondent had pre- viously received complaints from other employees about Chizmar's allegedly according favorable treatment to her relatives. Monte testified on behalf of Respondent that he alone made the decision to terminate Chizmar. He asserted that he felt the unionization of the employees in a unit includ- ing her relatives created in his mind an inherent conflict of interest. As Monte phased it, "You can't have a fox watching the chickens." Monte added that he felt that Chizmar could not "sit across the bargaining table" from her relatives and properly represent management, and he would not feel comfortable discussing bargaining strate- gies with Chizmar, where he felt that she would then discuss them with her relatives. Finally, Monte also points to the alleged "divisiveness" created by Chizmar's past history of allegedly giving preference to her rela- tives in job assignments and other personnel matters. Without passing upon whether Respondent's assertions that the unionization of a unit including three of her rela- tives created a sufficient conflict of interest to warrant Respondent's decision to terminate Chizmar,31 I con- clude that Respondent has not established by a prepon- derance of the evidence that in fact this was the reason for its actions Initially I note that at no time did Monte ever tell Chizmar or anyone else, including unemployment, that he terminated her because of a perceived "conflict of in- terest" or a loss of confidence in her "undivided loyal- ty." Rather, the evidence discloses that he gave a totally different reason to Helen Chizmar at the time of dis- charge, i.e. that Respondent could not "afford her" and it could get someone else for less. Additionally, I have found that he told Jill Bernicker (its agent) that he fired Chizmar because "I couldn't keep her for financial rea- sons, and I was not going to put up with any union bull- shit." Once again Monte did not tell Bernicker, one of its own agents, that he discharged Chizmar because of any conflict of interest. Finally Monte gave an entirely different reason when discussing the matter with Cathy Chizmar, sometime in June. In the first conversation, he told Cathy Chizmar that he had fired Helen "because she couldn't do the technical end of the job." Later on that same day, Monte again spoke to Cathy Chizmar about her mother-in-law's discharge. On this occasion, he told Cathy that he fired Helen Chizmar because "I couldn't afford her and be- cause no matter what I did for her she was never 31 I note in this connection that Respondent 's actions, even accepting its theory, was not based on any participation by Chizmar in any union or concerted activities See Advertiser 's Mfg Co, supra Indeed Respond- ent's decision , accepting Monte 's testimony , was not based primarily on any actions of Chizmar , but solely premised on his alleged perception of what potential problems might arise from her relatives union activities However , as noted above, I need not and do not pass on the validity of such a defense because I conclude that Respondent has not established that its decision to terminate Chizmar was based on these reasons KENRICH PETROCHEMICALS happy.",Once more no mention was made by Monte in either of these conversations that any "conflict-of inter- est" motivated the discharge of Helen Chizmar. Thus, in these circumstances, the inconsistent and shifting reasons given by Monte to various people in- cluding Chizmar herself, none of which conform to the asserted reason given at trial , demonstrates an inability on the part of Respondent to adhere with consistency to any explanation for its action Thus, an unfavorable infer- ence is warranted against Respondent . P*I*E'Nationwide, 282 NLRB 1060 (1987); Superior Warehouse Grocers, 277 NLRB 18, 21 ( 1985); American Model & Pattern, 277 NLRB 176, 182 (1985); Zwin Industries, 255 NLRB 632, 634-635 (1981) Respondent's contention and Monte's testimony that the alleged "divisiveness" created by Chizmar's prior fa- vorable treatment of her relatives, motivated in part Re- spondent's decision to discharge her, and or demonstrat- ed the perceived conflict of interest is unsupported by the record. Respondent tolerated these complaints from other employees about Chizmar's alleged favoritism to her relatives for some time, without ever confronting Chizmar with these complaints, much less discipline her because as Monte admitted "these were just staff people bitching" and "the job was getting done " Moreover, Monte's assertions that he feared possible conflicts because of his inability to use Chizmar as a member of its negotiating team is also not persuasive Respondent could easily have chosen not to make Chiz- mar a member of its bargaining team and not discuss bar- gaining strategy with her. In fact when Respondent did bargain with the Union, Monte, Lucania, and his wife comprised the entire management bargaining team. Most significantly however, when Respondent dis- charged Chizmar on May 29, the petition had just been filed, and the Union had not as yet been certified or rec- ognized by Respondent as the representative of its em- ployees. Indeed, Monte admitted that at , that point in time he had hopes of persuading Cathy Chizmar and two other employees to abandon their support for the Union, and defeat the Union's chances of representing the em- ployees. However, Respondent still found it necessary to discharge Chizmar, even though all these perceived con- flicts of interest, i.e., problems with bargaining teams, strategy, and grievances , had not and might not ever come to pass, should the Union not have been successful in obtaining representation rights. The above is demonstrative in my view, of Monte's real concerns with Chizmar, which is further highlighted by Monte's own testimony concerning his decision to terminate her. Thus Monte admitted that as soon as he received the Union's demand, Chizmar "was pretty much gone," because "I cannot conceive of me receiving that notification and having that clerical unit form with- out Helen knowing about it. Just impossible ." This testi- mony is also consistent with Lucania's handing Chizmar the demand letter, and stating "you probably know all about it already " Thus, I conclude that Respondent be- lieved that Chizmar must have been fully aware of the efforts of its relative employees to organize , and that she 533 should have notified Respondent of this information,32 and most importantly prevented these employees from continuing in their efforts to unionize the clerical staff. It is well established that a discharge of a supervisor for failure to prevent unionization is violative of the Act Advertiser's Mfg., supra; Talladega Cotton Factory, 106 NLRB 295, 296 (1953), enfd. 213 F.2d 209, 215-217 (5th Cir. 1954); Huskey Mfg. Co., 196 NLRB 683, 690 (1972), Parker Robb Chevrolet, 262 NLRB 402, 403 (1982). In my opinion, the concept of loyalty and lack of con- fidence that Monte testified about with regard to Chiz- mar was not in Monte's view related to any future prob- lems that might arise with respect to her carrying out her management responsibilities , but to her failure to demonstrate her loyalty by nipping in the bud the efforts of her relatives to unionize. Indeed, Respondent 's arguments vis-a-vis a conflict of interest has some obvious surface appeal . Most employ- ers would probably view a situation where a supervisor directly supervised three of her close relatives in a small unit as a conflict of interest , and would not tolerate such an arrangement . However, the facts here demonstrate that Respondent has permitted such a situation to exist for a number of years, notwithstanding the fact that it re- ceived complaints from employees about favorable treat- ment accorded by Chizmar to her relatives. It is not sur- prising, therefore, that Monte felt "shocked" and "be- trayed" that his clerical employees , spearheaded by the "Chizmar" family would pay him back for his largesse by attempting to unionize . I believe that Monte felt that since he had tolerated an arrangement beneficial to the Chizmar family since most employers would not, entitled him to expect loyalty from both the relative employees (not to unionize), and from the supervisor (to prevent such unionization of her relatives) that he did not re- ceive. I conclude that the failure of the relative employ- ees and of Helen Chizmar to meet Monte 's definition of loyalty, as described above, was the true motivating factor in Monte's decision to terminate Chizmar. Ac- cordingly, I find that Respondent has failed to meet its burden of establishing that it would have terminated Chizmar for lawful, nondiscriminatory reasons, notwith- standing the protected conduct of her relative employ- ees Therefore, her termination is violative of Section 8(a)(1) of the Act.33 I so find. C The Change of Work Hours of Knorowski and McPartlan On the following workday after the discharge of Helen Chizmar, Respondent notified McPartlan and Knorowski that their work hours would be changed to 8.30 a in to 5.30 p in., from their previous part-time status . The timing alone of this action raises considerable suspicion . Coupling the timing with the aforementioned evidence of Respondent's belief that Knorowski and McPartlan were the two chief union adherents who could not be dissuaded from changing their minds due to 32 See Brrokside Industries, 135 NLRB 16, 17 25, (1962), and Inter City Advertising Co, 89 NLRB 1103, 1106 , 1107 (1950) " Advertiser 's Mfg , supra , Consolidated Foods, supra, Golub Bros, supra , Talladega Cotton , supra, Huskey Mfg, supra 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their "family culture," and the intense animus34 dis- played by Monte towards the efforts of his clericals to unionize, once again establishes a strong prima facie case that Respondent's decision to change the hours of McPartlan and Knorowski was motivated by their pro- tected conduct. Once again Respondent has fallen far short of meeting its burden of establishing that it would have made such a change, absent their union activity. Respondent argues, consistent with the testimony of Monte, that it took this action in line with Respondent's previously expressed desire not to have any part-time employees Monte explained that the action was taken on June 1, because he just terminated Chizmar, and that the decision was taken at that time because their part-time status had been viewed "by everybody" as another ex- ample of favoritism for Chizmar's relatives. Monte fur- ther testified that because he had terminated Chizmar, there no was longer any "obstacle" to his carrying out his desire to eliminate part-time employment. I find Respondent's defense to be totally unpersuasive. Initially it must be noted that I have found Helen Chiz- mar's termination to have been unlawfully motivated. Thus it is doubtful whether Respondent can use the un- lawful discharge of Chizmar, because of her relatives union activities, to justify or excuse its subsequent deci- sion to change the hours of these same relatives, or to establish that it would have taken the same action, absent their union activities. Clearly, had Knorowski and McPartlan not selected the Union as their representative, their part-time status would have been retained. Moreover, Respondent's argument that Chizmar's dis- charge removed the "obstacle" to Respondent changing the hours of the employees is unsupported by the record or by logic The fact is that Monte and Lucania were clearly Chizmar's superiors, and there is no evidence in the record explaining why they simply could not have instructed Chizmar to eliminate the employees part-time status or simply have effectuated the change themselves. In this connection, Respondent's citation of its actions in September 1986 of eliminating McPartlan's flexitime as proof of its nondiscrimination in 1987 is more persuasive proof of the contrary conclusion Thus, although it is true that the 1986 change was made prior to the Union's appearance, more significantly this change was apparent- ly made by management when Chizmar was still the office manager, and still supervising the employees. Thus it is clear that Respondent's claim that it didn't make the change to full-time status for these employees earlier, simply because Chizmar was still the office manger is pretextual and unsubstantiated Most significant of all is the simple fact that Respond- ent had a long history of accommodating the personal desires of both McPartlan and Knorowski for a number of years, with respect to their working hours Santa Rosa Blueprint Service, 288 NLRB 762 (1988); Saint Jean Des Pres Restaurant, 279 NLRB 109, 116 (1986). 34 As noted above, such evidence includes Monte's admission that he felt "betrayed" and "shocked" that the clerical employees chose to un- ionize, his remarks that during the negotiations that he intends to "get rid of the whole family," and the 8( a)(1) statements that Monte made to vari- ous employees While it is undisputed that Respondent had expressed a desire for some time to eliminate part-time employees, and had made such desire known to employees, it also undisputed that no such change was made prior ,to the Union's appearance. Indeed, while Respondent's officials had asked the employees to work full time and indicated its desire for such a change, it had always acquiesced when the employees refused to agree. No business reason was even suggested to explain Re- spondent's sudden departure from its previous position of accommodating the preferences of these employees, other than the fact that Helen Chizmar was now gone, which I have found to be pretextual. Therefore, the only logical conclusion to be drawn, that it was McPartlan and Knorowski's union activities that accounted for Re- spondent's decision to cease accommodating their prefer- ences for part-time hours. Accordingly, Respondent has not met its burden of es- tablishing that it would have changed the hours of McPartlan and Knorowski absent their union activities, and I therefore find that it has violated Section 8(a)(1) and (3) of the Act by such conduct Santa Rosa, supra; Saint Jean, supra, St. Paul's Church Home, 275 NLRB 1242, 1253 (1985); Anchorage Times Publishing Co., 237 NLRB 544, 557, 558 (1978). D. The Alleged Assault of Knorowski If an employer assaults or otherwise physically abuses its employees because of said employees protected activi- ties, such conduct is violative of Section, 8(a)(1) of the Act. Graves Trucking, 246 NLRB 344 (1979), enfd. in pertinent part 692 F.2d 470 (7th Cir. 1982); Studio S.J.T. Limited, '277 NLRB 1189, 1194 (1985); Federated Stores, 241 NLRB 240, 252 (1979); Greyhound Taxi Co., 234 NLRB 865, 875 (1978); Hot Bagels and Donuts, 227 NLRB 1597, 1608 (1977), Schultz, Snyder & Steele Lumber, 198 NLRB 431, 434, 435 (1972). -. The General Counsel contends that, on June 18, Monte pushed and assaulted Knorowski because of her union activities, and has thereby violated the Act. Re- spondent argues on the other hand that the confrontation between Monte and Knorowski was a purely personal encounter not related to any Section 7 conduct. More- over, Respondent contends that whatever physical con- tact may have occurred was purely accidental, and was in fact instigated by Knorowski's grasping Monte's hand, followed by Monte merely responding to the unsolicited and unwarranted attentions of "Ms Knorowski." Respondent points to the fact that Monte made no ref- erence to the Union until after the alleged assault of Knorowski had occurred, and views the incident as merely a personal matter of Monte rejecting Knorowski's condolences. I do not agree I find it highly relevant as to why Monte rejected Knorowski's attempt to offer her condolences because that rejection by Monte precipitated the entire incident. In this regard, Monte freely admits that he rejected the condolences of Knorowski because she engaged in union activities. Thus Monte admitted that while he was away "grieving" for his father, he received reports that Knor- owski was engaging in union activities by attempting to KENRICH PETROCHEMICALS - 535 persuade Ferrano to support the Union. Monte further admits such conduct by Knorowski "really frosted me." Moreover, Monte also admitted that he rejected Knor- owski's condolences because he felt that her sympathy was not expressed sincerely in view of her actions in en- gaging in union activities while he was mourning his father. As Monte testified, "the so called application of sympathy flew in the face of her behavior pattern while I was bereaving my dad " I also do not agree that Monte's conduct can be de- scribed as accidental . I agree with the General Counsel's position that in these circumstances Monte had the burden of avoiding physical contact with Knorowski. The incident occurred in a narrow hallway, and two people could not pass by each other without one of them getting out of the way It was certainly not reasonable for Knorowski to believe that Monte would reject her condolences, push her hand aside, and then continue walking at full momentum The only reasonably foresee- able result of Monte's actions is that Knorowski would be propelled into the filing cabinets. I therefore conclude that Monte's actions do constitute an assault on Knor- owski because,of her union activities, and is violative of Section 8(a)(1) of the Act. Graves Trucking, supra, and other cases cited above.35 E The Removal of McPartlan's Telephone It is well established that an employer violates Section 8(a)(1) and (3) of the Act when it revokes telephone privileges previously granted to employees because of their union activities. Advertiser's Mfg., supra at 1191; Port Plastics Inc., 279 NLRB 362, 379 (1986); Elizabeth Motors, 252 NLRB 1148, 1153 (1980); Stoughton Trailers, 234 NLRB 1203, 1206, 1207 (1978). Once more.a strong and compelling prima facie case has been established that this action was motivated by McPartlan's union activities It was admitted by Monte that he considered her to be one of the two leading union activists who could not be dissuaded from her ad- herence to the Union. Respondent's animus is amply demonstrated, as noted above, by the various 8(a)(1) statements, Monte's remark that he wished to "get rid of the whole fanitly," and his admission that he felt "be- trayed" by the clericals organizational efforts. The timing of this action coming within weeks of the petition being filed, and shortly after the unlawful assault on Knorowski, the other leading union adherent, further supports the discriminatory nature of Respondent's ac- tions. Once more, Respondent has fallen far short of meeting its burden that it would have removed McPartlan's phone, absent, her union activities. Respondent asserts 35 Respondent also seeks to justify Monte's conduct on the grounds that he was still upset over the loss of his father I find this to be no excuse On the contrary, I view Monte's reaction at that time to be fur- ther evidence of the intensity of his animus towards the Union's organiza- tional efforts Thus at a time when he was grieving for his father, one would expect that such mundane matters as the unionization of a small group of his employees, would not be uppermost in his mind Yet Monte was so incensed about the "betrayal" as he characterized it of the "Chiz- mar" family in unionizing, that he permitted such anger to induce him to react in an almost unheard of manner, i e , rejecting Knorowski's condo- lences coupled with the use of vulgar language and an assault that Monte was motivated solely by his reasonable belief that McPartlan was making excessive use of the phone for personal calls. I find this explanation to be purely pretextual and unsupported by the record Indeed, an ex- amination of Monte's testimony in this area, the only evi- dence offered in support of Respondent's position'36 re- veals clearly the pretextual nature of its defense. Thus, Monte testified that "for a period of days immediately preceding" his action, McPartlan was making excessive use of the phone not on company business. However, McPartlan was on vacation for the entire week prior to Respondent's action. McPartlan returned' 'to work on June 22, and the phone was removed at the end of that day. Therefore, any alleged abuse according to Monte's own testimony could only have taken place on that day, June 22 Yet Monte's testimony also alleges that he was informed' about McPartlan's transgressions at the dinner table by his family, which could not have occurred on that day because the action was taken by Monte prior to his going home on June 22. Moreover, and perhaps just as significant, Respondent has never had a rule or policy prohibiting the use of tele- phones for personal business. McPartlan was never warned or even spoken to by Respondent's officials about the use of the phone for personal calls. When Monte removed her phone again on June 23, he did not even at that time inform her that she should not be making personal calls, but merely said, "I don't want you to have a phone." Furthermore, when asked who he suspected McPart- lan was talking to on these alleged personal calls, Monte said, her mother, the Union, Knorowski, or Chizmar This response is also quite revealing as to Monte's moti- vation. I note that he did not mention that he thought that McPartlan was speaking to her daughters or hus- band or other people at her home, with whom one would expect most personal calls to involve Monte specified calls to the Union, to both Chizmars, and to McPartlan, all people involved at least in Monte's mind in various respects in the Union's efforts along with McPartlan. Indeed, Knorowski made a "personal call" to the Union from Respondent's phone, after Monte's un- lawful assault on her on June 18, and Monte questioned her at that time about this alleged "personal" call. Thus, it is clear and I find that any concern Monte may have had about McPartlan's use of the phone for personal rea- sons related solely to his belief that she was or might in the future use the phone for matters related to union business. Such a concern is of course discriminatory on its face. Accordingly, I conclude that Respondent has not met its burden of establishing that it would have removed McPartlan's phone, absent her union activities, and that its action in this regard was violative of Section 8(a)(1) and (3) of the Act. Advertiser's Mfg., supra, Port Plastics, supra; Elizabeth Motors, supra; Stoughton Trailers, supra 361 note that neither Monte's daughters nor his wife, who allegedly observed and reported to Monte McPartlan's "excessive" personal use of the phone, were called as witnesses to support Monte's testimony 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F. The Alleged Unlawful Causing of Knorowski, Chizmar, and McPartlan to be Absent From Work I have found above that on June 18, Respondent, by Monte; unlawfully assaulted Knorowski because of her union activities Furthermore, I have concluded that Re- spondent violated Section 8(a)(1) of the Act by its un- lawful invitations to quit directed to both Knorowski and Chizmar on that day. Moreover, the record revealed that, in the course of these incidents, Monte subjected both Chizmar and Knorowski to a barrage of abusive, in- sulting, and obscene comments, as well as violently push- ing a bin filled with papers off of Chizmar's desk. In connection with Monte's abusive and obscene re- marks, Respondent argues that people in the workplace are human, and the law does not require an employer to conduct himself in a mature or professional in or even to behave reasonably and justly when he is peeved. Christofrom & Ryder Truck Rental, 688 F.Supp. 294, 303 (S D.R.Y. 1987) However, while that may be so, the Board has frequently found that abusive, demeaning, or insulting remarks, where they are motivated by and di- rected towards employees because of their union activi- ty, are violative of the Act. United States Aviex Co., 279 NLRB 826, 831 (1986); Bonanza Sirloin Pit, 275 NLRB 310, 314 (1985), Cooper-Jarrett, Inc., 260 NLRB 1123 (1982). Here, there can be no question that contrary to Re- spondent's view, Monte's abusive remarks were motivat- ed by protected conduct of the employees As I have de- tailed above, Monte admitted that his annoyance with Knorowski's union activities, precipitated his rejection of her condolences, accompanied by the unlawful assault and his initial obscene and abusive comment . Monte then followed up by continuing his barrage of insults and ob- scenities to Knorowski because of her hysterical reaction towards his initial actions, and to Chizmar because of her protected conduct of complaining about Monte's treat- ment of her sister-in-law and fellow employee Both Knorowski and Chizmar left the premises imme- diately after these events. Knorowski was out of work until November 2, when she attempted to return. Chiz- mar was out of work until June 25. Knorowski, as confirmed by various doctors reports submitted, was suffering from an "acute anxiety disor- der." This diagnosis was confirmed by doctors reports and disability forms filled out by her own personal physi- cian, Dr. Ellen Black, Dr. Richard Williams, Respond- ent's doctor whom she was required by Respondent to see, and Dr. Jacoby, the psychiatrist, whom Dr. Wil- liams recommended to Knorowski for treatment. These documents indicate that her anxiety problems began on June 18, the date of the incidents with Monte The docu- ments are also filled with references to her job situation as being the cause of her problems. The comments such as the cause of disability was "upset over loss of job" and that she would "probably benefit from a return to work" by Dr Jacoby; and Dr. Williams' remarks that Knorowski suffered from a "severe reaction overriding fear of returning to work" all further demonstrate that Knorowski's problems were caused by Monte's conduct on June 18. As for Chizmar, her own letter to Respondent dated June 19 indicates that she became ill and ,-had had to leave the office due to the unprovoked and violent con- duct of Monte. Subsequently, doctors' notes submitted by her own physician, Dr. Gerald Goldman and Dr. Williams, confirmed that Chizmar suffered from hyper- tension anxiety from June 18 to 25 Respondent argues that the above evidence is insuffi- cient to meet the General Counsel's burden of proving that the maladies suffered by the employees were caused by Respondent. Respondent contends that psychiatric in- juries present complex issues of causation which are not readily determinable by laypersons. It is asserted that as a matter of law expert medical and psychiatric testimony is required . Respondent relies on the following quote from Bushman v. Holm, 798 F.2d 651 (3d Cir 1986): The correlation between certain conditions such as psychiatric illness and injury may be, beyond lay knowledge. Therefore expert medical testimony should be used to aid their comprehension that a particular condition may arise out of a specific injury Respondent further argues that because, no medical expert testified and the written reports submitted did not speak to the cause of the maladies, that the General Counsel has not met his burden. I do not agree with either Respondent's analysis of the law or the facts as to this issue. I do not believe that expert medical testimony is always an absolute necessity in establishing that psychiatric illness was caused by Re- spondent's unlawful conduct. Thus, in Becton Dickinson Co., 189 NLRB 787, 789 (1971), the Board concluded that an "acute anxiety reaction" suffered by an employee was caused by Respondent's unlawful conduct. It ap- pears therein that the employee had passed out on the job while performing an unlawful assignment, and went to the hospital, where her condition was diagnosed as set forth above. The Board concluded, with apparently no further medical or expert testimony, that "we have reason to infer that the kind of harassment to which Re- spondent unlawfully subjected Hipsher did induce or in any event substantially contribute to Hipsher's anxiety reaction " 189 NLRB at 789 37 Indeed, I note that the quotation cited by Respondent in Bushman v. Holm, supra, is only dicta in a tort case, applying New Jersey tort law. Moreover, the very same case includes language that indicates that "circumstantial evidence or common knowledge may provide a sound basis from which a casual sequence may be inferred. . . . Thus as a matter of common experience, a particular act or omission might be expected under the circumstances to produce a particular result. If that result has indeed followed, it may be permissable to conclude that a casual relation exists." Id. at 659 3' See also Greyhound Taxi, supra, in which the Board sustained an ad- munistrative law judge findings, again apparently absent expert testimo- ny, that an assault on an employee had "so frightened and intimidated him that he felt compelled to sever his employment relationship with Re- spondent" 234 NLRB at 878 KENRICH PETROCHEMICALS Further,, to the extent that expert medical evidence may be required to prove the General Counsel's case, the record, discloses that such evidence has been presented. While no medical doctor testified, the various letters and disability documents submitted by three various doctors, including a psychiatrist and Respondent's doctor, ade- quately fulfills any such requirements. These documents make several references to work-related problems of Knorowski, as well as the date of her injury on June 18 Thus this evidence coupled with the events, of June 18 are more than sufficient in my view to establish a causal connection between these events and the illnesses suf- fered by Knorowski and Chizmar.38 I am of the opinion that the. events of June 18, includ- ing specifically the assault on Knorowski, the knocking over of Chizmar's bin, the vile and insulting language, and the unlawful invitations to quit, directed at both em- ployees by Monte, plus the aforementioned medical evi- dence, are more than sufficient to establish that Respond- ent's conduct caused the illnesses that both employees suffered. Thus, the circumstantial evidence and common knowledge provides a sound basis for me to find a causal connection between Respondent's conduct and the subse- quent problems that the employees encountered. Bush- man v. Holm, supra. At the very least, the evidence per- mits me to conclude, which I do, that the kind of harass- ment to which Respondent unlawfully subjected Knor- owski and Chizmar "did induce or in any event, substan- tially contribute" to their illnesses. Becton Dickinson, supra. Thus, the above evidence establishes at aminimum a prima facie case as to causation , obligating Respondent to rebut the conclusion that its conduct has caused the illnesses of the employees Respondent contends that it would be improper to force it to present medical evi- dence to refute such a claim I again do not agree. In this case, Respondent's contention is particularly without substance, because its own physician examined the em- ployees and in fact confirmed the diagnosis of the em- ployees own physicians. The only evidence presented by Respondent in any way relevant to the causation issue, revolves around its contention that the employees were engaged in an un- protected work stoppage and that was the sole reason why they went home. In fact Respondent argues that the employees were not suffering from any maladies at all, and that they left the premises only because the Union told them to do so, in conjunction with a coordinated work stoppage. Respondent's evidence in this regard falls far short of establishing its contention. Respondent relies on the fact that Knorowski and Chizmar left the prem- ises only after Knorowski's conversation with Union President Ferrante, and the employees admission that in fact Ferrante had suggested that they go home. More- over, Respondent also relies on the fact that employees McNally and Bobb both called in sick on the afternoon of June 18, and that employee Ferrano was told by an- other employee that the Union instructed all employees 38 As to Chizmar, she also submitted doctors' notes, including one from Respondent's own physical diagnosing her condition as hyperten- sion, commencing June 18 537 to go home. I find the above evidence, to be unpersua- sive. While it is true that Ferrante advised the employees to leave the premises, such a recommendation was made obviously in recognition that Monte's disgraceful treat- ment of the employees had caused hysterical and adverse reactions, and it would be best that they separate them- selves from Monte. In this connection, I again note the uncontradicted evidence from the various physicians, in- cluding Respondent's own doctor, that the employees did indeed suffer from anxiety reaction and hypertension, respectively, which refutes any claim made by Respond- ent that the employees did not suffer from any maladies, and left the premises solely as part of a work stoppage. Moreover, the actions of Bobb and McNally have no rel- evance to the issue of why Knorowski and Chizmar left the premises. While it may be true that Bobb and McNally did not report for work on the afternoon of June 18, due to a suggestion from the Union, such action if it did occur,39 undoubtedly was in protest of Monte's treatment of Chizmar and Knorowski, rather than as part of an overall work stoppage. Respondent also argues that neither Knorowski nor Chizmar's actions were within the realm of a reasonable employee's reaction to Respondent's actions Once more I cannot agree with Respondent's view. I find it quite reasonable for any employees to react as these employees did to Monte's uncivilized conduct of June 18. While it may be true, that Knorowski's being unable to work for 5 months might be considered by some to be an overre- action to Respondent's conduct, I note that in Becton Dickinson, supra, the employee, involved was out of work for a period, of 4 months and 8 days due to an "acute anxiety reaction." Moreover, because Respondent unlawfully set in motion the factors which gave rise to the illnesses of Knorowski as well as Chizmar, it cannot disclaim liability for their consequences M.RA. Milling, 170 NLRB 1079, 1080 (1968); Mary Ann's Baking Co., 257 NLRB 992, 993 ( 1983). See also Graves Trucking, supra. Accordingly based on the foregoing, I conclude that Respondent has violated Section 8(a)(1) and (3) of the Act by unlawfully causing employees Knorowski and Chizmar to be absent from work, as a result of Monte's conduct of June 18. However, I am unable to make a similar finding with respect to McPartlan's actions in leaving work. Although on June 23, the evidence does establish that she indeed suffered from "gastroenteritis" during her absence from Respondent, I -do not find that General Counsel has es- tablished a causal connection between that illness and any unlawful conduct committed by Respondent. While McPartlan on June 23 was aware that her aunt had been assaulted on June 18, I find her alleged fear of also being assaulted by Monte to be unreasonable, and insufficiently connected to the removal of her telephone. I note par- ticularly that McPartlan admitted that she did not begin to suffer any symptoms of gastroenteritis on June 23, until after she arrived home and after she decided to leave the premises. 39 I note the hearsay nature of the evidence in this regard 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD While I• have found that Respondent's action in remov- ing McPartlan's phone on June 23 was unlawfully moti- vated, I find it was not connected to her subsequent ill- ness. Moreover, I believe that she did not act reasonably when she left the premises because she was "upset" about this action, and or Monte's prior confrontation with her aunt Therefore, I shall recommend dismissal of the allega- tion of the complaint that alleges that Respondent unlaw- fully caused McPartlan's absence from work on June 23. G. Respondent's Requiring Employees to Submit Medical Verification for Absences Section 8(a)(1) and (3) of the Act is violated when an employer changes its policies with respect to sick leave and medical verification because of its employees union activities Interstate Transport Security, 240 NLRB 274, 279 (1979); Brown & Connolly, Inc., 237 NLRB 271, 280 (1978). Once again the evidence discloses a strong prima facie case that Respondent's decision on June 23 to require employees Knorowski, Chizmar, and McPartlan to be ex- amined by Respondent's physician, before agreeing to pay them sick leave, was motivated by these employees protected conduct. It is undisputed that Respondent had no past practice, policy, or requirement that employees even submit a doctor's note to obtain sick leave payment, much less to be examined by the company doctor. I note here that the employees submitted or agreed to submit notes from their own doctors, documenting their illnesses, but this was deemed not sufficient by Respondent Thus, this unprecedented action by Respondent, cou- pled with its timing, the aforementioned evidence of Re- spondent's antiunion animus, and previous unfair labor practices'40 leads to the finding that its decision was mo- tivated by the protected conduct engaged in by these three employees. The burden once more falls on Respondent to establish that it would have taken the same action against the em- ployees, absent their union activities. Respondent con- tends that it acted solely because it had a reasonable sus- picion that the employees were engaged in a concerted sick out, and were not really ill. Respondent points to the fact that Chizmar, Knorowski, and McPartlan all left work immediately after a confrontation with Monte, claiming to be sick, but apparently in good health. More- over, on June 18, when Chizmar and Knorowski left, their departure was preceded by a phone conversation with the union president. Finally, it is urged that the other two employees, Bobb and McNally, did not report for work on the afternoon of June 18, also claiming to be sick, but came to work the next day, apparently in good health. It is submitted by Respondent that these facts created in Respondent's mind a reasonable belief that a concerted sick out was in progress and that the employees were not ill. Therefore, it was within its rights to demand that the 40I note particularly Monte's unlawful mvitlations to employees to quit, his statement that he intended to "get rid of the whole family," and his assault and abusive remarks on June 18 employees support their assertion of illness. Charge Card Assn. v. NLRB, 653 F.2d 272, 275 (6th Cir. 1981). While Respondent's argument does have some surface appeal, I do not believe that, in the circumstances of this case, it can prevail. While I agree that the aforemen- tioned facts may have presented Respondent with a rea- sonable suspicion that a sick out was in progress, it must be emphasized that it was Respondent's unlawful con- duct that created the situation. Thus, it was Monte's un- lawful conduct on June 18 of assaulting Knorowski, and illegally threatening and verbally abusing Knorowski and Chizmar, that set in motion the chain of events that caused the employees to leave, culminating in the subse- quent events which gave rise to Respondent's allegedly "reasonable" belief. Thus, in effect Respondent's suspi- cions that employees were engaged in a work stoppage or a sick out was the direct result of its own unlawful conduct. In those circumstances, I do not believe that it has shown that it would have taken the same action against the employees, absent their union and protected activities, and that therefore Respondent by its requiring employees to submit to medical examination by its doctor, violated Section 8(a)(1) and (3) of the Act. Brown & Connolly, supra; Interstate Transport, supra. ' H. The Discharge of McPartlan . I have found above that Respondent violated Section 8(a)(1) and (3) of the Act by changing McPartlan's hours from part time to full time on June 1. McPartlan was able to adhere to the new schedule during the summer months, due to her own vacation, as well as the fact that her children were attending summer camp. However, in September, when her children resumed school, it was no longer feasible for McPartlan to comply with an 8:30 a.m. to 5 p in. schedule. Therefore she spoke to Monte about her problem and reminded him of Respondent's past history of accommodating her by permitting her to work 9 a m. to 3 p.m. Monte refused to agree, adding "with all the union stuff that's going on, there's no way I could help you." Subsequently, a series of letters between McPartlan and Respondent were exchanged about the problem, and McPartlan unilaterally began working her old hours on September 15. After two warning letters, McPartlan wrote back asserting she would be forced to leave if Re- spondent insisted on her working full-time hours, and ac- cusing Respondent's by refusing to accommodate her of committing an unfair labor practice The response to this letter, was a termination letter dated September 17, alleging that McPartlan was guilty of "flagrant disregard for company rules," and "willful misconduct." In ordinary circumstances, Respondent's position might have some merit. Indeed, there is no question that McPartlan disobeyed Respondent's directives as to her working hours, conduct which normally would be con- sidered insubordination and warranting discharge. How- ever, in this case, the instructions or orders that McPart- lan disobeyed were unlawfully motivated, in that the change in McPartlan's hours was discriminatory as I have found above In those circumstances, McPartlan's KENRICH PETROCHEMICALS 539 refusal to, accept an unlawful assignment does not consti- tute insubordination justifying her discharge. Reno Hilton 282 NLRB 819; Superior Warehouse Grocers, 277 NLRB 18, 23 (1985); Nissen Foods, 272 NLRB 371, 401, 402 (1984). The refusal by Respondent to accommodate McPart- Ian's request to return to her previously agreed to work- ing hours, followed by its discharge for failure to work such hours, is clearly violative of the Act. S.S. Kresge Co.; 199 NLRB 303, 306 (1972), Michiel's Inc., 279 NLRB 109, 122 (1986); Reno Hilton, supra; Nissen Foods, supra. Respondent argues however, that McPartlan should not be permitted to engage in "self help," by unilaterally changing her own hours, particularly since the Region had issued a complaint on August 7, alleging in part that her change in hours was violative of the Act. Respond- ent claims that McPartlan must permit the Board 's proc- esses of remedy her claim , and cannot unilaterally change her hours I cannot agree that the Board 's issu- ance of complaint in any way affects the above analysis, nor eliminates McPartlan's right to refuse an unlawfully motivated 'work assignment. Indeed, McPartlan would have been perfectly within her rights to quit her job because of such an unlawful change of working hours. Such a quit would be consid- ered by the Board to be a constructive discharge, and also violative of Section 8(a)(1) and (3) of the Act. Ben- nett Packaging , Co, 285 NLRB 602 (1980) (starting time of employees changed, where employer had allowed her to report to work late because of her babysitting prob- lems); Magnolia Manor Nursing Home, 260 NLRB 377, 387, (1982) (employee's shift changed by employer, who was aware that employee had to take care of small child at home and could not work that shift); St. Joseph's Hos- pital, 247 NLRB 869, 880 (1980) (employer refused re- quest of employee to work part time to attend school); St. Paul's Church,.supra at 1252-1255) (imposing policy of working "every other weekend" to employees know- ing employees could not comply with rule); Olympic Limousine Serivce, 278 NLRB 932, 938-939 (1986) (dis- continuance of night shift, knowing that employee needed an evening job in order to attend school). Therefore, since McPartlan would have been construc- tively discharged had she quit because of Respondent's actions, it follows that her decision to remain on the job, but at her old prediscrimination hours, does not warrant a different result, notwithstanding the issuance of a Board complaint covering the unlawful change of hours. Accordingly, based on the foregoing analysis and au- thority, I conclude that Respondent's decision to dis- charge McPartlan on September 17 was violative of Sec- tion 8(a)(1) and (3) of the Act. I. The Layoff of Knorowski On November 2, Knorowski reported for work at Re- spondent's premises, following her period of disability in which she was suffering from an acute anxiety reaction. Respondent notified her at that time that she was being laid of as of November 2, since her position had been filled. Because I have found that Knorowski's acute ankiety reaction was unlawfully caused by Respondent 's' con- duct, it follows that Respondent may not turn her down when she applied for reemployment. MFA Milling, supra at 1079, 1080, 1102, Fabric Mart, supra. Cf Graves Truck- ing, supra, in which no reinstatement was ordered, only because the employee had not been discharged or other- wise refused the opportunity to return to work. Therefore, Respondent has violated Section 8(a)(1) and (3) of the Act by laying Knorowski off on 'November 2, even though it had hired a replacement to fill her posi- tion. Moreover, assuming that Respondent 's conduct on June 18 did not unlawfully cause Knorowski's absence, Respondent's action on November 2 is still subject to scrutiny. In those circumstances , it is necessary to once again analyze the situation under Wright Line principles. Once more, it is concluded that the General Counsel has established that a motivating factor in Respondent's deci- sion to lay off Knorowski on November 2 was her union activities In that connection Respondent- admitted that it believed Knorowski was a strong union adherent because of her "family culture" to the extent that Monte did not even bother to attempt, as he did with other employees, to persuade her to abandon her union support Further, Monte unlawfully invited Knorowski to quit on June 18, and threatened to "get rid of the whole family," after he had already unlawfully discharged Helen Chizmar and McPartlan. Therefore, Knorowski, as of November 2, was only one of two remaining members of the Chizmar family who had not been unlawfully discharged Finally, Respondent had already unlawfully discriminated against Knorowski, by changing her hours on June 1, several weeks before her disability commenced. Having found a prima facie of union discrmination present, the burden then shifts to Respondent to establish by a preponderance of the evidence, that it would have taken the same action against Knorowski, absent her union activities. I find that Respondent has fallen short of meeting this burden of proof Respondent's position essentially is that it did not know whether Knorowski ever intended to return to work at Respondent, and that it needed to fill her posi- tion I find this explanation to be unpersuasive While I find the testimony of Lucania and Monte, that because of the incidents on June 18 they did not believe that Knor- owski would be returning, to be credible, I do not find it dispositive. In my view, if Respondent were truly con- cerned about whether Knorowski would be returning, it would have been a simple matter to call her on the phone and ask her. Yet they chose not to do so, because as Monte himself testified, "I didn't want to go near that " Thus Respondent had absolutely no desire to see Knorowski return to work, because of her union activi- ties and I believe made no phone call to ascertain such desires, for the same reasons . If no such union activities had occurred, I conclude that Respondent would have in fact made such an inquiry, before replacing a long-time well-evaluated employee such as Knorowski. Furthermore, Respondent's past practices with respect to these kinds of cases, demonstrate more forcefully the 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pretextual nature of Respondent's defense. Lucania ad- mitted-that when an employee returns from disability, "in -most cases," Respondent takes the employee back when they finally recover. As Lucania further admitted, "the nature of our operations, we can be flexible and re- schedule and move people around " An examination of several past cases bears out and supports Lucania's candid testimony in this regard. Indeed, Respondent could point to no past situations where it refused to offer a position to an employee re- turning from disability. In fact, to the contrary, testimo- ny was adduced with respect to several prior cases, in- cluding a situation involving Knorowski herself, where employees out on various kinds of disability were reem- ployed at their old jobs when they were ready to return to work. The treatment that Respondent accorded employees Cesar Gonzalez and Mike Battaglia is even more reveal- ing. Gonzalez was a plant employee, who was out of work for a year because of an injury on the job. His po- sition was filled within 2 months When Gonzalez at- tempted to return to work, consistent with Respondent's policy of flexibility as testified to by Lucania, he was of- fered a job in a different position. However, it turned out that Gonzalez was not physically able to handle the al- ternative position, he went back on compensation 41 Respondent argues that comparison between plant em- ployees such as Gonzalez with Knorowski is inappropri- ate because "those employees have leave of absence rights guaranteed by their collective bargaining agree- ment and because the replacement of plant employees is impacted by the bidding rights of current employees as specified in the collective bargaining agreement." How- ever, the record contains no support for Respondent's as- sertions in this regard. The collective-bargaining agree- ment covering Respondent's plant employees was not in- troduced into the record. Nor does the record include any testimony or other evidence to indicate what leave of absence rights if any are guaranteed to plant employ- ees or what impact bidding rights has on replacement of employees. Moreover, no evidence was adduced that when Gonzalez was offered a different position, when he sought to return, any job bidding was required by him, or that the collective-bargaining agreement in any way motivated Respondent's decision to make such an offer. Respondent contends and I agree that the most compa- rable case to that of Knorowski is that of lab technician, Mike Battaglia . However I do not agree with Respond- ent's view that its treatment of Battaglia was consistent with its treatment of Knorowski. Thus, Battaglia was ini- tially out on a leave of absence for a year commencing in the spring of 1985. His job was held open for him for that period of time, and he was allowed to return to his old job in the spring of 1986. In February 1987, Battaglia sustained a second back injury, and was out of work until July of 1987. Battaglia's position as a lab technician was filled during the period of his second disability. Respondent re- ceived a letter from its insurance company indicating that Battaglia could return to work, but at a lighter duty than before. At that point, in further demonstration of Respondent's admitted "flexibility" in "moving people around," and its policy of in "most cases" taking people back when they return from disability, created a new job for Battaglia. Thus, he was rehired as a "gofer" and a chauffeur for Spiegelhalder. Yet when Knorowski notified Respondent that she was ready to return to work, no such courtesies were ex- tended to her, and in fact Lucania admitted that no dis- cussion ever took place between he and Monte about ac- cording similar treatment to Knorowski. Thus, Monte made no inquiry of Lucania, as to whether it might be feasible to either "create" a job for Knorowski, or find sufficient work for her to perform. I note that the ac- commodation that Respondent made for Battaglia oc- curred in July 1987, only a few months before Knor- owski sought to return. Moreover, when Chizmar on behalf of Knorowski reminded Respondent of its treat- ment of Battaglia as compared to Knorowski, Monte's response was quite revealing. He replied that Battaglia had notified Respondent that he sought to return, and that he (Monte) did not even know if Knorowski wanted her job back. This response merely reinforces the conclu- sion that Respondent's defense is pretextual. Thus, as Chizmar pointed out to Monte, he didn't give Knorowski much of a chance, since he began advertising for em- ployees on July 4, and hired two employees during the month of July. More significantly, Respondent was first notified in early September that Knorowski was intend- ing to return on November 2. Thus contrary to Monte's response to Chizmar, Respondent knew full well that Knorowski was going to be able to return to work on November 2. Monte and Lucania during the period of time between September and November, discussed with Respondent's attorney what position to take when she returned, and concluded that it would not offer her a po- sition, but merely place Knorowski on a preferential hiring list.' However, there was not even any discussion between Monte and Lucania about the possibility of find- ing something to do or "creating" a job for Knorowski, as it had done for Battaglia. I am persuaded that the reason that Respondent did not make a similar accommo- dation for Knorowski, as it had for Battaglia and consist- ent with its prior practice and policies, was not as Monte falsely stated, that Knorowski had not informed Re- spondent of her desire to return'42 but because Knor- owski had along with the other members of the Chizmar family, been responsible for unionizing Respondent's clerical staff. Accordingly, Respondent has not met its burden of es- tablishing that it would have laid off Knorowski, thereby retaining two less senior employees, 43 absent her union activities. Therefore, even apart from Respondent's un- lawful causing of Knorowski's absence, it has violated Section 8(a)(1) and (3) of the Act when it failed to reem- ploy her when she requested to return to work after her 43 Eventually, Gonzalez was terminated by Respondent, but only be- 42 As noted, Respondent had nearly 2 months' notice of Knorowski's cause he refused to undergo a myelogram as recommended by Respond- desire to return to work ent's insurance company doctors 4' See Premoco Forge, 224 NLRB 371, 373 (1976) KENRICH PETROCHEMICALS disability was concluded. Palomar Transport Inc., 266 NLRB 510, -512, 513 (1983), WXON TV Inc., 289 NLRB 615 (1988);-Repubhc Corp., 260 NLRB 486, 502 (1982); Dravo Corp., 255 NLRB 584, 589, 590 (1981), GTE Auto- matic Electric Co., 204 NLRB 716, 731 (1973) CONCLUSIONS OF LAW 1. Respondent Kenrich Petrochemicals Inc. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 8-406, Oil, Chemical and Atomic Workers, International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by threatening its employees with more onerous working conditions or the imposition of the use of timeclocks, with loss of existing benefits, or with unspecified repris- als, because of their activities on behalf or support for the Union. 4. Respondent violated Section 8(a)(1) of the Act by inviting employees to quit their employment because of such employees exercise of activities on behalf of the Union or other protected conduct, thereby threatening them with discharge by implying that support for the Union and or the exercise of other protected conduct and continued employment with Respondent are not compatible. 5. Respondent violated Section 8(a)(1) of the Act by terminating the employment of Helen Chizmar because of the Union activities of her relatives. 6. Respondent violated Section 8(a)(1) and (3) of the Act by changing the working hours of Barbara Knor- owski and Karen McPartlan on June 1, assaulting Knor- owski on June 18, removing McPartlan's telephone on June 23, requiring McPartlan, Knorowski, and Catherine Chizmar to be examined by Respondent's physician on June 23, causing Knorowski and Chizmar to be absent from work subsequent to June 18, discharging McPartlan on September 17, and by laying off and refusing to reem- ploy Knorowski on November 2, all because said em- ployees engaged in activities on behalf and in support of the Union. 7. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not engage in any other unfair labor practices alleged in the consolidated complaint. V THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by termi- nating Helen Chizmar on May 29, and Section 8(a)(1) and (3) of the Act by laying off and refusing to reemploy Barbara Knorowski on November 2, and by discharging Karen McPartlan on September 17, I shall recommend that that it be ordered to offer Knorowski and Chizmar 541 immediate and full reinstatement44 to their former posi- tions of employment or, if these positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and to make whole Knorowski, Chizmar and McPartlan, any loss of earnings that they may have suffered. Loss of earnings shall be computed in the manner prescribed in F. W. Woolworth, 90 NLRB 289 (1950), and shall include inter- est as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I have also found that Respondent violated Section 8(a)(1) and (3) of the Act by causing the absences from work of Knorowski and Catherine Chizmar, subsequent to June 18. Since Respondent unlawfully set in motion the events which gave rise to these absences, it is appro- priate to order Respondent to make Knorowski and Catherine Chizmar whole for pay lost subsequent to June 18 as a result of illnesses fairly attributable to Respond- ent's conduct. Becton Dickinson, supra at 789; Fabric Mart, supra at 390; M.F.A. Milling, supra at 1080; Graves Trucking, supra at 345. I shall leave to the compliance stage of this proceeding the extent to which the receipt by these employees of sick leave payments by Respondent, and or disability payments from Respondent' s insurer, during the period of their absences, shall be deducted from their backpay. Cf. Graves Trucking, supra, footnote 11; American Mfg. Co., 167 NLRB 520, 523, fn 13 (1967). Respondent shall also be ordered to expunge from its files any reference to the discharges of Helen Chizmar and McPartlan and the layoff of Knorowski, and notify these employees in writing that this has been done and that evidence of such actions will not be used by Re- spondent as a basis for any future action against them. Sterling Sugars, 261 NLRB 472 (1982). Finally to the extent that it has not already done so, it is appropriate to require Respondent to remedy its un- lawful change of hours for McPartlan and Knorowski, to restore these employees to their schedules that existed prior to June 1. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed45 ORDER The Respondent Kenrich Petrochemicals Inc., Ba- yonne, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with, more onerous working conditions, or the imposition of the use of time- clocks, with the loss of existing benefits, or with any other unspecified reprisals, because of their activities on 44 Since McPartlan was subsequently reinstated by Respondent, it is not necessary to order her reinstatement 45 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD behalf 61 support for Local 8-406, Oil Chemical and Atomic Workers International Union, AFL-CIO. (b) Inviting employees to quit their employment be- cause of such employees exercise of activities on behalf of the Union or other protected conduct, thereby threat- ening them with discharge by implying that support for the Union or the exercise of other protected conduct and continued employment with it are not compatible. (c) Discharging supervisors because of the protected activities of relatives in order to coerce employees in the exercise of the rights guaranteed by Section (7) of the Act. (d) Discharging, laying off, changing the working hours, assaulting, removing telephones, and requiring medical verification for illnesses of its employees because of its employees support for or activities on behalf of the Union. (e) In any like or related manner interfering with, re- straining or coercing employees in the exercise of 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 Helen Chizmar and Barbara Knorowski im- mediate and full reinstatement to their former positions of employment or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. (b) Make whole Helen Chizmar, Barbara Knorowski, Karen McPartlan, and Catherine Chizmar for any loss of earnings and other benefits suffered by them as result of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Restore the hours and schedule that existed prior to June 1, 1987, for Karen McPartlan and Barbara Knor- owski. (d) Remove from its files any reference to the dis- charges and or layoffs of Helen Chizmar, Karen McPart- ]an, and Barbara Knorowski, and notify these employees in writing that this has been done, and that evidence of these unlawful actions will not be used against them in any way. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payments records, timecards, personnel records and reports and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at the Bayonne, New Jersey facility copies of the attached notice marked "Appendix "46 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure 46 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 " that the notices are not altered, defaced, or covered by any other material. _ . (g) Notify the Regional Director 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 be dis- missed insofar as it alleges violations not specifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY THE ORDER OF 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 or- dered us to post and abide by this notice. WE WILL NOT threaten our employees with more on- erous working conditions, or the imposition of the use of the timeclocks, with the loss of existing, benefits, or with any other unspecified reprisals because of their activities on behalf or support for Local 8-406, Oil Chemical and Atomic Workers International Union, AFL-CIO WE WILL NOT invite our employees to quit their em- ployment because of such employee exercise of activities on behalf of the Union or other protected conduct, thereby threatening them with discharge by implying that support for the Union or the exercise of other pro- tected conduct and continued employment with us are not compatible. WE WILL NOT discharge supervisors because of the Union or other protected activities of their relatives or in order to coerce employees in the exercise of the rights guaranteed by Section (7) of the Act. WE WILL NOT discharge, lay off, change the working hours, assault, remove telephones, or require medical vertification for illnesses of our employees because of our employees support for or activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Helen Chizmar and Barbara Knor- owski imediate and full reinstatement to their former po- sitions of employment, discharging, if necessary, anyone who was hired to perform the work that these employ- ees had been performing or, if these positions no longer exists, to substantially equivalent positions, without prej- udice to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Helen Chizmar, Barbara Knor- owski, Karen Mcpartlan, and Catherine Chizmar for any loss of earnings and other benefits suffered by them as result of our discrimination against them, plus interest WE WILL restore the hours and schedule that existed prior on June 1, 1987, for Karen Mcpartlan and Barbara Knorowski. WE WILL remove from our files any reference to the discharges and or layoffs of Helen Chizmar, Karen KENRICH PETROCHEMICALS 543 McPartlan,. and Barbara Knorowski, and notify these em- dence of these unlawful actions will not be ;used, against ployees in writing that this has been done, and that evi- them in any way. - KENRICH PETROCHEMICALS, INC.