Laminated Products, Inc.

816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laminated Products, Inc. and Joseph E. Robinson, Jr. and United Brotherhood of Carpenters & Joiners of America, Local 161 . Cases 30-CA- 9561 and 30-CA-9615 June 8, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On September 30, 1988, Administrative Law Judge Robert T. Wallace issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief and the General Counsel filed cross- 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,' and conclusions2 and to adopt the recommended Order. October 15 and 16. They involve allegations that Re- spondent Employer discharged an employee (Robinson) and reassigned another (Larry Rightler) to more onerous duties in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act. Also, it is alleged that Re- spondent conducted a survey of employees' views and refused to recognize the Union's designated steward in violation of Section 8(a)(1) and (5) of the Act. Based on the entire record, including my observation of the witnesses and after due consideration of briefs filed by the General Counsel and Respondent, I make the following findings, conclusions, and recommended Order. JURISDICTION It is admitted and I find that Respondent, a corpora- tion engaged in the manufacture and sale of cabinetry and related items at a plant in Kenosha, Wisconsin, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. FINDINGS OF FACT ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Laminated Products, Inc., Kenosha, Wisconsin, its officers, 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 2 The judge, in accord with Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), found that the Respondent would not have discharged employee Joseph Robinson absent Robinson's union activism We agree Under these circumstances, we need not reach the issue of whether his conduct with respect to the paychecks constituted unprotected activity. Member Johansen, however, would find his conduct protected Paul Bosanac, Esq., for the General Counsel. Ray Blankenship and Gary Wang (Blankenship & Associ- ates), of Greenwood, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT T. WALLACE, Administrative Law Judge. Upon a charge filed on April 13, 1987,' by Robinson and a charge filed on May 26 by the Union, separate com- plaints were issued on June 25. The cases were heard by me on a consolidated record in Kenosha, Wisconsin, on ' All dates are in 1987 unless otherwise indicated I. BACKGROUND Dan Molgaard, as superintendent, is the primary offi- cer in charge of day-to-day management of the plant. Reporting to him are approximately 10 "leadmen," all of whom are conceded to be supervisors within the mean- ing of Section 2(11) of the Act. As of the date of trial Respondent had 119 employees, up from 70 at the beginning of the year They work on either of two shifts, the first beginning at 6 a.m. and the second at 2:30 p.m. The Union has represented Respondent's employees since 1966. The most recent collective-bargaining agree- ment took effect for a 4-year period commencing on April 19, 1985. Among other things, that agreement con- tains union-security/dues-checkoff provisions and author- izes "merit" raises on a quarterly basis with the amount and beneficiary left to Respondent's discretion. As there are no job classifications, use of the latter authorization has resulted in employees receiving different hourly rates for performing equivalent tasks. Most of the leadmen are members of the Union, in- cluding Mike Anderson who was the sole steward at the plant for 7 years until he resigned from that position on May 6.2 Respondent states that over the years it "has had a peaceful and good relationship with the Union without any animosity or hostilities directed toward the Union." 2 The collective-bargaining agreement expressly excludes foremen from being stewards Shortly after his appointment as leadman in April of 1986, Anderson asked Union Representative Ray Jacobson if he could continue to serve as steward. The latter asked "Are you a foreman", and Anderson replied, "No, I'm considered a leadman " Jacobson didn't ask about Anderson's duties Instead, he advised Anderson not to worry about it 294 NLRB No. 69 LAMINATED PRODUCTS A. Robinson's Discharge Robinson began his employment with Respondent in 1983 and worked primarily as a cabinetmaker. For a brief period in 1986, he served as a leadman on the second shift, but at his request, he returned to cabinet- making on the first shift. On March 1 Robinson was the only employee of Re- spondent who attended a regularly scheduled union meeting in Kenosha. It was the first such meeting that he had attended and he went because he and other employ- ees of Respondent had expressed to each other dissatis- faction with the way they were being represented by the Union He there voiced that perception to Business Agent Jacobson, and the latter responded that he was aware of "our problem" and intended to hold a special meeting later in the month dust for employees of Re- spondent. The special meeting occurred on or about March 25. Ten of Respondent's employees-all union members-re- sponded to mailed invitations. These included Robinson, Larry Rightler, Supervisor/Steward Anderson, and Plant Production Coordinator Dave Robilard.3 Jacobson ex- plained to them that Local 161 was a weak "craft" divi- sion of the Union, and he opined that they would be served more aggressively by its "industrial" division. Also, he suggested that they choose a representative to attend a convention of the industrial division in Oshkosh, Wisconsin, on April 22-24, there to obtain more informa- tion and special training as steward in that division Rob- inson and Rightler were the only volunteers. An election was held and the two having each received the same number of votes, it was decided that both should go. After the meeting Rightler spoke to Robinson about how unfair it was that another employee (Dominque Allozi) received more pay than he (Rightler). Two other employees (Chris Cutler and "Frank") ap- proached Robinson as he was reporting for work the next day. Cutler said he had heard Robinson was the "underground" steward and he proceeded to complain that he was getting less money than a less senior fellow worker. Frank expressed a similar concern. The following Thursday (April 2) was payday. At around 7 a m. Robinson told his leadman (Mark Davis) that he and Rightler had been chosen to go to the union convention at Oshkosh, and he asked for time off. Davis replied that he would check and get back to him. Robinson's work station was located approximately 20 to 30 feet from the rack where timecards were kept The rack was on a wall adjacent to an exterior door, and em- ployees and salespersons passed by it on their way into and out of the plant. At about 8 a in. Robinson observed Molgaard place paychecks in the rack behind each time- card 4 The checks were folded" over stubs containing payroll data. 3 Robilard reports directly to Molgaard, has an office, and is expected to attend meetings of leadmen While he is not shown to have had super- visory authority, I find that he is a management official " Employees were supposed to pick up their checks at the noon lunch period, and not before 817 One hour later, Robinson decided to verify claimed disparities in pay; and, after ascertaining that Molgaard was 50 yards away and apparently preoccupied in his office, he quickly went over to the rack and examined certain stubs He did this by raising the checks slightly above the timecards and then turning down a top corner of the checks, thereby exposing pertinent pay data. On returning to his machine he shared what he had learned with another employee (Ron Stoddard). Around noon, Molgaard walked over to Robinson and asked if he had been looking at paychecks. When Robin- son denied that he had done so, Molgaard fired him on the spot stating, "don't lie, I saw you . what right do you have looking at other peoples' paychecks . . . . I don't need your kind here . . . pack up your tools and get out." At the trial Molgaard explained that he waited until noon before confronting Robinson because he needed time to think. He regarded pay data as confidential and was "very much in turmoil" as to what he should do. He made his decision at about 11.50 a.m. after being in- formed by leadman Davis that "a lot" of employees were complaining because Robinson was telling what others were making. In his view Robinson's act in looking at data on the stubs amounted to stealing company proper- ty, one of two causes for immediate dismissal specified in the union contract-the other being physical abuse of a foreman or other employees.5 During the early half of 1986 checks were handed out to employees by Molgaard or Production Coordinator Robilard. Molgaard decided to put them behind time- cards in order to benefit second-shift employees who often asked for their checks prior to 2:30 p.m. Since that change, no rule prohibiting employees' viewing of others' paystubs has been promulgated. Employees have never been asked to sign confidentiality statements and they are free to reveal their rates of pay to each other. Molgaard states that he would have made such data available to the Union, but no request had been made. Several witnessess testified credibly that employees had fellow workers pick up their checks at the noon break and sometimes earlier on paydays Molgaard states he had no knowledge that that had occurred. Immediate- ly after the Robinson incident he obviated any problem by reverting to hand delivery of checks by management; and in "writing up" the incident he stated that an addi- tional reason for the discharge was Robinson's "mali- ciously" talking about wage information with other em- ployees. Earlier in the day Molgaard had approved Robinson's request for time off to attend the union convention in Oshkosh (Tr. 114) and he knew the purpose was to find 5 The contract also sets forth a detailed set of rules and policies for bidding, among other things, punching another's timecard, verbally abus- ing a foreman, intentionally damaging company property, tardiness more than three times in I month, and it provides for varying degrees of pun- ishment first offenses result in a verbal warning, second offenses elicit written reprimands, third offenses merit 3-day suspensions, and fourth of- fenses warrant termination 6 Robinson, Rightler, and an individual (Thomas Birchell) who several months prior to appearing had resigned to return to college after having worked for Respondent for nearly 1 year 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out more about being represented by the industrial branch of the Union (tr. 277). His knowledge in that regard assertedly had nothing to do with his decision to fire Robinson. B. The Survey In mid-April approximately 1 week before the conven- tion, a meeting of all employees was called at the plant. General Manager Robert Block and Molgaard first spoke about a proposed new benefit whereby employees could acquire up to 30 percent of the Company's stock. Mol- gaard then proceeded to tell them that he knew they were "very disgusted" with the kind of representation they were getting from their Local, and that he knew that "Larry" (Rightler) was going to Oshkosh to learn what the industrial division of the Union had to offer. After agreeing that they should have better representa- tion, he offered to help them get a whole new union of their own.7 He concluded by advising them that Ander- son was stepping down as steward. Whereupon Ander- son arose and said he would be looking for nominees to replace himself. He said he thought it would be a good idea to have separate stewards in each of the three main departments. Rightler took issue with that suggestion pointing out that Anderson knew from discussions at the prior union meeting that the plant could have only one steward. Another meeting of the employees was held on May 6, about 1 week after the convention and while Rightler was on vacation. Prior to the meeting Molgaard and An- derson cooperated in preparing a questionnaire designed to elicit employee attitudes on a number of matters, as- sertedly with Molgaard contributing questions relating primarily to management and Anderson providing ques- tions relevant to labor.8 As presented at the meeting, the survey had been typed by a company clerk on company paper bearing an embossed company logo. It contained 15 questions on one page, each of which was to be answered either "yes" or "no"9 and at the bottom of the page employees in the cabinet department were asked to choose between two candidates who had volunteered to be their "repre- sentative."10 The bottom right hand corner bears the legend, "Thank you for your vote on these important issues-Mike Anderson." During the first half-hour, Molgaard talked about "changing insurances and different things," and at the end of that period he left the meeting after stating that "Mike had some stuff [i.e., union business] to go over with you guys." 7I have credited Rightler's claim that Molgaard did indeed offer to help the employees set up their "own union" His testimony in that regard was clear, consistent, and apparently free of guile On the other hand, Molgaard's response when asked whether he had made the offer was rambling and evasive Tr 274-277 8 Molgaard states that they acted together in preparing the survey in order to avoid extra nonproductive time attendant upon holding separate meetings 9 The questions are set forth in Appendix A 10 Anderson explains that only one person volunteered from each of the other two departments, and that their election was therefore automat- lc Anderson proceeded to distribute the survey. His ex- planation to the assembled employees as to why it was being taken was brief. He simply told them "We just want to see where you are coming from [on relevant issues]." After writing their answers, the employees folded the sheets and deposited them in a box that Anderson had placed in the middle of the room. When voting was over Anderson looked at the ballots but only for the purpose of determining who won the contested election, and after that was done Production Coordinator Robilard took the sheets to his office, where he tallied the answers. He then informed Molgaard and Anderson of the results, and posted them on the bulletin board. Molgaard took no action based on the survey. Anderson had not advised the Union that the poll and vote was to be taken. Nei- ther did he advise the Union about the results. C. Rightler's Transfer Rightler, with over 10 years service, is one of Re- spondent's most senior employees. His primary job was assembling miters in the countertop department, a job which required several months of training and ability skillfully to use a variety of power tools (routers, drills, saber saws, etc.). According to his leadman (Scott Barth- uly), he consistently did "a very good quality job." Monday, May 4, was Rightler's last day at work prior to his going on a 10-day vacation. At Barthuly's request he punched in at 5 a.m. rather than 6 a.m.; and that early reporting time normally meant working 9 hours until the second shift arrived at 2:30 p.m. However, at about 6 a.m. he asked Barthuly for permission to leave at 1:30 p.m. in order to get a head start on his vacation. Barthu- ly appeared to nod his head in assent. At 1:20 p.m., as Rightler was putting away his tools, Barthuly asked where he was going. Rightler reminded him of the earli- er approval and said he had completed all available mi- tering work. Barthuly denied having given permission and pointed out that there was other work to be done. Rightler told him he would discuss the matter when he returned from vacation, and he proceeded to punch out and leave the plant. Upset, Barthuly spoke to Molgaard and at his suggestion made out a written disciplinary report on Rightler. But having done so, he had a "change of heart" and opted to discard the report. During Rightler's absence, however, Barthuly intensi- fied the training of three other employees who had been learning miter assembly techniques by working with Rightler; and when Rightler returned on May 15 he told him to assist another employee (Scott Mink) in making "end splashes"-a job that required minimal training and could be learned by a new employee in a matter of hours. According to Rightler, no reason was provided for the new assignment, so he assumed that Mink was temporari- ly backlogged and needed help. But he became increas- ingly concerned when, over a 3-week period, he found that meeting the Company's need for splashes took only about 16 hours per week and that he spent the rest of his time doing odd jobs such as stockwork and sweeping floors, jobs he had been too busy to do when working LAMINATED PRODUCTS on miters Approaching Barthuly he 'asked what was going on. Barthuly replied that some of the men had complained that you were belittling them, and that he had reported their complaints to Molgaard who said I was to put you in a different area. Rightler protested that he had "got down" on other employees (i.e., urged them to "get going") only occasionally when their work per- formance caused delays affecting his production, and that he had never intentionally belittled them. He also added that he had considered Barthuly his friend and felt hurt that he had not spoken up before about the com- plaints With that, Barthuly volunteered that Rightler's union activity could have been a factor in the transfer. Barthuly's version is somewhat different. He explains that employees' complaints about Rightler "started in 1986 . . were very widespread . . . daily . . and con- tinuous" up until the day he was reassigned. He states that the complaints related to his belittling them, personally, [for reasons] which had nothing to do with the job . . . [and as to job per- formance, he] was telling them they were too slow, they were making the same mistakes over and over again. He . [kept] coming to me and telling me that they were too young, that they weren't respon- sible, couldn't listen [to him], which they weren't, you know, [they] didn't have to. What really made me mad was the personal attack he made, and that he had spoken to Rightler about the problem before. When Rightler returned to his mitering position on May 15, Barthuly claims to have told him he didn't want him there anymore because "you can't get along with anybody." He states he repeated that reason when, some- time later, Rightler asked him why he was assigned to end splashes, and added, "You took advantage of me by personal attacks on employees." Asked whether he also said the reassignment was Molgaard's decision and "could be related to your Union activity," Barthuly re- sponded, "No."i l Here too I was impressed by Rightler's apparent candor and I credit his account. Barthuly, on the other hand, did not inspire confidence. I found him hesitant and evasive as a witness; and his testimony contains a number of inconsistencies. For example, he asked Mol- gaard's advice on how appropriately to punish Rightler for leaving work 1 hour early on May 4, but claims not to have done so on a matter (verbal abuse of employees) which he regarded as more serious; and while he states that he gave Rightler reasons for his transfer on May 15, he did not remind Rightler of that circumstance when, concededly, Rightler at a later date asked him "why?." Instead, he answered the question as if for the first time. i i Molgaard states that Barthuly made the decision to transfer Rightler, that he (Molgaard) was not involved in it, and that Barthuly told him he was taking the action because Rightler ridiculed other em- ployees, was unwilling to work overtime when requested, and had a bad attitude toward him (Barthuly) and to work II. ANALYSIS 819 Robinson. In seeking to verify complaints of fellow employees concerning perceived unfair disparities in wage rates and in disseminating information to them in that regard, Robinson patently was engaged in concerted action relating to working conditions.12 The threshold question, therefore, is whether the way in which he ob- tained the information rendered his action unprotected; 13 and, since an employer, for lawful reasons, can treat wage data as confidential and prohibit its general dis- semination, 14 the question becomes whether, in the ab- sence of any confidentiality rule, the employer neverthe- less reasonably could consider as private, pay informa- tion which it placed in a rack behind timecards of indi- vidual employees in a manner whereby the pertinent data was not in plain view of passers-by. 15 In my view the answer is yes. In so positioning the checks the employer was using the timecard rack as a means of communicating with employees on a one-to-one basis Robinson was well aware of that intent. He ap- proached the rack surreptitiously, and had to fold down corners of checks to gain the desired information; and he lied when Molgaard asked him about the incident. No waiver of confidentiality arises from the circum- stance that employees had fellow workers pick up their checks in the absence any showing of acquiescence on the part of the Employer. The Gray16 case is inapposite. There, the Board found that index cards containing names and telephone numbers of employees "were not maintained in a place or manner that would indicate management considered them to be of a private or confi- dential nature " But the matter does not end there because I am not persuaded that Robinson's transgression (i.e., "stealing" confidential data) would have been punished by the severe penalty of discharge had it not been for his activ- ism in trying to obtain more aggressive representation by the Union's industrial division. Respondent had had a longtime "peaceful and good" relationship with its craft division and didn't want that situation to be disturbed. At the time he fired Robinson, Plant Superintendent Mol- gaard was aware that he (and Rightler) were spearhead- ing a movement toward the industrial division by volun- teering to attend its convention in Oshkosh. He knew this because they had requested leave to do so and be- cause he was fully informed of events that transpired during the union meeting 1 week earlier at which they were chosen to be representatives. 17 Robinson had 12 Jeannette Corp, 217 NLRB 653, 657 (1975), affil 532 F 2d 916 (3d Cir 1976) 'a Macomb Daily, 260 NLRB 983 (1982), NLRB v Florida Steel Corp, 544 F 2d 896 (5th Cir 1977) 14 L G Williams Oil Co, 285 NLRB 418 (1987) is Compare Ridgely Mfg Co, 207 NLRB 193, 196-197 (1973), enfd 510 F 2d 185 (D C Cir 1975), and New Process Co, 290 NLRB 704, 733- 734 (1988), where employees who attempted to memorize names on the open front portion of timecards were held to be engaged in protected ac- tivity is Gray Flooring, 212 NLRB 668 (1974) 17 Supervisor Anderson and Production Coordinator Robilard were present throughout that meeting and I infer that either or both informed Molgaard In any event, Molgaard admitted telling employees prior to Continued 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD worked for Respondent for nearly 4 years, and there is no indication that he had ever been disciplined before Indeed for a brief time in 1986 he served as a supervisor on the second shift, and he left that position at his own request to return to cabinetmaking on the first shift. Fur- ther, the wage data he obtained, although placed in a confidential area, was not secret. Employees were free to discuss their rates of pay with each other and had the Union requested the data Molgaard states that he would have made it available. Finally, I find significant the fact that Molgaard did not immediately confront Robinson when he saw him browsing through the timecard rack. Instead, he waited about 3 hours and acted only after being informed that Robinson was generating discontent among employees by citing disparities in rates of pay. In these circumstances, I conclude that the extreme punishment of discharge would not have been imposed on Robinson for violating confidentiality of the timecard rack18 but for his activism in seeking to obtain employee support for more adequate union representation by dis- seminating among them data perceived to show unfair disparities in wages. I therefore find discrimination in violation of Section 8(a)(3) and (1) of the Act. The Survey. In the context of Molgaard's awareness both of employee dissatisfaction with representation by the craft division of the Union and the ongoing effort to bring in the more aggressive industrial division, his firing of an employee (Robinson) known to have been an activ- ist, and his seeking to forestall the effort by proposing a new benefit (stock ownership) and by offering to help them set up an entirely new union, the questionnaire sub- mitted to the employees on May 6 represents more than a desire on the part of management "merely to determine whether its personnel policies and benefit programs were being properly communicated to its most recently hired employees."19 Rather, it reflects a deliberate undertaking (1) to deal directly with employees on matters (e.g., how employees become "permanent" in each department'20 changes in the timing and amount of bonuses) which properly should have been addressed to their collective- bargaining representative 2' and (2) to undermine the col- lective-bargaining agreement by asking suggestive ques- tions (e.g., would you like a reduction of dues and "your own union and . . . own representation? [emphasis added] in order to induce defection from the Union. Accordingly, in each instance I find a violation of Sec- tion 8(a)(5) and (1)22 of the Act. the convention that he knew they were "very disgusted" with the craft division and that Robinson and Rightler were slated to attend 18 As noted in In 5 , successive acts of misconduct involving punching another's timecard is punishable by verbal warning in the first instance, then by written reprimand , then by 3-day suspension , and by termination in the case of fourth offenses. 19 United Technologies Corp, 274 NLRB 1069, 1071 (1985), enfd 789 F 2d 121 (2d Cir 1986) 20 Under the caption "SENIORITY" on p 5 of the applicable collec- tive-bargaining agreement (G C Exh 2) is a subpar 3 which reads as fol- lows Temporary Employees will become permanent employees when they have worked a maximum of one (1) calendar year Seniority will start at this time and will be retroactive to starting time 21 NLRB Y Katz, 369 U S 736 (1962) 22 Compare, Obie Pacific, Inc, 196 NLRB 458 (1972) Respondent seeks to avoid this result by claiming that the Union was represented throughout the meeting by its designated steward, Anderson. The short answer is that neither Respondent nor any employee present at the meeting could reasonably believe that he was acting on behalf of the Union or that the Union was a party to the survey. Although nominally steward, Anderson admit- tedly was a statutory supervisor and as such he was properly perceived as aligned with management both by Respondent and the employees. Moreover, at the time the meeting was called it was known by all. that he in- tended to resign because of that circumstance. Further, his role at the meeting was minimal. He simply passed out the survey (typed on company stationery) with the comment "We just want to see where you're coming from." (Emphasis added.) Finally, the Union had no notice of the meeting as Anderson chose not to convey that information. Rightler. As noted, Rightler was on vacation at the time of the May 6 "survey" meeting; and shortly before going on vacation he attended the convention of the Union's industrial division as a representative of Re- spondent's employees. On his return, he was moved from "mitering"-a highly skilled job which had occupied all of his working time and which, admittedly, he did well-to the less demanding and part-time job of making "end splashes"; and for the next 3 weeks most of his time was spent doing odd jobs such as stocking shelves and sweeping floors. For reasons stated, I have credited Rightler's claim that at the time he was reassigned he was not told why, and that 3 weeks later the supervisor (Barthuly), who os- tensibly was solely responsible for his transfer, told him the decision was Molgaard's and that his union activity "could have been a factor." Based on that admission and its consistency with the record as a whole, I find that he was transferred only for that reason. Three reasons for reassignment are cited by Molgaard: Rightler's ridiculing other employees, his unwillingness to work overtime when requested, and his "bad attitude" toward Supervisor Barthuly and to work. In his testimo- ny, however, Barthuly did not mention Rightler's atti- tude in regard to himself or work as a reason for the transfer. Indeed he commended Rightler for doing "qual- ity" work. As to overtime, his response that Rightler's frequent unavailability was "a contributing factor" was elicited in response to my leading question and after he had had ample opportunity to provide reasons for the re- assignment on his own initiative; 2 a and neither he. nor Molgaard provided any details concerning the number of times he was offered and declined overtime. Moreover, Molgaard testified that "None of our employees are re- quired to work overtime." The remaining proffered reason-ridiculing other em- ployees-is a matter which allegedly occurred daily for nearly a year, yet there is no indication that Respondent 23 While Barthuly testified about an incident on May 4 when Rightler left work an hour early, assertedly without permission, he did not men- tion it either to Molgaard or Rightler as a reason for the reassignment In fact, he admits that he opted not to pursue the matter through issuing either an oral or written reprimand LAMINATED PRODUCTS ever gave Rightler a written reprimand or suspension (see fn. 5) for that (or any other) repeated misconduct; and although Barthuly avers that he spoke to Rightler, he provided no information as to how often, when, or what was said. In any event, I have credited Rightler's testimony that Barthuly had not spoken to him before about complaints from fellow, employees. I have also credited Rightler's statement that Barthuly did not advise him of any reason at the time of his reassignment, and that he gave "ridiculing" as the reason 3 weeks later and only in response to his (Rightler's) inquiry. Finally, the record is devoid of any indication of the specific lan- guage Barthuly viewed as constituting ridicule. Having found the stated reasons for Rightler's transfer to be pretextual24 an inference is warranted, and taken, that the real reason was an unlawful one,25 to wit. by assigning him to a trainee-type job which entailed tasks such as sweeping floors, Respondent sought to punish Rightler for seeking more aggressive union representa- tion and to make him an example so as to deter other employees from engaging in the same (protected) activi- ty. CONCLUSIONS OF LAW I find that Respondent violated Section 8(a)(5), (3), and (1) of the Act in the particulars and for the reasons stated above, that those unfair labor practices have af- fected, are affecting, and unless permanently enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act, and that it is not shown to have violated the Act in any other respect. Since no need is shown for a visitatorial (discovery) remedial order of the type urged by the General Counsel, her re- quest in that regard is denied.26 REMEDY In addition to the customary cease-and -desist order and requirement for notice posting, my Order will re- quire Respondent (1) to offer unconditional reinstatement to Joseph E. Robinson, Jr. and to make him whole for all wages and benefits lost as a result of his unlawful dis- charge, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided for in New Horizons for the Retarded, 283 NLRB 1173 ( 1987). See generally Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed27 24 Wright Line, 251 NLRB 1083, 1084 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 445 U S 989 (1982) 25 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) 26 See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 27 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ORDER 821 The Respondent, Laminated Products, Inc., Kenosha, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees or reassigning them to more onerous duties because they seek to obtain more adequate union representation (b) Reassigning employees to more onerous duties be- cause they seek to obtain more adequate union represen- tation. (c) Dealing directly with employees about matters which properly should be addressed to their collective- bargaining representative and seeking to undermine a collective-bargaining agreement by asking suggestive questions intended to induce defections from the Union. (d) In any like or related manner restraining or coerc- ing 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 Joseph E. Robinson, Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority and other rights and privileges pre- viously enjoyed, and make him whole, with interest, for any loss of earnings suffered as a result of the discrimina- tion practiced against him in the manner set forth in the remedy section of this decision. (b) Reinstate Larry Rightler to the job he held on May 4, 1987, or, if that job no longer exists, to a substantially equivalent position. (c) Remove from its files any references to the dis- charge of Joseph E. Robinson, Jr. on April 2, 1987, as well as any references to the reassignment of Larry Rightler on May 15, 1987, and notify them in writing that this has been done and that those actions will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facilities in Kenosha, Wisconsin, copies of the attached notice marked "Appendix B "26 Copies of the notice, on forms provided by the Regional Direc- tor for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. 28 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 " 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) 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 complaints be dis- missed insofar as they allege violations of the Act not found herein. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government APPENDIX A Written questions distributed to employees of Laminat- ed Products, Inc. on May 6, 1987 1. Do you want to have an employees' meeting every three months (90 days)? 2 Do you want to have a vote on important issues regarding shop decisions? 3. Do you want to have a vote on whether or not an employee becomes a permanent employee in your department? 4. Are you interested in hearing more about having ownership in Laminated Products, Inc 9 5. Are you interested in having ownership in Laminated Products, Inc.? 6 Do you like the 25% bonus? 7. Would you like the three departments to have their own bonus system (Cabinets, Countertops, Marble)? 8. Would you like the bonus to be on a monthly pay out instead of a three month pay out? 9 Would you like to have your own Union and have your own representation? 10. Do you want to stay with the present Union? 11. Do you want to vote on how much Union dues you must pay? 12. Do you want to pay $13.00 per month? 13. How much Union dues do you feel is enough? (Circle One) $3 00 $5.00 $1000 $13 00 14. Would you like to have shop meetings to hear what is going on with our business? 15. Would you like to receive a monthly status report regarding our sales figures? 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 Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discourage activity on behalf of any labor organization by discharging or reassigning you or in any other manner discriminating against you regard to any term or condition of employment. WE WILL NOT bypass your union and deal directly with you about matters which should be discussed with your union representatives, and WE WILL NOT unlawfully seek to induce you to abandon your membership in any union. WE WILL NOT in any like or related way interfere with, restrain or coerce you in the exercise of your rights under the National Labor Relations Act. WE WILL offer Joseph E. Robinson, Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially similar job, without preju- dice to his seniority or other rights and privileges, and make him whole, with interest, for any loss of earnings he may have suffered as a result of our discriminatory act in firing him WE WILL return Larry Rightler to the job he held on May 4, 1987 or, if that job no longer exists, to a substan- tially similar job. WE WILL remove from our records any references to the discharge of Joseph E. Robinson, Jr. and to the reas- signment of Larry Rightler on May 15, 1987, and notify them,'in writing, that this has been done and that those actions will not be used against them. LAMINATED PRODUCTS, INC.