Dentech Corp.

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Technodent Corporation d/b/a Dentech Corporation and Geoffrey Gehling and Robert Stefan Martin and Gary Gehling and Michael L. Pucci and Dennis Proctor. Cases 19-CA-17646, 19- CA-17674, 19-CA-17675, 19-CA-17680, and 19-CA-17794 June 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 16, 1986, Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions, a supporting brief, and an answering brief. The General Counsel filed exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, fmdings,2 and conclusions, except as modified below.3 The complaint alleged, inter alia, that employee Robert Hamilton, acting as an agent on the Re- spondent's behalf, violated Section 8(a)(1) of the Act by soliciting employees to sign a petition de- nouncing the Union. It alleged further that Hamil- ton, acting as an agent on the Respondent's behalf, threatened employees by stating that the Respond- ent would move to Canada if the employees did not denounce the Union. The judge found that Hamilton did not act as the Respondent's agent and dismissed the complaint's allegations regarding Hamilton. Contrary to the judge, we find that Hamilton was the Respondent's I The General Counsel excepts to the ,fudge's failure to find that cer- tain statements made by the Respondent's supervisor, Wilf Veser, violat- ed Sec 8(a)(l) of the Act We find it is unnecessary to pass on these ex- ceptions because the additional findings sought by the General Counsel would be cumulative and would not change the Order 2 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 The General Counsel requested a visitatonal provision Under the cir- cumstances of this case, we find the provision unnecessary See Cherokee Marne Terminal, 287 NLRB 1080 (1988) 9In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) agent and that the Respondent, by Hamilton's con- duct, violated Section 8(a)(1) of the Act. The facts relevant to the complaint allegations regarding Hamilton, as found and more fully set forth by the judge, may be briefly summarized as follows. The Respondent manufactures dental equipment. It originally was located in North Vancouver, Brit- ish Columbia, Canada, where it had a machine shop and an assembly shop. Beginning in late 1983, the Respondent moved its operation to Sumas, Washington. It initially located in a former bowling alley but, in November 1984, moved into a new fa- cility in Sumas. The Respondent' s management in- cludes Anton Simor, the Respondent's president, Wilf Veser, the manufacturing manager in charge of the machine shop, and Al Kennedy, the produc- tion manager in charge of assembly.4 At the time of the hearing in this case, the Respondent main- tained operations in both Sumas, Washington, and Clearbrook, Canada. Hamilton was hired by the Respondent in Febru- ary 1984-roughly 1 year before the events in issue here. Sometime later, Hamilton participated in a job training program offered by the Private Indus- try Council. This program was designed to afford employees on-the-job training. After the union organizing commenced, Hamil- ton undertook efforts to persuade employees that they could act as their own bargaining agent. Be- ginning on the evening of February 1, 1985, and during the following weekend, Hamilton tele- phoned various employees to express his views. According to Hamilton, he did not discuss his ideas with management before making his telephone calls. On Monday, February 4, 1985, Hamilton posted a notice to employees on the Respondent's prem- ises. As noted by the judge, no employee had pre- viously posted any such notice. Hamilton had pre- pared the notice over the weekend. According to Hamilton, he did not discuss the notice or its post- ing with any of the Respondent's officials. The notice advertised an employee meeting the follow- ing day (Tuesday, February 5) on the first coffee break. The stated topics were, among others, em- ployer-employee relations, the Company's future, and the possible formation of an employee commit- tee, which would represent the employees. During the week of February 4, Hamilton con- ducted two employee meetings. Both meetings ex- tended beyond breaktime, but in both instances 4 As the judge noted, it was admitted in the pleadings that Simor, Veser, and Kennedy were company supervisors within the meaning of Sec 2(11) of the Act and agents within the meaning of Sec 2(13) of the Act 294 NLRB No. 83 DENTECH CORP Hamilton assured employees that they could stay until they finished the business before them.5 Virtu- ally all employees attended the meetings . Hamilton expressed, inter alia, his reasons for believing that union representation was unnecessary. He urged employees to "stick behind" Simor (i.e., Anton Simor, the Respondent's president) and also to elect their own representatives to talk with Simor. According to the- credited testimony of employee Proctor, Hamilton told employees that if they did not follow Simor, Simor would keep his promise and move to Canada.6 At the second meeting,' Hamilton discussed with the employees the Re- spondent's new employee handbook . Hamilton an- swered the employees' questions regarding the handbook and stated it was a fair promise that Simor had put on paper." Thereafter, on February 7, Hamilton solicited numerous employees to sign a petition renouncing support for the Union.9 Hamilton solicited on worktime and at the employees' work place. Em- ployee Olson, in particular, was upset by Hamil- ton's solicitation and discussed the matter with Production Manager Kennedy. She asked if she would be fired for not signing the petition. Kenne- dy gave noncommittal responses and told her to do what she thought best for her. Later that day, in the presence of Kennedy and employee Warren, Hamilton asked Olson to sign the antiunion peti- tion. She signed, and attempted to hand the peti- tion to Kennedy. Kennedy refused to take it. She then gave the petition to Warren, but Warren re- fused to sign it. On February 7 two union representatives from the United Auto Workers came to the Respond- ent's facility and asked to see President Simor. When they first arrived about 2 p.m., they were told by Supervisor Kennedy to return at 4:30.10 5 In regard to the first meeting, the judge credited employee Tate, who estimated the meeting lasted 15 minutes beyond the end of breaktime 8 According to the credited testimony of employee Michael Tuttle, Hamilton , on February 2 at a grocery store, had similarly informed him that Simor would move to Canada if the Union came in 7 Although supervisors did not attend these two employee meetings, it is undisputed that Production Manager Kennedy appeared at one of the meetings to deliver copies of the Respondent 's handbook As the hand- book was discussed at the second meeting, Kennedy's appearance was presumably at this meeting 8 The judge found, and we agree, that the Respondent , by distributing a new employee handbook, promised employees new benefits in order to discourage support for the Union and thereby violated Sec. 8(a)(1) of the Act Further, the judge found, and we agree, that the granting of the benefits set forth in the new handbook discouraged union organizational activity in violation of Sec 8(a)(3) and (1) of the Act s Simor admitted he became aware of the petition during the first week of February 1985 However, he stated he did not see the petition until a Board agent showed the document to him 10 Also, Simor acknowledged that he was informed by Elizabeth Pekari, the office manager and an admitted supervisor, that union repre- sentatives had come to the office to see him 925 On returning at 4:30 p.m., they spoke with the re- ceptionist. She made a phone call and, about 10 minutes later , the union representatives were ap- proached by Hamilton. After discussion, Hamilton gave them a document which was an antiunion pe- tition that Hamilton acknowledged he had circulat- ed. Thereafter, the union representatives were told by Pekari that Simor would not meet with them that day. The judge, in deciding the issue of Hamilton's agency, examined whether, under all the circum- stances, the employees would reasonably believe that Hamilton spoke for and acted on behalf of company management. See, e.g., as cited by the judge, Futuramik Industries, 279 NLRB 185 (1986); Community Cash Stores, 238 NLRB 265 (1978). Es- sentially, this test is one of determining whether the employee had apparent authority to act for the employer in the matters in question. Thus, the judge also cited Corrugated Partitions West, 275 NLRB 894, 900 (1985), in which the Board adopt- ed a judge's holding that: [T]he Board has long held that where an em- ployer places a rank-and-file employee in a po- sition where employees could reasonably be- lieve that the employee spoke on behalf of management, the employer has vested the em- ployee with apparent authority to act as the employer's agent, and the employee's actions are attributable to the employer. [Citations omitted.] See also Sherwood Diversified Services, 288 NLRB 341 (1988). Contrary to the judge, we find, for rea- sons set forth below, that Hamilton had apparent authority to act on behalf of management with re- spect to the union campaign. Additionally, we find, applying the doctrine of ratification, that Hamilton acted as the Respondent's agent . See generally Service Employees Local 87 (West Bay), 291 NLRB 82, 83 (1988), in which the Board noted: Section 2(13) of the Act provides that: In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts per- formed were actually authorized or subse- quently ratified shall not be controlling. Apparent authority is created through a manifestation by the principal to a third party that supplies a reasonable basis for the latter to believe that the principal has authorized the al- leged agent to do the acts in question. NLRB v. Donkin's Inn, 532 F.2d 138, 141 (9th Cir. 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1976); Alliance Rubber Co., 286 NLRB 645, 696 fn. 4 (1987). Thus, either the principal must intend to cause the third person to be- lieve that the agent is authorized to act for him, or the principal should realize that this conduct is likely to create such belief. Restate- ment 2d, Agency § 27 (1958, Comment). Two conditions, therefore, must be satisfied before apparent authority is deemed created: (1) there must be some manifestation by the principal to a third party, and (2) the third party must be- lieve that the extent of the authority granted to the agent encompasses the contemplated ac- tivity. Id. at § 8. On the other hand, ratification is defined as "the affirmance by a person of a prior act that did not bind him but which was done or pro- fessedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Id. at § 82. Sec- tion 83 defines "affirmance" as either (a) a manifestation of an election by one on whose account an unauthorized act has been done to treat the act as authorized, or (b) conduct by him justifiable only if there were such an elec- tion. Finally, Section 94 states that "[a]n af- firmance of an unauthorized transaction can be inferred from a failure to repudiate it." Applying the doctrine of apparent authority, we find that the Respondent was responsible for Ham- ilton's action even in the absence of direct evidence that it initiated or actually authorized these actions. Numerous factors here would reasonably lead em- ployees to believe that Hamilton was acting on behalf of management. Hamilton acted as one with more authority than would be expected of an employee with but a year's tenure. As the judge found, Hamilton was the first employee ever to post a notice and call an employee meeting. This fact, as the judge acknowl- edged, provided support for a finding of agency. Hamilton's statements were consistent with the message being conveyed by management.' 1 For example, his statements regarding the Respondent's moving to Canada (as described in the credited tes- timony of employees Tuttle and Proctor) were similar to the unlawful threats made by Simor, Kennedy, and Veser. The Respondent, through Manufacturing Manag- er Veser and Production Manager Kennedy, had 11 Obviously, this factor, by itself, does not warrant a finding of agency . Otherwise, an employee could assume agency status by acting, without his principal's knowledge, in the same fashion as the principal Nonetheless, when an employee conveys management 's messages-with management's knowledge-this factor may lend support to a finding of agency See, e .g, Jules V. Lane, DD.S., PC, 262 NLRB 118 (1982). full knowledge of Hamilton's actions. The Board has held that apparent authority may be inferred when an employee acts with the cooperation of or in the presence of supervisors. See, e.g., Advanced Mining Group, 260 NLRB 486, 503-504 (1982) (so- licitation in presence of Supervisor Bartoletti); Wm. Chalson & Co., 252 NLRB 25 (1980) (conduct of employee Lissaris). Hit 'N Run Food Stores, 231 NLRB 660, 668-669 (1977) (conduct of employee Thane). Here, Veser cooperated with Hamilton by telling employee Gobbato about the employee meeting and giving Gobbato permission to attend. Kennedy cooperated with Hamilton by bringing copies of the Respondent's new handbook to the employee meeting so they could be presented and discussed by Hamilton. As discussed more fully infra, Hamilton solicited for the antiunion petition in the presence of Kennedy. The Board has held that an employer's failure to disavow and/or discipline an employee for conduct engaged in with company knowledge may warrant an inference of apparent authority. See, e.g., Haynes Industries, 232 NLRB 1092, 1099-1100 (1977) (agency status of employee Cox). Similarly, an employer's permitting an employee to use com- pany time for his activities is an indication that the employee acts for the employer . See, e.g., MGR Equipment Corp., 272 NLRB 353, 358-359 (1984) (agency status of employee Credell); see also F. W.I.L. Lundy Bros. Restaurant, 248 NLRB 415, 431 (1980).12 Here, Hamilton extended both employee meet- ings beyond breaktime and into worktime. The cir- cumstances clearly warrant an inference that the Respondent's supervisors were well aware of Ham- ilton's actions, and it is undisputed that they made no effort to send employees back to work. 1 s Surely, employees would view the action by Ham- ilton-done without objection by management-as being done with the imprimatur of management. Though Simor later admonished Veser and Kenne- dy not to permit meetings to extend into worktime (and Kennedy so informed Hamilton), Simor did not express his disapproval of Hamilton's extending the meetings to the employees. Certainly, in the subsequent employee meetings conducted by 12 Cf Knogo Corp, 265 NLRB 935 (1982) There, the Board concluded that an employee, in soliciting for an antiunion petition on company time, was not an agent of management In so finding, the Board relied on the employer's response to the employee's actions "By putting an immediate halt to [the employee's] worktime campaigning and by reprimanding her for that activity, [the employer] showed it was neither acquiescing in nor condoning the petition " 13 Virtually all employees attended the meetings and thus production would have ceased during the meetings-a fact of which the supervisors would be well aware Also, in regard to the second meeting, Kennedy, having delivered the handbooks to the meeting, would have been aware of the activities of Hamilton and the other employees' DENTECH CORP. Simor, he. had ample opportunity to state that Hamilton had operated without management's ap- proval,-but he failed to do so.14 At the meeting at which the Respondent's new handbook was discussed, Hamilton became-with the Respondent's knowledge and approval as evi- denced by Kennedy's delivery of the handbooks to the meeting-the Respondent's spokesman, indeed its first spokesman, in regard to the new handbook. Thus, Hamilton explained the handbook and an- swered the employees' questions about the hand- book. Employees would reasonably believe that Hamilton, in these circumstances, was acting on behalf of and in conjunction with management. Perhaps most significant was management's fail- ure to disavow-and its acquiescence in-Hamil- ton's soliciting support during work time for the petition renouncing support for the Union. As noted, employee Olson informed Kennedy about her being pressured by Hamilton to sign the antiun- ion petition and sought assurances that she would not be fired for failing to sign the petition. Thereaf- ter, Hamilton, on company time and in Kennedy's presence, solicited Olson's and employee Warren's signatures on the petition. Kennedy took no action in regard to Hamilton.15 Thereby, Kennedy acqui- esced in Hamilton's actions and employees would reasonably believe Hamilton was acting on behalf of management. In our view, the foregoing factors favoring a finding of agency are substantially more persuasive than those factors relied on by the judge to find no agency. The judge relied significantly on Hamilton's statements to employees that he was acting on his own and not on behalf of management. But, Hamil- ton's statements to employees were inconsistent. While telling employees he was acting on his own, he contrariwise, at both employee meetings, as- sured employees that they could extend their meet- ing into worktime . 16 Similarly, Hamilton's state- ments to the effect that employees should elect rep- resentatives to meet with Simor bespoke actions taken in conjunction with Simor.17 Also Hamilton 14 Simor's statement of sympathy to employee Warren regarding her being pressured by Hamilton falls far short of a statement disavowing Hamilton's entire course of conduct 15 The judge , finding that Kennedy was noncommittal in his responses to Olson and that Kennedy later refused to take possession of the antiun- ion petition, concluded that Kennedy did not independently violate Sec 8(a)(1) by soliciting employees to sign the petition However , while Ken- nedy's "non-committal" actions may not have independently violated the Act, they served to reenforce the employees' belief that the Respondent condoned Hamilton's activities 16 According to the credited testimony of employee Gobbato, Hamil- ton told employees they had "permission" to stay at the meeting to handle the affairs in issue 17 According to the credited testimony of employee Proctor, Hamilton stated , inter aha, "Anton [Simor] wants some kind of decision or some 927 spoke of Simor's being "upset" that employees had not come to him with their problems-thus sug- gesting that Hamilton had discussed the Union with Simor and that Hamilton , was conveying Simor's message. Thus, overall, Hamilton's state- ments both claimed and disclaimed that he was acting on behalf of management. Thus, this factor does little to resolve the issue of Hamilton's agency. The judge relied on Simor's disapproval of Ham- ilton's continuing meetings into worktime . 18 How- ever, as previously noted, this disapproval was not conveyed to employees-though Simor had ample opportunity to do so in the meetings he conducted. The Respondent's failure to express its disapproval to employees would leave employees with the rea- sonable belief that Hamilton had had "permission" to extend the meetings. Finally, in finding no agency , the judge relied on "the fact that Simor rebuked Hamilton on 8 Febru- ary 1985 at a meeting of employees for what [em- ployee] Warren considered to be Hamilton 's pres- suring of her." However, Simor merely told Hamil- ton that he should not "pressure people." Simor, despite the clear opportunity to do so, did not dis- avow Hamilton 's course of conduct or state that Simor-and not Hamilton-spoke for the Respond- ent.19 Thus, the factors cited by the judge to find no agency status for Hamilton do not withstand scruti- ny. These factors fall far short of an effective dis- avowal to employees that would dispel the reason- able belief of employees that Hamilton was acting on the Respondent's behalf. Thus, in light of those factors discussed above showing that the Respond- ent permitted and cooperated with Hamilton so as to create among employees a reasonable belief that he was acting on management's behalf and the Re- spondent's failure , despite ample opportunity, to disassociate itself effectively from Hamilton's ac- tions, we find that Hamilton had apparent authority to act on behalf of management in his solicitation kind of notification of what we want, a choice between the union or dust policies " Further, the fact that Simor ultimately met with an employee commit- tee would reenforce the employees belief that Hamilton had acted with the Respondent 's approval 18 According to Hamilton , Kennedy conveyed sternly to Hamilton Simor's disapproval of extending the meetings 19 The judge , citing Uniontown Hospital Assn, 277 NLRB 1298 (1985), found it significant that Hamilton solicited for the antmnion petition on worktime However, the judge distinguished Uniontown, noting that Hamilton, unlike the employee in Uniontown , was not considered part of the management "team " Nonetheless, other significant factors discussed here would reasonably lead employees to believe Hamilton was acting on behalf of management Indeed, the employee in Uniontown , unlike Hamil- ton, did not conduct meetings of all employees during worktime nor act as the employer's spokesman regarding a new employee handbook 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of support for the antiunion petition and his related statements. In addition to being responsible for Hamilton's conduct under the doctrine of apparent authority, the Respondent's affirmance of and failure to repu- diate his actions constituted ratification of those ac- tions. Hamilton's actions in presenting the antiunion petition to the union representatives during work- time at the Respondent's premises-in circum- stances warranting an inference that Hamilton was acting with the Respondent's knowledge and ap- proval20-demonstrated an affirmative manifesta- tion of the Respondent's ratification of Hamilton's antiunion activities. Further, as previously noted, the Respondent, despite its knowledge of Hamil- ton's activities, did not effectively repudiate those activities. Though Simor ultimately had Hamilton informed that employee meetings should not con- tinue into worktime, he failed to disavow to the employees Hamilton's statements and conduct during those meetings. Though Simor "rebuked" Hamilton for "pressuring" employee Warren, Simor did not repudiate Hamilton's soliciting for an antiunion petition on worktime and in the work- place. Accordingly, we find that the Respondent, by both its action and inaction, ratified Hamilton's antiunion conduct.21 In light of the foregoing, we find that the Re- spondent, by Hamilton's conduct, violated Section 8(a)(1) of the Act by soliciting employees to sign a petition denouncing the Union and by threatening employees that the Company would move to Canada if they did not denounce the Union. AMENDED CONCLUSIONS OF LAW Insert the following after paragraph 4 and re- number the remaining paragraphs accordingly. "5. The Respondent, acting through its agent Robert Hamilton, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) by solic- iting employees to sign a petition denouncing the Union and by threatening its employees by stating that the Respondent would move to Canada if the employees did not denounce the Union." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- 20 As previously described, the union representatives were told on February 7 by Supervisor Kennedy to return to the Respondent's facility at 4 30 p m Simor was aware that the union representative wished to see him However, on returning and after a phone call by the Respondent's receptionist, the union representatives were met by Hamilton z 1 Although Member Cracraft agrees that the Respondent is liable for Hamilton's actions under the doctrine of apparent authority, she would not attach liability under the alternate theory of ratification spondent, Technodent Corporation, d/b/a Dentech Corporation, Sumas, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order, as modified. 1. Insert the following as paragraph 1(d) and re- letter the subsequent paragraphs. "(d) Soliciting employees to sign petitions de- nouncing the Union." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT engage in the following conduct in order to induce our employees not to support International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, or any other labor organization: soliciting employees' complaints and grievances and promis- ing to resolve them; promising employees the bene- fits set forth in an employee handbook and distrib- uting a new employee handbook to our employees; promising employees wage increases and monthly employee meetings with management; and suggest- ing that employees form a committee to meet with us to resolve issues. WE WILL NOT threaten employees that our Com- pany would move back to Canada if the employees selected the Union to represent them in the Sumas plant, and tell employees that our Company was closing its machine shop and moving it to Canada because our employees had voted the Union into the plant. WE WILL NOT grant new benefits to our employ- ees, as contained in an employee handbook, in order to discourage our employees from engaging in union organizational activities. WE WILL NOT solicit employees to sign petitions denouncing the Union or their union affiliations. DENTECH CORP WE WILL NOT terminate employees because they and other employees of our company, join, sup- port, or assist the Union, and engage in protected concerted activities. WE WILL NOT issue a written warning to you and terminate you because you have engaged in union and protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL offer Geoffrey Gehling, Gary Gehling, Robert Martin, and Michael Pucci immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their termination, less any net interim earnings , plus interest. WE WILL notify each of them that we have re- moved from our files any reference to their termi- nations and that their terminations will not be used against them in any way. WE WILL rescind the written warning issued to Michael Pucci on April 1, 1986, and WE WILL remove from our files any reference to that warn- ing, and notify Michael Pucci in writing that this has been done, and that the warning will not be used against him in any way. TECHNODENT CORPORATION D/B/A DENTECH CORPORATION Catherine M. Roth and Melvin R. Kong, Esqs, for the General Counsel. Timothy C. Farris, Esq. (Brett & Daugert), of Bellingham, Washington, for the Respondent. DECISION STATEMENT OF THE CASE ROGER B HOLMES , Administrative Law Judge Geof- frey Gehlmg filed the unfair labor practice charge in Case 19-CA-17646 on 18 July 1985. Robert Stefan Martin filed the unfair labor practice charge in Case 19- CA-17674 on 30 July 1985. Gary Gehling filed the unfair labor practice charge in Case 19-CA-17675 on 30 July 1985 . Michael J. Pucci filed the unfair labor practice charge in Case 19-CA-17680 on 31 July 1985. The Acting Regional Director for Region 19 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board , issued on 13 September 1985 an Order consolidating cases, consolidat- ed complaint and notice of hearing in Cases 19-CA- 17646; 19-CA-17674; 19-CA-17675; and 19-CA-17680. The General Counsel alleged that the Respondent, Tech- nodent Corporation d/b/a Dentech Corporation , had en- gaged in certain unfair labor practices within the mean- 929 ing of Section 8(a)(1) and (3) of the Act. I usually will refer to the Respondent in this decision as the Company The attorney for the Respondent filed an answer to the General Counsel's complaint and denied that the Re- spondent had committed the alleged unfair labor prac- tices Dennis Proctor filed the unfair labor practice charge in Case 19-CA-17794 on 16 September 1985. The Regional Director for Region 19 of the NLRB issued on 23 October 1985 a second Order consolidating cases, amended consolidated complaint and notice of hearing in Cases 19-CA-17646; 19-CA-17674; 19-CA- 17675; 19-CA-17680; and 19-CA-17794. The General Counsel alleged in that amended consolidated complaint that the Respondent had engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. The attorney for the Respondent filed an answer to that complaint and denied that the Respondent had com- mitted the alleged unfair labor practices. I heard the evidence in these consolidated cases at the hearing which was held on 14, 15, 16, 17, 22, and 23 Jan- uary 1986 at Bellingham, Washington. The time for filing posthearing briefs was extended to 17 March 1986. 1 have read and considered the briefs filed by the Counsel for the General Counsel and the attorney for the Re- spondent. FINDINGS OF FACT 1. JURISDICTION The Company is a Washington corporation with an office and place of business in Sumas, Washington, where it is engaged in the manufacture of dental equip- ment. During the 12 months preceding the issuance of the General Counsel's amended consolidated complaint, the Company had gross sales of goods and services valued in excess of $500,000. During that same period, the Company sold and shipped goods or provided serv- ices to customers outside the State of Washington, or the Company sold and shipped goods or provided services to customers within the, State of Washington, which cus- tomers were themselves engaged in interstate commerce by other than indirect means, of a total value in excess of $50,000. During that same period of time, the Company purchased and caused to be transferred and delivered to its facility, goods and materials valued in excess of $50,000 directly from sources outside the State of Wash- ington, or from suppliers within the State of Washington, who in turn had obtained such goods and materials di- rectly from sources outside the State of Washington. Based on the pleadings and the evidence presented in these cases, I find that the Company has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Based on the pleadings and the evidence presented in these cases, I find that the International Union, United Automobile, Aerospace -and Agricultural Implement Workers of America has been at all times material a labor organization within the meaning of Section 2(5) of 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Act. I usually will refer to that labor organization in this decision as the Union. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In making credibility resolutions in this proceeding, I have relied primarily on the demeanor of the witnesses while they were testifying. I noted their expressions and their manner of speaking in replying to questions both on direct examination and cross-examination. In answering some questions, the witnesses displayed more confidence and assurance in their answers than they did in respond- mg to other questions. Thus, I considered whether the witnesses spoke in a convincing manner. I also considered whether the record indicated that the witnesses had personal knowledge of the matters about which they were testifying. I considered also whether the record disclosed the basis for the witnesses' knowl- edge of the facts about which they testified, and I con- sidered whether that was a reliable basis. I considered also the consistency of the witnesses' accounts of events and the probability of their versions when compared with testimony from other witnesses and documentary evidence. I considered also whether the witnesses merely were responding to leading and suggestive questions on direct examination instead of nonleading questions. I con- sidered also the employment positions of the witnesses, their identification with one of the parties to the pro- ceeding, and the likelihood of their having a financial or personal interest in the outcome of the litigation. Finally, in making the findings of fact, I have been guided by the holding that it is common that a trier of fact will believe some of the testimony of a witness, but not necessarily believe all of it. The court held in NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950) at page 754: "It is no reason for refusing to accept every- thing that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial de- cisions than to believe some and not all." Anton Simor is the president of the Company involved in this proceeding. Simor started an earlier company known as Technodent Industries, Limited, in the early 1970's in Canada. Dentalez Corporation, which was a manufacturer of dental equipment in the United States, purchased the assets of Technodent Industries, Limited, ,in 1978. Simor remained with the Company as the vice president and general manager to run that operation for the next 3 years. Dentalez closed that operation after 3 years. Simor held the patent on the equipment which had been manufactured. He continued in the manufacture of dental equipment as Technodent Corporation d/b/a Dentech Corporation. The Company originally was lo- cated in North Vancouver, British Columbia, Canada, where the Company had a machine shop and an assem- bly shop. Except for one large order of about 120 units for the University of Toronto, the Company manufac- tured very few units at that time. The Company eventu- ally contracted with Healthco, Incorporated, in Boston, Massachusetts, to market exclusively the Company's product in the United States. As a result, Simor decided to open an operation in the United States. In addition to the Company's contract with Healthco to distribute its products in the United States, Simor gave additional reasons at the hearing for the move to Sumas, Washington. They were: the fact that Simor lived in Mission, Canada, which was closer to Sumas than Vancouver; the fact that he would fulfill one of his dreams to become a part of the United States; the fact that 80 percent of the Company's product was sold in the United States so Simor felt it was fair to produce the product in the United States; and the fact that the Com- pany had been paying a 5-percent duty on everything brought into the United States, whereas, if the product was manufactured in the United States and exported to Canada, the Company would not have to pay that duty. Simor had decided to move the Company's entire op- eration to Sumas, but he could not do so because of the lack of a good facility there at that time. The Company occupied a former bowling alley while its new facility in Sumas was being constructed. Simor obtained permission for people he described as being the Company's "key personnel" to move to the Sumas facility. Those key personnel are: Wilf Veser, who is manufacturing manager and in charge of the ma- chine shop; Al Kennedy, who is production manager and in charge of assembly; Elizabeth Pekari, who is office manager; and Gordon Shearer, who was in the Compa- ny's engineering department.' From about 6 employees when the Company began its operations in Sumas, the number of employees increased to about 25 employees at the Sumas facility and about 25 employees at the Company's Clearbrook, Canada, facility by the time of the hearing.2 Kennedy described the population of Sumas as being about 730 persons. He said that the Company moved the assembly work into the former bowling alley in Decem- ber 1983, and commenced production in January 1984. The Company remained in the former bowling alley until November 1984 when the assembly moved to the new facility. A week or so later the Company's machine shop also moved into that facility. Kennedy described at the hearing how the Company's operations had grown. He said that the first month that the Company had its operations in Sumas, the employees manufactured about 10 units. By February 1985 the employees manufactured between 80 and 120 units a month. By the time of the hearing, the employees manufactured between 200 and 250 units a month. a Respondent's Exhibit 13 is a copy of a letter dated 2 March 1984 from Simor to the mayor of Sumas regard- ing the Company's plans to establish a dental equipment manufacturing operation in that city. Among other things, Simor stated in his letter that the Company's new facility in Sumas would provide employment for about 15 to 25 unskilled or semiskilled workers. At the hearing ' It was admitted in the pleadings that Simor, Veser, Kennedy, and Pekan were company supervisors within the meaning of Sec 2(11) of the Act and agents within the meaning of Sec 2(13) of the Act 2 The foregoing paragraphs are based on a credited portion of the testi- mony of Sunor and documentary evidence 9 The foregoing is based on a credited portion of the testimony of Ken- nedy DENTECH CORP. Simor said those numbers of employees were based on the design of the facility which the Company was plan- ning to build at that time. General Counsel's Exhibit 21 is a copy of a letter dated 6 April 1984 from the vice chairman of the Com- munity Economic Revitalization Board to the mayor of Sumas regarding financial aid to the city for the purpose of extending a sewer line to the property where the Company was to construct a new building.4 After the Company's machine shop was moved to Sumas in November 1984, it took about a week to set up the machine shop in its new location. Thereafter the ma- chine shop began producing parts at that location. Except for the set-up person, the jobs performed in the machine shop were unskilled. Veser said at the hearing that it took virtually no training to perform the job of machine operator at the Sumas facility.5 General Counsel's Exhibit 8 consists of copies of the agreement between the Company and the Whatcom Job Training Center regarding the on-the-job training of Gary Gehling.6 The Private Industry Council took over that agreement from the Whatcom Job Training Center. General Counsel's Exhibit 10 consists of copies of the on-the-job training agreement between the Company and the Private Industry Council regarding Pucci. General Counsel's Exhibit 9 is a copy of a document entitled "On-the-Job Training Contract Terms and Conditions." Denise Dozier was formerly the employment coordi- nator of the Northwest Washington Private Industry Council At the time of the hearing she was employed by the Whatcom Opportunity Council. During her monthly visits to the Company, Dozier observed the skills re- quired of employees in the assembly area. She said that the positions were classified, and she had looked up a couple of those positions. Those positions were classified as unskilled. In placing a trainee in an on-the-job training program in the assembly area, Dozier looked for a train- ee who had no work experience; or who had some defi- ciency in skills; or who was mentally retarded, or who had learning disabilities who would be able to perform repetitious work.7 General Counsel's Exhibit 2 is a picture which illus- trates what the Company manufactures except for the dental chair which is shown in the picture. General in- formation regarding the placing of orders is set forth on the back of the picture, and there is a page from a com- pany brochure. The Company manufactures equipment that a dentist normally would use except for a dental chair and some handtools. The Company ships F.O.B. Sumas to destinations in the United States, and ships F.O.B. North Vancouver, B.C., to destinations in Canada." " The foregoing paragraphs are based on a credited portion of the testi- mony of Simor and documentary evidence 5 The foregoing is based on a credited portion of the testimony of Veser 6 Both the first and the last names of the Gehling brothers will be used in this decision in order to distinguish references to each of them 7 The foregoing paragraphs are based on a credited portion of the testi- mony of Dozier and documentary evidence 8 The foregoing is based on a credited portion of the testimony of Geoffrey Gehling and documentary evidence 931 Simor also had a 3500-square-foot facility on his prop- erty in Mission. He originally intended it to be a hobby shop, but Simor brought two employees from North Vancouver to that location. Those employees performed machining work there. Later on, the Company added other employees at that location.9 Findings of fact will be set forth later in this decision with regard to the employees' union activities and the events which preceded the representation election which was held on 12 March 1985 at the Company. The fol- lowing findings are some background evidence to be considered in the context of the later findings with regard to the alleged unfair labor practices. Ralph Gazzigli is an international representative with the UAW. On 7 February 1985 about 2 p.m. Gazzigli and Union Representative Wilson went to the Compa- ny's facility where Gazzigli spoke to the receptionist there. He identified himself by name and as being from the International Union, UAW. Gazzigli also gave his card to the receptionist, and he told her that he was there to see Simor. He also identified Wilson by name and as being with Local 232 from Seattle. The reception- ist replied okay, and then she started to lead them down a hallway. At that point another woman approached them and asked the receptionist what the gentlemen were there for. The receptionist replied that they were there to see Simor, and she handed Gazzigli's card to the other woman. The other woman looked at the card, and then she asked if they had an appointment. Gazzigli replied no. The other woman then told Gazzigli that he should have a seat in the lobby, and she would see if Simor could see them. Gazzigli and Wilson sat in the lobby for about 5 min- utes. Gazzigli noticed that a man walked through the lobby, and then the man returned to the lobby from the hallway where Gazzigli and Wilson had been previously. The man told Gazzigli and Wilson that they should come back at 4:30 p.m., and he would have an answer for them. Gazzigli asked the man for his name. The man told him his name was Al Kennedy. Gazzigli asked Ken- nedy how Kennedy was going to have an answer for Gazzigli when Gazzigli had not even asked a question. Kennedy replied that they knew why Gazzigli was there. Kennedy then suggested that Gazzigli come back at 4.30 p.m., and he would have an answer for them. Gazzigli then asked Kennedy if he had talked with Simor. Kenne- dy said yes, and he once again suggested to Gazzigli that Gazzigh come back at 4:30 p.m. when they would have an answer for them. Gazzigli replied okay; fine; and that they would come back at 4:30 p.m. Gazzigli and Wilson then left the Company's premises. Gazzigli and Wilson drove into the town of Sumas, got some coffee, and then drove to the vacant area across from the Company's facility. While they were waiting in their car, Gazzigli observed Simor drive away from the plant in a vehicle which previously had been described to Gazzigli as being Simor's vehicle. As a 9 The foregoing is based on a credited portion of the testimony of Simor 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD result of the foregoing, Gazzigh told Wilson that, it did not look as if Simor was going to meet with them at 4:30 p.m. Wilson replied no, that it did not. Gazzigli told Wilson that he had prepared a petition form to be filed with NLRB along with the union cards to get a repre- sentation election. Gazzigli also told Wilson that it was 3:30 p.m.; that Simor obviously was not going to meet with them; why didn't they drop the petition in the mail; then come back and talk to the Company; and if they did not get the petition in the mail that the Post Office would be closed by the time that they had left the Com- pany that day. Gazzigli and Wilson then drove to the Sumas Post Office and deposited the representation peti- tion there. At 4:30 p.m. Gazzigh and Wilson returned to the lobby at the Company's facility. Gazzigli told the recep- tionist that they were back to see Simor. The receptionist then picked up a telephone. Gazzigli made the assump- tion that she was announcing the fact that they were in the lobby. About 10 minutes later a man approached Gazzigli and Wilson in the lobby, and he started to hand Gazzigli a piece of paper. Gazzigli asked the man who he was. The man replied that his name was Bob Hamil- ton. Gazzigli asked Hamilton if Hamilton was represent- ing the Company. Hamilton replied that he worked there. Gazzigli asked him in what capacity did Hamilton work there. Hamilton replied that he was an employee. Gazzigli said he understood that, but he asked Hamilton where he worked. Hamilton replied that he worked in shipping and receiving. Gazzigli asked if Hamilton was there to represent Simor in a discussion with the UAW. Gazzigli told Hamilton that he was with the Internation- al Union, UAW. Gazzigh asked Hamilton if that was Hamilton's purpose. Hamilton replied yes. Hamilton told Gazzigli that he wanted to give him a paper. Gazzigli took the paper and examined it. Gazzigli next asked Hamilton if the paper was Hamil- ton's document. Hamilton replied yes, and that he wanted to give it to Gazzigli. Gazzigli again asked Ham- ilton if Hamilton was representing the Company. Hamil- ton again replied that he worked there. Gazzigli asked Hamilton if he was a supervisor or a member of manage- ment. Hamilton replied no. Gazzigli asked Hamilton if he was on a break. Hamilton replied no. Gazzigli asked if the Company had asked Hamilton to come there . Hamil- ton replied no; that he was the one who was doing this; and that he had got the signatures. Gazzigli asked Hamil- ton if he had done it on company time. Hamilton replied yes. Gazzigli then told Hamilton that Hamilton was in violation of the federal law, and that the Company was in violation of the federal law by having Hamilton, as a bargaining unit employee, go out on company time and solicit signatures on that document. Gazzigli suggested to Hamilton that he go back to work before Hamilton got himself any further deeply involved in an unfair labor practice charge. Gazzigli told Hamilton that that was very possibly what Hamilton may be involved in, and Gazzigli again suggested that Hamilton go back to work. Gazzigli told Hamilton that he was there to see either Simor or Simor's designated representative of manage- ment. Gazzigli said, if Hamilton had something he wanted to show Gazzigli or to discuss with Gazzigli, that Hamilton was a bargaining unit employee and Gaz- zigli suggested that Hamilton attend one of the union meetings . Gazzigli told Hamilton that he would be more than welcome to attend, but Gazzigli said that he sug- gested right then that Hamilton go back to work. At that time a woman, who Gazzigli later learned was Elizabeth Pekari, approached them. Hamilton left. Pekari told Gazzigli that Simor had received a telephone call; that he had to leave; and that he would not be able to see Gazzigli that day. Gazzigli gave Pekari his card, and he asked if she knew whether Simor would be there to- morrow. Pekari replied no; that she did not believe Simor would be there; and that she was not sure. Gaz- zigli told Pekari that he had to return to Northern Cali- fornia, but he would like to meet with Simor. Pekari told Gazzigli that she would suggest that Gazzigli call and make an appointment. Gazzigli said fine; asked if Pekari would tell Simor that Gazzigli would like to meet with him as soon as possible; and that Gazzigli would call to- morrow. Pekari replied fine, and she said why did not Gazzigh do that. Gazzigli and Wilson then left the Com- pany's premises. On 8 February 1985 about 10 a.m., Gazzigli tele- phoned the Company from Gazzigh's office in Fremont, California. The receptionist answered the telephone. Gazzigli asked if Simor was there. The receptionist placed the call on "hold," and then she told Gazzigli that Simor had not come in yet. Gazzigli told the receptionist his name; that he was with the International Union, UAW; that he wanted to leave his telephone number; and that he asked that the receptionist ask Simor to call Gazzigli as soon as Simor possibly could. The reception- ist said fine, and that she would take the message. Gazzigli did not receive a telephone call from Simor by the following Tuesday, 12 February 1985, so Gazzigli again telephoned the Company. The receptionist an- swered the telephone. Gazzigli identified himself to her, and he asked if Simor was in. The receptionist replied that she did not believe that Simor was in. Gazzigli then asked whether Simor had a personal secretary with whom Gazzigli might speak. The receptionist replied that she would put his call through to Pekari. Gazzigli said okay, fine, and thank you. Gazzigli recognized the voice of the woman who answered the telephone as being the same one with whom Gazzigli had spoken in the lobby during the previous week. Gazzigli identified himself to her, and he asked who she was. The woman replied that she was Elizabeth Pekari. Gazzigli told her that he had called a couple of times, but he had not re- ceived a call back from Simor. Gazzigli asked her if she knew whether Simor had received Gazzigli's messages. Pekari replied yes; that Simor had received Gazzigli's messages; and that she believed that Simor would call Gazzigli when Simor had the opportunity to do so. Gaz- zigli replied okay; fine; and that he just wanted to be sure that Simor was receiving Gazzigli's messages; that Gazzigli would be in his office all of that day; and if Simor called, Gazzigh would receive the message. At the hearing Gazzigli said that he never received a telephone call from Simor, nor did Gazzigli make any DENTECH CORP 933 further calls in view of his earlier telephone calls and visits to the company 10 The Union won the representation election. General Counsel's Exhibit 16 is a copy of the tally of ballots. It was admitted in the pleadings that the Union was certi- fied on 4 April 1985 as the exclusive collective-bargain- ing representative of the Company's employees in the unit described below. All production and maintenance employees em- ployed by the employer at its 529 West Front Street, Sumas, Washington 98295 location, exclud- ing all other employees, and guards and supervisors as defined in the Act After the representation election was held and the Union was certified, the Company received a letter from the Union requesting a list of the employees and the wages of the employees. Simor complied with that re- quest for information. Subsequently, Simor received a second letter from the Union in which it disclaimed in- terest in representing the Company's employees 11 It was admitted in the pleadings that the Union advised the Company by letter dated 14 August 1985 that the Union disclaimed any further interest in representing the unit employees, and that the Union's certification of repre- sentative was revoked on 26 August 1985 At the hearing, the Respondent moved to dismiss the complaint in this proceeding on the grounds that there had been an abuse of the Board's processes The Re- spondent urged that the testimony of Barbara Harmon revealed that an NLRB agent had urged Harmon to file a charge. (See transcript pages 876-881.) I denied the motion at the hearing After I received the transcript, and after I have reviewed the record in this proceeding, I have decided to adhere to that ruling. In order to un- derstand the basis for the ruling, I will set forth the fol- lowing findings From the middle of October 1984 to 4 February 1985, Barbara Harmon was the receptionist at the Company's Sumas facility. Her immediate supervisor was Pekari. Sometime after Thanksgiving 1984, an applicant for employment came to the Company's facility. In the opin- ion of Harmon, the applicant's resume indicated that she had training in operating a computer. Harmon heard Pekari ask Simor what he thought they should do Simor replied to keep her name on file, and they would see about it later. Soon afterwards Harmon asked Pekari whether Harmon would be terminated if they found a new person who could run a computer Pekari replied no, and that it would be a separate position Harmon received a telephone call at work from a woman who was inquiring about the receptionist job. Be- cause Harmon was the receptionist at that time on 16 10 The foregoing paragraphs are based on a credited portion of the tes- timony of Gazzigli Gazzigli 's account is much more detailed and specific than the testimony of Hamilton regarding their conversation I found that Gazzigli's recollection of this event was better than Hamilton's recollec- tion There will be additional findings regarding the document (G C Exh 4), in section E of this decision Pekari was not called as a witness to testify at the hearing in this proceeding u The foregoing is based on a credited portion of the testimony of Simor January 1985, she asked Pekari if Pekart was going to re- place her Pekari said yes, and that she had intended to let Harmon know as soon as Pekari had found some- body. Harmon asked Pekari why she was getting rid of her Pekari replied that she was not happy with Har- mon's progress, and that Pekari did not think Harmon was capable of handling the job Pekari then gave Harmon the option of staying for 2 weeks or accepting 2 weeks severance pay right then Harmon asked if she could stay for 2 weeks while Pekari found someone be- cause Harmon did not want anyone at the Company to know that she was being fired. Harmon wanted everyone to believe that she was quitting work. Pekari said that would be fine. On 30 January 1985 Pekari had a conversation with Harmon in Pekari's office Pekari asked Harmon what Harmon thought of the Company. Harmon replied that she liked the Company, and that she wanted to stay. Harmon asked whether there was a possibility that Harmon could work in assembly. Pekari replied that would be up to Kennedy, and that Harmon should talk to him: Pekari said she wanted Harmon to stay as the re- ceptionist for some additional time because Pekari ad- mired the effort Harmon had made during the previous 2 weeks, and Pekari thought that Harmon was trying harder. On 4 February 1985 Pekari told Harmon that the com- puter company had suggested to Pekari that she have an extremely efficient person working for her, and that Pekari needed to find such a person. That was Harmon's last day of employment with the Company Sometime after her termination by the Company, Harmon had a telephone conversation with a female field examiner of NLRB. Harmon did not identify the field examiner by name, nor did she testify as to when the telephone conversation with the NLRB agent had taken place In her conversation Harmon briefly told the field examiner what had happened Harmon believed that she told the field examiner that she did not feel like she had been fired for union activity The field examiner told her, if Harmon had "a legitimate case," she needed to file in order to meet the deadline Harmon further testified re- garding what the field examiner told her: "But just in case I did have a legitimate case, I should make sure I meet the deadline. And that is what he suggested "12 The field examiner also told Harmon that she was going to go ahead and send Harmon the form Harmon further testified with regard to what the field examiner told her- "If I am interested at all in the case to make sure I got it off in the mail immediately " According to Harmon, she did file a charge with NLRB, but she was too late in filing her charge 13 In connection with the motion to dismiss, I also have considered Martin's testimony regarding his contact with an NLRB agent, and his decision to file an unfair labor i z Harmon earlier stated that her telephone conversation was with a lady, but Harmon used both "she" and "he" in referring to the person Harmon called a "field representative " 13 The foregoing is based on a credited portion of the testimony of Harmon The NLRB field examiner was not called as a witness to testify at the hearing in this proceeding 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practice charge which is involved in this proceeding. Harmon did not identify the NLRB agent by name. Martin identified the NLRB agent who contacted him as being Elizabeth Hart. Presumably, the same agent con- tacted separately both Martin and Harmon. Martin's tes- timony regarding his conversation with Hart was more detailed than Harmon's testimony regarding her contact with an NLRB agent. I have considered Martin's testi- mony in this regard to ascertain whether there were si- milarities or differences in their contacts with an NLRB agent before each one filed an unfair labor practice charge against the Company. At the time that the Company terminated him, Martin believed that the Company had terminated him because of union activity. However, he was not sure at that time whether it was illegal for the Company to do so. At the hearing, he said that he did not remember whether the Union told him what his rights were . Subsequently, Martin was contacted by NLRB agent Hart who asked Martin if he wanted to give a statement. Martin asked her whether the law had been violated, and whether there was a case against the Company. Hart said yes, so Martin gave her information at a later date when she came to his residence. Hart questioned Martin about the events pertaining to his termination and what had hap- pened on 1 February 1985. Martin decided to file a charge after Hart told him that a person could not be fired for asking for better working conditions or wages. She offered to send the forms to Martin. Martin asked her if there was a case, and she said that there was. After Martin got the form, Martin said it was his own decision as to whether or not to send the form in. 14 In connection with the above , I also have considered the testimony of Proctor regarding his conversation with NLRB agent Hart. Hart contacted Proctor with regard to giving a statement. Proctor testified that Hart did not urge Proctor at any time to file a charge. Proctor also testified that Hart did not discuss with Proctor whether or not he should file a charge. 15 As indicated above, I adhere to my ruling which denied the Respondent's motion to dismiss the complaint based on the testimony of Harmon . The test to be ap- plied in these circumstances is whether the NLRB is ini- tiating the proceeding on its own motion. NLRB v. Reli- ance Steel Products Co., 322 F.2d 49 (5th Cir. 1963). I conclude that the evidence presented does not meet that test. First of all, Harmon's unfair labor practice charge against the Company is not a part of this proceeding, and Harmon's charge is not before me. Secondly, I conclude from Harmon's testimony that the NLRB agent was in- forming Harmon of the approaching deadline for filing a charge. Thus, I conclude that the NLRB agent was ex- plaining in nonlegal terminology the 6-month statute of limitations provisions of Section 10(b) of the Act, rather than soliciting the filing of a charge against the Compa- ny. Further, the testimony of Martin and Proctor indi- cate that Hart did not solicit them to file their unfair 14 The foregoing is based on a credited portion of the testimony of Martin. 's The foregoing is based on a credited portion of the testimony of Proctor. labor practice charges against the Company in this pro- ceeding. In view of the foregoing, I adhere to my earlier ruling. B. The 8(a)(1) Allegations Pertaining to Anton Simor 1. Allegations The General Counsel's complaint paragraph 7 alleged: The Respondent, acting through Anton Simor, at Re- spondent's facility, engaged in the following acts and conduct at the times set forth below: (a) On or about 7 February 1985 met with employees for the purpose of soliciting employees' complaints and grievances in order to induce employees not to support the Union. (b) On or about 7 February 1985 promised to resolve employee complaints and offered benefits of vacation pay, wage increases, a written employee handbook, and medical insurance, in order to induce employees not to support the Union. (c) On or about 7 February 1985 promised to imple- ment monthly employee meetings and the selection of representatives to meet with management to resolve problems in order to induce employees not to support the Union. (d) On or about late February 1985, threatened em- ployees that if they selected the Union as their exclusive bargaining representative, that the Company would move to Canada. (e) On or about late February 1985, promised employ- ees that written warnings would be given before termina- tion if they discontinued their support for the Union. (f) On or about late February 1985, threatened em- ployees by stating that anyone who voted for the Union would not be there very long. (g) On the day of the election, 12 March 1985 threat- ened employees by stating that anyone who stuck with the Union would not work much longer. (h) During the months of February, March, and April 1985, interrogated employees on several occasions re - garding their union sympathies and support and about the sympathies and support of other employees. (i) During the months of February, March, and April 1985, held meetings with certain employees as an em- ployee committee and solicited grievances and promised improved working conditions and benefits in order to discourage activities on behalf of the Union. (j) During the months of February, March, and April 1985, disparaged the Union by telling employees that they do not need a union since they now have an em- ployee handbook and employee committee, and the Company would not meet with the Union, and that the Company did not want the Union on its premises. 2. Facts The General Counsel's allegations in this section per- tain only to statements allegedly made by Simor. There were several group meetings held in the Company's lunchroom between company management and company employees in February and March 1985. A copy of Gen- eral Counsel's Exhibit 5, an employee handbook, was DENTECH CORP given to employees at one of those meetings. In addition to those group meetings Simor also had separate meet- ings with certain employees who were acting as repre- sentatives of the employees. Simor also had a separate conversation with employee Judi Tate which she initiat- ed and which is pertinent to these allegations by the General Counsel. Regarding the subject matter of the General Counsel's allegations in subparagraphs (a), (b), and (c) quoted above, Simor told the employees that he was disappoint- ed with them because they had not come to him with their problems; that the employees could come to him with their-problems instead of going to a union; that the employees did not need other people or outsiders to talk for the employees, that the Company would not work with the union; that the Company did not want a union looking over their shoulder; that the employees could trust him as a man of his word; that he was the obvious choice to be able to do something about their problems; that the employee handbook (G.C. Exh. 5) was what he was prepared to offer to the employees and what he would give to the employees; that he stood by every- thing contained in the employee handbook; that instead of a 25-cent-an-hour wage increase every 3 months, there would be a 50-cent-an-hour wage increase every 3 months up to $6 an hour for the machine shop, and thereafter increases depending on the cost of living; that Simor wanted to have better communication between him and the employees, so there would be meetings on the first Friday of each month; that the employees could do better without the Union and probably have higher wages later on; that all the Union wanted was their union dues; that Simor had experience in labor relations in Japan where a company had its own union, but not an international union; that a company union knew the issues of that company and its employees; and that Simor suggested that the employees have a committee, if they did not want to come to him on an individual basis, and have unity among themselves. Simor admitted at the hearing that the Company began to hold meetings with employees in February 1985, and that the Company thereafter held meetings with employees each month. The foregoing findings are based on a composite of the credited portions of the testimony of alleged discrimina- tee Marion Gobbato; employee Diane Minaker; former employee Deborah Olson; Charging Party and alleged discriminatee Dennis Proctor; Company President Anton Simor; former employee Judi Tate; and alleged discri- minatee Michael Tuttle. In doing so, I have considered the criteria set forth at the outset in section A. Because of the passage of time, I found that some witnesses re- membered certain points more clearly than others. I rec- ognized the fact that it was difficult for the witnesses to state specifically when the various meetings with em- ployees were held and to separate the statements Simor made in one meeting from another meeting. Neverthe- less, the findings above reflect credible testimony regard- ing statements which Simor made. In part, the findings also are based on credited portions of Simor's own testi- mony. Based on the criteria set forth in section A, I do not credit testimony in conflict with the above findings 935 Regarding the subject matter of the General Counsel's allegations in subparagraph (d) quoted above, Simor told the employees in the meetings that he would move the Company back to Canada if the Union came in the Com- pany. Simor indicated in his testimony that the Union's de- mands were not a concern to him, that he did not know what kind of demands to expect from the Union, that he never received any demands from the Union, and that his major concern was his anger at irresponsible union organizers who did not know anything about the em- ployees and the Company. In response to the question: "What kind of demands did you think the union might make?," Simor testified: I wasn't concerned about their demands. What my major concern was that it split up the employ- ees. They were people, they were friends before, later on were enemies. They wouldn't talk to each other and it was a major concern. I was concerned about coming in with [a] wage request, but my major concern was I was angry at the union orga- nizers that in my opinion were very irresponsible to barge in there and start something which they don't know anything about the employees and the compa- ny. But of course I was concerned about demands, but I can't really say what kind [of] demands I ex- pected from them to present to me. I never really received any demands from them at all. They never even bargained. The foregoing findings are based on a composite of the credited portions of the testimony of Gobbato, Proctor, Pucci, Tate, and Tuttle as well as the admissions quoted above from Simor's testimony. Based on the criteria set forth in section A, I have credited their accounts on this subject matter. I do not credit the testimony to the con- trary given by employee Robert Dale Hamilton, Produc- tion Manager Kennedy, current employee Minaker, Company President Simor, current Assembly Foreman Susan Stafford, and current employee Vera Warren With regard to the subject matter of the General Counsel's allegations in subparagraph (e) quoted above, I do not find any credible evidence that Simor made such a statement to employees. The subject of warnings is covered in General Counsel's Exhibit 5, the employee handbook. However, the General Counsel's allegations regarding the employee handbook are in subparagraph 7(b) above and in paragraph 12 of the General Counsel's complaint. With regard to the subject matter of the General Counsel's allegations in subparagraph (f) quoted above, Simor told the employees in a meeting before the elec- tion day that the employees would keep their jobs no matter which way they voted in the election. The fore- going findings are based on a composite of the credited portions of the testimony of Gobbato and Pucci. With regard to testimony concerning statements made by Simor on the day of the election, Proctor saw Simor standing next to the door of the lunchroom during the morning on the day of the election. Proctor was "off at a distance in another group of people; not too far away, 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD just kinds, listening to what everybody else was saying." Proctor overheard Simor say that Simor would move the Company to Canada if the Union got in. Proctor did not know to whom, if anyone, Simor was speaking. The foregoing findings are based on a credited portion of the testimony of Proctor. With regard to the subject matter of the General Counsel's allegations in subparagraph (h) quoted above, I do not find credible evidence that Simor coercively in- terrogated employees as alleged in that subparagraph. With regard to the subject matter of the General Counsel's allegations in subparagraph (i) quoted above, there were three meetings between Simor and an em- ployee committee. The meetings were held in Simor's office. Gobbato, Pucci, and Terry Taylor attended as the employee committee. Simor told the employee committee that he was disap- pointed in them because they had gone to the Union in- stead of coming to him. Simor told the employees that if he had a problem with his wife, he would not go "blab- bing it around to everybody in town." Simor told the employees that he would go to his wife . Simor asked them why they could not solve these problems without a union. One of the employees told Simor that they did not feel that they were being treated fairly; that they wanted to know about job security; that they wanted to know why people were fired; that they wanted to know if they ever would have medical insurance; and they wanted to know why there was never any acknowledge- ment of the employees other than the fact they had coffee and doughnuts every day. Simor told them that he did not want the Union, and that he did not want anything to do with the Union. Simor told them that if the Union came in, he would move the Company. Simor also told them that he could not afford a union, and that there were people in Canada who would be happy to work for $7 an hour. At one of the meetings Pucci asked Simor if the people who had been fired on 1 February could be called back to work. Simor replied that that was impossi- ble, and that he could never bring back those people. At the second meeting of the employee committee with Simor in Simor's office, Simor told the committee that he knew that the employees had accepted the em- ployee handbook. Simor asked the committee to hold a meeting of the employees and write down on a piece of paper what the employees wanted. Simor told the com- mittee that the employees could be represented by Simor's attorney, or the employees could have their own attorney. Simor told the committee to bring the paper to him at their next meeting in a couple of days. Simor also told the committee that the reason that he wanted the employees to come up with their own ideas was that he would move the Company, starting with the machine shop and then the assembly, if the employees voted the Union in. Simor told the committee that he wanted the employees to forget about the Union and write up their own presentation. At the third meeting of the employee committee with Simor, the employee committee told Simor that the em- ployees wanted job security, medical insurance, cost of living raises, and that Gary Gehling, Geoffrey Gehling, and Martin be rehired. Simor told the employee commit- tee that that was impossible. Simor told the committee that he did not want the paper, that his handbook was good, that he felt the handbook was good enough, and that he was not going to accept what the employees had asked him to give them. Simor asked Pucci what Pucci had told Kennedy about not thinking that Simor would move the Company and that Simor was bluffing. Simor told Pucci that Simor was not bluffing, and that he would move the Company to Canada if the Union came in. The foregoing findings are based on a composite of the credited portions of the testimony of Gobbato and Pucci based on the criteria set forth earlier in section A. In re- telling what was said at the three meetings , they did not use identical words and phrases, but I found their ac- counts to be consistent. The passage of time between the events in question and the time that they gave their testi- mony at the hearing has to be weighed and considered. Based on the criteria in section A, I do not credit Simor's account. Taylor was not called as a witness to testify at the hearing in this proceeding. Regarding the subject matter of the General Counsel's allegations in subparagraph (j) quoted above, Simor had a meeting with Judi Tate in Simor's office. Tate initiated the meeting with Simor. Their conversation took place sometime between the second and third meetings of em- ployees with management. Simor told Tate that he was distressed that the em- ployees had gone behind his back and communicated with the Union. Tate told Simor that the employees had attempted to communicate with him. Simor told her that he did not trust the employees anymore than the employ- ees trusted him. Simor and Tate discussed the employee handbook and what the employees considered regarding the handbook. Tate suggested to Simor that there must be some legal way to make the handbook more binding. Simor told her that he would contact his lawyer and dis- cuss that with him, but as far as Simor was concerned, the handbook was as good as Simor's word. Tate asked Simor if he would talk to the union people. Simor re- plied no, absolutely not. Simor said he did not want them on the property, did not want them in his office, did not want them anywhere . Simor told Tate that he would not talk to them. The foregoing findings are based on a credited portion of the testimony of Tate. 3. Conclusions With regard to the General Counsel's allegations in subparagraphs (a), (b), and (c) of paragraph 7 of the General Counsel's complaint, I conclude that the state- ments made by Simor to the Company's employees at the meetings with management constitute a solicitation of the employees' complaints and grievances and a promise to resolve them if the employees came to him instead of going to the Union. Thus, Simor told the employees that they could come to him with their problems instead of going to a union; that he was the obvious choice because he was able to do something about their problems; that the employees did not need other people or outsiders to DENTECH CORP talk for them; that the employees could do better with- out the Union and probably have higher wages later on. "The Board has long held that the essence of the viola- tion in solicitation of grievances is not the solicitation itself but the inference that the employer will redress problems:" Ace Hardware Corp., 271 NLRB 1174 (1984), citing Giovanni's, 259 NLRB 233 (1981), and Uarco, Inc., 216 NLRB 1 (1974). I conclude that such an inference is warranted based on what Simor told the employees. In addition to the foregoing, Simor promised the employees the benefits contained in an employee handbook, wage increases, and monthly employee meetings with manage- ment He also urged them to form an employee commit- tee to meet with him. I conclude from the foregoing that the credited evi- dence supports the General Counsel's allegations in sub- paragraphs (a), (b), and (c) in that, in order to induce employees not to support the Union, Simor solicited em- ployees' complaints and grievances and promised to re- solve them, promised employees the benefits set forth in the employee handbook, promised employees wage in- creases, and promised monthly employee meetings with management, and suggested that the employees form a committee to meet with him to resolve issues. I conclude that such conduct interfered with, restrained, and co- erced employees in the exercise of their rights under the Act, and therefore violated Section 8(a)(1) of the Act With regard to the General Counsel' s allegations in subparagraph (d) of paragraph 7 of the General Coun- sel's complaint, I conclude that the credited evidence supports the General Counsel's allegations. "[A]n em- ployer is free to communicate to his employees any of his general views about unionism or any specific views about a particular union , so long as the communications do not contain a 'threat of reprisal or force or promise of benefit."' NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Board held in Churchill's Restaurant, 276 -NLRB 775, 776 (1985): The line between conduct permitted under Sec- tion 8(c) and that prohibited under Section 8(a)(1) is often a fine one. The standard to be applied, how- ever, is now well established: "[t]he prediction'must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control. . . " NLRB v. Gissel Packing Co., 395 U S. 575, 618 (1969). Unlike the facts present in Churchill's Restaurant, there were no objective facts to support such a prediction by Simor. Simor acknowledged at the hearing that the Union's demands were not his major concern, but instead his major concern was his anger at irresponsible union organizers. I conclude that Simor threatened the employ- ees that he would move the company back to Canada if the Union came in, and that he did not make a carefully phrased prediction based on objective facts I conclude that such a threat violated Section 8(a)(1) of the Act. With regard to the General Counsel' s allegations in subparagraph (e) of paragraph 7 of the General Counsel's complaint, I conclude that the evidence does not support 937 the allegations contained in that paragraph. Accordingly, I recommend that subparagraph (e) be dismissed. With regard to the General Counsel' s allegations in subparagraph (f) of paragraph 7 of the General Counsel's complaint, I conclude that the credited evidence does not support the allegations contained in that paragraph. Accordingly, I recommend that subparagraph (f) be dis- missed. With regard to the allegations in subparagraph (g) of paragraph 7 of the General Counsel's complaint, I con- clude that the evidence does not support the allegations in that subparagraph. The statement which Proctor over- heard Simor make on the day of the election is different from the statement alleged in subparagraph (g). Addi- tionally, Proctor did not know to whom, if anyone, Simor was speaking The evidence does not establish that Simor made the statement to an employee, or that Simor was aware that Proctor or any other employee could overhear what Simor said. Moreover, the subject matter of Proctor's testimony has already been covered with regard to subparagraph (d) above. Accordingly, I recom- mend that subparagraph (g) be dismissed. With regard to the General Counsel's allegations in subparagraph (h) of paragraph 7 of the General Coun- sel's complaint, I conclude that the evidence does not support the allegations contained in that subparagraph. Accordingly, I recommend that subparagraph (h) be dis- missed With regard to the allegations in subparagraph (i) of paragraph 7 of the General Counsel's complaint, I con- clude that the credited evidence supports the General Counsel's allegations. The solicitation of employee com- plaints, the making of promises to discourage union ac- tivities, and the suggestion to have employees' represent- atives meet with management already have been dis- cussed with regard to subparagraphs (a), (b), and (c) of paragraph 7 of the General Counsel's complaint. The reasoning there also applies with regard to the allega- tions in subparagraph (i). The threats to move the Com- pany to Canada are not alleged in subparagraph (i), but the evidence with regard to this allegation supports the findings made with regard to subparagraph (d) above. With regard to the General Counsel 's allegations in subparagraph (j) of paragraph 7 of the General Counsel's complaint, I conclude that the evidence does not support the General Counsel's allegations in that subparagraph. The conversation between Simor and Tate occurred prior to the election and certification of the Union as the employees' collective-bargaining representative. At that point in time the Company was not obligated legally to negotiate with the Union Simor's statements have to be considered in that context. Thus, I conclude that Section 8(c) of the Act protects Simor's statements that he would not talk to the union people, and that he did not want them on his property, in his office, or anywhere. At that time Simor had no obligation to talk with union repre- sentatives, nor was he obligated to permit them to be on company property or in his office. Simor did not state that he would not meet and bargain with the Union it won the election. Thus, I conclude that there was no ex- pression of the futility -of the employees' selecting a col- 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective-bargaining representative. Accordingly, I recom- mend that subparagraph (j) be dismissed. C. The 8(a)(1) Allegations Pertaining to Al Kennedy 1. Allegations The General Counsel's complaint paragraph 8 alleged: Respondent, acting through Al Kennedy, at Respond- ent's facility, engaged in the following acts and conduct at the times set forth below: (a) On or about 7 February 1985 distributed a new em- ployee handbook to all employees in order to induce em- ployees not to support the Union. (b) On or about 7 February 1985 solicited employees to sign a petition to denounce the Union. (c) On or about 6 March 1985 threatened employees by stating that the Company would move to Canada if the Union came in. 2. Facts With regard to the subject matter of subparagraph (a) of paragraph 8 of the General Counsel's complaint, Ken- nedy walked into a meeting of the Company's employees in the company lunchroom; put copies of General Coun- sel's Exhibit 5, the employee handbook referred to in section B, on the table; and left the lunchroom. The fore- going is based on credited portions of the testimony of Pucci and Warren. Kennedy did not deny doing the above. It was not disputed that the company distributed copies of General Counsel's Exhibit 5 to its employees in February 1985. With regard to the subject matter of subparagraph (b) of paragraph 8 of the General Counsel's complaint, Deborah Olson testified that on 7 February 1985 during the late afternoon she had a conversation with Robert Hamilton in the shipping area . She was working at the time in getting parts ready. Just Hamilton and Olson were present. Hamilton approached Olson. He had a piece of paper with him. Hamilton told her he was going to make a list of the people who wanted their union cards back. He also told her that if she wanted to keep her job, that she should take her name off the list for the Union. He also said that if the Union got in, they would not have a job anyway, and the Company would move. She told him to go ahead and take her name off the list. At the hearing Olson said that she thought Hamilton was speaking for the Company because she believed that he was a company supervisor. Olson then went to see Kennedy. She told him that she needed to speak to him and that it was personal. They went into Hamilton's office and shut the door. Olson said at the hearing that she was upset and that she was crying. Olson asked Kennedy a couple of times whether she would get fired if she did not take her name off the list. Kennedy told her that he could not say; that she should do what she thought was best for her; that she should look out for her best interest; and that he could not guarantee that she would have her job if she did so. Towards the end of the workday on 7 February 1985, Olson was at her work station in the assembly area. Vera Warren also was present. Hamilton approached Olson with a copy of General Counsel's Exhibit 4. Olson no- ticed who had signed the document, so she also signed it. Kennedy was standing next to Hamilton at the time. Olson then attempted to hand General Counsel's Exhibit 4 to Kennedy, but Kennedy would not take it, said he did not want anything to do with it, and not to give it to him. Olson then gave General Counsel's Exhibit 4 to Warren, but Warren refused to sign it. Kennedy left, and Hamilton went into the machine shop. The foregoing is based on a credited portion of the testimony of Olson based on the criteria set forth in sec- tion A. Kennedy acknowledged at the hearing that a couple of times employees had approached him and asked him questions regarding the Union. His version was that he told the employees that he knew nothing about the Union, and he did not want to talk about it. I found Olson's version to be credible, and I have credited her account instead of Kennedy's. With regard to the subject matter of subparagraph (c) of paragraph 8 of the General Counsel 's complaint, Pucci testified that in early March 1985 he had a conver- sation with Kennedy about 5 p.m. in the assembly area. Pucci was working overtime that particular day. No one else was present during their conversation . Pucci asked Kennedy what was the real reason that Gary Gehling and Geoffrey Gehling were fired. Kennedy said that they were fools for going to the Union; that they did not have any right to do that; and any right to think they could organize the plant . Kennedy also told Pucci that Simor would move the plant, that they had a new build- ing in Mission, and that if the Company moved there, it would not hurt Kennedy's feelings because it would be closer for him to drive to work. Pucci told Kennedy that they did not believe that Simor would move the plant. Kennedy told Pucci that Simor would do so. The foregoing is based on a credited portion of the testimony of Pucci based on the criteria set forth in sec- tion A. Based on that same criteria, I do not credit Ken- nedy's version that he never threatened employees with moving the machine shop, and that he never indicated to employees that their jobs would be threatened or less secure depending on the outcome of the election. 3. Conclusions With regard to the General Counsel's allegations in subparagraph (a) above, I conclude that the evidence shows that Kennedy did not make any statements or comments regarding the employee handbook when he delivered copies of the handbook at the meeting of em- ployees. As indicated in section B, I concluded that Simor promised the employees the benefits set forth in the employee handbook in order to induce employees not to support the Union. More findings will be set forth in section I regarding the employee handbook. Consider- ing the findings in section B and section I, I conclude that the Company did violate Section 8(a)(1) of the Act by distributing a new employee handbook to employees on or about 7 February 1985 in order to induce the em- ployees not to support the Union. With regard to the General Counsel's allegations in subparagraph (b) above, I conclude that the evidence DENTECH CORP does not support the General Counsel's allegations that Kennedy solicited employees to sign a petition to de- nounce the Union. The evidence showed that Kennedy was noncommittal in his responses to Olson's questions regarding the petition While Kennedy later stood next to Hamilton when Hamilton approached Olson with the petition, Kennedy refused to take the petition when Olson attempted to hand it to him, and Kennedy said he did not want anything to do with it and not to give it to him Under those circumstances, I conclude that the evi- dence does not establish that Kennedy solicited employ- ees to sign the petition. Accordingly, I recommend that subparagraph (b) of paragraph 8 of the General Coun- sel's complaint be dismissed I should note here that I have considered Olson's testi- mony in connection with the allegations to be discussed in section E. With regard to the allegations in subparagraph (c) above, I conclude that the credited evidence supports the General Counsel's allegations. Thus, Kennedy's state- ments to Pucci regarding Simor's moving the Company to Canada have to be considered in the context of Ken- nedy's comments regarding Gary Gehhng and Geoffrey Gehling's involvement with the Union. In that context, I conclude that Kennedy was threatening Pucci that Simor would move the Company to Canada if the Union came in. In that connection I have considered similar findings made on that subject matter in section B. I should note that I have considered Pucci's testimony in connection with the allegations to be discussed in sec- tion F. D. The 8(a)(1) Allegations Pertaining to Wilfred Veser 1. Allegations The General Counsel's complaint paragraph 9 alleged: On or about 21 June 1985 Respondent, acting through Wilfred Veser, at Respondent's facility, engaged in the following acts and conduct set forth below: (a) Told employees that the machine shop was closing and being moved to Canada because the employees had voted the Union in. (b) Told employees that Anton Simor had told the em- ployees that if they voted for the Union the machine shop would be moved. (c) Told employees that if they had voted against the Union that the machine shop would have stayed. '(d) Told employees that Anton Simor did not want the Union looking over his shoulder and that Respondent had intended to expand in the States, but Respondent was not going to do so because the Union was hanging over its head. 2. Facts Around the first week in February 1985, Proctor at- tended a meeting of employees in the Company's lunch- room. Veser was the only speaker on that occasion. Proctor did not recall at the hearing whether all of the Company's employees or just the Company's machine shop employees attended that meeting Veser told the employees that he thought they should follow Simor; 939 that Simor was a good employer; that Veser had worked for Simor for a long time; that Veser did not know "who cooked up the union idea, but he thought we should just drop that because it wouldn't do us any good." According to Proctor, he had been told by Simor, Veser and Hamilton that the Company would move the machine shop to Canada if the employees voted the Union in. Proctor said at the hearing that it was at this meeting that he heard Veser say that. The foregoing findings are based on a credited portion of the testimony of Proctor. Gobbato had a conversation with Veser on the day that the employee handbook was distributed in February 1985. Veser and Gobbato were washing their hands at the time. Veser told Gobbato that the Company was planning to expand in Sumas, and that it was planning to produce more products than what it already was manu- facturing. Veser also told Gobbato that Simor was a man of his word, and that they would not keep up production , with the Union over their shoulder. Veser told Gobbato that they felt that they could not expand with a union representing the employees. Gobbato told Veser that would be great, and that Gobbato was willing to expand with the Company. The foregoing is based on a credited portion of the testimony of Gobbato. A week before the union election was held, Tuttle had a conversation with Veser by the vise where Tuttle was bending hanger bars. No one else was present during their conversation. Veser approached Tuttle and asked if Tuttle liked his job. Tuttle replied yes. Veser asked Tuttle if he liked his job better than his previous job. Tuttle replied yes. Veser asked Tuttle if he thought the pay was fair. Tuttle replied yes. Veser told Tuttle that then Tuttle knew what he had to do. The foregoing is based on a credited portion of the testimony of Tuttle. Vesser denied the foregoing. Based on the criteria set forth in section A, I have credited Tuttle's account. On the day of the union election on 12 March 1985, Tuttle had a conversation with Veser by the grinding wheel. No one else was present during their conversa- tion. Union Representatives Gazzigh and Wilson were walking in the building at the time. Veser told Tuttle, "Here comes the mafia." The foregoing is based on a credited portion of the testimony of Tuttle. Veser denied that he had a conver- sation with Tuttle on or about the day of the election. Based on the criteria set forth in section A, I have cred- ited Tuttle's account. About 2 weeks prior to 28 June 1985, the Company held a meeting of all of the machine shop employees in the lunchroom. Veser told the employees that they should have listened to Simor; that the Union was in now, that there was nothing they could do about it, that the employees brought it all on themselves, that Simor had promised to be good to them and to follow his poli- cies in the handbook, but now the employees were going to have to suffer the consequences and live with what the employees had done. Veser also told the employees that the machine shop would be packing up and moving 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD back to Canada after June. Veser said that some of the employees, might be hired in assembly, that they would have to wait and see how things went, and that they could incorporate some of them into the assembly part of the Company. Veser told them that if they wanted to work in assembly, they should talk to Kennedy who would get their names and where they wanted to work, if the employees were rehired. The foregoing is based on a credited portion of the testimony of Proctor. On 21 June 1985 Veser had a conversation with Tuttle. Veser told Tuttle that Veser had some bad news. Veser said that they were going to move the shop back to Canada. Veser said that he did not want to have any complaints, and that he had told them that they were going to move if they brought the Union in. Veser said that Kennedy would be able to pick up most of them in assembly. The foregoing is based on a portion of the credited testimony of Tuttle. 3. Conclusions With regard to the allegations in paragraph 9 of the General Counsel's complaint, I conclude that the evi- dence supports subparagraph (a). I conclude that Veser's statements to employees about 2 weeks before 28 June 1985 and his statements to Tuttle on 21 June 1985 were coercive and violative of employees' rights guaranteed by Section 7 of the Act. I conclude that Veser told the employees that the Company was closing its machine shop and moving it to Canada because the employees had voted the Union in the plant. Accordingly, I further conclude that such statements violated Section 8(a)(1) of the Act as alleged in subparagraph (a) of paragraph 9 of the General Counsel's complaint. I conclude that the evidence does not support the General Counsel's allegations in subparagraphs (b), (c), and (d). I have considered Veser's earlier statements to employees, as set forth in the above findings, but I con- clude those statements did not occur on or about 21 June 1985 as alleged in the complaint Thus, statements made in February and March 1985 are too removed in point of time from the unfair labor practices which are alleged by the General Counsel to have occurred on or about 21 June 1985. In other words, I conclude that the complaint allegations in paragraph 9 do not encompass events in February and March 1985. This is a different situation than the one in section B where a series of meetings had been held, and witnesses had difficulty in separating what was said at each specific meeting in the series. Ac- cordingly, I recommend that subparagraphs (b), (c), and (d) of paragraph 9 be dismissed. E. The 8(a)(1) Allegations Pertaining to Robert Hamilton 1. Allegations The General Counsel's complaint paragraphs 5 and 10 alleged: At all times material , Robert Hamilton an employee of Respondent acted as an agent of Respondent and/or a conduit of Respondent, and is now, and has been at all times material, an agent of Respondent within the mean- ing of Section 2(13) of the Act. Respondent, acting through Robert Hamilton, at Re- spondent's facility, engaged in the following acts and conduct at the times set forth below: (a) On or about the first week of February 1985, solic- ited employees to sign a petition to denounce the Union. (b) On or about the first week of February 1985, threatened employees by stating that the Company would move to Canada if they did not denounce the Union. 2. Facts Prior to his employment with the Company involved in this proceeding, Hamilton had worked for Puget Sound Freight Lines where he said he had been required to be a Teamsters union member. Hamilton also had worked for the B & B Meat and Sausage Company in Bellingham where he said he had been required to be an Amalgamated Meat Cutters union member . In both situa- tions, he was a union member on withdrawal at the time of the hearing. In addition to the foregoing employment he also had worked at nonunion companies. Hamilton began his employment with the Company about 15 February 1984. Sometime later he participated in the Private Industry Council program for job training wherein the council paid 50 percent of his wages. At the time that he began his employment with the Company, it was located in a former bowling alley in Sumas Kenne- dy was his supervisor. Pucci was the only other employ- ee besides Hamilton. During the first week of his em- ployment with the Company, Hamilton performed as- sembly work. His wage rate was $4.50 an hour. After than first week, Hamilton performed shipping and re- ceiving work. His wage rate was increased to $5 an hour at that time. About 5 months later, Hamilton received an increase in pay to $5.50 an hour . In February 1985 after 1 year of employment with the Company, Hamilton re- ceived a raise to $6 an hour. During the course of his employment Hamilton did not hire or fire anyone. He recommended that several people be hired, and those persons were hired by the Company. However, those persons did not work in ship- ping and receiving. From time to time an employee as- sisted Hamilton in the shipping and receiving depart- ment. Whenever Hamilton needed such assistance, he asked Kennedy if he could spare someone from assembly to assist him. He also asked leadperson Betty Close for assistance . Otherwise Hamilton performed the shipping and receiving work by himself. Hamilton did not attend any management meetings. The foregoing findings are based on a credited portion of the testimony of Hamilton. I found that Hamilton's testimony regarding his own duties and responsibilities to be more accurate than the testimony of others. At the hearing Hamilton said that he was of the opin- ion that the employees of a Company could act as their own bargaining agent with the Company . He felt that Simor had been willing to listen to people during the times that Hamilton had worked with Simor . Hamilton said that he believed that the employees in the machine DENTECH CORP shop and the employees in assembly could each elect a spokesperson, and if there were grievances, those spokes- persons could approach Simor on behalf of the employ- ees. As a result of the foregoing beliefs, Hamilton began making telephone calls the night of 1 February 1985 to employees of the Company in order to discuss his ideas. Hamilton continued to make such telephone calls during that weekend. At the hearing he estimated that he spoke by telephone with about one-third of the company's em- ployees that weekend Hamilton said that Simor, Veser, and Kennedy did not talk to him about his ideas before he made those telephone calls. He said that he knew the telephone numbers of the employees because he lived in Whatcom County, and he knew most of the employees. Hamilton told the employees his views about the em- ployees' selecting their own spokespersons and exercise their own bargaining power without the need of an out- side source to speak on their behalf and without joining the Union and paying initiation fees and dues. Hamilton said he expressed his opinion that it would be in Simor's best business interest to have the Company in Canada be- cause Canada had a national health plan and the Canadi- an dollar was devalued. Hamilton also told the employ- ees that he felt the Company probably would be better off economically back in Canada, and if the Union came in and demanded higher wages that the Company could not handle, there might be dust a probability that the company would do so. Hamilton said that he did not tell the employees that Simor would close the shop if the employees went with the Union He also denied that he told the employees that, if the Union went any farther, the Company was going to close the shop and move to Canada. One of the employees who Hamilton had called expressed her opinion that she had been pressured. i 6 She told Hamilton she felt it would be better to go along with everybody else than not to do so She told him that she felt if they stuck together they would be able to put Simor up against the wall, because he had not known about any union activity up to that point, and Simor did not have a chance to do anything about it on his own. As a result of the foregoing, Hamilton formed the belief that the employees felt they had everything to gain by going along with instead of going against the Union. The foregoing is based on a credited portion of the testimony of Hamilton. On Saturday night 2 February 1985, Tuttle had a con- versation with Hamilton at Yorkies Grocery Store in Sumas about 8 p.m. Employee Diane Minaker was present during the entire conversation and Hamilton's wife was present during part of the conversation. Hamil- ton told Tuttle that Geoffrey Gehling, Gary Gehling, and Martin had been dismissed because they were trou- blemakers. Hamilton said that Simor at one time had an- other company, that the employees had tried to go union, that Simor had fired everybody, and that Simor had started up under a new name. i 7 Hamilton also told 16 The following was admitted into evidence only to show the state of mind of Hamilton at that time 17 The foregoing was not received in evidence for the truth of the matter asserted by the out-of-court declarant 941 Tuttle that if the Union came in, Simor would move the shop back to Canada. Hamilton said that Kennedy had called him and told him that Kennedy and Simor would not be in the following Monday Hamilton asked Tuttle if Tuttle was going to attend the meeting which was scheduled for Sunday. Tuttle replied that he did not know. At the hearing Tuttle said that Hamilton was his per- sonal friend. He acknowledged that he knew that the Union had wanted to include Hamilton as an employee in the bargaining unit, and he said that he knew that Hamilton was not a supervisor. The foregoing is based on a credited portion of the testimony of Tuttle. I found that Tuttle had the best recollection of the events which occurred at Yorkies Grocery Store on that occasion His account was more detailed than the account given by Minaker and more be- lievable. Hamilton acknowledged at the hearing that he recalled only vaguely what was said, and he testified, "I honestly don't recall what I said specifically .. ." Ac- cordingly, I have based the f ridings on the account given by Tuttle. General Counsel's Exhibit 12 is a copy of a notice which Hamilton prepared over the weekend before Monday 4 February 1985. He did not discuss the notice with Simor, Veser or Kennedy prior to posting it on the bulletin board in the Company's lunchroom. Hamilton did not obtain their permission to post it at the facility, and no one in management said anything to Hamilton re- garding his having posted the notice. The notice was dated 4 February 1985, and it announced an employee meeting to be held during the first coffee break on Tues- day, 5 February 1985, in the lunchroom. With regard to why the meeting was to be held, the notice stated: "To talk over employee-employer relationships, future of company, to maybe form a committee to act as-reps for employees. Plan for monthly meeting time & place etc. Listen to ideas, or suggestions from each other. Let's talk to each other. Refreshments will be served!" The foregoing is based on a credited portion of the testimony of Hamilton and documentary evidence. Simor said that he had not seen General Counsel's Ex- hibit 12 until the time of the hearing in this proceeding. Simor said that he did not know that Hamilton was going to hold a meeting with the company's employees, and that Simor did not authorize Hamilton to do so. The foregoing is based on a credited portion of the testimony of Simor Pucci did not see General Counsel's Exhibit 12 posted at the Company, but he said Hamilton gave him a writ- ten invitation to attend a meeting to be held on 5 Febru- ary 1985. Hamilton did that at Pucci's work station. The foregoing is based on a credited portion of the testimony of Pucci. On Monday, 4 February 1985, Hamilton approached Gobbato as Gobbato was leaving the company's parking lot in his car. Hamilton told Gobbato that the employees were getting together and that they were' going to have a meeting the next day in the lunchroom. Hamilton told Gobbato that Hamilton wanted to get the employees to- gether to ask why would they want a union involved. 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD know which way they wanted to go. The foregoing is based on a credited portion of the testimony of Stafford. Tate also signed the petition on 7 February 1985. Tate was in the welding and sanding room at the time. She was working when Hamilton approached her and gave her a copy of the petition. Hamilton told Tate that the Union had messed things up; that enough employees had signed the petition to cancel the Union; that Tate should sign it; and that they would deal without the Union. At the hearing she was asked why she signed General Counsel's Exhibit 4. She said there did not seem to be any reason not to sign it. As far as she was concerned, it was fine with her if they could work without the Union. She said she did not care, and that she just wanted to get the whole thing over with, get their demands met, or reach some sort of agreement. In addition to the forego- ing, Tate said that Hamilton had told her that it did not matter whether she signed the petition because almost everybody had signed it. The foregoing is based on a credited portion of the testimony of Tate. Tuttle signed the petition on 7 February 1985. Tuttle was working on the drill presses that afternoon when Hamilton approached him and asked Tuttle to sign the petition. Hamilton told Tuttle that, if Tuttle wanted his name off the union list, and if Tuttle wanted the shop to stay there, then Tuttle should sign it. The foregoing is based on a credited portion of the testimony of Tuttle. As indicated previously, I have also considered Olson's testimony set forth in section C regarding Hamil- ton's soliciting her to sign the petition. There was another meeting of employees at the Com- pany on Friday, 8 February 1985. Simor was present and spoke at that meeting. It came up at that meeting that Vera Warren had not signed the petition and that Warren was for the Union. Warren said at the meeting that she was being pressured by Hamilton. Warren said that she would not let anybody pressure her into doing anything. Simor told Hamilton at the meeting that Ham- ilton should not take it upon himself to pressure people into doing anything. Simor told the employees that it is one of the most fundamental rights of this country to have the freedom to do the way one wishes. Simor told the employees that Warren had done the right thing, and that Simor would have done the same. The foregoing is based on a credited portion of the testimony of Simor. His version is supported by the testimony of Warren, Tate, and Tuttle. 3. Conclusions As indicated above, the-General Counsel does not con- tend that Hamilton was a supervisor of the Company within the meaning of the Act. Instead,, the General Counsel alleged that Hamilton acted as an agent or as a conduit of the company in committing the acts alleged in paragraph 10 of the General Counsel's complaint. In ana- lyzing the findings of fact set forth above , I have consid- ered whether, under all the .circumstances, the employees would reasonably believe that Hamilton spoke for and acted on behalf of company management . Futuramik In- dustries, 279 NLRB 185 (1986), citing Community Cash Stores, 238 NLRB 265, 266 (1978), and B-P Custom Building Products, 251 NLRB 1337, 1338 (1980). In Cor- rugated Partitions West, 275 NLRB 894, 900 (1985), the Board affirmed the rulings of Administrative Law Judge Jerrold H. Shapiro who held that: [T]he Board has long held that where an employer places a rank-and-file employee in a position where employees could reasonably believe that the em- ployee spoke on behalf of management, the employ- er has vested the employee with apparent auth9rity to act' as the employer's agent, and the employee's actions are attributable to the employer. Helena Laboratories v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977); NLRB v. Solboro Mills, Inc., 572 F.2d 936, 941 (2d Cir. 1978); NLRB v. Broyhill Co., 514 F.2d 655, 657 (8th Cir. 1975). In particular, I.found it significant that Hamilton solic- ited employees to sign the petition against the union during working time. See Uniontown Hospital Assn., 277 NLRB 1298 (1985). However, in the Uniontown case, the person in question there devoted a significant amount of her worktime to an antiunion effort; she was considered to be part of the management team; she was included in all of the meetings which the management held with regard to the union; and she was given written instruc- tions by the attorney for the respondent in that case "... as to the do's and don'ts of responding to the union's campaign." I also found it significant that Hamilton called a meet- ing of the employees of the company in the company lunchroom. It was the first time that anyone at the Com- pany had done so. Significantly, the meetings at which Hamilton spoke to the employees lasted longer than the employees' breaktime and the meetings continued into the employees' working time. However the evidence also showed that when Simor learned of that, he disapproved of it, and Kennedy made it clear to Hamilton not to do so again. There is also some testimony that Hamilton told em- ployees that he was acting on his own. In addition, I have considered the fact that Simor rebuked Hamilton on 8 February 1985 at a meeting of employees for what Warren considered to be Hamilton's pressuring of her. After considering the foregoing circumstances in par- ticular, and all of the findings of fact set forth above, I conclude that the employees would not reasonably be- lieve that Hamilton spoke for and acted on behalf of company management. As an employee, Hamilton had the right to exercise his Section 7 rights not to choose to have union representation. I conclude that under the cir- cumstances described above, the employees would rea- sonably conclude that Hamilton was acting on his own behalf, rather than on behalf of the Company even though Hamilton's goal and the Company's goal to avoid union representation at the plant coincided. Accordingly, I further conclude that Hamilton did not act as an agent or conduit of the Company in the acts alleged in para- graph 10 of the General Counsel's complaint. According- ly, I recommend that paragraph 10, including subpara- graphs (a) and (b) of the General Counsel's complaint be dismissed. DENTECH CORP could give them more than they could get just by going to Simor and asking him for the same things. The fore- going is based on a credited portion of the testimony of Gobbato Pucci described a second meeting later on during the first week of February 1985 at which Hamilton spoke to the employees. That was the meeting at which the em- ployees discussed the employee handbook. According to Pucci, Hamilton answered the employees' questions re- garding the employee handbook. He said that meeting lasted about a half hour which was 15 minutes beyond the breaktime. Pucci recalled that it was at that meeting that he was elected to represent the assembly, and Dean Reynolds was elected to represent the machine shop. The foregoing is based on a credited portion of the testi- mony of Pucci. Proctor recalled a meeting of employees at which Hamilton spoke and at which the employee handbook was discussed He said no supervisors were present at that meeting. Proctor recalled that Hamilton told the employees that Hamilton thought the employee hand- book was a fair promise that Simor had put down on paper; that Simor had signed it; that Hamilton thought Simor was good for his word; that the employees could trust Simor; that Hamilton did not think the employees needed the Union; that if the employees followed Simor, they would have a good job for the future, and if the employees did not, Simor would keep his promise to move the plant to Canada. Proctor said that the meeting lasted longer than the break period, and when the buzzer sounded, Hamilton the employees: "Don't worry about it until we've finished in here. Anton wants some kind of decision or some kind of notification of what we want, a choice between the union or just policies." Proctor said that Pucci and Reynolds were elected as representatives of the employees to talk with company management. The foregoing is based on a credited portion of the testi- mony of Proctor. According to Simor, no employees were disciplined by the Company for staying in the meeting beyond the break period However, Simor said that when he learned that the meeting of employees had lasted beyond the break period, he told Veser and Kennedy that he would not tolerate such a thing. Simor said that he told them that it should not be done because it could be an unfair labor practice. Simor also told Veser and Kennedy that they should watch the next time and not let anything like that happen. The foregoing is based on a credited por- tion of the testimony of Simor. According to Hamilton, Kennedy spoke sternly with him after the meeting. Hamilton said that Kennedy told him that the Company had regulated coffee breaks, and Hamilton should not have allowed people to remain in the lunchroom and continue any discussion about any- thing. Hamilton said that Kennedy told him that when the buzzer sounds, Hamilton was to go back to work. The foregoing is based on a credited portion of the testi- mony of Hamilton. General Counsel's Exhibit 4 is a copy of the document which Hamilton gave to Union Representative Gazzigli on 7 February 1985. The findings regarding that event already have been set forth in section A. The document 943 bears the typewritten date of 7 February 1985 at the top The heading also is typewritten and states: "The follow- ing employees of Dentech Corporation wish to make it known that they do not wish to be represented by the U.A.W. or other organized union, and wish to have their names removed from any lists stating otherwise." Under- neath that heading are 12 handwritten names. Hamilton said that he typed the heading, and that he did not discuss General Counsel's Exhibit 4 with Simor, Veser, or Kennedy. The foregoing is based on a credited portion of the testimony of Hamilton. Close gave a dif- ferent version wherein she stated that she was the one who suggested the petition to Kennedy, Pekari, and Hamilton Based on the criteria set forth in section A, I found Hamilton's version credible rather than Close's. Simor said that he became aware of the petition during the first week of February 1985. However, Simor said that he did not actually see the document until NLRB Agent Elizabeth- Hart showed the document to him. Simor's version is supported by Hamilton who stated that he did not give a copy of the petition to anybody. in management or supervision of the Company. The forego- ing is based on a credited portion of the testimony of Simor and Hamilton. On 7 February 1985 Hamilton brought the petition to Gobbato who was working at the time in the machine shop. Hamilton asked Gobbato to stop working and to read the petition. Hamilton asked Gobbato either to sign, or not to sign, the petition. According to Gobbato, Ham- ilton told him that Hamilton was acting on his own behalf, but that the petition would be given to manage- ment and to the union representatives. Gobbato signed the petition. At the hearing Gobbato said that he did so because he felt pressured to sign the petition in order to keep his job. The foregoing is based on a credited por- tion of the testimony of Gobbato. On 7 February 1985, Hamilton approached Proctor while Proctor was working on the cutoff saw. It was after the morning breaktime and before lunch. Hamilton had a clipboard with him. Hamilton asked Proctor if he cared to denounce the Union, and Hamilton said that Simor would look fovorably on it. Hamilton also told Proctor that even if Proctor did not do so, he knew who had signed union cards and who had not, "so he was going to fix the people who stuck with the union." At the hearing Proctor said that he did not sign the petition because he felt his job was threatened, and he did not like to be threatened. The foregoing is based on a cred- ited portion of the testimony of Proctor. On 7 February 1985 Pucci signed the petition during the afternoon at his work station. Hamilton approached Pucci and said: " [W]e want you to sign this. We are having everybody sign this." The foregoing is based on a credited portion of the testimony of Pucci. Stafford signed the petition of 7 February 1985. Hamil- ton presented the petition to her while she was at work testing units at her work station. She was not able to continue to work while Hamilton talked with her. Ham- ilton told Stafford that he was hoping that if all of them signed the petition, they' could get the whole thing stopped because there were a lot of people who did not 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD know which way they wanted to go. The foregoing is based on a credited portion of the testimony of Stafford. Tate also signed the petition on 7 February 1985. Tate was in the welding and sanding room at the time. She was working when Hamilton approached her and gave her a copy of the petition. Hamilton told Tate that the Union had messed things up; that enough employees had signed the petition to cancel the Union; that Tate should sign it ; and that they would deal without the Union. At the hearing she was asked why she signed General Counsel's Exhibit 4. She said there did not seem to be any reason not to sign it As far as she was concerned, it was fine with her if they could work without the Union. She said she did not care, and that she just wanted to get the whole thing over with, get their demands met, or reach some sort of agreement. In addition to the forego- ing, Tate said that Hamilton had told her that it did not matter whether she signed the petition because almost everybody had signed it. The foregoing is based on a credited portion of the testimony of Tate. Tuttle signed the petition on 7 February 1985. Tuttle was working on" the drill presses that afternoon when Hamilton approached him and asked Tuttle to sign the petition. Hamilton told Tuttle that, if Tuttle wanted his name off the union list, and if Tuttle wanted the shop to stay there, then Tuttle should sign it The foregoing is based on a credited portion of the testimony of Tuttle. As indicated previously, I have also considered Olson's testimony set forth in section C regarding Hamil- ton's soliciting her to sign the petition. There was another meeting of employees at the Com- pany on Friday, 8 February 1985. Simor was present and spoke at that meeting. It came up at that meeting that Vera Warren had not signed the petition and that Warren was for the Union. Warren said at the meeting that she was being pressured by Hamilton Warren said that she would not let anybody pressure her into doing anything Simor told Hamilton at the meeting that Ham- ilton should not take it upon himself to pressure people into doing anything. Simor told the employees that it is one of the most fundamental rights of this country to have the freedom to do the way one wishes. Simor told the employees that Warren had done the right thing, and that Simor would have done the same. The foregoing is based on a credited portion of the testimony of Simor. His version is supported by the testimony of Warren, Tate, and Tuttle. ax 3. Conclusions As indicated above, the-General Counsel does not con- tend that Hamilton was a supervisor of the Company within the meaning of the Act. Instead,, the General Counsel alleged that Hamilton acted as an agent or as a conduit of the company in committing the acts alleged in paragraph 10 of the General Counsel's complaint. In ana- lyzing the findings of fact set forth above, I have consid- ered whether, under all the. circumstances, the employees would reasonably believe that Hamilton spoke for and acted on behalf of company management. Futuramik In- dustries, 279 NLRB 185 (1986), citing Community Cash Stores, 238 NLRB 265, 266 (1978), and B-P Custom Building Products, 251 NLRB 1337, 1338 (1980). In Cor- rugated Partitions West, 275 NLRB 894, 900 (1985), the Board affirmed the rulings of Administrative Law Judge Jerrold H. Shapiro who held that: [T]he Board has long held that where an employer places a rank-and-file employee in a position where employees could reasonably believe that the em- ployee spoke on behalf of management, the employ- er has vested the employee with apparent authority to act as the employer's agent, and the employee's actions are attributable to the employer. Helena Laboratories v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977); NLRB v. Solboro Mills, Inc, 572 F.2d 936, 941 (2d Cir. 1978); NLRB v. Broyhill Co., 514 F.2d 655, 657 (8th Cir. 1975). In particular, I.found it significant that Hamilton solic- ited employees to sign the petition against the union during working time See Uniontown Hospital Assn , 277 NLRB 1298 (1985). However, in the Uniontown case, the person in question there devoted a significant amount, of her worktime to an antiunion effort; she was considered to be part of the management team; she was included in all of the meetings which the management held with regard to the union; and she was given written instruc- tions by the attorney for the respondent in that case . . . as to the- do's and don'ts of responding to the union's campaign." I also found it significant that Hamilton called a meet- ing of the employees of the company in the company lunchroom. It was the first time that anyone at the Com- pany had done so. Significantly, the meetings at which Hamilton spoke to the employees lasted longer than the employees' breaktime and the meetings continued into the employees' working time. However the evidence also showed that when Simor learned of that, he disapproved of it, and Kennedy made it clear to Hamilton not to do so again. There is also some testimony that Hamilton told em- ployees that he was acting on his own In addition, I have considered the fact that Simor rebuked Hamilton on 8 February 1985 at a meeting of employees for what Warren considered to be Hamilton's pressuring of her. After considering the foregoing circumstances in par- ticular, and all of the findings of fact set forth above, I conclude that the employees would not reasonably be- lieve that Hamilton spoke for and acted on behalf of company management. As an employee, Hamilton had the right to exercise his Section 7 rights not to choose to have union representation. I conclude that under the cir- cumstances described above, the employees would rea- sonably conclude that Hamilton was acting on his own behalf, rather than on behalf of the Company even though Hamilton's goal and the Company's goal to avoid union representation at the plant coincided. Accordingly, I further conclude that Hamilton did not act as an agent or conduit of the Company in the acts alleged in para- graph 10 of the General Counsel's complaint. According- ly, I recommend that paragraph 10, including subpara- graphs (a) and (b) of the General Counsel's complaint be dismissed. DENTECH CORP F. The 8(a)(1) and (3) Allegations Pertaining to the Termination of Geoffrey Gehlmg, Gary Gehling, and Robert Martin 1. Allegations The General Counsel's complaint paragraph 11(a) al- leged (a) On or about 1 February 1985 Respondent terminat- ed employees Geoffrey Gehling, Robert Stefan Martin, and Gary Gehling and since said date has failed and re- fused to reinstate them to their former positions or to a substantially equivalent position. 2. Facts Geoffrey Gehling had a preemployment interview with the Company during the first part of August 1984. Veser interviewed Geoffrey Gehling at the Company's Vancouver, British Columbia, facility Veser told him that the Company was looking for someone who was competent, who could set up machines for operations, who could take care of the equipment, who could put the equipment in its proper place, and who could instruct employees on how to use the equipment properly. Veser also informed Geoffrey Gehling that the Company was planning to move its machine shop to Sumas, but was not yet ready to do that. At that time Geoffrey Gehling was living near Detroit, Michigan, and he told Veser that he would be ready to start work about the begin- ning of October 1984. Veser commented that that would be good timing. After his interview with Veser, Geoffrey Gehling went to the Company's facility in Sumas. That visit also occurred during the first part of August 1984. Geoffrey Gehling spoke with Kennedy on that occasion. Kennedy informed Geoffrey Gehling that Veser was impressed, and that if Geoffrey Gehling was able to begin work in October 1984 that would be good timing. Geoffrey Gehhng began his employment with the Company about 13 October 1984 at the wage rate of $5 an hour At that time the Company had not yet moved the machine shop to Sumas and was still located in the former- building which had been a bowling alley. Veser told Geoffrey Gehling that he would be working in pro- duction assembly in order to become familar with the product. During the one and one-half months he worked in assembly, Geoffrey Gehling assembled components into finished products, and he occasionally worked in shipping and receiving . Thereafter, the Company moved to the new building in Sumas, and the machine shop moved there. At the time the machine shop opened, Geoffrey Gehling worked in both assembly and the ma- chine shop. Either 1 or 2 weeks later Geoffrey Gehling began working only in the machine shop and his wage rate was increased to $6 an hour Geoffrey Gehling asked Veser on two or three occa- sions for a raise in pay. Veser told him that Simor said it was difficult to make ends meet at that time; or that Simor said it could not be done right then; or that Simor said in a couple of weeks. Veser also told Geoffrey Gehling on those occasions that Veser was very pleased 945 with his work, that he was doing a good job, and that he merited a raise. On 24 January 1985 Veser told Geoffrey' Gehling that he and three other employees were going to receive a wage increase of 25 cents an hour Veser told Geoffrey Gehling that the other three employees were Gary Gehl- mg, Dennis Proctor, and Judi Tate. Veser also told Geoffrey Gehling that he and the other three employees were good workers; that Veser liked the way that they worked with each other, that Veser thought they were getting the work out, and that Veser was "overly pleased." At that time Geoffrey Gehling was a leadperson at the Company. He told employees how the machine worked, how to perform the operations on the machine, and how to do it safely. He also set up the machine for each oper- ator. No one else at the facility performed those tasks except for Veser who would assist Geoffrey Gehling pe- riodically in setting up a job and for Gary Gehling who helped set up the machine for his own job on a couple of occasions. When Veser had to leave the facility on two occasions in January 1985 in order to pick up machining equipment or tools and in order to visit a dentist, Veser told Geoffrey Gehling that he ". . was in charge for the rest of the day." Geoffrey Gehling performed his usual job tasks on those occasions. Veser instructed Geoffrey Gehling to make sure that everybody was working, and that the machines were set up in case of a breakdown. He also instructed Geoffrey Gehling to place an employee on another job if the employee ran out of material, and to take job slips from a container on Veser's wall when a new job began. On 31 January 1985 Geoffrey Gehling received his paycheck from the Company. He noticed that his pay- check did not reflect the 25-cent-an-hour raise which Veser had told him about. Geoffrey Gehling went to see the bookkeeper at noontime, and he asked her what his wage rate was She told him it was $6 an hour, and that effective 1 February 1985 he was making $6.25 an hour. The foregoing paragraphs are based on a credited por- tion of the testimony of Geoffrey Gehling based on the criteria set forth in section A. General Counsel's Exhibit 23 is a copy of a handwrit- ten memo from the Company's personnel file pertaining to Geoffrey Gehling. The memo is not dated. The memo indicates that starting on 1 February Geoffrey Gehling was to receive a 25 cent increase a month up to $7. The foregoing findings are based on documentary evidence. Harmon overheard a conversation between Veser and Elizabeth Pekari. The conversation took place in Pekari's office. Harmon believed that Kennedy also was in that office. Harmon was seated at her own desk which was about 20 feet away from Pekari's office. Harmon heard Veser tell Pekari that Veser had some names from the shop, and Veser felt they deserved raises. Veser asked Pekari to take care of that for him as soon as possible. Veser gave her the names, told Pekari that everything was running smoothly, and that he wanted these people taken [care] of. The foregoing findings are based on a credited portion of the testimony of Harmon based on the criteria set 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forth in section A. I do not credit testimony to the con- trary from Veser and Simor that wage increases simply were automatic and not based on merit. At a later date Harmon overheard Pekari tell Joanne Mitchell, who is the Company's accountant, that Pekari had a list of names from Veser. Pekan asked Mitchell to see to it that they were taken care of properly. That con- versation also took place in Pekari's office Harmon was seated at her own desk at the time. Later Mitchell gave some personnel folders to Harmon and asked Harmon to refile the folders in the personnel drawer. Harmon re- called at the hearing that the names of Geoffrey Gehling, Gary Gehling, and Judi Tate were on the folders. She believed that there were a few other names on the fold- ers and that one of them might have been Proctor. The foregoing findings are based a credited portion of the testimony of Harmon. Tate testified that she received a 25-cent-an-hour raise at the end of January 1985. She worked as a machine shop employee from the end of November 1984 until 17 April 1985. She began her employment with the Compa- ny at $5 an hour. She received the 25-cent-an-hour raise at the end of January, and then she received a 50-cent- an-hour raise when she began to do welding work. She received still another 25-cent-an-hour increase in pay within a month before she left the Company's employ- ment on 17 April 1985. Thus, her final wage rate was $6 an hour. The foregoing findings are based on a credited portion of the testimony of Tate. Geoffrey Gehling considered himself to be a machin- ist. He acknowledged at the hearing that trade machinists were usually paid between $8 and $15 an hour in a city whereas the company paid $6 an hour. The highest wage rate that he had earned with previous employers was $9.50 an hour. Geoffrey Gehling had worked previously for three separate companies for almost 10 years. He was a leadperson at all three companies . He was promoted at all three companies to setup person where he set up all the machines Geoffrey Gehling was the one who telephoned the union office in Seattle, Washington, for information, re- garding organizing. He helped to organize meetings for employees where job security was discussed. He tele- phoned other employees and informed them of those meetings. He spoke to employees in favor of the Union. He signed a union authorization card, distributed union authorization cards to other employees, and collected signed cards from the employees. The foregoing paragraphs are based on a credited por- tion of the testimony of Geoffrey Gehling. Tate supported Geoffrey Gehling's testimony to the extent that she said that Geoffrey Gehling was the one who informed her of the union organizing campaign. As a result, Tate attended the union organizing meetings, and she signed a union authorization card. The foregoing is based on a credited portion of the testimony of Tate. As indicated above, Geoffrey Gehling testified that Veser had complimented his work on two or three occa- sions, and as indicated above, Harmon overheard Veser state to Pekan that the group of employees who were to receive raises deserved them , and that things were run- ning smoothly The testimony by Veser, Kennedy, and Hamilton painted an entirely different picture. For exam- ple, Geoffrey Gehling testified that he had never been warned prior to 1 February 1985 about his work at the Company. Veser asserted that he had warned Geoffrey Gehling 6 to 10 times over a period of 2 or 3 months, and that either 30 percent or 33-1/3 percent of all of the parts manufactured by Geoffrey Gehling were bad parts. At the hearing, Veser claimed there were numerous parts which were mismanufactured due to Geoffrey Gehling. He said it took up to 2 weeks working time to remedy mistakes which had been made by Geoffrey Gehling. At times Veser simply attributed the bad work to "the Gehlings" rather than distinguish between work performed by Geoffrey Gehling and worked performed by Gary Gehling. Veser said that he had written a memo concerning the "major foul-ups" of Geoffrey Gehling, Gary Gehling, and Martin prior to the time he terminat- ed them. A copy of that memo was introduced into evi- dence as Respondent's Exhibit 6. Kennedy also asserted there were numerous problems with parts coming from the machine shop, and there were a variety of complaints from customers regarding deficiencies in the Company's product until 1 or 2 months after Geoffrey Gehling, Gary Gehling, and Martin were terminated on 1 February 1985. Hamilton asserted he found 300 cuspidor arms which were welded exactly 180 degrees off and were complete- ly useless. Based on the criteria set forth in section A, I found the portions of the testimony of Veser, Kennedy, and Hamil- ton on this subject matter to be exaggerated and incon- sistent with the believable testimony of Geoffrey Gehl- ing, Gary Gehling, and Martin. On the basis of demean- or, I found their testimony on this subject not to be cred- ible On the basis of probability, I also found their testi- mony not to be credible. To accept their versions would mean an improbable finding that Veser tolerated bad work involving hundreds of crucial parts for which Geoffrey Gehling was responsible for 2-1/2 months before deciding to fire him. Other than the incidents de- scribed below involving the end blocks on the cuspidor arms and the hand piece hangers, I do not credit the as- sertions to the contrary on this subject. Gary Gehling recalled an incident when "end blocks" were inserted in the wrong end of a number of cuspidor arms. He did not recall the number of cuspidor arms in- volved, but there could have been a couple of hundred. He said that the incident occurred probably during the last week in January 1985. Gary Gehling was not in- volved in pressing the end blocks in the wrong end of the cuspidor arms However when Geoffrey Gehling showed him the part, Gary Gehling told him that the part was in the wrong end The cuspidor arms were on Geoffrey Gehling's workbench at the time. Gary Gehl- ing said that Geoffrey Gehling switched the end blocks to the correct end. Gary Gehling testified: "It was a simple matter; there was no scrap involved. It was just a matter of poking out the end block and pressing [it] in the other end. It didn't take very much time." At the hearing Gary Gehling estimated it would take about a DENTECH CORP. half hour to repair 200 such cuspidor arms. The cuspidor arms are about 16 to 18 inches long. Gary Gehling said that Veser came in the machine shop about the time that Gary Gehling discovered that the end blocks were inserted in the wrong end Gary Gehling and Geoffrey Gehling showed Veser what the problem was. Gary Gehling said he was working on the job next to the cuspidor arms while Geoffrey Gehlmg was working on the cuspidor arms. The foregoing paragraphs are based on a credited por- tion of the testimony of Gary Gehling based on the crite- ria set forth in section A. I do not credit Veser's account that ". . . they were trying to hide this from me," and that Veser ",lust stumbled on it." Sometime after the morning break on 1 February 1985, Veser approached Geoffrey Gehling in the machine shop and told him that he had messed up a batch of hand piece hangers Veser went to his workbench where he had the pieces in a box. Veser used a checking gauge to show Geoffrey Gehling that a piece had not been ma- chined properly. Geoffrey Gehling told Veser that he did not think that those pieces had been done on that particular run. Geoffrey Gehling checked some of the pieces in the presence of Veser, and he noticed that not all of them had been machined improperly. Veser walked away. Geoffrey Gehling continued to check the pieces. He estimated at the hearing that there were no more than 25 pieces in the box. He also found that about half or a couple more than half had been made improperly. Geof- frey Gehling separated the good pieces from the ones which had been made improperly Geoffrey then ap- proached Veser and told him he did not think he was re- sponsible for the improperly made pieces. He also told Veser he thought those pieces were from a previous batch. Geoffrey Gehlmg explained at the hearing that some of those pieces were dusty whereas a freshly ma- chined piece would have been clean. In addition, he ex- plained that the assembly had been pressing the machine shop for those pieces because they were out of them. Geoffrey Gehling said that the hand piece hangers were being produced on 1 February 1985, and that Vera Warren was machining them on that date . Depending on the operator, Geoffrey Gehling said that between 800 to 1500 such pieces could be produced in 1 day. The foregoing is based on a credited portion of the testimony of Geoffrey Gehling. Geoffrey Gehling acknowledged at the hearing that machine operator Diane Minaker broke eight taps in 1 day. He said it was her fault and not his fault. Minaker acknowledged at the hearing that she did not know whether the broken taps were her own fault as the oper- ator of the machine or the fault. of Geoffrey Gehling who had setup the machine. She stated that Veser was upset with her that day. The foregoing is based on a credited portion of the testimony of Geoffrey Gehling and Minaker. I have considered the testimony of Veser with regard to when he made the decision to, terminate Geoffrey Gehling, Gary Gehling, and Martin. As will be shown by other credited findings of fact in this section, the se- quence of events on 1 February 1985 was convincing 947 that the decision to terminate Geoffrey Gehling, Gary Gehling, and Martin was made on 1 February 1985. Veser's account is to the contrary. He said he made the decision to terminate the three of them during the'last week in January 1985, but he did not discuss his decision with anybody. He said he earlier had discussed his ongo- ing problems with Simor "long before I terminated them," but he said he did not discuss his decision with Simor. At the hearing Simor thought that he and Veser had discussed terminating Geoffrey Gehling, but Simor acknowledged at the hearing that he might have been wrong about that. Both Veser and Simor said they had discussed in mid-January 1985 shifting the manufacture of brass valve parts to the Company's Mission, Canada, facility, and they decided to do so. Veser acknowledged at the hearing that no particular employee had been as- signed to that task at Sumas. I recognize the fact that the testimony of Veser and Simor regarding their conversa- tions in January 1985 are uncontradicted. However, I have not credited their -accounts based on the Board's holdings regarding uncontradicted testimony as set forth in Plasters Local 394 (Burnham Bros.), 207 NLRB 147 (1983); McCormick & Co., 254 NLRB 922 (1981). See also the Court's opinion Glenroy Construction Co. v. NLRB, 527 F.2d 465 (7th Cir. 1975), enfg. 215 NLRB 866 (1974). Prior to his employment with the Respondent, Gary Gehhng had worked at Quintco Tool Products in a ma- chine shop and at Eagle Fasteners where he was a ma- chine operator and performed some work with the ma- chinists in making molds. He worked there about 3 years. Gary Gehling was interviewed for employment with the Company by Veser and Kennedy. Veser agreed to hire Gary Gehling to work in the Company's machine shop, but Veser said he could not do so until about August 1984. Kennedy then agreed to hire Gary Gehling to work in assembly until he could go to work in the machine shop. Simor and Kennedy informed Gary Gehling of the on- the-job training program of the Private Industry Council, and they set him up in the program through the unem- ployment office. Gary Gehling was supposed to be trained for the position of machine shop leadman. Gary Gehling began his employment with the Compa- ny in March 1984. There were three or four employees working at the Company' s Sumas facility at that time. His starting wage rate was $4.20 an hour, but by the end of the week his wage rate was increased to $5 an hour. At the time that Gary Gehling began working for the Company, the Company's assembly facility was located in a former bowling alley in Sumas. The machine shop was located in Vancouver, British Columbia. While Gary Gehling worked in assembly, he built cuspidors and vacuum boxes. In November 1984, he began work- ing in the Company's machine shop and his wage rate was increased to $5.50 an hour. He performed mainly production work in the machine shop, and did minor setups, occasionally made special parts, and occasionally repaired parts which had not been made to specifica- tions. In his opinion, more knowledge and skill were re- 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quired to perform the special work which he did in the machine shop than the knowledge and skill which was needed to perform the regular production work. The foregoing paragraphs are based on a credited por- tion of the testimony of Gary Gehling. The Private Industry Council offers an economic in- centive to an employer by reimbursing an employer 50 percent of a trainee's wages for the employer's hiring the trainee and giving him on-the-job training. The period of on-the-job training usually lasts for 6 months, but the training period can be extended by agreement. Denise Dozier is the former employment coordinator of the Northwest Washington Private Industry Council. Dozier explained that the money for the program comes from a federal block grant. She said with regard to the Private Industry Council- Program: "It's to subsidize an employer to help train a trainee, basically." The Private Industry Council reimbursed the company for 50 percent of the wages of Gary Gehling during the. time that he was in the program which was approximately 8 months. Dozier considered the Company's job evaluations of the trainees to be the most important component of the training program. A rating below a "3" indicated that there was a problem. A rating of "3" was considered to be satisfactory. In connection with her work as the employment coor- dinator for the Private Industry Council, Dozier visited the Company on a monthly basis. She talked with Ken- nedy on those visits. Their conversations regarding Gary Gehling were general in nature with regard to how Gary Gehling was doing and comparing those comments with the Company's evaluation of him. Dozier said there were no complaints and "they were happy." With regard to the Company's evaluations of Gary Gehling for October and November 1984, Dozier asked Kennedy if he wanted to rate Gary Gehling with all "5's" for those 2 months as Kennedy had done on those evaluations Kennedy told Dozier that Gary Gehling was doing an excellent job, and that Kennedy had wanted to give Gary Gehling all "5's." With regard to the company's December 1984 evaluation of Gary Gehling by Veser, Kennedy told Dozier that "it was going fine." Dozier picked up that evaluation from Kennedy. She had asked to speak with Veser, but she was told that Veser was not in at the time. Dozier went to the company's plant on a Friday during the first week of February 1985. She spoke with Kennedy in the lobby. Kennedy told her that the evalua- tion of Gary Gehling was not ready at that -time, and that Kennedy felt Veser was the person who should give Dozier that particular evaluation. Kennedy also told Dozier that they would call her' when the evaluation was ready. The foregoing paragraphs are based on a credited por- tion of the testimony of Dozier. General Counsel's Exhibit 6 consists of copies of two trainee work evaluations regarding Gary Gehling. On his evaluation dated 5 July 1984, Gary Gehling received a superior rating of Grade A with regard to his acceptance of responsibility, and good ratings of Grade B with regard to initiative, accuracy, promptness, regularity in reporting to work, quantity of production, and quality of production. His total performance recommendation by the Company was good or grade B. An additional com- pany comment was: "During Gary's initial month, he has shown high initiative, and a good understanding of shop procedures." Regarding his trainee work evaluation dated 16 July 1984, Gary Gehling received the single rating of good or Grade B for his total performance. An additional compa- ny comment was: "Gary is working in assembly, and will be starting machine shop training within a couple of months He is learning directly how machine quality control can affect the assembly process. This should im- prove our quality control considerably." There are some other handwritten comments primarily regarding tools. At the end of those comments is- "Gary has earned much respect on the job and doing well." General Counsel's Exhibit 7 consists of copie's of docu- ments regarding Gary Gehling from the files of the Northwest Washington Private Industry Council. Among other things, the form called for the company to rate Gary Gehling on a scale of I to 5 in certain catego- ries. A rating of 1 was the lowest and a rating of 5 was the highest. For August 1984 the Company rated Gary Gehling "4" for "participant shows enthusiasm on the job;" "5" for "participant works well 'independently;" "5" for "participant works extra when needed"; and "4" for "participant works productively and quickly." An additional comment was: "works exceptionally well on his own and is able to handle most concepts and prob- lems efficiently." For September 1984 the Company rated Gary Gehling "5, 5, 4, and 4" in the categories mentioned above. For October 1984 the Company rated Gary Gehling "5" in each category. For November 1984 the Company rated Gary Gehling "5" in each category For December 1984 the Company rated Gary Gehling "3, 5, N/a, and 4" in the categories mentioned above. The Company's January 1985 rating of Gary Gehling was submitted after the Company had terminated him. The Company rated him: "2, 3, N/a, and 3" in the categories mentioned above. The company's additional comment was: After "working in the assembly area for several months, Mr. Gehling was transferred to the ma- chine shop for further training His attitude seemed to deteriorate and his willingness to learn and produce quality parts in a reasonable amount of time was no longer up to company standards. We therefore had no choice but to terminate his em- ployment with Dentech. Gary Gehling wrote on 25 February 1985 on an addi- tional sheet: "I refuse to sign this voucher on the grounds that information provided in the evaluation is in- accurate." The foregoing findings are based on documentary evi- dence. Veser said at the hearing that he was unaware at the time that he terminated Gary Gehling that the Private Industry Council subsidy for training Gary Gehling was running out. The foregoing is based on a credited por- tion of the testimony of Veser. DENTECH CORP Prior to 1 February 1985 Gary Gehling had not re- ceived any warnings or discipline from the Company with regard to his job performance. However, sometime in late January 1985 Veser approached Gary Gehhng re- garding clamps for cuspidors, and Veser told Gary Gehl- mg that they were a half-day behind on the clamps. Veser then walked away, and Veser did not say anything further to him regarding the clamps. Gary Gehling ex- plained at the hearing that Veser had taken him off the job of clamps for half a day in order to repair instrument tray holders for carts. The holders had not been made in the Sumas machine shop, but instead they had been made elsewhere. Gary Gehling assumed at the time that Veser had forgotten about taking him off of the clamps, and thus Gary Gehling said that he did not consider Veser's comment to him as being a complaint with regard to Gary Gehling's work. Gary Gehling did not recall having any discussions with Veser regarding his produc- tivity. Gary Gehling said that he never refused to work overtime which was required to be worked. When he was asked if he wanted to work overtime, Gary Gehling said that he may have declined to do so. However, he said that at other times he volunteered to perform over- time work The foregoing findings are based on a credited portion of the testimony of Gary Gehling based on the criteria set forth in section A. Based on the same criteria, I have not credited Veser's testimony which is inconsistent with the account of Gary Gehling. In Veser's account, he was of the opinion that Gary Gehling was not as good an employee as Veser had expected him to be when he hired him. Veser asserted that Gary Gehling could not perform the basic task of sharpening his own drills; that many times Veser had to tell Gary Gehling that he was not feeding the machine fast enough or that he was feed- ing it too fast; that Veser told him many times that the finish on the parts was no good; that Gary Gehling's atti- tude towards his job deteriorated and that Gary Gehling did not seem to be interested in his job; that Gary Gehl- ing put the plug in the wrong of about 200 cuspidor arms which took about 2 days to repair; and that Veser and Diane Minaker had to repair some of the cuspidor arms after Veser had terminated Gary Gehhng. On 31 January 1985 Gary Gehling was informed that he was going to receive a raise in pay. Previously, Gary Gehhng had asked for raises several times. His requests had been denied. Kennedy told Gary Gehling that he had talked with Simor who had said that the Company just could not afford a raise at that time Gary Gehling said that the employees were paid on the first of each month for work which had been performed during the previous month. On the 15th of each month the employ- ees were allowed to take an advance based on an esti- mate of what one-half of their take-home pay would be. The foregoing findings are based on a credited portion of the testimony of Gary Gehhng. Gary Gehling held union organizing meetings at his house. He also notified employees of those meetings. He signed a union card, and he asked other employees to sign union cards and return the cards to him. Gary Gehl- ing acknowledged at the hearing that he had made a conscientious effort to keep the organizing of the Union 949 hidden-from management. Nobody had told Gary Gehl- ing that the company knew about the union organizing activity prior to 1 February 1985. However, in the opin- ion of Gary Gehling, Kennedy spoke with him less than Kennedy previously had done after the union organizing activity had begun. Gary Gehling explained that earlier Kennedy had talked with him regarding the company's plans and with regard to certain employees. The forego- ing findings are based on a credited portion of the testi- mony of Gary Gehling. Based on the criteria set forth in section A, I do not credit the testimony of Kennedy which is inconsistent with Gary Gehling's testimony on this subject. Kennedy stated that he had not talked with Gary Gehling more than anyone else, and that he did not confide in him. Robert Martin worked for the company from 7 Janu- ary 1985 to 1 February 1985. He was hired by Veser. General Counsel's Exhibit 17 is a copy of the employ- ment application of Martin. Prior to his employment with the company, Martin had taken 2200 hours of training at Bellingham Voca- tional Technical Institute. In his opinion, the jobs per- formed in the Company's machine shop were unskilled. General Counsel's Exhibit 22 is a copy of a letter dated 18 October 1984 from an instructor at the Bellingham Vocational Technical Institute and addressed "to whom it may concern." The letter pertains to the training re- ceived by Martin. The letter was produced pursuant to a subpoena from the Company's personnel file pertaining to Martin. The foregoing findings are based on a credited portion of the testimony of Martin and documentary evidence. Martin did not receive any reprimands from the com- pany regarding his work performance. He said that Veser did observe Martin's work, and that Veser made comments to Martin regarding improving. However, Veser never complained to Martin about being slow or about being talkative. Martin said that he was, in fact, not talkative. In his opinion, his job performance was about on a par with the other employees. He acknowl- edged that he may have broken one or two caps while he worked in the machine shop. The foregoing findings are based on a credited portion of the testimony of Martin. During January 1985 Geoffrey Gehhng had occasion to observe the work performed by Martin. Geoffrey Gehhng did so in his capacity as the set-up leader. Geof- frey Gehling went around and inspected pieces in proc- ess, and he observed how the job was running with all of the employees. He did that about five or six times each day. In the opinion of Geoffrey Gehling, Martin was more conscientious than most employees were as far as doing a complete job and making sure that each piece was machined properly. In the opinion of Geoffrey Gehling, 'Martin was very thorough. Geoffrey Gehling told Veser that Martin was a good employee and a good machinist. The foregoing findings are based on a credited portion of the testimony of Geoffrey Gehling. In view of having credited the testimony of Martin and Geoffrey Gehling, I have not credited the testimony of Veser which con- 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD flicts with their accounts. In Veser's version, he said that Martin was very slow; could not or would not do simple things by himself; did a lot of talking; left his work sta- tion to talk with other employees; lacked the basic skills; and was not interested in learning the job. Based on the criteria set forth in section A, I have not credited Veser's account. Martin learned of the union organizational drive among the Company's employees from both Geoffrey Gehling and Gary Gehling. Martin signed a union au- thorization card and he attended union meetings. Martin acknowledged at the hearing that prior to 1 February 1985 the employees had attempted to keep the union or- ganizing efforts from the Company. The foregoing is based on a credited portion of the testimony of Martin. Sometime in late January 1985 Gary Gehling and Martin had a conversation regarding union activity out- side the Company's building. While they were talking, Kennedy came walking around the comer of the build- ing. In the opinion of Gary Gehling, Kennedy looked surprised at seeing them. Gary Gehling said that he and Martin were startled, and they changed the subject of their conversation to the weather. Gary Gehling ex- plained at the hearing that he had not spoken with Martin very often; that Martin was a quiet employee; that Gary Gehling did not really know him; and that Martin had not been working at the company long. Gary Gehling said that it was an unusual event because he and Martin were talking outside the Company's building in the cold January weather. The foregoing findings are based on a credited portion of the testimony of Gary Gehling. The Company terminated Geoffrey Gehling, Gary Gehling, and Martin at the end of the workday on 1 February 1985. The events on the day before and the events during the day of 1 February 1985 are relevant to a consideration of the General Counsel's allegations re- garding those three alleged discriminatees. On 31 January 1985 at 4:30 p.m. Geoffrey Gehling ap- proached Hamilton. Geoffrey Gehling told Hamilton that they were having a meeting that night with other people from the Company to discuss the future of the Company as far as the employees were concerned. Geof- frey Gehling told Hamilton that he should come, and that it would be in his own best interest. Hamilton re- plied okay, and that he would make it if he could. At the hearing Hamilton said things came up at home, so he did not attend the meeting. Hamilton also said he had no knowledge at that time that union representatives were there or that it had anything to do with the Union. The foregoing findings are based on a credited portion of the testimony of Hamilton. Geoffrey Gehling confirmed that he invited Hamilton to the meeting. He also said that he had invited employee Betty Lou Close. On Thursday evening 31 January 1985, about 13 or 14 company employees met with union representatives Gaz- zigli and Wilson at the home of Gary Gehling. Gazzigli explained to the employees that he could take the union authorization cards which the employees had signed and some forms which he had prepared, and he could make a request to Simor to agree to a card check. Gazzigli told the employees that if Simor agreed to a card check, Simor could grant recognition to the Union after a check of the union authorization cards. The employees decided that they would use that strategy initially in an attempt to gain recognition of the Union by the Company. Gaz- zigli said that he and Wilson would be at the facility at 7:30 a.m. the next day to meet with the employees before they went into work. Gazzigli told the employees that they could gather together the next morning and "show a little solidarity group." Gazzigli said that perhaps the Company's supervisors would see them, and that might give some impact to the Union's request to the Compa- ny. Gazzigli told them that at 9 a.m. he and Wilson would try to meet with Simor to see if Simor would agree to a card check. Then at the 10 a.m. break Gaz- zigli said he would tell the employees what had hap- pened. The foregoing is based on a credited portion of the testimony of Gazzigli. The testimony of Geoffrey Gehling and Gary Gehling support Gazzigli's account. Pucci said that 15 out of the 17 employees of the com- pany had signed union authorization cards at that time. The foregoing is based on a credited portion of the testi- mony of Pucci. Minaker said that she and Martin were the only two employees who voted against the plan to have the em- ployees stand outside the building on 1 February 1985. Minaker said that she and Martin favored a slower ap- proach and not to confront the Company the next day. The foregoing findings are based on a credited portion of the testimony of Minaker. On Friday 1 February 1985, 15 or 16 of the Compa- ny's 17 employees stood with Union Representatives Gazzigli and Wilson in areas outside the Company's building from about 7:45 a.m. to 8 a.m. Geoffrey Gehling and Gary Gehling and Martin were among the employ- ees there. The employees did not carry any signs nor did they wear any union buttons. Gazzigli wore a small UAW pin and flag on the lapel of his windbreaker. The pin was about the size of a dime . The employees just talked to each other and the union representatives. It was snowing at the time. It was unusual for the employees to be standing outside when it was snowing. On occasions when the employees had to wait outside for someone to arrive and unlock the door, the employees usually sat in their cars. When the buzzer sounded at 8 a.m., the em- ployees began to go inside the building to begin work. Simor, Veser, and Kennedy had not come to the facility by 8 a.m. that day. The foregoing findings are based on a composite of credited portions of the testimony of Gobbato, Gazzigli, Gary Gehling, Geoffrey Gehling, Martin, Minaker, Proctor, Pucci, Tate, and Tuttle. On 1 February 1985, Hamilton's wife drove him to work and they arrived at the Company's facility about 7:45 a.m. Hamilton saw what he thought was everyone who worked for the company standing outside the Com- pany. He first thought that nobody had arrived with a key to let the employees in the door. Before Hamilton got out of the car, a man who was holding a clipboard approached the car. Hamilton rolled down the car window. He did not know who the man was at that time. The man told Hamilton his name, but Hamilton did DENTECH CORP not recall the name at the hearing The man told Hamil- ton that he was a representative from the United Auto Workers Union; that all of these people were standing outside as a show of force; that when Simor arrived, he could see all of these people in one area as opposed to being at their work stations . Hamilton rolled up the car window and when he got out of the car, the man showed Hamilton a clipboard which had a list of the names and addresses of employees of the Company. The man told Hamilton that all those people wished to be represented by the United Auto Workers, and they would like to have his name on that list. Hamilton re- plied that he was working towards a management posi- tion, and that he was not at all interested in any form of union activity. Another employee, Betty Lou Close, said that she too was working towards management, so maybe she should have her name off of that list. The man replied that it did not matter, that it was "no big deal," and that they had enough names on the list at that time The foregoing findings are based on a credited portion of the testimony of Hamilton. Pucci also talked with Hamilton outside the Compa- ny's building that morning. Hamilton told Pucci that he did not want anything to do with the Union because Hamilton was hoping to get into management . The fore- going is based on a credited portion of the testimony of Pucci. After Gobbato had entered the Company's building, he took off his coat in the lunchroom, then left the lunchroom, and stood by a machine. Gobbato saw Ham- ilton enter the building, check in, and walk directly to Veser's office. In Gobatto's opinion, Hamilton appeared to be "in a very big hurry." Gobbato noticed that Hamil- ton did not take off his coat or turn on the lights in Veser's office. Gobbato observed Hamilton through the window, when according to Gobbato, "He made a phone call." The foregoing is based on a credited portion of the testimony of Gobbato. Gobatto could not testify as to what Hamilton said on the telephone. Hamilton gave in- consistent versions. At first, Hamilton testified that he heard his name announced over the intercom, and that he answered the telephone in his own office. Then Ham- ilton testified that he heard the telephone ringing in Veser's office, so he answered the telephone in Veser's office. I have not credited Hamilton's testimony on this subject. Simor and Pekari were not at the Sumas facility at anytime on 1 February 1985. Veser arrived at the facility sometime after 8 a.m. on 1 February 1985 and after the employees had gone inside to work. Kennedy said he re- ported to work at the facility about 3 to 5 minutes after 8 a.m. that day Kennedy acknowledged at the hearing that he saw five or six employees milling around outside the building and one or two employees playing in the snow. The foregoing is based on credited portions of the testimony of Simor, Veser, and Kennedy. After the employees had gone inside the Company's facility, Gazzigli and Wilson got in Wilson's car and drove across the street to the vacant area there. They waited in that location until 10 a.m. During that time 951 Gazzigli and Wilson looked for a vehicle which fit the .description of Simor's vehicles The did not see such a vehicle nor did they see Simor arrive at the plant. The foregoing is based on a credited portion of the testimony of Gazzigli. Sometime after 8 a.m. and before the 10 a.m. break on 1 February 1985, Veser arrived at the facility. Martin said that he overheard Hamilton tell Veser, "We've got a union going on here." Martin said that Martin and Veser were about 15 feet from him, and that there were some machines running at the time. Martin acknowledged at the hearing that there were drill presses, lathes, milling machines, a belt and disk sander, and a bench grinder in the machine shop. Tuttle described the noise curtain between the ma- chine shop and assembly as consisting of strips of thick plastic which were hung on a metal brace across the top of the door. The noise curtain went to a couple of inches from the floor. Proctor worked on a saw, and he wore ear plugs at work. In his opinion, a conversation in normal tones could not be overheard from 10 to 15 feet away. Tuttle said there were about 25 machines in the ma- chine shop, and about nine employees worked there on 1 February 1985. He said the machine shop was noisy when the machines were running, and that some employ- ees wore ear protectors because of the noise. Tuttle said it was difficult at times to hear a regular conversation during the normal operation of the machine shop. I have not credited the portion of Martin's testimony that he overheard the comment described above by Hamilton to Veser. I have made this credibility resolu- tion based solely on logic. Considering the distance Martin said there was between him and Hamilton and Veser; considering the number of machines and the type of machines in the company's machine shop; considering the testimony from witnesses regarding the noise usually present when the machines are operating in the shop; and considering the fact that Martin did not assert that Hamilton was yelling or shouting his comment to Veser, I conclude that it is not logical to find that Martin could have overheard a comment from Hamilton to Veser in these circumstances. The employees have a 15-minute break at 10 a.m On 1 February 1985 Gazzigh and Wilson had been waiting in a car in a vacant area across the street from the compa- ny's facility. At 10 a.m. they drove across the street to the Company's parking area. On 1 February 1985 Olson took a break at 10 a.m. She went into the company's lunchroom and sat by the slid- ing glass window. She observed Gazzigh and Wilson sit- ting in a car. One of the men motioned to her, so she went to the door and opened it. One of them asked her if Simor had come to the building that day and if she had seen Simor. Olson replied no, and that she had not seen Simor. Olson then went back inside the lunchroom. Gary Gehling also took a break at 10 a.m. that day. He went to the lunchroom, and then he stepped outside the lunchroom onto a concrete area in order to talk with Gazzigli and Wilson. The two union representatives got out of the car to talk with him. 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Geoffrey Gehling also took a break at 10 a. m. that day. After he washed up, he went to the lunchroom. He saw the two union representatives standing outside the lunchroom window, and he saw Gary Gehling. Geoffrey Gehling then went outside, and the four people engaged in a conversation. Gazzigli told them that Simor evident- ly had not arrived. They told Gazzigli that Simor's car was not there. Gazzigli noticed about that time that Martin had come out of the door. Martin walked by them and asked how things were going. Gazzigli replied that Simor evidently was not there. Martin then walked away from them. Gazzigli told Gary Gehling, and Geoffrey Gehling that if Simor did not get there soon , he and Wilson were going to have to leave. Gazzigli explained to them that he worked out of Northern California, and he had a 2 p.m. or a 3 p.m. airplane flight out of Seattle. Gazzigli said that he could come back and try the same strategy the next week if necessary. Harmon's practice was to leave the facility a few min- utes prior to the start of the morning break period. She went to the post office to get the mail, and she also picked up doughnuts for the morning break. She did that on 1 February 1985. When Harmon returned to the Company's premises, she spoke briefly with Geoffrey Gehling, Gary Gehling, and the two union representa- tives who were in the area outside of the lunchroom. She also recalled seeing Martin outside. Harmon went into the lunchroom and set the dough- nuts down there. She then went to her desk and put the mail away. She got her coffee cup and returned to the lunchroom. Veser, Kennedy, and Hamilton were in the lunchroom having coffee at the time. Harmon asked them if Simor or Pekari would be coming in that day. Kennedy replied no, that they would not be. Harmon re- plied that she "had better go inform these guys." She did not identify who "these guys" were to Veser, Kennedy, and Hamilton. From where Harmon was standing next to Veser, Kennedy, and Hamilton at that time, Harmon could see Geoffrey Gehling and Gary Gehling standing outside. Harmon then left the lunchroom; went outside where Geoffrey Gehling and Gary Gehling were talking with the two union representatives; and told them that Simor and Pekari were not coming in that day. While Geoffrey Gehling, Gary Gehling, Gazzigli, and Wilson were standing outside, Geoffrey Gehling saw Kennedy standing inside the Company's lunchroom and standing about a foot from the window. Geoffrey Gehl- ing saw that Kennedy was looking in their direction. Gazzigli also saw Kennedy through the window of the lunchroom at the time that the four people were con- versing outside. Gazzigli estimated that they were stand- ing about 10 feet from the lunchroom window. At that time Gazzigli had not met Kennedy but he later learned Kennedy's identity on 7 February 1985. Pucci was inside the lunchroom that day when he saw through the window Geoffrey Gehling, Gary Gehling, and the two union representatives outside. He also saw Martin go outside. Pucci observed Kennedy and Hamil- ton enter the lunchroom, and he saw them look out the window. Olson was inside the lunchroom that day when she saw through the window Geoffrey Gehling, Gary Gehl- ing, and the two union representatives talking outside. She also saw Martin, but he was not talking with the union representatives at that time. Olson saw Kennedy enter the lunchroom, and she saw Kennedy look out the window. Proctor was inside the Company's lunchroom that day when he looked through the window, and he saw Geof- frey Gehling, Gary Gehling, and the two union repre- sentatives talking outside. Proctor also saw Martin out- side, but Martin was not talking with the union repre- sentatives at the time Proctor saw him. Proctor said that Kennedy came in the lunchroom behind Proctor. The findings in the foregoing paragraphs are based on a composite of the testimony of Gazzigli, Gary Gehling, Geoffrey Gehling, Harmon, Martin, Olson, Proctor, and Pucci based on the criteria set forth in section A. I have not credited the accounts of Kennedy, Hamilton, and Tuttle who did not recall Kennedy's being in the lunch- room during the 10 a.m. break that day. After Kennedy had left the lunchroom during the 10 o'clock break, Proctor followed Kennedy because he wanted to ask him for a ride to North Vancouver. Proc- tor and Kennedy lived in the same house in Sumas at that time, but Kennedy on some nights stayed at his par- ents' house in North Vancouver. Because it was a Friday, Proctor wanted to get a ride so that he could spend the weekend in Vancouver. When Proctor reached Kennedy's office, the office door and office window were shut. Usually, the door and window were open. Proctor looked through the window, and he saw that Kennedy was on the telephone. The foregoing is based on a credited portion of the testimony of Proctor. Harmon observed Hamilton on the telephone immedi- ately after she had told Geoffrey Gehling, Gary Gehling, and the two union representatives that Simor was not coming in that day. The foregoing is based on a credited portion of the testimony of Harmon. Neither Proctor nor Harmon could testify as to what was said by Kennedy and Hamilton in those circum- stances. At 4:25 p.m. on 1 February 1985, Veser told Geoffrey Gehling to get his brother and Martin and come to his office. The three employees met with Veser about 4:30 p.m. Veser told them that the Company was expanding its Mission operations, that the Company was going to be making more valves there, that the Company would not be needing them, and that he was going to lay them off. Gary Gehling asked Veser, "why us?" Veser replied that they were the three lowest producers in the machine shop. Gary Gehling again asked why they were being laid off. Veser replied that he had just received a tele- phone call from Simor about an hour ago , and that Simor said to let them go. Martin asked Veser about references. Veser replied that, according to Simor, there would be no references. Geoffrey Gehling then asked Veser if they could get a piece of paper stating that their attendance had been good and that they had been laid off. Vesser said yes, that he would agree to giving them a reference. DENTECH CORP Geoffrey Gehling asked Veser what would make him select a senior employee, an employee of a few months, and a new employee . Veser replied that their work was sloppy and that they were not productive enough. Geof- frey Gehling asked if they at least should not have re- ceived a warning first, and should not they have at least received a warning such as "one week to shape up or ship out." Veser replied that the laws there were differ- ent. At the hearing, Geoffrey Gehling gave his opinion of Veser's appearance on that occasion . In his opinion, Veser's eyes were watery and reddened. Veser appeared to Geoffrey Gehling to be very nervous and shaking. He also observed that Veser was smoking at the time. Based on his earlier observations of Veser, Geoffrey Gehling was of the opinion that Veser was more nervous than usual . Geoffrey Gehling had observed Veser lay off other employees , and in the opinion of Geoffrey Gehl- ing, Veser had been more calm when he had laid off those employees. In the opinion of Gary Gehling, Veser was visibly upset, pale, and shaking at times during that occasion. The foregoing findings are based on a composite of the testimony of Geoffrey Gehling, Gary Gehling, and Martin based on the criteria set forth in section A. I have not credited Veser's different version that Gary Gehling remarked, "Well, probably maybe we're too expensive. That's why we're getting dismissed." I also do not credit Veser's testimony that Gary Gehling said on that occa- sion "Maybe if you paid more you'd get more work out of us." Based on the criteria in section A, I have not credited the testimony of Veser and Simor that they did not learn that there was union organizing activity among the Company's employees until after Geoffrey Gehling, Gary Gehling, and Martin had been terminated Certain events took place after the termination of the three alleged discriminatees who are in issue in this sec- tion of the decision . Although those events occurred after the termination of those three persons, I have con- sidered those events to be relevant to the issues involv- ing their termination. Simor met with the company's employees in the lunch- room on the first Friday in March 1985. Simor had a copy of a newspaper article from The Bellingham Herald with regard to the firing of employees by the Company and with regard to the union organizing efforts at the Company. Simor told the employees that after he had read the newspaper article that it was the Gehlings who initially had contacted the Union , and that Simor would have fired those guys all over again for doing it. Simor told the employees that they had no business doing that. The foregoing is based on a credited portion of the testi- mony of Pucci. As indicated previously in section C, Pucci had a con- versation with Kennedy in early March 1985 wherein Pucci asked Kennedy what was the real reason that Geoffrey Gehling and Gary Gehling were fired . Kenne- dy replied that they were fools for going to the Union; that they did not have any right to do that; and any right to think they could organize the plant. The foregoing is based on a credited portion of the testimony of Pucci. Geoffrey Gehling returned to the Company's facility after his termination in order to get his personal tools. At 953 that time Geoffrey Gehling asked Veser if he could have some broken drill bits. Veser said that he could have them. About a week later, Geoffrey Gehling again re- turned to the Company 's facility. He had received a pay- check in the mail from the Company for his work on 1 February 1985, which was the first day of a new pay period . His paycheck had not reflected the 25 -cent-an- hour raise which Veser had promised him. Geoffrey Gehling asked Veser if he would accompany Geoffrey Gehling to the office in order to speak with Pekari Veser did so. Geoffrey Gehling then told Pekari that Veser had given him a raise. Veser verified that fact to Pekari. Geoffrey Gehling told Pekari that the reason he wanted to document the raise, and why he wanted the 25-cent raise for the 8 hours he had worked on 1 Febru- ary 1985 , was that if he had been laid off, he would resume his wage rate at $6.25 an hour in the event he was called back to work . Pekari looked at Veser and smiled . Pekari said that she would mail the check to Geoffrey Gehling. Geoffrey Gehling then asked about the reference which Veser had promised him Pekari said that she would mail the reference to him . She also told him that she had been very busy and had not had time to do it. Later Gehling received a check from the Company for $2.38. After another visit to the Company regarding a reference, Geoffrey Gehling also received a letter of reference from the Company. At the time that he testified at the hearing, Geoffrey Gehling acknowledged that he did not know whether he had been terminated because of union activities, but the only reason he believed he was terminated was because of union activities . He believed that a supervisor saw him talking with union representatives on the day that he was terminated Geoffrey Gehling testified that there was no other reason for his being terminated, except for his union activities . He said he reached that conclusion soon after he was terminated . He did not file an unfair labor practice charge with the NLRB at that time because he assumed that the Union was making a claim on the Com- pany. He believed that the UAW was going to be in the process of talking with the Company with regard to his reinstatement in his job. After Geoffrey Gehling found out at the end of June that the UAW had not done so, he telephoned the NLRB . Thereafter, he filed an unfair labor practice charge with the NLRB on 18 July 1985. The foregoing paragraphs are based on a credited por- tion of the testimony of Geoffrey Gehling. When Gary Gehling was laid off on 1 February 1985, Gary Gehling believed that he had been laid off because of his union activities, and he believed that it was illegal for the Company to do so. As a result , Gary Gehling went to an attorney in private practice to learn what his rights were. The attorney advised Gary Gehling that he had a good case, but the attorney said it would be diffi- cult to prove the case in court . The attorney advised Gary Gehling that he should wait until the Union was in the plant, and the Union was negotiating a contract with the Company . The attorney told Gary Gehling that he believed that would be the best way for Gary Gehling to get his job back. In addition to the foregoing legal advice, another reason that Gary Gehling did not file an 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unfair labor practice charge at that time was because he did not want to delay the election to be conducted by the NLRB. Gary Gehling spoke with the Union regard- ing the filing of an unfair labor practice charge, and the Union also did not want him to file a charge which would postpone the election date. The Union told Gary Gehling that he should file an unfair labor practice charge if the Union was not able to negotiate his job back. By late July 1985, Gary Gehling decided to file an unfair labor practice charge against the Company with the NLRB. He did so at that time because he felt that the Union had no support, and that the Union was think- ing of backing out. In addition, Pucci informed Gary Gehling that the statute of limitations was nearly up. The foregoing paragraphs are based on a credited portion of the testimony of Gary Gehling. On 20 February 1985 Dozier visited the Company's plant where she spoke with Veser in his office. Veser gave her a piece of paper which stated why the Compa- ny had let go Gary Gehling. Veser told Dozier that his hands were tied in this situation; that he had tried to give Gary Gehling a break because he was a young man with a family; Gary Gehling's productivity had not come back up; and that Veser needed to let him go. Veser also told Dozier that the Company could pay back the Pri- vate Industry Council if the Private Industry Council wanted the company to do so. Dozier replied that that was not the way that the agency's funding ran. Dozier did not have the company's earlier evaluations of Gary Gehling with her at the time of her conversation with Veser, but she recalled that Gary Gehling had been doing "a satisfactory-plus job." She asked Veser why the evaluations did not reflect that Gary Gehling had low productivity. She told Veser that he needed to inform her that there had been a problem with Gary Gehhng; that she felt Veser was willing to work with Gary Gehl- ing to help him get his productivity back up so that Gary Gehling would be a good trainee again . Dozier told Veser that she felt that she had not been allowed to do her part which could have been to give Gary Gehl- ing some additional training as well as meeting with the three of them to get the problems straightened out. Dozier described Veser as being nervous during their half-hour conversation on that occasion. She said that Veser spoke very softly. It was the first time that Dozier had met Veser. The foregoing is based on a credited por- tion of the testimony of Dozier based on the criteria set forth in section A. Veser gave a very brief description of their conversation. His version was that Dozier wanted to know why Gary Gehling had been laid off, and Veser told her that Gary Gehling had not done a good job and that his attitude had deteriorated. As indicated above, I have credited the more detailed account by Dozier who had a better recollection of that event. Subsequent to Martin's termination by the Company, Martin returned to the company in order to get a letter which stated he was reliable He asked Veser for such a letter Simor was standing next to Veser at that time. Simor motioned to Veser, and he said that it was against company policy. At the time that the company terminated him, Martin said that he believed that the Company had terminated him because of his union activity. The reason for that belief was because the Company had terminated him on the same day that the union representatives had appeared on the Company's property. However, Martin said that at that time he was not sure that it was illegal for the Company to do so. Subsequently, Martin said-he decided to file a charge after he was contacted by the NLRB agent, Hart. The foregoing paragraphs are based on a credited portion of the testimony of Martin. Joint Exhibit 1 is a copy of an advertisement placed by the Company in the "Help Wanted" section of the Lynden Tribune newspaper for 13 February 1985. The advertisement stated: "MANUFACTURER OF small components, needs machinist to set up drills, milling ma- chines, lathe; etc., the successful applicant must be well organized and able to keep a clean shop. Send resume to P.O. Box 157, Sumas, WA 98295 " The foregoing is based on documentary evidence. After the termination of Geoffrey Gehhng, Gary Gehling, and Martin, the Company hired three new em- ployees in the machine shop who had no previous ma- chine shop experience. The employees were: Theresa Ambercrombe, Cindy Ellis, and Peggy Forsloff. The foregoing is based on a credited portion of the testimony of Veser. Respondent's Exhibit 18 is a list of names of employee turnover at the Company as of 31 December 1985. Al- though a number of the Company's employees had been laid off, quit, or been terminated, those former employees did not file an unfair labor practice charge against the Company and assert that they were discriminated against because of union activities. The foregoing is based on a credited portion of the testimony of Simor and documen- tary evidence. 3. Conclusions The allegations in paragraph 11(a) of the General Counsel's complaint quoted above have to be read in connection with paragraphs 14, 15, and 16 of the Gener- al Counsel's complaint wherein it is alleged that such conduct violated Section 8(a)(1) and (3) of the Act. Based on the credited findings of fact, I conclude that the General Counsel has presented evidence which shows that each one of the three alleged discriminatees had engaged in union activities prior to the Company's termination of them. The evidence also established that the Company was hostile to the employees' union orga- nizing activities. The substantial number of.violations of Section 8(a)(1) of the Act revealed a union animus on the part of the company management. The Board has held that: "A necessary element in the General Counsel's prima facie case is a showing that the employer had knowledge of the employee's union activi- ty." Consolidated Freightways Corp., 276 NLRB 477 (1985). However, the Board also has held: Direct evidence is not the only means by which an employer's knowledge of union activity may be es- tablished. It is well settled that knowledge may also DENTECH CORP be inferred from all the circumstances [Marathon LeTourneau Co, 256 NLRB 350, 363 (1981).] The Marathon decision cited the fact that circumstantial evidence of employer knowledge was relied upon in NLRB v. Link-Belt Co., 311 U.S. 584 (1941), and Fred Stark, 525 F.2d 422, fn. 8 (2d Cir. 1975). I conclude that the circumstances in this case warrant the drawing of an inference that the Company had knowledge of the union organizing activity of its em- ployees at the time the Company terminated Geoffrey Gehling, Gary Gehling, and Martin. Without unnecessar- ily repeating the findings of fact, it should be noted that 15 out of the 17 employees of the Company at that time had signed union authorization cards. Thus, the evidence showed that the extent of union activity among that rela- tively small group of 17 employees was very high. Geof- frey Gehltng was the one who initially had contacted the Union, and he was very active in the union organizing campaign . Gary Gehling also was very active and held union meetings at his house, which included a union meeting on the night before his termination . Martin also engaged in union activities prior to his termination, al- though to a lesser extent than Geoffrey Gehling and Gary Gehling had done. While the Company's employ- ees previously had attempted to hide their union organiz- ing activities from company management, the employees abandoned that concept of secrecy on the morning of 1 February 1985. Fifteen or 16 out of the 17 employees held a demonstration outside the Company's building. Thus, the concept of keeping their union activities a secret was no longer in effect among the employees as of the morning of 1 February 1985. I recognize the fact that Simor and Veser did not see the demonstration, and that Kennedy acknowledged seeing only a small number of the employees outside the building that morning. How- ever, with 15 or 16 employees out of a total complement of 17 employees engaged in activities in support of the Union at the facility, I conclude that it may be inferred that the company gained knowledge of the fact that the Company's employees were organizing a union. Further, at the 10 o'clock break Veser and Kennedy had the op- portunity to observe Goeffrey Gehltng and Gary Gehl- ing standing outside the Company's building and talking with the two union representatives. Martin also was out- side the building at that time. Although Martin was not in the group with Geoffrey Gehling, Gary Gehling, and the two union representatives, I conclude that Martin was the only other company employee outside the build- ing in that area at that time. No witness stated that he saw anyone else outside in that area during the 10 o'clock break. The evidence established that Kennedy looked out the lunchroom window while the alleged dis- criminatees were outside during their break, and the evi- dence showed that other persons inside the lunchroom could observe the alleged discriminatees and the two union representatives outside the building. I conclude that Kennedy also observed them on that occasion. In view of the inference drawn above regarding the Com- pany's knowledge of union organizing activities on 1 February 1985, 1 conclude that Kennedy would reason- 955 ably believe that the two strangers were union represent- atives. None of the three alleged discriminatees had received any warnings from the Company regarding their job per- formance prior to 1 February 1985. Veser had compli- mented Geoffrey Gehling's work on two or three occa- sions, and told Geoffrey Gehling that he was doing a good job and merited a raise. In addition, Geoffrey Gehling and Gary Gehling received a 25-cent-an-hour raise effective on the same day the Company terminated them. On the basis of logic, I conclude that the Compa- ny's giving a raise in pay to Geoffrey Gehling and Gary Gehling is inconsistent with the Company's claim that it terminated them the same day because of their job per- formance. Harmon's testimony revealed that Veser told Pekan that the group of four employees, which included Geoffrey Gehling and Gary Gehling, deserved raises, and that everything was running smoothly. That state- ment of Veser also is inconsistent with the Company's asserted reasons for terminating Geoffrey Gehling and Gary Gehling. Gary Gehltng had received at least satisfactory and higher evaluations by the Company in its reports to the Private Industry Council. The last evaluation for January 1985 was not prepared and submitted by the Company until after the Company had terminated Gary Gehling. That final evaluation has been weighed and discounted in light of that fact. Martin worked for the Company only 4 weeks, but he had received no reprimands regarding his job perform- ance and no complaints regarding his being slow or talk- ative. I conclude that the reasons advanced by the Company for the termination of Geoffrey Gehling, Gary Gehling, and Martin were pretextual reasons, rather than true rea- sons for their termination As indicated in the findings of fact, I found Veser's account to be exaggerated and not credible. Furthermore, I conclude that statement made by Simor regarding The Bellingham Herald newspaper arti- cle constitutes an admission of the Company's animus and evidence of discriminatory motivation. It should be noted that Simor said that Geoffrey Gehling and Gary Gehling had no business in contacting the Union and that Simor would have fired them for doing that. I also conclude that Kennedy's statement to Pucci constituted an admission of animus and evidence of discriminatory motivation. It should be noted that Kennedy stated that Geoffrey Gehling and Gary Gehling had no right to contact the Union and to think they could organize the plant. In view of the foregoing, I conclude that the General Counsel has presented a prima facie case that the Com- pany terminated Geoffrey Gehling, Gary Gehling, and Martin on 1 February 1985 because they and other em- ployees had engaged in union activities and protected concerted activities. Having reached that conclusion, I now consider whether the Company has persuaded that it would have terminated them even in the absence of such union activities and protected concerted activities. 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In its decision in Hunter Douglas, Inc., 277 NLRB 1179 (1985), the Board held: The Board held in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, that once the General Counsel makes a prima facie showing that protected conduct was a motivating factor in an employer's action against an employee, the burden shifts to the em- ployer to demonstrate that it would have taken the same action even in the absence of the protected conduct. The employer cannot carry this burden merely by showing that it also had a legitimate reason for the action, but must "persuade" that the action would have taken place absent the protected conduct "by a preponderance of the evidence," Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). If an employer fails to satisfy its burden of persuasion, a violation of the Act may be found. Bronco Wine Co., 256 NLRB 53 (1981). See also Master Mining, 274 NLRB 1213 (1985), and Centre Property Management, 277 NLRB 1376 (1985). I conclude that the Company has not met the Wright Line test as stated in the Board's decisions cited above. As indicated previously, I have concluded that the rea- sons advanced by the Company for the termination of Geoffrey Gehling, Gary Gehling, and Martin were pre- textual reasons which were asserted to hide a discrimina- tory motivation. As pointed out in the findings of fact and reiterated above, I found that the Company's reasons were not credible. Accordingly, I further conclude that the Company has not met its burden under the Board's Wright Line decision. Therefore, I further conclude that a preponderance of the evidence established that the Company has engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (3) of the Act as alleged in paragraph 11(a) of the General Counsel's complaint. G. The Section 8(a)(1) and (3) Allegations Pertaining to the Issuance of a Written Warning and the Termination of Michael Pucci 1. Allegations The General Counsel's complaint paragraphs 11(b) and (c) alleged: (b) On or about April 1 , 1985, Respondent issued a written warning to Michael Pucci. (c) On or about April 26, 1985, Respondent terminated employee Michael Pucci and since said date has failed and refused to reinstate him to his former position or to a substantially equivalent position. 2. Facts Michael Pucci was employed by the Company from February 1984 to 26 April 1985. He was hired by Kenne- dy, and he worked in assembly. Pucci assembled unit heads and counterbalanced arms. He also did testing on those units. He began work with the Company when the facility was located in the former bowling alley. During the time that Pucci worked for the Company in the former bowling alley, Pucci was given a key which un- locked the front door of the building. When the Compa- ny later moved to the new building, it gave the key to that building to Betty Lou Close who usually arrived there before anyone else did. Pucci's starting wage rate was $4.50 an hour. He re- ceived a raise to $5 an hour after being employed for about 3 months. Around 3 months after that, Pucci re- ceived another raise to $5.50 an hour. Subsequently, Pucci received still another raise to $6 an hour, which was his wage rate at the time of his termination. When Pucci was first employed by the Company, he worked under the trainee program of the Private Indus- try Council. He received job performance evaluations in accordance with the terms of the agreement between the council and the employer. Pucci's supervisor, Kennedy, prepared those evaluations. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Pucci. The General Counsel's Exhibit 11 consists of copies of the Company's evaluations of Pucci with regard to the on-the-job training program of the Private Industry Council. The evaluation dated 11 April 1984 revealed that the Company rated Pucci superior or Grade A in prompt- ness and regularity in reporting to work. The Company rated Pucci good or Grade B in the categories of accept- ance of responsibility, initiative, accuracy in his work, and quantity and quality of production. His total per- formance rating was good or Grade B. The Company's additional comment on that evaluation form was: Mike started out slow in the category of accuracy, but soon realized that it would not be acceptable and has vastly improved through policing. His en- thusiasm is unsurpassed and attendance has been ex- cellent. He is learning technical terms and that will aid his production speed as he takes on more re- sponsibility. The evaluation dated 14 May 1984 revealed that the Company rated Pucci superior or Grade A in regularity in reporting to work and rated Pucci good or Grade B in all other categories, including total performance. Ad- ditional comments made on the evaluation form were: 4/10 Michael is doing well. Checks self carefully as gains confidence on the job-thus progressing a bit more slowly initially-learning everything he can- speed is picking up with accuracy. 5/10 Michael is doing much better. Fitting in well. Gaining more confidence. 6/1 Michael is accepting more and more responsibility. Is learning carefully. 7/20 Mi- chael is working mostly with production and doing well. Learning much and settling in better than on any job in years. Dentech is a good company for him. The Company's evaluation dated 5 June 1984 revealed that it rated Pucci only in the total performance catego- ry as good or Grade B. An additional comment on the DENTECH CORP form was: "Michael is learning to isolate and correct any production problems with minimum supervision." The Company's evaluation dated 16 July 1984 re- vealed that it rated Pucci only in the total performance category as good or Grade B. An additional comment on the form was: `Mike is now fluent in testing procedures and can cover most assembly requirements. Trouble shooting is being covered along with repair analysis." The findings in the foregoing paragraphs are based on documentary evidence. During her monthly visits to the Company, Dozier spoke with Kennedy regarding Pucci. Kennedy told her that Pucci was doing very well, that the Company was going to employ him after its contract with the Private Industry Council had expired; and that there were no problems. The foregoing is based on a credited portion of the testimony of Dozier. Sometime in February 1985 Pucci was cold at work He noticed that the thermostat was set around 60 de- grees. Pucci asked Kennedy if he could turn the heat up Kennedy told Pucci to wear a sweater or to work faster. Pucci then turned the thermostat up to 70 degrees. Ken- nedy later told Pucci that Simor was angry because the heat was turned up. Pucci told Kennedy that he was sorry, but it was cold. Pucci also told Kennedy that he would not do it again . At the hearing Pucci said that he did not turn up the thermostat after that incident. Noth- ing was said to Pucci on that subject. The foregoing findings are based on a credited portion of the testimony of Pucci based on the criteria set forth in section A. I do not credit the testimony to the con- trary by Kennedy who in my view exaggerated the inci- dent regarding turning up the thermostat. In Kennedy's version, Kennedy said that he had to speak to Pucci at least 10 times regarding turning the thermostat up Re- spondent's Exhibit 9 is a copy of a memo to the Compa- ny's employees which Kennedy circulated to the em- ployees in assembly. The memo is dated 7 December 1984. Among other things, the memo states: "Nobody should touch the thermostats " The foregoing is based on documentary evidence. Respondent's Exhibit 8 consists of copies of Pucci's timecards for December 1984 and January 1985. The Company's policy was for its employees to punch in 5 minutes before 8 a m., and to actually start work at 8 a.m. Pucci was not ready to start work at 8 a.m. on 20 days out of the 40 days of work during those 2 months. Respondent's Exhibit 10 is a copy of a memo which Kennedy circulated to the employees in assembly. The memo is not dated. Kennedy believed that the memo was circulated in October 1984. Among other things, the memo stated that 8 a.m. was the time to start working and not the time to arrive at the facility The foregoing findings are based on a credited portion of the testimony of Kennedy and documentary evidence. Pucci was not reprimanded or disciplined by the Com- pany for punching in his timecard late The foregoing is based on a credited portion of the testimony of Pucci One day in April 1985 before Pucci was terminated by the Company, employee Close attempted to ask Pucci for some instructions regarding some parts. Pucci did not appear to hear her. She noticed that he was wearing ear- 957 phones, so she yelled at him. Pucci then removed the earphones, and they were able to converse with each other. Close did not complain to Kennedy about Pucci prior to the time that the Company fired Pucci. The foregoing is based on a credited portion of the testimony of Close. Based on the criteria set forth in section A, I do not credit Kennedy's testimony on this subject. Ken- nedy's version is that Kennedy was the one who had to make two requests to Pucci to remove the Walkman cas- sette player earphones. As will be shown later, it was not until 20 August 1985, which was several months after Kennedy terminated Pucci, that Kennedy asked Close to write a letter regarding the radio incident, Pucci's talk- ing, or something regarding Pucci. I found that Kenne- dy's testimony was exaggerated regarding this incident. During the course of his employment with the Compa- ny, Pucci was never reprimanded for playing a radio. The foregoing is based on a credited portion of the testi- mony of Pucci. When Kennedy informed Pucci that Pucci was going to be moved to warranty and repair, Kennedy told Pucci that Pucci was doing a very good job. The foregoing is based on a credited portion of the testimony of Pucci. With regard to Pucci's union activities, Pucci signed a union card, and he attended union organizing meetings. Pucci also served as the observer for the union at the NLRB-conducted election which was held on 12 March 1985. The foregoing is based on a credited portion on the testimony of Pucci. Kennedy acknowledged at the hear- ing that he was aware that Pucci had served as the ob- server for the Union at the election. Based on the criteria set forth in section A, I do not credit Kennedy's claim that Pucci's serving as the union election observer did not indicate to Kennedy whether Pucci was for or against the Union. On 1 April 1985 while Pucci was working at his bench at the Company, Kennedy walked up to him and put a piece of paper on the bench. Pucci noticed that Kenne- dy's face was red. Kennedy then walked away. Pucci read the paper which was dated 1 April. Pucci said that the paper was a reprimand for talking too much and for encouraging bad work habits among the employees. Pucci at first thought that the paper was an April Fool's joke rather than a warning. Pucci had not been talking more than anyone else had been. Pucci went to Kennedy's office, and he asked Kenne- dy what the paper was. Kennedy replied that it was a warning letter. Pucci asked "for what?" Kennedy replied that it was for talking too much. Pucci replied with a vulgar expression, and Pucci said that he did not think he was talking too much Pucci also said that he did not think he deserved the warning. After lunch on 1 April 1985, Pucci spoke with Simor in Simor's office. Kennedy was present for about the first 5 minutes of that conversation. Pucci told Simor that he felt the warning was uncalled for, and that he was being harassed Pucci told Simor that he was training two people to replace him in his job; that he felt he was going to be fired; that this was just the first warning; that he had been an observer for the Union in the election; and that the warning letter was harassment and uncalled 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for because he had not been talking any more than anyone else had been. Simor told Pucci that there was nothing wrong with Pucci's work; that no one was plan- ning on firing Pucci; that Kennedy already had told Pucci that Pucci would be moved into warranty and repair; and that Pucci had nothing to worry about. Ken- nedy then said that Pucci had talked excessively. Pucci denied having done so. Simor stated that if Kennedy said that Pucci was talking excessively, then Pucci must have been doing so. The foregoing is based on a credited por- tion of the testimony of Pucci. Respondent's Exhibit 5 is a copy of the written warn- ing which wasgiven to Pucci by Kennedy on April 1985. It states: LETTER OF WARNING TO: Mike Pucci DATE: April 1/85 The following unsatisfactory performance traits have been noted and discussed with you on this date. Your performance will again come up for review in , with actions to be taken de- pendent on improvements made. Issued by: Al Kennedy Rev'd by: 1st Warning: Excessive talking-encouraging bad work habits among new employees. The foregoing is based on documentary evidence. I do not credit the testimony of Stafford that Pucci re- ceived several written warnings for talking at the Com- pany. Respondent's Exhibit 5 was the only written warn- ing involving Pucci which was introduced into evidence. I find that her testimony on this subject was exaggerated and inaccurate. Based on the criteria in section A, I also do not credit her testimony that Pucci engaged in "play- ing games" at the Company because Pucci did not like Kennedy, who was 21 years old. Respondent's Exhibit 11 is a copy of a handwritten memo to Pucci and Allen Lawson. Among other things, the memo set forth the procedure for them to obtain as- sistance with their jobs; to have work and parts ready to be assembled; and to encourage both of them not to talk because of the critical nature of final assembly. Kennedy believed the memo was distributed in late February or early March 1985. The foregoing is based on a credited portion of the testimony of Kennedy and documentary evidence. Prior to 1 April 1985 no one in company management had reprimanded Pucci for excessive talking. Written let- ters of warning were rare at the Company. The forego- ing is based on a portion of the credited testimony [of] Pucci. Hamilton had a conversation with Pucci around 1 April 1985. Pucci asked Hamilton who had put him in charge, and Pucci remarked that Hamilton was being "pretty bossy." Pucci also asked Hamilton who did he think he was. Hamilton replied that he may have done a few things wrong around there, but at least he had never stolen anybody's purse. There were several employees in the assembly area when Hamilton made that remark to Pucci. When Kennedy returned to work the following week after being absent with the flu , Kennedy asked Hamilton how he knew that Pucci was a purse snatcher . Hamilton told Kennedy that his brother-in-law had served some time in the Whatcom County jail for driving while in- toxicated, and that Pucci was in jail there for petty theft by purse snatching. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Hamilton. On 26 April 1985 about 11 :30 a.m., Kennedy asked Pucci to come into his office. Kennedy told Pucci that he had some bad news for him. Pucci asked what it was. Kennedy said that they had looked up Pucci 's criminal record. Pucci said, "Oh." Kennedy then told Pucci: "Armed robbery and assult. We can't have anyone work- ing here with a record like that ." Pucci replied that he had been "in trouble with the law but that was 10 years ago." Pucci also told Kennedy that it had been dis- missed; that he did not know where Kennedy had got his information, but his information was wrong. Kennedy told Pucci that either Pucci could quit, or if Pucci did not quit, it would be publicly known around Sumas, Everson and Bellingham that Pucci had been convicted of armed robbery. Pucci told Kennedy that he had been convicted of a crime, and it was dismissed. Pucci again said that Kennedy's information was wrong, and Pucci asked where Kennedy had got his information. Kennedy said that he had a friend in Olympia. Pucci told Kennedy that he had been working there for 14 months, and Pucci asked Kennedy why Kennedy was looking up Pucci's criminal record at that time. Pucci also asked Kennedy whether there was anything wrong with his work. Kennedy said no. Pucci's criminal record was the only reason given at that time by Kenne- dy for Pucci's termination. Pucci asked to see Simor. Kennedy replied that Simor had authorized this, and that Simor was in Bellingham and would be gone for the day. In the opinion of Pucci, Kennedy was smirking at him when he told Pucci about Simor. Pucci said that Kennedy was eating a doughnut during the time of their conversation. The foregoing findings of fact are based on a credited portion of the testimony of Pucci. General Counsel's Exhibit 13 is a copy of the compa- ny's termination slip which Pucci received on 26 April 1985 with his final paycheck . The document states: NOTICE OF TERMINATION EMPLOYEE: Michael Pucci EFFECTIVE DATE: April 26/85 REASON: Upon hiring Michael was questioned as to the existence of any convictions of a criminal nature. He denied a record of any sort and was hired on the understanding that, as stated in Den- tech's Company Handbook, the withholding and falsification of such relevant information is cause for immediate dismissal. It has been brought to the Company's attention that Michael has several con- victions for Armed Robbery and Assult. DENTECH CORP 959 NOTES: Your dismissal is effective immediately for reasons outlined above. What appears to be the handwritten name of Al Ken- nedy is shown as the one authorizing the termination. The foregoing findings are based on documentary evi- dence. Just after Kennedy had terminated Pucci, employee Betty Lou Close had a conversation with Kennedy. She saw Pucci come out of Kennedy's office and slam the door. Close went into Kennedy's office, and she asked Kennedy what had happened. Kennedy told Close what had taken place and that Kennedy was thinking of letting Sue Stafford go also because she was the one who had voted for the Union. Kennedy told Close that four people had not voted for the Union, and that Stafford was not one of those persons. Close asked Kennedy not to fire Stafford. At the hearing Close acknowledged that she was aware of the fact that Stafford had not been fired by the Company, and, instead, that Stafford had been promoted. The foregoing findings are based on a credited portion of the testimony of Close. As indicated above, Kennedy gave only one reason, both verbally and in writing, for the termination of Pucci at the time that Kennedy terminated Pucci. However, at the hearing Kennedy expanded substantially the reasons for Pucci's termination . Kennedy asserted Pucci 's work- manship was very lacking. He said this had occurred particularly around the end of 1984. Kennedy claimed that Pucci made repetitive mistakes and "silly mistakes" in the final assembly and the testing of unit heads and counterbalanced arms. Kennedy said that he had talked with Pucci either once a week or once every 2 weeks regarding problems with Pucci's workmanship. Kennedy said he had also warned Pucci about once a week re- garding Pucci's talking with other employees. Kennedy said he had been receiving complaints from other em- ployees about being distracted by Pucci's talking. Kenne- dy also asserted that he had warned Pucci about playing a radio during working hours. Kennedy said that it was all right to play the radio after 4:30 p.m. if employees were at the facility to put up shelves, but it was not all right to do so before 4:30 p.m. Kennedy claimed that he had warned Pucci on several occasions not to turn the thermostat up from 67-69 degrees to 75-77 degrees. Kennedy said that he had told Pucci to put on a sweater or coat. Kennedy asserted that Pucci had turned up the thermostat later in the same day on which Pucci had been warned by Kennedy not to do so. Kennedy said that he felt Pucci was testing him. Kennedy said that he felt that Pucci's actions in turning up the thermostat and playing the radio verged on insubordination. The final reason given by Kennedy for Pucci's termination was Pucci's criminal record. Kennedy said that he had learned that there had been an altercation between Ham- ilton and Pucci while Kennedy was sick for a week or 10 days. Kennedy also had heard that Hamilton had said that Pucci had been involved either in purse snatching or robbery, so Kennedy asked Hamilton about it when Ken- nedy returned to work. Kennedy said that Hamilton told him that Pucci had been in jail for purse snatching at the same time that Hamilton's brother-in-law had been in jail. Kennedy's version is that Pucci admitted to him that Pucci had been in jail for armed robbery and assult, so Kennedy immediately terminated Pucci. Respondent's Exhibit 12 is a copy of a memo to the file which Kenne- dy said that he had prepared sometime after Pucci's ter- mination. The memo is not dated. Kennedy said at the hearing that the reason that he had put up with Pucci for such a long time was that Pucci was the only employee who performed a final assembly and testing of unit heads and the assembly of counterbalanced arms. Based on the criteria set forth in section A, I have not credited Kenne- dy's version. Kennedy's account conflicts with the cred- ited findings of fact previously given by Pucci with regard to his job performance at the Company and his conversation at the time he was terminated by Kennedy. I found that Kennedy's testimony regarding the number of reasons which he asserted for Pucci's termination at the hearing were not believable. After his termination, Pucci examined his records at home, and he found a copy of an Order of Dismissal dated 25 February 1980 in his case involving attempted robbery in the second degree. General Counsel's Exhibit 15 is a copy of that court document. Pucci next went to see Whatcom County Prosecuting Attorney David S. McEachran in Bellingham. Pucci told McEachran what had happened to him, and he asked McEachran if he would contact the Company. As a result, McEachran wrote a letter dated 30 April 1985 to the Company. Gen- eral Counsel's Exhibit 14 is a copy of that letter. It states. I am writing in regard to Michael Pucci, and the Notice of Termination that he received from your corporation. Mr. Pucci came to my office and indi- cated that he had been fired based upon your under- standing that he withheld or falsified information concerning a conviction for Robbery in his back- ground. I handled the case in which Mr . Pucci was charged with Attempted Robbery in the Second Degree and pled guilty to on December 27, 1976. A weapon was not used in this offense, and due to Mr. Pucci's background involving lack of criminal in- volvement, he was granted a deferred sentence based upon probation . Mr Pucci followed all the terms and conditions of his probationary sentence, and was permitted to withdraw his plea of guilty to the crime of Attempted Robbery in the Second Degree, and a plea of not guilty to that offense was entered . In addition, the offense of Attempted Rob- bery in the Second Degree was then dismissed and he was discharged from any further penalties or dis- abilities resulting from the filing of that charge. I have enclosed a copy of the order dismissing the case against Mr Pucci After an individual has successfully completed a deferred sentence, and has changed his plea to not guilty and the case is dismissed , he really stands before an employer as one who has not previously been convicted of a crime. Consequently, many people who have been convicted and have had their pleas changed and the case dismissed can very ac- 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curately represent to employers that they do not have a criminal record. The deferred sentence was made specifically for first time offenders, so that after they had completed a probationary sentence they would be able to continue in their lives with- out the stigma of a criminal conviction following them. Due to the above-mentioned deferred sentence procedure, and the reasons set forth, if Mr. Pucci was dismissed due to the withholding of the convic- tion for Attempted Robbery, I would ask that you reconsider that due to the fact that he would stand before an employer as a person who had not been convicted of that offense. If you have any further questions concerning this matter, please don't hesitate to contact me. The foregoing findings are based on a credited portion of the testimony of Pucci and documentary evidence. Kennedy acknowledged that he received a copy of Gen- eral Counsel's Exhibit 14, but he said it did not have an effect on his earlier decision to terminate Pucci. When the company hired Pucci, he did not inform the Company of his past criminal record. At the hearing Pucci explained that he had not done so because he had been told that he could represent himself as a person who had not been convicted of a crime.18 Pucci recalled filling out an application for employment with the Com- pany. To the best of his recollection, there was not any space on that application for him to indicate whether he had a criminal record. However, Pucci acknowledged at the hearing that Kennedy had asked him if he had a criminal record. At the hearing Pucci acknowledged that in addition to the attempted robbery conviction, he had also been convicted earlier in 1975 in the State of Colo- rado of the misdemeanor offense of criminal mischief. Pucci stated that that matter also had been dismissed The foregoing findings are based on a credited portion of the testimony of Pucci. Pucci acknowledged at the hearing that he had not filed an unfair labor practice charge against the Compa- ny until July 1985. However, Pucci said that he had be- lieved at the time that he was terminated that he had been fired because of union activities He said that he had contacted the Union the next day after his termina- tion, and that he also had contacted an attorney regard- ing his termination. Subsequently, Pucci contacted an- other attorney who advised him to contact NLRB. The foregoing findings are based on a credited portion of the testimony of Pucci. On 20 August 1985 Kennedy spoke with Close during the morning coffee break. Kennedy told Close that he was in a hurry, that he needed some file information, and he asked if Close would write a disciplinary letter re- garding Pucci. Close asked Kennedy what she should write about. Kennedy told her to write about the radio incident, Pucci's talking, or something. Close told Ken- nedy that she would do so 18 This portion of Puccl's testimony was not received for the truth of the matter asserted by the out-of-court declarant See Rule 801 of the Federal Rules of Evidence Close then wrote a statement and gave it to Kennedy. She said at the hearing that she had told the truth in that document. The document was not offered into evidence at the hearing. At the hearing Close stated that Pucci did no more talking than anyone else, nor did Pucci visit with people on the line more than other employees. She said Pucci did use radio earphones which were distracting to other employees. She never wrote a statement about any other company employee. A day or so after Close had written the statement at Kennedy's request, an NLRB agent vis- ited the facility. The findings and the foregoing paragraphs are based on a credited portion of the testimony of Close. 3 Conclusions The allegations in paragraphs 11(b) and 11(c) of the General Counsel's complaint quoted above have to be read in connection with paragraphs 14, 15, and 16 of the General Counsel's complaint wherein it is alleged that such conduct violated Section 8(a)(1) and (3) of the Act. I conclude that the General Counsel presented evi- dence that Pucci had engaged in union organizing activi- ties, and that Pucci had served as the Union's election observer at the NLRB-conducted election held on 12 March 1985 at the Company's facility. I further conclude that Pucci's serving as the Union's election observer es- tablished company knowledge of Pucci's prounion feel- ings. As indicated in section F previously, I conclude that the evidence shows substantial union animus on the part of the Company. The numerous violations of Section 8(a)(1) of the Act already have been referred to. In addi- tion, I have also considered the violations of Section 8(a)(1) and (3) of the Act as described in section F. As further evidence of union animus and as evidence of a discriminatory motivation with regard to the allegations pertaining to Pucci, I . have considered as significant the testimony of Close who spoke with Kennedy immediate- ly after Kennedy terminated Pucci. It will be recalled that Kennedy told Close that he was thinking of letting go another employee because that employee had voted for the Union. The foregoing statement by Kennedy I conclude revealed the true motivation for his actions against Pucci. Pucci's testimony that written warnings were rarely given by the Company was not disputed. As indicated in the findings of fact, Pucci denied that he talked more than other employees. The written warning given by Kennedy to Pucci was on 1 April 1985, which was only a few weeks after Pucci had served as the union's elec- tion observer on 12 March 1985. I find the timing of the issuance of that written warning to be significant. I have already pointed out in the findings of fact that Kennedy gave only one reason, both verbally and in writing, at the time of Pucci's termination. However, at the hearing Kennedy advanced several additional reasons which I found were not believable. The letter from Prosecuting Attorney McEachran, General Counsel's Exhibit 14, ex- plained the basis for Pucci's failure to disclose that infor- mation to the Company. If an applicant for employment DENTECH CORP 961 were to be expected to disclose such information, then the entire legal process described in McEachran's letter would be nullified With regard to the offense in the State of Colorado, Pucci also testified, without contra- diction, that that matter had been dismissed. In view of the foregoing, I conclude that the General Counsel has presented evidence which established a prima facie case under the Board's Wright Line, supra, decision. I then have looked to determine whether the Company has persuaded that it would have taken the same action against Pucci in the absence of Pucci's union activities and protected concerted activities. I have con- sidered the records with regard to Pucci's not being ready to begin work promptly at 8 a.m. However, those incidents in December 1984 and January 1985 occurred several months before Pucci's termination on 26 April 1985. Pucci was not reprimanded or disciplined with regard to being late to work. Regarding the use of the Walkman earphones, Close testified that she did not complain to Kennedy prior to the time that Kennedy fired Pucci. Pucci testified that he did not receive any reprimands about playing the radio. Pucci also testified that he turned up the thermostat on only one occasion, and that he was told not to do so. Thereafter, Pucci did not repeat that act. As indicated above, Pucci has ex- plained his failure to disclose his prior criminal record. In light of the foregoing, I conclude that the Company has seized upon Pucci's criminal record as a pretext to hide a discriminatory motivation for the termination of Pucci. I conclude that the Company also has advanced the additional reasons given by Kennedy at the hearing as further pretexts which were not the true reasons for Pucci's termination on 26 April 1985. In view of the timing of the issuance of the written warning, which was a rare incident, and in view of the fact that Pucci denied that he talked more than other employees, I also con- clude that the issuance of the warning to Pucci on 1 April 1985 was a result of his serving as the Union's election observer on 12 March 1985. Therefore, I further conclude that the Company has not met its burden under the Board's Wright Line decision. In view of the foregoing, I conclude that a preponder- ance of the evidence established that the Company has violated Section 8(a)(1) and (3) of the Act by issuing a written warning to Pucci on 1 April 1985 and by termi- nating Pucci on 26 April 1985 because he had engaged in union activities and protected concerted activities. Ac- cordingly, I find that the evidence supported the allega- tions in paragraph 11(b) and (c) of the General Counsel's complaint H. The Section 8(a)(1) and (3) Allegations Pertaining to the Permanent Layoff or Termination of Marion Gobbato, Dennis Proctor, and Michael Tuttle 1. Allegations The General Counsel's complaint paragraph 11(d) al- leged: (d) On or about June 28, 1985, Respondent permanent- ly laid off and/or terminated employees Marion Gob- bato, Dennis Proctor, and Michael Tuttle and since said date has failed and refused to reinstate them to their former positions or to substantially equivalent positions. 2. Facts Marion Gobbato was interviewed by the Company in November 1984. After the interview, Veser asked Gob- bato if he would work that day and move some chair adapters from the Company's former building to the new building. Gobbato worked that day for the Company. At the end of the day Hamilton gave Gobbato his paycheck for that day's work, and Hamilton told Gobbato that the Company would get back to him later. In December 1984 Kennedy contacted Gobbato to go to work for the Company in assembly. Gobbato worked in assembly for 4 days at $4 an hour, and then he began working under Veser in the machine shop at $5 an hour. Gobbato operated the verticle mills and metal lathes, and he worked on a number of different types of machines in the shop. Four months after his first day of employment, Gobbato received his first raise in pay of 50 cents an hour. He was notified of the raise in a notice from the Company. Two months after that Gobbato received a second raise of 50 cents an hour. He did not receive any notice of his second raise The increase was gust reflected in his paycheck. Gobbato attended a union meeting in January 1985 at Gary Gehling's house. He also signed a union card. Gob- bato stood with the other employees outside the Compa- ny's building on 1 February 1985. Gobbato said that he voted for the Union in the election. Simor and Gobbato drove to Abbottford, British Co- lumbia, to pick up the company van there During their trip Gobbato asked Simor if Gobbato could take a leave of absence because he had another occupation in the summer. Gobbato told Simor that he would leave about May. Gobbato said that if he engaged in commercial fishing in Alaska, he would be gone for about 6 weeks. Simor said that would be no problem, that someone would be hired as a part-time employee, that when Gob- bato returned from commercial fishing, the part-time em- ployee either would be employed on a full-time basis or be let go. Gobbato told Simor on that occasion that Gobbato was not involved in the Union. Two weeks before Gobbato was laid off in June 1985, he asked Veser if he could leave early to take a test for another job. Veser asked Gobbato to come into his office, and Veser said that he wanted to talk with him before Gobbato left. The two persons then went into Veser's office. Veser wished Gobbato good luck, and Veser said that Gobbato was going to need it. Gobbato asked why. Veser replied that they were moving the machine shop back to Canada. Gobbato asked why Veser was doing that. Veser said because he had told them earlier that if they agreed to elect a union representative that Simor would keep his word, and Simor would move the ma- chine shop first and then the assembly back to Canada. Veser also told Gobbato that Veser was satisfied with all of the workers; that he did not want to move because he was happy with the people he had trained; and Veser did not want to go through again training other people. 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Veser also said that he wanted to expand and to stay there, but that they did not want to expand with the Union over their heads. Veser told Gobbato that "the union was driving him crazy , they wanted too much ma- terial . . . the were asking too much of them and he said ... it was better just to move and not have to worry about the union." Veser also told Gobbato that the Union was getting "too personal" in asking how the em- ployees were involved in the Company , where the em- ployees lived, and what the employees' hobbies were. Veser said that the Union asked for information about the type of medical insurance the employees were get- ting and things of that nature. Veser told Gobbato that the Company had hired some people in assembly on a part-time basis, and Veser thought that the people in the machine shop who were hired before the part-time employees, would be given the jobs of the part-time employees. About that point in the conversation Gobbato told Veser that he was interested in commercial fishing locally. Gobatto's plan was to work at the Company on non-fishing days during the summertime, if Gobbato did not go to Alaska and do commercial fishing there. At the hearing Gobbato ex- plained that if he engaged in commercial fishing locally, he usually would be fishing 1 day a week , and sometimes on weekends. After Veser had informed Gobbato of the layoff, Gob- bato asked Kennedy about working in assembly. Gob- bato believed that he also told Kennedy that he wanted to do commercial fishing during the summertime, how- ever he also told Kennedy that he was available for full- time work. Kennedy told Gobbato that the machine shop employees would be given the first available jobs in as- sembly. Gobbato again spoke with Kennedy on Gobbato's last day of employment with the Company. Kennedy had asked the machine shop employees to tell him individual- ly their number one, two and three preferences. Gobbato told Kennedy that shipping was his number one prefer- ence, and that he did not want to state a number two or number three preference because he wanted to take the first available opening. Kennedy required Gobbato to state his preferences. Kennedy told Gobbato that the ma- chine shop employees would be hired before any new employees were hired in assembly. About 3 weeks after his layoff, Gobbato told Kennedy that the fishing season would start then, but that Gob- bato still would be available for employment. At the hearing Gobbato said that he engaged in commercial fishing between 4 and 6 days during August 1985. He said that commercial fishing usually was done on a Monday, but not always. Gobbato explained at the hearing why he had not filed an unfair labor practice charge regarding his permanent layoff or termination by the Company . Gobbato said that he mistakenly thought he was filing such a charge when he gave an affidavit. He said that he thought he was laid off by the Company because of union activities. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Gobbato. Dennis Proctor was interviewed in September 1984 at the Company's North Vancouver, British Columbia, fa- cility. Veser told Proctor during that interview that the Company soon would be moving the machine shop to Sumas. Veser also told Proctor that he was being hired partly because Proctor could work either in Canada or the United States. At the hearing Proctor explained that he was a citizen of the United States, and, therefore, he could live and work in the United States. In addition, Proctor had a permanent resident visa in Canada which permitted to live and to work in Canada. Proctor was hired by the Company in September 1984. He began working at the Company's North Vancouver machine shop and was paid $5 an hour in Canadian dol- lars. Basically, Proctor performed the repetitious task of drilling holes in the same parts. About 2 months later the Company moved its machine shop to Sumas. Proctor also moved at that time. He worked in the Company's Sumas machine shop at $5.50 an hour in United States dollars. Proctor attended union meetings, and he signed a union card. About a week after the election, Proctor told Simor in the company lunchroom that Proctor had telephoned Paul Wilson of the UAW and told Wilson that they did not want the Union's support anymore, that they were not getting anything out of the Union; and that Proctor did not see the use of having the Union around. Simor told Proctor that there was nothing Simor could do, and that after the election, Simor had to wait at least a year. Veser was also present during that conversation. During his last week of employment with the Compa- ny, Proctor spoke with Kennedy in Kennedy's office. Proctor told Kennedy that he wanted to work either in assembly or in shipping and handling, but not in subas- sembly because there were a lot of tiny parts. Proctor felt that he would not be much good in subassembly. Kennedy wrote what Proctor had told him, and then Kennedy said that it would be 2 weeks to 90 days before anybody would be called back to work. In July 1985 Proctor went to the Company to have Kennedy fill out a form regarding unemployment com- pensation. Kennedy signed the form and put 2 weeks to 90 days as the time period within which Proctor was ex- pected to be recalled to work. However, Proctor was never recalled to work by the Company. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Proctor. Michael Tuttle worked as a machine operator in the machine shop at the Company from 6 December 1984 to 28 June 1985. Tuttle was hired by Veser. Prior to going to work for the Company, Tuttle had no experience. Tuttle attended a few union meetings, and he signed a union authorization card . The employees elected him to be an alternate shop steward. The foregoing findings of fact are based on a credited portion of the testimony of Tuttle. Six out of the nine employees who were working in the Company's machine shop at the time that the ma- chine shop was moved to Canada were transferred to work in assembly . Those six employees were: Theresa Ambercrombe, Cindy Ellis, Peggy Forsloff; Diane Min- aker, Dean Reynolds, and Vera Warren. Gobbato, Proc- DENTECH CORP tor, and Tuttle were the only three machine shop em- ployees who were not given jobs in assembly. Kennedy is the one who selected the machine shop employees for transfer to work in assembly. He based his decision on several things. He had conversations with Veser with regard to the machine shop employees; he observed who was talking a lot and who was not in the machine shop; he formed an opinion as to which employ- ees were turning out the parts in the machine shop and which employees appeared to be happy in a repetitive job; he formed an opinion as to the employees ' ability and willingness to stay with the Company; he formed an opinion as to the employees who had a good attitude about work, such as working past quitting time in order to complete a job on which they were working; and he formed an opinion as to which employees participated in activities outside of work. In addition, Kennedy believed that Gobbato, as a commercial fisherman, would be fish- ing for a month or two at a time. Respondent's Exhibit 7 is a copy of one of Kennedy's monthly production reports to Simor. That document is a copy of the report for April 1985 . Kennedy prepared that report either at the end of April or the beginning of May 1985 . Kennedy was aware at the time that he pre- pared the report that a decision had been made to move the machine shop to Canada, but he did not know when the move would take place. Among other things, Kenne- dy indicated in his report that he would try to delay hiring any new employees pending the availability of em- ployees from the machine shop to transfer to assembly. The foregoing findings of fact are based on a credited portion of the testimony of Kennedy and documentary evidence. Vera Warren told the company management prior to the election that she did not know which way to go re- garding the union, and that she did not know what she was going to do. The incident involving Simor's com- ment regarding Warren's resisting what she perceived to be Hamilton's pressure to sign a petition against the Union as already been set forth in section B. In the days following the election , Warren spoke with Simor and Veser. She told them that the vote was not what it was supposed to have been based on the number of people who said they had voted against the Union . Warren told Simor and Veser that she had not voted for the Union because it would have been like making a fool out of herself to think one thing and do something else. She also told several other people that she had voted against the Union . The foregoing findings are based on a cred- ited portion of the testimony of Warren. Simor acknowledged at the hearing that he had heard rumors that five company employees had not voted for the Union. He had heard that Warren was one of those five employees, and he believed that Warren had voted against the Union . The foregoing findings are based a credited portion of the testimony of Simor. Warren told Tate that she had voted no in the elec- tion, and that Warren was very upset because she was not getting credit for it. Warren told Tate that she had overheard Dean Reynolds say that he had voted for the Union. Warren told Tate that she was angry about this because Warren was one of the persons who had voted 963 no. Warren also told Tate that she was afraid that her job was threatened . She said that she was afraid that she might lose her job because Simor assumed that Warren had voted yes, when, in reality, Warren had voted no. The foregoing findings are based on a portion of the credited testimony of Tate. Tate's testimony regarding what Warren told her as to how Warren had voted was not offered or received into evidence to prove the truth of the matter asserted by the out-of-court declarant Warren also told Tuttle that she had voted against the Union in the election. The foregoing is based on a por- tion of the credited testimony of Tuttle. Warren told Proctor a couple of nights after the elec- tion that she did not want Simor to think that Warren had anything to do with the Union. She told Proctor that, if she lost her job with the Company, "they'd be putting her in a funny farm." The foregoing is based on a portion of the credited testimony of Proctor Proctor's testimony regarding what Warren told him was not re- ceived for the truth of the matter asserted by the out-of- court declarant. 3. Conclusions The allegations in paragraph 11(d) of the General Counsel's complaint above have to be read in connection with paragraphs 14, 15, and 16 of the General Counsel's complaint wherein it is alleged that such conduct violat- ed Section 8(a)(1) and (3) of the Act. The General Counsel's allegations and the facts per- taining to the closure of the machine shop on 28 June 1985 will be covered in section J. The General Counsel's allegations in paragraph 11(d) are related to the closure of the machine shop , but they are separate allegations. Even if the machine shop was moved from Sumas to Canada for nondiscriminatory reasons, the allegations in paragraph 11(d) of the General Counsel's complaint would have to be considered . The reason is that there still could be a violation of Section 8(a)(1) and (3) of the Act if the Company discriminatorily terminated the three alleged discriminatees rather than transfer them to work in assembly. Each of the three alleged discriminatees in this section had engaged in union activities. The Company's union animus already has been discussed. However, with regard to Gobbato, I found it significant that he told Simor that he was not involved with the Union. Thus, even though Gobbato had engaged in union activities, he told Simor just the opposite. Based on what Gobbato told Simor, I conclude the Company's knowledge was that Gobbato was not involved with the Union . A simi- lar situation existed with regard to Proctor. He told Simor and Veser about a week after the election that he did not want the Union. Tuttle did not express himself to the Company with regard to his union activities. I also found it significant that Gobbato had told the company that he wanted to engage in commercial fish- ing. While Simor earlier had said that would be no prob- lem, it was a factor with Kennedy in selecting the six out of the nine employees for transfer to assembly. Proctor also expressed a limitation on working in assembly be- 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause he did not want to work in subassembly because of the small parts involved in that job. I have considered the testimony regarding Warren's vote in the election, and I conclude that Warren told Simor and Veser that she had not voted for the Union. However, I conclude the evidence did not establish af- firmatively that the selection of Warren for transfer to assembly was based on her vote in the election. Unlike Gobbato and Proctor, Warren had not indicated restric- tions on her availability for work in assembly. I have considered the fact that Tuttle had not placed any restrictions on his availability for work in assembly. However, I conclude that the General Counsel has not presented evidence to show why Tuttle should have been selected to work in assembly instead of the six em- ployees who were selected. As far as the evidence shows, there were six openings at that time . The evi- dence does not show that Tuttle had better qualifications or that Tuttle met Kennedy's criteria in a manner superi- or to the other six employees who were chosen. I conclude that the General Counsel has not estab- lished a prima facie case as described in the Board's deci- sion in Wright Line, supra. I further conclude that a pre- ponderance of the evidence does not establish that the Company permanently laid off or terminated Gobbato, Proctor, and Tuttle on 28 June 1985 for discriminatory reasons. Accordingly, I recommend that the allegations in paragraph 11(d) of the General Counsel 's complaint be dismissed. I. The Section 8(a)(1) and (3) Allegations Pertaining to the Implementation of New Benefits 1. Allegations General Counsel's complaint paragraph 12 alleged: During the months of February, March and April 1985, Respondent implemented new benefit programs in- cluding a written personnel handbook, a wage review policy, granted wage increases, vacation pay, written warnings before discharge, monthly employee meetings, and meetings with certain employee representatives. 2. Facts Respondent's Exhibit 2 is a copy of an employee hand- book of the Den-Tal-Ez company. Simor acknowledged at the hearing that the Den-Tal-Ez handbook which was shown to Dentech's employees while they working in the former bowling alley was to be a guide as to the kind of benefits which Dentech was going to have when Den- tech was in a new location and had more employees. The foregoing is based on a credited portion of the testi- mony of Simor and documentary evidence. Kennedy showed a copy of Respondent's Exhibit 2 to Gary Gehling, Hamilton, and Pucci at a restaurant across from the former bowling alley . At the time they were the only employees at the Company. Gary Gehling said that this probably occurred in April or May 1984. Pucci testified that Kennedy told the employees at that time: ". . . this is what we would be getting eventually." Hamilton testified: ". . . I was told that we would try to have our own company policies based upon this pam- phlet." The foregoing findings are based on a composite of the testimony of Gary Gehling, Hamilton and Pucci. At various times between March 1984 and November 1984, Gary Gehling had conversations with Veser and Kennedy regarding the Company's planned move from the former bowling alley to a new building in Sumas. Gary Gehling was told that the Company was building a new building, that the Company could not afford to pay the employees more at that time , that everything was going to be better after the Company had moved- to the new building, that things were going to be very good and very comfortable in the new building ; and that the employees would be receiving medical benefits, dental benefits, other benefits, and better wages after they were in the new building. However, Gary Gehling said at the hearing that he did not receive any of those benefits after the Company moved to its new building, nor did he re- ceive such benefits during his employment with the Company which ended on 1 February 1985. The forego- ing findings are based on a credited portion of the testi- mony of Gary Gehling. Simor acknowledged at the hearing that the employee handbook, the General Counsel's Exhibit 5, was not completed nor distributed to the employees of the Com- pany until after the employees' union organizing activi- ties had begun. Thus, although General Counsel 's 'Exhib- it 5 is dated 1 January 1985, it was not distributed to em- ployees until after 1 February 1985. The foregoing find- ings are based on a credited portion of the testimony of Simor. Several witnesses testified at the hearing that they had never heard of numerous provisions which were con- tained in the employee handbook before the Company gave them copies of General Counsel's Exhibit 5. Those provisions, which were unknown to those employees prior to that time, had an effect on employees' wages, hours, and working conditions. The foregoing findings are based on a composite of the testimony of Gobbato, Olson, Proctor, Pucci and Tate. 3. Conclusions The allegations in paragraph 12 of the General Coun- sel's complaint quoted above have to be read in connec- tion with paragraphs 14, 15, and 16 of the General Coun- sel's complaint wherein it is alleged that such conduct violated Section 8(a)(1) and (3) of the Act. It is unnecessary to repeat here the findings and con- clusions regarding to paragraphs 7(b), 7(c), 7(i), and 8(a) of the General Counsel's complaint which are set forth in section B and section C. Those allegations are related to the subject matter of the allegations in paragraph 12 of the General Counsel's complaint. As indicated in sec- tion B and section C, I have concluded that a preponder- ance of the evidence supported those allegations, and that the company thereby violated Section 8(a)(1) of the Act. Considering those earlier findings and conclusions, and considering the above findings in this section, I con- clude that the evidence supports the allegations 'in para- graph 12 of the General Counsel's complaint insofar as those allegations relate to the implementation of new benefits as set forth in the employee handbook (G.C. DENTECH CORP. Exh. 5). The timing, the circumstances, and the state- ments made with regard to the new employee handbook revealed that the employee handbook was issued to em- ployees after the Company knew of union organizational activity among its employees, and that it was issued to discourage such union organizational activity. I conclude that the granting of benefits to employees to discourage union organizational activity violated Section 8(a)(1) and (3) of the Act. In reaching that conclusion, I have con- sidered Respondent's Exhibit 2 and the testimony regard- ing that document. I conclude that the benefits contained in Respondent's Exhibit 2 were not implemented by the company at the time that it was shown to the employees. Instead, I conclude that Respondent's Exhibit 2 was to be a guide to the type of benefits the Company would give its employees in the future. In contrast, the benefits set forth in General Counsel's Exhibit 5 were given at that time to the Company's employees. Regarding to the other matters alleged in paragraph 12 of the General Counsel's complaint, I conclude that the earlier Section 8(a)(1) findings in section B and section C already cover the subject matter of those allegations. Ac- cordingly, I recommend that the portion of the allega- tions in paragraph 12 be dismissed except as to the grant- ing of benefits as set forth in the employee handbook de- scribed above. J. The Section 8(a)(1) and (3) Allegations Pertaining to the Closure of the Machine Shop 1. Allegations General Counsel's complaint paragraph 13 alleged- On or about June 28, 1985, Respondent closed its ma- chine shop facility and moved the work to Canada. 2. Facts The parties stipulated that the Company had made a significant investment in the United States. Simor said that the Company had about 7 acres of usable land on its company's property in Sumas and its facility and parking area take up about 2 acres. Simor said that it took 6 to 8 months to construct the metal building which the compa- ny occupies in Sumas. The General Counsel's Exhibit 26 is a copy of a prehearing affidavit given by Simor to an NLRB agent. One of the two attachments to his affidavit was a list of employees hired after 1 February 1985 in the Company's machine shop at Sumas. The list shows that five such employees were hired there. The forego- ing findings are based on a credited portion of the testi- mony of Simor, a stipulation, and documentary evidence. Simor was unable at the hearing to pinpoint the date on which he made the decision to move the Company's machine shop from Sumas to Clearbrook, Canada. His first step was to look for a facility He found a suitable facility within a month. An interim agreement dated 17 April 1985 for the purchase of the land and building in Clearbrook was reached in the amount of $205,000 in Canadian dollars. In addition, the Company spent about $20,000 to make some improvements there and to con- nect its machinery at the Clearbrook facility before oper- ations began there. The foregoing findings are based on a portion of the credited testimony of Simor. 965 Clearbrook is about 6 or 7 miles north of Sumas, and Clearbrook is about 40 or 50 miles from Vancouver. All of the machines in the Sumas machine shop and also some equipment at the Company's Mission, Canada, fa- cility were moved to Clearbrook in July 1985. The fore- going findings are based on a credited portion of the tes- timony of Veser. Simor is the one who made the decision to move the Company's machine shop from Sumas to Clearbrook, Canada. The machine shop had been located in Sumas for about 8 months from November 1984 to 31 June 1985. At the hearing Simor gave 10 reasons which were the bases for his decision to move the machine shop from Sumas to Canada. The first reason he gave at the hearing was the need for additional space. He stated that the Sumas facility was operating at the time at its capacity, and the company needed more room for manufacturing and for the storing of parts and components. Respond- ent's Exhibit 14 consists of eight color photographs taken inside and outside of the Company's •Sumas facility. Re- spondent's Exhibit 15 consists of eight color photographs taken inside and outside of the Company's facility in Clearbrook. Simor took the photographs in Respondent's Exhibit 14 either a day before or a day after 31 October 1985. He took the photographs in Respondent's Exhibit 15 on 31 October 1985. The area which previously had been occupied by the machine shop at the Sumas facility was being used for storage at the time of the hearing. There were approximately 25 employees working in the Company's Sumas facility at the time of the hearing. The assembly, shipping, customer service, business office, and accounting departments were located in the Sumas facili- ty at the time of the hearing. The machine shop, engi- neering, and research and development departments were located at the Clearbrook facility at the time of the hearing. Another reason given by Simor for his decision to move the machine shop from Sumas to Canada was that the value of the Canadian dollar had dropped compared to the value of the United States dollar at that time. Another reason for Simor's decision was that the cost of a facility in Canada was less than constructing another facility in the United States The size of the Clearbrook building is about 2,000 feet larger than the Sumas facili- ty. Simor owns both of the buildings, and he rents both of the buildings to the Company. The rent at the Clear- brook building is about 30 percent less than the rent at the Sumas building. Simor gave as another reason for his decision the fact that the Company had to ship all of the parts manufac- tured in the Sumas machine shop to Canada for finishing work, which included painting, anodizing, and crome plating, before the machine shop was moved from Sumas. Yet another reason given by Simor for his decision was that the Company had to pay a duty on the entire value of parts when those parts were brought back to the United States from Canada. Simor said that the duty was paid not just on the value of the painting of those parts, but on the entire value. He said previously that he had been told that the Company would have to pay a 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duty only on the value of the painting, but he received a memo dated 7 December 1984 from the United States Customs which indicated the duty would be payable on the full value of the parts. Respondent's Exhibit 16 is a copy of that memo. That memo was received by the Company after it had moved its machine shop from Canada to Sumas in November 1984 . Simor said that the duty was 5 percent of the value of the parts in United States dollars that there was no duty in taking parts from the United States to Canada. Simor described as the "greatest reason" for his deci- sion was the fact that the Company could not have its engineer work in the Sumas machine shop . Respondent's Exhibit 17 is a copy of a decision dated 20 February 1985 from the Immigration and Naturalization Service of the United States Department of Justice. The decision denied the petition to classify Gordon Shearer, a nonim- migrant, as a temporary worker or trainee. Simor stated that the an engineer was need in its Sumas machine shop because the Company's product is developed on a con- tinuous basis and continuous changes are being made in the manufacturing process. After receiving Respondent's Exhibit 17, Shearer got a job offer from another compa- ny, and he quit working for Dentech. At the time of the hearing, Von Meuller and Joan Gregory were working as engineers at the Clearbrook facility. Simor gave as another reason for his decision the cost of labor in the machine shop . He said that the hourly cost of labor at the Sumas facility prior to the move of the machine shop was $6.50 in United States dollars plus 40 cents for medical insurance. The hourly labor cost at the Clearbrook facility was $8 in Canadian dollars, but there was no additional cost for medical insurance. Simor explained that there was no medical insurance costs because Canada has national medical coverage. Another reason given by Simor was that the area around Clearbrook had a greater population base from which to obtain employees. He said the Clearbrook, Ab- bottford, and Mission, Canada area contained about 50,000 people. The population of Sumas was about 700 people. In addition, Simor said that in Canada the Com- pany could attract some employees from Vancouver. Simor gave as a further reason for his decision the fact that there were employees with industrial experience available to be hired in Clearbrook and the surrounding area. Finally, Simor gave as a reason the fact that the cor- porate tax rate in Canada was lower than the corporate tax rate in the United States at that time. Prior to the company's move of its machine shop from Sumas in July 1985, the Company had from 70 percent to 80 percent of its products distributed in the United States by Healthco. About 20 percent to 30 percent of the Company's prod- ucts were distributed by various Canadian distributors in Canada. The findings in the foregoing paragraphs are based on a credited portion of the testimony of Simor and docu- mentary evidence. In the opinion of Close, there were problems with the quality of the products in the period before the machine shop was moved from Sumas to Canada. In her opinion, there also were the same type of problems with quality after the machine shop was moved to Canada. In her opinion, the problems were worse after the move, and there were shortages of parts. She said that the shortage of parts after the move slowed down the assembly proc- ess because the employees had to take certain parts from already built units in order to use them on units sched- uled to be shipped . During the last week of her employ- ment with the company, she said the shortage of parts was very severe. She testified: "We were almost at a vir- tual standstill because we just had no parts." Respondent's Exhibit 20 is a copy of the minutes taken of a meeting between company management and the em- ployees on 8 November 1985, which was about 4 days before Close quit her employment at the company. The purpose of that meeting was to discuss problem areas ex- perienced at the Company . Respondent's Exhibit 20 indi- cates that the first topic discussed at the meeting with employees held on 8 November 1985 was a shortage of parts. The document states, in part: "Anton realizes that we have had a shortage of parts. The following changes will be made to remedy [the] situation. . . ." Six remedi- al steps were then listed in the minutes . The first one was: "More people have been hired in the Clearbrook plant to supply a more even flow of parts ." The forego- ing findings are based on documentary evidence , which I find lend some support to the testimony in the preceding paragraph given by Close. Close acknowledged at the hearing that she had been very frustrated with the Company's procedures. She also acknowledged that she had sought unemployment bene- fits and was turned down. She said she was not angry about that, but that she was disturbed and did not under- stand why she was denied them . She acknowledged at the hearing that she had quit on the day after another employee was given a supervisory position, but she said that was not the reason she had quit . She explained that she had not wanted that position, and that she was con- tent with being lead supervisor on the floor at that time. She said she had quit work for the Company because of the lack of parts and because production was at a stand- still. At first at the hearing she did not recall telling the Department of Employment Security that she had quit working for the Company because she felt there had been a lack of communication. However, after she was shown a copy of the determination by that department, she acknowledged that the document stated that she had quit her job because she felt there was a lack of commu- nication. She explained that she had given the depart- ment a five-page letter regarding the reasons that she had quit work, and that she could have said that a lack of communication was a reason she had quit along with other things. The foregoing is based on a portion of the credited testimony of Close. 3. Conclusions The allegations in paragraph 13 of the General Coun- sel's complaint quoted above have to be read in connec- tion with paragraphs 14, 15, and 16 of General Counsel's complaint wherein it is alleged that such conduct violat- ed Section 8(a)(1) and (3) of the Act. DENTECH CORP I have considered all of the earlier findings regarding threats made by the Company to move to Canada if the employees selected the Union as their bargaining repre- sentative. In addition, I have considered the testimony of Gobbato, as summarized in section H, regarding his con- versation with Veser that the Company was moving the machine shop to Canada because of the Union. Without repeating here the earlier findings of violations of Sec- tion 8(a)(1) and (3) of the Act, I conclude from those findings that the General Counsel has established a prima facie case of a discriminatory motivation on the part of the Company in moving its machine shop from Sumas after the Union won the representation election there Because I have concluded that the General Counsel has established a prima facie case, I have considered whether the Company has met its burden under the Board's Wright Line, supra, decision I conclude from the evidence set forth in the findings in this section that the Company has met its burden by showing that it would have taken the same action in moving the machine shop from Sumas to Canada, even in the absence of its employees' union activities. I reached that conclusion based on the economic reasons which Simor gave as the bases for his decision. I con- clude that those economic reasons were not discriminato- ry reasons, but were based on conditions and circum- stances which existed at the time that the decision was made. It is not necessary to reiterate those reasons here, but instead, to indicate that I conclude that the Company has persuaded that it would have taken the same action in moving its machine shop to Canada regardless of the employees' union activities The reasons which Simor gave for his decision were economic reasons which were unrelated to employees' union activities. Accordingly, I recommend that the allegations in paragraph 13 of the General Counsel's complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by the following conduct which the Respondent engaged in in order to induce employees not to support the Union: soliciting employees' complaints and grievances and promising to resolve them; promising employees the ben- efits set forth in an employee handbook and distributing a new employee handbook to the employees; promising employees wage increases and monthly employee meet- ings with management ; and suggesting that the employ- ees form a committee to meet with the Company to re- solve issues. 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by threatening employees that the Company would move back to Canada, if the employees selected the Union to represent them in the plant, and by telling employees that the Company was closing its machine shop and 967 moving it -to Canada because the employees had voted the Union in the plant. 5. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by granting new benefits to its employees as con- tained in an employee handbook, in order to discourage its employees from engaging in union organizational ac- tivities 6. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by terminating on 1 February 1985 Geoffrey Gehl- ing, Gary Gehling, and Robert Martin because they and other employees of the Respondent joined, supported, or assisted the Union and engaged in protected concerted activities. 7. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by issuing a written warning to Michael Pucci on I April 1985 and by terminating Pucci on 26 April 1985 because he had engaged in union activities and protected concerted activities. 8. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, I shall recom- mend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take affirmative action designed to effectuate the policies of the Act. I shall recommend to the Board that the Respondent be ordered to offer Geoffrey Gehling, Gary Gehling, Robert Martin, and Michael Pucci immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without the loss of their seniority or any other rights and privi- leges. I shall further recommend to the Board that the Respondent be ordered to make whole Geoffrey Gehl- ing, Gary Gehling, Robert Martin, and Michael Pucci for any loss of earnings and other benefits as a result of the discrimination against them. Backpay is to be com- puted in accordance with the Board's decision in F. W. Woolworth Co, 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decisions in Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977), and Olympic Medical Corp., 250 NLRB 146 (1980). In accordance with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the Order. Nothing contained in the remedial Order should be read to require that the Respondent rescind or withhold the benefits which the Respondent already has granted to its employees. The General Counsel has requested that a visitorial clause be included in the Order The evidence presented in this proceeding does not establish the necessity for 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such a visitorial clause . Accordingly, I hereby deny the General Counsel's request. On these findings of fact, conclusions of law, and on the entire record in this proceeding, I issue the following recommended" ORDER The Respondent, Technodent Corporation d/b/a Den- tech Corporation, Sumas, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Engaging in the following conduct in order to induce employees not to support the Union : soliciting employees' complaints and grievances and promising to resolve them; promising employees the benefits set forth in an employee handbook and distributing a new employ- ee handbook to the employees; promising employees wage increases and monthly employee meetings with management; and suggesting that the employees form a committee to meet with the Company to resolve issues. (b) Threatening employees that the Company would move back to Canada, if the employees selected the Union to represent them in the plant, and telling employ- ees that the Company was closing its machine shop and moving it to Canada because the employees had voted the Union in the plant. (c) Granting new benefits to its employees, as con- tained in an employee handbook, in order to discourage its employees from engaging in union organizational ac- tivities. (d) Terminating employees because they and other em- ployees of the Company joined , supported or assisted the Union and engaged in protected concerted activities. (e) Issuing a written warning to an employee and ter- minating an employee because he had engaged in union activities and protected concerted activities. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Geoffrey Gehling, Gary Gehling, Robert Martin, and Michael Pucci immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them , in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the termina- tions of the four employees named above and notify the employees in writing that this has been done and that the terminations will not be used against them in any way. (c) Rescind the written warning issued to Michael Pucci on 1 April 1985 and remove from its files any ref- erence to that warning, and notify Michael Pucci in writ- ing that this has been done, and that the warning will not be used against him in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and 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 Sumas, Washington, facility copies of the attached notice marked "Appendix."80 Copies of the notice, on forms provided by the Regional Director for Region 19, 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 that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 19 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. 20 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."