Terminal Equipment Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 261 (N.L.R.B. 1975)

TERMINAL EQUIPMENT INC.
Terminal Equipment Inc. and Eugene McCracken.
Case 8-CA-8831
July 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 9, 1975, Administrative Law Judge Nancy
M. Sherman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Terminal
Equipment Inc., Bedford, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Eugene Clarence McCracken, Jr., im-
mediate reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
pay he may have suffered by reason of the discrimi-
nation against him, in the manner set forth in the
section of this Decision entitled `The Remedy.' "
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
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided
that we violated the law and we have been ordered to
261
post this notice. We intend to carry out the order of
the Board and abide by the following:
WE WILL NOT threaten our employees that we
will close our plant if they choose to be repre-
sented by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Local 507, or any other union, or
fail to tell us which employees are union leaders.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee in order to discour-
age membership in the Teamsters or any other
union.
WE WILL NOT ask our employees about their
and other employees' union activities in a man-
ner constituting interference, restraint, or coer-
cion.
WE WILL offer to reinstate employee Eugene
Clarence McCracken, Jr., to his former job or, if
that job no longer exists, to a substantially
equivalent position, and make him whole, with
interest, for loss of pay resulting from his termi-
nation.
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
Our employees are free to exercise any or all of
these rights, including the right to join or assist the
Teamsters or any other union. Our employees are
also free to refrain from any or all such activities,
except to the extent that union membership may be
required by a collective-bargaining agreement as a
condition of continued employment, as permitted by
the proviso to Section 8(a)(3) of the Act.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of
these rights.
TERMINAL EQUIPMENT INC.
DECISION
STATEMENT OF THE CASE
Nancy M. Sherman, Administrative Law Judge: This
proceeding was heard at Cleveland, Ohio, on March 25,
1975, pursuant to a charge filed on December 23, 1974, and
a complaint issued on February 5, 1975. The questions pre-
sented are whether Respondent Terminal Equipment Inc.
219 NLRB No. 49
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) violated Section 8(a)(1) of the National Labor Relations
Act, as amended (the Act), by alleged interrogation,
threats, and conveying the impression of surveillance; and
(b) violated Section 8 (a)(1) and (3) by terminating employ-
ee Eugene Clarence McCracken , Jr., allegedly because of
his union and concerted activities , on November 5, 1974.
At the outset of the hearing , Respondent moved to dis-
miss the complaint on the ground that on December 23,
1974, the date when the instant charge was filed , the Re-
gional Director approved McCracken 's withdrawal of an
earlier charge containing essentially the same allegations as
the charge in the instant case . I adhere to my hearing deni-
al of that motion , which is renewed in Respondent's brief.
McCloskey and Company, Inc., 116 NLRB 1123, 1124
(1956), enfd . 255 F .2d 68 (C.A. 3, 1957).
Upon the entire record , including my observation of the
witnesses , and after due consideration of the brief filed by
Respondent , I make the following:
FINDINGS OF FACT
1. THE NATURE OF RESPONDENT 'S BUSINESS
Respondent is an Ohio corporation which designs and
manufactures material-handling machinery in Bedford,
Ohio, from which location it annually ships such machin-
ery valued in excess of $50,000 directly to points outside
Ohio. I find that, as Respondent admits, Respondent is
engaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operations will effec-
tuate the policies of the Act.
II. THE TEAMSTERS STATUS AS A LABOR ORGANIZATION
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 507, herein
called Local 507 or the Teamsters, is an organization affili-
ated with the International Brotherhood of Teamsters. Lo-
cal 507 represents about 10,000 employees and as of the
date of the hearing was a party to collective-bargaining
agreements with 706 employers. Employees are permitted
to participate in Local 507, which deals with employers
regarding employees' grievances, wages, hours, working
conditions, and vacations. I find that Local 507 is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
McCracken filed a job application with Respondent on
September 18, 1974 . 1 In the blank following the language
"Job(s) applied for," McCracken inserted the word "Elec-
trical." On September 21, he was interviewed by Ernest
Pugh, Respondent's vice president of operations. On Mc-
Cracken's application and during his job interview, he
made certain representations which were untrue and others
which (perhaps unintentionally) were somewhat mislead-
1 All dates hereafter are 1974 unless otherwise stated.
ing. Thus, he told Pugh that he had left his previous job,
with a firm that did roof gutterwork, because his truck was
stolen, although in fact he left because, after seeing a fellow
employee fall off a ladder and hit his head, McCracken
decided the work was too dangerous. Further, he told Pugh
that he had left another prior employer to go into business
for himself, although in fact that employer had discharged
him for tardiness. In addition, McCracken told Pugh that
he was attending Cuyahoga Community College to further
his education in electrical engineering , although in fact he
did not enroll in that school until the fall quarter of 1974
and began by taking electives in English and history. Pugh
credibly testified that McCracken's representations about
his furthering his education played a part in Pugh's deci-
sion to hire him. In approving him for employment, Pugh
inserted the words "ELEC./ MECH . Assy." after the word "Occu-
pation." Pugh told McCracken that he was being hired for
electrical work, but "You won't be afraid to pick up a
wrench and tighten a few nuts and bolts?" McCracken re-
plied that he would not be afraid to do that.
B. McCracken's Union Activity
Sometime prior to November, McCracken spoke to 20 or
25 of Respondent's 39 employees about a Union, and they
were "very enthused." Respondent does not have a posted
rule about solicitations in the plant on company time, and
some of McCracken's organizing activity occurred during
working hours. After unsuccessfully trying to get in touch
with the UAW, he telephoned the Teamsters and talked to
Business Agent Everett A. Oxyer. On Saturday, November
2, McCracken came down to the Teamsters office and
signed an authorization card. Oxyer gave McCracken
about 10 blank authorization cards and some union litera-
ture, told him to get the cards filled out and return them to
the Teamsters, and said that the Teamsters would then ask
the Board for an election.
On Monday, November 4, McCracken spoke about the
Union to about three other employees before work, and
two more during working hours that morning. He arranged
to meet these five employees in a nearby restaurant park-
ing lot during the 11:30 to 12 lunchbreak, when he gave
them the union pamphlets and obtained their signatures on
authorization cards. McCracken worked until 5:30 p.m.
that day, a total of 10 hours, and then went home. Compa-
ny Vice President Pugh testified that at the end of October
he "asked around" among some employees (including
Samuel Wilson and Martin Ozniwich) "what kind of trou-
ble we had in the plant," and that in consequence of this
asking around, Pugh "eventually" found out from employ-
ee Russell Workman, "probably" on Saturday, November
2, that McCracken was trying to start a union.
Company President Richard Simpson testified that "by
the company policy" he hired both union and nonunion
people, that Respondent did not inquire about whether
they were union or nonunion, and "I'm sure we have
Union members currently working for us. We have no way
of knowing how many or what groups." Pugh testified that
at no point in questioning applicants for employment did
he inquire about the applicant's union affiliation or lack
thereof, and thut Respondent had "no policy" requiring
TERMINAL EQUIPMENT INC. 263
him to do that. Simpson testified that 5 or 6 years prior to
the events involved here, he "may have" told Respondent's
other officers (although not Respondent's employees) that
he would close the plant if a Union got in. Simpson's pre-
hearing affidavit states, "When things aren't going well and
someone says we ought to have a Union here, it's not easy
to take . . . I've probably made the statement about clos-
ing the plant if a Union gets in about once a year."
C. Alleged Interference, Restraint, and Coercion;
McCracken's Termination
McCracken talked to employee Ozniwich about the
Union on about six occasions . About 6 p.m. on November
3, Company Vice President Pugh walked up to Ozniwich at
his job station and asked whether he knew anything about
a Union. Ozniwich replied that he did. Pugh asked who
was organizing it. Ozniwich would not tell him. Pugh then
said that Company President Simpson "was anti-union and
he would close the plant down before he would let a Union
in." Pugh then again asked Ozniwich who was organizing
the Union. Ozniwich still would not tell him. Pugh said
that "by telling him, the shop would be able to stay open."
Ozniwich did not reply, and Pugh walked away.
Thereafter, as employee Wilson was leaving the building,
he encountered Pugh. Pugh asked whether he knew any-
thing about the Union. Wilson replied that he did not, al-
though McCracken had mentioned the Union to Wilson
about 3 weeks earlier. Pugh then returned to Ozniwich and
again asked who was starting the Union. Ozniwich still
would not say. Pugh then asked whether it was McCrack-
en. Ozniwich replied that he was not going to say. Pugh
again asked who was starting the Union, and Ozniwich still
would not say. Pugh said that he had talked to employees
Wilson and Workman about a Union. About 7 p.m. that
same evening, Ozniwich telephoned McCracken and re-
ported Ozniwich's second conversation with Pugh.
At 8 a.m. the following morning, about an hour after
beginning work and in the middle of a pay period, Mc-
Cracken was summoned to Pugh's office. McCracken testi-
fied that Pugh told him "there was going to be a cutback in
employment, they weren't receiving parts, and [McCrack-
en] was one of the persons that was going to be laid off"
McCracken further testified that Pugh did not say anything
about McCracken's qualifications. Pugh testified for Re-
spondent, but was not asked about this conversation. I
credit McCracken's account.
Twice in the next week, Pugh asked Ozniwich to tell him
who had organized the Union, and both times Ozniwich
refused. Also, 2 or 3 days after McCracken's termination,
Pugh told Ozniwich that McCracken's brother-in-law "was
a big wheel with the Teamsters and that he might be being
paid to organize and after a short time, leave." Pugh add-
ed that McCracken had left his last job after only a short
time.'
My findings as to the Ozniwich-Pugh and Wilson-Pugh
conversations are based on the employees' testimony.
Ozniwich's testimony gains some corroboration from
Simpson 's admission that the statements about Simpson's
closure intentions, which Ozniwich attributed to Pugh, did
accurately reflect Simpson's prior statements to other offi-
cials . Moreover, Ozniwich's and Wilson's testimony about
Pugh's interrogation gains some support from Pugh's previ-
ously summarized testimony about his "asking around"
among employees who included Ozniwich, Wilson, and
Workman. Further, Pugh did not deny threatening that, if
the Union came in the plant would close, although he did
testify that he had never discussed unions with Simpson.
Moreover, the testimony of Ozmwich, Wilson, and Mc-
Cracken in this connection is to some extent mutually cor-
roborative. In addition, I was impressed by the demeanor
of Ozniwich (who was still working for Respondent, and
who never signed a union card), and found Pugh's demean-
or unpersuasive. Accordingly, notwithstanding the consid-
erations summarized supra (fns. 2 and 3) and notwithstand-
ing the membership of Pugh (a mature man) in a union
when he was out of high school, I credit the testimony of
Ozniwich and Wilson summarized above, and discredit
Pugh's testimony that he did not ask questions about union
activities, never told anyone in the plant that McCracken
was a paid union organizer, or that a relative of McCrack-
en had a position of authority with a union, and never
discussed unions with Simpson-testimony which Simpson
did not corroborate.
At the time of McCracken's termination, a majority of
Respondent's employees were working 10 hours a day, at
time-and-a-half for all hours worked exceeding 40 a week.
This schedule continued for 3 or 4 weeks after his termina-
tion . At the time of McCracken's termination, he was re-
ceiving $4 an hour. Within 3 weeks after McCracken's ter-
mination , Respondent hired two employees, described in
its records as "Mach Build," at $4.50 and $5 an hour, both
of whom were still in Respondent's employ at the time of
the hearing. Following McCracken's termination, Respon-
dent hired at least I1 employees in addition to the "Mach
Build," including , inter alia, 1 "M & H Assy" at $4.50 an
hour, I in the "Hyd/Mech" department at $4.60, 1 in the
"Assby" department at $4.50, and 3 in unspecified classifi-
cations at $4.50 and $5. All but 1 (a "Painter") of these 13
employees were still in Respondent's employ at the time of
the hearing. There is no evidence that any of the employees
hired during this period had ever worked for Respondent
before. Pugh testified that when adding to its work force
Respondent "at times" gets in touch with laid-off employ-
ees and invites them to return. Respondent has never of-
fered to reinstate McCracken.
Between McCracken's termination and the March 1975
hearing, Respondent laid off 10 to 16 employees. Respon-
dent had 12 to 15 mechanical assembly employees in Octo-
ber 1974 (just before McCracken's termination) and about
the same number at the time of the hearing.
2 Union Business Agent Oxyer testified that he did not know of any blood
relations of McCracken 's who were in the Union . Nor did McCracken testi-
fy that he had any such relatives . Oxyer further testified that McCracken
was not paid by the Teamsters.
3 McCracken 's job application states that his most recent job had lasted 6
months.
D. Respondent's Explanations for Terminating McCracken
Simpson and Pugh testified that Respondent decided to
effect a layoff for economic reasons, and that it was Pugh
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who decided to include McCracken in that layoff. Simpson
testified that he "instructed a general layoff . . . that two
or three individuals must be let go" for "Lack of work. The
other reason was that I was informed by Purchasing that
we could subcontract some of the work that we were doing
at a better price" to R. W. Panels (emphasis supplied).
Further, Respondent 's counsel averred in his opening
statement that Respondent had transferred McCracken
from electrical assembly work to another job (an alleged
event dated by Pugh as occurring in the latter part of Octo-
ber) because the work had been contracted out, and that
McCracken's allegedly poor workmanship had caused Re-
spondent to have higher production costs in performing the
work itself . However, Company Vice President Robert
Jackson testified that the work farmed out to R. W. Panels
consisted of the construction of electrical control panels,
that control panels related to anything like the farmed-out
control panels had not been built in Respondent 's plant for
at least 2 years , and that Respondent had merely been con-
templating performance of the farmed -out work in its own
shop.
Simpson testified that this layoff was "coming up around
the end of October ," and that Pugh was to decide whom to
lay off. However, Pugh's prehearing affidavit, executed in
early February 1975, states that the work was contracted
out to R. W. Panels in December (a month after Mc-
Cracken 's termination). Further , Pugh testified that Jack-
son informed him of the farming-out decision on Novem-
ber 1, and Simpson that this decision was made "in
November"-both alleged decision dates being subsequent
to the October layoff date which (according to Simpson's
testimony) was the date those selected by Pugh were to be
laid off.4 Also, both Jackson's testimony and Respondent's
exhibits show that Respondent had requested a quotation
on the work prior to August 30 (about a month before
Pugh hired McCracken); whereas Pugh testified that Jack-
son did not start to try to farm out the work until October
1974 (after McCracken was hired), and stated in his pre-
hearing affidavit that prices for the farmed-out work were
quoted in November (McCracken was terminated on No-
vember 5). Further, although Jackson testified that he ad-
vised Simpson and Pugh that Respondent would have to
cut back on its electrical assembly department, and that
McCracken was the only electrical assembly employee cut
back, Pugh testified that McCracken had been transferred
from electrical to mechanical assembly work in the latter
part of October, and that the decision to farm out the work
had caused Pugh to lay off three employees-McCracken
and mechanical assemblers Joseph Truskolski and Martin
Matonis.
Pugh further testified that he selected McCracken for
inclusion in the layoff because McCarcken was a junior
employee , because of his tardiness record , because Pugh
had received a report from Respondent 's manager of ac-
counting, Betty Jane Fisher, that McCracken was "always"
4 Jackson testified that he ordered a layoff in the electrical assembly de-
partment "right around the first of November ." Respondent 's brief asserts,
"Mr. Jackson's orders to lay-off were received by Mr. Pugh on November 2,
1974, the same day on which Mr . Pugh became aware of Eugene Mc-
Cracken's union organizational activities within the plant."
on the telephone or out talking to people in the shop rather
than at his job post, and because McCracken was not a
capable worker.
In connection with Pugh's testimony regarding Mc-
Cracken's tardiness , Respondent offered into evidence Mc-
Cracken's timecards for the entire period of his employ-
ment. These timecards show that he worked for
Respondent a total of 31 days. He punched in late in the
morning on six occasions ,5 and on one occasion (Septem-
ber 26) punched in 4 minutes late following the half-hour
lunchbreak. There is no evidence about how this record
compares with the records of employees who were re-
tained. Pugh testified that he never specifically warned Mc-
Cracken about coming in late.
Fisher credibly testified that, on one occasion shortly
after McCracken started to work for Respondent on Sep-
tember 23, she reported to Pugh that she had seen Mc-
Cracken "loitering" on several occasions in the machine
shop and in the shop office. She further credibly testified
that on various occasions she reported to Pugh that Mc-
Cracken and others were tying up the shop telephone 6
Pugh testified that he never specifically warned McCrack-
en about being away from his job, never warned him about
using the telephone, never told anyone to warn him about
being away from his job, and never instructed Mc-
Cracken's foreman to warn him personally about using the
telephone.
In connection with Pugh's testimony that McCracken
was not a capable worker , Pugh testified that lead assem-
bler Chopko reported to him that McCracken did not have
enough background in electrical assembly work. Although
Chopko is still working for Respondent, he did not testify,
nor was his absence explained. Pugh testified, without cor-
roboration, that Chopko's alleged report led Pugh to put
McCracken on mechanical assembly work in late October.
Jackson testified that McCracken was an electrical assem-
bly employee when terminated on November 5. McCrack-
en testified that, throughout his employment with Respon-
dent, he devoted 10 percent of his time to electrical
assembly and 90 percent to mechanical assembly.
Pugh further testified that employees Wilson and Work-
man told him that McCracken was not qualified to do me-
chanical assembly. Wilson testified that he did not think
McCracken "really [had] the knowledge in machine elec-
trics." Wilson did not testify about McCracken's ability to
do mechanical assembly, or that he ever talked to Pugh
about McCracken's work.'
The record contains invoices for "help-wanted" adver-
tisements placed by Respondent on November 21 and 28
and December 5, 12, and 19. The invoices state that the
3 He was 19 minutes late on October 16, 6 minutes late on October 11, 3
minutes late on October 4 and 31 , and I minute late on September 27 and
November 2.
6 Pugh testified to a single conversation in late October when Fisher made
these reports. On the basis of the witnesses' demeanor, I credit Fisher's
version.
7 Counsel for the General Counsel called Wilson as a witness, but did not
ask him about McCracken 's work . Respondent's counsel tacitly agreed to
accept Wilson as his own witness for this purpose . Wilson is still in
Respondent's employ.
Respondent laid off Workman 2 or 3 months hefore the hearing. I draw
no inference from his failure to testify.
TERMINAL EQUIPMENT INC. 265
advertisements were for "machine builders ," but Simpson
testified that Respondent was advertising for "hydraulic
and mechanical assembly," and that this was a different
job. Respondent's plant did not have copies of the adver-
tisements themselves . Respondent 's personnel records state
that Respondent hired a "Mach Build" on November 21,
another "Mach Build" on November 22, and an "M & H
Assy" employee on December 17. Simpson testified that
Respondent "tried to use [McCracken] in hydraulic and
mechanical work, and he could not do that job efficiently."
Simpson did not state whether this assertion was based on
his own personal observation , or whether this "hydraulic
and mechanical" work was the same as the "mechanical
assembly" work referred to in Pugh 's testimony . McCrack-
en testified that in Respondent 's shop "everybody is a ma-
chine builder, everyone works on hydraulics." Employee
Wilson testified that he did electrical work , hydraulic work,
and machine assembly . Respondent 's personnel records list
different employees as "M & H Assy ," "Mach. Build,"
"Hyd/Mach" department, and "Assby" department.
As previously noted , it is undisputed that Pugh told Mc-
Cracken he was being laid off because Respondent was not
receiving parts . Respondent has advanced no claim to me
that McCracken was terminated for this reason , or that it
was in fact not receiving parts , and has offered me no ex-
planation for its representation to McCracken . Counsel for
the General Counsel asked McCracken whether he had
ever been told by his foreman or by Pugh or any other
supervisor for Respondent that McCracken was not doing
a good job . McCracken 's testimony, "No, I was never told
of anything," stands uncontradicted . Likewise uncontra-
dicted is McCracken's testimony that he was never warned
about leaving his job to talk with people.
Simpson testified that he did not learn until the week
before the March 25, 1975, hearing that McCracken had
been trying to organize a Union in the plant . Vice Presi-
dent Jackson testified that "except for what is in the com-
plaint," he had never been aware of McCracken's union
activities, that Pugh never told Jackson about any unioniz-
ing activity in the plant, and that he was not familiar with
McCracken as an individual . However, I do not believe
such testimony , in view of the demeanor of both Simpson
and Pugh and their testimony that Jackson told them (a
few days before the hearing) that he had heard from "one
of the employees" that McCracken had been handing out
union cards ; Pugh 's testimony that "probably" on Satur-
day, November 2, he found out that McCracken was trying
to start a union ; employee Ozniwich's credited testimony
that on the day before McCracken's termination, Pugh
asked whether it was McCracken who had started the
Union and that a few days after McCracken 's termination,
Pugh said he suspected McCracken was a paid Teamsters
organizer . 8 Further, in view of this testimony by Pugh and
Ozniwich , I find that , whether or not Pugh was telling the
truth when he said he did not "know" until the week before
the hearing that McCracken was passing out union cards,
Pugh knew before he terminated McCracken that he was
8 See N. L.R.B. v. Walton Manufacturing Company & Loganville Pants Co.,
369 U.S. 404, 408 (1962); N.L.R.B . v. Transport Clearings, Inc., 311 F.2d
519, 521 , 523 (C.A. 5, 1962).
trying to organize a union , and at the very least suspected
that this activity included the distribution of union cards.
E. Analysis and Conclusions
1. Alleged interference , restraint , and coercion
I find that Respondent violated Section 8(a)(1) of the
Act when Company Vice President Pugh told employee
Ozniwich that Company President Simpson would close
the plant down before he would let a union in; and that if
Ozniwich would reveal who was organizing the Union,
"the shop would be able to stay open." I further find that
Respondent violated Section 8(a)(1) of the Act when Pugh
asked employees Ozniwich and Wilson whether they knew
anything about the Union, and asked Ozniwich who was
organizing the Union . In finding such interrogation to be
unlawful, I rely on the fact that Pugh was seeking informa-
tion useful for discrimination against union leaders , that he
accompanied such interrogation with threats that the plant
would be shut down if the Union came in or if Respondent
could not learn the identity of the union leaders , that Wil-
son gave an untruthful reply and Ozniwich repeatedly re-
fused to answer , that such questions served no legitimate
purpose, and that Respondent did in fact discharge Mc-
Cracken because of his union leadership . In connection
with Respondent's contention that such conduct was iso-
lated in nature , I note that Pugh asked Ozniwich 10 ques-
tions about the Union on 4 different occasions.
However , I perceive no basis for the contention of Gen-
eral Counsel that Respondent unlawfully gave the impres-
sion of surveillance when Pugh told employee Ozniwich
that Pugh had talked to two other employees about a
union, without further describing the contents of the con-
versation or even who initiated it.
2. McCracken's discharge
Respondent 's opposition to unionization of its plant is
established by Company President Simpson's admission
that he had periodically told Respondent 's other officers
that he would close the plant if the Union came in, and by
the undenied testimony that Company Vice President Pugh
made a like statement to employee Ozniwich the day be-
fore McCracken's termination . Further, Company Vice
President Pugh admitted finding out-"probably" on No-
vember 2, 3 days before McCracken's termination-that
McCracken was trying to start a union . Moreover, on the
evening before McCracken's termination , Pugh specifically
asked employee Ozniwich whether McCracken was-the one
who was starting the Union. Pugh terminated McCracken
on the following morning , which was the morning after
McCracken's noontime solicitation of union cards and the
second working day following McCracken's own executiod
of such a card. Two or three days later, Pugh remarked
that he thought McCracken was a paid organizer for the
Teamsters.
This strong prima facie case that McCracken was dis-
charged for union activity is strengthened by the fact that
Respondent 's tendered explanations therefor do not with-
stand scrutiny. Thus, in this proceeding, Respondent nel-
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther relies on the reason tendered McCracken at his termi-
nation interview , namely , that Respondent was not receiv-
ing parts, nor explains why Pugh told him this was the
reason . Further , President Simpson testified that the reason
for the layoff which included McCracken was that Respon-
dent had decided to contract out work "that we were
doing," and Respondent's counsel averred that McCracken
had actually been performing the work which was con-
tracted out; whereas Vice President Jackson testified that
the farmed-out work was work of a kind which had not
been performed at Respondent 's plant for at least 2 years,
and that Respondent had merely been contemplating per-
formance of the work in its own shop. Moreover, Pugh's,
Simpson 's, and Jackson 's testimony and Pugh's prehearing
affidavit are confused about the dates of material events.
Thus, Pugh's prehearing affidavit states that the work was
not contracted out until December , a month after Mc-
Cracken's November 5 termination. Further, Pugh's pre-
hearing affidavit states that prices for the farmed-out work
were quoted in November, but he testified that Jackson
informed him of the farming-out decision on November 1.
Corroborating this last statement by Pugh, Jackson testi-
fied that "It was right around the first of November" that
he advised Simpson and Pugh that Respondent would have
to cut back on its electrical assembly department; but
Simpson first testified that the layoff was "coming up
around the end of October," and then that the farming-out
decision was made in November. Further, Pugh (contrary
to Jackson) testified that McCracken was not performing
electrical assembly when he was laid off.
Likewise questionable is Pugh's testimony about why he
included McCracken in the layoff. Thus, although Pugh
testified that one consideration was McCracken 's tardiness
record, there is no evidence about how his tardiness record
compared with that of others; his record is not so bad,
standing alone , as to warrant a conclusion that it must
have been relatively poor; and it is undenied that he had
never been reproved for his tardiness. Further, although
Pugh testified that another consideration was Fisher's re-
port that McCracken was "loitering" and was tying up the
shop telephone, Pugh admitted that he had never warned
McCracken about these matters or instructed McCracken's
foreman to warn him; it is undenied that McCracken was
never warned; and Fisher testified that she reported to
Pugh that others were also tying up the telephone.
Finally, Pugh testified that he decided to include Mc-
Cracken in the layoff because he was not a capable worker.
I discredit Pugh's testimony that he entertained this view.
Thus, it is undenied that McCracken was never told he was
not doing a good job. Moreover, Pugh's testimony that in
late October he transferred McCracken from electrical to
mechanical assembly because lead assembler Chopko re-
9 Respondent's exhibits disclose that such quotations were requested be-
fore August 30 and shortly before October 4. However , Pugh 's representa-
tions (although erroneous ) as to the date seriously reflect on the veracity of
his testimony that McCracken 's November 5 termination was motivated by
the contracting out. The August 30 date virtually excludes any contention,
which Respondent has not advanced , that McCracken's September 23 hir-
ing was in anticipation of the in-house performance of the work which was
eventually contracted out. The record fails to show the hiring dates of the
two mechanical assembly employees laid off with McCracken.
ported that McCracken did not have enough background
in electrical assembly work not only is wholly uncorrobo-
rated,10 but also squarely conflicts with Vice President
Jackson's testimony that McCracken was an electrical as-
sembly employee when laid off on November 5. Also, al-
though Pugh testified that Wilson and another employee
had reported to Pugh that McCracken could not do me-
chanical assembly work either, Wilson did not testify about
McCracken's ability to do such work or that Wilson ever
discussed McCracken's capabilities with Pugh.11
For the foregoing reasons , I do not credit Pugh's testi-
mony that he believed McCracken to be a poor worker and
included him in the layoff partly for that reason. Further, I
credit McCracken's testimony, to some extent corroborat-
ed by Wilson, that throughout his entire employment with
Respondent he devoted 10 percent of his time to electrical
assembly and 90 percent to mechanical assembly. While
McCracken made some misstatements in his job applica-
tion , he admitted them when testifying, whereas Pugh's
sworn testimony and affidavit were impeached by
Respondent 's own records and the testimony of Vice Presi-
dent Jackson. In addition, I conclude from McCracken's
and Wilson's credible testimony about their own job du-
ties, from the job titles and hiring dates on Respondent's
personnel records, and from the phrasing of the "help-
wanted" invoices , that following McCracken's termination,
Respondent advertised for and hired other personnel to do
work which McCracken had previously performed.
In short, I conclude that the record preponderantly
shows that the real reason for McCracken's termination
was his union activity and that, therefore, his termination
violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Teamsters is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
threatening to close its plant in the event of unionization or
if Respondent's employees did not reveal the union
leader's identity, and by interrogating employees about
union activity in a manner constituting interference, re-
straint, and coercion.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by terminating employee Eugene Clarence McCrack-
en, Jr., because of his union activity.
5. Such unfair labor practices affect commerce within
the meaning of the Act.
6. Respondent has not given employees the impression
of surveillance over their union activities, in violation of
Section 8(a)(1) of the Act.
10 Although Chopko was still in Respondent's employ at the time of the
hearing , he was not called as a witness , nor was his absence explained I
infer that his testimony would have been adverse to Respondent Golden
Stare Bottling Company, Inc. v. N L R B, 414 U.S 168, 174 (1973); Interna-
tional Union, UA W [Gyrodyne Co of America] v N L.R.B., 459 F.2d 1329,
1335-46 (C.A.D.C., 1972).
11 See supra, Ins. 7 and 10
TERMINAL EQUIPMENT INC. 267
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because
Respondent's unfair labor practices included the discrimi-
natory discharge of the employee leader in the Teamsters
organizing campaign, an unfair labor practice which "goes
to the very heart of the Act" (N.L.R.B. v. United Mineral &
Chemical Corporation, 391 F.2d 892, 837-838 (C.A. 2,
1968) ), and a threat to close the plant if it were unionized
(a threat which Respondent's president has admittedly
voiced to its officers on other occasions), Respondent's un-
lawful conduct leads me to anticipate that, unless re-
strained, it will engage in "continuing and varying efforts
to attain the same end in the future" (N.L.R.B. v. Express
Publishing Company, 312 U.S. 426, 437-439 (1941) ). Ac-
cordingly, I shall recommend that Respondent be required
to cease and desist from infringing on employee rights in
any other manner. N.L.R.B. v. Southern Transport, Inc., 343
F.2d 558, 560-561 (C.A. 8, 1965). I shall also recommend
that Respondent be required to offer reinstatement to Mc-
Cracken, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that
which he would have earned from the date of his termina-
tion to the date of a valid offer of reinstatement less his net
earnings during this period, to be computed in the manner
described in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as described in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). In addition, I shall recom-
mend that Respondent be required to post appropriate no-
tices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 12
Respondent Terminal Equipment Inc., Bedford, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions, recommenda-
tions, and recommended Order herein shall, as provided in Sec. 102.48 of
said Rules and Regulations , be adopted by the Board and become its find-
ings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 507, or any other labor
organization, by discharging or laying off employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of employ-
ment.
(b) Interrogating employees concerning their and other
employees' union membership and activities, in a manner
constituting interference, restraint, or coercion.
(c) Threatening to close its plant if its employees choose
a collective-bargaining representative or fail to disclose the
identity of union leaders.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer immediate reinstatement to Eugene Clarence
McCracken, Jr., without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of
pay he may have suffered by reason of the discrimination
against him, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon 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 neces-
sary or useful to an analysis of the amount of backpay due
under the terms of this recommended Order.
(c) Post at its place of business in Bedford, Ohio, copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent's rep-
resentatives, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it, in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
The complaint is dismissed to the extent it alleges that
Respondent unlawfully gave employees the impression of
surveillance.
13 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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 "