Blake, Moffitt & Towne

National Labor Relations Board - Board DecisionsNov 11, 1974

214 N.L.R.B. 859 (N.L.R.B. 1974)

BLAKE, MOFFITT & TOWNE Blake, Moffitt & Towne and Office and Professional Employees International Union , Local 3. Case 20- CA-8592 November 11, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On May 21, 1974, Administrative Law Judge Stan- ley Gilbert issued the attached Decision in this pro- ceeding. Thereafter, the 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 his recommended Order, except as modified herein. 1. The Administrative Law Judge found that Su- pervisor McCaffery's 2 March 1973 statement to em- ployee Dickinson that there was a highly organized grapevine in San Francisco in the data processing area and that once the word got out that an employ- ee was involved in union organization, he could get i In adopting the Administrative Law Judge's finding that Respondent did not unlawfully prohibit union solicitation, we rely on Essex Internation- al, Inc, 211 NLRB 749 (1974), where the distinction between the terms "working hours" and "working time" is clearly defined The term "working hours" connotes the period of time from the beginning to the end of the workshift Thus, the use of the term in a no-solicitation or no-distribution rule is reasonably calculated to mean that employees are prohibited from engaging in any form of union solicitation or distribution of union literature from the time they "clock in," or begin their workshift, until the time they "clock out," or end their workshift In contrast, the term "working time" or "worktime" connotes the period of time that is spent in the performance of actual Job duties , which would not include time alloted for lunch and break periods Thus, the use of the term in a no-solicitation or no-distribution rule would clearly convey the meaning to employees that they were free to en- gage in solicitation or distribution during lunch and break periods which occur during their "working hours " The Board concluded in Essex that it would consider rules which prohibit solicitation or distribution during "working time" or "worktime" to be valid on their face On the other hand, rules which prohibit solicitation or distribution during "working hours," unless their impact on lunch or breaktime is clarified , would be invalid since they unduly restrict employees' rights to engage in union solicitation or distribution during their nonworking time 2 Chairman Miller and Member Penello adopt the Administrative Law Judge's finding that McCaffery possessed supervisory status , additionally, they find that McCaffery was clothed with status as an agent of Respon- dent , in view of his uncontradicted testimony that he participated in the formulating of instructions to supervisors , that he was included among members of management in a group advised by counsel how to conduct themselves in the union campaign , and that he told Dickinson in March 1973 that he would like to know what was going on in the union meetings but realized it would be inappropriate. 859 into a great deal of trouble, implied that Dickinson might be blacklisted for engaging in union activity. He further found that on February 11, 1973, Dickin- son had met with McCaffery at his home for dinner and informed him that Dickinson planned to orga- nize a union for Respondent's employees, and that McCaffery expressed his opposition in a very hostile manner , warning Dickinson that he would not stand in the way of a move to fire him; furthermore that by engaging in union activities Dickinson would jeopar- dize his employment opportunities in the San Fran- cisco bay area. McCaffery interrogated Dickinson about the extent of union organization and attempt- ed to persuade him to change his mind about the Union. On the next working day, McCaffery asked Dickinson if he had changed his mind and Dickinson replied in the negative. This conduct by McCaffery occurred prior to the 6-month period preceding the filing of the charge, and thus was not included in the allegation in the complaint. However, we consider this as part of the background and context of Mc- Caffery's March 1973 remark found to be a violation of Section 8(a)(1). We note that the March blacklist- ing threat by McCaffery was preceded by a conver- sation between employees Simcox and Dickinson concerning the union organization campaign, and that during their conversation concerning the effects of the Union on the data processing area McCaffery interjected his blacklisting comment. This remark carried forward the theme announced by McCaffery to Dickinson on February 11 that Dickinson could jeopardize his employment in the Bay area by engag- ing in union activities, which the Administrative Law Judge found was delivered in a hostile manner. Un- like our dissenting colleague, we would not find that McCaffery's March remark to Dickinson was privi- leged as an expression of personal opinion by a friend. Rather, we find that the blacklisting remark was originally delivered in a hostile manner which belied reliance in social friendship, and that the reit- eration of essentially the same remark in March rein- forced the original threat, particularly when deliv- ered in the presence of another employee and not in any social setting. In further disagreement with our dissenting col- league, we do not regard McCaffery's blacklisting threat as the prediction of a possibility which could result from the actions of others without the involve- ment of Respondent. Rather, we find that such re- mark, in view of Respondent's hostility to unionism which was found by the Administrative Law Judge, as carrying the implication that blacklisting would be inaugurated and assisted by Respondent. McCaffery stated no objective basis for his assertion that Dickinson's job opportunities would be affected else- 214 NLRB No. 122 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where if he continued his union activities and we find that this comment was not intended as a word of friendly advice concerning the career planning of an employee, but rather that the more obvious intent of Respondent was to coerce Dickinson to refrain from a continued exercise of protected activities. (See Coca Cola Bottling Co. of San Mateo, 188 NLRB 590, 596; Texas Transport & Terminal Co., 187 NLRB 466, 479). Accordingly, we adopt the Administrative Law Judge's finding that McCaffery's March 1973 remark to Dickinson constituted a threat of blacklisting in violation of Section 8(a)(l).3 2. The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) of the Act by its discharge of employee Sorensen. We disagree. The relevant background facts indicate that on May 8, 1973, the Union filed a representation peti- tion. A Stipulation for Certification Upon Consent Election was approved by the Regional Director on June 22, 1973. An election was held on July 27, 1973, which the Union lost. No objections to the election were filed, and certification of the results of the elec- tion was issued on August 6, 1973. Sorensen was thereafter terminated on August 21, 1973. Respondent argues that Fong, Sorensen's supervi- sor, resented Sorensen's attitude towards him as a supervisor, and that he was terminated for insubordi- nation toward Fong. Respondent contends that such insubordination was evinced by, inter alia, a report written by Sorensen which was highly critical of Fong; remarks made by Sorensen to fellow employ- ees with respect to Fong's inadequacy; several quar- rels between Fong and Sorensen over salary or work scheduling; and Sorensen's refusal to accept Fong's instruction with respect to the running of jobs with obvious errors. After a thorough review of the rec- ord, we find merit in Respondent's exception. In the latter part of 1972, Sorensen compiled rec- ommendations on how to improve Respondent's op- eration. This report was edited by McCaffery so as to remove material which McCaffery thought Fong might consider critical of him as a supervisor. Never- theless, the report as presented to Fong was still con- sidered by him to be critical, with respect to his su- pervisory authority, and thus caused resentment to- 3 Member Kennedy disagrees with his colleagues ' finding of an 8(a)(1) violation based on this incident He notes the Administrative Law Judge's finding that McCaffery and Dickinson were friends who frequently engaged in social activities together and that a month earlier at dinner at Mc- Caffery's home Dickinson had voluntarily discussed his union activities with McCaffery He believes that McCaffery 's statement was an expression of his own personal opinion and concern to a friend and also his prediction of a possibility which could result through no fault or action of Respondent See Associated Mills, Inc, 190 NLRB 113, 116 (1971 ) He finds Hertzka and Knowles, 206 NLRB 191 (1973), to be distinguishable on the facts Member Kennedy does not deem McCaffery 's statement to be coercive and therefore finds it unnecessary to decide McCaffery's precise status ward Sorensen. Sorensen testified that he had made remarks to other employees as to the inadequacy of Fong as a supervisor. Thus, the Administrative Law Judge found that " it is not unlikely that Fong was aware to some extent of Sorensen's opinion of him as a super- visor." During 1972, Sorensen had a number of confron- tations with Fong regarding the amount of pay in- creases received. As a result, Fong informed Soren- sen that he should seek work elsewhere if he was not happy with Respondent. Additionally, in April 1973, when Fong issued his new shift schedule, Sorensen returned his copy with a comment that he did not approve. Fong understood this action to be another challenge to his supervisory authority. On August 16, 1973, Sorensen refused to accept Fong's instruction that " . . . it was the duty of the operator to see-try to correct what was wrong and if he couldn't, to send it back." Sorensen's response, credibly testified to by Arias, a fellow employee, was that "if [he] ever received a job that was scheduled wrong, [he] would . . . run it . . . and then send it back to scheduling." Thus, in direct contradiction of his supervisor, Sorensen stated that he would run a job with an obvious error, before returning it to scheduling. The Administrative Law Judge himself found that this incident "must have reasonably raised a feeling of resentment in Fong toward Soren- sen." Nevertheless, the Administrative Law Judge found that Sorensen's discharge was "engendered, to a sub- stantial degree, by [his] activity on behalf of the Union." In coming to this conclusion the Adminis- trative Law Judge relied heavily on the testimony of Arias. Arias testified that a few days after Sorensen's discharge Fong stated: The reason you are here is because I want to explain to you why I fired Sorensen . . . I felt [he was] undermining the department. I felt that I could not proceed with [him]. . . . [He was] responsible for undermining my position and, after all, I'm still the boss here. [He] was respon- sible for a lot of the problems that occurred in the department such as getting the union started. This statement by Fong considered in its entirety shows that Fong was motivated in his decision to discharge Sorensen by his belief that Sorensen was undermining Fong's supervisory position. The addi- tional statement that Sorensen was also responsible for a lot of problems in the department "such as get- ting the union started" is both ambiguous and an afterthought. It does not in our opinion constitute an BLAKE, MOFFITT & TOWNE admission that Sorensen's union activity was a rea- son for the discharge. While we recognize that Soren- sen was known to be an active member of the Union and that Respondent may well have welcomed the opportunity for dispensing with his services, we are not convinced that the General Counsel has sus- tained his burden of proving that this was a signifi- cant motivating factor in his discharge. See Federal Pacific Electric Company, 195 NLRB 609 (1972). Ac- cordingly, we shall dismiss the allegation of the com- plaint that Respondent discriminatorily discharged employee Sorensen. AMENDED CONCLUSIONS OF LAW Substitute the following conclusions for those in the Administrative Law Judge's Decision: "I. The Respondent is an employer engaged in commerce with the meaning of Section 2(6) and (7) of the Act. "2. The Union is a labor organization within the meaning of Section 2(5) of the Act. "3. Respondent, by the conduct of McCaffery, violated Section 8(a)(1) of the Act by implying that employees might be blacklisted for engaging in union activity in March 1973. "4. Respondent violated Section 8(a)(1) of the Act by Fong's unlawful interrogation of employees on three occasions, in mid-March 1973, in May or June 1973, and in mid-July 1973." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby adopts as its Order the recom- mended Order of the Administrative Law Judge, as modified herein, and orders that the Respondent, Blake, Moffit & Towne, San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(c) and paragraphs 2(a) and (b), and reletter the subsequent paragraphs accord- ingly. 2. Substitute the following for paragraph 1(d) and letter it as the new paragraph 1(c): "(c) In any like or related manner, interfering with, restraining, or coercing employees in the exer- cise of rights under Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 861 After a trial at which all sides had the chance to give evidence it has been decided that we, Blake , Moffitt & Towne, have violated the National Labor Rela- tions Act and we have been ordered to post this no- tice. The National Labor Relations Act gives you as employees, certain rights, including the right to self- organization, to form, join, or help unions, and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assur- ances: WE WILL NOT imply that employees will be blacklisted if they engage in activity on behalf of any labor organization. WE WILL NOT unlawfully interrogate employ- ees with respect to their adherence to Office and Professional Employees International Union, Local 3, or any other labor organization. WE WILL NOT in any like or related manner interfere with our employees in the exercise of any rights guaranteed in the National Labor Re- lations Act. BLAKE, MOFFITT & TOWNE DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on September 10, 1973, as amended on October 12 and October 31, 1973, by Office and Profes- sional Employees International Union, Local 3, hereinafter referred to as the Union, the complaint herein was issued on November 12, 1973. The complaint, as amended during the course of the hearing,' alleges that Blake, Moffitt & Towne , hereinafter referred to as the Respondent , engaged in acts violative of Section 8(a)(1) and (3) of the Act. Re- spondent , by its answer , denies that it engaged in conduct violative of the Act as alleged in the complaint. Pursuant to notice, a hearing was held in San Francisco, California, on January 17, 29, 30, 31, and February 1 and 2, 1974, before the duly designated Administrative Law Judge. Appearances were entered on behalf of all the par- ties and briefs were received from General Counsel and Respondent on April 1, 1974. 1 The complaint was amended by adding par VI(f) alleging unlawful in- terrogation by Wayne Fong and by the striking of par VI(c) and VII(b) and (c) 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this proceeding and my obser- vation of the witnesses as they testified, I make the follow- ing: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent, a New York corporation, with a place of business in San Francisco, California, is engaged in the wholesale distribution of paper products. During the calen- dar year immediately preceding the issuance of the com- plaint, Respondent, in the course and conduct of its busi- ness operations, purchased at its San Francisco location goods valued in excess of $50,000 directly from sources outside the State of California. As is admitted by the Respondent, it is, and has been at all times material herein, an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED As is admitted by the Respondent , the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Supervisory Personnel Involved Herein Respondent admits that Wayne Fong, data center opera- tions manager, Robert C. Kenney, vice president and con- troller, Wallace Sieg, programming manager, and Gladys Damato, data input control supervisor, are supervisors within the meaning of the Act. Respondent denies, howev- er, the allegation that David McCaffery, who was a sys- tems analyst during the period material herein, was at that time a supervisor within the meaning of the Act. Supervisory Status of McCaffery Respondent contends, in effect, that McCaffery, during the time material herein, was in the position of a technical consultant as a systems analyst, had no supervisory author- ity, and, therefore, Respondent was not responsible for any conduct in which he may have engaged. McCaffery, who at the time of the hearing had been employed by the Respon- dent for approximately 5-1/2 years, spent the first year of his employment as a programmer analyst, the next 3 years as a programmer manager, an admitted supervisory posi- tion, and during the time material herein was a systems analyst (to October 1973).3 After he became a systems ana- lyst, he received a raise (over the amount he received as an admitted supervisor) and his salary was more than or com- parable to other admitted supervisors. McCaffery testified that as a systems analyst he attended management meetings, that he assigned work to employ- ees, and that he "probably" gave instructions to Sieg, one of the admitted supervisors. McCaffery further testified that he participated with Kenney in arriving at and formu- lating instructions to supervisors and that he worked with Sieg, the programming manager, in the operation of Sieg's staff. It appears, however, that McCaffery had no staff working directly under him. Throughout the hearing there was credible testimony which sheds light on McCaffery's functions and authority. Following are examples: Thomas Dickinson testified with- out contradiction that McCaffery told him that he, Mc- Caffery, would tell Sieg "to make time available" to Dic- kinson and that he, McCaffery, would not stand in the way of his being fired. Also, Dickinson credibly testified that McCaffery assigned work to employees and on an occasion in late July or early August of 1973 McCaffery censured Sieg for leaving the computer room without his (Mc- Caffery's) permission. Sorensen credibly testified that in January or February of 1973 McCaffery asked him if he would be interested in transferring to the Seattle office as operations manager. Also, Fong credibly testified as fol- lows: The Issues The issues raised herein are as follows- 1. Whether McCaffery was a supervisor when a systems analyst. 2. Whether Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) McCaffery threatening an employee in mid-March 1973 that his employment status would be jeopardized if he organized on behalf of or supported the Union. (b) Damato warning employees on or about March 25, 1973, not to engage in union activity at any time on Respondent's premises. (c) By Fong warning employees , on or about July 20, 1973, not to discuss or engage in union activities at any time on Respondent 's premises. (d) By Fong engaging in unlawful interrogation of em- ployees on several occasions. 3. Whether Respondent discriminatorily discharged Robert Sorensen 2 on August 21, 1973, in violation of Sec- tion 8(a)(3) and (1) of the Act THE WITNESS: Mr. McCaffery and I worked on the same level, okay? Lot of time he goes in and he reiter- ates my instructions if I'm not there. JUDGE GILBERT: You mean he takes your orders and relays them to the operators? THE WITNESS: No, he just reiterates the instructions. JUDGE GILBERT: Well, that would be instructions that you worked out together; is that what you mean) THE WITNESS: Yes. On the other hand, James Simcox, a witness called by General Counsel, credibly testified that he complained to McCaffery about a fire door and that McCaffery replied 2 It is quite possible that his name should be spelled "Sorenson " I am using the spelling of his name as it appears in the transcript of his testimony In any event, it is obvious there will be no confusion as to his identity whichever is the correct spelling 3 Thereafter he became coordinator of management information services BLAKE, MOFFITT & TOWNE that such a matter was outside his authority, that his posi- tion was that of an "advisor and that he had no personnel responsibilities ." There is little reliable evidence in the rec- ord, however, that McCaffery confined himself to acting merely as a technical advisor. It is concluded from the above that while McCaffery had no staff for which he was directly responsible as adminis- trator, he did enjoy and exercise supervisonal authority and was considered to possess same. ' Therefore, it is found that McCaffery, during the time material herein , was a su- pervisor within the meaning of the Act. Background Information In early February 1973 Dickinson initiated the efforts to organize the employees . He contacted Sorensen who ex- pressed his willingness to support the organizational activi- ty. On February 11, 1973, Dickinson called McCaffery to say he wanted to discuss something with him and was in- vited to come to McCaffery's home for dinner. It appears that the two were friends and frequently engaged in social activities together . Dickinson informed McCaffery that he planned to organize a union for Respondent 's employees, and McCaffery expressed his opposition in a very hostile manner , warning Dickinson that he would not stand in the way of a move to fire him ,5 and that he (Dickinson) would jeopardize his employment opportunities in the Bay area. McCaffery questioned Dickinson as to which other em- ployees were involved in the plan to bring in a union and when Dickinson did not answer him, McCaffery guessed that Sorensen was among those involved . When Dickinson admitted that it was so, McCaffery stated (according to Dickinson's credited testimony): Well, you realize I've been working with Bob [Soren- sen] to upgrade him . Bob had submitted a critique to me and I 've been working with him on that. However, I won 't go near him now. I 'll drop him like a hot pota- to. McCaffery attempted to persuade Dickinson to change his mind about union organization and Dickinson responded that he would think about it , but that he anticipated telling his immediate supervisor (Sieg) the next day of his inten- tions. In the morning of the next day McCaffery asked Dickin- son if he had changed his mind and Dickinson said he was going to proceed with his plan. McCaffery then stated that he (Dickinson) "make sure to tell" Sieg as soon as possible and that he (McCaffery) would tell Sieg to "get some time" for him . When Dickinson informed Sieg, Sieg's response was "You're white and 21; you can do what you want." It should be noted that the above-related conduct of Mc- It is noted that he was among those members of management who were advised by counsel how to conduct themselves with respect to the union organizational campaign It is further noted that in March 1973 McCaffery stated to Dickinson that he would like to hear what was going on in the union organizational meetings but that he realized it would be "inappropri- ate " 5 It appears that some time prior thereto McCaffery successfully interced- ed on Dickinson 's behalf when he was in danger of being discharged 863 Caffery occurred prior to the 6-month period (Sec. 10(b) of the Act) preceding the filing of the original charge herein and there is no allegation in the complaint with respect thereto . The aforesaid findings of fact are set forth merely as background information. An organizational campaign then ensued in which there were meetings , at a restaurant , in the Respondent 's lunch- room and at employees ' homes. There were two or three such meetings at Sorensen 's home . Also, campaign litera- ture was distributed at the entrance to Respondent 's plant and authorization cards were solicited . It appears that Sor- ensen was among the two or three most active proponents of the Union . It further appears that Respondent neither prohibited nor interfered with the employees ' organiza- tional meetings which were held in the Respondent's lunchroom. On May 8, 1973 , the Union filed its petition for an elec- tion . Following the filing of the petition , a stipulation for certification upon consent election agreement was entered into by the Respondent and the Union . Said stipulation was approved by the Regional Director on June 22, 1973. An election was held on July 27, 1973, which the Union lost. No objections to the election were filed and the certifi- cation of the results of the election was issued on August 6, 1973. Conduct of McCaffery in March 1973 Dickinson credibly testified that in March 1973, he was having a discussion with James Simcox with respect to the union organization in the course of which McCaffery joined them and his testimony as to what then occurred is as follows: Then we got onto another conversation concerning the effects of the union , especially in the data pro- cessing area . Mr. McCaffery made the statement that in San Francisco there was a highly organized grape- vine in the data processing area and that once the word got out that you were involved in union organi- zation , that one could get into a great deal of trouble. Respondent argues that McCaffery 's statement was not coercive and was an expression of an opinion protected under Section 8(c) of the Act . McCaffery 's remark implied- ly suggested the possibility of blacklisting. It has been held that raising the "specter" of blacklisting is violative of Sec- tion 8(a)(l) of the Act. Hertzka and Knowles, 206 NLRB 191 (1973 ). Consequently, it is concluded that Respondent, by McCaffery 's conduct , violated Section 8(a)(1) of the Act. Conduct of Damato in March or April 1973 Dickinson testified to a conversation he had with Dama- to which he placed in April of 1973. His testimony with respect to their conversation is as follows: She had instructed me to leave the data control cen- ter. At that time , I asked her why-as I was leaving the center, we were discussing this. We got to the hall, 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I asked her why. She said, "Well," she "didn't like the idea of my trying to organize her keypunch opera- tors; that they did not need a union. She had always been like a mother to them." She felt that they had nothing to gain and that being for the union was a repudiation of her supervision of them. It is noted , however , that on cross-examination he, in ef- fect, admitted that her restriction against talking with her employees was limited to doing so "during working hours." Therefore, the record will not support General Counsel's contention that she prohibited him from engaging in union solicitation "on Company premises at any time." Conse- quently, it appears that paragraph VI(b) of the complaint should be dismissed. Conduct of Fong on or About July 20, 1973 It is alleged that on or about July 20, 1973, Fong warned employees not to discuss or engage in union activities at any time on Respondent's premises. It appears that at ap- proximately 5 p.m., after a meeting with employees in which the Respondent explained its position to employees, Dickinson, who had completed his work for the day, went into the data center to talk with Fua, the assistant data manager, with respect to work related matters. When Dic- kinson turned to leave, Sorensen asked Dickinson to wait for him until he finished his shift at 5:30 p.m. At this point, Fong entered the room and saw Dickinson and Sorensen engaged in conversation on Sorensen's work time. While there is some dispute as to whether or not Dickinson and Sorensen were discussing union connected matters, it is clear that Fong suspected that that was what they were doing. Fong warned Sorensen and Dickinson that they should not discuss union business but there is a conflict as to whether or not he limited the prohibition to working time. While Dickinson testified that he could not recall that Fong did so limit the prohibition, it is noted that in his (Dickinson's) affidavit he stated that Fong said that they were not to engage in union activity during company time. The testimony that Fong limited his warning to discussion of union activities during working time is credited. This conclusion is buttressed by the undisputed testimony that during the heated discussion that Fong and Dickinson had, Dickinson stated that if the Respondent could conduct em- ployee meetings on company time, then he could discuss union matters on company time. Consequently, it is concluded that the General Counsel has failed to prove by a preponderance of the evidence that Fong attempted to impose an unlawfully restrictive prohi- bition against union discussion on the Company premises and it will be recommended that paragraph VI(d) of the complaint be dismissed. Fong's Unlawful Interrogation According to the credited testimony of John Muzio, a computer operator, in mid-March 1973 Fong called him into his office and stated to him that he knew he (Fong) was not supposed to talk to him about the Union, but that he wanted to know why he (Muzio) was in favor of the Union. Also, Muzio further credibly testified that, in May or June 1973, Fong asked him if he had as yet made up his mind about the Union. Franco Arias, a computer operator, credibly testified that, in mid-July 1973, Fong asked him why he was "so pro-union." Fua, who was present, stated to Fong "Don't you think this is an unfair question." In response to Fong's question, Arias asked him how he knew that he was prounion and told Fong that he would rather not discuss it. Respondent , in its brief, did not contest the interrogation by Fong but argues that it was not coercive since it was not accompanied by any promises of benefits or threats. In view of Fong's evident hostility toward the Union, it is deemed that his repetitive questioning of employees with respect to their attitude toward the Union did interfere, restrain , and coerce them within the meaning of Section 8(a)(1) of the Act. The Discharge of Sorensen Sorensen was hired on February 1, 1970, as a data con- trol clerk at the rate of $475 per month. Effective June 16, 1970, he was raised from $475 to $525 and promoted to computer operator trainee. Effective January 1, 1971, Sor- ensen received a "merit" increase of $25 raising his salary to $550. Effective July 15, 1971, Sorensen received an in- crease to $600 per month. Effective February 1, 1972, he received a "merit" increase from $600 to $650 per month. Effective on February 1, 1973, he received a "merit" in- crease of $100, increasing his salary to $750 per month, and was promoted from junior computer operator to senior computer operator which was his job classification at the time of his discharge on August 21, 1973. On his termination notice the explanation therefor was as follows: "This employee was dismissed due to negative attitude toward supervisor and management which has caused serious morale problem in the department." His ter- mination notice was signed by Fong, who testified that it was he who decided to discharge Sorensen. Fong testified, in effect, that he discharged Sorensen chiefly because of Sorensen's lack of respect for his (Fong's) authority and because of his poor work perfor- mance. He testified at considerable length to incidents il- lustrating Sorensen's poor work performance but little weight is given to his said testimony. At one point Fong testified that he discovered that Sorensen was an unsatis- factory employee in January 1972 and at another point he testified that Sorensen's work "was deteriorating" in July of 1973. It appears from Kenney's testimony that he at- tached little, if any, importance to Sorensen's work perfor- mance when Fong consulted him about his decision to ter- minate Sorensen Furthermore, Fong admitted that he did not mention Sorensen's work performance to him at the time he terminated him. As disclosed hereinabove, during the course of his employment, Sorensen was given a num- ber of raises and was promoted to senior computer opera- tor with a raise of $100 on February 1, 1973. It is further noted that Simcox, a senior programmer analyst, was asked by Sieg to evaluate the operators in June or July of 1973 and made a favorable report with respect to Sorensen. As noted hereinabove, in January or February 1973, Sorensen BLAKE, MOFFITT & TOWNE was considered for a managerial position in the Seattle of- fice . Dorothy Guy, a data control clerk , credibly testified that on June 23 , 1973, Fong stated to her that Sorensen was doing a "very good job" and that he was "very pleased with his work" and that he "had accomplished a lot since he had been there ." Fua admitted that during a dinner he had with Dickinson on January 4, 1974, he discussed Sor- ensen with Dickinson and stated to Dickinson that he "considered Mr. Sorensen to be a very good operator." Finally, it is noted that shortly before Sorensen's termina- tion Fua, the assistant data center manager , went on vaca- tion and Sorensen was assigned Fua's duties of scheduling, an assignment which would appear to be inconsistent with Fong 's contention with respect to Sorensen 's work perfor- mance . It is found from the above and from the record as a whole that Sorensen 's work performance was not a factor in the determination to discharge him but rather that it was raised as an afterthought . This conclusion is supported by Fong's admission that he never reprimanded Sorensen in 1973. There is some merit, however , in Respondent 's conten- tion that Fong resented Sorensen 's attitude toward him as a supervisor, although it appears that some aspects of his reasons therefor were somewhat exaggerated . Fong credi- bly recounted several incidents in which Sorensen quar- relled with him over his salary or work scheduling. Also, considerable testimony was elicited with respect to a critique which Sorensen wrote in the last part of 1972 which Fong testified he considered critical of him as a su- pervisor. It appears that Sorensen frequently attempted to make suggestions to Fong and McCaffery on how to im- prove Respondent 's operations. At their suggestion , Soren- sen compiled his recommendations on how to improve Respondent's operation in a document which McCaffery edited and which he had retyped before Sorensen submit- ted it to Fong It appears that McCaffery deleted or modi- fied portions of Sorensen 's report so as to remove any ma- terial which McCaffery thought Fong might consider crit- ical of him as a supervisor. It further appears that Fong only saw the version edited by McCaffery. Fong testified as to certain elements contained in the report which he considered critical of him and caused his resentment. These elements, in essence, were suggestions on how to improve operations which were under Fong 's supervision and were not criticisms of him personally . It also appears that there was merit to the suggestions made by Sorensen in his report. For example, Kenney testified that McCaf- fery told him that he thought the report was good, "that some good thought had gone into it and some of the items may be meritorious." Also, Kenney testified that he would not have asked McCaffery to edit Sorensen's suggestions if McCaffery had not indicated to him that there was "some value" in Sorensen 's suggestions . Although Fong, in his testimony , indicated that he resented the implied criticism in the report , Sorensen testified without contradiction, and his testimony is credited, that after Fong read the report he called him (Sorensen) into his office and told him that "he was very pleased that I had written it." Sorensen admitted that he had made remarks to his fel- low employees and to Fua as to the inadequacy of Fong as a supervisor . While Fong testified that Fua reported to him 865 that Sorensen had made such a remark , it is noted that Fua denied that he had told Fong about it. While there is no direct credible testimony that Sorensen 's critical remarks about Fong were reported to him , it is inferred that it is not unlikely that Fong was aware to some extent of Sorensen's opinion of him as a supervisor. Fong testified that his decision to discharge Sorensen was precipitated by Sorensen 's lack of cooperation evi- denced at a staff meeting on August 16, 1973 , in which he stated that he would need some volunteers to do overtime work and Sorensen flatly refused to offer his services.6 While Fua corroborated Fong's testimony with respect to the refusal of Sorensen to volunteer for overtime work, Sorensen , Muzio, and Arias denied their testimony. It ap- pears that during the meeting there was a discussion as to how Muzio's shift would be taken care of during his forth- coming vacation and it is undisputed that Sorensen volun- teered to work part of Muzio's shift . While it appears that this would not have required him to work overtime , never- theless, it discloses that Sorensen was attempting to be co- operative in that respect at least . It is noted that Arias corroborated part of Fong's testimony with respect to said meeting. Arias' testimony is as follows: THE WITNESS: Mr. Fong said that if ajob was sched- uled and there was something wrong with the job, it was the duty of the operator to see-try to correct what was wrong and if he couldn 't, to send it back. At this point , Mr. Sorensen answered that it's not the duty of an operator . If I ever received a job that was scheduled wrong, I would send it back to schedul- ing. JUDGE GILBERT: He said he would send it back to scheduling? THE WITNESS: Run it and send it back to scheduling. While Muzio testified that he could not recall the incident related in Arias' above -quoted testimony , he stated that he would not dispute said testimony. Arias and Muzio were convincing witnesses and consequently the denial of Fong's and Fua's testimony with respect to Sorensen's re- fusal to work overtime is credited. While it is found that Sorensen did appear to refuse to accept Fong's instruction with respect to running a job with an obvious error , it does not appear from Fong's testimony that this was a signifi- cant factor in Fong's decision to discharge Sorensen. How- ever, it must have reasonably raised a feeling of resentment in Fong toward Sorensen. It is apparent from the record that Fong was hostile to union organization and was interested in ascertaining which of the employees was in favor of union organization. Fua testified that he and Fong attempted to guess who were prounion employees. Guy testified that in mid-July 1973 she had a conversation with Fong about the Union in which he said that he didn't know why Sorensen "wanted the union so bad when he had good working conditions and he was making very good pay " Apparently, Fong felt very strongly against union organization in view of the fact 6 It appears that the practice was followed of assigning overtime work on a voluntary basis 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that , although he knew it was improper , he interrogated employees as to their attitude toward the Union. Arias and Fong testified that a few days after Sorensen's discharge Fong called him (Arias ) into his office to explain why he fired Sorensen and another employee . Arias' testi- mony as to their conversation at that point is as follows: As I walked to the office, Wayne [Fong] told me-I sat down and Wayne told me: The reason you are here is because I want to explain to you why I fired Bob [Sorensen] and John [Muziol . Then he said, "I fired Bob and John because I felt they were undermin- ing my position ; they were undermining the depart- ment . I felt that I could not proceed with them. I am not sure that I did right or wrong; I might be sued. I did what I thought was best . They were responsible for undermining my position and, after all, I'm still the boss here . They were responsible for a lot of the prob- lems that occurred in the department such as getting the union started." [Emphasis supplied.] Fong testified about the incident and the only contradic- tion in his testimony (to that of Arias) is Fong 's denial that he made a reference to the Union. Of the two witnesses, Arias was the more convincing and his testimony is cred- ited. Based upon the above findings of fact , it is inferred that Fong's decision to discharge Sorensen was predicated on his resentment toward Sorensen and that part of said re- sentment was engendered , to a substantial degree, by Sorensen 's activity on behalf of the Union . It is well estab- lished that where union activity is a contributory cause of discharge , the discharge is violative of Section 8(a)(3) and (1) of the Act, even if there was also another cause which was not unlawful . The Princeton Inn Company, 174 NLRB 1193, 1198 (1969).7 Consequently , it is concluded that Sorensen was discrim- inatorily discharged in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section I , above , have a close , intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that Robert Sorensen was unlaw- fully discharged on August 21, 1973, it will be recommend- ed that Respondent be ordered to offer him immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reim- burse him for any loss of pay he may have suffered as a result of its discriminatory action against him in the man- ner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6 percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. McCaffery is a supervisor within the meaning of the Act. 4. Respondent, by the conduct of McCaffery in March of 1973, violated Section 8(a)(1) of the Act by implying that employees might be blacklisted for engaging in union activity. 5. Respondent violated Section 8(a)(1) of the Act by Fong's unlawful interrogation of employees on three occa- sions, in mid-March of 1973, in May or June of 1973, and in mid-July of 1973. 6. Respondent violated Section 8(a)(3) and ( 1) of the Act by its discriminatory discharge of Sorensen on August 21, 1973. 7. General Counsel failed to prove by a preponderance of the evidence the allegations in the complaint that Re- spondent unlawfully prohibited union solicitation at any time on the Company 's premises. Upon the foregoing findings of fact, conclusions of law, and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent , Blake , Moffitt & Towne , its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Impliedly threatening employees that they might be blacklisted for engaging in union activity. (b) Unlawfully interrogating employees with respect to s In the event no exceptions are filed as provided by Sec 102 46 of the 7 It is noted that the Court of Appeals for the Third Circuit in enforcing Rules and Regulations of the National Labor Relations Board , the findings, the Board's Order in the cited case , stated in its Decision , 424 F 2d 264 conclusions , and recommended Order herein shall, as provided in Sec 102 (1970), as follows "A discharge which is partially motivated by the 48 of the Rules and Regulations , be adopted by the Board and become its employee's protected activity violates the Act despite the concurrent exis- findings , conclusions , and Order, and all objections thereto shall be deemed tence of an otherwise valid reason " waived for all purposes BLAKE, MOFFITT & TOWNE their adherence to Office and Professional Employees In- ternational Union, Local 3, or any other labor organiza- tion. (c) Discouraging membership in the aforesaid Union, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Robert Sorensen immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the sec- tion hereinabove entitled "The Remedy." (b) Upon request, make available to the Board or its agents for examination and copying all payroll and other records containing information concerning its backpay obligation under this recommended Order. 867 (c) Post at its place of business in San Francisco, Cali- fornia, copies of the notice attached hereto and marked "Appendix."9 Copies of said notice, on forms to be fur- nished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative of Re- spondent, be posted by Respondent immediately upon re- ceipt thereof and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the com- plaint that Respondent unlawfully prohibited employees from engaging in union solicitation at any time on Company's premises should be, and are hereby, dismissed. 9In the event that 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "