U. S. Plastics Corp.Download PDFNational Labor Relations Board - Board DecisionsSep 18, 1974213 N.L.R.B. 323 (N.L.R.B. 1974) Copy Citation U.S. PLASTICS CORPORATION 323 U. S. Plastics Corporation and Truck Drivers, Chauf- feurs and Helpers Union, Local 42, a/w Internation- al Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Case 1-CA-9225 September 18, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO spondent President Samuel Oren replied, "If you don't want to go on the third shift, have the Union get you a job." As indicated above, Oren at the end of June also unlawfully told DiOrio that he would be put back on the first shift if he would give up the Union. In view of Respondent's linking of the transfer to DiOrio's union activities as well as Respondent's other unlawful conduct directed at DiOrio, we con- clude that the transfer was discriminatorily motivated and therefore violated Section 8(a)(3) of the Act. We shall modify his recommended Order accordingly. On February 19, 1974, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respon- dent filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found without ex- ception, and we agree, that Respondent engaged in a number of violations of Section 8(a)(3) and 8(a)(1) of the Act including certain coercive conduct which was directed against Leonard DiOrio, a leading protago- nist of the Union: harassing and interrogating him on January 29 and 30 and on March 24 and 27, 1973; 1 accusing him in early April of being the instigator of the organizing campaign; threatening him in late April with discharge for bringing union cards and leaflets into the plant; and promising DiOrio, who had been transferred from the third shift on April 1, a return to the more desirable first shift in late June if he would refrain from union activities. The Admin- istrative Law Judge also properly found without ex- ception that Respondent violated Section 8(a)(3) of the Act by denying DiOrio overtime on March 24 and by issuing on April 24 a written warning to discipline him for asserting his right to self-organization. How- ever, the Administrative Law Judge found that Re- spondent did not further violate Section 8(a)(3) of the Act on April 1 by transferring DiOrio against his wishes from the first to the third shift. For reasons which follow, we find merit in the General Counsel's exception to this finding? The record shows that, when DiOrio protested, Re- 1 All dates below refer to 1973. 2 As indicated in his separate opinion , Member Fanning concurs in the foregoing findings. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, U.S. Plas- tics Corporation, Lynn, Massachusetts, its officers, agents, successors, and assigns shall take the action set forth in the said recommended Order, as so modi- fied. 1. Insert the following as new paragraphs 1(c) and 2(b), respectively, and reletter the subsequent para- graphs accordingly: "(c) Transferring employees from one shift to an- other for engaging in union activities. "(b) Offer Leonard DiOrio a return to his former job on the first shift, or, if that job no longer exists, to a substantially equivalent position on that shift." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER FANNING, concurring in part and dissenting in part: I concur in my colleagues' adoption of the Admin- istrative Law Judge's finding that Respondent violat- ed Section 8(a)(1) and (3) of the Act by engaging in extensive unlawful conduct which involved creating the impression of surveillance of the employees' union activities, interrogation and harassment of employees, threats of reprisal, denial of overtime, warnings of disciplinary measures against employees because of their union activities, threats to move the plant, prom- ises of benefit, initiating and circulating an antiunion petition, threats not to hire employees because of union activities, threats of discharge, and discrimina- tory discharges. I also join my colleagues in finding that Respondent further violated Section 8(a)(3) of the Act by transferring employee Leonard DiOrio to a less desirable shift. However, because the Administrative Law Judge erred by including five supervisors 3 in the stipulated 3 Group Foremen Albert Baker, James Baker, Nicola Balducci , Nicholas 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and maintenance unit, I would, contrary to my colleagues, reverse his finding that the Union did not achieve majority status on either April 14 or May 21, 1973, and therefore did not violate Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. Thus, the Administrative Law Judge improperly found that there were in the unit on those dates 59 and 54 employees, respectively, rather than 54 and 49 employees, and that the 29 and 26 valid authorization cards on each occasion fell short of a majority. Following an organizational campaign which com- menced in December 1972, the Union on March 19, 1973, sent a letter to Respondent demanding recogni- tion and also filed a petition for an election (Case 1-RC-12640). On April 23, and May 10, upon Respondent's refusal to recognize the Union, the lat- ter filed charges and amended charges. On May 1, the Acting Regional Director issued a Decision and Direction of Election wherein he found "on the basis of the record as a whole and the stipula- tion of the parties" that, inter alia, the two Bakers, Balducci, Vanagel, and Schuman were supervisors within the meaning of the Act and as such were ex- cluded from the unit. During the week of May 21, David Riemer, Respondent's counsel, and Richard Hunt, business agent of the Union, met to discuss settlement of the outstanding issues. Hunt submitted to Riemer a list of employees which showed a majority of them had signed authorization cards. Riemer glanced at the list and stated, according to Hunt's uncontradicted testi- mony in the instant proceeding, that he trusted Hunt and therefore accepted the latter's assurance that the Union did in fact represent a majority of the employ- ees4 Accordingly, on May 29, Respondent formally recognized the Union as the collective-bargaining representative of the production and maintenance employees and asserted its readiness to bargain with the Union.' However, as indicated above, Respon- dent on May 31 and June 1 unlawfully sponsored an antiunion petition wherein a number of employees protested Respondent's recognition of the Union, and Respondent on June 5 withdrew recognition from the Union and filed a petition for an election (Case 1- RM-854). At the hearing in the RM case, the parties once more stipulated that the Bakers, Balducci, Vanagel, and Schuman were "supervisors in that they may hire Vanagel, and Daniel Schuman. 4 At a hearing held on June 20, 1973 , in connection with the Employer's petition for an election (Case 1-RM-854), the parties stipulated that Riemer during the week of May 21 told Hunt, "We agree that [the Union] represents a majority." s Pursuant to the Union's request , the Regional Director vacated the Deci- sion in Case 1-RC-12640. or fire employees or effectively recommend hiring or firing of employees or effectively recommend other personnel changes which would [affect] the employ- ees' wages and hours and working conditions and/or that [they] responsibly direct employees in the course of their duties." On July 5, the Acting Regional Direc- tor issued a Decision and Direction of Election where- in it was again found "on the basis of the record as a whole and the stipulation of the parties" that the above-named group foremen were supervisors within the meaning of the Act .6 Despite the Acting Regional Director's findings in the RC and RM decisions as to the supervisory status of the five group foremen, the Administrative Law Judge refused to rely thereon on the ground that the Acting Regional Director never "came to grips" with the question whether they possessed authority which brought them within the definition contained in Sec- tion 2(11) of the Act. In addition, in view of Respon- dent President Samuel Oren's statement at the hearing in the instant case that he did not know how to explain the word "effectively," the Administrative Law Judge gave no weight to his testimony that the Bakers , Balducci, and Vanagel had "authority to ef- fectively recommend . . . wage increases [and] pro- motions."' It is well established that the Board may take offi- cial notice of and rely on the stipulations of the parties and the resultant findings of Regional Directors as set forth in their decisions. It is significant that the posi- tions of the parties as to the supervisory status of the five group foremen remained constant at the hearings in both RC and RM cases and that in the latter the parties not only stipulated that the five group foremen were supervisors but also spelled out the various indi- cia of supervisory authority which they possessed. I would therefore adopt the stipulations and the Acting Regional Director's findings that Albert and James Baker, Balducci, Vanagel, and Schuman were super- visors and would conclude that as such they did not belong in the unit.' Accordingly, I would hold that there were 54 and 49 employees, respectively, in the unit on April 14 and May 21 and that the Union, which obtained 29 and 26 valid authorization cards on those dates, represented a majority of the unit employees. There remains the question whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. As Respon- Thereafter, the Decision in Case I-RM-864 was vacated because of the complaint issued in the instant case. r It is noteworthy that the Administrative Law Judge put little faith in Oren's credibility. r As the Administrative Law Judge deemed Oren an unreliable witness, I would find it unnecessary to determine whether his testimony should be accorded any weight. U.S. PLASTICS CORPORATION 325 dent engaged in sustained and flagrantly coercive conduct, I would find that the employees' majority designation of the Union as expressed in their author- ization cards provides a more reliable measure of the employees' true desires than would be provided by an election. Therefore, in order to protect the employees' statutory rights and interests, I would find that Respondent's refusal to bargain with the Union on and after April 14 violated Section 8(a)(5) and (1) of the Act and would issue a bargaining order? Alternatively, I would rely on Snow & Sons 10 where, as here, Respondent had no doubt as to the Union's majority status. In the instant case, Respon- dent demonstrated its belief to that effect by recogniz- ing the Union for a few days until its abrupt reversal of that action following its sponsorship of the unlaw- ful antiunion petition. Accordingly, as Respondent unlawfully withdrew its recognition of the Union, whose majority status it had acknowledged, and re- fused to bargain therewith, I would find that Respon- dent violated Section 8(a)(5) and (1) of the Act and would order Respondent to bargain collectively with the Union. In sum, I would find on the basis of either Gissel or Snow & Sons that Respondent contravened Section 8(a)(5) and (1) of the Act by refusing to bargain col- lectively with the Union which represented a majority of the employees in the unit and issue an appropriate bargaining order. 9 N.L.R.B. v. Gissel Packing Co., 395 U.S. 375. See also my dissent in Steel-Fab, Inc., 212 NLRB No. 25. 10 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9, 1962). 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 having found, after a trial, that we violated Federal Law by discharg- ing employees and discriminating against them in other ways for engaging in union activities, we hereby notify you that: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge you for engaging in union activities. WE WILL NOT transfer you from one shift to another for engaging in union activities. WE WILL NOT deny you overtime for engaging in union activities. WE WILL NOT issue written warnings to you os- tensibly for violations of our rules which are un- related to your union activities when our real reason is your union activities. WE WILL NOT interrogate you about your union activities or attitudes or the union activities or attitudes of others. WE WILL NOT harass you because you are en- gaging in union activities. WE WILL NOT threaten you with reprisals for engaging in union activities. WE WILL NOT threaten you with discharge for engaging in union activities. WE WILL NOT threaten to move our plant to another State if you elect to be represented by a union. WE WILL NOT promise benefits to you if you refrain from union activities. WE WILL NOT create the impression we have your union activities under surveillance. WE WILL NOT initiate or circulate antiunion pe- titions among you. WE WILL NOT in any manner interfere with you or attempt to restrain or coerce you in the exer- cise of the above rights. WE WILL offer Kathy Spillane, Deborah Por- trait, and John Comeau immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost, plus interest, as a result of their discharges. WE WILL offer Leonard DiOrio a return to his former job on the first shift, or, if that job no longer exists, to a substantially equivalent posi- tion on that shift. WE WILL make Leonard DiOrio and James Mc- Carthy whole for any earnings they lost, plus interest, as a result of being denied overtime on March 24 and April 14, 1973, respectively. WE WILL remove from our files and destroy written warnings we issued to Audrey Parsons on April 20 and 24, 1973, and Leonard DiOrio and Richard Needham on April 24, 1973. All our employees are free, if they choose, to join Truck Drivers, Chauffeurs and Helpers Union, Local 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 42, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. U.S. PLASTICS CORPORA- TION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in this case was filed on July 18, 1973,1 and amended on August 31. The complaint was issued on August 31 and amended on September 27 and again , numerous times, dur- ing the course of the hearing. The hearing was held on October 16, 17, 18, 19, 24, 25, and 26 and November 12, 13, 14, and 15 in Boston, Massachusetts. The principal issue litigated was whether, in view of vari- ous violations of Section 8(axl) and (3) of the National Labor Relations Act, as amended, alleged by the General Counsel, Respondent should be found in violation of Sec- tion 8(a)(5) of the Act. For the reasons set forth below, I find that, while Respondent committed some, although not all, of the 8(a)(l) and (3) violations alleged, no finding of an 8(aX5) violation is possible because the General Counsel has failed to prove the Charging Party represented a majori- ty of Respondent's unit employees. (Respondent's motion to dismiss , which I took under advisement at the conclu- sion of the hearing, is disposed of by my findings below.) Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of oral argument and briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Massachusetts corporation, is engaged in Lynn , Massachusetts , in the business of manufacturing 1 Dates are 1973 unless otherwise indicated. polyethylene film and bags. During 1972 Respondent shipped products valued in excess of $50,000 directly to customers located outside the Commonwealth of Massa- chusetts. Local 42 exists for the purpose of organizing employees and representing them in collective bargaining. Employees join and participate in its activities. 11. THE UNFAIR LABOR PRACTICES A. Chronology Local 42's efforts to organize Respondent's production and maintenance employees had its genesis in December 1972 when Harold Horton, a maintenance man, contacted Angelo Colella, an organizer for the local, told him the employees were interested in union representation, and gave him a list of their names and addresses which Respon- dent had prepared and made available to employees for Christmas purposes. In January Colella placed an ad in a local paper which urged employees in the Lynn area who were interested to contact Local 42. The ad did not single out Respondent by name. Colella kicked off his campaign with a letter mailed on January 25 to the employees on the Christmas list. The letter began, "Thank you very much for your tremendous re- sponse to our recent newspaper article concerning your right to join Teamster Local 42." It set forth Section 7 of the Act as employees' protected right to join Local 42 and urged Respondent's employees to execute and return the enclosed authorization card. On January 29 and 30 Colella reconnoitered the plant. While outside the gate he met and talked to Leonard Di- Orio, an employee in the extrusion department, where poly- ethylene film is made. DiOrio subsequently mailed in an authorization card dated January 30, the first card obtained by Local 42. Colella leafleted the plant for the first time on January 31, obtaining authorization cards from several employees, among them Harold Horton. Others who signed cards at this time were Kathy Spillane and Deborar Portrait, two employees in the conversion department, where some of the polyethylene film extruded in the extrusion department is converted into plastic bags. The Misses Spillane and Por- trait were discharged on February 22. On March 19 Local 42 sent a letter to Respondent de- manding recognition. At the same time it filed a petition for an election in Case 1-RC-12640. On March 27 John Comeau, an extrusion department employee who had signed an authorization card on March 5, was discharged. On March 29 Respondent distributed a leaflet to its em- ployees which urged them not to be fooled by Local 42's campaign, stated that the Union was trying to create prob- lems for them and their company, and claimed that the Union was only interested in their money. On April 11 a prehearing conference was held at the Board' s Regional Office in Boston in connection with Case 1-RC-12640. A number of employees attended with Colel- la. Following the conference, Colella and the employees prepared a leaflet about the conference and distributed it U.S. PLASTICS CORPORATION outside the plant . The leaflet named Leonard DiOrio, Au- drey Parsons, John Robertson, Stephen Thompson, and John Comeau as the employees who had attended the con- ference . It accused Samuel Oren , Respondent's president, founder, and owner, "and his high priced Lawyers" of stall- ing the election in order to subvert the rights of Respondent's employees. On April 16 Leonard DiOrio was transferred from the first to the third shift. On April 19 James McCarthy, an extrusion department employee who had signed more than one authorization card, one as early as February 26, terminated his employ- ment. Whether he quit or was discharged is the threshold issue with respect to McCarthy posed in this record. On April 20 Respondent adopted a system of written warnings and issued the first one to Audrey Parsons. On April 23 a hearing was held at the Board 's Boston office in Case 1-RC-12640. Once again a group of employ- ees attended with Colella. Once again they all leafleted the plant later in the day. The leaflet listed the employees who had attended the hearing as Leonard DiOrio, John Rob- ertson, Rose Mary Sargent, Richard Needham, James Mc- Carthy, Alicia Ulloa, Audrey Parsons, Sharon Chesley, and John Comeau . Once again the theme of the leaflet was that Respondent was stalling in order to subvert the rights of its employees. Also on April 23 Local 42 filed a charge in Case 1- CA-9034. It alleged substantially the same violations as the charge in this case, with the exception of the discharge of Audrey Parsons, since, of course, Mrs. Parsons had not yet been fired. On April 24 a second written warning was issued to Au- drey Parsons . Written warnings were also issued to Leonard DiOrio and Richard Needham. On May I Audrey Parsons was discharged . That same day the Acting Regional Director issued his Decision and Direction of Election in Case 1-RC-12640. On May 10 Local 42 amended its charge in Case 1- CA-9034 to add the discharge of Audrey Parsons as an alleged violation of the Act. Sometime during the week of May 21 David Riemer, Respondent 's attorney , and Richard H. Hunt, business agent for Local 42 and Colella's superior, met to discuss settlement of the entire situation which had developed. They agreed that Respondent would recognize Local 42 voluntarily and offer to take back some but not all of the persons alleged as having been discriminatorily discharged in Case 1-CA-9034 and that Local 42 would withdraw its charge in that case and its petition in Case 1-RC-12640. On May 29 Respondent formally recognized Local 42 as the collective-bargaining representative of its production and maintenance employees by sending Local 42 a letter to that effect. On May 30 Samuel Oren announced to Respondent's employees that he had voluntarily recognized Local 42. On May 31 Local 42 requested withdrawal of Cases 1- RC-12640 and 1-CA-9034, and the latter was approved without prejudice by the Regional Director. That same day a petition was prepared and circulated in the plant which read: 327 We the undersigned employees of U. S. Plastics Corp. disagree and protest against the decision made yesterday, May 30, 1973, by Mr. Samuel S. Oren. We do not want the Teamsters Union, Local 42 to represent us. On June 1, when this petition continued to be circulated in the plant, the Regional Director issued an Order Vacating Decision and Direction of Election and Permitting With- drawal of Petition with Prejudice in Case 1-RC-12640, thus canceling the election scheduled to be held in that proceed- ing on June 5. Also on June 1 Respondent offered jobs as new employ- ees to Deborah Portrait, John Comeau, and Audrey Par- sons . Comeau subsequently returned to work. On June 5 Respondent formally withdrew recognition from Local 42 and filed a petition for an election in Case 1-RM-864. On June 20 a hearing was held in Case 1-RM-864. Sometime in late June (and again in late July) Respon- dent refused to hire Allen Parsons, Audrey Parsons' broth- er-in-law. On July 5 the Acting Regional Director issued a Decision and Direction of Election in Case 1-RM-864. On July 19, as a result of the filing of the original charge in this case the day before, the election scheduled for July 31 in Case 1-RM-864 was postponed indefinitely. On August 31, the day on which the charge was amended and the complaint issued in this case, the Regional Director issued an Order Vacating Decision and Direction of Elec- tion and Dismissing Petition in Case 1-RM-864. B. Credibility This record is crammed with credibility conflicts of the who-said-what-to-whom variety. In most instances I have attempted to indicate my resolution of them at the point in the sections which follow where the particular incident is taken up. However, the problem of their credibility is so pervasive in the case of two witnesses that a more extensive discussion of my reasons for discrediting them is in order at this point. The first, and most important, of these two witnesses is Samuel Oren . Oren is an extremely intelligent , highly edu- cated man who happens to speak broken English, so broken that it is , at times , difficult to understand what he says and, always, easy to underestimate him. It is obvious that any activities by Respondent in response to Local 42's organiz- ing campaign, even those in which supervisors other than Oren have been named by the General Counsel as the cul- prit, grow out of Oren's response to the campaign. Oren is the boss . Others in management take their lead from him. Oren stoutly denied making the statements attributed to him by witnesses for the General Counsel which, in my opinion , the key 8(a)(1) and (3) allegations of the complaint turn on. The picture presented of Oren by the General Counsel's witnesses was of a man whose response to every situation which developed between late January and late May was couched in union terms. Oren, at one point, con- ceded this was so , although his explanation was that he was 328 only kidding, thus: DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Costa) Did it ever happen that Mike Nappi and James McCarthy were standing together having a conversation , you walked over and said, this is no place to hold a Union meeting . If you want to hold one, go down to the Union Hall. Did you ever say anything like that? A. No, I never said it. The only one thing is, what I say, I have in my nature , when I am walking through the factory, I am always trying to especially, I am say- ing some time , you are talking to[o] much , don't you talk, you know, watch your extruders. You will talk later while you are making meetings . You know, do you need a president to your meetings . Things like that I am saying sometimes but about Union meetings you are holding , I really never have-I don't recall . I never had a discussion like that with Mike Nappi , with James McCarthy for sure because- Q. With anybody? A. -I am glad when they are watching the extru- ders. Q. With anybody? Did you ever, have that conver- sation with anybody? A. About the Union? No. It was like for lunchtime when either Nappi sitting in around a group , maybe I said, what is this a Union meeting or maybe I said it as a joke but not really-and they understand this. Do you need a president? Would you take me? In the conversation , if it's a Union conversation , maybe I did say it like that. But it 's really a joke, I say, play words and nothing of a serious thing. However , a more accurate insight into what went on in Respondent's plant is provided by a discharged supervisor, Harold Baker , who testified for the General Counsel. A rumor circulated through the plant that Respondent was thinking about moving to North Carolina. Baker, whose testimony I credit despite Respondent 's argument that the manner of his leaving Respondent's employ makes him a prejudiced witness unworthy of belief , revealed that Oren himself planted the rumor in order to check on Local 42's sources of information in the plant, thus: Q. What did Mr. [Oren] say to you? And what did you say to him? A. Well, he asked me, he said-he had mentioned this to me-he said "I want you to tell this to one person, Sharon Chesley, but just don't off and tell her. Go over and be-he said "Use a little-be diplomatic, use a little diplomacy"-I forget what he said, but he said "Just kind of bring it up, you know, in a way-tell her, you know, not to say anything to anyone. You know, just between you and her." He said "We wanted to see what happened ." Evidently , he wanted to see what-like, he would say something and, three or four days later , the Union would be standing out there with a paper-a little cartoon , something about- Q. Mr. Baker , just tell me, what was the conversa- tion you had with Mr. [Oren] about North Carolina? A. Well, he said he was going-this is how it all came up-maybe I'm not expressing myself right-I'm doing my best-best I can. But he said to me that he was going to move to North Carolina because he could get land down there for nothing. They's been trying to get him down there for a long time and the taxes-for so many years he'd have to pay no taxes and the labor down there would be cheaper. And he said he would close his factory if the Union kept bugging him before he'd let them in there, and move down there. Oren's interest, as revealed by Baker, in which employees were not signing authorization cards for the Union is also revealing . Local 42 distributed cards in ways which placed more than one in the hands of most, if not all, employees. Baker told how he brought to Oren unsigned cards turned over to him by employees who did not favor organization, thus: Q. And what did you do-were these blank cards? A. Right, with a letter, a letter in there. Q. And what did you do with the cards? A. I gave them to Mr. [Oren]. Q. Did he ask you for them? A. Well, more or less. I said-he said "These guys were you know, he always accused everyone-he never accused me of joining, of trying to get the Union in there, but he said "This guy-". I said "Well, look, these guys gave me the cards here. I'll get the cards." He said "Oh, that's good. Do that." So I got the cards and I said "Well-here's the cards." And, well, they must have gotten a card-a few of these guys who didn't sign-every two weeks or a month-and they brought them in a couple of times after and I said "That's okay. You don't have to do that anymore." Q. So, in other words, you were giving the cards to Mr. [Oren]- A. Yes one time, Then he said just to show him there was a card in the envelope with a person's name on it, I said "See, here's the card and everything. They didn't sign ; this one didn't sign, that one didn' t sign." Because he wanted to-he was telling me-if we ever do go on strike, he says, we have to have some people to run the factory. He says "We'll have the good peo- ple." Because I am convinced from his personality as well as the record as a whole that Samuel Oren did talk openly to his employees about the Union but was not candid with me about those conversations, I have discredited him wherever his testimony is in conflict with that of another witness. I have relied on his testimony only in those instances where facts are undisputed or his version is corroborated by the testimony of another witness. The other witness I have discredited is Audrey Parsons. In his effort to prove through authorization cards that Local 42 represented a majority of Respondent's employees, the U.S. PLASTICS CORPORATION 329 General Counsel had Mrs. Parsons testify about a card bearing her name . On cross-examination she admitted that she had deliberately lied about the card in a sworn affidavit she gave to a Board investigator . Because I do not, where there is a dispute about the facts, believe witnesses who testify before me under oath who have lied under oath at other times and in other places , I have also discredited Audrey Parsons generally. C. 8(a)(3) and Related 8(a)(1) Allegations 1. Kathy Spillane and Deborah Portrait The discharges of Kathy Spillane and Deborah Portrait on February 21 are alleged as violations of the Act. The General Counsel contends they were discharged in retribu- tion for signing authorization cards for Local 42 . Respon- dent contends they were discharged for absenteeism and bad work. A week before she was discharged Oren approached Miss Portrait at her machine . He asked her whether she had talked to the men from the Union. She said no. Oren said, "Don't let it bother you because you are not going to." Miss Spillane and Miss Portrait were among the first employees to sign authorization cards. They had worked for Respondent as second-shift packers for only some 6 weeks when they were discharged. Both had had some difficulty in acquiring dexterity in handling bags as they came from the machines in the conversion department , thus causing more waste than a normally skilled packer . In this respect, Miss Portrait 's record was poorer than Miss Spillane 's. Miss Spillane, on the other hand, had a poorer record than Miss Portrait with respect to attendance, caused by her problems in finding babysitters to stay with her 2-year-old son. They were informed of their discharges by their immediate fore- man on the evening of February 21. When they asked the reason , the foreman referred them to Oren. That evening Sharon Chesley, another employee in the conversion department , overheard William Boardway, manager of the department , instructing the foreman to dis- charge Miss Spillane and Miss Portrait at the end of the shift. A few minutes later, when Oren happened to walk through the department , Miss Chesley asked him if it was true Kathy and Debbie were getting fired . Oran answered yes. Miss Chesley asked why. Oren said because he had heard they had signed union cards . Miss Chesley, unaware that they had signed cards, said she knew for a fact that they had not . Oren said, "Well, that 's what's going to happen to anybody that signs a union card." Miss Spillane and Miss Portrait returned to the plant to pick up their checks on February 22. They asked to see Oren . Albert Rozzi , Oren 's assistant , summoned them to Oren 's office . (My findings as to what was said in this inter- view are based on Rozzi's testimony. The only important disagreement among the witnesses is over whether Oren or Miss Spillane first brought up the subject of the Union.) Miss Spillane asked why they had been fired. Oren told them because of their absenteeism and poor production. Miss Spillane asked if they were being fired because they had signed union cards . Oren told them no, he did not care what they did, "what you do outside is your business , inside is my business." Based on the testimony of Miss Chesley, I find that Oren was motivated , at least in substantial part , to discharge Kathy Spillane and Deborah Portrait on February 21 be- cause they had engaged in union activities. When he did so, Respondent violated Section 8(a)(3) and (1) of the Act. The words Oren spoke to Miss Chesley on February 21 also constituted a threat to discharge other employees for engaging in union activities , an independent violation of Section 8 (a)(1) of the Act. (The complaint also alleges an independent 8(a)(1) violation based on Miss Chesley's con- versation with Oren in that "Oren . . . inform[ed] employ- ees that the reason why certain other employees were fired ... was because of their Union activities." Such a charac- terization of the exchange is encompassed in the broader conclusion that Oren threatened to discharge employees.) The words Oren spoke to Miss Portrait a week before her discharge constituted coercive interrogation about her union activities, another independent violation of Section 8(a)(1) of the Act. 2. John Comeau The discharge of John Comeau on March 27 is also al- leged as a violation of the Act. In his case, Respondent contends he was discharged for not properly attending the extruders he was operating. Comeau was a group foreman , i.e., an extruder operator with responsibility over five machines, on the third shift. ("Group foreman" is a job title which lies at the heart of the unit and majority issues discussed in section E, below.) An extruder operator must stay near the extruder most, al- though not all, of the time. When he leaves, for example, to get a cup of coffee , he should return within a few minutes. On the night of March 26-27, Oren came to the plant twice during the middle of the night, a not unusual thing for him to do. In checking the extruders by looking at the closed- circuit TV screen in his office, he noticed that Comeau was not where he should be for periods of time he considered excessive . He returned to the plant again around 5:30 a.m. This time he checked on Comeau by peeking into the extru- sion department. He observed Comeau away from his ma- chine and talking to another employee, again for a period Oren considered excessive. Shortly after 7:30 a.m., end of the third shift, Comeau was lounging near the front stairs in the plant waiting for anoth- er man to leave with him when Oren came by. Oren began castigating Comeau . He told Comeau he was no good for the factory. He told Comeau he was not doing his work and had brought the Union into the shop. Comeau protested he had had nothing to do with bringing the Union in, he had not even known they were there until he saw them outside. Oren said the people in the shop seemed wild, the Union was going to be a downfall. He then asked Comeau why he liked the Union. Comeau said he had friends in it and union workers got benefits such as better pay and better holidays. Oren said, "Well, if you like the Union, why don't you let the Union get you a job? Who hired you, me or the Union?" Comeau said, "You did." Oren said, "Why do you like the Union?" Comeau pro- ceeded to tell him all over again. Oren said, "If you like the 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union so much, let the Union get you a job. You're fired." Pursuant to the deal worked out in late May between Local 42's top official and Respondent's attorney, Comeau returned to work in June as a new employee . Respondent gives its employees seven paid holidays, New Year's Day, Memorial Day, Fourth of July, Labor Day, Columbus Day, Thanksgiving, and Christmas. Employees do not receive holiday pay during their first 6 months. Comeau did not receive holiday pay for the Fourth of July, Labor Day, or Columbus Day, the three holidays which occurred between his rehire and opening of the hearing in this case. There is much testimony in the record going to the ques- tion of whether Comeau did or did not stay away from his extruders too long , thus neglecting his work and taking a chance of excessive loss to Respondent if the polyethylene bubble burst in his absence. I am not persuaded that he did although I have no doubt that Oren thought he did and thus was angry enough to lash out at him when Oren bumped into him just after the end of the shift. The significant thing about Comeau's discharge is, I think, that in this, as in all the incidents which occurred in the plant during the Febru- ary-June period, Oren saw the situation in terms of the Union's threat. He admitted, in his version of his argument with Comeau , that he accused Comeau of engaging in union activities instead of tending to his work, thus: ... in the morning I see that he is in the back room talking to-this is about 5:34-talking there in the back room. So, I didn't like it because our job is very dangerous and people don't have to leave their place. They must stay all the time. So, I come to him and I says, what is the big idea that you are not staying with your extruder, not watching them . Why are you run- ning around all the factory? What is that? Something you make propaganda for the Union or what? and took Comeau's dare to fire him for that reason, thus: He says yes, I do. I says, you can do everything you want for the Union, any propaganda but outside and not on our working time. He says, I love the Union. I've been in the Union and I do what I please. I says no, you cannot. So what, you want to fire me? I says, yes, you are fired. That's my conversation with him. So, go upstairs, take your card and get your pay. That's how it was like, my conversation with John Comeau. Oren also admitted that Comeau was a good worker up until the week he was discharged. When this is coupled with the words which Oren spoke to Comeau in discharging him, the conclusion is inescapable that he did so because he thought Comeau was neglecting his work to engage in union activities . Since it has not been established in this record either that Comeau was, in fact, neglecting his work or, in fact, engaging in union activities on company time in con- travention of a valid no-solicitation rule, it follows that Oren's motive was discriminatory within the meaning of the Act. Respondent, therefore, violated Section 8(a)(3) and (1) of the Act by discharging John Comeau on March 27. (An allegation of the complaint that Respondent, in the person of Oren, in February and March, "inform[ed] employees that they were being discharged because of their Union activities," thus independently violating Section 8(axl), is encompassed in the 8(a)(3) and (1) findings with respect to John Comeau as well as Kathy Spillane and Deborah Por- trait.) The complaint also alleges an independent violation of Section 8(a)(1) in that Respondent, on July 4, September 3 (i.e., Labor Day), and October 8 (i.e., Columbus Day), "fail[ed] to pay holiday pay to employees for the reason that they engaged in union activities." The only evidence ad- duced in support of this allegation is that with respect to Comeau. Since Comeau was denied holiday pay on the days in question not because he had engaged in union activities but because his status was that of an employee with less than 6 months' service, Respondent did not commit the offense alleged. In any event, holiday pay is part of the total required to remedy the discriminatory discharge of Comeau under the reinstate-and-make-whole portion of my recom- mended Order. I find, therefore, that Respondent did not violate Section 8(a)(l) of the Act by failing to pay holiday pay to employees because they engaged in union activities. 3. James McCarthy The complaint alleges Respondent discriminated against James McCarthy by eliminating overtime work for him on April 13 and discharging him on April 19. Unlike the other four employees named in the complaint as having been discriminatorily discharged, Respondent does not admit it discharged McCarthy. The issue posed in the record is whether he, in fact, quit. In the weeks prior to the termination of McCarthy's em- ployment, Oren frequently talked to him about the Union. During the week of March 12 Oren stopped McCarthy as he was walking from the coffee machine to his extruder. He asked McCarthy if he knew anything about the Union trying to get into the plant, whether he had signed an au- thorization card or attended any meetings . On Monday, March 26, the first workday after the union meeting on March 24 which is the subject of the surveillance allegation discussed in section D, 1, below, Oren talked to McCarthy about Stephen Thompson, the General Counsel' s witness for that incident. On March 27 Oren asked McCarthy if he knew who had put some prounion material on the bulletin board. A day or two later Oren asked McCarthy if he was going to a union meeting scheduled for Saturday, March 31. (Colella, Local 42's organizer, held weekly Saturday meet- ings of Respondent's employees during March and part of April, when his organizing efforts were at their peak.) When McCarthy replied yes, Oren said the Union was going to cause a lot of trouble for him and his employees, he loved the employees and did not want to see them hurt by the Union. Sometime during the week of April 2 or April 9 Oren approached McCarthy at the timeclock as he was punching out at 3:30 p.m. and accused McCarthy of posting a union leaflet which had appeared on the bulletin board a day or two before. McCarthy denied it. Oren insisted McCarthy had. McCarthy demanded Oren name his accuser. Oren refused. Both McCarthy and Oren lost their tempers. The upshot was a threat by McCarthy to see a lawyer if Oren did U.S. PLASTICS CORPORATION 331 not stop harassing him about the Union. On Friday, April 13, Earl Stickney , Respondent 's plant manager , instructed McCarthy not to come in for overtime work the next day. (The supervisory hierarchy in the plant runs from Oren to Rozzi to Stickney to Boardway to fore- men. Stickney has primary responsibility for the extrusion department ; Boardway, for the conversion department.) Stickney told McCarthy that Oren was cutting his overtime. When McCarthy asked why, Stickney said , "Well, you know how Mr. Oren feels about the Union and everything." (I credit McCarthy over Stickney as to this conversation without , however , discreding Stickney generally. My find- ings below, for example , with respect to Respondent's eco- nomic explanation for cutting back on overtime in this period are based on Stickney's testimony.) The following Monday, April 16, McCarthy stopped Oren as he walked by and asked Oren why his overtime had been cut . Oren said for the good of the company . McCarthy said he did not understand the explanation , he needed the overtime badly. Oren said the company was having too many expenses , if McCarthy did not like his decision, Mc- Carthy could complain to the Union. Overtime is normally scheduled on a voluntary basis on Saturday morning . In the extrusion department , the em- ployees engage in cleanup work and shut the extruders down for the weekend . In the conversion department, some of the bag-making machines are run, the number depending on how many operators want to work and how much pro- duction Respondent needs. In the period in question (not only with respect to McCarthy but also with respect to Audrey Parsons and Leonard DiOrio as to whom the com- plaint also alleges discriminatory elimination of overtime; see sections immediately following) Oren instructed Stick- ney to cut down on overtime because business was slow and expenses too high. On the morning of April 19 Oren broke up a conversation McCarthy was having with Michael Nappi , another extru- der operator . Oren asked them what they were talking about . They said something about the shop . Oren said, "This is no place to hold a union meeting . If you want to hold one , go to the Union hall." Later that day the incident occurred which led to the termination of McCarthy' s employment . There is no dispute that Oren and McCarthy got into a fight over the fact that McCarthy was producing rolls of polyethylene film which were heavier than the maximum figure allowed under Respondent's tolerances and was marking the weight they should have been instead of their actual weight on his pro- duction records . As in the case of John Comeau , there is much testimony about how heavy the rolls were and wheth- er McCarthy had been told to handle the paperwork as he was. All details about the merits of the argument are, in my opinion , irrelevant , for whether McCarthy was discriminat- ed against turns, first , on whether he was discharged or quit. McCarthy's version of the event was that , while he did tell Oren at one point he did not have to take any of "this bullshit," he only left when Oren "told me if I didn 't like it go around the Union hall and get out." Oren insisted he never told McCarthy to get out. In concluding that Oren did not tell McCarthy to get out but that, rather , McCarthy told Oren what he could do with his job and stalked out, I have relied on the testimony of Stickney, Foreman Michael Foley, and Larry Naselroad, a group foreman , all of whom were present during the latter part of the argument . Stickney and Foley, who were called as witnesses by Respondent , both testified that the exchange between Oren and McCarthy ended when McCarthy told Oren he could "take his [obscenity] job and shove it up his [obscenity]." More important, Naselroad, called as a wit- ness by the General Counsel to corroborate McCarthy's testimony that Oren had told him to get out, testified: "About all I could remember hearing was Mr. [Oren] yelling at Jimmy to, if he didn't like it that he could leave any time he wanted. He could just get out." This quote falls short of a direct order to McCarthy to get out of the plant. It is just the sort of line which would have led McCarthy to tell Oren to take his job and shove it. I find that McCarthy quit on April 19. McCarthy returned to the plant the next day and asked Oren for his job back. Oren told him to get out, he did not work there anymore , and Oren did not need him anymore. Oren also told McCarthy to go down to the union hall. Since McCarthy quit, the question of Oren's motive for acting toward McCarthy as he did on April 19 does not arise . I find Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging James McCarthy. However, the antiunion motive for denying him his usual overtime on April 14 is established by the words Stickney spoke to Mc- Carthy on April 13. I find, therefore, that Respondent vio- lated Section 8(a)(3) and (1) of the Act by denying James McCarthy overtime on April 14. As to the independent 8(a)(1) allegations of the complaint which are predicated on Oren's dealings with McCarthy, I find Respondent interrogated him about the union activities of Respondent 's employees, harassed him because of his union activities , and, in the conversation about the March 31 union meeting , impliedly threatened employees with re- prisals for engaging in union activities . Each is a violation of Section 8(a)(1) of the Act . (An allegation in the complaint that Respondent violated Section 8(a)(1) when Stickney and Oren "inform[ed] employees that their overtime work was being eliminated because of their Union activities" is en- compassed in the broader conclusion that McCarthy was discriminatorily denied overtime.) 4. Audrey Parsons The complaint alleges Respondent discriminated against Audrey Parsons by eliminating overtime work for her on April 12, issuing disciplinary warnings to her on April 20 and 24, and discharging her on May 1. While Respondent concedes she was discharged , it contends that her failing to work after May 1 was the result of a misunderstanding and not a unilateral decision by Respondent to terminate her. Unlike the other four persons discharged , Mrs. Parsons was one of the employees who led the organizing effort in the plant. (The Misses Spillane and Portrait did nothing more than sign authorization cards. Comeau and McCarthy did not attend conferences and/or hearings at the Board's regional office on behalf of Local 42 until after they were discharged or quit.) She held two of the Saturday meetings already referred to in her home . She went to the Board's 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston office with Colella on both April 11 and 23. On each of those days she subsequently helped Colella distrib- ute leaflets outside the plant which denigrated Oren in harsh terms. The General Counsel had Mrs . Parsons testify as to two incidents in March which would, if found, be independent violations of Section 8(a)(l). One , on March 17, involved harassment by Oren . The other , on March 24, involved interrogation by Foreman Curtis MacKay . Both Oren and MacKay denied that the incidents described by Mrs. Par- sons ever occurred . Since I have discredited Mrs. Parsons generally , there is no evidence in the record that Oren and MacKay committed the acts alleged . Consequently, I make no findings of fact as to either of these two incidents. On April 12, the day after Mrs. Parsons attended the conference in Boston in connection with Case 1 -RC-12640 and then helped leaflet the plant, both Stickney and Board- way spoke to her . My findings as to each conversation are, of course , based on the testimony of Stickney or Boardway and not on the testimony of Mrs . Parsons. Stickney stopped by Mrs. Parsons' machine and said, "How's everything going this morning?" Mrs. Parsons said , "You mean with the machine?" Stickney said, "Yes." Mrs. Parsons said , "Everything is fine , but I'm surprised you're talking to me." Stickney said, "Well, why wouldn't I be?" Mrs. Parsons said , "Well, now that it's out in the open, I'm supporting the union , I didn 't think you'd speak to me at all." Stickney laughed and said , "Well, I know everybody's entitled to their own opinion . That's your opinion . It doesn't have to me mine ." They chatted for a few minutes, and Stickney walked away. Boardway, that day, talked , to her about staying by her bag-making machine and not wandering away when the roll of polyethylene film which is fed into the machine was being changed. He did not tell her she would be in trouble if she was caught wandering around "because the company knows you 're for the Union." On April 13 Boardway told Mrs. Parson not to come in for overtime the next day. On April 20 Mrs . Parsons was given a written warning which read: Subject : Excessive Absenteeism and Tardiness In the month of April 1973 you have been absent from work a total of four days, arrived late six days and have left early other days. All of these absences have been unauthorized. Therefore , if you are again absent one more day without authorization , you will be discharged. On April 23 Respondent posted the following notice near two telephones in its plant: To: All Personnel Subject: Telephone Calls All emergency calls are to go through the office. The two pay telephones in extrusion and shipping -dock are to be used during breaks and lunch time . They are not to be used during working hours. Warnings will be given to those who do not obey this rule. After the second warning , you will be discharged. Al Rozzi Controller On April 24 Mrs. Parsons went to one of the telephones during worktime , read the notice , and made a call. Later that day she was issued a second written warning: Subject: Violation Notice # I At approximately 11:25 a.m. on April 24, 1973 you knowingly violated the policy of U. S. Plastics Corp. pertaining to pay telephone usage . Prior to making the call you reread this policy that is posted by the tele- phone and disregarded this policy. Let me remind you that continued violation of U. S. Plastics Corp . policies is ground for discharge. The facts surrounding Mrs. Parsons ' discharge are essen- tially undisputed, including the tenor of her final telephone conversation with Oren on May 1. The only important fact at issue is whether, as Mrs. Parsons testified , Oren said to her specifically, "You're fired ." Since I have discredited Mrs. Parsons in all respects , I find that he did not. My findings as to what was said are a paraphrase of the remain- der of what Oren and Mrs . Parsons testified passed between them. Mrs. Parsons has a small child. Because of babysitter problems , she was frequently late or absent . She was off sick on Monday, April 30. The next morning she called the plant to report that she would be late because her babysitter had not shown up on time . She talked to Oren. Oren told her not to bother to come in at all . Oren intended merely to convey the idea that he was bothered by her lateness and that, as long as she was going to be late anyhow, Respondent could get along without her services that day. Because of Oren's difficulty in communicating in English , Mrs. Parsons under- stood him to mean that she was discharged . Consequently, she did not attempt to go to work thereafter. (Why she failed to respond to Respondent 's offer of rehire in June following the abortive settlement between Respondent and Local 42 is unexplained in the record.) As with Kathy Spillane, Deborah Portrait, and John Co- meau, the issue with respect to Mrs . Parsons' discharge is whether Oren was motivated by her union activities . Since, unlike the other three, there is no direct evidence (even in Mrs. Parsons ' version of the words Oren spoke to her on May 1) stemming from the discharge incident on which to base such a finding , the issue must turn on whether other evidence of Respondent's treatment of her will support such an inference . The only such evidence relates to the two written warnings she received. Rozzi decided to set up a formal written warning system U.S. PLASTICS CORPORATION in 1973 after he became aware of Local 42's organizing activities . (Prior to the warning issued to Mrs . Parsons on April 20, the only written warning issued to an individual employee, as distinguished from admonitions addressed to all employees and posted on the bulletin board, was one given Leonard DiOrio in May 1970.) Oren admitted that the system was adopted in response to union activities in the plant, thus: Before [the organizing campaign began] they was told by saying, and then they start to give them hell, from this time the union activity start to be and they stopped to listen to us. They stopped to listen , my workers. You say to them, why you are not coming in, I was busy, and they feel themselves very, very free. That's why they forced us to start to write warnings. Since Respondent adopted a system of written warnings to discipline its employees for asserting their right to self- organization and issued the warnings alleged in the com- plaint (see also the sections on Leonard DiOrio and Richard Needham which follow) pursuant to that purpose, I find Respondent violated Section 8(a)(3) and (1) of the Act when it issued written warnings to Audrey Parsons on April 20 and 24 . However , I do not find in the issuance of these warnings sufficient evidence of animus against Mrs. Par- sons because of her role as a union leader to outweigh the fact that her ceasing to work for Respondent on May 1 was, in fact, the result of a misunderstanding and not a deliberate effort by Oren to get rid of her. While the issue is a close one, I do not think the General Counsel has sustained his burden of proving Respondent's discriminatory motive even when all the evidence of other unfair labor practices committed by Respondent is thrown into the scales on Mrs. Parsons' side. I find, therefore, that Respondent did not violate Section 8(a)(3) and ( 1) of the Act by discharging Audrey Parsons on May 1. As to Mrs. Parsons failure to work overtime on April 14, there is nothing even in her version of what Boardway said to her about not coming in to indicate a discriminatory motive. Moreover, I credit the testimony of Stickney that the basic reason for cutting down on overtime in this period was economic and the testimony of Boardway that his rea- son for telling her not to come in on April 14 was lack of work. Therefore, I find Respondent did not violate Section 8(a)(3) and (1) of the Act by denying overtime to Audrey Parsons on April 14. I also find the General Counsel has failed to prove Re- spondent, in the persons of Samuel Oren and Curtis Mac- Kay, committed independent violations of Section 8(axl) by harassing Audrey Parsons on March 17 or interrogating her on March 24. In addition, I find Respondent, in the person of William Boardway, did not violate Section 8(axl) by threatening employees with retaliation because of their union activities , threatening employees that Respondent would be more strict with its employees if the Union got in, and interrogating employees concerning their union activi- ties. 5. Leonard DiOrio 333 The complaint alleges Respondent discriminated against Leonard DiOrio by denying him overtime on March 24, transferring him from the first to the third shift on April 16, and issuing a disciplinary warning to him on April 24. Re- spondent contends it was not discriminatorily motivated when it transferred him. DiOrio, like Audrey Parsons, was one of the leaders of the organizing campaign. He signed the first authorization card. He went to the Board's Boston office with Colella and sub- sequently helped leaflet the plant on April 11 and 23. More important, as my findings with respect to conversations between Oren and DiOrio on January 29 and 30 establish, Oren thought, incorrectly, that DiOrio was responsible for contacting Local 42 in the first place. DiOrio, a third-shift group foreman, was originally hired to work on the third shift in 1963. He left and returned on a number of occasions, each time working on either the second or third shift until, on July 6, 1971, he was transfer- red to the first shift. At the time, DiOrio was courting Oren's private secretary. (The issue which aroused the most passion at this long and difficult hearing was whether Oren transfer- red DiOrio at the request of Oren's secretary in order to promote the romance. I make no finding because the point is immaterial . DiOrio married the lady in November 1972. In the interest of simplicity, I refer to her as Janet or Mrs. DiOrio regardless of the time in question.) Leonard and Janet DiOrio both quit on July 15, 1971, for reasons which are irrelevant to this case. She returned on August 21, 1972, and left for good on January 15, 1973. He returned on November 15, 1971, and went to work on the first shift. He worked on the first shift from that time until April 16, 1973. On January 29, the day DiOrio talked to Colella outside the plant, Oren came to DiOrio's extruder and asked him how many rolls he had left to wind. DiOrio said two. Oren said that, when DiOrio was finished, he did not want DiOrio to work for him anymore. DiOrio asked why. Oren said because he had something to do with the Union. DiOrio denied it . Oren told DiOrio to get his check. He said he would fix it so that DiOrio could collect unemployment. DiOrio asked if there was a problem because of the Union. Oren said that, if DiOrio engaged in union activities, he could not work there. DiOrio went to Rozzi's office to get his check. He told Rozzi what had happened. While DiOrio was waiting for his check, Oren went into Rozzi's office. DiOrio was sum- moned into the office a few minutes later. DiOrio again protested that he had had nothing to do with the Union. After a short discussion, Oren told DiOrio to go back to work until Oren found out he did. The next day, January 30, Oren told DiOrio he had heard Mrs. DiOrio had sent the company's Christmas list to the Union. DiOrio denied it, pointing out that his wife did not even work there anymore. On the morning of Saturday, March 24, the day of the alleged surveillance incident covered in section D, 1, below, when DiOrio was on overtime, Oren asked DiOrio if he was going to the union meeting that afternoon. DiOrio said no, he did not want to be fired. Oren turned to Stickney and told him to send employees home. Stickney sent DiOrio home 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around 10 a.m. (The record is unclear as to just who or how many employees were sent home at this time . This finding is based on the testimony of DiOrio, which I credit, that he knew Stickney sent him home on Oren's instructions be- cause "Mr. Oren was standing right there and he told Mr. Stickney to send us all home." Stephen Thompson is the only other employee who testified he was sent home early on March 24. He was instructed to leave by Boardway. DiOrio testified Thompson, Comeau, and "another fellow, I don't know his name," were sent home in addition to himself . There is no explanation of why the General Coun- sel has failed to allege discrimination against other employ- ees sent home that morning. He did amend the complaint to allege an independent 8(a)(1) violation by Respondent in the person of Boardway.) On March 27, a few minutes after John Comeau was discharged, Oren came to DiOrio's extruder and began up- braiding him about the Union. DiOrio protested that he had nothing to do with the Union. Oren said, "Well, I heard that you and your wife sent a Christmas list in." DiOrio said, "You're wrong, Mr. Oren." He threatened to have his lawyer write a letter to Oren if Oren did not stop yelling at him about the Union. On two occasions in the first half of April while DiOrio was still on the first shift, Stickney said to him, as he walked past DiOrio's work station, that he knew DiOrio was the instigator of the Union. DiOrio said he was not. On the morning of April 16 Oren sent DiOrio home, telling him to return that night for the third shift. Two of the three persons who were in the area when Oren spoke to DiOrio testified in addition to DiOrio about what was said. They are Rozzi and David Rosman, supervisor on the ship- ping dock. Joe Broniatowski, an employee who was working with DiOrio that morning, was not called as a witness, a fact to which I attach no significance . Mrs. DiOrio testified about a phone conversation with her husband and Rosman just after Oren spoke to DiOrio. None of the witnesses to the conversation claims to remember everything that was said. None of their acounts is inherently inconsistent with the others. Consequently, my findings as to what happened are a synthesis of the testimony of all. DiOrio had been assigned to help load a truck on the morning of April 16. (This was not an unusual assignment for DiOrio while he was on the first shift. When DiOrio transferred from the third to the first shift, he dropped back to operator status, then, at Stickney' s request because of his special talents and experience, to swing man in the extrusion department and, finally, again at Stickney's request, to swing man throughout the plant.) At breaktime, DiOrio used the phone on the dock to call his wife, apparently a daily custom. Rozzi happened to be in the area conferring with Rosman about the shipment being loaded at that mo- ment . Enter Oren. Oren told DiOrio he wanted to talk to him. DiOrio ended his conversation with Mrs. DiOrio and hung up. Oren in- structed DiOrio to punch out and go home so that he could return that night on the third shift. DiOrio protested. Oren explained that he needed a group foreman in the extrusion department and DiOrio was the only employee immediately available to fill the job. DiOrio said his wife would kill him. He explained that his wife was apprehensive about being alone at home at night. Oren told DiOrio he was the bread- winner in the family and should, therefore, be prepared to stand up to his wife like a man . Oren said he would transfer DiOrio back to the first shift in a couple of weeks, as soon as he could find somebody else and train him for the job. DiOrio continued to protest that Oren should transfer any- body other than him because going back to the third shift placed him in an impossible position with his wife. Oren finally ended the argument by ordering DiOrio to do as he had been told. He said, "If you don't want to go on the third shift, have the Union get you a job." DiOrio elected to go on the third shift. He was still on it at the time of the hearing. As soon as Oren left the shipping dock, DiOrio called his wife and told her he had been transferred. Mrs. DiOrio protested. DiOrio put Rosman on the telephone to explain that DiOrio had had no choice. Rosman told Mrs. DiOrio what Oren had said about the transfer being only tempo- rary. Sometime in the last half of April, DiOrio had a series of three conversations with Curtis McKay, third-shift foreman in the extrustion department, about soliciting for the Union in the plant. There is no dispute between DiOrio and Mac- Kay that these conversations took place and little as to what was said . MacKay denied he told DiOrio specifically that he would be fired. MacKay testified DiOrio was actually passing out cards and leaflets rather than merely carrying them, as DiOrio testified. As to these details, I have credited DiOrio over MacKay. On the first occasion, DiOrio walked into the plant with some blank authorization cards he had picked up from Co- lella. MacKay saw the cards as DiOrio was putting them into his lunchbox. MacKay said, "If you get caught passing those cards around, you're going to get fired." DiOrio said he was not passing them around but if anybody wanted a card they could have one. The next day MacKay told Di- Orio the same thing with respect to some union leaflets DiOrio carried into the plant with him. Once again, DiOrio said he was not passing them around. A couple of days later, MacKay again approached DiOrio as he came into the plant to go to work. MacKay said, "You know, if you gave up this whole Union, the people would give it up too." DiOrio said, "I have no control over the people. What they do is their business." Near the end of the third shift on April 17 DiOrio went to the top of one of the extruders to change the treater paper. (The size and complexity of the line of integrated machines known collectively as an extruder are treated in somewhat greater detail in section E, below. Suffice it to say at this point that DiOrio climbed stairs to a level well above floor level to carry out his chore.) When he had finished he called down to Foreman Jack Allen to turn the treater back on. The treater did not get turned on. Three rolls of polyeth- ylene film were ruined before the oversight was noted and corrected. Consequently, Respondent issued the following written warning to DiOrio on April 24: Subject: Spoiled Merchandise On April 17, 1973, you ruined three rolls (10% of your production) because you neglected to turn on the treater. You have had excessive waste problems in the past and it must stop. You have been employed at U.S. U.S. PLASTICS CORPORATION 335 Plastic Corp. for approximately seven years (off and on). Therefore, you are well knowledgeable of proce- dures that must be followed. Hence if this spoiled merchandise happens again without good reason, you will be discharged. Respondent's plant closed down for vacation the first week in July. Just before the vacation period, Oren ap- proached DiOrio in the extrusion department. He told Di- Orio that, if DiOrio would give up the Union, he would transfer him to the first shift after vacation . When DiOrio returned from vacation he showed up for the first shift. He told Stickney that Oren had told him he would be on the first shift. Stickney checked with Oren. He reported back to DiOrio that Oren said he was still on the third shift. A few nights later , when Oren made one of his frequent nocturnal visits to the plant, DiOrio asked why he had not been trans- ferred . Oren said because he was still needed on the third shift. The issue of whether Respondent transferred Leonard DiOrio from the first shift to the third shift on April 16 in retaliation for his union activities or because it needed him on the third shift generated more testimony in this record than any save only the issue of Local 42's majority. At the end, it came down to a haggle over the details of Mr. and Mrs. DiOrio's romance, facts which obviously have no bear- ing on why Oren acted as he did on April 16. If the parties had not elected to fight so hard over what strikes me as a relatively trivial change in DiOrio's conditions of employ- ment, the whole thing might be dismissed as a tempest in a teapot. I am not persuaded that the General Counsel has estab- lished Respondent's discriminatory motive by a preponder- ance of the evidence . Respondent 's need for an experienced group foreman in the extrusion department that day is un- controverted. It is uncontroverted that DiOrio had become a plantwide swing man on the first shift , filling in when needed at such unskilled jobs as loading trucks and thus not utilizing his skill as an extruder group foreman , the nonsu- pervisory job (see section E, below ) calling for the highest technical skill in the plant. That DiOrio was hired and worked most of his career on other than the first shift is admitted . It is uncontroverted that there was no other first shift employee of comparable skill who had not been hired specifically for the first shift and thus had a more valid objection than DiOrio to an involuntary transfer to the third. That DiOrio was told the transfer was only temporary indicates Respondent gave some weight to his protest on April 16 and only insisted on having its way because it had no satisfactory alternative. That DiOrio was not, in fact, transferred back to the first shift is explained by the filing of the charge in Case 1-CA-9034 on April 23 in which DiOrio 's transfer is specifically alleged as a violation of the Act. When charges are filed during organizing situations, positions harden , for reversal of the action complained of becomes a propaganda point for the other side. The only solid bit of evidence supporting a theory that Respondent was discriminatorily motivated is Oren's statement to Di- Orio "if you don't want to go on the third shift, have the Union get you a job." It is simply another example of Oren's propensity during this period to react to any situation in- volving his employees in terms of their union activities. While it shows Oren had the Union on his mind when he spoke to DiOrio, it is insufficient to prove that his thoughts about the Union played any substantial part in his decision. I find, therefore, Respondent did not violate Section 8(a)(3) and (1) of the Act by transferring Leonard DiOrio from the first to the third shift on April 16. For the reasons already set forth in section 4, above, I find Respondent violated Section 8(a)(3) and (1) when it issued a written warning to DiOrio on April 24. I also find Respondent violated Section 8(a)(3) and (1) by denying DiOrio overtime when it sent him home early on March 24. Its motive is established by the fact Oren asked DiOrio about his union activities and immediately ordered Stickney to send him home without any intervening circumstances which might establish a nondiscriminatory reason for no longer needing his services that morning. (The allegation that Respondent committed an independent 8(a)(1) viola- tion when employees were sent home on March 24 is en- compassed in the 8(a)(3) finding with respect to DiOrio. See section entitled "Remedy" below.) As to independent 8(a)(1) allegations in the complaint which are predicated on DiOrio's experiences, I find Re- spondent committed violations when Oren harassed and interrogated Leonard DiOrio on January 29 and 30 and March 24 and 27 and when Oren promised DiOrio a benefit (transfer to the first shift) in late June if he would refrain from union activities. I also find Respondent violated Sec- tion 8(a)(1) when Stickney, in early April, harassed DiOrio by accusing him of being the instigator of the organizing campaign and when MacKay, in late April, threatened him with discharge for bringing union cards and leaflets into the plant. An allegation that MacKay "blame[d] employees for bringing the Union in at Respondent's plant" is, I assume, predicated on the third of MacKay's three conversations with DiOrio. I find no violation in MacKay's suggestion others would follow DiOrio if he gave up the Union. 6. Richard Needham The only discrimination alleged against Richard Need- ham in the complaint is a disciplinary warning issued on April 24. (The General Counsel produced no evidence in support of an allegation that another such warning was issued to Needham on May 7. I granted Respondent's mo- tion to strike at the conclusion of the General Counsel's case.) Richard Needham took off on April 23 to accompany Colella to the Board's office in Boston. When he called the plant that morning to report that he would not be in, Oren answered the phone. Needham told Oren where he was going . Oren said the only time an employee could take off was when he was sick. When Needham came to the plant the next morning, his timecard was missing from the rack . Needham looked up Stickney. Stickney took Needham to his office where he gave Needham the following written warning dated April 23: Subject: Excessive Absenteeism 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You were absent from work on Monday , April 23rd, without authorization . Calling in one-half hour after your shift starts is not considered an approval. Therefore , if you are out one more day without au- thorization , you will be discharged. Later that morning Curtis MacKay asked Needham if he was for the Union. Needham replied, "Definitely." A few minutes later he was sent to the shipping department, where he worked for the balance of the day. Two or three days later MacKay said to no one in particu- lar, as he passed Needham in the plant, "There goes the Union steward." For reasons already set forth in section 4, above, I find Respondent violated Section 8(a)(3) and (1) of the Act when it issued a written warning to Richard Needham on April 24. I find MacKay did not interrogate Needham about his union activities in violation of the Act when he asked him his views on April 24. MacKay's words conveyed nothing more than idle curiosity. Like similar queries he admitted putting to several other employees on other occasions, they were part of the normal exchange between a first-line super- visor and a man he worked closely with and thus were not coercive. I also find nothing coercive in MacKay's referring to Needham in a bantering manner as the union steward. The General Counsel elected to allege Needham's trans- fer only as an 8(a)( 1) harassment rather than as an 8(a)(3) and (1) discrimination. Regardless of the point of view from which it is viewed, there is no merit to it. There is no dispute that Respondent must occasionally transfer a machine op- erator to the shipping dock for a day or so in order to help the shipping department's lone foreman and lone rank-and- file employee load or unload a truck. If Respondent did harass Needham on this occasion by selecting him, it must be shown that Respondent was motivated by antiunion ani- mus. There is no evidence to support such a finding. Even if MacKay's innocuous question to Needham a few minutes before the transfer is given all the weight it will bear, there is still no evidence. The record does not show to whom, if anybody, MacKay relayed the fact that Needham was ad- mittedly a union supporter. Neither does it show who made the decision to transfer Needham. For that matter, it does not even show who told MacKay to go to shipping, for MacKay could not recall who gave him the order. I find, therefore, that Respondent did not commit an independent 8(a)(1) violation of the Act by harassing Richard Needham on April 24. 7. Allen Parsons As originally issued, the complaint alleged that Respon- dent discriminated against Allen Parsons, Audrey Parsons' brother-in-law, 1. refusing to hire him on April 23 and July 31. After Parsons stoutly insisted, through direct, cross, and redirect examination , that his crucial interview with Oren took place in June, I granted the General Counsel's motion to amend the complaint from April to June. The circum- stances leading up to that amendment make it impossible to find any merit to this allegation. Parsons' version of his first interview with Oren on one of the several times he want to the plant to apply for work was that he identified himself as Mrs. Parsons' in-law and Oren turned him down by saying "we're having enough trouble now; we don't need any more Union followers." The problem is not that I credit Oren's denial he spoke these words, for I do not. The problem is that I cannot credit Parsons either. Parsons' reason for insisting this interview took place when he went to the plant in June and not on April 23 was that he specifically remembered that his sister Phyllis, who quit to get married on April 20 and was not rehired until late June, and sister-in-law Audrey, who was discharged on May 1, were not employed by Respondent at the time. However, there is in evidence an affidavit taken from Parsons by Colella on May 5 which places the interview on April 23 and attributes the same remark to Oren. I have no reason to doubt the date on the face of the affidavit. On the other hand, I have no reason to reject Parsons' own testimony as to when he got such a response from Oren. In order for Oren's remark to be evidence on which to base a finding that he was discriminatorily motivated when he refused to hire Parsons, I would have to find the remark was written down in an affidavit before it was made, an impossible conclusion. Since there is no credited evidence on which to find a discriminatory motive, I find Respondent did not violate Section 8(a)(3) and (1) of the Act by failing to hire Allen Parsons in June and July. The General Counsel has alleged as independent 8(a)(1) violations Respondent's refusal to rehire Stephen Thomp- son and Sharon Chesley. Thompson quit in April. He went to the plant in July and applied for rehire. The only person he spoke to was a receptionist. He did not get a job. I find the General Counsel has failed to prove Respondent violat- ed the Act by refusing to rehire Stephen Thompson. (I re- jected the General Counsel's offer of proof that, if permitted to testify about what the receptionist told him, Thompson "would testify that this secretary told him that Mr. Oren did not wish to rehire him because he had been involved in union activity." I hereby deny the request in the General Counsel's brief that I reverse this ruling.) Sharon Chesley quit in May and moved to Florida in June. Before she left she asked John Robertson, an employ- ee, to ask Boardway whether she could return to work. Robertson went to both Boardway and Oren. I credit Rob- ertson over Boardway as to their conversation. (Boardway simply testified he could not recall Robertson ever asking him about Miss Chesley.) Boardway told Robertson Miss Chesley could not come back because she was in with the Union. Oren simply told Robertson no. Around September 21 Miss Chesley, who had moved back to Lynn, ran into MacKay in the Dubonnet Cafe. I credit Miss Chesley over MacKay as to what they said to each other. (Both testified that they chatted in a friendly fashion for an extended time. MacKay's version of what follows is that he urged Miss Chesley to go to Oren for a job and she demurred on the ground she was for the Union.) She told MacKay she was on her way to the plant to apply for a job. MacKay asked her whether she had ever signed a union card. When she said yes, MacKay told her to forget it. U.S. PLASTICS CORPORATION 337 The General Counsel does not contend John Robertson applied for a job on Miss Chesley's behalf in June. I find she did not apply for a job by talking to MacKay in Septem- ber. Therefore , I find the General Counsel has failed to prove Respondent violated the Act by refusing to rehire Sharon Chesley . However , I do find Respondent violated Section 8(a)(1) by threatening its employees with retaliation for engaging in union activities when Boardway told Rob- ertson that Respondent would not rehire her, in the event she did apply , because she was in with the Union. D. Other 8(a)(1) Allegations 1. Surveillance Another issue which generated considerable heat during the hearing was whether Samuel Oren engaged in surveil- lance of a union meeting on the afternoon of Saturday, March 24 . Colella held one of his regular Saturday meetings that afternoon at Local 42 's office in Lynn . Stephen Thomp- son testified that, when he arrived for the meeting, he ob- served Oren and his son -in-law , Michael Mades , sitting in a car some 75 yards away on the parking lot of a cafe. Oren and Mades both denied being there. March 24 , it will be recalled , was the day on which Di- Orio, Thompson , and others were abruptly sent home in mid-morning by Oren . Sometime that morning (whether before or after Thompson was told to go home is unclear) Oren approached Thompson and asked him if there was a union meeting that afternoon . (While , as discussed in more detail below , I do not credit Thompson as to actual surveil- lance, I have not discredited him generally .) Thompson said yes. Oren told Thompson that , if he attended , he would be fired . Thompson told Oren to go to hell and walked away. Thompson attended the meeting . He was not fired. On Monday, March 26 , Oren told James McCarthy he had fired Thompson and, if he found whoever else was involved with the Union , he would fire them too. As to whether Oren engaged in surveillance of a union meeting, I credit the testimony of Mades that Oren was not parked outside Local 42's office over Thompson 's testimony that he was . Mades, in addition to being Oren 's son-in-law, is a manufacturer 's representative for Respondent as well as other companies . His testimony is, obviously , subject to the suspicion of bias and prejudice . I credit him over Thomp- son, nonetheless , for a number of reasons . Thompson alone of the several witnesses who attended the March 24 meeting testified that he saw Oren across the street . Thompson ap- parently raised no hue and cry at the meeting about Oren sitting outside and spying. Thompson referred to the car in which he saw Oren and Mades as Oren 's car and described it, yet his description did not jibe with the appearance of Oren's car . Therefore , I find Respondent did not violate Section 8(a)(1) by engaging in surveillance of its employees' union activities on March 24 . However , I do find that Re- spondent interrogated employees and threatened them with discharge for engaging in union activities in violation of Section 8 (a)(1) when Oren spoke to Thompson on March 24 and McCarthy on March 26 in incidents related to the March 24 union meeting. Two other portions of the record relate to other allega- tions of the complaint that Respondent gave employees the impression of surveillance. On February 1, the day after Colella first leafleted the plant , Oren accused Michael Nappi , an extruder operator of passing out leaflets. A few days later, Oren approached Nappi and said, "I hear you are with this union thing." Nappi said , "No, I am not with any union thing." Oren said , "Well, I have heard it from other people that you are associated with the Union and their goings on." Nappi said , "No. Whoever said that to you, bring them to me right now and have them tell me to my face , and you'll find out who the liar is , them or myself , because I have nothing to hide . If you do, they won't come." Oren said, "All right," and walked away. Thereafter, Oren frequently talked to Nappi in antiunion terms. One such occasion was the incident on April 14 already de- scribed in section C ,3, above , when Oren broke up a conver- sation about work between McCarthy and Nappi by telling them to hold their union meetings at the hall. A day or two before Saturday , April 7, Robert Black, a third-shift employee , accepted a union leaflet as he entered the plant . He stuck it into his pocket . The next morning, a first-shift employee asked if he had seen the leaflet . He told her he had and pulled out the copy he had in his pocket. He showed it to her. On April? Oren took Black into an office in the produc- tion area and accused him of passing out leaflets for the Union . Black was puzzled at first but then remembered what had happened a day or two earlier . Black laughed and explained . Oren said, "Well, I do not want you passing out any more propaganda , and if you do not like it, you can leave." I find Respondent violated Section 8(a)(1) of the Act by creating the impression that it had the union activities of its employees under surveillance when Oren accused Nappi and Black of passing out leaflets for Local 42. I also find in Oren 's treatment of Nappi and Black further 8(a)(1) viola- tions in that Respondent harassed its employees. 2. The promise of promotion In May Oren summoned John Robertson to his office. In the course of a discussion about the good and bad points of unions, Oren told Robertson he would promote him to group foreman if the Union did not get into the plant. If it did, he said , that would be a different story . I find Respon- dent committed an 8(a)( 1) violation by impliedly promising a promotion to an employee if he would refrain from engag- ing in union activities when Oren made this remark to Rob- ertson. 3. The threat to move the plant The most revealing insight into Oren 's reaction to Local 42's campaign to organize his employees was provided by Foreman Harold Baker . Baker was discharged in July as the result of an argument with Oren over his pay . The argument culminated in Baker 's grabbing Oren 's necktie and giving it a jerk . Despite Baker 's frank admission that he was angry when he left Respondent and the undisputed testimony of Albert Rozzi that Baker told him, as Baker was leaving, that he was going to "fix" Oren by making a lot of trouble for him on the "petition," I credit Baker. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker related many conversations with Oren about the organizing campaign , starting as early as January. In the first instance , Oren instructed him to keep an eye on the employees and get rid of those who supported the Union. Thereafter, he discussed various employees in terms of Oren's having learned they were prounion and instructing Baker to find some pretext to get rid of them . Baker ignored these instructions . At other times , Oren told Baker to find out whether employees had signed authorization cards. Baker did so by asking the employees . It was in this context that Baker gave the second of the two portions of his testi- mony I have set forth verbatim in the section entitled "Cred- ibility" above. Oren also told Baker to find out whether employees were attending union meetings , and Baker did so by asking them . Baker also told employees they would get a raise if the Union failed to get in. The only subparagraph of the written complaint which refers to Baker alleges that he "and Curt MacKay, in or about April, 1973, promis[ed] employees that they would not be harassed if they inform Samuel Oren that they no longer supported the Union." There is nothing in any of the testimony by or about Baker or MacKay to support such an allegation . I find , therefore , Respondent did not commit an independent 8(a)(1) violation in such a manner . (Similarly, there is no evidence in the record to support an allegation that Oren "inform[ed] employees who were supporting the Union that he would not hire their relatives because he did not want additional supporters of the Union to be em- ployed." I also find Respondent did not commit an inde- pendent 8(axl) violation in this manner.) The General Counsel did not elect to amend the complaint during the hearing to allege interrogation and promise of benefit as 8(axl) violations by Respondent in the person of Baker because , I assume , he considered such findings accumula- tive. Consequently, I make no such findings although, obvi- ously, they would be supported by the record. The General Counsel moved to amend the complaint during the hearing with respect to Baker in only two re- spects. One was to add his name to those of Rozzi, Stickney, and Boardway in the subparagraph which alleges circula- tion of the antiunion petition, the subject of the next section. The other was to add an allegation that "Harold Baker did tell employees that Respondent would move to North Caro- lina if the Union got in." The facts with respect to that facet of Baker's activities are as follows: Oren noticed that things which happened in the plant became the subjects of union leaflets handed out at the gate a few days later. In order to test this phenomenon, Oren told Baker to tell Sharon Chesley, in confidence, that Oren was being wooed by authorities in North Carolina with offers of free land, low taxes and cheap labor and he would accept them and move the plant to North Carolina if the Union got in. Baker did as he was instructed. Sure enough, the rumor surfaced in a short time. Oren then instructed Baker to tell the same thing to other employees . Baker did so. I find Respondent violated Section 8(a)(1) by threatening to move its plant to another state when Baker told employees Re- spondent would move to North Carolina in the event the Union got in. 4. The antiunion petition The one facet of this case about which there is no dispute in the record is Respondent's role in the initiation and circu- lation of the antiunion petition on May 31 and June 1. Immediately following Oren's announcement to the em- ployees on May 30 that he had decided to recognize Local 42, Harold Horton, the maintenance man who had started the whole thing by first contacting Angelo Colella, Local 42's organizer, discussed the situation with Arthur Herrera, another employee. They decided that they did not like the fact that Oren had acted unilaterally when the election in Case 1-RC-12640 was due to be held in less than a week. Consequently, Horton went to the office on May 31 and talked to Rozzi. Rozzi agreed with Horton's point of view. They decided between them that the best way to proceed was to circulate a petition in the plant protesting Oren's decision. Horton asked Rozzi to put it into words. Rozzi agreed to do so. As a result, a petition couched in the terms set forth in the section entitled "Chronology" above was drafted by Rozzi and typed in his office. While this was being done, Herrera also went to the office and talked to Rozzi. Rozzi told him not to worry, the problem was being taken care of. When the petition was ready, Rozzi took it to Horton and asked him if that was what he had in mind. Horton said it was and signed it. Herrera, who was also present, signed next. Thereafter, the petition was circulated on May 31 and June 1 by Albert Rozzi, Earl Stickney, William Boardway, and Harold Baker as well as several nonsupervisors such as Horton. Oren was informed of what was going on while the petition was being circulated. Ultimately, 36 persons signed. At least three-Stickney, Boardway, and Foreman Michael Foley-were supervisors. Boardway and Stickney signed last. After they signed, the petition was presented to Oren. Oren based his decision to withdraw recognition from Local 42 on the petition. I find Respondent violated Section 8(a)(1) of the Act by initiating and circulating an antiunion petition. E. Section 8(a)(5) 1. The unit issue There is no dispute that the words used by the Regional Director in his Decision and Direction of Election in Case 1-RM-864-all production and maintenance employees at the Employer's Lynn, Massachusetts, plant, but excluding office clerical employees, professional employees, salesmen, guards and supervisors as defined in the Act-describe a unit of Respondent's employees appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. The dispute is over whether group foremen are supervisors. Respondent contends they are. The General Counsel contends that the title has no significance, arguing that certain specified persons designated group foremen are supervisors while others are not. Respondent's position is one that it reserved during oral argument at the conclusion of the hearing and advances for the first time in its brief. If Respondent is correct, John Comeau would clearly not be entitled to the protection of U.S. PLASTICS CORPORATION 339 the Act and the whole issue of discrimination against Leo- nard DiOrio would take on a dimension not considered in section C,5, above, since both were admittedly extrusion department group foremen on the third shift. (I have not overlooked references to "temporary" or "acting" status in the record, particularly with respect to DiOrio. The point is that each did the work of a group foreman when he worked in the extrusion department.) Respondent made no such argument with respect to Comeau or DiOrio either at the hearing or in its brief. As my approach to their cases indi- cates, I have no doubt that, individually, they were not supervisors within the meaning of the Act. Given the way this record was put together, I do not think the unit issue can be resolved on the basis of the job title to find that all group foremen are supervisors within the meaning of the Act. As my ultimate finding that they are not is, essentially, a finding that all persons who bear the title group foreman are not supervisors within the meaning of the Act, an expla- nation of how the General Counsel arrived at his position is essential to an understanding of the issue. On the day before the hearing opened, counsel for the General Counsel and Respondent entered into a stipulation with respect to Local 42's majority status, the details of which are controversial and irrelevant. Before the day end- ed, however, Respondent's counsel withdrew from the stip- ulation. At the opening of the hearing, counsel for the General Counsel attempted to rely on the abortive stipula- tion even to the point of calling Respondent's attorney to testify about the events of the preceding day. I sustained an objection on the ground that what had happened between counsel in preparation for trial was irrelevant to the majori- ty issue. Since the General Counsel had no stipulation Local 42 had ever represented a majority of Respondent's unit employees, he undertook to prove it by introducing authori- zation cards. A necessary element in proof of majority through author- ization cards is a list of employees in the unit on some specific date against which to count the cards. The General Counsel had elected to argue the 8(a)(5) aspect of this case on alternate theories. The first came to be referred to in this record as his Snow & Sons 2 theory; i.e., having recognized Local 42 voluntarily, Respondent violated Section 8(a)(5) by thereafter refusing to bargain. The second came to be referred to in the record as his Gissel3 theory; i.e., Respon- dent violated Section 8(a)(5) by committing Section 8(a)(1) and (3) unfair labor practices so serious that a fair election has become impossible. The General Counsel was initially loath to specify a date on which he contended Local 42 had achieved a majority. He finally singled out April 14. Alter- nately, in support of his Snow & Sons theory, he undertook to prove majority as of May 21. Counsel for General Counsel and Respondent tried with- out success to come to some agreement as to who was in the unit on April 14 and May 21. Finally, the General Counsel introduced payroll ledger cards for a number of persons employed on each of these dates. While not contending at the time that there was any dispute about these persons, 2 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709, enfd . 308 F .2d 687 (C.A. 9). 3 N.L.R.B . v Gissel Packing Co ., Inc., 395 U.S . 575 (1969). Respondent did not stipulate all were in the unit. In addi- tion, counsel stipulated that nine other individuals below the admittedly supervisory levels, which run from Oren through foremen (sometimes referred to in the record as "chief" foremen), were employed by Respondent on April 14 and May 21. They are Albert Baker, James Baker, Nicola Balducci, Joe Broniatowski, Elio Marcangelo, F. Lubrano, Jose Rivera, Daniel Schumann, and Nick Vanagel. All are referred to in the record as group foremen. None signed authorization cards for Local 42. The issue posed in this record is whether they are supervisors within the meaning of the Act. The manner in which the General Counsel came to his position that some group foremen are supervisors and some are not is revealing. In his Decision and Direction of Elec- tion in Case 1-RC-12640, the Regional Director listed "group foremen" among the specific exclusions. However, in that proceeding, the unit description was stipulated by the parties. In Case 1-RM-864, supervisors became an issue which the parties finally resolved by a horse trade. Foot- notes 4 and 5 of the Regional Director's Decision and Di- rection of Election in that case indicate the compromise they worked out: [4] Based on the record as a whole and the stipulation of the parties, the following individuals are found not to be supervisors and are included in the unit: Larry Naselrodd, [sic] Donald Kerrivan, Leonard Diorio, Kath- erine Thomas, [sic] Perry Hampton and Jose Rivera. [5] Based on the record as a whole and the stipulation of the parties, the following individuals are found to be supervisers and are excluded from the unit: Samuel S. Oren, President; Al Rozzi, Controller; Bill Boardway, Corporate Officer; Earl Stickney, Operations Manag- er; David Sidilou, Plant Engineer; Harold Baker, Chief Foreman; Peter Spathanas, Chief Foreman; Michael Foley, Chief Foreman; Curtis MacKay, Chief Fore- man; Elio Marcangelo, Chief Foreman; Jerzy Wiendczak, Chief Foreman; James Baker, Foreman; Nicholas Balducci, [sic] Foreman; Albert Baker, Fore- man; Nick Vanagel, Foreman; Daniel Schuman, [sic] Foreman; and John Allen, Foreman. As part of the colloquy with counsel, which started at the opening of the hearing and ended during oral argument just before it closed, about just what evidence the General Counsel was relying on for proof of majority, I ruled on the 10th day of the hearing as follows: ADMINISTRATIVE LAW JUDGE: I'm going to announce, just so there is no misunderstanding about where I'm going to come out in resolving this issue, that I plan to place no reliance on General Counsel's Exhibit 3-I the decision and direction of election in case [l -RM-864] in determining who is and who is not a supervisor at this plant below the level of Chief Foreman. I find no 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis in General Counsel's [3-I] in view of what I've heard in this hearing for concluding that the Regional Director 's findings as to supervisory and nonsuperviso- ry status [are ] reliable enough to be binding on me. I hereby reaffirm that ruling . It is clear that , in his handling of the supervisory issue in Case 1-RC-12640 and Case 1- RM-864, the Regional Director never had to come to grips with the question of whether any of the nine individuals I am concerned with possesses authority which brings him within the definition of supervisor found in Section 2(11) of the Act. The General Counsel does not rely on the Regional Director's findings . Rather , he bases his argument that all nine are supervisors on such testimony as this answer elic- ited from Oren on cross -examination: Q. Now, James Baker, Nicholas [sic] Balducci, Al- bert Baker and Nicholas Vanagel , throughout 1973, had the authority to effectively recommend the wage increases, promotions? A. Every Group Foreman, not only them , has that right. The General Counsel never attempted to demonstrate that Oren understood "effectively " to mean what it has come to stand for as a term of art in Board decisions, i.e., a recommendation which is acted on by higher authority without independent investigation . It is obvious Oren did not understand that was the import of General Counsel's question . Other answers from other witnesses are equally useless . Therefore , I give no weight to any testimony by any witness in this vein. There is no evidence in this record on which I am pre- pared to find that Respondent 's group foremen , especially the nine who are in issue , have "authority , in the interest of the employer, to hire , transfer , suspend, lay off, recall, pro- mote, discharge, assign , reward , or discipline other employ- ees . . . or to adjust their grievances, or effectively to recommend such action." If they are , in fact , supervisors within the meaning of the Act , it is because they have "au- thority . . . responsibly to direct [other employees]." This question turns on what their duties are in relation to the employees with whom they work. Of the nine group foremen in issue , two can be disposed of simply . Joe Broniatowski has the additional title of "as- sistant shipper ." As already indicated , he works in the ship- ping department under the "shipper ," David Rosman. Rosman and Broniatowski are from the shipping department's total full -time complement. When more help is needed from time to time, an additional employee is transferred temporarily to help Broniatowski . There is no evidence that Broniatowski directs the second man or is responsible for the work he performs . They work side by side under the direction of Rosman. I find Joe Broniatowski is not a supervisor within the meaning of the Act. Elio Marcangelo works in the conversion department on the first shift . There are 15 machines in the conversion department , operated principally by women , which make bags . Marcangelo 's job is to assist the foreman in overseeing the operation of the machines . There is no group foreman in the conversion department on shifts other than the first because not all the machines are in operation and, thus, the foreman does not need an assistant . There is no evidence Marcangelo is responsible for the work performed by first- shift machine operators . I find Elio Marcangelo is not a supervisor within the meaning of the Act. The other seven men in issue-Albert Baker , James Bak- er, Nicola Balducci , F. Lubrano, Jose Rivera, Daniel Schu- mann , and Nick Vanagel-are extrusion department group foremen , working on various shifts . There are 15 units (or lines) in the extrusion department . They are operated con- tinuously from Monday through Friday. Each of the 15 units which extruder operators tend consists of 8 compo- nent parts , the extruder proper , nip rolls , pinch rolls, winder, perforator , treater, bubble folder , and printing press. The treater sits above the other units in a tower arrangement. The other parts sit one behind the other . All eight, designed and, I gather , in some aspects invented , by Samuel Oren, permit a continuous operation from the resin raw material to rolls of printed and perforated polyethylene film. The line can be adjusted to produce different results according to the order being filled . Without attempting to translate the ef- forts of witness and counsel to convey exactly how large one complete line is by comparing it with the dimensions of the hearing room, suffice it to say it is big. Each shift in the extrusion department is comprised of 10 men, I foreman and 3 teams of 3 men each . Each team is comprised of a group foreman and two extruder operators and tends five lines . Each of the operators tends two lines. The group foreman tends the fifth and oversees the work of the two operators on his team. The distinction between a group foreman and an operator is skill . Operators are promoted to group foremen. Group foremen make more money than operators. Although it is obviously an oversimplification to say that group foremen are distinguished from operators by their ability to "bring up the bubble," this particular skill, especially important in Respondent 's production process , is a good example of the difference between them . When the bubble is up, the line is producing film in a nearly automatic fashion . All the opera- tor has to do, other than keeping an eye on the line, is end a roll when it reaches the proper size, weigh it, record the weight, and place the roll in a box for shipping . When the bubble breaks, it is imperative that the line be shut down without delay . Bringing the bubble back up is a tricky oper- ation requiring a skill which not all operators have. All group foremen do. The other major difference between group foremen and operators is that group foremen make most, if not all , the adjustments required on any of the five machines assigned to the team when they are changed over from one order to another. The only evidence in the record bearing on the "responsi- bility" of group foremen in directing the work of the two operators under them is found in the testimony of Larry Naselroad , the group foreman called as a witness by the General Counsel to corroborate the testimony of James McCarthy that Oren told him to "get out" of the plant. He testified as follows: U.S. PLASTICS CORPORATION 341 Q. Now, you say "supervise"; how do you supervise, what do you say to them, what do you do? A. Well, I talk to them and try to make sure the rolls are coming off at the correct length, the bag is correct size , the printing is kept clean. ADMINISTRATIVE LAW JUDGE: Are you responsible for their work product? THE WITNESS : Yes, I'm responsible for their work. not, there are, in the record, one or more authorization cards bearing the names of 37 of the 59 persons in the unit on April 14 and 34 of the 54 on May 21. Twenty-nine of the employees who were in the unit on April 14 and 26 of the employees who were in the unit on May 21 are represented by at least one valid card. The cards were authenticated by the signer himself or by a witness who testified credibly he had either seen the person whose name the card bears sign it or received it directly from that person (N.L.R.B. v. Ho- * well Chevrolet Company, 204 F.2d 79, 85-86 (C.A. 9, 1953) ) Q. I see. Now, you stated that you are responsible for work. Could you explain for us, first of all, in what way are you responsible? A. Well, I just have to be sure that the work is com- ing out properly, that's all, before it goes into the box. And I would like to put one more thing in there and that is, I also must check the treat. This is the ink, the printing ink should not lift off of the film. This testimony, I think, correctly described the relation- ship between group foremen and operators . It is one of leadmen or journeymen to helpers . Group foremen direct the work of operators in the carrying out of routine, day-to- day production activities. Nothing they do calls for that use of independent judgment which Section 2(11) requires be- fore the exercise of an employee 's authority raises him to supervisory status. I find, therefore, that Albert Baker, James Baker , Nicola Balducci , F. Lubrano , Jose Rivera, Daniel Schumann , and Nick Vanagel are not supervisors within the meaning of the Act. 2. The majority issue There are, in the record, payroll ledger cards which prove that 47 production and maintenance workers were in Respondent 's employ on April 14, including James Mc- Carthy and Audrey Parsons. To that number must be added Kathy Spillane, Deborah Portrait, and John Comeau since their discharges prior to that date were unfair labor practic- es. To that number must also be added all nine of the group foremen whose status the parties have disputed since they also were in Respondent 's employ and not supervisors with- in the meaning of the Act. There were, therefore , 59 employ- ees in the unit on April 14. A similar calculation, starting with payroll ledger cards of persons in Respondent 's employ on May 21 , results in a total of 54 employees in the unit on that date. (Sharon Chesley's payroll card is included in the exhibit which was entered by the General Counsel to prove the size of the unit on May 21. However, the card establishes that the payroll period ending April 16 was the last during which she worked . She went on a month 's sick leave and quit at the end of that time . She was, therefore, not in the unit on May 21.) James McCarthy and Audrey Parsons are not included in this total because each left Respondent's employ after April 14 and before May 21 under circumstances which did not constitute unfair labor practices. Regardless of whether they are technically in evidence or or by a witness who testified credibly he was familiar with the signature of the person whose name the card bears and could identify it (Federal Stainless Sink Div. of Unarco In- dustries, Inc., 197 NLRB 489). (For purposes of this analysis I am considering cards bearing the names of Audrey Par- sons and Fernande Baril as valid . Mrs. Parsons was the witness as to them. A technical application of my discredit- ing Mrs . Parsons generally would , of course , leave them unauthenticated and reduce Local 42's valid cards to 27 as of April 14 and 25 as of May 21. Mrs. Parsons testified the Baril card was signed in her presence and immediately handed to her. As to two cards bearing her name, the Gener- al Counsel withdrew one dated February 3, initially identi- fied by Angelo Colella, after Mrs. Parsons admitted deliberately lying about it during the investigation, and one dated March 24 was never authenticated by anyone. It, like the cards bearing the names Epifanio Flores, John Keane, and Perry Hampton discussed below, turned up near the end of the hearing when Colella, spurred into action by Mrs. Parsons' bombshell, managed to locate a mislaid envelope containing various papers relating to his campaign.) There are a total of 10 cards which cannot be counted toward Local 42's majority on one or both dates. Cards bearing the names of Dennis Marques and German Sissay were properly authenticated. Marques and Sissay were in the unit on both dates. However, their cards can only be counted toward the Union's majority on May 21 because both are dated May 7. Cards bearing the names of Epifanio Flores, hired on May 8, and John Keane, hired on May 15, cannot be counted toward the Union's majority on May 21 because they were not properly authenticated and because they bear dates after May 21. (No inference can be drawn that their cards put Local 42 over the top on some date shortly after May 21 because there is no evidence in the record as to the number of employees in the unit on any date after May 21.) The remaining six cards bear the names of employees who were in the unit on both dates. They cannot be counted toward Local 42's majority for the following reasons: Perry Hampton-never authenticated. Angelina Argeorgitis, Lillian Groendal, and Catherine Thomas-all three cards were identified by Colella as hav- ing been received through the mail during the course of the campaign. All three ladies testified that they never signed an authorization card and the signatures which appeared on the cards were not theirs. I find all three cards were forged by a person or persons unknown. Hyda Nappi-Mrs. Nappi authenticated the card bear- ing her name . However, when she refused , on cross-exami- nation, to obey my instruction to answer a question as to the name of the relative who had signed her name to the 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card in her presence and with her permission , I granted Respondent 's motion to strike all her testimony . (I hereby deny the request in the General Counsel 's brief that I re- verse this ruling .) The card is , therefore , not in evidence. Guiseppe Lavino-the card bearing this name was initial- ly identified by Colella as one which had been signed in his presence . However , on cross , he testified "I don 't recall just how it was given to me , or mailed to me ." I find , therefore, it has not been properly authenticated. Local 42 needed authorization cards on April 14 from 30 employees in order to represent a majority of the 59 employ- ees in the unit on that date . Only 29 have been proved. Local 42 needed authorization cards on May.21 from 28 employ- ees in order to represent a majority of the 54 employees in the unit on that date . Only 26 have been proved. I find, therefore , the General Counsel has failed to prove Local 42 ever represented a majority of Respondent's employees in a unit appropriate for purposes of collective bargaining. Since a union must achieve majority status before the duty to bargain arises, I find Respondent has not violated Section 8(a)(5) and ( 1) of the Act by failing and refusing to recog- nize Local 42 as the collective -bargaining representative of its production and maintenance employees. Upon the foregoing findings of fact , and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. U.S. Plastics Corporation is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Truck Drivers , Chauffeurs and Helpers Union, Local 42, a/w International Brotherhood of Teamsters, Chauf- feurs , Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Kathy Spillane and Deborah Portrait on February 21, 1973 , and John Comeau on March 27, 1973, for engaging in union activities , Respondent has vio- lated Section 8(a)(3) and ( 1) of the Act. 4. By denying overtime to Leonard DiOrio on March 24, 1973, and James McCarthy on April 14, 1973, for engaging in union activities , Respondent has violated Section 8(a)(3) and (1) of the Act. 5. By issuing written warnings to Audrey Parsons on April 20 and 24 , 1973, and Leonard DiOrio and Richard Needham on April 24 , 1973, pursuant to a warning system adopted because its employees were engaging in union ac- tivities , Respondent has violated Section 8(a)(3) and (1) of the Act. 6. By interrogating employees about their union activi- ties and the union activities of others ; harassing employees because they were engaged in union activities ; threatening employees with reprisals , including discharge and moving its plant to another state , for engaging in union activities; promising benefits to employees if they would refrain from union activities ; creating the impression it had the union activities of its employees under surveillance , and initiating and circulating an antiunion petition among its employees, Respondent has violated Section 8 (a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The allegation of the complaint that Respondent vio- lated Section 8(a)(5) and ( 1) of the Act has not been sus- tained. 9. The allegation of the complaint that Respondent vio- lated Section 8(a)(3) and (1) of the Act by discharging James McCarthy on or about April 19 , 1973, and Audrey Parsons on or about May 1, 1973 , eliminating overtime to Audrey Parsons on or about April 12, 1973 , transferring Leonard DiOrio from the first to the third shift on or about April 16, 1973, and refusing to hire Allen Parsons in June and July 1973 have not been sustained. 10. Allegations of the complaint that Respondent violat- ed Section 8(a)(1) of the Act by conduct not specifically found in subparagraph 6, above , have not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found, remedy them , and post the usual notice . I will, therefore, recommend Respondent be ordered to reinstate Kathy Spillane, Deborah Portrait, and John Comeau and make them as well as Leonard DiOrio and James McCarthy whole for any earnings lost as a result of the discrimination against them by the payment of back- pay computed on a quarterly basis , plus interest at 6 percent per annum , as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Since the General Counsel has not alleged that Stephen Thompson, John Comeau, and, possibly, others were dis- criminated against when Respondent sent them home early on March 24 , 1973, in retaliation for the union activities of its employees , I will not recommend that they , as well as Leonard DiOrio , be made whole for wages they lost that day. I will also recommend that Respondent remove from its files and destroy the written warnings issued to Audrey Parsons on April 20 and 24 , 1973, and Leonard DiOrio and Richard Needham on April 24, 1973. Since the General Counsel has not alleged institution of Respondent 's written warning system as an unfair labor practice , I will not recom- mend that Respondent be ordered to abandon it. In support of his Gissle theory, the General Counsel ar- gues that Respondent should be ordered to recognize and bargain with Local 42 as the collective -bargaining repre- sentative of its production and maintenance employees as a remedy for its violations of Section 8(a)(3) and (1) of the Act. If Local 42's majority as of May 21 , 1973, had been proved , I would not reach the question of whether, under Gissel, the unfair labor practices committed by Respondent were so serious that a fair election has been rendered impos- sible. At Richard Hunt 's request , Angelo Colella prepared a list which , as far as he had been able to ascertain, listed all the employees in a production and maintenance unit. On that list he indicated which persons , as far as he knew, had signed authorization cards for the Union . The result was an apparent majority for Local 42 . Hunt presented this list to David Riemer, Respondent's attorney , as proof of Respondent's majority when they met to discuss settlement. The record is not clear as to who placed the telephone call which led to the meeting between Hunt and Riemer around U.S. PLASTICS CORPORATION May 21. There is no indication, however, that Riemer's participation in the events of that day was not voluntary. Riemer merely glanced at the list handed to him by Hunt. He did not count the checkmarks which indicated card signers. He did not ask to see the cards themselves. He took Hunt's word, which was based on Hunt's good-faith belief, that Local 42, in fact, represented a majority of unit employ- ees at that moment. I think these facts bring this case squarely within the Snow & Sons line of cases. However, I will not recommend that Respondent be ordered to recog- nize and bargain with Local 42 for the same reason that I did not find Respondent violated Section 8(a)(5) and (1) of the Act. I am aware of no case in which the Board has found an 8(a)(5) violation or ordered recognition and bargaining as a remedy for other unfair labor practices even though it did not find an 8(a)(5) violation in which it has not been proved by valid evidence in the record that the union repre- sented a majority of employees in the unit at the time it requested the employer to recognize and bargain with it. I am bound by Board precedent. In view of the seriousness of the unfair labor practices I have found, I will recommend a broad rather than a narrow order. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 U.S. Plastics Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees for engaging in union ac- tivities. (b) Denying overtime to its employees for engaging in union activities. (c) Issuing written warnings to its employees ostensibly for violations of its rules which are unrelated to their union activities when its real reason is the union activities of the warned employee. (d) Interrogating employees about their union activities or attitudes or the union activities or attitudes of others. (e) Harassing employees because they are engaging in union activities. (f) Threatening employees with reprisals for engaging in union activities. (g) Threatening employees with discharge for engaging in union activities. (h) Threatening to move its plant to another state if its employees elect to be represented by a union. (i) Promising benefits to employees if they refrain from 4In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and order , and all objections thereto shall be deemed waived for all purposes. 343 union activities. (j) Creating the impression it has the union activities of its employees under surveillance. (k) Initiating and circulating antiunion petitions among its employees. (1) In any manner interfering with, restraining, or coerc- ing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Kathy Spillane, Deborah Portrait, and John Comeau immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost, plus interest, as a result of their discharges. (b) Make Leonard DiOrio and James McCarthy whole for any earnings they lost, plus interest, as a result of being denied overtime on March 24, and April 14, 1973, re- spectively. (c) Remove from its files and destroy written warnings issued to Audrey Parsons on April 20 and 24, 1973, and Leonard DiOrio and Richard Needham on April 24, 1973. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its facility in Lynn, Massachusetts, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a)(3) of the Act by discharging James McCarthy on or about April 19, 1973, and Audrey Parsons on or about May 1, 1973, by eliminating overtime to Audrey Parsons on or about April 12, 1973, by transferring Leonard DiOrio from the first to the third shift on or about April 16, 1973, and by refusing to hire Allen Parsons in June and July 1973; and that Re- spondent has violated Section 8(a)(1) by conduct not spe- cifically found violative of that section herein. 5 In 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation