Heatilator Fireplace

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heatilator Fireplace, Division of Vega Industries, Inc. and Kenneth Baylor and District 131, In- ternational Association of Machinists and Aero- space Workers, AFL-CIO. Cases 18-CA-5713, and 18-CA-5795 May 16, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 28, 1979, Administrative Law Judge Stanley N. Ohlbaum issued the attached De- cision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and a supporting brief and Respondent filed a brief in op- position to the General Counsel's exceptions. 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,' find- ' In a letter to the Administrative Law Judge, Respondent objected to that portion of the General Counsel's post-hearing brief which referred to Vega Industries, Inc., 207 NLRB 14 (1973), a prior unfair labor practice proceeding involving Respondent in which the Board found Respondent had violated Sec. 8(a3) and (I) of the Act. Respondent argued that the General Counsel's reference to this case constituted an improper attempt to introduce evidence after the close of the hearing. Further, Respondent argued that had the prior case been raised at the hearing, it would have "offered evidence that . .. few, if any, of the management personnel em- ployed by the Respondent [then employed] are still in the employ of the Respondent today." The Administrative Law Judge, taking official notice of this case, relied on it as proof that Respondent has had an "established history of resistance if not outright antagonism to the unionization of its employees." The Administrative Law Judge indicated that if evidence concerning an alleged change in Respondent's management personnel had been offered by Respondent, he would have rejected it as irrelevant. In its exceptions, Respondent requests that the use of the information found in the prior case as evidence of animus herein "be strickened [sic]." Al- ternatively, should the Board decide that the Administrative Law Judge properly took judicial notice of the prior case, Respondent reiterates its desire to offer evidence that there has been a change in its management personnel. While we do not agree with the Administrative l.aw Judge that evidence of a substantial change in management personnel would be irrelevant, Respondent's prior unfair labor practices properly may be noted as background here. See Kenworth Trucks of Philudelphia, Incorpo- rated, 236 NLRB 1299 (1978), and cases cited therein at fn. 2. Additional- ly, we note that while Respondent has filed an extensive brief in support of its exceptions to the Decision of the Administrative Law Judge, it has submitted no evidence in support of the alleged turnover in management personnel. In any event, without regard to the underlying case, the record before us shows independent evidence of union animus sufficient to support the Administrative Law Judge's finding in the instant case that Respondent violated the Act. 249 NLRB No. 47 ings, 2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 4 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. We hereby note the following inadvertent errors of the Administrative Law Judge, which are insufficient to affect the results of our decision: In sec 11I B, of his Decision, the Administrative Law Judge referred to James D. Bass as a former employee of Respondent, although the record contains no evidence in support of such a finding; in the fifth sentence of the third paragraph of sec. Ill C, the Administrative Law Judge referred to "Parrish" rather than "Baylor"; and in the last sentence of the last paragraph of that section, he referred to "5(j)" rather than "5(i)." 3 We agree with the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(a)(1) of the Act when its attorney, Shade, re- quested Fowler, an employee closely allied with management, to obtain information concerning union activities from discriminatee Parrish. In so doing, however, we rely on the fact that Fowler reported such informa- tion as requested and that Respondent committed unfair labor practices based, in part, thereon. See Harvey's Wagon Wheel, Inc., d/b/a Harvey's Resort Hotel & Harvey's Inn, 236 NLRB 1670 (1978). In view of this find- ing and, inasmuch as our remedy would not be materially affected, we find it unnecessary to pass on the Administrative Law Judge's additional conclusion that Plant Superintendent Derby's instruction to Supervisor Pfeiffer to observe and report on employees' union activities was viola- tive of the Act. We shall modify the Administrative Law Judge's recom- mended Order accordingly. The Administrative Law Judge concluded, and we agree, that Re- spondent violated Sec. 8(a)(3) and (1) by discharging employee Baylor. We note that the Administrative Law Judge, in finding Respondent's as- serted reasons for Baylor's discharge pretextual, stated that at no time prior to the hearing did Baylor receive, nor was he shown, an employ- ment termination slip which had been placed in his file by Respondent and which "purports to rate him markedly worse than his previous rat- ings." The record indicates, however, that at the time of his discharge Baylor was handed a discharge slip which he failed to read. Additionally, although we agree with the Administrative Law Judge's finding that Baylor's past work performance was good, we do not rely on his charac- terization of the testimony of other employees concerning Baylor's per- formance as "expert evaluations." Furthermore, we disavow, as unsup- ported and unjustified, the Administrative Law Judge's suggestion that Respondent acted improperly in discarding a stripper pad on which Baylor had been working prior to his discharge. We agree with the Administrative Law Judge's conclusion that Re- spondent violated Sec 8(a)3) and (1) by discharging employee Wake- field. In so concluding, the Administrative Law Judge found that Re- spondent had not credibly established its ignorance of Wakefield's union activity. We note, of course, that Respondent does not have the burden of proving its ignorance of Wakefield's union activity, but rather, it is the General Counsel who has the burden of establishing Respondent's knowl- edge of Wakefield's union activity. Additionally, we place no reliance on the Administrative Law Judge's comment that "in the countless tens of thousands of labor proceedings which the Board had heard and proc- essed under the Act, almost invariably there are some employees who attend union organizational meetings who report back to the Employer or his supervisors concerning them . . We find, however, based on the Administrative Law Judge's other findings concerning the discharge of Wakefield, that the General Counsel has established Respondent's knowledge of Wakefield's union activity. 4 We agree with the Administrative Law Judge's conclusion that the nature of Respondent's unfair labor practices warrants the issuance of a broad cease-and-desist order. We find that such an order is warranted under the standards set forth in Hickmort Foods, Inc., 242 NLRB No. 177 (1979). The General Counsel had excepted to the Administrative Law Judge's recommended remedy insofar as it recommends that interest on backpay be computed at a rate other than 9 percent per annum We find no merit in this contention See Florida Steel Corporation, 231 NLRB 651 (1977). Continued HEATILATOR FIREPLACE 545 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Heatilator Fireplace, Division of Vega Industries, Inc., Mt. Pleasant, Iowa, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph A, 2: "2. Directing, suggesting to, or requesting that any employee engage in surveillance over the union or any other protected concerted activity of other employees and report thereon to Respond- ent." We have modified par. A, 2, of the Administrative Law Judge's rec- ommended Order to include only employees engaged in surveillance, omitting his reference to supervisors. DECISION I. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Administrative Law Judge: These consolidated cases' under the National Labor Re- lations Act, as amended, 29 U.S.C. §151, et seq. (Act), were heard before me in Mt. Pleasant, Iowa, commenc- ing May 31 and ending November 30, 1978.2 All parties participated throughout by counsel or other representa- tive, who were afforded full opportunity to present evi- dence and arguments, as well as post-hearing briets re- ceived (after extension of time granted on unopposed ap- plication by counsel) at the end of January 1979. Com- pleted exhibits were received on April 30, 1979. Record and briefs have been carefully considered. The principal issues presented are whether Heatilator Fireplace, Division of Vega Industries, Inc.," hereinafter Respondent, violated Section 8(a)(l) and (3) of the Act through discharging three employees and through mis- cellaneous alleged acts of interference, restraint, and co- ercion within the context of a union organizational cam- paign. Case 18-CA-5713: Complaint issued on April II, growing out of a charge filed by Kenneth Baylor on February 21 and amended on April 7, 1978. Case 18-CA-5795: Complaint issued May 16. growing out of a charge filed by District 131, International Association of Machinists and Aerospace Workers, AFL-CIO, on April 28. The cases were consoli- dated on May lb. Dates herein are in 1978, unless otherwise specified. Since the allegations of the two foregoing complaints wAere not merged into a single superseding complaint, to simplify matters the earlier com- plaint (18-CA-5713) will be referred to throughout this Decision as Case I and the subsequent complaint (18-CA-5795) as Case 2. 2 The hearing encompassed 8 hearing days, with two intervening con- tinuances (one sine die for requirements of counsel), 28 witnesses, 92 ex- hibits, 1,273 transcript pages, and 110 pages of briefs Issuance of this de- cision has been regretfully delayed because of engorged calendars and numerous other unavoidable intervening proceedings involving much travel. Upon the entire record and my observation of the tes- timonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS II1. JURISDICTION At all material times, Respondent has been and is a New York corporation engaged in the manufacture, sale, and distribution of fireplaces, in and from its place of business and office on Vega Road, Mt. Pleasant, Iowa, where, during the representative 1977 calendar year im- mediately antedating issuance of the complaint, it pur- chased and received, directly in interstate commerce from places outside of Iowa, goods and materials valued in excess of $50,000. During the same period, in the course and conduct of its said business, Respondent also manufactured, sold, and distributed from its said location, directly in interstate commerce to places outside of Iowa, products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at those times United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW, herein- after UAW, and District 131, International Association of Machinists and Aerospace Workers, AFL-CIO, here- inafter IAM, have been labor organizations as defined in Section 2(5) of the Act. III. AL.I.EGED UNFAIR LABOR PRACTICES Facts as Found Alleged events will be considered in chronological se- quence, after setting forth material background informa- tion. A summary chronology of allegations and findings, in relation to complaint paragraphs in Case I and Case 2 and witnesses on each side, may be found in Appendix A [omitted from publication]. A. Background Respondent's fireplace fabrication plant4 in Mt. Pleas- ant, Iowa, employed around 400-450 employees in 1977- 78. Its peak production season is from August through January or February, accounting for work force level a The name of Respondent appears as amended at the hearing on an unopposed motion by the General Counsel. 4 Respondent manufactures woodburning insulated (zero clearance) fireplaces and related accessories. HEATILATOR FIREPLACE 545 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD variations of 100-150 employees, turnover of whom is said by its plant manager, Hecht, to be "considerable." Respondent's concededly supervisory personnel in- volved here are: Case 1: Phil Hecht, plant manager; Ron Derby, plant superintendent; Larry Pidgeon, chief tool and die design engineer; and Ed Seggerman, tool and die foreman; and Case 2: Roger Duncan, Ronald Garmoe, Marilyn Miller, William Pratt, and Paul Roth are all su- pervisors. Respondent has seemingly had an established history of resistance if not outright antagonism to unionization of its employees. 5 Thus, in 1973 the Board determined that Respondent discharged two of its Mt. Pleasant employ- ees in violation of Section 8(a)(3), during a UAW orga- nizing campaign (Vega Industries, Inc., 207 NLRB 14 (1973)). The decision in that case took occasion to point out that Respondent's conduct disclosed not only its "hostility towards the Union" (Id. at 20), but also "its in- nermost antipathy for the Union and the concomitant or- ganizational activities of its employees" (id. at 19). The Board Order was enforced by the United States Court of Appeals for the Eighth Circuit in September 1974 (505 F.2d 736). 6 Additionally in the instant case there was tes- timony to the same effect. Thus, Jack Edwards, Re- spondent's former plant superintendent as well as fore- man and later general foreman, and a most impressive witness, testified that while he was plant superintendent (1975-77) Respondent was "strong[ly] anti-union"; that it was "not happy [with employees] that had union sympa- thies"; that in 1976 he, as well another supervisor, looked through trash barrels for union literature, found "quite a batch" and turned it over to the plant manager; and that he and other company executives conferred to explore methods of keeping unions out of the plant. Former Plant Superintendent Edwards' testimony is bolstered by that of Respondent's former foreman and supervisor, William Allred, that in December 1977 (shortly before the episodes here about to be described), Respondent's plant superintendent, Ron Derby, told him in the course of a discussion in Derby's office that "I will get rid of seven or eight good people to get rid of one union I This is not to suggest that Respondent, as any employer, does not have the right to entertain such ideas or actively to oppose unionization of its employees in any manner not violative of the Act. 6 While Respondent's counsel, in a letter dated February 13 addressed to the Adminisstrative Law Judge, indicated he "strenuously objects" to what he characterizes as counsel for General Counsel's "improper at- tempt to introduce evidence after the close of the hearing in the form ofl Counsel for General Counsel's reference [in his post-trial brief] to a prior Board case involving this Respondent," I nevertheless take official notice of that case since I believe Respondent counsel's position to be mistaken as a matter of law. Agencies, as courts, may always take official, or judi- cial, notice of their own proceedings. Cf., e.g., Tama Meat Packing Cor- poration v. N.L.R.B., 575 F.2d 661, 662-663 (8th Cir. 1978), cert. denied 439 U.S. 1069 (1979); Russell Motors. Inc., 198 NLRB 351, 375-376 (1972), enfd. as modified 481 F.2d 996 (2d Cir. 1973); Henry I. Siegel Co., Inc., 172 NLRB 825, 839, 845-850 (1968), enfd. as modified 417 F.2d 1206 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970). In "strenuously object[ingl" to taking official notice of this previous proceeding, Re- spondent's counsel urges that if evidence thereof had been submitted at the hearing, Respondent would have "offered evidence . . that few, if any, of the management personnel employed by the Respondent . . . are still in the employ of the Respondent today." If such evidence had been tendered by Respondent, I would have rejected it, since I regard it as irrelevant. Respondent counsel's letter of February 13, raising these con- tentions, is hereby incorporated into the record as ALJ Exh. 1. pusher." 7 As expressed by Plant Superintendent Ron Derby, during cross-examination in the instant case, in January 1978, as well as always, Respondent's "manage- ment was opposed to unionized or organized labor. We were a non-union plant.... We were our own boss and could run our own factory." Since the foregoing are facts, I consider it fair and proper to consider them in connection with the overall assessment of matters to be discussed. Uncontradicted credited testimony 8 establishes that active union organizing attempts were resumed9 by Re- spondent's employees themselves at the beginning of Jan- uary (1978). Thus, on January 6 an employee emissary to the UAW office was supplied with 50 union collective- bargaining authorization cards for signature; and all sub- sequent active organizing was carried on by employees themselves, since that union at no time visited the plant personally. The visit to the Union of this employee emis- sary (Marvin Hulett) followed an earlier discussion by him with Respondent's employee Jerry Parrish-subse- quently summarily discharged by Respondent on January 20, as will be shown-who, after initially reacting nega- tively and cautioning Hulett that "if you start talking union, then your life expectancy at this plant is real short," a few days later changed his mind and, after Hulett procured a supply of union authorization cards, on January 13 signed one and agreed to assist, outside the plant on his own time, in enlisting other employees to join. Subsequently, on January 16 or 17, Parrish ac- commodated other employees who sought additional union cards from him. Meanwhile, on January 9 or 10 Parrish had remarked to Respondent's then senior special projects engineer (and former general foreman), Lloyd Fowler, whom Parrish regarded as "one of the few people around here [who] really care what happens," that the Union was (again) "pushing pretty hard to get in," in view of various employee job dissatisfactions (a wage freeze and a job code system under which trans- ferred employees could suffer pay cuts); and, within a few days thereafter, on January 12 or 13, that seemingly the Union had already amassed 200 signed cards. It is thus apparent that in early to mid-January, there was an escalating (renewed) attempt by Respondent's employees to organize themselves for union collective bargaining, against a background of Employer opposition thereto even to the extent of commission of unfair labor practices in established violation of the Act. B. Alleged Unfair Labor Practices in January The complaint (Case 1, par. 5[c] and 7) alleges that, during the second week of January, Respondent through its Plant Superintendent Derby, directed a supervisor to observe and report on employees' union activities. In support of this allegation, Respondent's former foreman and supervisor, Luther Pfeiffer, testified that in mid-Jan- I Although Derby denies he said this to Allred, upon the basis of com- parative testimonial demeanor observations as well as because of the highly evasive and equivocating character of portions of Derby's testimo- ny, I credit Allred's testimony in preference to Derby's denial. 8 I.e., principally that of General Counsel's witnesses Timmerman and Parrish. 9 See fn. 6, supra. ------- HEATILATOR FIREPLACE 547 uary Plant Superintendent Ron Derby asked him, in Derby's office, if Pfeiffer was aware that management had "caught a couple of people on the second shift, the night before, passing out union cards" and whether any of Pfeiffer's subordinates were "union people." Pfeiffer indicated that he did not know. Remarking that it was "some kind of underground deal," Derby then asked Pfeiffer if he knew anybody he could "trust . . . who was in the union that would tell, would squeal about the union activities . . . who would tlk about how many people had signed up, or what union it was or whatever they wanted to know." Pfeiffer indicated he did not know anybody who would do that. Derby instructed Pfeiffer to report to him or to designated higher manage- ment officials anybody signing cards or engaged in such activity. Pfeiffer pointed out that although previous or- ganizational attempts by UAW had "always started in welding," this time it was "different," it had "started in fabrication," and looked as if it might succeed. Derby agreed with Pfeiffer that in the event of unionization Re- spondent would move its operations away. Pfeiffer, an impressively credible witness, was not cross-examined. However, Derby in general terms denied any conversa- tion with him regarding union activities. Based upon my comparative testimonial demeanor observations, the ab- sence of cross-examination of Pfeiffer, Derby's testimoni- al equivocativeness on other matters, and the broadscale conclusionary nature of his denial concerning Pfeiffer which I do not credit, I credit Pfeiffer's testimony and find the complaint allegations in question established. 0° The complaint (Case 1, pars. 5[d] and 7, as amplified by bill of particulars) further alleges that, around the same time, Respondent's agent, Matt Shade (its attorney herein), similarly directed a supervisor to observe and report on employees' union activities. As to this, the un- contradicted credited testimony of Respondent's former foreman, Pfeiffer, establishes that shortly after his foregoing conversation with Derby, Pfeiffer was called to the front office and asked by Shade why the employ- ees wanted a union, to which Pfeiffer responded it was because of "the wage and the code change." To Shade's question of whether Pfeiffer knew of anybody who had signed union cards, Pfeiffer replied in the negative. In view of Pfeiffer's supervisory capacity I cannot discern anything violative of the Act in Shade's described que- ries, I find the complaint allegations in question not es- tablished and accordingly grant Respondent's motion to dismiss paragraph 5(d) of the complaint in Case 1. In similar vein, the complaint (Case 1, pars. 5[a] and 7, as amended at the hearing and as amplified by the bill of particulars) alleges that on January 13, Respondent, again through its agent and attorney Shade, directed an employee to observe and report on employees' union ac- tivities. Concerning this, the uncontradicted and credited testimony of Respondent's then former senior special 'o In so doing, I neither intend nor make any finding that other aspects of the described conversation were violative of the Act, including any request by Derby to Pfeiffer that the latter merely report to him any ob- servations to Pfeiffer coming to the latter's attention in the routine course of his work or otherwise without engaging or enlisting others to engage in surveillance activity beyond the Act's protection. I Shade did not testify. projects engineer (and, prior to that, its general fore- man), Lloyd Fowler-at the particular time in question, although not technically a supervisor within the Act's definition, nevertheless closely allied to management and having the responsibility of developing recommendations to top management concerning capital expenditures, pur- chase of new equipment, and operating efficiency econo- mies'2-establishes that on January 16 Shade asked him if he had "heard of any union activities." Fowler ac- knowledged that he had, but declined to disclose the source of his information. Pressed by Shade, however, he identified Parrish-discharged a few days later, as will be shown. When Shade asked him if he could get any more information from Parrish, Fowler replied he thought that would be "against the rules." Shade then asked Fowler what union was involved. After first re- sponding it was the IAM, Fowler corrected this to the UAW. Shade asked Fowler to bring further information to him. A few hours later, Fowler had coffee with Par- rish, and Parrish-unsolicitedly, according to Fowler- volunteered to Fowler that 200 employees had signed union cards. Fowler then relayed this information to Shade, who again asked Fowler to keep him informed if Fowler "heard anything else." Since Shade did not tes- tify, Fowler's testimony is uncontradicted. In view of Fowler's long-term close identification with manage- ment, I find to be violative of the Act only that portion of Shade's discussion with him wherein Shade requested or suggested to him the obtaining of more information concerning union activities from Parrish, since, in my es- timation, in practical effect that constituted at least an in- vitation, if not direction, by one speaking for top man- agement, to engage in unlawful interrogation or surveil- lance concerning union activities, in either case pro- scribed interference with employees' activities protected under the Act. Employer direction or suggestion to an employee (whether supervisory or nonsupervisory) that he do that which is forbidden by the Act, is itself viola- tive of the Act, since it either constitutes a direct viola- tion by the employer through his subordinate or at the least invites, encourages, and promotes violation and pro- spectively condones and sanctions it. It is accordingly found that in this aspect the allegations of paragraphs 5(a) and (7) are established. 1 3 The complaint (Case 1, pars. 5[b] and 7) alleges that on or about January 13 Respondent through its Plant Manager Hecht directed a supervisor to observe and report on employees' union activities. In support of this allegation, Respondent's former foreman (and conceded supervisor), Allred, testified that on the day in question Hecht-as part of a longer discussion, leading up to the 12 Fowler had also been transferred to his position as senior special projects engineer at his own request, without diminution of his former supervisory pay. continued to have his own office in the plant office complex, and continued through February to attend daily supervisory briefing meetings. On his termination, he was, unlike rank-and-file em- ployees, given severance pay 13 In so finding, in view of Fowler's longstanding close association with top management, I neither make nor intimate any finding that any other portion of Shade's discussion with him, or his report to Shade of what Parrish volunteered to him, was violative of the Act Respondent's motion to dismiss par 5(a) of the complaint in Case I is accordingly granted, except insofar as hereinabove otherwise found. HEATILATOR FIREPLACE 547 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of Parrish, as detailed below-instructed Allred, "I want you to watch him [Parrish] so that he does not pass out [union] cards and to watch that he does not talk to other people concerning the union," and that if Parrish was caught in the act he should be termi- nated. Although I credit Allred's testimony over Hecht's denial that Hecht said this, I cannot see anything viola- tive of the Act in such an instruction-fairly construable as referring to working time-by an employer to a super- visor, and accordingly find the allegation in question not established and therefore grant Respondent's motion to dismiss paragraph 5(b) of the complaint in Case 1. The complaint (Case 1, pars. 5[g] and 7) as amplified by bill of particulars) alleges that on or about January 15, Respondent through its agent and attorney Shade again directed an employee to observe and report on em- ployees' union activities. Concerning this, Respondent's then subcontract coordinator (and former plant superin- tendent and, before that, general foreman), Jack Ed- wards-at that particular time not a supervisor as defined by the Act, but importantly established in Respondent's executive hierarchy, with contract commitment authority to around $20,000-testified that on Monday, January 16, following a conversation on the previous Friday, Janu- ary 13, in which Edwards sought out and passed on to Plant Manager Phil Hecht information Edwards had re- ceived concerning union activity in the plant, he (Ed- wards) was asked by Company Attorney Shade what he knew about union activity in the plant. Edwards repeat- ed to Shade what Edwards had volunteered on the pre- vious Friday to Hecht. In response to Shade's asking his opinion as to the cause of the activity, Edwards told him he thought it was an ongoing wage survey and that Plant Superintendent Derby's "trying to tighten up the reins a little too quickly and he had upset a lot of people." Edwards also told Shade, in response to a ques- tion by the latter, that he had not seen union cards passed out during worktime. Particularly in view of Ed- wards' direct association with Respondent's executive hierarchy, as well as his having volunteered substantially the same information to Plant Manager Hecht a few days before, I do not regard the described episode-which, again, stands undisputed by Shade-as constituting coer- cive interrogation or as otherwise violative of the Act. Accordingly, I find paragraph 5(g) of the complaint in Case I not established and grant Respondent's motion to dismiss that allegation. The complaint (Case 1, pars. 5[h] and 7) further sets forth that on or about January 20, Respondent through its Plant Manager Hecht interrogated an employee con- cerning union activity. On this, Respondent's employee Jerry Parrish-who was terminated on that day (January 20), under circumstances detailed below-testified that on the date in question, in the course of various discus- sions with Plant Manager Hecht, in the latter's office, leading up to Parrish's discharge as described below, Hecht put the direct question to him, "Who [is] behind the union?" Parrish said he did not know. He was there- upon summarily discharged, under circumstances de- tailed below. On comparative testimonial demeanor ob- servations, I credit Parrish's described testimony in pref- erence to Hecht's unconvincing denial and to the broad denial of Plant Superintendent Derby (who was there upon the evasive and unsatisfactory quality of whose tes- timony I have already had occasion to comment) that union was mentioned. Accordingly, upon the preponder- ance of the substantial credible evidence upon the record as a whole, I find the complaint allegation in question es- tablished. January 20: Discharge of Parrish The complaint (Case 1, pars. 6[a], 6[c], 7, and 8) al- leges that on January 20 Respondent discharged its em- ployee Jerry Parrish because of his union organizational activities, discriminating against him by reason thereof, and to interfere with, restrain, and coerce him and other employees in the exercise of rights guaranteed to them by Section 7 of the Act. Jerry Parrish, now 30 years of age, entered Respond- ent's employ on November 27, 1971, as a second-shift pipeline insulator, and, until his summary discharge over 6 years later, on January 20, 1978, held a succession of more responsible jobs including that of leadman, shift leadman, and even acting foreman (November or De- cember 1976-June 1977) with 32 or 33 employees under him. In November 1977 he was assigned to the job of forklift and crane operator on the second shift. And, in a context of his union organizing activity, on January 18, 1978, 2 days before his discharge, he was taken off fork- lift/crane operations and returned to operating a shear, a job he had previously briefly held. Parrish testified to these and succeeding facts with persuasively quiet assur- ance and dignity, leading me to regard him as a witness worthy of credit. It will be recalled that on January 9 or 10 (Monday or Tuesday) Parrish's fellow-employee Marvin Hulett (a second-shift shear operator) engaged him in talk and in- terested him in the possibility of joining with him in at- tempting (again) to organize the employees for collective bargaining, although Parrish's initial reaction was that "if you start talking union, then your life expectancy at this plant is real short." Relenting after a few days, however, on January 13 (Friday), outside of the plant, Parrish asked Hulett for some union cards and agreed to com- mence on his own time and off plant property, soliciting employees to join; and he did so, commencing on Janu- ary 16 or 17 (Monday or Tuesday). It will also be re- called, however, that on January 9 or 10 Parrish had dropped the intelligence, during chitchat with General Fabrication Forman Fowler, whom he regarded as "one of the few people around here [who] really care what happens," that the Union was "pushing pretty hard to get in," adding to him a few days later (January 12 or 13) that the Union appeared to have 200 signed cards al- ready. It is necessary to consider this and subsequent events within the context of Respondent's established and conceded strong opposition to any union affiliation by its employees. On Wednesday, January 18, shortly after reporting to work, Parrish was abruptly and with- out forewarning removed from his forklifting drive and returned by Supervisor Allred to operating a shearing machine, Allred telling him merely that Plant Superin- tendent Ron Derby and Plant Manager Phil Hecht had told him (Allred) to "get [you] off the fork lift and put HEATILATOR FIREPLACE 549 [you] back on a machine . . . because it took [you] too long to load the truck . . . [and] to fire [you] for what- ever reason [I] could find and if [I] couldn't find one, to make up one." If this suddenly awakened interest by two top managers of the plant, Hecht and Derby, in a lowly employee like Parrish seems suprising it is even more so that Allred, Parrish's supervisor, testifying here, not only does not dispute Parrish's testimony but swears-and I credit him in preference to Hecht's denials-that on Jan- uary 13 or 16, Plant Manager Hecht called him into his office and asked him, "Would you feel uncomfortable firing Jerry Parrish.... I want him gone by 11 o'clock tonight if at all possible. You can use a reason like, he is not wearing his safety glasses, because he has been writ- ten up several times because he hasn't worn his safety glasses before.... I have statements that Jerry Parrish passed out union cards. .... He [is] the type of individu- al that we [do] not want or did not need in big [Vega?] industries." Hecht added-still according to credited tes- timony of Respondent's then foreman, Allred, an ex- tremely persuasive witness-that Allred could not use Parrish's passing out of union cards as a "reason" for ter- minating Parrish unless he saw him doing that "during working hours." Hecht directed Allred "to watch him [Parrish] so that he does not pass out cards and to watch him that he does not talk to other people concerning the union," and that if he observed him to be doing this "to terminate him." Allred informed Hecht that Parrish had told him that he (Allred), with others, was on a "hit list" of employees to be terminated. 14 On the following Monday, January 16-still according to credited testimony of Respondent's former foreman, Allred-Allred was again called into Plant Manager Hecht's office at the beginning of Allred's (and Parrish's) second shift in midafternoon. Hecht asked Allred if he had terminated Parrish on the previous Friday night (January 13). Allred replied that he had not since he had not observed him without safety glasses or passing out union cards. Hecht directed Allred to continue his watch over Parrish and to restrict Parrish's forklift operations to a confined area where he could not "talk" to other employees. A few hours later, Plant Superintendent Derby instructed Allred, "I want Jerry Parrish off the fork lift. I want him gone by Wednesday night. I don't want him.... I don't care what reason you use, tell him we need shear operators worse than we need fork lift op- erators . . . I don't want him able to go around and visit with other people . . . he will be less accessible to the people, running a machine.... less apt to be able to talk to people about the union.""' When Allred demurred it was for no reason, Derby rejoined, "You will do as I tell you, or I will get rid of you and find somebody that will." Derby added that Allred could write an employee up and terminate him the same night, specifically Parrish as well as another employee who had been observed passing out union cards. Allred thereupon carried out these orders and, on Wednesday evening, January 18, re- moved Parrish from his forklift operating job and trans- ferred him to operating a shear. Parrish asked Allred if '4 Allred was subsequently indeed terminated, on March 5 More will be said below about this "hit list." 16 I do not credit Derby's denial relating to this conversation. supervisory personnel were "watching [me]." Allred said they were, since he himself had observed that day that Hecht and Derby, as well as another high Company offi- cial, were keeping a close eye on Parrish. Parrish asked Allred if they were "out to get [me]." Allred said yes. Parrish asked him why. Allred replied, "I am not free to answer that question." On Thursday, January 19, Allred observed-confirming Parrish's own observations-that the foregoing three top company executives continued to keep a close watch over Parrish. All of the foregoing was impressively and, in my estimation, truthfully re- counted by Respondent's former foreman, Allred. A commentary on the quality of Parrish's work per- formance on the forklift, from which he was summarily removed on January 18, 2 days before his discharge, is afforded by yet another former foreman (stipulatedly a supervisor) of Respondent, Luther Pfeiffer, likewise an impressively credible witness. Pfeiffer, who was over Parrish in his forklifting operations, characterized Parrish as "extremely fast and extremely good.... You just didn't have to stand over and supervise him at all. whereas Parrish's replacement was poor. It will also be recalled that another of Respondent's supervisors, its Senior Special Projects Engineer'fi and former General Foreman Lloyd Fowler, at one time Foreman Allred's superior, likewise testified, persuasive- ly and without contradiction, that on Monday, January 16, Respondent's counsel, elicited from him that he had heard of union activity from Parrish, and that Shade asked him if he could get more information from Parrish. When Fowler demurred, Shade questioned him further and asked him to report additional information back to him, which Fowler indeed did a few hours later-the further information being that he had learned from Par- rish that around 200 union cards had been signed. Par- rish-also according to credited testimony of Fowler (whom I credit in preference to Hecht's denial)-had previously been removed from his job as third-shift lead- man (or acting foreman) and transferred to the second- shift (as a shear operator) around August 1, 1977, on order of Plant Manager Hecht, so that Parrish would have no further contact with other employees, in order to avoid "trouble and . .. union problems," Hecht char- acterizing Parrish to Fowler as an arrogant ... pusher." 1 7 Credited testimony of still another of Respondent's former high-ranking supervisors, one-time Night Shift General Foreman Jack Edwards establishes that on Thursday, January 19 (when Edwards was the Company subcontract coordinator, salaried and on a severance-pay basis [unlike rank-and-file employees], with an office of his own but no direct subordinates), as he was walking past Parrish's workplace, Parrish told him, "I'm going to "' Until his termination on March 7, 2 days after Foreman Allred. Par- rish had also disclosed to Fowler that he, also, was on Respondent's "hit list" to be terminated. See fn. 14, supra. At his termination Fowler was reminded by Plant Manager Hecht that he was being given severance pay and was expected to "cause[d] the company [no] embarrassment or problems." Hecht left "embarrassment or problems" undefined " Speaking of "pusherlsl," Foreman Allred's testimony, supra, will be recalled, that Plant Superintendent Derby told him in December 1977 that "1 will get rid of seven or eight good people to get rid of one union pusher." HEATILATOR FIREPLACE 549 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do something that I never thought I would do. I'm going to call Cranshaw [Respondent's president, at its home office in Syracuse, New York] and tell him what is going on around here ... especially in Fabrication." 8 Ed- wards wished Parrish "more power," while expressing doubt that Parrish could reach Cranshaw. The following day (Friday, January 20), Parrish and Edwards were ter- minated,19 under immediately preceding circumstances which will now be described. As he had indicated to Edwards on January 19, Par- rish attempted, by long-distance telephone from his home, to talk to Respondent's president, Cranshaw, in Syracuse, New York. Parrish was told he was not there and he did not leave his name. On the following morn- ing, January 20, Parrish again telephoned Cranshaw. This time, when he was told Cranshaw would not be in until the following week, Parrish asked that he telephone Lloyd Fowler or Jerry Parrish of Respondent's Mt. Pleasant plant. Parrish thereupon apprised Fowler of this and requested Fowler to supply Cranshaw with Parrish's telephone number if he called. Fowler said he would, but asked why Parrish had left Fowler's name also. Parrish replied that since Cranshaw knew Fowler's but not Par- rish's name, it was more likely that Cranshaw would call back. However, Parrish thereupon again telephoned Cranshaw's office and canceled the request that he call Fowler, specifying instead that he call Parrish only. As soon as Parrish reported to work that afternoon (at 3 p.m.), Plant Superintendent Derby informed him that "the old man wants to see you up in front office.... Phil Hecht wants to see you." Parrish reported to Hecht's office immediately, there encountering Hecht with two other company executives. Without prelimi- nary, Hecht asked Parrish why he had called Syra- cuse. 2" Parrish said it was a personal matter. Hecht asked if he had talked to Cranshaw. Parrish said no. Hecht asked Parrish where he had obtained his informa- tion about a "hit list."21 Parrish declined to say. Hecht asked what the list was. Parrish explained it was a list of individuals to be fired at the earliest opportunity. Hecht asked him who was on it. Parrish responded that it was himself, Fowler, Allred, Edwards, and Pfeiffer. 22 Hecht repeated his demand for the source of Parrish's informa- tion, stating he wanted to know whom the Company could not "depend on" in the front office. Hecht then or- dered Parrish to return to work. About an hour and a half later, Parrish was again summoned to Hecht's office, where Hecht this time asked him where he had obtained the Company's Syracuse number. Parrish replied it was out of the telephone book. Hecht again asked why Par- rish had called and Parrish again said it was "personal." '8 A little over a week prior to this. Parrish had discussed with Ed- wards perceived problems concerning overtime and efficiencies as well as the way Parrish had been treated (demotional job transfers, supra). In acordance with his usual practice, Edwards had, on or about January 10, reported this discussion to Plant Manager Hecht. However, Edwards did not report the conversation of January 19. 19 No issue is presented here concerning the termination of Edwards. 20 Fowler had reported to Hecht and Shade what Parrish had told Fowler. When Fowler was asked to take a lie detector test, he indignant- ly refused. 21 See fns. 14 and 16, supra, and accompanying text. 22 All were, indeed, terminated that day or shortly afterwards. Hecht reiterated his demand for the source of the "hit list." Parrish repeated he could not disclose the source because of a personal promise he had made. When Hecht insisted he disclose the source, Parrish asked him what "options" he had if he did not do so. When Hecht did not respond, Parrish disclosed his source by name- James D. Bass, a card-playing associate and former em- ployee of the Company, who Parrish further indicated he believed had obtained it from a female friend of Bass' in the office. Parrish was told to return to work. Parrish there (at the shear) rejoined his assistant, Hulett-who, it will be recalled, had procured the union cards which he and Parrish had been distributing around among the em- ployees for signature-but Parrish was abruptly, in mid- shift and without explanation, removed from the shear operation and assigned to a brakepress until shortly after 6 p.m., when he was again escorted by Plant Superin- tendent Derby to Plant Manager Hecht's office, where, in the presence of Derby and another executive (Tucker, who did not here testify), Hecht again demanded that Parrish disclose his source of information about the "hit list." Parrish reiterated his previous responses. Hecht then demanded to know "Who [is] behind the union?" Parrish said he did not know.23 But at some point Par- rish did tell Hecht that he had called Cranshaw to tell him about conditions in the plant and the advent of the Union. Hecht terminated the episode and Parrish's 6-year employment with, "You have tried to unsurp [sic] . . . the authority of management class personnel. You are fired. You will be escorted back to your machine to pick up your personal belongings and then you will be escort- ed out of the plant." According to the testimony of Re- spondent's former executive and general foreman, Fowler, on the following day (Saturday, January 21) Plant Manager Hecht told him on the telephone that Parrish had been fired "for trying to undermine manage- ment." However, Fowler credibly further swears that Company President Cranshaw had previously apparently encouraged direct calls in case of "any problems." Respondent's officials Hecht and Derby testified con- cerning the foregoing. Plant Manager Hecht (who re- ports directly to Company President Cranshaw in Syra- cuse, New York), initially testified that he discharged Parrish for three reasons: (1) because he had made known the "hit list," (2) because he had lied to him about making known the "hit list" and (3) because he had first denied and then admitted he had telephoned the corporate offices directly. When he testified later in the proceeding, however, Hecht indicated that he discharged Parrish only because of the "hit list" episode and nothing else, "for lying to me; for trying to discredit a member of management;2 4 . . . and because he would not di- vulge to me who the girl in the office was [who had dis- 2s Upon the basis of comparative testimonial demeanor observations, I credit Parrish, over the denials of Hecht and Derby, that the statement ascribed to Hecht was made. That Parrish's response may be taken as in- dicative of the coercive character of the interrogatory, cf. Bonnie Bourne, an individual d/b/o Bourne Co. v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964). 24 Hecht indicated the member of management to be Fowler, but the manner in which Parrish is regarded as having attempted to "discredit" him remains seemingly unexplained. It will be recalled that Fowler him- self was terminated shortly thereafter. HEATILATOR FIREPLACE 551 closed the "hit list"]." 25 Concerning Parrish's call to Cranshaw, Hecht takes the position that while it was not "wrong" for Parrish to call Cranshaw, but was "wrong" for him to leave somebody else's name, 26 while at the same time conceding that it was not "necessarily" wrong to call Cranshaw and leave another name while also in- forming the other person he had done so and to refer Cranshaw's call to him (Parrish) when he called back. Not even Hecht, apparently, takes the position that Par- rish was fired because of his calls to Cranshaw. Hecht concedes that the quality of Parrish's work was satisfac- tory. Plant Superintendent Derby added little of significance to Hecht's account. Derby's testimony, interlaced with hedging, vacillation, and evasion, was in large part-par- ticularly in his attempts to deny awareness of union orga- nizational activity other than vague "rumors, general scuttlebutt"-unconvincing. He conceded, on cross-ex- amination, that in January, as always, Respondent was opposed to "unionized or organized labor. We were a non-union plant.... We were our own boss and could run our own factory." With regard to Respondent's dis- ciplinary procedures, in light of the precipitate nature of Parrish's discharge after over 6 years of satisfactory per- formance, while Derby described a four-step procedure, including an initial "verbal warning notice" and eventu- ally discharge as the fourth step, he also indicated this policy was "kind of ... mixed" and not followed "like it should have been in a lot of areas." 27 I reject any testimony, suggestion, or intimation by Hecht or Derby that they were ignorant and unaware of Parrish's union organizational activities-the credited evidence, as recounted above, is overwhelmingly to the contrary. On the record presented, I am persuaded that the true and sole causative reason for Parrish's discharge was his known participation and relative preeminence in union organizational activity in a plant with an established in- tolerance to such activity by its employees and one which remains opposed (in Plant Superintendent Derby's words) to "unionized or organized labor. We were a non-union plant.... We were our own boss and could rs It will nevertheless be recalled that Parrish had told Hecht who gave him the "hit list"-i.e., Bass. While purporting not to believe Par- rish, Hecht concedes he made no attempt to determine the accuracy of Parrish's statement, either through Bass or in any other way. 26 The circumstances of this episode, including the fact that Parrish also left his own name, informed Fowler, and at once placed another call to Cranshaw's office and canceled Fowler's name, will be recalled. 27 While, on comparative testimonial demeanor observations and Derby's generally evasive mien and evasive testimonial performance I would have no rational basis for crediting (and therefore do not credit) his statement, in preference to Parrish's denial that, when Derby escorted Parrish out of the plant after the latter's discharge, Parrish remarked to Derby, "I will get that little son of a bitch," seemingly referring to Hecht who is short of stature, I would nevertheless in any event not regard such a remark as disqualifying Parrish-abruptly fired after 6 years of ad- mittedly satisfactory work-for reinstatement, under the circumstances shown. 2s No suggestion is here intimated that such ideas may not be enter- tained or such ideas fostered (other than requiring, insisting upon, or en- forcing a "non-union plant") by an employer, provided this is done within the context of obedience to the congressionally declared national will as expressed in the Act run our own factory." 2 s Parrish was a satisfactory em- ployee of over 6 years' standing in a plant with a high labor turnover. When, in a context of continued employ- er opposition to any attempt at unionization of its em- ployees-which is the employees' right guaranteed by the Act-Parrish emerged as a known union "pusher," it was this and this alone which with stark suddenness pre- cipitated his sure job demise. Under the circumstances shown, I am persuaded and find that the reasons ad- vanced by Respondent for its discharge of Parrish were and are pretextuous, the true reason being his union or- ganizational activity. 29 Also on the date of Parrish's discharge, January 20, according to the complaint (Case 1, pars. 5e] and 7, as amended at the hearing and as amplified by bill of par- ticulars), Respondent through its agent and attorney Shade again directed an employee to observe and report on employees' union activities. This once more refers to a request or direction by Shade to Fowler, of the same genre as the second one on January 16 (supra), made on January 20 after Fowler reported to Hecht on Parrish's attempted telephone call to Cranshaw. Since, according to Fowler's credited testimony, all that Shade asked or told Fowler to do was "if [you hear] anything else to be sure and report it, as far as union activities [are] con- cerned," and-as I have said before-in view of Fowl- er's relative eminence in Respondent's executive hierar- chy, I do not regard such a request or direction to him, as a close ally of management, to have been improper, so long as mere reporting of information "heard" and no unlawful procurement of such information was directed, asked, suggested, or involved, and in this instance there is no basis for concluding there was. I accordingly find the allegations of the complaint paragraph under discus- sion not sustained, and grant Respondent's motion to dis- miss it. The complaint (Case 1, pars. 5[f], as amended at the hearing to add interrogation, and 7) still further alleges that on January 26 or 27, Respondent through Plant Manager Hecht again directed an employee to observe and report on employees' union activities, and also inter- rogated the employee on that subject. Once again, the "employee" involved is Fowler, about whose hierarchial status repeated comment has already been made. In view of that status and since, according to Fowler's credited 29 I do not credit Hecht's supplemental contention that he also fired Parrish-an employee of over 6 years' standing-for "lying" to him in not immediately admitting and disclosing to him the source of his infor- mation about the "hit list." To begin with, the fact is that Parrish did not "lie" to him, but disclosed his source. It is additionally to be noted that there is no basis for concluding that Parrish was in any way involved in any scheme or plot to procure that "list," or that he participated in its procurement; on the contrary, he came by it innocently and accidently As for Parrish's attempts to reach Cranshaw on the telephone to venti- late his concerns on behalf of employees, within the context of Parrish's organizational activities, although seemingly no serious contention is pressed that Parrish did not have that right or that he was discharged for its exercise, even if it were, Parrish's action was protected under the Act Cf., e.g., N.L.R.B. v. Washington Aluminum Company. Inc., 370 U S 9 (1962); Guerdon Industries, 199 NLRB 937 (1972) HEATILATOR FIREPLACE 551~ 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony, the only thing that Hecht asked him was "If [you have] heard anything more about the union," and, after Fowler said "No," that "if you do, you be sure and let me know about it," for the same reasons explicated in the immediately preceding paragraph concerning Shade on January 20 (Case 1, pars. 5[e] and 7), I find the allega- tion in question (id., par. 5[f]) not sustained, and grant Respondent's motion to dismiss it. C. Alleged Unfair Labor Practices in February February 10: Discharge of Baylor The complaint (Case 1, pars. 6[b], 6[c], 7, and 8) al- leges that on February 10 Respondent discharged its em- ployee Kenneth Baylor because of his union organiza- tional activities, discriminating against him by reason thereof, and to interfere with, restrain, and coerce him and other employees in the exercise of rights guaranteed to them by Section 7 of the Act. Kenneth Baylor, now 23 years of age, with about a year and a half of college involving heavy emphasis on mathematics, entered Respondent's employ in March 1976, continuing there for 2 years until his discharge on February 10, 1978. Baylor started as a punchpress opera- tor in the Fabrication Department, but soon (after 3 months), at the invitation of Tool and Die Shop Fore- man Ed Seggerman, competed for a prize assignment to the Tool and Die Shop. After interviews and testing, Baylor emerged as the successful candidate and was as- signed to the first shift of the Tool and Die Shop as an apprentice under a formal federally funded training pro- gram under which he purchased his own tools but was to receive subsidized outside schooling for 3 hours a week for 4 years plus 8,000 hours of shopwork. During all of his tenure as a tool and die apprentice, Baylor functioned under Tool and Die Shop Foreman Segger- man, for a time as leadman on the third shift, 3° perform- ing the regular duties of a tool and die apprentice and attending classes at the same time. In November 1977, when Senior Engineer Young and Tool and Die Design Department Supervisor Pidgeon invited Baylor to trans- fer to that department as a better opportunity, Baylor, after consulting with Seggerman, followed his suggestion and declined in order to attain his tool and die journey- man status first. At the time of his precipitate discharge without forewarning on February 10, under circum- stances to be described, Baylor had successfully complet- ed close to half, or 3,600 hours, of his required shopwork to qualify as a full-fledged journeymen tool and dieman, and he had progressed from a starting tool and die shop wage rate of $3.83 to $4.90 per hour. He credibly insists there was no criticism or warning concerning his work during his entire tenure as a tool and die apprentice up to the time of his precipitate discharge on February 10, with one very early exception described below. On February 8-2 days before his precipitate dis- charge-Baylor accepted and signed a union card, which "0 Although Baylor was advanced by Seggerman to be leadman on the third shift and served in that capacity from October 1976 to January 1977, he was constrained to request (and he received) reassignment to the first shift because (of inability to procure a babysitter since his wife also worked he returned to a fellow worker (George Light) the next morning, February 9, 1 day before his discharge. On the following morning, February 10-the day of Baylor's discharge-at or around 10 a.m., in the Tool and Die Shop, a discussion took place in loud tones ("just about a yell": Baylor) above a din of the machines being operat- ed by Baylor, with tool-and-die maker George Light and tool and die machinist Clifford Peron, in the presence and within earshot of first-shift Tool and Die Leadman John Mayberry (a witness herein on behalf of Respond- ent, as will be shown). Baylor yelled out at Light, "What [is] going to happen with the union cards," since (as Light stated) "Bob Seggers had been fired [on February 9] and [Seggers] supposedly . . . was to get the union cards back." 3' Light yelled back that he had given them to punchpress operator Gerald Adams. Parrish-to my observation a highly sincere and utterly credible young man whose testimony is worthy of credit, and whom I believe-insists that during the foregoing exchange Lead- man John Mayberry was looking right at him, and that Mayberry registered suprise and left the Tool and Die Shop a few seconds later. As he did so, Peron remarked to Baylor, "Your days are numbered." 3 2 Baylor con- firmed that-as has already been shown-it was common knowledge throughout the plant that union activity by employees was in no way tolerated. Baylor's foregoing account, which I credit, is corroborated by both Light and Peron, the latter still in Respondent's employ at the time of the instant hearing. 33 Within a matter of 2 hours thereafter, at or around noon of February 20, Baylor was, indeed, summarily dis- charged from his promising 2-year employment and the budding journeyman tool-and-die man status which had up to this point seemed assured. The circumstances of that discharge and Respondent's explanations for it as well as General Counsel's counterproof will now be de- tailed. Respondent's normal workweek is 5-1/2 days, includ- ing 5 hours on Saturday on a voluntary basis. Earlier during the week in question, Leadman Mayberry had asked and Baylor had agreed to work overtime on Satur- day, February 11. 34 However, within 2 hours after May- berry had heard the described union talk, Baylor was summoned by Mayberry to Tool and Die Shop Foreman Seggerman's office, where Baylor was abruptly handed two "writeup slips," allegedly dated January 10 and Feb- ruary 10 (G.C. Exhs. 17 & 18). Neither is signed by Baylor, notwithstanding a blank space for "Employee Signature." Baylor asked Seggerman why he had not "3 Earlier that morning, Baylor had learned from Peron that Seggers had been discharged the day before "for union activities." 32 This prediction would have been more accurate if Peron had said Baylor's hours were numbered, as will be shown. 33 We have been instructed that the circumstance that a witness in the current employ of a respondent employer testifies against the interest of the employer, is a factor to be weighed in favor of such a witness in as- sessing his credibility. Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir 1962); Wirtz v. B.A.C Steel Products, Inc., 312 F 2d 14, 16 (4th Cir. 1962). 4' Also earlier in the week Mayberry had asked Baylor if he could work overtime during that week, before Saturday, but Baylor indicated that due to the short notice he could not do so since he had to pick up his 5-year old daughter at school 9 miles away at 3:10 p.m., 10 minutes after the end of his shift Mayberry did not demur. HEATILATOR FIREPLACE 553 been apprised of these before. Seggerman responded, "You don't have to see them." When Seggerman asked Baylor to sign the alleged "2nd" warning (February 10, G.C. Exh. 18), Baylor declined to do so, saying he disa- greed with it.3 5 Seggerman then handed Baylor a third paper, dated October 27, 1976-almost a year and a half previously-which referred to a "counciling session" for a die improperly reassembled by Baylor, and which report ("lst occurrence") Baylor had signed. It is to be observed that not only did this occur at the outset of Baylor's apprenticeship, but that there is no showing that such an error was extraordinary or that it had in any way been repeated in the ensuing period of close to a year and a half. When Baylor asked Seggerman why this old slip had not been taken out of his file, since-as Seg- german as well as Plant Manager Hecht had an- nounced-it was company policy to remove such docu- ments from personnel files after a year, Seggerman made no response other than to hand Baylor a discharge slip and tell him, "Here's this, and we want your keys." Baylor tossed the discharge slip back. Baylor insists, and I believe him, that at no time prior to this dramatically sudden session had Seggerman, Mayberry, or anybody else indicated to him that he was a candidate for dis- charge. When Baylor asked Seggerman why he was being discharged, Seggerman indicated it was because of Baylor's refusal to work overtime" and "mess[ing] up" Black #18 Die. When Baylor asked, "How come I wasn't given a chance to transfer to a different depart- ment"-like others, in the Tool and Die Shop's standard practice 3 7-Seggerman merely replied, without further explanation, "You've already cost the company enough money." Baylor credibly swears that at no time did he receive or was he ever shown, prior to the instant hear- ing, an employment termination slip placed into his file by Respondent, which suddenly purports to rate him markedly worse than his previous ratings-indicating, for example, that his "job knowledge" is (notwithstanding his lengthy prior, promising apprenticeship) "limited" (the next lowest rating to "poor")-and alleges that "Scott has been warned, counciled several times at and 35 The "first" (January 10, G.C. Exh. 17) of these unilateral alleged "warnings" to the file rather than to the employees, states that-although written-it is "verbal" and is for "General inability (because of applica- tion) to perform at 3,000 hour level of training"; with the comment that "Scott has ability but dosen't seem to want to apply himself." The "second" (February 10, G.C. Exh. 18) so-called "Employee Warning Notice" to the file states, again, that it is for "General inability (because of application to perform at 3,000 hour level of training)" with the com- ments: "Black #18 die! Scott has been counciled and warned several times before this, without anything written down. I was hoping to cor- rect the situation with Reviews & the councilling at these sessions. But to no avail! Scott refused to sign this warning, he dosen't agree with inabil- ity statement." Both are signed by Seggerman. Under all of the circum- stances, including their wording and the fact that neither was shown to Baylor before he was precipitately discharged within 2 hours after his union affiliation became known, they smack of familiar attempts to "create a record" retroactively to justify a discharge violative of the Act. 16 When Baylor pointed out that employees had been told that over- time was optional, Seggerman made no response. 37 At the hearing, Baylor reviewed and identified the cases of other tool and die apprentices who, unlike him, had, in accordance with Re- spondent's regular practice, been permitted to transfer elsewhere in the plant in case of inability to meet the stringent requirements of tool-and- die work. between merit Reviews, 38 and still hasn't shown enough improvement to warrant his continued employment" (Resp. Exh. 11). On February 11, the day after Baylor's discharge, he received a telephone call from Respondent's apprentice tool and die engineer, John Lanferman who asked him if he had been "pushing the union." Baylor said no, but that he had signed a union card. Lanferman disclosed to Baylor that he had learned from Chief Tool and Die Design Engineer (and conceded supervisor) Pidgeon that the decision to fire Baylor had come from "way up"- seemingly an indication that it was for "pushing the union." Baylor denied he had been "pushing the union," but that he had merely signed a union card and was not thinking of placing the matter before the National Labor Relations Board. Testifying under Federal subpena as General Counsel's witness, John Lanferman-still in Re- spondent's employ 3 -swore that after he heard about Baylor's discharge, he asked his supervisor, Chief Tool and Die Design Engineer Pidgeon, in his office on that day (February 10) why Baylor had been discharged. Pid- geon warned Lanferman "not to pursue it any farther or [you] might cut [your] throat . . . The decision had come from high up . . . leave it alone." Later that day, Lanferman again insisted Pidgeon, this time in the com- pany of Respondent's office secretary Kitty Meeks, and repeated his earlier query, but Pidgeon only repeated his earlier response-this time to Meeks as well as Lanfer- man.4 0 But during the following week, as will be shown below, Supervisor Pidgeon admitted to Lanferman that the reason for Baylor's discharge was indeed because he had signed a union card. On February 13, the Monday following his discharge, Baylor asked Respondent's personnel manager, Hussey, in the latter's office at the plant, why-unlike others-he had been denied the opportunity to be transferred out of the Tool and Die Department. Hussey's response was, "I asked the same question myself ... of Ed Seggerman [and Seggerman] said it was a disciplinary problem."4 To this Baylor accurately replied, "My merit reviews and writeups did not reflect that." Hussey's only sugges- tion was that Baylor could see Hecht about it, to which Baylor's response was that he did not "need [a] run- around." Since, without explanation, Hussey was not produced to controvert the foregoing, credibly testified to by Baylor, this uncontradicted testimony of Baylor is likewise credited. After a contested hearing on his subsequent application for unemployment insurance benefits, arising out of this discharge, Baylor prevailed and was awarded those benefits, Respondent's contepion that Baylor was dis- charged for cause being rejected. Respondent contends it discharged Baylor-2 hours after its discovery of his union affiliation-because of in- 38 There is no such proof here, other than the single counseling report in October 1976 at the outset of or early in Baylor's apprenticeship. a9 See fn. 33, supra. 4' Without explanation, Meeks was not produced to dispute the fore- going. I credit Lanferman's described testimony in preference to the un- convincing denial of Pidgeon, who swore he did not even know Baylor had been terminated. 4' There is no credible support in the record that Baylor had been a "disciplinary problem." between merit Reviews,33 and still hasn't shown enough * " e a * as s * s - - - - - - improvement to warrant his continued employment" 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eptness or inefficiency in his job performance, lack of qualification to be a tool and dieman, and specifically his allegedly inexcusable, maladroit fabrication of an intend- ed replacement of a worn stripper pad for a "Black #18 Die."4 2 As to the former, the credited proof does not bare out Respondent's current contention that Baylor was an unqualified, inept, sloppy, slothful, inattentive, or undiligent tool and die apprentice. His nomination and competitive selection by Respondent for that job, his re- tention in the federally subsidized training program, as well as Respondent's own on-the-job ratings, 43 and also credited testimony of other tool and diemen qualified to evaluate his work product4 4 established the contrary. As to the latter reason or excuse for his discharge (re- placement stripper for Black #18 Die), much time was expended at the hearing in attempting to show that Bay- lor's imprecision in production of the intended replace- ment stripper, as "established" by disputed thousandths of an inch Vernier measurements, was the true reason for his discharge. After painstaking review, close analysis, and careful consideration of the entire record, however, I am persuaded that this was not the true reason at all for Baylor's discharge, for the following principal rea- sons, established by credited testimony: (1) Baylor's past performance on the job, as attested to by his ratings by Respondent itself 45 and the expert evaluations of other 42 Baylor's credited testimony establishes that when he left work on February 9, there remained only 3 or 4 hours work to be done on the stripper pad, on which he had been working. When he arrived at 6:50 a.m. on February 10, Mayberry told him, "[You've got] a hole [on a stripper pad] off a little bit"--a not uncommon occurrence in such work, requiring the hole to be plugged and rebored, a simple task, which Baylor indicated he would do, drawing from Mayberry an approving "All right." At 8 a.m., however, Foreman Seggerman told him to work on some glass door dies, apparently more needed, and to "just let it [the stripper pad] sit. Don't worry about it." Baylor pointed out that he had already plugged and was ready to redrill the hole, which was some 40/ 1000ths of an inch off. (According to Mayberry, four holes were already plugged, but he conceded that about 2 hours work-even less than Baylor estimated-remained to complete the stripper pad.) Plugging re- stores the original surface so that the hole can be redrilled in a matter of minutes. But Seggerman indicated he should work on the glass door dies. Although the necessity for plugging a misdrilled hole or holes is fairly common-on the order of four or more a week, including admittedly by Mayberry himself, this was the first hole Baylor had misdrilled, although he had plugged holes misdrilled by others. Plugging does not impair the utility of the stripper pad. Notwithstanding the foregoing and that per- haps only 10 minutes would have been required to redrill the already plugged bolt hole to make the piece usable (and perhaps 3 hours to com- plete several as yet incompleted spring pocket and other holes), Respond- ent discharged the stripper pad as scrap, and it would therefore have been unavailable as evidence here if Baylor had not retrieved it from the scrap heap and produced it at the hearing. I reject any intimation that this involved any misdeed on the part of Baylor, whose action in preserv- ing evidence from a junk heap to save his job is understandable. A party has no inherent right to prevent facts from coming to light through dis- carding evidence It is also to be noted that Baylor, who carried out Seggerman's instruc- tions and even measurements made by Seggerman himself on the irregu- larly (oval) shaped center hole of the stripper pad, was not the only person who worked on the stripper pad, so that any "error" therein is not necessarily ascrible to Baylor-as Baylor credibly explained on rebut- tal without contradiction. 43 G.C. Exhs. 21-27 Many if not most of these, it will be noted, signed by Seggerman, are "Excellent." Mayberry himself had commented to Baylor in mid-January that Seggerman's rating of him for that period also, should have been "excellent" rather than just "good.'" I.e., Light, Peron, and lanferman. 4s G.C. Exhs. 21-27. disinterested tool and diemen witnesses; 4 6 (2) the absence of any credible, substantial, factual record of poor or in- efficient work on Baylor's part, and Respondent's failure to charge or intimate to him that his performance was unsatisfactory or that he was headed for discharge; (3) the absence of any record of poor or unacceptable work by Baylor on the particular stripper pad in question; (4) the fact that drilling error of the nature ascribed to Baylor was not uncommon, even by experienced jour- neymen tool and diemen, and readily and inexpensively correctible; (5) the fact that the allegedly defective strip- per pad had already been corrected and little remained to complete it and render it usable; (6) the fact that it was unnecessary to discard the stripper pad in question, since it could readily have been completed for use; (7) Respondent's inexplicable act in discarding an important item of evidence in this case; (8) the fact that no actual loss or damage has been established; (9) the abrupt timing and precipitous nature of Baylor's discharge, 2 hours after his participation in union affiliation and activ- ity was discovered by Respondent; (10) admissions, or their practical equivalent, by Respondent's responsible officials 4 7 as to the union-related basis for Baylor's dis- charge; (11) the fact that no employee was shown to have been discharged previously for error of the nature here claimed; (12) significant testimonial inconsistencies between Respondent's principal witnesses Seggerman and Mayberry; 48 (13) adverse reactions to Seggerman's constant backtracking and evasions; (14) testimonial de- meanor comparisons, clearly preponderating, for the most part, in favor of General Counsel's principal wit- nesses; and (15) evaluation and assessment of the forego- ing within the frame of reference of Respondent's estab- lished history of opposition to union affiliation by its em- ployees, and its concededly continuing intolerance to the exercise of its employees' rights under the Act, as ex- pressed from the witness stand at this very hearing- "management [is] opposed to unionized or organized labor. We [are] a non-union plant.... We [are] our own boss and [can] run our own factory." Continued intransi- gent refusal to bend to the requirements of Federal law so as to refrain from interference with the exercise of its employees' rights thereunder does not bode well for ac- ceptance of Respondent's transparently pretextual rea- sons for discharge of its employees precipitately on the heels of their attempted exercise of those rights. I find that the reasons advanced by Respondent for its discharge of Baylor were and are pretextual, and that the 46 Light, Peron, and Lanferman. 4 Pidgeon and Hussey, as established by credited testimony of Lanfer- man and Baylor, supra. 4s And also Mayberry's testimonial equivocations, modifications, and retractions under cross-examination, including his testimonial retraction of what was exposed as his earlier testimonial supposition that shimming of Baylor's piece would have been required-in any event not established to be unique-when it was shown that its overall measurements were longer than that of the worn stripper pad. When this was demonstrated, Mayberry conceded that he had failed to make this vital measurement and that shimming of the Baylor-produced replacement stripper pad would not have been necessary, and he retracted his contrary earlier tes- timony. Testimonial errors of such magnitude in a context of insistence upon the utmost precision on the part of an apprentice, and also because they reflect adversely on the vaunted expertise of the testifier, do not conduce to implicit reliance upon his other conclusions. HEATILATOR FIREPLACE 555 true causative reason for that discharge was its discovery of his union affiliation and participation. It is accordingly found that the allegations of paragraphs 6(b), 6(c), 7, and 8 of the complaint in Case I have been established by preponderating substantial credible evidence upon the record as a whole. The complaint (Case 1, pars. 5[i], 5[j], and 7) further alleges that on or about February 15 Respondent through its Chief Tool and Die Design Engineer Pid- geon stated to an employee that another employee had been discharged for union activity, and interrogated the employee concerning employee union activity. Concern- ing this, Respondent's apprentice tool and die design en- gineer, John Lanferman, testified, under subpena, that during the week following Baylor's February 10 dis- charge he asked his supervisor, Pidgeon, in the presence of a named employee who was not produced to refute him, whether Baylor had been discharged because he had signed a union card and that Pidgeon replied, "You guessed it." When Lanferman remarked that the wrong person had been fired, Pidgeon asked Lanferman, "Do you know who is pushing the union in the shop," but Lanferman declined to provide this information. Shortly thereafter, Lanferman heard Pidgeon tell office secretary Kitty Meeks (who likewise was not produced to refute him), that Pidgeon had heard that Baylor "had a wallet full of union cards." Although Pidgeon in effect denies the remarks ascribed to him, on comparative demeanor observations I credit Lanferman, who at the time of his testimony was still in Respondent's employ under Pid- geon. 49 Nevertheless, inasmuch as it was Lanferman who initiated the response, "You guessed it" from Pid- geon by asking Pidgeon the direct question of whether Baylor had been discharged for signing a union card, I cannot regard this particular allegation, as cast in the complaint (Case 1, par. 5[i]), as established, since the thrust of the allegation is that it was violative of Section 8(a)(1), which I do not view it as having been under the circumstances described-Pidgeon merely answered a question put to him by Lanferman in leading form. How- ever, I do regard Pidgeon's later question to Lanferman, asking him who was the union activist in the shop, as im- permissible interrogation, and accordingly find that alle- gation (Case 1, par. 5[i]) established. D. Alleged Unfair Labor Practices in March to Beginning of April We come now to the second complaint (Case 2), which, to begin with, alleges (pars. 5[a] and 7) that on or about March 19 or 26, Respondent through Supervisor Marilyn Miller directed employees not to attend a union meeting. As to this, Respondent's former third-shift spot welder Lucy Jane Cowger's testimony establishes that soon after the start of her shift at 11 p.m. on a Sunday night around the start of April, all 15 spot welders were assembled near the office of their Supervisor Miller, who told them, "I don't want you guys going to the union meeting Tuesday." Since, without explanation, neither Miller nor any other witness was produced to controvert the foregoing in any way, it stands wholly uncontradict- 49 See, e.g., fn. 33, supra. ed, as a blatant instance of interference with employees' Section 7 rights. Accordingly, I find the allegation in question established. The second complaint (Case 2, pars. 5[b] and 7) also alleges that around the end of March Respondent through Supervisor Roger Duncan told an employee it would be to the employee's advantage not to attend a union meeting and not to encourage union representation of employees. Regarding this, Respondent's former third- shift employee Rosetta Ingle testified that while she was at work in the plant late Sunday night, April 2, she was approached by her Supervisor Roger Duncan, who asked her whether she had received a letter from the Union concerning a union meeting. When she said no, he asked her whether she intended to go. She indicated un- certainty. Duncan then told her, "The company and [I] would like to ask [you] not to go and not to encourage anyone else to go" and that "it would . . . be to our ad- vantage if you didn't go and not to attend and . . . it would be to your best advantage if you didn't attend." She did not attend the meeting. She was nevertheless subsequently terminated by Duncan, and filed various charges or claims which were apparently still pending at the time of this hearing. Testifying on the same subject, Duncan throws a different cast on the conversation, which he admits having had. According to Duncan, he said no more to Ingle (as well as to some 40 other subor- dinates) than that "we the company prefer you not attend the meeting and would certainly . . . appreciate your not signing a card." While a prepossessing witness, nevertheless, considering his interest as a supervisor, and after carefully assessing his testimonial demeanor in com- parison to that of Ingle, I was far more impressed by the direct, persuasive simplicity of Ingle as she testified and remained unshaken on cross-examination. Accordingly, preferring and crediting Ingle's version, I find the allega- tion established by a preponderance of the substantial credible proof. The second complaint further alleges (Case 2, pars. 5[d] and 7) that in late March or early April, Respondent again, this time through Supervisor William Pratt, direct- ed employees not to attend a union meeting. As to this, welder Russell Dunn, still in its employ at the time of hearing, testified that, in the factory on the night of April 3 before a union meeting scheduled for April 4, Supervisor Pratt stated to him, "I would appreciate it if you would not go to this . . . union meeting or sign any union cards." Dunn nevertheless attended the meeting (as did about 15 or so others), at which fellow employee Gregory Wakefield-who was fired on the very next day, April 5, under circumstances detailed below-was the most ardent spokesman. The foregoing account of Dunn, who was not cross-examined, was in no way dis- puted by any witness, including Pratt, who, without ex- planation, was not produced. Although Respondent has moved to dismiss this allegation on Dunn's testimony, I am of the view that, particularly within the congeries of all of the circumstances which have been described, Re- spondent's further direct attempt on a one-to-one basis through its supervisors to pressure or "persuade"-the HEATILATOR FIREPLACE 555 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line is frequently a thin one°0-its employees not to attend union meetings, was an unjustifiable intrusion into the employees' own affairs, comprising interference with their right to conduct those affairs untrammeled and un- burdened by the gnawing doubts and fears such "ap- peals" by the person controlling their jobs are bound to induce. Respondent's motion to dismiss this allegation is accordingly denied and the allegation found to be estab- lished. Paragraph 5(c) of the complaint in Case 2 was, on Re- spondent's motion, dismissed at the hearing without op- position for failure of proof. E. Alleged Unfair Labor Practices in April: April 5 Discharge of Wakefield Finally, the second complaint (Case 2, pars. 6[a], 6[b], 7, and 8) alleges that on April 5 Respondent discharged its employee Gregory Wakefield because of his union ac- tivities (on behalf of District 131, IAM, Charging Party in Case 2), thereby discriminating against him and em- ployees for that reason and to discourage such activities, and also interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act. Gregory Wakefield, now 31 years of age, entered Re- spondent's employ in September 1977 as a heavy welder on its night shift, at a starting rate of $3.69, from which he progressed to $4.605 per hour. There is no contention or suggestion that Wakefield's capability as a welder was unsatisfactory. Wakefield had been an IAM union member in his pre- vious place of employment. An organizational meeting of that union (Charging Party in Case 2) was announced, in mailed writing (G.C. Exh. 10), for the evening of April 4, at nearby Machinists Hall. On the evening of April 3, the day before the meeting, Respondent's third-shift welder, Russell Dunn-still in its employ at the time of this hearing, after 3-1/2 years5 t-was approached by his (as well as Wakefield's) supervisor, William R. Pratt, who said to him, "I would appreciate it if you would not go to this meeting-to this union meeting or sign any union cards." Notwithstanding this, Dunn attended the meeting, at which, according to Dunn, Wakefield was the principal spokesman of the 15 or so there. Wakefield emphasized the need for higher wages and improved working conditions, including better ventilation, elimina- tion of noxious fumes, and protection of welders against burns. At the same time, remarking that "working for Vega is like working for the Gestapo," Wakefield warned against jeopardizing their jobs through organiza- tional activity within the plant, and instead suggested dis- tribution of literature outside of the plant.5 2 On the morning of April 4, Respondent's tool and dieman, George Light, was also approached by Tool and 50 One is impelled to recall the expression of Mr. Justice Harlan, speaking for a unanimous Supreme Court in NL.R.B. v. Exchange Parts Co., 375 U.S. 405 at 409 (1964), the "fist inside the velvet glove" in the context of an employer with great economic power who claims he is doing no more than seeking to "persuade" individual employees to do him the favor of not exercising that right to act collectively which is guaranteed to employees as the Act's central feature. ' See fn. 33, supra. 52 Credited testimony of Dunn. Die Shop Foreman Seggerman, who asked him whether he was aware of the union meeting to be held the next day, and that evening (April 4) Seggerman "ask[ed]," "advised," and "suggested" to Light that Light "not . . . go to the meeting" since it was "not ... necessary" and that "we had a pretty good place to work, and [I] want[ed] you to stay out of it . . . and [don't] want any of the die makers to go." Seggerman then proceeded from man to man to talk to each one individually.5 3 (Light did not attend the meeting.) According to Wakefield himself, who impressed me as a straightforward and candid witness, he attended the IAM organizational meeting on the evening of April 4, which he had heard mentioned in advance in shop talk among the welders, and he there pulled no punches, among other things pointing out to the employees that "without representation, the company could fire you at will"; that "the plant needed better safety. The welding department was not ventilated over each booth," so that welders would get covered with soot and become dizzy from "breathing the gases from your own welder"; that parts were oily and flamed up and "Guys were always getting flash burns"; that objects were so covered with oil that they slipped from welders' grips and caused injury; that no degreaser was available to the welders; that there was inadequate provision for removal of nox- ious vapors from welding; and that "inspection and pro- duction did not seem to have their heads together on what they were doing," since production requirements were unfeasible in terms of inspection quality standards, with the consequence that many units unpassed by in- spection on one shift piled up for the succeeding shift. Wakefield also pointed out that in his own case, although he had been authorized a leave of absence for illness in January, he nevertheless received a warning slip in March in regard to that excused absence. He asked about the pay rate if the Union came in, and was told it would be negotiated. It was suggested that the institution of the third welder shift was counter-productive. Finally, Wakefield cautioned that organizational activity be con- fined to handbilling outside of the plant in order to avoid an earlier situation where employees had been fired for in-plant activity. And Wakefield signed an IAM union card at that meeting. 5 4 Following this meeting, at the plant that night (April 4), as established by the testimony of Wakefield corrobo- rated by Dunn, the meeting was discussed and comment- ed on among the welders (including nonattendees of the meeting) in the shop. Among those present at the April 4, IAM union orga- nizational meeting were Branda Chappotin, wife of Re- spondent's manager of shop floor control, Andres Chap- potin, and Doris Aicher, wife of Respondent's supervisor of shipping and receiving. Both of these wives conceded that they told their husbands about having gone to the meeting, with at least Chappotin (who at the time had already decided to give up her job) maintaining they did not "talk about it" since she and her husband allegedly do not see eye-to-eye on that subject. "3 Credited testimony of Respondent's former tool and die shop lead- man, George Light. 54 He misdated it, as he credibly testified, 3-4-78 instead of 4-4-78. HEATILATOR FIREPLACE 557 On April 5, the day after he spoke out strongly at the union meeting of April 4 attended, among others, by wives of two company supervisors, Wakefield was pre- cipitously and summarily fired, under circumstances reminiscent of the earlier cases of Parrish and Baylor which have already been considered. At the start of his shift on that day (April 5), as he was about to fill out his timecard, he and his carpool companion Rice (who had driven to and from the union meeting with him) 5 were told by Dayshift Foreman Garmoe-who had apparently stayed on or come in for that purpose-"You guys don't have to fill those out, you are not staying." Wakefield said, "You mean we are fired?" Garmoe answered, "That is right." Wakefield asked, "Both of us?" Garmoe responded, "Yes . . . You know the reason why, you've just missed too much work." General Nightshift Fore- man Staggers excitedly added, "Have you got any ques- tions?" Wakefield said no, collected his belongings, and left. Respondent contends that the only reason for Wake- field's discharge was excessive absenteeism. Upon the record here presented, Respondent's contention falls far short of being persuasive. Plant Manager Hecht testified that Respondent established a new absenteeism policy (G.C. Exh. 2) effective April I (Saturday). It will be re- called that Wakefield was discharged on April 4-Tues- day. It is not and cannot be claimed that Wakefield was fired on Tuesday under the absentee policy which went into effect the previous Saturday; nor was Wakefield in violation of that policy, unless it was-contrary to its ex- pressly announced effective date (G.C. Exh. 2)-applied retroactively. Nor has it been credibly established that Wakefield was discharged under Respondent's expired absentee policy (its so-called "10 percent rule").5 6 under which it had not seen fit to terminate Wakefield at any time while that policy remained in effect. Moreover, even under Respondent's former, expired policy, no longer in effect when Wakefield was terminated, no vio- lation by Wakefield of even that policy has here been credibly established.5 7 Nor was Wakefield warned or 5 No issue is presented here as to the discharge of Rice. 5s This, according to Hecht, permitted an employee absence of 10% of his total scheduled hours for the month; but Hecht conceded that even under that policy, if-as in Wakefield's case-an employee was entitled to 5 days of excused absence for illness, he would not be considered "ex- cessively" absent if by reason of the same illness-again as in Wakefield's case, for influenza, under a doctor's care, in January-he had to stay away for another (i.e., a sixth) day. 57 Respondent's plant manager, Hecht, concedes that such "absentee records"-not, it is to be noted. timecards -as were produced by Re- spondent (Resp. Exhs. 25a-g) may well have been inaccurate and that they were not authenticated here by Wakefield's foreman, Pratt, who did not testify on that subject. Original entry timeclock or similar records were unexplainedly not produced. Under these circumstances, it should not be assumed that had they been produced they would have sustained Respondent's contentions. Cf. U.S v. Denver & R.G.R.R., 191 U.S. 84, 91-92 (1903); N.L.R.B. v. Sam Wallick and Sam K Schwalm d/b/a Wal- lick and Schwalm Company. et al., 198 F.2d 477, 483 (3d Cir. 1952). Fur- thermore, even those "absentee records" show only three allegedly unex- cused absences in March, the remainder being explained or excused for one reason or minuscule, for car trouble-he lived 32-1/2 miles away and testified credibily he may have been absent occasionally because of im- passable snowpacked roads, hut on every occasion notified the plant of the circumstances and received assurances even from Garmoe--without contradiction here-that he would not be "written up." Certainly he was permitted to continue on, with no indication of even any rebuke. much even "counseled," as laid out in Respondent's policy (G.C. Exh. 2, par. 4); nor has discharge of any other em- ployee under comparable circumstances been shown. Wakefield-as Parrish and Baylor-presents another classic instance of a burgeoning union activist or spokes- man who is promptly "cut down to size" and eliminated from the work force by an employer concededly utterly opposed to union affiliation by his employees and bent on preventing it. Wakefield-as Parrish and Baylor-was precipitately fired on the heels of his entry upon the union organizational stage, for a concocted, pretextual reason not previously indicated to the employee as a reason he would be discharged, if not corrected, within a context of their each being regarded-until their advent into the disfavored zone of exercise of their federally guaranteed rights under the Act-as essentially satisfac- tory employees in a high labor-turnover plant. As in the cases of Parrish and Baylor, I am persuaded and find that the reason advanced for Wakefield's precipitate dis- charge was and is pretextual, the real and causative reason being Wakefield's emergence within 24 hours pre- ceding his discharge, as eloquent union organizational spokesman and budding leader. It has time and again been reiterated that in assessing an employer's true reason for its discharge of an employee engaged in con- certed protected activity, important keys are the timing of the discharge (N.L.R.B. v. Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969); Tele-Trip Company v. N.L.R.B., 340 F.2d 575, 579-580 (4th Cir. 1965); N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957)) and the precipitate nature of the discharge vis-a-vis the employ- er's learning of the employee's organizational activity (Tele-Trip, supra,' N.L.R.B. v. Council Manufacturing Corp., 334 F.2d 161, 164 (8th Cir. 1964), as well as the employer's implausible explanations for its actions (N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (8th Cir. 1969), cert. denied 396 U.S. 823 (1969)). Here, as in N.L.R.B. v. Dant, 207 F.2d 165, 167 (9th Cir. 1953) and cases cited, when subjected to close examination, Respondent's "reasons" are shown to be ex- cuses which do "not stand under scrutiny." Here, as in N.L.R.B. v. Elias Brothers Big Boy, Inc., et al., 325 F.2d 360, 366 (6th Cir. 1963), Wakefield's "work apparently became intolerable only after he [became active in] the union." We are instructed by the Supreme Court that where, as here, a union activist is discharged for conduct less censure or warning. (Indeed, the only "writeup" he received was dated March 7 (G.C. Exh. 36) for an episode in January. He refused to sign this, claiming-without contradiction then or here, since Garmoe was not produced by Respondent to testify-that he had been assured by Garmoe as well as by his leadman, Dean (who also was not produced to testify to contradict this), that that absence (when he was sick with influ- enza, under medical attention) would not be counted against him or placed into his file. Indeed, it is noted that even that "verbal warning" of March 7 refers to alleged absenteeism in January as a "Ist occurrence of this offense" and states only that "Additional absenteeism equal to ore [sicj in excess of 10 percent within the next 9 month period i.e.. to De- cember] will result in a written warning." There is no evidence of any such "written warning." Finally, Wakefield's paychecks (G.C Exhs. 49- 54), produced on rebuttal, demonstrate that Wakefield was not in viola- tion of even Respondent's expired "10 percent rule," and after their re- ceipt into evidence with accompanying testimonial explanation by Wake- field on General Counsel's rebuttal, no countervailing proof was offered by Respondent. HEATILATOR~~~~~~~~~~~~~~~~~~~~~~~~~~ FI E L C 55 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not shown to have resulted in the discharge of others comparably, "the Board need not listen too long to the plea that shop discipline was simply being enforced." American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 312 (1965). See also N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967). There can, of course, be no more potent signal to employees that they exercise their federally guaranteed right to engage in collective organizational activity at the peril of being fired from their jobs, than the precipitate discharge of their leaders or spokesmen. Cf., e.g., N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (5th Cir. 1965). F. Respondent's Claim of Lack of Knowledge of Wakefield's Union Activity Respondent's contention that General Counsel has not "established" it had any knowledge of Wakefield's union activity will be briefly addressed. To begin with, "direct" proof of "actual" knowledge by an employer that his employees are engaged in union activity is not absolutely required Strictissimi, at any rate in a case like that here. Even though there be moral certainty that such knowledge exists, "direct," absolute proof may be impossible to obtain without entering the employer's brain. In the nature of things, ultimate factual demonstra- tion of knowledge or state-of-mind may be beyond the reach of litigational demonstration in a real courtroom as distinguished from the realm of theoretical argument. Proof of such knowledge through actual admissions or through camera soundtrack type of evidence is not essen- tial. As in many other fields and areas of the law (e.g., fraud and deception, conspiracy, copyright and trade- mark infringement, trespass, and even murder), knowl- edge may be circumstantially established or inferred from surrounding circumstances. 58 Thus, in the instant case: (1) Respondent's plant and operations were closely knit; (2) Respondent's employees were amply and closely supervised; (3) as has been shown in various aspects and instances above, notably the cases of Parrish and Baylor, Respondent was in fact efficiently and promptly in- formed of the union activities of its employees, and there is every reason to believe Respondent's top executive staff made it its first order of business to be so informed, and there is no reason to assume Wakefield was an ex- ception; (4) Respondent possessed advance knowledge of when union meetings were to be held, since, as has been shown, it endeavored through various members of its su- pervisory staff to keep its employees away from those meetings; (5) Respondent's remarkably speedy reactions to ongoing union organizational events could only have been upon the basis of facts it derived from sources of information available to it concerning those events; (6) Respondent has not credibly established the ignorance in which it now seeks to cloak itself. Furthermore, it is un- derstood and accepted not only as a fact of industrial re- lations life but as a matter of that commonsense which guides people in their daily affairs, and also as has re- peatedly been made known to the Board in its genera- " Wigmore, Evidence Secs. 261, 266-267, 368, and 661 (3d ed. 1940); N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 596-600, 602 (1941); Famet, Inc., 202 NLRB 409, 410 (1973), enfd. 490 F.2d 293, 295 (91h Cir. 1973). tions of administration of the Act and the countless tens of thousands of labor proceedings which it has heard and processed under the Act, that almost invariably there are some employees who attend union organizational meet- ings who report back to the employer or his supervisors concerning them-indeed, that some employees attend such meetings for that deliberate purpose only- and, also, that commonly employees discuss at the plant hap- penings at such meetings, without taking the security precautions of intelligence personnel to insure that un- friendly ears are not listening or that only "cleared" and unquestionably reliable persons are around (e.g., the case of Baylor's conversation about union cards with fellow employees in the presence of Leadman Mayberry supra, within 2 hours of which Baylor was unceremoniously fired from his federally endowed tool-and-die apprentice- ship after satisfactory completion of 3,600 hours of it). Under all of these circumstances, within the frame of ref- erence of the record as a whole, it would be unrealistic to accept uncritically Respondent's current contention that it was totally ignorant of Wakefield's union activi- ties, specifically his outspokenly strong sentiments at the union meeting following which it precipitately fired him the very next day, in a pattern consistent with that in the case of Parrish and Baylor. Under all of the circum- stances I am persuaded and find that Respondent did, from its efficient sources, come into knowledge of Wake- field's stand-out, strong prounion sentiments expressed and his incipient union leadership qualities demonstrated at the union meeting of the night before his discharge, and that it was this circumstance and this alone-analo- gously to the cases of Parrish and Baylor-that led to Wakefield's speedily ensuing job demise. When, as here, General Counsel makes out a prima facie case of employee discharge in violation of the Act, the burden shifts to Respondent to come forward with a credible explanation for its action. If, as here, Respond- ent fails to do so, General Counsel has satisfied his ulti- mate burden of proof and the violation stands estab- lished. It is accordingly found that the paragraphs of the complaint under discussion in relationship to Wakefield (Case 2, pars. 6[a], 6[b], 7, and 8) have been established, and Respondent's motion to dismiss those paragraphs is denied. Upon the foregoing findings59 and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By engaging in the following acts, under the cir- cumstances described and found in section III, above, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7, and has thereby violated Section 8(a)(1) of the Act by: (a) interrogation of employees; (b) directing surveillance over and reporting on employees' union activities; (c) di- recting employees not to attend union meetings; (d) di- recting employees not to encourage a union to represent 59 Recapitulated in appended chart, Appendix A (omitted from publi- cation). --- HEATILATOR FIREPLACE 559 them; and (e) assuring employees it would be to their ad- vantage not to attend union meetings. 3. By discharging its employees Jerry Parrish on Janu- ary 20, Kenneth Baylor on February 10, and Gregory Wakefield on April 5, 1978, and failing and refusing at all times since then to reinstate, reemploy, or rehire any of them, under the circumstances described and found in section 1, above, Respondent has discriminated in regard to the hire, tenure, and terms and conditions of employment of its employees to discourage membership in a labor organization in violation of Section 8(a)(3) of the Act; and has, further, interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices and each of them have affected, affect, and unless permanently re- strained and enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of the Act. 5. It has not been established that Respondent violated the Act in the respects set forth in paragraphs 5(a) except to the extent hereinabove found, 5(b), 5(d), 5(e), 5(f), 5(g), and 5(i) of the complaint in Case 18-CA-5713, or paragraph 5(c) of the complaint in Case 18-CA-5795, and those allegations of said complaints should be dis- missed. 6. Respondent's "Second Defense" and "Third De- fense" in Case 18-CA-5713, and its "Second Defense" in Case 18-CA-5795 are insufficient in law and have not been established in fact and should be dismissed. REMEDY Having been found to have violated Section 8(a)(1) in various respects, Respondent should, as is customary in cases of that nature, be ordered to cease and desist from those and similar violations of the Act, and to post the usual informative notice to employees. With regard to its unlawful discharge of three employees, Respondent should, as is also usual in such cases, be ordered to cease and desist therefrom and to offer them reinstatement, with backpay and interest computed as explicated by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977);60 as well as to expunge from its records all refer- ences that said employees were discharged for valid cause or for any reason based upon their work perform- ance, and to refrain from so indicating to any prospec- tive employer or reference seeker. Respondent should also, as usual, be required to preserve and make available its books and records to the Board's agents for backpay computation and compliance determination purposes; and to post the conventional notice. Since, as has been shown, this is not the first Board proceeding against Re- spondent in this same plant, and since Respondent has additionally demonstrated what appears to be a procliv- ity to violate the Act and thwart its employees' exercise of their federally guaranteed rights under the Act by firing three employees as soon as they sought to exercise 60 General Counsel again urges, in a well-documented and persuasive supplemental brief, that interest be added at a more realistic, higher rate than the Board now allows. This is a matter of policy for the Board. those rights, this continued pattern of serious violations warrants inclusion in the order of a prohibition against continuing to violate the Act in any manner. Cf. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071 (1970). Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER ' The Respondent, Heatilator Fireplace, Division of Vega Industries, Inc., Mt. Pleasant, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their or other employees' union membership, affiliation, sympa- thies, desires, activities, or other protected concerted ac- tivities, so as to interfere with, restrain, or coerce em- ployees in the exercise of any right set forth in Section 7 of the Act. (b) Directing, suggesting to, or requesting that any em- ployee or supervisor in violation of the Act engage in surveillance over the Union or any other protected con- certed activity of other employees and report thereon to Respondent. (c) Directing, urging, or soliciting employees not to attend union meetings. (d) Directing, urging, or soliciting employees not to encourage a union to represent them. (e) Assuring, promising, or holding out to employees that it would be to their benefit or advantage not to attend union meetings. (f) Discharging, terminating the employment of, laying off, furloughing, suspending, or otherwise in violation of the Act altering the employment status of any employee, or threatening so to do, or failing or refusing to recall, reinstate, or rehire any employee because he or she has exercised or proposes to exercise or continue to exercise any right under the Act; or directly or indirectly so doing, or threatening to do so, as to discriminate in regard to the hire, tenure, or terms or conditions of em- ployment of any employee because he or she exercises or proposes to exercise or continue to exercise such right or engage in such activity. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization; to form, join, or assist any labor organi- zation; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activi- ties. 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: Si In 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. HEATILATOR FIREPLACE 559 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Jerry Parrish, Kenneth Baylor, and Greg- ory Wakefield immediate and full and unconditional rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs with Respondent, without prejudice to their seniority and other rights, privileges, benefits, and emoluments, including but not limited to any pay wage rate increases to comparable employees since Respondent's discharge of the aforesaid employees; and make said employees whole for any loss of income, benefits and emoluments (including overtime, holiday and vacation pay and time off, and hospitaliza- tion, medical and other insurance claims and benefits, both personal and derivative and dependents', if any, and expenditures in lieu thereof during any noncoverage period until their reinstatement hereunder, together with interest, in the manner set forth in the "Remedy." (b) Expunge from all of Respondent's books and rec- ords any entry or mention indicating or to the effect that the termination of said employees was because of any work absence on their part in contravention or infraction of any of Respondent's rules, requirements or policies, or because of any fault or work-related deficiency or short- coming on their part; and refrain from making any such report or statement voluntarily or in response to any in- quiry from any employer, prospective employer, employ- ment agency, unemployment insurance office, or refer- ence seeker or inquiry. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises on Vega Road in the city of Mt. Pleasant, Iowa, copies of the attached notice marked "Appendix B." 62 Copies of said notice, on forms pro- vided by the Regional Director for Region 18, after being duly signed by Respondent's authorized repre- sentative, 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED, that paragraphs 5(a) to the extent not herein otherwise found, 5(b), 5(d), 5(e), 5(f), 5(g), and 5(i) of the complaint, and Respondent's "Second Defense" and "Third Defense" in Case 18-CA- 5713, and paragraph 5(c) of the complaint, and Respond- ent's "Second Defense" in Case 18-CA-5795 be, and they hereby are, dismissed. 62 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT question you in violation of the Act, concerning your union membership, affiliation, sympathies, desires, activities, or other rights or ac- tions guaranteed to you under the National Labor Relations Act. WE WILL NOT direct, suggest, or urge any em- ployee to conduct unlawful surveillance over and reporting on our employees' union activities. WE WILL NOT direct, urge, or solicit employees not to attend union meetings. WE WILL NOT direct, urge, or solicit employees not to encourage a union to represent them. WE WILL NOT assure, promise, or hold out to employees that it would be to their benefit or ad- vantage not to attend union meetings. WE WILL NOT discharge, terminate, lay off, fur- lough, suspend, refuse or fail to reinstate, recall or rehire, or in any way change the job status of any employee because he or she engages in union activi- ty, or exercises, tries to exercise, or continues to ex- ercise any right under the National Labor Relations Act. WE WILL NOT do any of these things, or other- wise violate the National Labor Relations Act, di- rectly or indirectly, in order to induce you to cease attempting to exercise your right to bargain with us collectively. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of your own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. WE WILL offer Jerry Parrish, Kenneth Baylor, and Gregory Wakefield immediate and full and un- conditional reinstatement to their former jobs, with full seniority and other rights, benefits and emolu- ments, just as if we had not discharged them, and WE WILL pay them, with interest, for all wages and benefits lost by them because of those discharges; and WE WILL also remove from their records any statement indicating they were discharged for cause or any fault on their part, and WE WILL make no statement to that effect to any prospective employ- er, reference inquiry, credit inquiry, or similar in- quirer. HEATILATOR FIREPLACE 561 All of our employees are free to join or not to join any union, or to exercise any other right under the National Labor Relations Act, as they see fit, without interfer- ence, restraint, or coercion from us in any form. HEATILATOR FIREPLACE, DIVISION OF VEGA INDUSTRIES, INC.