Scott & Williams, Inc.

SCOTT & WILLIAMS, INCORPORATED CONCLUSIONS OF LAW 919 1. United Automobile Workers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By surveillance of union meetings ; interrogation of employees concerning organizational activity ; threat and promise of benefit in connection with an election of a collective bargaining representative ; and a statement that union- authorization cards would be subject to its inspection , thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices within the mean - ing of Section 8 (a) (3) of the Act. [Recommendations omitted from publication in this volume.] SCOTT & WILLIAMS, INCORPORATED and UNITED STEELWORKERS OF AMERICA, C. I. O. Case No. 1-CA-864. June 05,195R Decision and Order On September 12, 1951, Trial Examiner John Lewis issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner. The Trial Examiner found that Victor Dyer was discriminatorily discharge in violation of Section 8 (a) (1) and 8 (a) (3) of the Act. We agree, particularly for the following reasons : In July 1950 'The Respondent has requested oral argument. In our opinion the record , the excep- tions, and brief fully present the issues and the positions of the parties. Accordingly, this request is denied. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 99 NLRB No. 140. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereafter, Dyer, a skilled employee in Department 16, openly became a leader of the Union, and the Respondent learned of this fact., Late in August,%as-.the Trial Examiner found, Superintendent John Ross was heard to say in substance : "Dyer better lay off this union business or he will be sorry." At about the same time Foreman Thomas Dickson was heard to say, in the course of mentioning the Union : "If Ford and Dyer didn't control their activities, why they'd probably be sorry for it or regret it." On September 5 Dyer was advised by Foreman Dickson that he would be terminated at the end of the week for lack of work in the department. As the Trial Examiner found, however, this explana- tion is not credible, particularly in view of the marked general im- provement in the Respondent's business as a whole. Moreover, at the time of Dyer's discharge- the Respondent was in need of additional employees with Dyer's skills, and Superintendent Ross admitted that an employee almost had to commit "mayhem" to merit discharge. Yet Dyer's request for transfer rather than discharge was denied, allegedly because of his poor production. At the hearing the evidence showed that Dyer's production had been steadily improving and stood well above the level of other em- ployees retained by the Respondent. It was then that the Respondent abandoned its previous explanation for refusing to transfer Dyer- because of his alleged poor production. Rather, the Respondent, apparently as an afterthought, attempted to justify its action on the nebulous..ground of Dyer's,"attitude." We, like- the Trial Examiner, find that this ground did not motivate the Respondent at the time of Dyer's discharge. In any event, it is unsupported by the credible evidence in the record.3 We agree with the Trial Examiner that the true explanation for Dyer's discharge was his union membership and activity. We also agree with the Trial Examiner that the Respondent vio- lated Section 8 (a) (1) of the Act in the granting of wage increases. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Scott & Williams, Incorporated, its officers, agents, successors, and assigns shall: ' The Respondent argues principally , in its exceptions and brief , that the Trial Examiner erred in crediting the testimony of certain witnesses and in refusing to credit the testi- mony of other witnesses. Our rule, when issues of credibility are raised in exceptions, is to accept the findings of the Trial Examiner, unless the clear preponderance of all the relevant evidence indicates that the resolution by the Trial Examiner was incorrect. Standard Dry Wall Products Inc, 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3) ; N. L. R. B. v. Universal Camera Corp ., 190 F. 2d 429 ( C. A. 2). No such conclusion is warranted in this case. SCOTT & WILLIAMS, INCORPORATED 921 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or any other labor organization by discharging, or refusing to reinstate, any of its employees, or in any other manner discrim- inating in regard to their hire and tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and 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, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Victor Dyer immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, in the manner described in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all records necessary for a determination of the amount of back pay due under the terms of this Order. (c) Post at its plants in Laconia, New Hampshire, copies of-the notice attached to the Intermediate Report and marked "Appendix B." 4 Copies of the said notice, to be furnished by the Regional Di- rector for the First Region, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for'sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 4 Said notice, however , is amended by striking from line 3 thereof the words "The Recom- mendations of a Trial Examiner," and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for. the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT Is FtTRTHER ORDERED that the complaint be dismissed, insofar as it alleges that the Respondent interrogated its employees and kept their union meetings under surveillance. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon"a'charge duly filed-by United Steelworkers of America, C. I. 0., herein called the Union,- the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts), issued his complaint, dated May 24, 1951, against Scott & Williams, Incorporated, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the charge, and notice of hearing were duly served upon the Respond- ent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent: (1) On or about September 8, 1950, discriminatorily dis- charged Victor Dyer and has since said date failed and refused to reinstate him ; '(2} from., on or about August- 7;' 1950; ,to date threatened .employees with' dis-' charge or other reprisals if they joined or assisted the Union, and interrogated them concerning their union affiliation; (3) granted to employees a wage in- crease on or about September 25, 1950, and on or about October 30, 1950; and (4) has kept under observation and surveillance the meeting places, meetings, and concerted activities of its employees. In its answer, duly filed, the Respond- ent admitted certain allegations of the complaint, but denied commission of any of the unfair labor practices alleged. Pursuant to notice, a hearing was held at Laconia, New Hampshire, on June 18, 79, and 20, 1951, before oJhn Lewis, the undersigned Trial Examiner, duly designated, by the Chief Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of 'the General Counsel's case-in-chief the Respondent made a series of motions to dismiss the various allegations of the complaint. Said motions were denied, except for a motion to dismiss the allegation of the complaint alleging that Respondent had threatened employees with discharge,, which was granted.' At the conclusion of all the evidence Re- spondent renewed its motion to dismiss various allegations of the complaint, ruling thereon being reserved by the undersigned. Said motions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter made. The parties were advised that they could make oral argument before the undersigned, or file briefs or proposed findings of fact and conclusions of law, or both. The parties waived oral argument indicating that they preferred to file briefs. Since the close of the hearing briefs have been received from the Respondent and the General Counsel which have been carefully considered by the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : I The evidence in support of this allegation of, the complaint is hereinafter discussed in Section III of this Report SCOTT & WILLIAMS, INCORPORATED FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 923 Scott & Williams, Incorporated , is a corporation organized under and existing by virtue of the laws of the Commonwealth of Massachusetts , having its prin- cipal office in Boston, Massachusetts, and also having an office and its principal plant at Laconia , New Hampshire. The Company is engaged in the manufacture of knitting machinery and its principal raw materials consist of steel and cast iron. The Company purchases annually raw materials valued in excess of $200,000, more than 50 percent of which is shipped to it from points outside the State of New Hampshire. The Company's finished products exceed in value $300,000 annually, more than 50 percent of which is shipped to points outside the State of New Hampshire? Based upon the foregoing facts the undersigned finds that the Respondent was, at all times material, and now is , engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background The Company operates two plants in Laconia where it employs approximately 750 employees. It also operates a foundry at Concord, New Hampshire. The events at issue revolve primarily about one of the Laconia plants, known as the Lakeport plant by reason of the section of Laconia in which it is situated. The earliest evidence of any collective activity among Respondent's em- ployees in Laconia is the existence of a collective bargaining agreement with the International Association of Machinists during the period 1941-42. The next evidence of collective activity involves the period from January 1947 to October 1949, when the Company had a collective bargaining agreement with the American Federation of Hosiery Workers The latter union was disbanded in October 1949 and there is no further evidence of union activity among Re- spondent's employees until July 1950 when the charging Union began its organ- izing campaign. According to John LaMaur, a representative of the Union, during the early part of July, while the Company's employees were on their annual 2-week vaca- tion period, he was approached at his headquarters in Claremont, New Hamp- shire, by an employee who requested him to come to Laconia to organize Re- spondent's employees. LaMaur gave the employee in question a number of application cards with instructions to distribute them among the employees. Around August 1, after the employees had returned from their vacation, La-, Maur came to Laconia to hold the first organizing meeting which was attended by approximately 38 employees. Other such meetings were held periodically thereafter. On August 25, 1950, the Union filed a petition seeking certification as bargaining representative of Respondent's employees. On or about the same date the Union requested the Company to bargain with it as a representa- tive of'its employees. The Company replied by letter dated August 31, 1950. 2 The above findings are based on facts stipulated by the parties. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advising that it was not prepared to recognize the Union until it was certified by the Board. The Union subsequently received a majority of the votes cast in a Board-conducted election on January 17, 1951, and was certified as exclusive bargaining representative on January 25, 1951. Several bargaining meetings were held thereafter but no contract resulted. On April 23, 1951, the employees voted to go on strike and the strike was still in progress at the time of the hear- ing in the instant case. B. The discharge of Victor Dyer Victor Dyer was employed by the Company at the Lakeport plant from March 1942 until his discharge during the week ending September 10, 1950, with the exception of the period from October 1943 to December 1945 when he was serv- ing in the Armed Forces. During the period of his employment Dyer had worked for varying periods of time in a number of different departments. During March 1950 he was transferred to department 16 where he continued to work, until the time of his discharge! This department was engaged in the making of small temporary tools and jigs used in the production work in other depart- ments. Most of the work in the department involved new jobs, there being only a small percentage of repeat jobs, and the department ranked high among the various departments in the degree of skill required of its employees. The em- ployees in department 16 were mainly employed on an incentive basis. At the time of his transfer to department 16 Dyer had been employed on a straight hourly basis, although he had in the past worked on an incentive basis in other departments. After an adjustment period of several weeks, Dyer went on the incentive system in department 16 during the week ending April 9, 1950. The Company's incentive system, referred to in the record as the "Standards System," had been installed by industrial engineers some 10 years previously. Under this system the various operations involved in Respondent's production and toolwork were time-studied and assigned time values, in terms of minutes of production. The various operations and their time values were listed in a "standard data book" maintained by the Company. When an employee was assigned a particular job to perform the job was broken down into its con- stituent elements and by reference to the time value of each operation involved, as set forth in the standard data book, an estimator was able to compute the total number of minutes required to complete the job. The employee was advised of the total time on each particular job to which he was assigned. Each em- ployee had a base hourly rate. Where in a given day an employee operated at greater than normal speed and by reason of his increased production was credited with an excess number of minutes of production he received incentive pay for each additional minute of production at the rate of one-sixtieth of his base hourly rate. Where an employee operated at slower than normal speed and therefore failed to produce enough to yield 480 minutes of production for an 8-hour day, he was nevertheless paid the base hourly rate for the full 8 hours' 8 There is some dispute in the testimony as to whether Dyer did or did not request the transfer. According to Dyer, the plant superintendent, John Ross, suggested the transfer stating that he thought Dyer was ready to go over to that department and that if he was satisfactory there, he could go on to the•toolroom. Dyer testified that he expressed some doubt as to whether he was ready to go into department 16 where an incentive system was in effect but, after being given 2 days to think it over, agreed to the transfer. Both Superintendent Ross and Dyer's old foreman, Carl Laurier, testified that the request for the transfer had come from Dyer himself. The undersigned finds it unnecessary to resolve this conflict in'the testimony. It may be noted, however, that during his cross- examination Laurier admitted Dyer had expressed some doubt as to whether he -was sufficiently experienced to go into department 16. SCOTT & WILLIAMS, INCORPORATED 925 work. The number of minutes by which he failed to achieve his quota were recorded in the Company's records and the difference between what he was paid by reason of the Company's hourly guarantee and what he actually earned by his production was referred to as the "cost of minutes to equal standards." In- centive earnings were computed on a daily basis, so that a premium earned in 1 day was not subject to deduction because of a deficiency in another day of the week. Dyer first evidenced an interest in the Union on July 21, 1950, when he was invited to join the Union by another employee and signed and mailed to the Union's headquarters in Claremont an application card. He attended the first organizing meeting around August 1 and became one of six or eight employees who were active in organizing for the Union. He signed up a number of his fellow employees and spoke to other employees about the Union during lunch hours and before and after work. Following the first union meeting, for which arrangements had been made by LaMaur, Dyer made arrangements for the other meetings. He hired the hall where the meetings were to be held and inserted notices in the newspapers announcing the meetings. On one occasion he passed out handbills to the employees at the plant gate announcing a meeting. He also chauffeured LaMaur around to the homes of various employees whom LaMaur was seeking to interest in the Union and himself went into the homes of a number of these employees with LaMaur. After his discharge, when the local union was glben,formal status, Dyer was elected vice president. On September 5, 1950, following the Labor Day week end, Dyer was advised by his foreman, Thomas Dickson, that his services would no longer be required as of the end of that workweek due to the lack of work in the department. Dyer was the only employee discharged at that time. Dyer's discharge following close upon a period of abundant union activity was, according to the General Counsel, discriminatorily motivated. The evidence adduced by the General Counsel was sufficient to establish, at least prima facie, the discriminatory nature of Dyer's discharge. In support of the denial in its answer, Respondent contended that it had,no knowledge of Dyer's union membership or activities and offered the following explanation for his discharge: That a decline of work in department 16 made it necessary to discharge some employees, and that Dyer was selected because^of his poor production record and because of his talking and otherwise unsatisfactory attitude. Respondent's explanation for Dyer's-discharge, as well as other relevant circumstances shedding light thereon, are discussed below in detail. 1. Dyer's production record Dyer's production record from the time he went on incentive work in depart- ment 16 during the week ending April 9 until July 3, 1950, when the employees went on vacation, was a not uncreditable one" Although he incurred some de- ficiencies (cost of minutes to equal standards) in some weeks, these were small in amount and well below the average for the department. He was also credited with substantial incentive earnings in a number of weeks. However, beginning with the week following the vacation period, and for several weeks thereafter, there was a considerable slump in his production record. For the week ending July 23, Dyer's deficiency amounted to $18.13 and was the highest in the depart- ment. In the week ending July 30, his deficiency dropped to $8.64, being exceeded by that of three other employees. However, in the following week Dyer's de- ficiency increased again, to $20.05. In the week ending August 13, Dyer's de- I Foreman Dickson testified that prior to the vacation period Dyer was "an average worker." ,926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ficiency declined to $7.69 and in the following week it declined further to $5.94. During the weeks ending August 27 and September 3 there was a further decline to $3.85 and $1.02, respectively, and during these weeks his deficiencies were less than the departmental averages of $4.71 and $5.03, respectively. Likewise-in these latter weekshe.,showed incentive earnings of $3.36 and $10.02, respectively. For the week ending September 10, 1950, when Dyer was discharged, he had no deficiency at all and his incentive earnings of $11.81 exceeded the departmental average. It is unquestionably true that for a period of several weeks, from the middle of July to about the middle of August, Dyer was among the employees with the highest deficiencies in the plant. Considering his creditable record during April. May, and June, and his improved performance around the end of August and the early part of September, it is difficult to assess the reason for Dyer's spotty per- formance in the interim period. According to Dyer's testimony, he complained to Foreman Dickson during the early part of August about his rates being cut after the head of the standards department had seen him talking to other, employees. The General Counsel also attempted to show that, aside from the cutting of rates, some of Respondent's rates were "tight," i. e.,,the time allotted for some of the jobs was too low to permit completion of the work. In this connection, Dyer testified that when he complained to Dickson in August about the rates on a job being low, the latter adjusted the time upward. Respondent's witnesses denied that any of the rates were ever cut because an employee was observed wasting time on the job. They endeavored to show that the rates established for the various operations were based on scientifically conducted-time studies and were uniformly applied. They also denied that any of the rates were "tight." It may be noted, however, that the head of Respondent's standards department, while denying that there were any "tight" rates, admitted that Respondent had adjusted rates which were found, after investigation, to be tight. Foreman Dickson admitted that there had been an upward adjustment of the time on one of Dyer's jobs after he had complained but claimed that it was due not to a tightness of the rate but to the fact that the estimator in originally computing the time for the job had inadvertently omitted the time required on one particular operation. According to Respondent's witnesses, Dyer's difficulties were not due to any tight rates or to any cut in rates but to his loafing and talking on the job. On the present state of the record the undersigned is unable to make any affirmative finding as to the cause of Dyer's decline in production during the period in question. The fact that almost half of the employees in the department were deficient each week during the period from July 23 to the end of August, and the substantial amounts of many of the deficiencies, suggest the possibility that something was wrong with the rates. On the other hand, the fact that this period coincides with the opening salvo of the union organizing campaign and the gradually increasing momentum of the union drive, suggests the pos- sibility that the decline in production efficiency resulted from the preoccupa- tion of many of the employees with the union campaign, either as organizers or as organizees. In any event, whatever may have been the cause for Dyer's decline in pro- duction, several facts in connection therewith stand out. First, it is significant that at the time of his discharge he was definitely not the least efficient em- ployee in the department. As appears from the table, which is incorporated herein as Appendix A, there were at least four other employees, as of September 10, 1950, whose average of cost of minutes to equal standards was greater than Dyer's during the year 1950, and one other employee whose average was only SCOTT & WILLIAMS, ' INCORPORATED , . 927 slightly less than his." Of these employees , all but one, Guy Simpson, had been employed in the department for a longer period than Dyer and would normally be expected to have acquired a greater degree of efficiency . Equally significant , if not more so, is a comparison of the records of these employees on the basis of their regularity of performance , i. e., the number of weeks when their deficiencies exceeded the average for the department. Since an employee's average efficiency might be adversely affected by unusually low production in a limited number of weeks , a fair employer would presumably give - some con- sideration to the fact that during 'the greater part of his employment an em- ployee was able to limit his losses to le^s ' than average for -his department. A comparison on such a basis discloses that in more than two-thirds- oflthe weeks when ,he was employed, Dyer's cost of minutes to equal standards was less'than the departmental average, while other employees, who were not discharged with him, had above average deficiencies in a far greater number of weeks between January 1 and September 10, 1950. The comparative figures demonstrating' this situation are as follows : No of weeks Weeks in wh ch C of M=S' is above average- Name employed /1/50-9/10/60 No. weeks % oftime Stickney------------------------------- 34 24 71 Simpson ------------------------------- 13 9 69 Sweatt-- ------------------------------ 35 22 63 Ford--:------------------------------- 35 13' 37 Martin___ _____________________________ 35 10 29 Dyer---------------------------------- 21 6 '29 Even more important than the figures of- average efficiency and relative stand- ing is the trend of Dyer's production efficiency;;at,the time he was chosen for discharge. The former figures, while showing that he was not the worst pro- ducer, place him somewhat at a disadvantage because of his unusually high deficiencies in the weeks of July 23 and August 6. However, his record after August 6 was one of -steady improvement. By the week of August 27,he had whittled down his deficiency to $3.85 which was below the departmental average and was able to earn a premium of. $3.36. In the week ending September 3, his deficiency had been cut still further to $1.02, while his premium earnings in- creased substantially to $10.02. In the week of his discharge he was able to wipe out,the deficiency entirely and show a premium of $11.81, which was above the departmental average. It thus appears that;,the decision to_-discharge Dyer was made at the very time when he was emerging from- his slump and when he appeared to be giving promise of the type of performance which the Company bad previously found satisfactory. - In an effort to explain Dyer's discharge at a time when employees with equally bad or worse records were retained, Respondent sought to show that other employees were subsequently discharged or transferred because of poor produc- tion and sought to justify discharging Dyer ahead of the others on the ground that his attitude toward his work was worse than others. The undersigned-will consider below Respondent's claim regarding Dyer's attitude and also its handling of the discharge and transfer of other employees. 5 The relative standing of these employees is as follows : Average C of M= 5 1. Louis Sweatt----------------------------------------------- $6.44 2 Guy Simpson ----------------------------------------------- $ 5.99 3 Ira Stickney ----------------------------------------------- $5.63 4. Clayton Ford ------ ---------------------------------------- $4.39 5. Victor Dyer------------------------------------------------ $3.50 6. Stanley Martin--- ------------------------------------------ $3.23 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Dyer's attitude and the alleged warnings Respondent attempted to show that for some time prior to his discharge Dyer engaged in talking and loafing on the job, was indifferent to his work, and after repeated warnings showed no signs of improvement. The undersigned found much of the testimony on this point, given mainly by Foreman Dickson and Superintendent Ross," to be confused, contradictory, and generally unconvincing. This confusion first manifests itself in the testimony as to when Dyer engaged in the activi+ties'%complaiaed:of and with respect to the dates of the alleged warn- ings. At first Foreman Dickson testified that up to the vacation period Dyer's work and attitude were satisfactory and that he did not observe any change until after the vacation period in July. In line with this Dickson testified that it was not until after vacation that he and Superintendent Ross talked about Dyer's unsatisfactory performance, and that in August he spoke to Dyer twice about his talking and loafing and about his failure to make production. This would fix the period of Dyer's transgressions as occurring after the vacation period, coincident with his union activities, and would indicate that he was spoken to twice in August about them. However, at a subsequent point in his testimony, Dickson testified that he first spoke to Dyer about talking and loafing on the job in the latter part of June before the vacation period. At this point in his testi- mony he claimed to have spoken to Dyer a second time in July during the week following the vacation, and-again in the latter part of August, or a total of three times. However, after his+recollection,was refreshed by two memoranda which he addressed to Superintendent Ross regarding Dyer, Dickson fixed the conver- sations with Dyer as having occurred at or about the dates of these memoranda, viZ, August 2 and August 16, 1950. This would fix the three alleged conversations as: One in the latter part of June and two in August. However, on cross- examination he again referred to a conversation with Dyer in July, around July 18 or 19 after vacation. When Dickson's attention was called to the fact that "the 18th" was the day after vacation, he testified that "maybe [it was] the 19th, maybe the 20th, but it is that week after vacation." Dickson's testimony thus evidences considerable confusion as to whether he had two, three, or four conversations with Dyer and as to when these conversations occurred. While a certain amount of inexactness is to be expected with respect to events almost a year past, this confusion in Dickson's testimony is symptomatic of his testimony generally. Particularly significant are the conflicting claims that Dyer's work and attitude prior to vacation were satisfactory, and that it was necessary to ad- monish him even before the vacation. Giving_ true insight into, the .transparent nature much,.of Respondent's claims is the exaggerated, vague, unconvincing nature of the testimony as to the various conversations allegedly had with Dyer and as to the basis of his alleged transgressions. With respect to the alleged conversation with Dyer in June, Dickson testified that he, saw Dyer talking "several times" when he came into the department and that he spoke to Dyer on one occasion about his "talking and loafing." According to Dickson, the occasion for talking to Dyer was the fact that "he was falling down a bit on his standards." 6 Although the record discloses that Dyer had a deficiency of $2.49 in the week ending June 25, this was considerably less than the departmental average of $4.23 and was exceeded by that of 6 other employees, 10 employees showing some deficiency in that week. As Dickson's cross-examination proceeded, the "several times" when he observed Dyer talking became "pretty near every day." Despite 6 As 'previously mentioned , on his direct examination Dickson had originally testified that Dyer's'work and attitude prior to the vacation period were satisfactory. SCOTT & WILLIAMS, INCORPORATED 929 the fact that Dickson allegedly found it necessary to talk to Dyer about his talking because of the fact that his standards were "down a bit," he apparently found it unnecessary to have any special conversation with the 3 employees to whom Dyer was talking, although it developed that they were talking and loaf- ing at the same time and one of them, Stanley Martin, had a deficiency of $5.46 in the week ending June 25. The synthetic nature of much of Dickson's testimony becomes even more apparent in his accounts of his alleged further conversations with Dyer in July and August. His testimony regarding these conversations reveals an almost verbatim similarity. With respect to his conversation in July, "the 18th or 19th," Dickson-gave the following account : Well, at the time he was working on a big fixture, and he was -going in the red quite considerable, and I asked him what was the matter, or "What's the matter, Vic," I says, "You're falling down on that." And he answered back that the standards weren't right, and that they were cutting the standards in half. And I told him, I says, "Well, your talking plus your loafing." I says, "No wonder you can't meet them." I says, "That's ridicu- lous about thinking the standards was cut in half." Regarding the first conversation in August, Dickson gave the following account: A. Well, there was the month of August, as much as I can recollect now, we had a discussion and I told him, I said, "What's the matter, Vic? You're not meeting the time." And he never gave me anything-he'd give me an excuse, and I says Q. What did he say, if you can recall? What were the excuses? A. Well, the excuses was that his standards was cut in half. "Now," I says, "you're doing a lot of talking and a lot of loafing and that may have some bearing on it." With regard to his conversation later in August, just before Dyer's discharge, Dickson at first gave the following account : Q. What was the substance of that conversation? A. Well, the substance of it was that he acted to me as if, indifferent, you know, he took it for granted that, I guess-dissatisfied ; as much as I gather, he was dissatisfied, anyway. When the rather vague nature of this testimony was called to his attention, Dickson testified as follows : Q. (By Mr. HE&N.) I wish you would tell us in detail a little bit more so that we will understand this situation, not just vaguely but let's be definite. What was there about his manner or what he said that gave you the im- pression he was dissatisfied or indifferent? A. Well, his attitude of indifference. I'd say, "What's the matter, Vic, can't you meet the time on that?" And he acted to me disgusted, and all he could say, "They cut the standards on me." And he wouldn't try to better himself and I told him- Trial Examiner LEWIS :, This second time he gave the same excuse? The WITNESS : Same excuse. It thus appears, according to Dickson's testimony, that on each of the three occasions when he spoke to Dyer in July and August he asked Dyer why his production was low, that the latter gave a cut in his "standards" as the ex- cuse, and that Dickson told him the fault lay in his talking and loafing. 930 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Dyer in his testimony freely admitted that Dickson-had spoken to, him, but claimed that this was on a single occasion during the first week in, -August., Dyer's version of this iiief ent was that Dickson told him "his 'standards *,ere rather low," that he (Dyer) complained about his time having been cut, and that Dickson denied this was so but stated that if he had any such complaints in the future to see him. According to Dyer, there was no reference to his "talking and loafing," but that Dickson did mention that possibly his standards were low because the men were not prompt in returning to work after the lunch hour. The undersigned is convinced from the record as a whole that this is the only time Dickson ever spoke to Dyer critically about his work. It was apparently this incident which Dickson blew up in his testimony into three separate conversa- tions with Dyer. Dickson confirmed Dyer's version of this conversation, that when the latter complained about his time being cut he (Dickson) told Dyer to come to see him if he had any such complaint in the future and that within a few days thereafter Dyer came to, see him with a complaint about a job being undertimed,, which Dickson thereafter gdjustgd. The memorandum which Dickson sent Ross after his original talk with Dyer in August tends to confirm Dyer's version of this incident. The memorandum contains no reference to any serious disciplinary problem but indicates that the problem n', as essentially one of Dyer's failing to meet the production standards. The memorandum, -which is dated August 2, reads as follows : I had a talk with'Victor about the posting sheets and told him he should get on the ball and work a little harder. The only serious question arising in connection with this conversation early in August is as to whether it occurred before or after the first union meeting. According to Dyer, Dickson's talk with him occurred the day following his at- tendance at- the first union,meeting. It is apparently the General Counsel's con- tention that it was Dyer's attendance at the meeting which was really respon- sible for the criticism of his production. This claim, however, is not supported by a preponderance of the evidence. Both LaMaur and Dyer indicated uncertainty as to whether the union meeting occurred August 1, 2, or 3. According to Dyer's testimony his conversation with Dickson took place on Friday, the day follow- ing the union meeting, which would fix the date of the meeting as Thursday, August 3. However, the date of Dickson's memorandum to Ross, August 2, would indicate that the conversation could not have occurred after the union meeting unless the meeting was held August 1. There is nothing in the record to cause the undersigned not to accept the date of the memorandum, August 2, as authentic. In view of the uncertainty in the testimony of the General Coun- sel's witnesses as to when the first union meeting occurred, the undersigned is unable to make any affirmative finding that the complaint about Dyer's work was made after his attendance at the first meeting. Nor is there sufficient evidence to establish that the complaint was made and the memorandum pre- pared with knowledge of Dyer's union activity.' So far as appears from the record, and in view of Dyer's unsatisfactory performance during the preceding 2 weeks, there appears to be no reason to question Dickson's motive in speaking to him on August 2 about his production. However, the undersigned is not 7 In his direct testimony Dyer fixed the date of his active participation in the Union's organizing activities as occurring after the first union meeting when recalled in rebuttal, he testified that he began distributing union cards to fellow employees following the signing of his own card on July 21. In view of the confusion in Dyer's testimony with regard to the conunencement of his union activities the undersigned is unable to make any finding that they were sufficiently pronounced by August 2 as to cause Respondent to become aware of Dyer's union membership at that time. SCOTT ' & WILLIAMS, INCORPORATED 931' convinced from the testimony that there were any prior or subsequent com- plaints against Dyers or that, aside from the decline in his production, he was otherwise open to criticism because of his talking or loafing, or his "attitude." As previously mentioned Dickson claimed that he also had another conversa- tion with Dyer later in August about his work and attitude. The unsatisfactory nature of this testimony has already been alluded to. However, in an effort to corroborate Dickson's testimony by documentary evidence, Respondent offered in evidence a memorandum sent by Dickson to Ross, dated August 16, as fol- lows : I have repeatedly warned Victor Dyer about his failure to meet the stand- ards set on jobs, that he was in the red every week. I shown him the post- ing sheet & told him about his talking during working hours. I think this should be the last time. From the wording of this memorandum and the testimony as a whole, the under- signed is convinced that the memorandum was prepared after Respondent had become aware of Dyer's union activity and that it was deliberately worded with the possibility of Dyer's discharge in mind. There is nothing in the record to support the reference in the memorandum to the effect that Dyer had been "re- peatedly warned" about his production. Dickson's testimony regarding warn- ings in June and July are patently unacceptable. The only convincing evi- dence of any prior warning is the one in early August which was mildly worded and gave no foreboding of the dire consequences to follow. Even under Dick- son's version of the facts, that he had a talk with Dyer in June, a second in July, and a third in early August, there appears to be no basis for the grimly worded nature of this memorandum. The reference to Dyer's talking "during working hours," to which no reference was made in the earlier memorandum, is additional evidence that the memorandum was deliberately prepared to build a record which would justify Dyer's discharge. To corroborate Dickson's testimony regarding Dyer's talking and unsatis- factory attitude, Respondent offered the testimony of Superintendent Ross. Ross' testimony was highly exaggerated, confused, and even less convincing than Dickson's. His frequent references to what "probably" happened or as to what he "imagined" happened gave evidence of an effort on his part to reconstruct events concerning which he had little, if any, recollection. According to Ross he walked through the plant "maybe fifty times an afternoon and fifty times in the morning and I wouldn't be a good superintendent if I didn't notice the fellows that weren't doing a good job." His peregrinations through the plant were later reduced to "maybe five or seven times a day approximately." On cross- examination they were again increased to "maybe, as I say, 10, 15, 20 times- I wouldn't attempt to state the exact number, because it would be kind of ridiculous." It was during these trips, starting around the third week in July and continuing in August when, according to Ross, he observed Dyer misbehav- ing. Despite his alleged observation of Dyer engaging in misconduct on numer- ous occasions, Ross admitted that he never spoke to Dyer about the matter, be- cause he preferred not to interfere with the foreman's prerogative. According to Ross, however, he did discuss Dyer's conduct with Dickson "so many times I didn't even take kin of them ... I'd probably say ten or twenty." When asked 8 Regarding the claim of alleged complaints against Dyer in June and July , it should be noted that according to Dickson 's testimony it was the regular practice to record complaints against employees in the form of a written memorandum to the superintendent. The form of memorandum contains the specific printed instruction : "Avoid Verbal Orders." The earliest memorandum of any conversation with Dyer is the August 2 memorandum. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if he had any definite recollection as to when his first conversation with Dick- son took place, Ross testified vaguely : "Could have been before the vacations or after the vacations or somewhere in that period , but I know I had them." When asked what he discussed with Dickson , Ross testified : Mostly the case of the fellow talking too much , seeming to have an ap- pearance and an attitude , which I think was perfectly true, that he didn't seem to care whether he worked or not ; repeatedly telling the foreman to warn him, no difference in the attitude. When asked whether he had a definite recollection of such a conversation with Dickson about Dyer after vacation , Ross gave the following labored response, after some prodding by Respondent's counsel : Q. Do you have a definite recollection of what actually took place:with reference to Dyer? A. Not the actual words in dotting the i's and crossing the t's, I wouldn't. Q. You know what the actual practice was? A. That's right. Q. (By Mr. HzzN.) Will you tell us the subject matter of any conversa- tion you had with Dickson with reference to Dyer after the vacation period? A. Sure, very definitely. Q. Just the substance of it. We don't expect you to dot the i's, and so forth. A. The substance of it, from my observation and also from my records, and particularly from my observation, the young employee at that time was so indifferent to his work that he really didn't seem to me to want to work in there. Q. Is that something you said to someone? A. More or less , probably would say that to Dickson. Q. No. Is that something that in substance you said? A. That's right. Q. To whom did you say it? R. Mr. Dickson. [Emphasis supplied.] Although there was much testimony by Dickson and Ross about Dyer's talking and loafing, Ross finally conceded that it was not "exactly " Dyer's talking which resulted in his discharge but rather: It was the definite attitude shown by the employee for a certain ' period of time conductive to his employer or relative of his employment to make them form an opinion, which I am sure is practice in other firms, of know- ing through experience that a man should be dismissed from his job. The undersigned places little reliance upon Ross ' testimony which evidenced very little actual recollection regarding the events at issue. Perhaps the most convincing part of his testimony was his innocent admission that with 1,350 employees under his supervision he found it difficult to remember about any specific conversation which took place. It was 'obvious to the undersigned that his recollection of the events at issue was very hazy and confused and was evidently colored by a certain visceral reaction on the subject of Dyer. From the record as a whole, the undersigned is not convinced that Dyer's talking or his attitude of indifference were responsible for his discharge. The reliable evidence definitely establishes only one occasion when his supervisor had occasion to discuss with him his work or attitude and this was the occasion early in August which is adverted to in the memorandum of August 2. The mild tenor of this memorandum does not suggest that Dyer was the troublemaker SCOTT & -,WILLIAMS, INCORPORATED 933 which Respondent's witnesses attempted to establish in their testimony. The undersigned is not convinced that there were any previous or subsequent talks with Dyer or that he was ever warned of possible discharge. In any event, even assuming that Dyer had been doing considerable talking on the job and had been spoken to several times, it was the substance of the testi- mony of Respondent's witnesses that it was his "indifferent" attitude and failure to improve which ultimately brought about his discharge rather than the talking itself. This claim, however, is belied by his production record for the end of August and early part of September which is one of steady improvement. It is inconceivable that he could have continuously engaged in talking and loafing and have conducted himself in an indifferent manner, and at the same time been able to,show such steady improvement in his work. It may also be noted that his termination record contains no reference to Dyer's talking or indifferent attitude but states that he was "not adapted to incentive work." Although Ross testified that "disciplinary reasons" were the "major factor" in Dyer's discharge, the termination record contains a check mark alongside the item "Unsuited to job," as the reason for his dismissal, and leaves blank the item "Disciplinary reason."' 3. The other discharges and transfers In an effort to prove that there was nothing unusual about Dyer's discharge, Respondent attempted to show that other inefficient employees were discharged or transferred because of poor production. The undersigned found this evidence unconvincing and, if anything, it tended to establish that there was something unusual about the handling of Dyer's discharge. As will subsequently appear, it was Respondent's contention that a decline in work made it necessary to get rid of some of the poorer producers in department 16. Among the employees allegedly chosen were Dyer, Ford, Sweatt, and Stick- ney. However, for some strange reason Dyer was the only one discharged on September 10. It is true that Ford was later discharged on September 2410 However, Respondent gave no reason for the delay in getting rid of him. During the week of September 3, when Dyer had managed to cut his deficiency down to $1.02, Ford had a deficiency of $1190. Although Respondent claimed that it delayed taking action with respect to other employees because their "attitude" was better than Dyer's, it made no such contention in Ford's case but admitted that his attitude was bad. In a further effort to show that it was not unusual to discharge employees for poor production, Respondent adduced evidence of earlier discharges. Thus it appears that on January 24, 1950, it discharged employees Robert Read and Don- ald Morgan for the reason, as stated on their termination slips, that they were "not to par on standards." Insofar as their work records are available they dis- close that both these employees had substantially worse production records than Dyer.11 It may also be noted that in January 1950 when they were discharged the business outlook was considerably different from what it was in August 1950 after the start of the Korean war, as will subsequently appear. It is significant 9 The undersigned does not accept Respondent's strained explanation that this was done, in accordance with established company policy, so as not to prevent Dyer from obtaining employment elsewhere 10 According to the testimony of employee George Lynch, Ford was also an active union member Ford's name was mentioned in the charge as having been discriminatorily dis- charged, but for reasons not appearing from the record, was not named in the complaint. 11 During the per iod in Ja nuam v 1950 for which 'their work records are available, Read had an average coat of minutes to equal standards of $11 40 and 'Morgan's amounted to $6 57. 215233--5:t-l;0 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the termindtion slips of these two employees contained the notation : "Nb work available in other departments," thus suggesting that if such work had been available they would, have been trah-sferred to, nonineentive; work, rather than discharged. The record discloses that a number of other deficient operators in the depart- ment were transferred to other departments rather than discharged. Sweatt, whose deficiency average was worse than Dyer's, was transferred to easier work in another department on September 25. The remaining operators whose records were as bad as, or worse than, Dyer's continued to work in department 16 for the balance of the year 1950. Although, according to Dickson, Stickney was one of those whom he had decided to discharge or transfer around the end of August, no action was taken in Stickney's case until January or February 1951 when he was transferred to another department, despite the fact that he continued to incur unusually high deficiencies during the balance of 1950.' Other employees. T. Blanchard and Eugene Whiting, who had had high deficiencies prior, to.,Sop- tember, continued to incur above-average deficiencies in a number of weeks during the rest of 1950 and were transferred out of the department around the end of the year. It does not appear that Respondent even bothered to transfer deficient operator Simpson, although he continued to incur above-average deficiencies dur- ing the balance of 1950. From the record as a whole, it seems evident that Respondent's usual policy was to transfer employees who were regularly unable to meet production stand- ards to nonincentive work rather than to discharge them, unless there was no other work available. This was inadvertently admitted by Ross' testimony in another connection that : . . . terminations in Scott & Williams are few and far between. In fact, you've almost got to commit mayhem before . . . you are terminated. The reason for this policy is the fact, as testified to by several of Respondent's witnesses, that there is a shortage of machinists and toolmakers in the Laconia area and that the Company therefore tries to husband its manpower resources. Under these circumstances, the failure to transfer Dyer to some other work is difficult to comprehend. particularly in view of his hitherto satisfactory record. Respondent's witnesses admitted that his work in other departments had been satisfactory. Over the years he had been transferred to gradually more and more skilled work until he had finally reached department 16 which stood high in the hierarchy of departments according to skill required of em- ployees. Respondent's witnesses admitted that these transfers indicated that the Company was satisfied with his work during that period. In 1948 when other employees were laid off due to a shortage of work, Dyer was kept on and transferred to another department. Despite this background, Respondent made u6 effort to find other work for Dyer in September 1950, although, as will appear, it was contemplating an expansion of its operations and shortly thereafter hired other employees to perform work that Dyer had done in other departments." The only possible explanation for not transferring or rehiring Dyer was that his "attitude" had not been good This claim, as has already been indicated, the undersigned considers without merit. "Examples of such deficiencies are- November 26, 1950-$15 .45; December 3, 1950- $28 51; December 31, 1950-$14 39' "During the week ending September 17 Respondent hired William S. Boyd to work on the Warner & Swazey machine, work which Dyer had previously done before coming to department 16. On October 2 It hired Joseph Long and Linwood Rogers to work on that machine Other individuals were hired during this period to do drilling and burring, work which, according to Dyer's uncontradicted testimony, he had previously done. SCOTT & WILLIAMS, INCORPORATED 935. 4. The decline in work and the decision to lay off employees According to Respondent's witnesses,, it was the decline of work in depart- Tnent 16 which actually precipitated Dyer's discharge. Although Dickson tes- tified that Dyer "wouldn't have lasted very long irregardless," it was the decline in work which brought about the decision to discharge him. Here again the testimony was marked with confusion and contradiction. According to Ross he first talked to Dickson in May or June 1950 about the decline in business and the possibility of layoffs, but told him that they would hold off until after the vacation period in hope that business would improve. Dickson, however, tes- tified that Ross first discussed the possibility of layoffs in August 1950, after the vacation period. According to Dickson the question was next discussed toward the end of August and a decision to lay off several employees, including Dyer, was reached. However, according to Ross, the discussions of possible layoffs continued during July and August and the possibility of Dyer being laid off was mentsio4bd each time. According to Dickson's testimony it was Ross who told him in August that he would have to lay off some of his employees. According to Ross, however, Dickson might have taken the initiative in this respect. According to Dickson, Ross did not tell him how many to lay off but be himself picked Dyer, Ford, Sweatt, and Stickney. Ross, on the other hand, testified that he was the one who determined the number to be laid off and left it to Dickson's discretion to decide which ones would go. Aside from any such contradictions or inconsistencies in the testimony, the explanation given by Dickson and Ross that Dyer was laid off because of a shortage of work is belied by the testimony of another of Respondent's own wit- nesses. According to the testimony of the Company's treasurer and resident manager, Harry J. Kelly, the Company's business "improved materially" from the end of June 1950, which condition continued during July, August, and Sep- tember of that year. Kelly further testified that in August 1950 the Company began negotiating with the Bendix Aviation Corporation to receive an unusually large subcontract to perform part of that Company's Government defense con- tracts. Negotiations with Bendix continued during August and September, and on October 9, 1950, the Respondent Company formally authorized its officers to enter into a contract with Bendix. According to Kelly, the contract with Bendix was "an exceptionally large" one and was expected to last "for a great many years." On September 25, Respondent made an adjustment in rates for incentive workers and on September 30, 1950, voted to grant all employees an 8-percent increase, effective October 30. Kelly explained that the October wage increase was granted by the Company in order to maintain its present staff and to attract new employees so that the Company would be in a position to maintain its production obligations under the Bendix contract. In the light of Kelly's testimony regarding the improvement in business start- ing-around the end of June, and particularly in view of the fact that the picture was even brighter in August and September when the Bendix contract was under negotiation, any claim that Dyer was laid off because business was slow would appear to be made out of the whole cloth. Respondent attempted to explain this evident inconsistency on the ground that despite the fact that there was enough business for other portions of the plant, it was slow in department 16. Both Dickson and Ross testified that the fact that certain departments of the plant were busy did not necessarily mean that there was enough work for other de- partments. Since normally an upsurge in business would be expected, within a reasonable time, to make its effect felt in all parts of a plant, the undersigned is unable to accept Dickson's and Ross' unsubstantiated testimony. The anomal- 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ism of Respondent's position struck the undersigned at the hearing and he sug- gested that the Respondent might wish to offer documentary evidence to support its claim of a decline in business in department 16 in the face of a general im- provement in the Company's business. However, Respondent elected not to avail itself of this opportunity. Under the circumstances it can only be assumed that Respondent's records do not support its oral claims. 5. Knowledge of Dyer's union membership According to Respondent, it had no knowledge of Dyer's union membership prior to the decision to discharge him and consequently, whatever confusion may exist in its explanation for the discharge, it could not have been motivated by his union membership. The undersigned finds Respondent's claim not to be substantiated by the record. Two employee witnesses called by the General Counsel testified to having over- heard Superintendent Ross and Foreman Dickson make reference to Dyer's union membership shortly before his discharge. According to Willard A. Gard, during the latter part of August he went to the office of Superintendent Ross looking for his foreman, Arthur Bean, Sr., and as he approached the office he overheard Ross say in substance : "Dyer better lay off this union business or he will be sorry." Along a similar vein, employee George Lynch testified that about 2 weeks before Dyer's discharge when he (Lynch) went to get some cams for a row of tiers separating his department from department 16, he overheard Foreman Dickson talking to another individual whom Lynch could not see because he was beyond his line of vision. According to Lynch's testimony, he heard some mention of the Union and then after some additional conversation which he could not get, Dickson stated in substance that : "If Ford and Dyer didn't control their activities, why they'd probably be sorry for it or regret it.,, Respondent questions the reliability of this testimony on the ground that Gard, as president of the local Union, and Lynch, as a member of its negotiating committee, were interested witnesses and that the strikingly similar stories of these two "eavesdroppers" were too pat to be true. Both Ross and Dickson denied having made the statements attributed to them. With respect to Ross' and Dickson's denials, the undersigned gives them very little weight since, as previously indicated, they proved to be generally unreliable witnesses. Another witness called by Respondent to deny the statements attributed to Ross was Foreman Albert Graham who, according to Gard's testimony, was in the office when he allegedly overheard Ross make reference to Dyer's union activities." Graham's denial of the remarks attributed to Ross was in a somewhat weak form, viz, that he did not "remember" having heard such a statement. He ad- mitted that he and Bean were frequently in Ross' office during this period but testified that he had "very little recollection" as to what was discussed on these occasions. In view of the uncertainty of Graham's recollection concerning the period in question it seems evident that a minimum of reliance can be placed on his denial. In resolving the conflict in the testimony the undersigned has given due weight to the fact that both Gard and Lynch were definitely interested witnesses and that their testimony was very convenient from the Union's point of view. The fact that both had overheard the remarks without being- observed and the similarity of what they overheard is also a striking coincidence. However, both 14 Arthur Bean, Sr., Gard's foreman, was not called as a witness nor was Ross' secre- tary, Miss Smith, whom Gard also claimed to have seen in the office. However, the parties stipulated that if they were called they would have testified substantially the same as Graham. SCOTT & WILLIAMS, INCORPORATED 937 of them impressed the undersigned favorably in their demeanor and appeared to be telling the truth. Their testimony was not substantially impaired after searching cross-examination by Respondent's counsel. It must also be noted that despite a surface similarity in their testimony there were certain important differences . Thus, while Lynch was able to identify only Foreman Dickson and, it might be argued, had imagined the presence of another person , Gard definitely identified at least four persons who were present in Ross' office thus leaving himself open to contradiction by all of these people. Likewise, while Gard claimed to have overheard reference only to Dyer, Lynch testified that mention -,vas also made of another employee, Ford. If the Union had concocted a story to help Dyer's case, there would seem to be no reason for dragging Ford's name into the picture . Despite the somewhat pat nature of their testimony, the undersigned is convinced on the record as a whole that both Gard 's and Lynch's testimony is worthy of belief. However, even if the testimony of these two witnesses were disregarded, the undersigned is satisfied that Respondent was aware of Dyer 's union membership at the time of his discharge. The testimony discloses that Dyer was very active in the Union. He regularly talked to employees in the plant during lunch hour about the Union. He also arranged for the hiring of the union hall, inserted no- tices of union meetings in the newspaper , handed out handbills at the plant gate, and visited the homes of employees with the main union representative , LaMaur, to: induce..them to,joini, tli i,Union. So pronni<nent.,was the, part he.played. that later, albeit after his discharge, he was elected vice president of the Union. It is inconceivable that his union activities, so open and notorious , did not come to the attention of Respondent's supervisory officials. That such was the case seems evident from the testimony of various supervisory officials. According to Ross' testimony, he was aware that the Union was organizing because he had seen the handbills and "in a small town like Laconia, it's pretty hard not to hear rumors on anything ." Aside from rumors, however, the under- signed is satisfied that from personal observation , Respondent's supervisory of- ficials were aware of Dyer's union activity. Dyer, himself, testified that while he was discussing union matters with fellow employees during lunch hour, he observed both Dickson and Assistant Foreman Morin present in the department. Dickson, while denying that he returned to the plant before 1 o'clock when the lunch hour was over, admitted that during July or early August as he came into the plant after the lunch hour he noticed Dyer grouped in conversation with other employees. He claimed, however, that he did not hear what they were talking about since they broke away as he approached them. Assistant Foreman Morin, who was in charge -of the, department during Dickson -s, absence,-also admitted observing Dyer conversing with other employees. Although claiming that he didn't hear them talk "outright" about the Union, he admitted that he got the impression from the conversations that the Union was being discussed . Super- intendent Ross admitted that around August 6, he was aware that there was unusual activity in department 16 with respect to employees congregating and talking to one another. He also testified that Dyer was more outstanding than most of the employees in this activity. Although denying that he heard any of the discussions, it is inconceivable, in view of his testimony, that he was aware of the union activities from the handbills he had seen and the rumors he had heard, that he did not know that the Union was at the bottom of all the talking in department 16. From Dickson's and Ross' continuous reference to the change in Dyer's "attitude" after the vacation period and from their difficulty in defin- ing what it was about his attitude that was objectionable, except that he was "indifferent" and seemed "dissatisfied," it seems evident that it was Dyer's keen interest in the Union which was behind much of their complaint. The 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned is convinced from the record as a whole, and finds, that Respondent was aware of Dyer's union membership and activities at the time of his discharge. Summary The evidence discloses that within a month after the Union began its organiz- ing campaign, Victor Dyer, one of its most active adherents, was discharged. Respondent's explanation for his discharge was that he had become deficient in his production and at the same time had engaged in talking and loafing, and_ exhibited an attitude of indifference and dissatisfaction ; that his superior spoke to him a number of times but he showed no improvement; and that when the de- cline of work in department 16 made necessary a reduction in force Dyer was- a logical choice for dismissal. The record discloses that Dyer's record with the Company prior to July 1950• was a creditable one. He had steadily progressed from one job to another until in department 16 he had come near the top of the ladder in the hierarchy of skilled occupations in Respondent's plant. Prior to July 1950 Respondent had been satisfied with his work. However, within a few weeks after his return. from the July vacation, his supervisor complained to him about his work. The record fails to establish affirmatively that Respondent was yet aware of Dyer's union membership on this occasion. It must also be conceded that there was some basis for the criticism of his production at this time. What the cause for Dyer's decline was is not clear, although it may be ,suspected that his preoccupation- with union activities was a contributing factor. However, the evidence discloses that there were other employees whose records, on an over-all basis, were equally bad and whom Respondent did not discharge when Dyer was laid off. More- important, from the time he was spoken to during the first week in August until the date he was terminated, Dyer's production steadily improved until in the S. weeks prior to his discharge his work was at least average for the department. Respondent's explanation for singling him out for discharge rather than other employees whose records were bad and who continued to have production diffi- culties even after Dyer's discharge was that his attitude was bad. The testimony offered, mainly by Dickson and Ross, in support of this contention was, as al- ready mentioned, highly exaggerated, confused, and contradictory. Signifi- cantly, their claim that he continued talking, loafing, was indifferent, and made no effort to improve, does not square with his production record which shows a gradual improvement until his production deficiencies were entirely wiped but. However, even assuming that Dyer's production record and his attitude were open to criticism, it is conceded by Respondent' s witnesses that he would not have been discharged therefor on September 10 but for the fact that a decline in the workload in department 16 made it necessary to dispense with the serv- ices of some of the employees therein. This claim is patently absurd in the light of the testimony that Respondent 's business improved materially and steadily from the end of June, and in view of the imminence of Respondent's obtaining a large contract with the Bendix Corporation. Even accepting Re- spondent's strained explanation that the general business situation was not expected to help department 16, it is difficult to understand why Dyer was not transferred to another department as he requested at the time of his discharge. In view of the fact that Laconia was admittedly a labor shortage area and that the Respondent was going to require additional employees to perform its contract with Bendix, it is incomprehensible that Respondent should not have attempted to salvage the skill of this trained employee, who had performed satisfactorily in other departments, and transferred him to another department as it did with many other employees. The explanation that he was not con- sidered a desirable employee because of his "indifferent" attitude is silly in the SCOTT & WILLIAMS , INCORPORATED 939 light of the admission that one almost had to commit "mayhem" before the Company discharged him. The undersigned is convinced that the true explanation for Dyer's discharge was his union membership of which Respondent had undoubtedly become aware following the first union meeting . Because of the prominent and aggres- sive part which Dyer took in the campaign , Respondent was determined to get rid of him as an example to other employees . His temporary production deficiency furnished it with a convenient alibi which was further embellished by exagger- ated claims regarding his attitude and incredible claims regarding the decline in work. It is found that by discharging Dyer on September 10, Respondent discriminated in regard to his hire and tenure of employment , thereby discour- aging membership in a labor organization , and interfered with , restrained, and coerced its employees in the exercise of the rights guaranteeed in Section 7 of the Act. C. The interference , restraint, and coercion 1. The threats to discharge employees The complaint alleges that Respondent threatened employees with "discharge or other reprisals if they joined or assisted the Union ." The only evidence to support this allegation is the testimony by employees Gard and Lynch , referred to above, as to having overheard Superintendent Ross and Foreman Dickson on separate occasions suggest that Dyer would be sorry or would regret it if he continued his union activities . Dickson's statement was made to a person not, identified in the record . Ross' statement was made in the presence of two other supervisors and his secretary . Since there was no evidence that these statements had been made to rank -and-file employees or under circumstances where it could be reasonably assumed that they would be overheard by or com- municated to rank-and-file employees , the undersigned at the hearing granted Respondent's motion to dismiss this allegation of the complaint.16 2. The interrogation of employees The complaint alleges that Respondent interrogated employees concerning their union affiliation for the purpose of discouraging membership in or assistance to the Union. The only evidence in the record relied upon by the General Counsel in support of this allegation is an alleged conversation between the Company's manager of industrial relations , William A. Mahoney , and Dyer in the early part of September 1950. According to Dyer, after he was advised of his discharge by his foreman, he went to see Mahoney to try to find out why he had been dis- charged. In a conversation which he had with Mahoney he told the latter that everyone was blaming his union activity as the reason for his discharge and told Mahoney that this was, in his opinion , the reason why he had , been dis- charged. According to Dyer, Mahoney then asked him if he had been soliciting for the Union and he said that he had. Mahoney then asked him if this had occurred in the shop and Dyer replied that it had but that he had engaged in this activity at noontime while not working. Mahoney gave a somewhat different version of this conversation. According to him, when Dyer stated that he wanted to discuss his termination "because of his union membership and his union activi- ties," Mahoney told Dyer that he was sorry that Dyer had made that statement because it was not information which he wanted to have. The undersigned finds it is unnecessary to resolve this conflict in the testimony since even assuming that Mahoney made the statement attributed to him by Dyer, his questioning of Dyer after the latter had volunteered the information that he was active in 15 M. Snwwer & Company, 83 NLRB 290; cf. Conway's Express, 87 NLRB 972, 980. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union cannot be regarded as interrogation of the type held by the Board to violate the Act. The undersigned will accordingly recommend that this allega- tion of the complaint be dismissed. 3. The granting of wage increases The General Counsel contends that certain wage increases and adjustments granted by Respondent to its employees in September and October 1950 con- stitute a violation of the Act. The first increase referred to went into effect on September 25, 1950. Prior to that date the Company had paid its employees a 15-cent an hour cost-of-living bonus, in addition to their base rate of pay. In computing incentive earnings for employees working under the incentive system the 15-cent bonus was not included in the base rate . However, on .September 12, 1950, Respondent advised its employees that effective September 25, the 15-cent per hour bonus would be added to their base rate and that thereafter incentive earnings were computed on the basis of the new base hourly rate. Respondent's explanation for this change is that prior to September 1950, the 15-cent an hour cost-of-living bonus had been carried in the Company's "overhead cost account" rather than in the "direct labor account" and that the carrying of these addi- tional amounts in the overhead account distorted these figures so that when the Company attempted to obtain subcontracts from prime contractors on Government work a question was raised with respect to the size of , this account. In, order to obviate this situation , according to Manager Kelly, Respond'e'nt decided to transfer the bonus from the overhead cost account to the direct labor account. According to Respondent the only employees that would benefit by this situation would be those employed on an incentive basis since the 15-cent bonus had already been included in the computation of earnings for all employees except for the purpose of computing premium earnings for incentive workers. How- ever, since 68 percent of Respondent 's employees were employed on an incentive basis it is obvious that a very sizable group of employees stood to benefit by this 15-cent an hour increase in base rates. The undersigned is convinced from the record as a whole that this increase was more than the technical bookkeeping adjustment which Respondent sought to make it appear . There does not appear to be any reason why , if the Respond- ent wanted to, the bonus could not have been transferred to the "direct labor" account without adding it to the base rate for purposes of computing premium pay, any more than there was for not using it in computing premium pay when it was carried in the "overhead" account. It seems obvious that at least one of Respondent's purposes was to grant an increase to its incentive workers by this bookkeeping maneuver. In addition to this wage adjustment, the record discloses that on September 30, 1950, the Company's board of directors voted to grant all employees an 8- percent wage increase to become effective October 30, 1950 . A notice to this effect was posted in the plant on October 24. Respondent's explanation for the granting of this increase was that it was about to enter into a contract with the Bendix Aviation Corporation , already referred to above, and that the increase was granted in order to enable it "to maintain [ its] organization and attract [new employees], and in anticipation of profits." As previously stated, the Union filed a representation petition on August 25, 1950, and almost simultaneously requested recognition and bargaining rights. Respondent refused to accede to this request on the ground that it preferred to await the outcome of the representation proceeding . On October 13, 1950, Respondent was advised that a hearing on the Union's petition would be held October 20, 1950, which'was subsequently postponed to October 24, 1950. On the record as a whole the undersigned is not satisfied that the increases above SCOTT & WILLIAMS, INCORPORATED 941 referred to were granted entirely, or even primarily, for the alleged business reasons assigned by Respondent. In the opinion of the undersigned the timing of these increases to coincide with the union organizing campaign and the pendency of the representation proceeding was not accidental. Considering the background and timing of these increases, the undersigned is convinced that at least one of Respondent's purposes was to influence the choice of the em- ployees in the union campaign and in the coming election. The granting of the increases under these circumstances was calculated to interfere with the right of free choice granted to employees under Section 7 of the Act and constituted a violation of Section 8 (a) (1) thereof.1° That Respondent may in part have been motivated by legitimate business reasons does not affect this conclusion since it is,impossible to disentangle the legal from the illegal motives.17 4. The surveillance of union meetings The complaint alleges that Respondent kept under observation and surveillance the meeting places, meetings, and concerted activities of its employees. The only evidence offered in support of this allegation is the testimony of employee Foster Campbell that in January 1951, just before the representation election, the Union had scheduled a meeting to be held at Tardiff Hall in Laconia. According to Campbell, as he was approaching the meeting hall around 7: 30 p. m. with several fellow employees, the Company's supervisor of standards, Norman St. Jean, emerged from the building where the meeting was about to be held. The evidence does not disclose that the meeting was then in progress or that St. Jean overheard anything which occurred at the meeting. According to Camp- bell, as St. Jean emerged from the building he greeted St. Jean and the latter returned the greeting. There was no other discussion among them. In his testimony St. Jean denied having been near Tardiff Hall on the night in ques- tion or at any other time during this period. According to St. Jean, on the night of January 16, 1951,38 he was in Manchester, New Hampshire, attending a meet- ing of the National Association of Cost Accountants. The undersigned finds it unnecessary to resolve this conflict in the testimony. Assuming, as testified by Campbell, that he did see St. Jean coming out of the meeting hall, his presence at the hall prior to the commencement of the meeting and before the employees had gathered' therein cannot be held to constitute surveillance of union meetings and activities in violation of the Act. It will accordingly be recommended that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have: a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 16 Cen-Tennial Cotton Gin Co., 90 NLRB 345; Continental Nut Co., Inc., 91 NLRB 1058; Salant & Salant, Inc, 92 NLRB 343. 11 N. L. R. R. V. Remington Rand, Inc, 94 F. 2d 862, 872, cert den., 304 U S. 576. 18 The union organizer, John LaMaur, fixed January 16 as the night when the Union held its preel egtion.meeting at-Tardiff Hall. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent on September 10, 1950, discriminatorily discharged Victor Dyer because of his union membership, affiliation, or sympathy, the undersigned will recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position" without preju- dice to his seniority or other rights and privileges, and that the Respondent make him whole for any loss of pay which he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, to the date of Respondent's offer' ,of reinstatement, less his net earn- ings" during said period. It is recommended that the loss of pay shall'be com- puted upon the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Dyer would normally have earned for each such quarter, or portion thereof, his net earnings , if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. In order to insure compliance with the foregoing back-pay and reinstatement provisions, it Is recommended that the Respondent shall be required upon reasonable request to make all pertinent records available, to the.l ioard-and its,agents 21 In view of the nature of the unfair labor practices committed, particularly the discriminatory discharge of Victor Dyer which goes to the heart of the Act, the undersigned will recommend, in order to make effective the interdependent guarantees of Section 7, that the Respondent cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment 'of Victor Dyer, thereby discouraging membership in United Steelworkers of America, C. I. 0., the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the`Respond'ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. , 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not violated Section 8 (a) (1) of the Act by threat- ening employees with discharge, by interrogating them concerning union affilia- tion, or by engaging in surveillance of union activities. [Recommendations omitted from publication in this volume.] 19 The Chase National Bank of the City of , New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 20 See Crossett Lumber Company, 8 NLRB 440,.497-8. 21 F. W. Woolworth Company, 90 NLRB 289 Appendix A Clarence Dyer Clayton Ford Guy Simpson Louis Sweatt Ira Stickney Stanley Martin Department aver- ages Week ending 1950 Inc E. CM-S Inc. E. CM-S Inc. E. CM-S Inc E. CM-S Inc. E. CM-S Inc. E. CM-S Inc E. CM-S June 4------------------------ $15 81 $0 34 $0 85 $10 33 ---------- $5 59 _ 08 _ 45 $12 44 _ 54 $4 23 11________________________ 21 20 _ 70 2 70 $13 82 3 90 $1 21 7 92 $9 42 3 65 1 77 $2 94 1243 3 66 18________________________ 10 84 _______ 4 58 6 06 14 51 _____ __________ 3.14 1 29 5 17 12 04 _-________ 13 11 3 65 25________________________ 4 97 49 1 85 10 48 __________ 7 82 5 18 .33 5 31 4.66 12 59 5 46 16 00 4 23 July 2_________________________ 1.58 2 05 2 27 3 35 10 72 .09 73 4.70 2 10 7 92 8 64 _______ 11 87 3 53 9 2 ----- ----- ---------- --------- - ------ - 162 -- ------- ------ --- ------ ---------- ------- ---------- 23__________ 58 18 13 82 2 13 46 2 74 5 76 4 68 5 91 8.51 10 05 _ 48 5 27 30_________________________ __________ 8 64 6 84 4 59 _ _________ 9 76 6 82 5 79 1 58 ________ 13 04 5 78 Aug 6_________________________ __________ 20 05 4 34 5 90 __________ 0 35 5 67 9 41 10 31 7 76 6 91 2 65 11 73 8 02 13_______ _________________ 3 13 7 69 2 80 7 04 4 75 6 20 1 82 12 72 11 01 4 45 10 18 1 57 15 53 3 92 20_________________________ __________ 5 94 8 45 2 21 69 11 29 9 04 _ 54 5 40 09 2 78 15 57 3 95 27._____-__________________ 3 36 3 85 3 68 6 12 1 60 5 62 2 21 8 98 5 54 6 37 28 81 7 28 13 60 4 71 Sept 3.___-__--_________________ 10 02 1 02 __-_______ 11 90 9 99 5 22 9 22 3 98 ______ 8 14 5 70 6 47 16 12 5 03 10________________________ 11 81 -------- _ .40 7 37 __________ 4 86 4 67 7 00 1 81 5 76 6 02 __________ 11 21 3 60 Total____________________ $144 69 $73 48 $106 83 $153 58 $56 54 $77.84 $82 87 $225.29 $184 01 $191 58 $324 98 $113 Or __________ ---------- Averages 3 --------------- $6 89 $3 50 $3 05 $4 39 $4 35 $5 99 $2 37 $6 44 $5 41 $5 63 $9 29 $3 23 __________ __________ Averages are computed by dividing total Departmental C of M-S by the number of men charged with C of M-S in the week. Same formula used for Inc. Ram. 2 Vacation week. 3 Computed by dividing totals by number of weeks worked in 1950 SO- Co 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the. National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in UNITED STEELWORKERS OF AMER- ICA, C. I. 0., or any other labor organization of our employees, by dis- charging and refusing to reinstate them, or in any, other manner discrimi- nating in regard to their hire, tenure of employment, or any term^or, con- dition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the, extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Na- tional Labor Relations Act. WE WILL OFFER to Victor Dyer immediate- and,full reinstatement to this former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or refrain from becoming mem- bers of the above-named union or any other labor organization, except to the ex- tent that this right may be affected by agreements in conformity with Section & (a) (3) of the National Labor Relations Act. SCOW & WILLI'AMS, INCORPORATED, Employer. Dated -------------------- By- ------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. NINTH STREET SI ooKUM GROWERS, INC. and CANNERY WAREHOUSE- MEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL No. 318, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN & HELPERS OF AMERICA, AFL, PETITIONER WENATCHEE WENOKA GROWERS ASSOCIATION and CANNERY WARE- HOUSEMEN, FOOD PROCESSORS, DRIVERS AND HELPERS, LOCAL No. 318, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Cases Nos. 19-RC-1025 and 19-RC-1037. June 05, 19512 99 NLRB No. 128.