Central Pipe Fabricating and Supply Co.

350- DECISIONS OF NATIONAL LABOR RELATIONS BOARD chine hand "A," also known as planer machine operators, perform planing operations on the surface of die blocks preparatory; to the diesinking operation. The die repairmen, also known as die polishers, perform polishing operation on forging dies. As these employees are not journeymen craftsmen of the diesinking trade and do not appear to be in line of progression to the diesinker classification, we shall exclude them from the voting group hereinafter established. We find that the craft unit sought by the Petitioner and consisting of employees in the classifications of diesinkers and trimmer diemak- era to be a true craft group within the diesinker craft. In view of the foregoing and upon the entire record, we further find that the fol- lowing group of employees may, if they so desire, constitute a craft unit of employees. We shall direct a self-determination election among all diesinkers and trimmer diemakers 7 employed at the Employer's East Moline, Illinois, operations, excluding all other employees and supervisors as defined in the Act. However, we shall make no final unit determination at this time. If in the election herein directed a majority of the employees vote for the Petitioner, the. Regional Director is instructed to issue a certifi- cation of representatives for the unit herein described, which in these circumstances we find to be appropriate for purposes of collective bar- gaining. If, on the other hand, a majority vote for the Intervenor, which has requested no election in the overall production and mainte- nance unit it presently represents, the employees will be taken to have indicated their desire to remain in that unit and the Regional Direc- tor is instructed to issue a certificate of results of election to that effect. [Text of Direction of Election omitted from publication.] MEMBER MUnl)ooK took no part in the consideration of the above Decision and Direction of Election. 9 The employees in this classification are G. Adolph Bucherer, Ernest F. Erdely, Jr., William R'. Skinner, LeRoy E. Miller, Joseph F. Meyers, Earl L. Strupp, Jack M. Christiansen, Otto Seihost, Roy M. Doyle, and Glenn H. Hull. Central Pipe Fabricating and Supply Co. and Leon L. Neale Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL and Leon L. Neale. Cases Nos. 9-CA-828 and 9--CB-241. October 12, 1955 DECISION AND ORDER On June 3, 1955, Trial Examiner Louis Libbin issued his Inter- mediate ;Report in the above-entitled proceedings, finding that the 114 NLRB No. 63. CENTRAL PIPE FABRICATING AND SUPPLY CO. 351 Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent Union filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modification noted below. For the reasons set forth in the Intermediate Report, we agree with the Trial Examiner's conclusion that the Company discriminatorily discharged employee Neale because of his refusal to pay strike assess- ments to the Union. We also agree with the Trial Examiner's con- clusion that the Union caused the Company to discharge Neale for that reason. The following are the facts bearing on the matter of whether the Union caused the Company to discharge Neale. Neale, like the Com- pany's other utility employees, was not a union member. After the Union's strike committee levied a strike assessment against the em- ployees within its territorial jurisdiction, Cornett, the union steward at the Company's plant, spoke to the utility workers and made it clear, as detailed in the Intermediate Report, that they would have to pay the strike assessments or suffer the loss of their jobs. Shortly there- after, the Union, through Cornett and Business Agent Douglas Her- thel, solicited the Company's help in collecting an assessment from Neale and from another utility employee, Nick Noe. With respect to Neale, Herthel and Company Superintendent Bar- tholomew engaged in a phone conversation during which Herthel inquired of Bartholomew as to why Neale had not yet paid his-assess- ment, and also requested Bartholomew to ask Neale if he would pay the assessment if given an extension of time. After ascertaining from Neale that he would pay if given an extension, Bartholomew reported this fact to Herthel, and then returned to Neale with the information that he had "got Doug [Herthel] cooled off now." Later, approxi- mately 5 days before Neale was discharged, Bartholomew upbraided Neale for putting him in a "hell of a spot" by refusing to pay the assessments after Bartholomew had been "good enough to get [Neale] an extension from [the Union]." Neale replied that he had been ad- vised by agents of the Board that he was within his legal rights in refusing to pay the assessments, whereupon Bartholomew rejoined that Neale had "better think it over." He also warned Neale that "you know what that will mean, don't you, if you don't straighten out with 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [the Union]." When Neale thereupon suggested that it would prob- ably mean he would be fired, Bartholomew, without answering Neale's suggestion, smiled and walked away. In addition, Bartholomew, on several occasions before Neale's discharge, warned the utility workers that failure to pay their assessments had resulted in "[the] Union boys . . . giving him hell" and "putting him on the spot." After the period of the extension granted by Herthel had expired and Neale still had not paid the assessment, Neale was discharged. Neale was the only employee who did not pay the strike assessments. From the foregoing facts, particularly the Union's announcement to the utility workers that they must either pay the strike assessments or lose their jobs; Herthel's phone conversation with Bartholomew, concerning an extension of time for Neale; 1 and Bartholomew's re- peated statements to the effect that the Union had him "on the spot" because some of the utility workers had not paid the strike assess- ments, we find that the Union brought pressure to bear upon the Com- pany and caused the Company to discharge Neale because he had not paid the strike assessments . The Union thereby violated Section 8 (b) (2) of the Act. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent, Central Pipe Fabricating and Supply Co., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: A. Cease and desist from : (1) Encouraging membership in Pipefitters Local 392, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL, or in any other labor organization of its employees, by discharging employees for failure to pay strike assessments, or by discriminating against them in any other manner in regard to their hire or tenure of employ- ment or any term or condition of their employment, except to the extent permitted by Section 8 (a) (3) of the Act. (2) Soliciting employees to pay strike assessments to the aforesaid Union, or to any other labor organization, and from threatening employees with loss of employment for failure to pay the strike assessments. 'In its brief to the Board , the Union asserts that "at most" the evidence shows that Business Agent Herthel "acquiesced" in Superintendent Bartholomew 's request for an "extension" of time for Neale to pay the strike assessments . That Neale was being offered an "extension " of some sort with the Union's "acquiescence" indicates that the imposition of sonic sanction was, with the Union's consent, being postponed. These facts, .by themselves, would appear to be enough to form the basis of an inference that the Union was bringing pressure to bear upon the Company to discharge Neale. CENTRAL PIPE FABRICATING AND SUPPLY CO. 353 (3) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section'7'of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized by Section 8 (a) (3) of the Act. B. Take the following affirmative action which it is found will ef- fectuate the policies of the Act : (1) Preserve and make available to the National Labor Relations Board, or its agents, upon request, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (2) In the event of resumption of operations, offer to Leon L. Neale immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges. (3) In the event operations are resumed, post in its plant copies of the notices attached to the Intermediate Report and marked "Appen- dix A."' Copies of said notice, to be furnished by the Regional Di- rector for the Ninth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately after resump- tion of operations and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered; de- faced, or covered by any other material. (4) In the event operations have not been resumed by the date of issuance of this Order, mail to all utility employees on its payroll rec- ords since June 1, 1954, signed copies of the notice attached to the In- termediate Report and marked "Appendix A." 3 (5) Notify the Regional Director for the Ninth Region in writing, within ten (10) days of the date of this Order, what steps the Re- spondenthas taken to comply herewith. II. The Respondent, Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL, its officers, represen- tatives, agents, successors, and assigns, shall : 2 This notice , however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations 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, Enfoicing an Order." 3 See footnote 2, supra 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Cease and desist from : (1) Causing or attempting to cause Central Pipe Fabricating and Supply Co., its officers, agents, successors, or assigns, to discriminate against employees in violation of Section 8 (a) (3) of the Act. (2) Threatening employees of the above Company with loss of em- ployment for failure to pay strike assessments. (3) In any other manner restraining or coercing employees of the above Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8 (a) (3) of the Act. B. Take the following affirmative action which it is found will ef- fectuate the policies of the Act : (1) Notify Leon L. Neale and the Respondent Company immedi- ately, in writing, that it has no objection to Neale's employment by the Respondent Company, and that it formally requests his reinstate- ment in the event the Respondent Company resumes operations. (2) Post at its business offices and meeting halls in Cincinnati, Ohio, copies of the notice attached to the Intermediate Report and marked "Appendix B."' Copies of the notice, to be furnished by the Re- gional Director for the Ninth Region, shall, after being duly signed by an official representative of the Union, be posted by the Respond- ent Union immediately upon receipt and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that these no- tices are not altered, defaced, or covered by any other material. (3) In the event operations of the Respondent Company have not been resumed by the date of issuance of this Order, mail to all utility employees on the payroll records of the Respondent Company since June 1, 1954, signed copies of the notice attached hereto marked "Ap- pendix B." (4) In the event of resumption of operations by the Respondent Company, mail signed copies of the notice attached to the Intermedi- ate Report as Appendix B, to the Regional Director of the Ninth Re- gion, for posting, the Respondent Company willing, in the places where notices to employees are customarily posted. Copies of the no- tice, to be furnished by the Regional Director for the Ninth Region, shall be returned forthwith to the Regional Director after they have been signed by an official representative of the Union, for such posting. 4 Appendix B of the Intermediate Report shall be, and hereby is, amended in the same manner as Appendi x A. See footnote 2. above. 0 CENTRAL PIPE FABRICATING AND SUPPLY CO. 355 (5) Notify the Regional Director for the Ninth Region in writing, within ten (10) days of the date of this Order, what steps the Re- spondent has taken to comply herewith. III. The Respondents, Central Pipe Fabricating and Supply Co., its officers, agents, successors, and assigns, and Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, its officers, representatives, agents, successors, and assigns, shall jointly and severally make whole Leon L. Neale for any loss of pay he may have suffered because of the discrimination against him, in the man- ner set forth in the section of the Intermediate Report attached hereto, entitled "The Remedy." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Leon L. Neale, an individual, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a consolidated complaint, dated April 8, 1955, alleging that Central Pipe Fabricating and Supply Co., herein called the Respondent Company or the Company, had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, herein called the Act, 61 Stat. 136, and that Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, herein called the Union or Loul 392, had engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, all affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondents. With respect to the unfair labor practices, the complaint alleges that the Respond- ent Company (1) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by soliciting employees to pay a strike assessment to the Respondent Union, collecting strike assessment from its employees for the Respondent Union, and by threatening employees with reprisals if they did not pay a strike assessment to the Respondent Union, and (2) dis- criminated with respect to the hire and tenure of employment of Leon L. Neale because of his refusal to pay the strike assessment to the Respondent Union; the complaint also alleges that the Respondent Union (1) restrained and coerced the employees of the Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act by threatening employees with reprisals if they did not pay a strike assessment to the Respondent Union and (2) attempted to cause and caused the Respondent Company to discriminate with respect to the hire and tenure of employment of Leon L. Neale because of his refusal to pay the strike assessment to the Respondent Union. Each Respondent duly filed an answer in which it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on April 27 and 28, 1955, at Cincinnati, Ohio. All parties were represented at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respondents' motions to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, are disposed of in accordance with the findings of fact and conclusions of law made below. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent Company is an Ohio corporation which, until January 1, 1955, maintained and operated a plant at Sharonville, Ohio, where it was engaged in the 3 8 7 644- 5 6--v o f 114--2 4 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and fabrication of pipe. During the period from October 1, 1953, to October 1, 1954, the Respondent Company shipped products, valued in excess of $100,000, from its Sharonville, Ohio, plant to points located outside the State of Ohio. On January 1, 1955, the Respondent Company transferred all its physical assets to a disconnected employer. Although no longer engaged in the operation of any business, the Respondent Company continues to exist as a solvent corporation. Upon the foregoing admitted and stipulated facts, I find that the Respondent Company was engaged in commerce within the meaning of the Act at the time when the alleged unfair labor practices occurred and that the Board is not divested of its jurisdiction over this proceeding by the subsequent cessation of the Respondent Company's operations on January 1, 1955.1 II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and I find, that Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction: the issues At all times material herein, and at least since June 1, 1953, Local 392, the Respondent Union, has been recognized by the Respondent Company as the exclusive bargaining representative of the Company's employees. Included in the bargaining unit was a group of employees, numbering from 20 to 30 as of June 1, 1954, classified as utility employees. This was a general labor class, performing non- skilled work not claimed by the journeymen and apprentices. None of the utility employees were members of the Respondent Union, although about 12 of them had submitted membership applications, action upon which was tabled by the Respondent Union. At a general meeting of the Respondent Union on May 28, 1954, the member- ship voted to strike the heating and air-conditioning piping contractors in Cincinnati, Ohio. On June 1, the day the strike became effective, a meeting was held by the strike committee, composed of a plant representative of each struck employer. The next day Ralph Cornett, Respondent Union's steward at the Company, a nonstruck plant, inquired of Douglas Herthel, assistant business agent of the Respondent Union, as to the outcome of the strike committee meeting. Herthel informed Cornett that the committee had levied a strike assessment of 10 percent of each week's take-home pay against each employee working under the jurisdiction of the Respondent Union, that the assessment was to become effective beginning with the week of June 7, and that both the journeymen and the utility employees at the Respondent Company were subject to this assessment. It was the duty of Cornett, as union steward, to collect these assessments from the employees of the Respondent Company. These collections were made at the plant during working hours for a period of about 5 weeks. As the utility employees had not been accepted into membership in the Respondent Union, a number of them raised questions as to their obligations to make these payments and as to the conse- quences of their failure to pay. Cornett succeeded in collecting the assessments from all utility employees except Leon L. Neale, the Charging Party, who refused to pay. On July 20, 1954, Neale was discharged allegedly for cause. The issues raised in this proceeding are (1) whether, in connection with the collec- tion of the strike assessments, the Respondents interfered with, rests ained, or coerced the employees in the exercise of their rights guaranteed by Section 7 of the Act, (2) whether Neale was discharged for failing and refusing to pay the strike assessments or for cause, and (3) whether the Respondent Union attempted to cause or caused the Respondent Company to discharge Neale because of his fail{ire and refusal to pay the strike assessments. B. Interference, restraint, or coercion 1. The facts Union Steward Cornett admitted that he went around the plant during, working hours requesting all the employees to pay the 10 percent strike assessment. For IN. L. It B. v Cowell Portland Cement Co., 148 F. 2d 237, 241-242 (C. A. 9), cert. denied 326 U. S. 735. CENTRAL PIPE FABRICATING AND SUPPLY CO. 357 a period of about 5 weeks after June 7 , 1954, he customarily collected the assess- ments on the day after payday, which fell on a Wednesday. Each time he collected an assessment, he gave the employee a slip of paper which contained the printed words "Permitted to Work" and "Local 392." Before handing the slip to the employee, Cornett wrote on it the employee's name, the words "strike assessment," the amount received from the employee, the weekly period covered by the payment, and his own initials on the bottom. The evidence is undisputed that this slip was given to the employee as a receipt for the payment of the strike assessment indicated therein, and it was so understood by the employee receiving it. Harold Ervin, a utility employee, testified that about a month before Neale's employment termination, which was July 20, 1954, he and a group of utility em- ployees were outside the plant building and Shop Steward Cornett was asked to come out to meet them. Ervin testified that the men asked Cornett if they would have to pay the assessment and what benefits they would get out of it as they were not members of the Union, and that Cornett replied that he did not know whether they would get any benefits. Ervin further testified that- We asked him if we'd have to pay the assessment , and he said "Yes," it would be best if we did, and we says, well, if we didn't pay it what would happen, and he says, "Well, there probably would be some changes made." According to Ervin's further testimony, "a lot of them" asked, "What if we don't pay?" and Cornett answered that question "maybe two times." Nick Noe, a utility employee, testified that sometime in the morning about June 5 or 6 he asked Cornett in the shop "if we were going to have to pay the strike assess- ment and he said, `You shore do."' Noe also testified that about noon during the same day he and a group of other utility employees were outside the plant building and they had the following con- versation with Cornett: They asked Cornett why they would have to pay the strike assessment when they did not belong to the Union. Cornett replied, "Well you fel- lows are all working, aren't you?" At that point Frank Maher, one of the employees in the group, asked "what protection we would get from the Union?" Cornett told them that they had no protection because they did not belong to the Union. Maher then asked, "Well, supposing we don't pay this?" Cornett replied, "Well, you'll pay it or else." Leon L. Neale, a utility employee, testified that several days after June 15 he was in a group of employees , sitting outside in the warehouse during lunchtime, and the question of the strike assessments arose, a topic of conversation which was general among the utility employees at that time. According to Neale's-testimony, some- one in the group asked Cornett how long the strike assessments would last, and Cornett replied that that was a matter to be decided by Local 392, "that all he [Cornett] knew about it was that he had got orders that it was either paid or else." Neale testified that employees Ervin and Noe were not in the group at that time. As previously noted, all the employees, except Neale, eventually paid the strike assessments. Cornett admitted requesting all the employees to pay the strike assessments and did not deny having the above conversations. He did however deny telling Noe, Neale, or any other employee that they would have to pay the assessment "or else." He also denied -that he indicated by the use of any other words that he would take or attempt to take any action against them if they did not pay the strike assessments. Cornett, when called as a witness by the General Counsel, testified in a reluctant and evasive manner. His demeanor on the stand did not impress me favorably nor inspire confidence in the trustworthiness of his testimony. Ervin, Noe, and Neale testified in a clear, positive , and convincing manner. Neale frankly and unhesitat- ingly admitted certain matters in connection with his employment record, despite the fact that such admissions appear to be unfavorable to the General Counsel's case as to him. Under all the circumstances, and upon the basis of the entire record, I credit the testimony of Ervin, Noe, and Neale, as set forth above, and find that Cor- nett made the statements attributed to him . However, for the reasons indicated be- low, 2 I find that the conversations to which Noe testified occurred after June 7. 2 Noe had placed these conversations as occurring about June 5 or 6 These two dates fell on a Saturday and Sunday when, the record shows, Noe was not working. The strike assessments did not become effective until the week beginning with Monday, June 7, and Cornett customarily made his collections after payday which fell on a Wednesday. Noe admitted that the first time he paid any assessment was after June 13 for the week of June 7-13 Moreovei, Ervin , who testified after Noe , stated that Noe was present in the group of utility employees which had the conversations with Cornett and to which 358 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD Noe testified that when Cornett asked him for the assessment for the week of June 28 to July 4, Noe told him that he needed the money that week and could not pay it. According to Noe, Cornett told him "they wanted the money in town at the Union, and he had to get it together, it had to be paid." Noe further testified that about July 16 he had the following conversation with Harold Bartholomew, plant superintendent of the Respondent Company, and a supervisor within the meaning of the Act: Harold called me beside of the time clock and he said that he-that the Union boys had been giving him hell because I hadn't paid that one week's assessment, and I told him that I would pay it from my next pay check, and in the con- versation he said, "I can't make you pay it," or, "I can't tell you to pay it," he said, "If you will.pay it," he said, "they will get off my back...." That's when I told him that I would pay him on my next pay check. After the next payday, Noe paid Cornett the strike assessment for a 2-week period from June 28 to July 11. Bartholomew admitted that about July 15 Cornett told him that Noe had not paid his 10 percent strike assessment and that Cornett asked Bartholomew to find out whether or not Noe was going to pay his assessment. Bartholomew further admit- ted that he then spoke to Noe and asked Noe if he was going to pay the assessment, and that Noe told him he was going to pay it. He did not deny having made the other statements attributed to him by Noe and his testimony is not inconsistent with that of Noe. Cornett did not testify with respect to the above matters. Under all the circumstances, I credit the testimony of Noe and Bartholomew, as related above with respect to the incident concerning Noe's payment of that week's assessment, and find that Cornett and Bartholomew engaged in the conduct and made the statements above set forth As previously noted, Neale was the only employee who persistently refused to pay the strike assessments. Cornett had also informed Douglas Herthel, assistant busi- ness agent of the Respondent Union, that Neale had refused to pay the strike assessments. About the latter part of June, Bartholomew had a telephone conversation with Herthel, the assistant business agent of the Respondent Union, concerning the grant- ing of an extension of time to Neale for the payment of his assessments. Neale testi- fied that he was in thelofice and answered the phone when the call came in, that the person asked for Cornett, that he called Cornett to the phone, that after a few minutes Cornett asked Neale to call Bartholomew to the phone, and that Neale did so and then continued his work in the warehouse. Neale further testified that the following occurred: After a few minutes, Bartholomew came into the warehouse and asked Neale if he would be willing to pay his strike assessment if Local 392 gave him an extension of time. Neale replied that "maybe" he would. Bartholomew then went back and talked some more on the telephone. After hanging up the telephone re- ceiver, Bartholomew told Neale that he had "got Doug cooled off now" and that Doug had agreed to give Neale an extension till Wednesday to pay his strike assessments. Bartholomew admitted having several conversations with Neale about strike assess- ments. He testified that Neale had told him that he could not pay the strike assess- ment because he did not have the money 3 and that he would probably pay it if he could have an extension. He also admitted having a conversation with Herthel about the latter part of June in which Herthel wanted to know why Neale had not paid his 10-percent strike assessment, that he replied that Neale told him he did not have the money, and that Herthel asked him to ask Neale if he would be willing to pay if he got an extension of time. He further testified that he did not "believe" he went back to Neale immediately after the telephone conversation but that either the same day or later he told Neale that Herthel had agreed to an extension of time. Herthel admitted that during the period in question he had frequent telephone con- versations with Cornett and Bartholomew but denied speaking to Bartholomew about Neale or about an extension of time for Neale to pay his assessment. He admitted Ervin testified Ervin placed this meeting as being about a month before July 20, the date of Neale's employment termination, and testified that "it could have been" the same meeting referred to by Noe. Under all the circumstances, and in view of Noe's un- certainty as to the exact date, I am convinced and find that those conversations occurred sometime after Time 7 3 Neale denied that he ever told Bartholomew he could not pay the strike assessment because he did not hive the money. CENTRAL- PIPE FABRICATING AND SUPPLY CO. 359 that he could not recall everything that was said in his conversations with Barthol- omew. Bartholomew was a -very reluctant witness. The above-related admissions were drawn from him by the General Counsel only after his recollection was refreshed by showing him the affidavit which he had earlier executed before an agent of the General Counsel during the course of the investigation of this case. Under all the circum- stances, I find that during a telephone conversation with Bartholomew about the latter part of June, Herthel wanted to know why Neale had not paid his 10-percent strike assessments and asked Bartholomew to inquire if Neale would be willing to pay if an extension of time were granted; that, while Herthel was still on the tele- phone, Bartholomew made such an inquiry, as Neale testified, and returned to resume his telephone conversation; that Herthel then agreed to give Neale an extension of time for the payment of his assessments; and that, immediately after the conclusion of this telephone conversation, Bartholomew informed Neale of the extension of time granted by Douglas Herthel and made the statements attributed to him by Neale. Cornett admitted that, beginning with the time when he first started to collect the strike assessments and every week thereafter, he spoke to Neale at the plant about the payment of his strike assessments . On the first occasion, Neale told Cornett that he would not pay the strike assessments because he did not belong to Local 392 and would receive no benefits from it. On another occasion, Cornett told Neale that he "probably should be the very first one to pay the strike assessments" because he was a "scavenger on the job with Local 392" for the last 3 or 4 years. Neale denied the accusation, stating that the positions he held did not require him to join the Union. Cornett pointed out that Local 392 had decided that all utility men would have to pay the strike assessments .4 Cornett and Neale were in agreement that on the last occasion when Cornett spoke to Neale, the latter told Cornett that he would bring his assessment payments to the union hall that night. This occurred about July 2, which was after the conversation in which Bartholomew had informed Neale that Herthel had agreed to give him an extension of time. Cornett admitted that he had kept Herthel informed about his unsuccessful efforts to collect the strike assessments from Neale. Cornett further testified that the third time he spoke to Herthel about it was at the union meeting when he told Herthel that Neale had promised to bring his assessment payments to the union hall that same night. However, after consulting with the Regional Office of the Board that afternoon, Neale decided not to pay the strike assessments. Neale testified that subsequently, about July 15, he was in Bartholomew's office when the telephone rang, that he answered, and that the call was for Bartholomew. After concluding his telephone conversation, Bartholomew came over to Neale and, according to Neale's further testimony, the following conversation ensued: Bartholomew accused Neale of putting him in "a hell of a spot," stating that "I was good enough to get you an extension from Local 392 for this strike assessment" and that "now you are refusing to pay." Neale replied that he refused to pay because he had been advised by the Board that he did not have to pay that assessment. Bartholomew told Neale that he "should go ahead and straighten it with 392" and that "after a period of 5 years they would have to take you into their local." Bartholomew advised Neale that he "better think it over," warning that "you know what that will mean, don't you, if you don't straighten out with Local 392?" Neale replied, "Yes, it will probably mean that I was being fired or was going to get fired." According to Neale, Bartholomew "made no attempt to answer that particular question, but he gave me a broad smile and walked away from me." Bartholomew testified that he did not "believe" he had a conversation with Neale about July 15 with respect to strike assessments and, in substance, denied that a con- versation occurred, as related by Neale. He admitted, without contradiction, that Cornett had asked him to see Neale to find out whether or not Neale was going to pay the strike assessment, and did not deny being called to the telephone by Neale, as related above. He also admitted having had several conversations with Neale about strike assessments but testified that he had told all the utility men, at one time or 4 The findings concerning the conversations between Cornett and Neale are based on the credited testimony of Neale. Cornett did not deny having had the above conversa- tions. He testified that Neale failed to pay the assessments and "maybe he said he wasn't making much money, he was in a hard shape, or something like that " He admitted that he did not remember everything that was said and that Neale "could have said something to that effect" that he did not want to pay because he did not have a vote in the Union. I credit the testimony of Neale concerning his conversations with Cornett. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD___ another, that the assessment "was entirely up to them, that we were no part of it.',' When called as the first witness by the General Counsel , Bartholomew admitted that Neale told him that he was refusing to pay because he had been to the National Labor Relations Board and was advised that he did not have to pay the assessment. When called the next day as the last witness for the Respondent Company in the presenta- tion of its case, Bartholomew denied that Neale had ever made such a statement to him. Bartholomew did not testify in a frank and straightforward manner: He dis- played a reluctance to disclose facts which might be regarded as unfavorable to the Respondent Company and admitted their truth only when confronted with his prior affidavit. Under all the circumstances, I credit the testimony of Neale, as above related. Employee Ervin testified that after the incident when Cornett told a group of utility employees that if they did not pay the strike assessments there "probably would be some changes made," he and two other utility employees asked Superintendent Bartholomew if they would have to pay the assessments, and that Bartholomew re- plied that "as far as he knew we would not have to pay them." Ervin further testi- fied that about a week or two later the same group again talked to Bartholomew and that- we asked him again what the score was, because things were getting riled up around there, and he says he didn't know for sure, but he says it would prob- ably end up we'd have to pay it. According to Ervin's further testimony, the group spoke to Bartholomew again about a week later and- we asked him then that if we'd have to pay it and he says, "Well, it,would be best if we did," and we says, "Well, if we didn't what would happen?" and he says "They'd [the Union would] be on him," I guess, if we didn't. . . . He said it would probably put him on a spot if we didn't pay it. Neale testified that the first day the employees heard that strike assessments were levied against them, a group of utility employees asked Bartholomew about the necessity for making these payments and the consequences for failing to pay. Ac- cording to Neale, Bartholomew stated that he knew no more about it than the em- ployees and did not know what the outcome would be. Bartholomew did not specifically deny the above conversations . He testified gen- erally that at one time or another every utility man asked him if they had to pay the strike assessments and what would happen if he did not pay, and that he told them that "we were a disinterested party, that the strike assessment was strictly out of our hands, that was between them and the local." Neale testified that Bar- tholomew never told the employees in his presence that payment of the strike assess- ments was none of the Company's affairs. I find that on the occasions concerning which Ervin and Neale testified , Bartholo- mew made the statements attributed to him by Ervin and Neale. 2. Conclusions It is well settled that Section 7 of the Act guarantees to employees the right to refrain from assisting the Respondent Union by the payment of strike assessments. (See, e. g. Peerless Tool and Engineering Co., 111 NLRB 853.) It is equally well settled that statements or conduct of agents of the Respondent Union which were reasonably calculated to restrain or coerce the employees in the exercise of this statu- tory right constitutes a violation of Section 8 (b) (1) (A) of the Act. (See, e. g. Seamprufe, Incorporated, 82 NLRB 892, 894.) By the same token, conduct or statements by agents of the Respondent Company which "tended to interfere with the free exercise of employee rights under Section 7 of the Act" constitutes a violation of Section 8 (a) (1). Northeastern Engineering, Inc., 112 NLRB 743. With these principles in mind , I now turn to a consideration of the facts in this case. a. Respondent Union's violation of Section 8 (b) (1) (A) The utility employees, who were not members of the Respondent Union and were not accepted into membership despite the applications of a large number, were un- willing to pay the strike assessments because, as nonmembers , they could not see what benefits they would derive. However, they were greatly concerned as to the conse- quences of their failure to make these payments and queried Union Steward Cornett in this respect. In these circumstances , Cornett's explanation to the group of utility employees, which included Ervin, that if they did not pay "there probably would be some changes made," carried an implied threat of economic reprisals, such as loss CENTRAL PIPE FABRICATING AND SUPPLY CO. 361 of employment, which was reasonably calculated to restrain or coerce the employees in the exercise of their statutory right to refrain from paying the strike assessments. Similarly, Cornett's statement to the group of utility employees, which included Noe, that "you'll pay it or else," and his statement to the group of utility employees, which included Neale, that "he had got orders that it was either paid or else," carried implied threats of physical or economic reprisals which were also reasonably calculated to restrain or coerce the employees to whom the statements were addressed. The threat of economic reprisal implied by these statements was even made more apparent to the Noe group of employees. For, when they first asked Cornett why they would have to pay the strike assessments when they did not belong to the Union, Cornett retorted, "Well, you fellows are all working, aren't you?" In the light of this re- tort, the employees might 'reasonably have believed that the "you'll pay it or else" statement, which immediately followed, constituted a threat of loss of employment for failure to pay the strike assessments. Cornett was the agent of the Respondent Union charged with the collection of the strike assessments and the Respondent Union is responsible for his conduct in the performance of this duty. I find that, by the above threats and conduct of Union Steward Cornett, the Respondent Union restrained and coerced the employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Sec- tion 8 (b) (1) (A) of the Act. At the hearing the General Counsel attempted to show that the slips, given to the employees as receipts for the assessments collected, constituted work permits which were required as a condition of employment, in violation of the Act. Assistant Business Agent Herthel credibly testified, without contradiction, that these receipt books were given to the stewards for use as receipts in the collection of strike assess- ments because they had an oversupply of them in the union office and that, in order to cut down overhead, they were using them in the last 3 or 4 strikes. The uncon- tradicted evidence shows that no one connected with the Respondent Company ever asked to see these slips, that the employees never showed these slips to anyone con- nected with the management of the Respondent Company, and that they were re- garded by all parties as receipts for strike payments and not as work permits. Upon the basis of the entire record, I find that the General Counsel has not sustained the burden of proof that these slips constituted, or were used as, work permits or that their use, under the circumstances disclosed by the record, violated the Act. b. Respondent Company's violation of Section 8 (a) (1) Plant Superintendent Bartholomew, an admitted supervisor of the Respondent Company, actively assisted the Respondent Union in the solicitation and collection of the strike assessments from the utility employees. Thus, on one occasion when employee Noe failed to pay I week's assessments, Bartholomew, at the request of Union Steward Cornett, called Noe aside, told him that the "Union boys had been giving him hell" because Noe had not paid that 1 week's assessment, and made it clear that the "Union boys" would get "off his back" if Noe would pay it. After the next payday, Noe paid the assessment in which he had been delinquent. On another occasion, Bartholomew, at the request of Assistant Business Agent Herthel, asked Neale if he would pay his assessments if Local 392 gave him an extension of time, and later advised Neale that Herthel had granted him such an extension. When the extension of time had elapsed and Neale still failed to pay any of his as- sessments, Bartholomew upbraided Neale for putting him in a "hell of a spot" by failing to pay the assessments after Bartholomew had gotten the Union to give him an extension of time. When Neale told Bartholomew that he would not pay the as- sessments because he had been advised by the Board that he did not have to make these payments, Bartholomew admonished that he "better think it over," urged him to "go ahead and straighten it out with Local 392," and warned, "you know what that will mean, don't you, if you don't straighten it out with Local 392." Bartholomew made no reply to Neale's construction of Bartholomew's statement that it would probably mean that he would get fired, but merely smiled and walked away. Bartholomew was aware that the utility employees did not want to pay the strike assessments but were concerned as to whether their failure to pay would affect their job tenure Under all the circumstances, I find that Bartholomew's warning to Neale that "you know what that will mean, don't you, if you don't straighten it out with Local 392," and his conduct in smiling and walking away without disputing Neale's interpretation that it would probably mean that he would be fired, constituted, in its setting, a veiled threat of Neale's loss of employment if he failed to pay his assessments. Finally, on two other occasions when a group of utility employees inquired as to the necessity for paying the assessments and the consequences of their failure to pay, Bartholomew told them, on the first occasion, 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "it would probably end up" that they would "have to pay it ," and, on the second occasion, that if they did not pay, the Union would "be on him" and "it would probably put him on a spot." It is no defense that Bartholomew's conduct and statements may have resulted from pressure exerted upon him by agents of the Respondent Union. "It is well established that the test of interference , restraint, and coercion does not turn on the Respondent's motive, but rather on whether the Respondent engaged in conduct which tended to interfere with the free exercise of employee rights under Section 7 of the Act." Northeastern Engineering, Inc., 112 NLRB 743. Upon the basis of the entire record, I find that by the above described conduct and statements of Bartholomew and by Bartholomew's threat of economic reprisal to Neale, the Re- spondent Company engaged in conduct which tended to' interfere with, restrain, and coerce the employees in the free exercise of their rights guaranteed by Section 7 and thereby violated Section 8 (a) (1) of the Act. The complaint also alleges that Cornett was a supervisor of the Respondent Com- pany and that the Respondent Company also violated Section 8 (a) (1) by Cornett's conduct in connection with the strike assessments . The record shows, without contradiction , that for a period of about 6 months prior to June 7, 1954, Cornett was a foreman over a group of welders and received 25 cents an hour above the journey- man rate. The record also shows, without contradiction , and I find, that beginning with the week of June 7, 1954, Cornett ceased to be a foreman and was reduced to his journeyman status at the journeyman rate. As I have previously found that the conduct of Cornett in connection with the collection of the strike assess- ments all occurred after June 7, 1954, during which time Cornett was not a supervisor for whose conduct the Respondent Company was liable, I find it un- necessary to determine whether Cornett occupied the status of a supervisor prior to June 7, 1954. C. The discriminatory discharge of Neale Leon N. Neale was first employed by the Respondent Company in April 1953 as a utility employee He performed clerical duties in the warehouse and was in charge of the toolroom, checking tools in and out and maintaining a toolroom inventory. Neale was discharged on July 20, 1954 , under the following circumstances , accord- ing to his testimony: Along about 1:00 o'clock , 1:30, Harold [Bartholomew] come up to me and he says, "I got some unpleasant news for you ." I says, "What is it? Am I getting fired or laid offs" And he says , "Yes, we're having a cut down in personnel," and I said, "When it is?" And he says, "This afternoon ," and I says, "Well, they finally did it, didn't they?" He said, "What do you mean ?" I said, "Well, it's finally union retaliation , isn't it, for not paying the strike benefits?" And he kinda laughed at me and told me, he says "There will be-I'll get a couple of checks for you," and he says also "There will be a letter before you leave this afternoon that I will give you when you leave." Neale asked Bartholomew whether he would state in this letter- That this was caused by union retaliation and he says no, he says , "You know we can't do that," but he says, "I'll fix up something for you in some, other way," it would be all right. About 4 o'clock in the afternoon Bartholomew gave Neale a letter, dated that day, and reading as follows: Reasons for Lay Off Due to cut back in personnel being the most logical for following reasons. Incompetent after a year's training. Not keeping small tools repaired. Allowing unauthorized personnel in the tool room H. J. BARTHOLOMEW. About 5 or 10 minutes later, Neale was alone in the office with Bartholomew and the following conversation ensued, according to Neale: I said "Harold, how in the world can you use the word `incompetent' in this letter?" He says, "Well," he says, "for several things." I says, "Well, what do you mean, several things," and he says, "Take those levels in there," he says, "for instance," he says, "you never did fix those for me " I says, "Harold, you know better than that," I said, "I fixed those levels as best I could," I says, "We don't have any tools to fix those levels with." I says, "they require precision tools to fix levels," and he says, "Oh, well," he says, "for other various reasons." CENTRAL PIPE FABRICATING AND SUPPLY CO. 363 He.,says, "Actually the letter speaks for itself," and I turned and walked away from him. Bartholomew testified that early in the afternoon on July 20 he told Neale that he 'was being discharged, explained why he was being discharged, and stated that he had saved Neale's job on two previous occasions by interceding on his behalf but that there was nothing he could do about it this time. Bartholomew admitted that dur- ing the course of the conversation that afternoon, Neale made the accusation that "he was being fired for not paying the assessments or some such thing," asked Bar- tholomew why he did not admit that it was on account of this assessment that he was being fired, and also questioned what he meant by the word "Incompetent" in the letter. He denied that he laughed at Neale when he made the above accusation and testified that he told him it was not true. He testified that he did not "recall" Neale asking whether Bartholomew would state in the letter that it was retaliation for re- fusing to pay the strike assessment, and denied telling Neale that he could not put such a reason in the letter but that he would fix something up to put in it. He fur- ther testified that he told Neale that "this letter clearly stated why he was being fired," and that "the letter explains itself, that after a year's training he was incompetent, he could not take care of the job after he had been taught." I have already found that Bartholomew was not a credible witness. Under all the circumstances, and for the reasons previously indicated in this report, I credit Neale's version of the conversations, as related above, and find that Bartholomew made the statements and conducted himself in the manner to which Neale testified. As a defense to Neale's discharge, the Respondent Company relies on a combina- tion of factors. Thus, the Company contends that at the time of Neale's discharge an economic cutback in personnel was in progress, that Neale had been an unsatis- factory employee for a long time, and that his discharge on July 20 was precipitated by the discovery of unauthorized personnel in the toolroom that morning, despite prior instructions and warnings to the contrary. Plant Manager Archer, who had general overall direction of the plant, testified that in January 1954 he complained to Bartholomew about errors and shortages of material appearing in Neale's inventory for 1953, the first year of the plant's opera- tion . However, Plant Superintendent Bartholomew and Paul Siegler, comptroller of the Respondent Company, apparently felt that Neale was not wholly at fault. For, Siegler testified that he and Bartholomew convinced Archer that "there was some confusion during the first year of operation up there and we felt that he [Neale] was entitled to a little extra instruction." Moreover, Siegler admitted that flanges, which was the principal material missing in the inventory shortage, were stored in unlocked bins in the warehouse where any employee could walk in- Archer also testified that he was dissatisfied with Neale's record keeping and that, "around the first of March or the first of May," he instructed that Neale be discharged for failing to keep accurate records 'and for "allowing personnel to string in and out of the tool room all the time." Here again, Bartholomew and Neale apparently felt that the fault did not lie wholly with Neale. Archer testified that Bartholomew and Siegler persuaded him not to discharge Neale because they felt that "maybe we were giving him too much work to do." Besides, no system of record keeping had been installed. As a result, they limited Neale's area of operations, and on several occa- sions during April and May, Siegler spent some time with Neale in setting up a filing system and a tool check system. They also decided to authorize only journeymen electricians to go into the toolroom and so informed Neale. Archer further testified that while making his customary tour through the plant on the morning of July 20, 1954, he observed Neale in the toolroom with 3 or 4 journeymen, whose names he did not recall, "pawing around the stock bin," and that he immediately went to Shop Superintendent Bartholomew and told him, "That was all, brother, I was tired of messing with him." Archer did not testify that the journeymen whom he observed in the toolroom were unauthorized personnel. On the other hand, Bartholomew testified that Archer informed him that morning that he had discovered 3 or 4 unauthorized personnel in the toolroom with Neale, that Archer merely told him to "break it up," and that he went to the toolroom and found Foreman John Cook with several utility men there with Neale. Late that morning or early in the afternoon, Archer, Bartholomew, and Siegler held a conference in which the following occurred, according to their testimony- Archer stated that he definitely wanted Neale discharged. Bartholomew brought up the matter of the Union's strike assessment and told Archer that Neale had been to the National Labor Relations Board about it and that "it might stir up a little trouble if we discharged him at that time because it would appear likely that we were in cahoots with the Union in doing it." The 3 men discussed the situation for 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD awhile and, according to the testimony of Siegler whom I regard as the more neutral of the 3 witnesses , "we decided" to let Neale go, "regardless of the consequences." Bartholomew then had Siegler make out Neale 's checks and informed Neale of his discharge. Neale admitted that during the course of his employment he had been criticized in connection with his work , the last time being about 11/2 months before his dis- charge. He also admitted that he had been criticized by Bartholomew and Siegler, the last time being about 11/2 months before his discharge , for letting personnel come into the toolroom . However, he credibly testified, without contradiction, that he had explained to Bartholomew and Siegler that he could not keep everyone out because there were too many keys to the toolroom in the possession of other em- ployees, that his duties took him away from the toolroom , and that, although he would lock the toolroom , he frequently returned to find it open. Although Barthol- omew replied , according to Neale's further uncontradicted and credited testimony, that he would make an effort to collect the outstanding keys, the record does not show that this was accomplished and Neale testified that to his knowledge "those keys were never gotten up." According to Neale's further uncontradicted and credited testimony, Jerry Askey and Foreman John Cook were among those who had keys to the toolroom. Neale frankly admitted that, while he did not remember whether there were any unauthorized personnel in the toolroom on the morning of July 20, "there is a possibility" that there may have been. It is clear to me, and I find , that the economic layoff then in progress was not a motivating factor in the decision to discharge Neale. This is readily apparent from Archer's admission that Neale would have been discharged that day even if no layoffs were in process and even if the plant were staffed to capacity.5 Nor am I convinced that Archer's discovery of unauthorized personnel in the tool- room on the morning of July 20 was the precipitating factor which truly motivated the discharge. Among the significant facts pointing to a contrary conclusion are the statements and conduct of Bartholomew in his conversations with Neale at the time of the discharge . Bartholomew did not inform Neale that Archer had ordered his discharge because Archer had observed some unauthorized personnel in the tool- room that morning, or indicate in any manner that Neale 's dereliction in that regard was the immediate cause for his discharge , as would reasonably be expected if that were in fact the true precipitating cause. On the contrary, he did not even mention anything about unauthorized personnel being in the toolroom that morning but told Neale he was being let out because of a "cut down in personnel." Even more significant is Bartholomew 's conduct in not denying Neale's accusation that his termi- nation was finally caused by union retaliation for failing to pay his strike assessments, and Bartholomew 's assurance that, while he could not state in a letter that union retaliation was the reason, he would "fix up something " in the letter "in some other way." Bartholomew did "fix up" three reasons in the letter which he later gave Neale. Despite the fact that nothing had occurred in connection with Neale's work per- formance since Bartholomew had spoken to Neale about the "level situation" about 11/2 months before his discharge , "incompetent" was set forth in the letter as the first reason. Unable to give Neale a satisfactory explanation as to what he meant by incompetence,e Bartholomew finally stated that there were "other various reasons" and that the letter "speaks for itself ." As the second reason , the letter listed the failure to keep small tools repaired, although there is no showing that Neale had ever been derelict or criticized in this respect . Significantly, "allowing unauthorized personnel in the tool room" was listed third in importance. There is additional evidence in the record which leads me to believe that the pres- ence of unauthorized personnel in the toolroom was not regarded as such a serious offense as to warrant summary discharge . Thus, the Respondent Company permit- ted other unauthorized personnel to have keys to the toolroom , with full knowledge that Neale's duties kept him away from the toolroom about 50 percent of the time. 8 After Neale 's discharge , other utility employees were laid off solely because of lack of work and were subject to recall when work became available. Their employment records contained the initials "TL," which indicated a temporary layoff, and some of them were in fact subsequently recalled . Neale, however, was not subject to recall but was discharged His employment record contained the notation , "Final " e Bartholomew 's only example of incompetence was his reference again to the fixing of the levels He did not however dispute, or indicate any dissatisfaction with , Neale's explanation that the levels could not be fixed any better without the use of precision tools which were not available. CENTRAL PIPE FABRICATING AND SUPPLY CO. 365 John Cook, foreman over the utility employees,. and several utility employees were present in the toolroom on the morning of July 20, according to Bartholomew's testimony. Yet, Cook was neither criticized nor reprimanded either for being there himself or for permitting other subordinate utility employees to be there in his presence. Moreover, the record shows that after Neale's discharge manage- ment did not display the same concern about the presence of unauthorized personnel in the toolroom. Thus, no one person was made responsible for the toolroom. And Bartholomew admitted that he himself observed groups of employees eating lunch in the toolroom with impunity. Also significant is the serious discrepancy between the testimony of Archer and Bartholomew as to Archer's immediate reaction on the morning of July 20. Archer testified that he observed 3 or 4 journeymen in the toolroom and that, without any inquiry, he immediately went to Bartholomew and told him "that was all" for Neale. However, Bartholomew did not corroborate Archer in this respect. Ac- cording to Bartholomew's testimony, Archer at that time gave no indication that he regarded this incident as the final misstep causing Neale's termination but merely told Bartholomew to go to the toolroom and "break it up." Bartholomew found Foreman Cook and several utility employees in the toolroom. Under all the cir- cumstances, I am convinced and find that the presence of unauthorized personnel in the toolroom was not immediately regarded as such a serious offence as to warrant peremptory discharge but that it acquired this significance subsequently at the con- ference which Archer had with Bartholomew and Siegler and during which con- ference Bartholomew raised the point about Neale's failure to pay his strike assess- ments and his visit to the Board in connection therewith. Neale was the only employee who persistently refused and failed to pay his strike assessments. Neale was the only employee who was discharged during this period. At the request of the Union's agents, Plant Superintendent Bartholomew cooperated with the Union and took an active part in soliciting delinquent employees to pay the assessments to the Union. On various occasions, as previously found, Bartholo- mew told employees that failure to pay the assessments resulted in the "Union boys" "giving him hell," "putting him on the spot," getting "on him," and getting "on his back." After 3 or 4 unsuccessful attempts to collect the assessments from Neale, Cornett and Herthel enlisted Bartholomew's aid in this specific endeavor. Cornett asked Bartholomew to find out whether Neale was going to pay his strike assessments. During a telephone conversation with Bartholomew in the latter part of June, Herthel wanted to know why Neale had not paid his 10 percent strike assess- ments. After ascertaining Neale's willingness to pay his assessments if Local 392 were to give him an extension of time, Bartholomew succeeded in "cooling" Herthel off by getting him to agree to give Neale an extension of time until the following Wednesday and so informed Neale. Thereafter, Neale told Cornett, when the latter again solicited him, that he would bring his payments to the union hall that night. That evening at the union hall, Cornett informed Herthel of Neale's promise. When Neale failed to keep his promise to Cornett to bring his payments to the union hall, Bartholomew took Neale to task for putting him in "a hell of a spot" by refusing to pay his assessments after Bartholomew had succeeded in getting the Union to agree to give him an extension of time. By his statements and conduct on that occasion, Bartholomew warned Neale that loss of employment would be the consequence of his failure to "go ahead and straighten it out with Local 392 " When Neale still failed to pay his assessments, Bartholomew's warning was fulfilled by the discharge of Neale about 5 days later. Plant Manager Archer, who handled the Company's labor relations with the Union, admitted that he first heard about the strike assessments about June 1 and that early in July he definitely knew that strike assessments were requested of his employees. When Archer observed some unauthorized personnel in the toolroom on the morning of July 20, a conference was later held with Bartholomew and Siegler during which Bartholomew raised the point about Neale's failure to pay his strike assessments and his visit to the Board in that connection. After discussing the matter, the decision was reached to discharge Neale, "regardless of the conse- quences." While informing Neale that he was being terminated because of a "cut down in personnel," Bartholomew acquiesced, by his silence and conduct, in Neale's accusation that his termination was due to union retaliation for failing to pay his strike assessments. Explaining that he could not state that as the reason in a letter, Bartholomew assured Neale that he would "fix up something for" him "in some other way." Thereafter, Bartholomew gave Neale a letter in which he did "fix up" 3 reasons, the first 2 of which had no relation to any recent occurrences. Finally, 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he was unable to give a satisfactory explanation of the basis for the first reason, Bartholomew made the blanket charge that it was "for other various reasons." Under all the circumstances, I do not credit the testimony of the Company's. witnesses as to the asserted reasons for Neale's discharge; I am convinced, and find, that the presence of unauthorized personnel in the toolroom and the then current economic layoffs were seized upon as convenient pretexts to discharge Neale because of his failure to pay the strike assessments to the Respondent Union. By such con- duct, the Respondent Company discriminated in regard to Neale's hire and tenure of employment, thereby encouraging membership in and loyalty to the Union, in violation of Section 8 (a) (3) and (1) of the Act. I now turn to a consideration of the Respondent Union's relationship to Neale's discharge. During June, Union Steward Cornett warned groups of utility employees, including Neale, that the assessments had to be paid and threatened that loss of employment would be the consequence of their failure to pay their strike assessments Cornett took his orders in connection with the collection of the strike assessments directly from Assistant Business Agent Herthel. He made 3 or 4 unsuccessful attempts to collect the assessments from Neale, accusing Neale of being a "scavenger on the job with Local 392" and warning him that all the utility employees "would have to pay" the assessments. Cornett called upon Plant Superintendent Bartholo- mew to speak to Neale about the payment of his assessments. He also kept Herthel informed of Neale's failure to pay, after each unsuccessful solicitation, and was in- structed to give Neale more time. Herthel was in frequent telephone communica- tion with Bartholomew. During the course of a telephone conversation about the latter part of June, Herthel requested an explanation from Bartholomew as to why Neale had not paid his 10 percent strike assessments, asked Bartholomew to find out if Neale would be willing to pay if an extension of time were granted, and then agreed that Neale should have an extension of time until the following Wednesday. There- after, Cornett again solicited Neale who at that time promised to bring his assess- ment payments to the union hall that night. At the union hall that evening, Cornett informed Herthel of Neale's promise. Neale failed to keep his promise and was the only employee who failed to pay his strike assessments. Shortly thereafter, Neale was discharged by the Company because of his failure to pay the strike assessments to the Union. The Respondent Union, through its agents, had enlisted the aid of Plant Superin- tendent Bartholomew to get the delinquent employees, Noe and Neale, to pay their strike assessments to the Union. Bartholomew cooperated with the Union in this respect. In Noe's case, Bartholomew's efforts resulted in the payment being made. In Neale's case, Bartholomew's efforts proved to be unsuccessful with the result that Neale was discharged by the Company for failure to pay the strike assessments to the Union. Union Steward Cornett's threats of economic reprisals demonstrate the intention of the Union to cause loss of employment to employees who failed to pay the assessments. In view of Bartholomew's position as plant superintendent, the Union's agents undoubtedly were aware that his supervisory authority could be instru- mental in bringing about the discharge of an employee. In the light of the Union's intention to cause loss of employment for failure to pay the assessments, the only reasonable explanation for the Union's conduct in seeking Bartholomew's assistance, rather than that of an ordinary rank-and-file employee or union member, is the realization that the supervisory authority of his position would be more likely to have a successful effect in causing the employee to succumb to his solicitations, and also could be useful in effectuating the Union's intent of causing economic reprisals in the event of his failure. Under these circumstances, the Union's agents not only intended but must have foreseen, or at least should have foreseen, and are therefore responsible for, the discharge of Neale as a reasonable foreseeable consequence of Bartholomew's unsuccessful efforts to get Neale to pay the assessments to the Union. Accordingly, I find that the Respondent Union caused, or attempted to cause, the Company to discharge Neale because of his failure to pay the strike assessments to the Union, thereby violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. CENTRAL PIPE FABRICATING AND SUPPLY CO. 367 V. THE REMEDY In view of the foregoing findings, and in order to effectuate the policies of the Act, I will recommend that each of the Respondents cease and desist from the un- fair labor practices respectively chargeable to each, cease and desist from in any other manner impinging upon the employees' 'statutory rights, and that they jointly- and severally make Leon L. Neale whole for any loss-of earnings he may have suffered by reason of the Respondent Company's discrimination against him, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from July 20, 1954, the date of his discharge, to the date of the Respondent Company's cessation of operations, less his net earnings during said period. Said loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. It will also be recommended that the Respondent Company make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due under this recommended remedy. It will also be recommended that, in the event the Respondent Company resumes operations, (1) the Company offer to Leon L. Neale immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, (2) the Company post in its plant copies of the notice attached hereto and marked "Appendix A," and that (3) signed copies of the notice attached hereto and marked "Appendix B" be mailed by the Respondent Union to the Regional Director for posting at the Company's plant. The record shows that since January 1, 1955, the Respondent Company has ceased to operate any business but has continued to exist as a solvent corporation. Having found that the unfair labor practices were committed with respect to the utility employees, none of whom were members of the Union, merely posting a notice in the Union's business office and meeting hall is inadequate, in my opinion, to effectuate the policies of the Act in the event that the Company has not resumed operations. Undei these circumstances, I will also recommend that each of the Respondents mail to the utility employees on the payroll records of the Company since June 1, 1954, copies of the notices respectively applicable to each and at- tached hereto as Appendices A and B Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Pipefitters Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging Leon L. Neale because of his failure to pay strike assessments, thereby encouraging membership in the Respondent Union, the Respondent Com- pany has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (3) of the Act. 3. By soliciting employees to pay strike assessments to the Respondent Union, by threatening an employee with loss of employment as the consequence of his failure to pay his strike assessments, and by discriminating in the hire and tenure of employment of Neale, the Respondent Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. ,4. By causing or attempting to cause the Respondent Company to discriminate in the hire and tenure of employment of Leon L. Neale in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act 5. By threatening employees with loss of employment for failing to pay their strike assessments and by causing or attempting to cause the Respondent Com- pany to discriminate against Neale in violation of Section 8 (a) (3) of the Act, the Respondent Union has restrained and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce-within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX =A -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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in Pipefitters Local 392, United Asso; ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, or in any other labor organization of our employees, by discharging employees for failure to pay strike assessments or by discriminating against them in any other manner in regard to their hire or tenure of employment or any'term or condition 'of their employment, except-to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT solicit employees to pay strike assessments to the above-named Union or to any other labor organization. WE WILL NOT threaten employees with loss of employment for failure to pay the strike assessments. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL make Leon L. Neale whole for any loss of pay he may have suffered by reason of the discrimination against him. WE WILL, in the event we assume operations, offer to Leon L. Neale immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges. CENTRAL PIPE FABRICATING AND SUPPLY CO., 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. APPENDIX B NOTICE TO ALL MEMBERS OF PIPEFITTERS LOCAL 392, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT cause or attempt to cause Central Pipe Fabricating and Supply Co., its officers, agents, successors, or assigns, to discriminate against its em- ployees within the meaning of Section 8 (a) (3) of the Act. WE WILL NOT threaten employees of the above Company with loss of employ- ment for failure to pay strike assessments. WE WILL NOT in any other -manner restrain or coerce employees of the above Company, its successors , or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 Act. WE WILL make Leon L. Neale whole for any loss of pay suffered because of the discrimination practiced against him. PIPEFITTERS LOCAL 392, UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, Labor Organization. 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.