Vanadium Corp. of America, Inc.

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As it has been found that the Company, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced employees in the exercise by them of rights guaranteed by Section -7 of the said statute, and that the Union, in violation of Section 8 (b) (1) (A), has restrained and coerced employees in the exercise of such rights, I shall recommend that the Company and the Union be directed to cease and desist in the future from committing their said respective violations of the Act. - Upon the basis of the foregoing findings of fact, and of the entire record in this proceeding, I make th,- following: CONCLUSIONS OF LAW 1. Lumber and Sawmill Workers' Union, Local No. 2288, AFL, is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2 (5) of the Act. 2. W. B. Jones Lumber Company, Inc., is, and at all times material to this proceeding has been, an employer within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Don F. Tooze, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, ache Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. - 5. By attempting to cause and by causing the Company to discriminate in regard to the hire and tenure of employment of Don F. Tooze in violation of Section 8 (a) (3), the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing persons employed by the Company in the exercise of rights guaranteed to them by Section 7 of the Act, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. 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.] Vanadium Corporation of America, Inc. and United Steelwork- ers of America, CIO. Case No. 30-CA-388. October 17,1955- DECISION AND ORDER On June 1, 1955, Trial Examiner Wallace E. Royster 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied, as the record, including the exceptions and brief, adequately sets forth the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was' committed. The rulings are hereby affirmed.' The Board has considered the Inter- 1 Respondent excepts specifically to the following rulings by the Regional Director before the hearing and the Trial Examiner at the hearing: (1) Denial of its motion to dismiss the complaint on the ground that the representative of the General Counsel was 114 NLRB No. 84. VANADIUM CORPORATION OF AMERICA, INC. 429 mediate Report,,the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with certain modifications and additions : 2 . 1. For the reasons stated in the Intermediate Report, we agree with the Trial Examiner's findings that Respondent violated Section 8 (a) (1) of the Act by Superintendent Maxwell's statement to em- ployee Mowbray that soft drinks and coffee would no longer be pro- vided for employees if the plant were unionized, by Foreman Denton's statements to employee Cook concerning the assignment of Sargent to work with 'the concrete mixer crew, and by Denton's statements to Sargent that employees could expect less sympathetic treatment and harsher discipline if the Union were successful. We also agree that Respondent violated Section 8 (a) (1) by its assertions to various individual employees that if the Union won the election, the plant would go on a 40-hour week, with a consequent re- duction in net monthly pay of $75 to $100 per month for each em- ployee. As described by the Trial Examiner, Maxwell, Respondent's plant superintendent, prepared and distributed to each of its fore- - men a tabulation comparing the wage rates and net monthly earnings at Respondent's plant based on a 48-hour week with those at a neigh- boring plant of another employer which was unionized and working a 40-hour week. This tabulation showed that although employees at the neighboring plant received a slightly higher hourly wage, their net monthly earnings were less than those of Respondent's employees be- cause of the 48-hour week at Respondent's plant, 8 hours of which were paid at overtime rates. According to Maxwell, the tabulation without authority to proceed with the hearing on the complaint because there was no General Counsel to the Board at the time ; ( 2)'denial of its motion that Respondent'be permitted to take the deposition of the Board agent who investigated the original charge filed herein , alleging that the Board agent prepared, or advised the Charging Party in the preparation of, the amended charge ; and (3 ) denial of its motion that the Regional Director's report on objections to the election of November 3, 1954 , be withdrawn, and the objections consolidated with the complaint . As to ( 1), it is well established that a vacancy in the office of General Counsel of the Board does not bar the prosecution of complaints issued by the former General Counsel while in office . N. L. R. B. v. Stanley IGemalo, 35 LRRM 2577, 2578 (D. C., SDNY ), February 25, 1955 ; see also Bonwit Teller, Inc, 96 NLRB 608, 197 F . 2d 640, 644 , enforcement denied on grounds not relevant here. With respect to (2), assuming the facts alleged in support of the motion , such action by the Board agent was not improper or prejudicial to the Respondent As to ( 3), it is clear that the Respondent was afforded opportunity to litigate all matters relevant to the complaint, including relevant natters involved in the objections to the election, and was therefore not' prejudiced by the denial to consolidate the cases . The foregoing rulings are hereby , affirmed: 2 The Trial Examiner inaccurately states in the Intermediate Report that Maxwell testified that he told employee Mowbray that in his opinion a union would do no good, and that lie posed to Mowbray a question as to what the attitude of the Company should be toward an employee who had been treated liberally in the past if a union came in. Maxwell , although questioned as to what he told Mowbray , actually stated what Mowbray told him. We therefore do not adopt this statement by the Trial Examiner. This does not affect our ultimate conclusion , however, as no finding is based specifically on' the inaccurate statement , and the record fully supports the Trial Examiner 's finding that Maxwell conceded that he insinuated to Mowbray that a union victory would mean no more favors for employees. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was prepared merely to contradict union claims of higher earnings at the other plant. However, when the foremen sought out the individual employees to show them the tabulation, they did not limit their use of the tabulation to this purpose. According to testimony credited by the Trial Examiner, after indicating to employees by means of the tabula- tion that a 40-hour week would reduce their net earnings by $75 to $100 per month, the foremen asserted flatly that if the Union won the election, the plant would go on a 40-hour week. In the circumstances, we find that these assertions, conditioned as they were solely on union- ization of the plant, without any accompanying explanation of the economic factors or anticipated union policies 3 which the Respondent claims were the basis for announcing a possible 40-hour week, con- stituted a thinly veiled threat to the employees that the Respondent would reschedule their work so as to reduce their earnings if the Union won the election 4 2. We agree with the Trial Examiner's finding that the failure of employee Latchaw to give prior notice of his absence from work on the night of November 7, 1954, was a pretext utilized by Respondent to discharge a known union adherent, and that Latchaw's discharge vio- lated Section 8 (a) (3) of the Act. We note particularly the inconsistent explanations of the alleged motivation for Latchaw's discharge given by Latchaw's foreman, Bobby Newland, who recommended his discharge. As indicated by the Trial Examiner, Newland had shown little or no concern over a previous unannounced absence by Latchaw approximately 4 to 6 weeks earlier, but, according to Newland, he discharged Latchaw for his un- announced absence on the night of November 7 because a particular grinding job requiring a full shift had been scheduled for that night, and the failure of Latchaw to give notice of his intended absence be- fore the shift began prevented Newland from holding a man from the earlier shift to replace Latchaw. However, Newland himself later negated his assertion that the difficulty occasioned by the lack of such notice before the shift began was the cause of Latchaw's discharge, by testifying that if he had discovered by 8 o'clock in the morning that Latchaw had given notice to any one of several sources in the plant, he would not have discharged Latchaw, and he conceded that employee Coldiron was, an authorized source through whom Latchaw could,give notice. Newland further admitted that at least by 3 or 4 o'clock the same morning Coldiron told him that Latchaw had informed Coldiron of his intended absence, although Newland could not recall whether Coldiron gave any reason for Latchaw's absence. Considering New- a Cf A. L. Gilbert Co , 110 NLRB 2067, 2073, where an employer was found not to have violated Section 8 (a) (1) by stating to employees the fact that the union contract in the area required a 40-hour week, as contrasted with their regular 45-hour week. 4Price Valley Lumber Co., 106 NLRB 26, enfd as mod. 216 F 2d 212 (C. A. 9). VANADIUM CORPORATION OF AMERICA, INC. 431 land's shifting and inconsistent explanations, together with the cir- cumstances surrounding Latchaw's discharge, as described in the Intermediate Report, we agree with the Trial Examiner 's conclusion t1 at , the reasons assigned by Respondent for the .discharge were pre- texts, and we so find.' 3. We also agree with the Trial Examiner's finding that Respond- ent discharged Elton Wieland because of his activities on behalf of the Union , and thereby violated Section 8 (a) (3) of the Act. The Respondent excepts to the Trial Examiner's finding, and to his state- ment that he did not consider Wieland's credibility of controlling im- portance, contending in essence that if Wieland's testimony is not credited completely, there is no basis for finding that Wieland was dis- charged for his own union activities instead of for cause. We do not g.T,ee.with Respondent's contention., The Trial Examiner's finding "that Wieland's discharge was discrim- inatorily motivated is based on two factors : the combination of cir- cumstances surrounding the discharge, and the failure of Plant Super- intendent Maxwell to give a credible explanation of his reasons for discharging Wieland . The Trial Examiner did not credit Maxwell's assertion that lie had decided as early as August 1, 1954, to discharge Wieland, but postponed doing so because he feared it might be in- terpreted as a discriminatory discharge ,- and we perceive no basis in the,.record for reversing„this credibility resolution. He also did not credit the reasons advanced by Maxwell for the discharge in his testi- mony and in the memorandum which Maxwell prepared on about the date of the discharge, because of exaggerations and discrepancies shown by evidence apart from Wieland's testimony. For instance, Maxwell testified that although it was not the only cause of the dis- charge, the event which determined him to discharge Wieland was Wieland's third or fourth request .for a transfer because of dissatis- faction, made in July 1954 . But Paxton , the foreman to whom Wie- land first spoke about a possible transfer in July, testified that when Wieland. asked him about a transfer, Wieland gave the reason that some of his friends worked for Paxton , and he would like to work with them. Paxton told Wieland's foreman , Knickerbocker , about Wie- land's inquiry, and Knickerbocker spoke of it to Maxwell, but there s As contended by Respondent in its exceptions, Latchaw admitted that he was aware that he should have notified the plant betore his absence. However, we find no merit in Respondent's contention that it was prejudiced by the Trial Examiner's failure to so state specifically in the Intermediate Report, as our ultimate conclusions are not based on any lack of knowledge by Latchaw that lie should have done so Also, contrary to Respondent's exceptions, we find that for the purpose of analyzing Newland's explanations in determining whether Latchaw's admittedly unannounced absence was the real cause of his discharge, it is immaterial that it was Latchaw's wife who telephoned Coldiron about his intended absence, and that Coldiron was-not given instructions• to notify Newland _We agiee_with the Respondent. that whether Latchaw believed lie had made adequate arrangements for notifying Newland is also immaterial, and we do not adopt the. Tcial ,Examiner,'s statement to this effect, but this does not, affect our ultimate Conclusion. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no evidence that Maxwell was told that the inquiry was made be- cause of Wieland's current dissatisfaction, 'and in fact it was not made for this reason. More important, of the previous 4 or 5 transfers actually undergone by Wieland, it appears that only 1, the transfer from Foreman Denton's shift to Foreman Knickerbocker's shift on January 27, 1954, was at Wieland's request or caused by his difficul- ties. Wieland's transfer to the carpenter crew for work on a soda ash bin about a month after he began work for the Respondent is not al- leged to have been made at his request. In the memorandum explain- ing Wieland's discharge, Maxwell listed as a complaint the fact that difficulties with fellow employees caused Wieland's transfer from the carpenter crew back to 'the mill, but Prior, foreman of the carpenter crew, testified that Wieland was transferred only after the job on the soda ash bin was completed. Maxwell further urged as a com- plaint in his testimony in connection with previous transfers that Wie- land "took a job driving a truck, and didn't like it," and then went,to work for the carpenter crew. He did not testify that Wieland re- quested a transfer to the truckdriving job. Wieland testified that he had taken a job driving a salt truck in February 1954, shortly after he had been transferred to Knickerbocker's shift, but explained that he took the job at Maxwell's request, with the understanding that he would be permitted to give it up if he could not stand the work because the job required working from -13 to 16 hours each day. Maxwell, though called in rebuttal, did not contradict this. It is clear that after giving up the truckdriving job, Wieland returned to his assign- ment on Knickerbocker's shift, and did not go to the carpenter crew as stated by Maxwell. According to Maxwell, his knowledge of the various incidents re- cited as complaints against Wieland was acquired "basically from the shift foremen." Knickerbocker, who was Wieland's shift foreman from January 27, 1954, until his discharge in November 1954, testi- fied that he last discussed Wieland with Maxwell in July 1954, at which time he told Maxwell that Wieland sometimes wandered around and talked to other employees after he finished a job, but that Wieland "done his work." Knickerbocker stated that he did not have occasion to complain about Wieland at any time between July and the time of the discharge. On the basis of the foregoing, and the additional factors related by the Trial Examiner in his analysis of Maxwell's testimony, we find that the Trial Examiner was justified in not crediting the reasons ad- vanced by Maxwell as the true cause for Wieland's discharge. In view of Respondent's antiunion attitude, as manifested by its viola- tion of Section 8 (a) (1) of the Act, the outspoken character of Wie- land's union adherence, his peremptory discharge immediately after the election-in which he acted as union observer despite the fact;that VANADIUM CORPORATION OF AMERICA, INC. 433 his foreman had found no cause for complaint for 3 months, and the fact that Maxwell's complaints against Wieland were exaggerated or inaccurately related, we find that Wieland was discriminatorily dis- charged for his union adherence in violation of Section 8 (a) (3) of the Act. ORDER - Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Vanadium Corporation of America, Inc., Durango, Colorado, its agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, CIO, or in any, other labor organization of its employees, by discrim- inating with regard to the hire and tenure of employment or any terms or conditions of employment of its employees. (b) Threatening to reduce the workweek of its employees, to with- draw favors from or give unsympathetic treatment to employees, or otherwise threatening to discriminate against employees for engaging in union activities or other concerted activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mu- tual 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 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 Lloyd Latchaw and Elton A. Wieland immediate and full reinstatement to their former or substantially equivalent po- sitions without prejudice to their seniority or other rights and priv- ileges, and make each of them whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social-se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Durango, Colorado, plant, copies of the notice at- tached hereto marked "Appendix." 6 Copies of said notice, to be fur- nished by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondent's representative, be posted' by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. U 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in United Steelworkers of America, CIO, or in any other labor organization of our em- ployees, by discharging them or by in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT by means of threats to reduce the workweek of our employees, or to withdraw favors from, or give unsympa- thetic treatment to, employees, or to otherwise discriminate against employees, interfere with,. restrain, or coerce our employ- ees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to Lloyd Latchaw and Elton Wieland immedi- ate and full reinstatement to their former or substantially equiv- alent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and make each of them whole for any loss of pay suffered as a result of the discrimination prac- ticed against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other' mutual aid or protection, VANADIUM CORPORATION OF AMERICA, INC. . 435 and to refrain from any or all of such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. VANADIUM CORPORATION OF AMERICA, INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by United Steelworkers of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board issued his com- plaint dated December 20, 1954, alleging that Vanadium Corporation of America, Inc., herein called 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. In respect to unfair labor practices , the complaint alleges that the Respondent dis- criminatorily discharged its employees Elton A. Wieland and Lloyd Latchaw on November 5 and 8, 1954, respectively, because of their membership or interest in, or activities in behalf of, the Union, and on various dates in September , October, and November, 1954, interrogated employees concerning union membership, sympathy, and activity; and interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, by threatened reprisals and promised benefits. Respondent's answer admits the jurisdictional allegations in the complaint and denies the commission of unfair labor practices. Pursuant to notice , a hearing was held before the duly designated Trial Examiner in Durango, Colorado, on February 21, 22, and 23 and April 12, 13, and 14, 1955. All parties were represented and were given opportunity to participate fully in the hearing. Briefs have been received from counsel for the General Counsel and for the Respondent. Upon the basis of the record , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find that the Respondent is a New Jersey corporation engaged at Durango, Colorado, in the reduction of uranium and vanadium ores. Its annual production exceeds 1 million dollars in value. Uranium concentrates are delivered upon direction of the Atomic Energy Commission in ac- cordance with the terms of contracts running between that Commission and the Respondent. I find that the business of the Respondent is in commerce and affects commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the -Respondent. III. THE UNFAIR LABOR PRACTICES The violations of the Act, which it is alleged have occurred , took place in a period during the fall of 1954 when the Union was conducting a campaign designed to secure status as bargaining representative of Respondent's employees . John A. Maxwell, Respondent's plant superintendent, testified that in July he heard rumors to the effect that an organizational campaign by the Union might be in prospect and that the 387644-56-vol. 114-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rumors appeared to attain some substance about August 1. The record indicates that the first communication from the Union to the Respondent concerning a claim of representative status was dated October 13. Shortly thereafter a consent-election agreement was signed and an election was held on November 3. Of the 192 ballot votes counted, only 70 favored the Union. Concerning Interference, Restraint, and Coercion As has been said, Superintendent Maxwell became aware of the Union's intention to organize employees in July. As the tempo of the union campaign increased, the subject of organization became a frequent topic of conversation among employees and their foremen. In October, Superintendent Maxwell prepared a tabulation of wage comparisons between those existing at Respondent's mill and those in effect at a similar operation in Monticello, Utah. Maxwell instructed his foremen to exhibit the tabulation to employees. In sum, the comparison showed that Respondent's em- ployees, although in most categories drawing a lesser hourly rate than those at Monti cello, received a higher monthly income because they worked 6 days a week, the last day at overtime rates. There is evidence that Respondent's employees were warned of the hazards facing them should they support the Union on the occasions now to be recited. Foreman Bobby Newland told Lloyd Latchaw that if the Union won the election the overtime day would no longer be scheduled, with the result that Latchaw would lose $75 to $100 a month in earnings . Foreman Knickerbocker told Elton Wieland that the Union's success in the impending election would result in a change to a 5-day week schedule, with a consequent loss in wage to Wieland of $70 to $75 a month. Foreman Denton told Norton Brewer that if the Union won the plant would go on a,40-hour week basis. Superintendent Maxwell told H. K. Mowbray that if the Union won the Respondent's practice of serving free soft drinks and coffee would be ceased and that employees no longer would be permitted to work additional hours to make up for time lost by layoff. Foreman Knickerbocker told Mowbray that a union victory meant a 5-day week and made the same comment to Joe Archuleta and Edward Lambert. Foreman Denton told Dudley Sargent that the Company intended to train men for certain operations so that in the event of a union victory the Respond- ent could quickly change to a 5-day week; that the foremen'then working would be transferred to other plants and supervisors would be sent in who, not having a back- ground of friendship with the workers, would make things tough for them. In late October Foreman Denton told Manuel Mantoya that if the Union won the employees would lose free coffee and soft drinks and would be put on a 5-day week. Denton went on to say that in such an event he, Denton, would be discharged. Foreman Newland testified that he had a discussion with Latchaw concerning the wage comparison but was unable to recall what was said on that occasion. Foreman Denton was not questioned concerning the conversations with Brewer, Sargent, and Mantoya and did not refer to them in his testimony. Superintendent Maxwell testified that when he first heard that the Union was attempting to organize the employees he instructed his foremen that the employees had a right to select a bargaining representative and that none of the supervisors should intimidate or coerce them in that connection. The wage comparison chart, Maxwell testified, was prepared to show the employees that union promises of higher earnings were not substantiated in a comparable plant where they were the bargaining representative. Maxwell conceded that he might have insinuated to Mowbray that a union victory in the election might mean no more favors from the Company, but denied that he specifically threatened that the Company would quit the practice of serving free coffee and soft drinks, saying that he merely suggested the prob- ability of such action. In the same conversation, according to Maxwell, he told Mowbray that in his opinion a union would not do any good and posed the question of what the attitude of the Company should be toward an employee who had been treated liberally in the past if a union now came in as representative. Because of his belief, according to Maxwell, that the Union after certification would ask for a shorter workweek, he posted the trainee jobs earlier referred to, and when it seemed probable before the election that the Union would be unsuccessful, had the postings withdrawn. Foreman Knickerbocker testified that following instruction he showed the wage comparison chart to Wieland and to other employees, but in substance did no more than express the opinion that the 40-hour week was a possibility. He conceded that he backed this opinion by a wager with Mowbray in the amount of $5 that a. union victory would mean a change to a 40-hour week. Joe Archuleta, an employee who acted as one of the union observers during the conduct of the election, testified that while at work the next morning Assistant VANADIUM CORPORATION OF AMERICA, INC. 437 Superintendent Vesper approached and said that he was "surprised" that Archuleta had identified himself with and supported the Union. Vesper went on to say, in the words of Archuleta, that he had "personal hard feelings" concerning Archuleta's conduct and that others employed in the mill shared his reaction. Vesper then asked, "How do you think Mr. Maxwell and Mr. Viles [one of Respondent's vice presidents] feel about it?" Archuleta answered that he did not think they felt as Vesper did. Vesper went on to say that Archuleta and Wieland had been most prominent among the union adherents, that had the Union won the employees would have gone on a 40-hour weekly schedule with substantially reduced earnings . Archuleta protested that the men had no desire for such a short workweek but Vesper insisted that such a change would have resulted. Vesper testified that on this occasion he told Archuleta he was surprised to see him at work for he thought that Archuleta would quit when the vote went against his choice. Vesper admitted that he told Archuleta of his disappointment in the latter's action in supporting the Union, expressing a belief that Archuleta was thus trying to deprive his fellow workers of benefits. Vesper denied making any reference to Maxwell or Viles in this conversation but did not mention that aspect of Archuleta's version referring to the 40-hour week or to the prominence of Wieland as a union supporter. Threats that selection of a union will result in a shortened workweek with a consequent substantial loss in wages is patently coercive. I credit the undenied testimony of Latchaw as to Foreman Newland, and Brewer and Sargent as to Fore- man Denton, that such threats were made. I do not believe Knickerbocker's testi- mony that any comment he made in such connection was couched in phrases of personal opinion. Knickerbocker manifested his faith in the validity of his predic- tion by wagering with Mowbray that it would prove to be correct thus adding force to his words. Vesper said, I find, that had the Union won, a 40-hour week would have resulted and chided Archuleta for subjecting his fellow workers to such a hazard. Maxwell's intimation to Mowbray that union success would probably result in a loss of such benefits as free soft drinks and coffee is not softened because he did not then say that such a development was certain. By his own admission, in the same conversation, Maxwell suggested that with a union in the mill employees could no longer expect the same sympathetic treatment as in the past. Posting of the trainee jobs evidenced to the employees a serious intention on the part of Respondent to change to a 40-hour week in the event of union victory. The explanation that a sensible regard for the needs of the employer dictated such a maneuver is wholly unpersuasive. Maxwell knew that management sets the hours of work in the mill and he could not in good faith have believed that if the Union won the election a shorter workweek would result if management did not agree to it. I find that the assertions to employees that success of the Union meant a shorter workweek with a diminution of earnings, that soft drinks and free coffee would no longer be provided, and that employees could expect less sympathetic treatment and would be subjected to harsher discipline were part of a planned campaign to woo the workers away from supporting the Union's bid for votes. Because these assertions constituted threats that management would deprive employees of benefits then enjoyed and would impose undesirable working conditions they were coercive and constituted a violation of Section 8 (a) (1) of the Act.' Dudley Sargent, who first became Respondent's employee in May 1952, hurt his back in the spring of 1954. Upon his return to work, Sargent was given lighter work than he had performed before, at a smaller wage than he had previously ,earned. Shortly after his return Foreman Denton placed him at work on a dryer. Sargent told Denton that the work was too heavy for him and that he could not handle it. Maxwell, who learned of this circumstance, told Denton to find other work for Sargent and Denton did so. Maxwell told Sargent not to do any heavy lifting and told Denton to take it easy with him. About October 25 Sargent saw a notice on Respondent's bulletin board that employees were invited to apply for training in certain jobs, and told Denton of his intention to file application for one of them. Denton said that the trainees would be needed on these operations when the Respondent changed to a 5-day week, but told Sargent that he could not stand the shoveling on the precipitation job, one of those listed. Denton said that the jobs were not yet open and that if the Union did,not win the election the trainees would not be needed. On• Sunday, November 7, a few days after the election, Denton assigned Sargent to work with a crew on the cement mixer. Melvin Cook testified that on November 7 he was in charge of the crew on the concrete mixer and asked Master Mechanic Prior for additional help. Prior sent him to Denton. Upon 1 Tho-mason Plywood Corporattion, 109 NLRB'1898, enfd. 222 F. 2d 364 (C. A. 4). 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting with Denton, according to Cook, Denton said that he had aready dispatched 2 men to the job, 1 of them Sargent. Cook commented that he doubted Sargent's ability to handle the job because of his weak back. Denton answered "crucify him," make things as miserable as possible for him, do anything to get rid of him, "That's instructions." Denton went on to say that a lot of union "agitators" were going to learn their lesson; some had already been discharged, among them Elton Wieland, and more would be. =Foreman Denton testified that he did not recall using the word, "crucify" in speak- ing to Cook about Sargent on November 7. Denton did not deny saying on this occasion that union supporters were "going to learn their lesson" but'asserted that he did not recall using Wieland's name in that connection. On the latter point, Denton conceded that upon consideration of the testimony of Cook and Joe Archuleta,2 he must have spoken as they testified. I regard this as a somewhat oblique admission on the part of Denton that the testimony of Cook as corroborated by Archuleta constitutes an accurate account of Denton's words. Denton admitted in his testimony that he knew Sargent to be one who favored the Union Aside from saying that he failed to recall the remarks attributed to him, Denton made no denial of a purpose to assign Sargent to Cook as a part of a program to enable union adherents to "learn their lesson " Whether the assignment then given Sargent was in fact an undesirable one is out- side the issues framed by the complaint and answer and no remedy is sought except in respect to the words uttered by Denton on that occasion. I find that Denton spoke as Cook and Archuleta testified. Cook was then a leadman and no contention -is made that he possessed supervisory authority within the meaning of the Act. Archuleta,was a truckdriver. Both were listed by the Respondent as eligible voters in the election. I find that by saying that union supporters would learn their lesson while making an assignment of Sargent which Cook felt was beyond Sargent's physical ability to handle, by telling Cook to "crucify him" and to treat him so harshly as to induce Sargent to quit, Denton deliberately conveyed the message to`Cook that supporters of the Union were to be treated in a discriminatory fashion By speak- ing as he did Denton interfered with, restrained, and coerced employees-in,.the exercise of rights guaranteed in Section 7 of the Act and the Respondent thereby violated Section 8 (a) (1) of the Act. Lloyd Latchaw, a laborer, was hired in August 1953 after a previous period of employment in 1949. In late July 1954 Bobby Newland became Latchaw's foreman and the two remained in that situation until Latchaw's discharge on November 8. Latchaw signed a union designation card in late August. As has been said, Newland told Latchaw that if the Union won the election the employees would no longer be permitted overtime work, with a loss to Latchaw of $75 to $100 a month in wages. Latchaw said that he did not believe it. Newland then inquired what grievance Latchaw had and the latter replied that he had not received a promised promotion and that it was his belief that employees doing the same work should receive the same pay. Immediately after this conversation, according to the credited and un- denied testimony of employee George Bjorn, Newland remarked that he had "just bumped into John L. Lewis." Some time in August Latchaw failed to report for his shift and when he appeared for work the next day Newland commented that he had missed -him. Latchaw'said that'he had-'overslept, whereupon Newland remarked that Latchaw could not make any money that way. In early November Latchaw had an arrangement with another employee, Lyle Coldiron, to ride to work in Coldiron's car. On the evening of November 7 Latchaw's wife phoned the Coldiron residence and told Mr. Coldiron that because he was ill Latchaw would not go to work that night. Coldiron received the message from his wife, but assuming that Latchaw had independently reported the situation to the mill, said nothing of it when he came to work at midnight. About 1:30 or 2 in the morning of November 8, Foreman Newland asked Coldiron what had happened to Latchaw. Coldiron said that Latchaw had phoned that he was ill. The next evening, having again received a message from Mrs. Latchaw that her husband was still ill and would not be at work, Coldiron asked another employee, George Shelton, to tell Newland of this circumstance. When Latchaw reported for work after missing two shifts, Newland told him that he was terminated. Bobby Newland, Latchaw's foreman, testified that he had received no prior notifi- cation of Latchaw's intention to be absent on the early morning shift of November 8 and that, because of a grinding job then scheduled , he had to shut down another operation on his shift to provide a man to do that work. About 3 or 4 that morning, 2 Archuleta testified that he overheard a part of this conversation. His testimony concerning that part coincides with that of Cook. 'VANADIUM CORPORATION-OF AMERICA,` INC. 439 according to Newland, he asked Coldiron'3 what had happened to Latchaw and then learned for the first time of the telephone call to Coldiron 's home. Newland testified that he did not recall whether Coldiron gave any reason for Latchaw's absence. About 7: 30 a. in . on November 8, still according to Newland , he checked all the points in the plant where a telephone message concerning an intended absence might have been received from Latchaw, and, finding that none had been, told Maxwell that Latchaw should be discharged . On the same occasion and for the same reason, according to Newland, he recommended the discharge of another employee, Donald Haga. According to Newland both Haga and Latchaw had previously been absent without notifying the mill. Newland testified that he knew nothing about Latchaw's disposition toward the Union , but conceded that he had talked with him concerning the wage rate comparison. Newland testified that he would have been content had Latchaw notified anyone of his intention to be absent, provided the message was de- livered to him in time so that he could arrange to hold over a man from the earlier shift to help in the grinding operation. Superintendent Maxwell testified that when he received Newland 's recommenda- tion that Latchaw and Haga be discharged he independently investigated those points in the mill where either might have left a message of intended absence , and finding no record of any, concurred in the recommendation of discharge . Maxwell also testi- fied that he had no knowledge concerning Latchaw's feeling toward the Union. Ac- cording to Maxwell, a plant rule required employees to notify the mill of any in- tended absence and failure to do so provided ground for dismissal . Norton E. Brew- er, a relief operator who acted as relief foreman for 1 day a week, testified that in 1951 a notice posted in the plant said that unreported absences of more than 3 days would provide ground for dismissal . According to Brewer he reported on 1 oc- casion .in 1953 to Maxwell that an employee ,;Manuel Chavez, had been absent for 3 days. Maxwell said to give him another day' When Chavez did not report on the fourth day he was discharged . Edward A. Lambert, a relief operator who also served as foreman 1 day a week , testified that it was a 3-day unreported absence which pro- vided ground for dismissal. Newland testified that the sole purpose of the discharge was to demonstrate to other employees that failure to report an intended absence would not be tolerated. The record does not indicate and no contention is made that prior to November 8 Latchaw was other than a satisfactory employee . There is no substantial evidence that the Respondent or Newland had encountered any particular problem in respect to absenteeism. When Latchaw failed to report in August he sent no message to his foreman that he would be absent yet Newland made little point of the incident and in no respect warned Latchaw that he was endangering his job tenure. But in November, after a union campaign, it was different. No doubt Latchaw was some- what remiss in not making certain that Coldiron would report Latchaw 's condition to Newland or in some other manner ensuring that a proper and timely notice of his, intended absence reached Newland . I have, however, no doubt but that Latchaw believed that he had, through Coldiron, made adequate arrangements for such notice. In the circumstances as Newland and Maxwell understood them on the morning of November 8 the penalty of discharge which was then exacted of Latchaw seems harsh and unwarranted . But Respondent's personnel policies are not my concern and if in application they result in what may seem an inequity a locus penitentiae must be sought elsewhere . The basic question now must be answered . Did Latchaw's discharge flow from a violation of Respondent's rule or did it result from some improvisation by Newland and Maxwell tailored for adaption to Latchaw. That Haga was discharged on the same day in somewhat similar circumstances does not provide a final answer . The record does not indicate that he was ill or that he had attempted in any manner to inform his foreman of his intended absence. Brewer's testimony that in the case of Manuel Chavez , Maxwell would not author- ize a discharge until Chavez had been absent 4 days stands undenied . There may have been some valid reason why Chavez should have been treated more consider- ately that Latchaw but the record does not supply it. I believe that the reason for Latchaw's discharge is to be found in Respondent's deep seated antipathy toward those employees who would have a union represent them. Maxwell revealed his, feelings in that connection when he told Mowbray that coffee, soft drinks, and sympathetic treatment would be lost if the Union won the election . Vesper told Archuleta that he was surprised to see him still at work-the suggestion being that he should not be. Because of Respondent's attitude toward the exercise of the right to self-organization , I am convinced upon the basis of the entire record that it pur- 3 Newland knew of Latchaw 's riding arrangement with Coldiron. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posely pursued a discriminatory policy after the election toward those who had been union supporters . The assignment of Sargent by Denton on November 7 is one ex- ample, the discharge of Wieland, yet to be discussed, is another, and the discharge of Latchaw is one more. In the circumstances recited, I do not believe that Latchaw would have been discharged on November 8 had it not been Respondent 's design to seize such an opportunity to discriminate against a union supporter in a situation where its action might have some color of legality . I do not credit Newland's testi- mony that he was unaware of Latchaw's feeling toward the Union. Newland had characterized Latchaw's attitude 'toward the Union as reminiscent of John L. Lewis. The probability that Maxwell knew of Latchaw's sympathies is great and, I believe, serves to explain his concurrence in Newland's recommendation that Latchaw be discharged. Truly the "liberal" policy toward employee shortcomings had under- gone a change as Maxwell suggested to Mowbray it might . Newland conceded that had he discovered near the end of the shift on the morning of November 8 that Lat- chaw had in fact called someone at the mill on the evening of November 7 to report his illness no discipline would have been imposed. Why Newland was not satisfied with the information he received from Coldiron to that effect in mid-shift is un- clear to me. In either case Newland would not have been informed in sufficient time to retain an employee from the earlier shift to replace Latchaw. I find that Latchaw's failure to appear for work on his shift provided a pretext to the Respondent to accomplish the discharge of a known union adherent and that the Respondent accepted the opportunity thus provided. By the discharge of Latchaw in these circumstances and for such a discriminatory reason the Respondent discouraged membership in and activity in behalf of the Union and thereby violated Section 8 (a) (3) and (1) of the Act. I so find. Elton A. Wieland, first hired in July 1953, was discharged by action of Maxwell on November 4, 1954, the day following the representation election. Maxwell testified that the discharge decision was made by him about August 1 upon the basis of a survey of Wieland's conduct. According to Maxwell, Wieland caused dissention and unrest among his fellow workers and that some refused to work with him. Par- ticularly, Wieland became angry with Carlos Archuleta and threatened to have him discharged; refused to pull a press for Kenneth Hermes, although it was his job to do so, and later became abusive toward Hermes because of the incident; was transferred from a carpenter crew because he could not get along with his fellow workers; asked for a transfer from Foreman Denton's crew because he could not get along with Denton; and asked for a transfer from Foreman Knickerbocker's crew for the same reason. This last request, Maxwell testified, moved him to the decision to discharge Wieland as it convinced him, he said, that Wieland was truly unable to work in harmony with others at any point in the mill. However, at about the time this last information concerning Wieland reached him he also learned that the Union was seriously attempting to organize the employees and, although without information that Wieland was in any way identified with the Union or its purpose, decided that his discharge might in some quarters for some reason be construed to be motivated by that circumstance. Also at about this time, Maxwell was about to leave for" his vacation. Foreman Knickerbocker came to him and asked what should be done if Wieland had trouble with other employees during Maxwell's absence. Maxwell said that Wieland should be assigned to the extent possible to jobs where he could work alone or with one other man and that Wieland would be kept at work "until this union deal blew over." A number of employees testified concerning difficulties with Wieland. Other than to the extent outlined in Maxwell's summation of the case against Wieland set forth above, it is unclear how many of these incidents came to his attention before the discharge was accomplished. For a period estimated in the testimony variously as from 6 weeks to 4 months, Wieland worked in a crew whose leadman was Melvin Cook. Sometime during this period, according to Elmer Slaten, Cook's foreman, Wieland complained that he could no longer work under Cook's direction. Slaten reported the matter to Main- tenance Superintendent Dale Prior who said that Wieland would have to remain where he was. Ivan B. Walker, the head mechanic under Prior, testified that Wieland said he could not get along with Cook because of the latter's overbearing manner. Everett Alexander, a carpenter, testified that he heard Wieland say that he could no longer work under Cook. Prior testified that Wieland complained to him about Cook on several occasions; that on one such, Wieland said that Cook acted as if Wieland knew nothing about carpenter work, and that if Cook did not stop "messing around" Wieland would knock him down. Cook, who because of injury of illness has not performed work for the Respond- ent since some early date in this year , testified that he had no complaint about Wieland's work and knew of no difficulty between Wieland and other members of the . VANADIUM CORPORATION OF AMERICA, INC. 441 crew: Wieland denied that he voiced any criticism of Cook or threatened on any occasion to refuse to work longer under Cook's direction. Kenneth Hermes testified that on the occasion he asked Wieland and Bacus to pull the press Wieland said that he did not intend to do so. Two or three days later, according to Hermes, Wieland said that if Hermes ever bothered him again he would whip him. Hermes testified that he did not report the incident to his fore- man, Knickerbocker. Amado Cordova testified that in early October Wieland said that because the Com- pany blamed the Mexican employees for the appearance of the Union, they would be fired if the Union lost the election. Cordova reported this conversation to Fore- man Knickerbocker and also to Superintendent Maxwell. The latter told him that there was no substance in Wieland's warning. Donald Cowan testified that in late October Wieland accused him of report- ing to management the names of some union adherents and threatened that if he, Wieland, lost his job on that-account he would whip Cowan. Wieland acknowledged his error a few days later and apologized for it. Murrey Baer testified that Wieland worked under him for a half day and spent most of that time loafing and complaining about what a dirty job he had and how little he thought of his Employer and fellow employees. Edwin Waters testified that in late September or early October 1954, Wieland q accused him of backing out of the Union and warned him to be careful who he talked to or what he said or he might get a hole in his head. Gla Paxton, once Wieland's foreman but now a roaster operator, testified that in July 1954 Wieland asked Paxton to arrange a retransfer to Paxton's shift. Paxton reported the request to Maxwell who said that it could not be done. Sometime during the first month of Wieland's employment, according to Paxton, Wieland asserted that Paxton was putting all the dirty work on him, but later in the day admitted his error and apologized. Foreman Denton testified that in late January 1954 he saw Wieland going to his car before the end of the shift, and when Wieland saw that he was observed, profanely accused Denton of pushing all the dirty work on him. Foreman Knickerbocker testified that between August 1 and the date of his discharge Wieland often left his job position to talk with other employees. Wieland's testimony concerning these matters follows. According to Wieland, Denton was critical of his work and treated him unfairly. On January 25, 1954, about 10 minutes before the end of the shift, Wieland went to his car to put his raincoat in it, and as he turned to go back to the mill saw Denton watching him. He approached Denton, asked why he continued to spy on him, and inquired if his work was not satisfactory. Denton answered that it had not been recently. A hot argument followed between the two and, at Wieland's suggestion, both went to the office of Roland Vesper, assistant superintendent. Each told Vesper his version of the difficulties that had arisen between them, with the result that Wieland was trans- ferred to the shift of another foreman, Lee Knickerbocker. In early February 1954, Wieland was offered an opportunity to drive a salt truck for the Respondent between Durango and Montrose, Colorado. According to Wieland, this job was an arduous one entailing long hours, but was desirable in that he worked alternate weeks only. After I week. Wieland decided that the job was too much for him so he asked for and received a transfer back to the mill under Knickerbocker. In March, Wieland and his partner, Kay Bacus, were told by Hermes that a press was ready to pull. This.task was one routinely performed by Wieland and Bacus upon notice either of Hermes or the shift foreman. Wieland testified that he and Bacus jokingly told Hermes that they were too busy to do the job and didn't feel like doing it. Hermes left and in a few minutes Wieland and Bacus Pulled the press. In June at the request of another employee, Carlos Archuleta, Wieland relieved him on Archuleta's assertion that he had not yet had time for lunch. According to Wieland, Archuleta was absent from his post for about an hour and a half and during this absence Wieland learned that Archuleta had already had his lunch. Wieland spoke angrily to Archuleta on the latter's return and said that Archuleta's conduct could cause him to lose his job. Wieland reported the matter to Edward Lambert who was on-this occasion acting as shift foreman. Lambert testified that he did not report the incident to anyone as he considered it too trifling for notice. Wieland signed an application for membership in the Union in early September. Sometime after that he approached a fellow employee, Amado B. Cordova, and accused the latter of backsliding in his union allegiance., Cordova denied the charge. Wieland told Cordova that the Respondent blamed the Mexican employees for the appearance of the Union in the mill and advised him that it would be safer for Cordova to support the Union; if the Union failed in its organizing drive Cordova might lose his job. Sometime in September Wieland heard that another employee, Donald Cowan, had 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reported him and four other workers to management as union members. Wieland taxed Cowan with this information and Cowan denied that there was substance to it. Wieland then went to Foreman Knickerbocker and inquired if the charge was true. Knickerbocker said it was not. Wieland apologized to Cowan for the rough and intemperate language which had accompanied his accusation. In early October, according to Wieland, Foreman Knickerbocker asked him what he had heard about the Union and what he knew about it. Wieland answered, "Nothing." On October 22 or 23, still according to Wieland, Superintendent Maxwell and Foreman Knicker- bocker came to him on the job and asked what he had to say for himself. Wieland replied, according to his testimony, that he had nothing to say about his union' activities. Maxwell then suggested that Wieland come to his office or to his home to talk. Wieland said he would think it over, but did not accept the invitation. On November 2, as a representative of the Union, Wieland attended a preelection con- ference with representatives of the Respondent, and on November 3 was the Union's observer at the polls. That evening Wieland telephoned his foreman to tell him that he did not feel well enough to report for work on the midnight shift for which he was scheduled and was given permission to be absent. The next night Wieland reported at the mill and began work at midnight. After about 10 minutes, Foreman Knickerbocker came to him and told him that he had been discharged. I credit Maxwell's testimony that on August 1 he had no reason to believe, and did not, that Wieland was identified with any movement to organize Respondent's 0 employees into the Union. 1 am not persuaded, however, that he entertained at that time any serious purpose to discharge Wieland. Had Wieland been in early August the "problem child" that Maxwell described in his testimony I do not believe that a vague and insubstantial fear that his discharge might be misinterpreted would have stayed Maxwell's hand. The conduct of Maxwell and other lesser represent- atives of management after the union campaign got under way was not marked b} any concern that Respondent's employees might infer that Respondent held the movement in disfavor. Maxwell himself told an employee of the unhappy result to be expected from a union victory and his foremen were busily engaged in threat- ening the employees with sharply reduced earnings in such an eventuality. Maxwell soon learned where Wieland's interest was directed when, in early Oc- tober, he heard that Wieland was urging and perhaps threatening Cordova to con- tinue as a union supporter. I do not know what to make of the encounter of Max- well and Knickerbocker with Wieland on October 22. Accepting Maxwell's testi- mony in the matter, I do not understand his eagerness to accommodate Wieland in arranging a place for a confidential talk if the decision to make the discharge had already been made. On the other hand, if Maxwell had a purpose to seek Wieland out to convey some message, it seems unlikely that he would have foregone that purpose because Wieland was unwilling to talk while at the mill. I do not accept Wieland's testimonial suggestion that Maxwell's approach was one which indicated an intent to inquire into Wieland's union activities The record, in my opinion, does not supply an answer as to the design of any of the participants on this occasion. It is by no means improbable that Maxwell's account is the accurate one but, if so, nothing turns upon it except as the credibility of Wieland may be affected. As I view the evidence, however, Wieland's credibility is not of controlling importance. On November 4 or 5 Maxwell wrote a summary of Wieland's work history con- taining an account of some of Wieland's difficulties with other employees in justifica- tion of the discharge. I attach no significance unfavorable to the Respondent to the circumstance that for Maxwell to have written such a summary concerning a dis- charged employee was unique . Wieland was a special case. He was so prominently identified with the unsuccessful union campaign that Maxwell probably anticipated that the discharge would not pass unchallenged. But the summary is interesting in itself for it provides what I consider to be a certain clue as to the credit to be afforded Maxwell's testimony. In it Maxwell , purporting to recite information received from Foreman Knickerbocker, says that Wieland threatened to have Carlos Archuleta fired if he did not do as Wieland directed and that Wieland was assigned to help Archuleta. The incident referred to did not happen while Knickerbocker was at work , there is no evidence that Wieland was assigned to help Archuleta, and no testimony that Wieland tried to have Archuleta follow Wieland's orders. The Hermes' incident appears to be recited with some accuracy. The assertion that Wieland was transferred from work on the soda ash bin because of inability to get along with his fellows is not supported by any evidence . Wieland's supervisor, Prior, testified that Wieland's transfer came after the work was completed and when there was no longer need for him on the maintenance crew. There is no evidence that Wieland at any time said that he could not get along with Knickerbocker and desired a transfer for that reason. Paxton testified that in July 1954 , Wieland asked for a transfer to Paxton 's shift but ,VANADIUM CORPORATION OF AMERICA, INC. 443 no complaint concerning Knickerbocker or the employees on the latter's shift was voiced. The job record of Wieland contained in this summary appears to be intended to establish the attempts by the Respondent to find a place where Wieland would fit. It does not do so. Other than the transfer effected by Vesper in January 1954, because Wieland and Denton did- not get along, the job listing indicate no more than that Wieland tried the trucking job and was used to some extent to substitute for employees on vacation. The summary bespeaks an attempt to dredge up old occurrences, add some color, and offer them as motivating factors. I am convinced that they were not. There is substance to the assertions that Wieland was quick to resent conduct on the part of others which he considered, justifiably or not, to affect him adversely. The evidence convinces me that on some occasions he threatened to chastise other employees for reasons which are unappealing and that he found occasion to com- plain about the work assigned him as well as the character of supervision that the Respondent provided. That an attitude of persistent fault-finding coupled with an aggressive and truculent disposition would make one an undesirable employee hardly needs to be argued. This is the drawing of Wieland that the Respondent presents. Wieland .denied some of the testimony, particularly concerning criticisms of Cook and attempted in other cases to justify the conduct attributed to him. Upon a con- sideration of all the evidence concerning Wieland, I am convinced that the Respondent could have had reason to complain of his conduct, that he did evidence dissatisfaction upon occasion with the work assigned him, and that he was quickly moved to the point of uttering angry threats toward some of his fellow employees upon provocation which seems meager. However, I am unconvinced that these considerations were operative in making the decision to discharge him. Wieland's personality was known to the Respondent no later than in January 1954 when he had his dispute with Denton, yet he was permitted to continue at work. Since then, excepting only the week on the trucking job, he was under Knickerbocker's supervision. Knickerbocker's testimony concerning Wieland is that in July he told Maxwell that Wieland was troublesome in his relations with other employees but he advanced no complaint even in that respect concerning Wieland after that date. According to Knickerbocker, in the fall of 1954, Wieland did do a lot of visiting and talking to other employees during working hours, but there is no evidence that Wieland neglected his work on that account and Knicker- bocker found no occasion from August to November 4 to discuss with Maxwell the question of Wieland's discharge. That Respondent was highly antagonistic to the development of sentiment among the employees favoring the Union has been noted and the unlawful efforts to dissuade them from making such a choice have been recited. I consider the discharge of Wieland to be an act growing out of and motivated by that antipathy. Wieland was I of the 2 employees most notably union supporters. How better to emphasize to the employees the dangers accompanying the assertion 'of rights guaranteed by the Act than to make an example of one who notoriously had done so. Not alone did the discharge provide an example which might well deter others from expressing an interest in self-organization but it also removed from the ranks of Respondent's employees one who in the future might attempt to rekindle the flame of union sentiment. That these were the considerations which moved Maxwell to accomplish Wieland's discharge, I have no doubt and so find .4 By, the discharge of Wieland because of his activity in behalf of the Union the Respondent discouraged membership in a labor organization and thereby violated Section 8 (a) (3) of the Act. By the discharge, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, .and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 4 Had Wieland's discharge been made merely to effectuate a considered decision arrived at 3 months before, as Maxwell testified, one would expect that Wieland would have been notified at the end of his shift that his employment had been terminated. If for any reason this course was impractical, it would seem that he would have been notified not to report. Instead Wieland was permitted to make the trip to the mill at midnight in expectation of working and was then sent away. By slamming the door in Wieland's face in this fashion, Maxwell evidenced a bitterness and a sort of vengeful spirit not to be explained by the reasons he gave for the discharge 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies and purposes of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of Latchaw and Wieland, it will be recommended that the Respondent offer to each of them immediate and full reinstatement to their former or substan- tially equivalent positions,5 without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered by them as a result of the discrimination , by payment to each of them of a sum of money equal to that amount each would have earned from the date of his discharge to the date he is offered reinstatement, less his net earnings 6 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the, checking of the amount of back pay due. As the unfair'labor practices committed by the Respondent were of a ,character striking at the roots of employee rights safeguarded by the Act and disclose a propensity on its part to continue , although not necessarily by the same stratagems and devices, to defeat self-organization of its employees , it will also be recommended that the Respondent be ordered to cease and desist from infringing in, any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, CIO, 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 Lloyd Latchaw and Elton Wieland, thereby discouraging membership in United Steel- workers of America, CIO,- the Respondent has,engaged . in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the discharges and by threatening reduced earnings , withdrawal of privileges and less sympathetic treatment , and by prophesying discriminatory treatment, of union sympathizers, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated and is violating Section 8 (a) (1) of the Act. 4. 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.] 5 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 9 Crossett Lumber Company, 8 NLRB 440, 497-498 Mrs. Baird's Bakeries, Inc. and Chauffeurs, Teamsters & Helpers Local Union No. 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Petitioner. Case No. 16-RC-1597. October 17, 1955 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 19, 1955, pursuant to the Board's Decision and Direction of Election in the above-entitled proceeding,' an election by secret bal- 'Not reported in printed volumes of Board Decisions and Orders. 114 NLRB No. 83.