Leak Repairs, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leak Repairs, Inc. and Milton Louis Jenkins and Vin- cent Lawrence Paver. Case 13-CA 16838 March 20, 1979 DECISION AND ORDER BY CAIRMAN FANNING AND MEMBERS PENELLO ANI) TRUIESDALE On November 24, 1978, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and supporting argument and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Leak Repairs, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. I Respondent has excepted to certain credibility findings made by the Ad- ministrative l.aw Judge. It is the Board's established policy not to overrule ;n Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dr Wall Products Inc.. 91 NLRB 544 (1951), enl'd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis fbr reversing his findings. DECISION SIAIEMENI OF IHE CASE FRANK H. IKIN, Administrative Law Judge. This hear- ing was conducted in Chicago, Illinois, on February 23 and 24, 1978. The unfair labor practice charge was filed on Sep- tember 13, 1977. The complaint issued on November 9, 1977, and was later amended at the hearing. The principal issue presented is whether Respondent Company violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, by threatening employees with layoff, plant closure, and other reprisals if they chose union representa- tion and, further, by discharging employees Milton Louis Jenkins and Vincent Lawrence Paver because of their union and related protected concerted activities. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of coun- sel, I make the following:' FINDINGS OF FA(CT I. JURISDICTION Respondent Company maintains facilities in Alvin, Texas, and in Alsip, Illinois. Respondent is engaged in the business of providing "on steam" repairs to leaking equip- ment and piping systems. During the prior calendar year, Respondent received goods and materials at Alsip valued in excess of $50,000 directly from outside of Illinois. During this same period, Respondent rendered services from its Al- sip facility valued in excess of $50,000 directly to enter- prises outside of Illinois. I therefore find and conclude, as admitted, that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 1. TIE UNFAIR LABOR PRACTICES A. Employees Jenkins and Paver Attempt To Get Union Representation Milton Louis Jenkins, a Charging Party, testified that he started his employment with Respondent Company at Alsip about February 12, 1977, as an assistant technician. About mid-April. Jenkins discussed the advantages of union repre- sentation with coemployee Vincent Lawrence Paver, also a Charging Party. Jenkins and Paver thereafter discussed this subject "almost on a daily basis" among themselves and with other employees. Jenkins also attempted, without suc- cess, to enlist the assistance of a labor organization, Pipefit- ters Local 729, in this organizational effort. As Jenkins tes- tified: I told Paver that I had talked to Enright from the Pipe- fitters and that they didn't want to get involved in our situation. I told him that we ought to get the employ- ees together for a meeting and make some type of list of gripes as such and try to set up a meeting with Texas [the central office of the Company]. Jenkins and Paver thereafter spoke with their fellow em- ployees and arranged a breakfast meeting at the "Country Kitchen, right by the shop." This meeting was held during late May 1977 and was attended by Jenkins and Paver and five coworkers of the Alsip facility. Jenkins, as he testified, "started the meeting out" with his "list" of topics and "gripes." The employees present added to this "list." Sub- jects such as wages, hospitalization, maternity benefits, pay- time, hours of work, safety sessions, and "the pros and cons of a union" were discussed. At the conclusion of the meet- ing, Jenkins "told the employees that [he] would approach Al Spencer [the Company's Alsip branch manager] with the list and try to set up a meeting with somebody at Texas." On the following day, Jenkins spoke with Branch Man- ager Spencer in Spencer's office. Jenkins recalled: 'General Counsel's motion to correct the transcript, dated April 5, 1978, which is unopposed, is granted. 241 NLRB No. 38 282 LEAK REPAIRS. INC. [I] told Mr. Spencer that the employees got together and we made a list of gripes. And we'd like to talk with the [Company's] representative from Texas about our gripes and about the shop going union. Spencer "said that he would get in touch with Texas and get back with" the employees. Thereafter, Jenkins again spoke with Spencer about this subject at a "hot dog stand" near the Alsip facility. Employees Paver and Paul Durham and Foreman Kenneth Leone were also present during this discussion. Jenkins testified: I asked Mr. Spencer, had he heard anything concern- ing Texas sending somebody down. He said he knew somebody was coming but he didn't know who. He said, "if you guys push this union thing, Texas will end up shutting this shop down and I will lose the $3,000 I1 have got down on a house I am having built." I told Mr. Spencer that Texas couldn't shut a shop down ... for employees wanting to go union. He said, "it's a Texas shop, they can if they want."' About this same time, Jenkins, Paver, and three cowork- ers attended an employees' meeting at the Alsip shop. The meeting had been "called" by Louis Randolph, the Compa- ny's superintendent. According to Jenkins: Randolph said, "I guess you know George Harrison [the Company's vice president] is coming up to meet with you guys." He said, "if you push this Union thing . . Texas will shut this shop down." About June 3, 1977, Company Vice President Harrison spoke to the Alsip employees in the shop. Jenkins recalled that "Harrison came out, introduced himself and said, I understand you guys got some gripes you'd like to discuss." Jenkins responded. "Yes . .. I had a list . . . that we had gotten together and made up." Harrison asked for the "list" and instructed Spencer to prepare a copy of the "list." See General Counsel's Exhibit 7. Jenkins then "started the meeting out" by discussing with Harrison his "list." During this discussion, as Jenkins testified: I [Jenkins] brought [up] concerning the union. I asked, "Could we have a representative from a union come in and talk to Mr. Spencer concerning benefits and see if we could work out some type of program or give the Company a better idea ... what we could get by hav- ing a union." At this time, Mr. Harrison said, "No, [he] couldn't allow that. [He would] have to get back with the stockholders and bring it up to them." . . . Harrison said, "What good would a union be any way." I [Jen- kins] said, "Well, it would give us job security. It would help the Company in getting into some plants that wouldn't allow us ... because we are nonunion and it would hopefully help us get better benefits." Harrison claimed that "there is more to it than that." Jen- kins asked: "If this shop went union, what would Texas do"? Harrison replied: "They'd probably shut it down." The meeting ended with Jenkins asking Harrison "three 2 Jenkins recalled that on the following day he again asked Spencer in the shop, "had he heard from Texas." Spencer replied. "no .... I hope you guys know what you are doing. They will shut the shop down and I will lose the money I got down on my home." Jenkins recalled a similar conversation with Spencer later that evening or on the following da. questions to take back to the stockholders" pertaining to union representation and increased benefits. Subsequently, about June 10, 1977, Company Vice Pres- ident Robert Thompson spoke to the Alsip employees in the shop. As Jenkins testified. "I started the meeting out asking Mr. Thompson about the three questions that I had sent with Mr. Harrison to get answers for." Thompson re- sponded that he had been advised by "his lawyers in Texas" against "bringing ... a representative from a union in to talk to Al Spencer." Further. Jenkins recalled: At that time, I [Jenkins] told Mr. Thompson . . . "When Mr. Harrison was up here, he [Harrison] said that if this shop went union, Texas would shut the shop down." And Mr. Thompson said, "Don't get me [Thompson] wrong. I am not totally against a union, but if this shop did go union, you could see how it would not run efficiently as it should and. therefotre. yes, we probably would have to shut it down." Thompson then asked Jenkins "why you would want a union anyway" and Jenkins cited "job security" and "hbene- fits." Employee Paver testified that he was employed by the Company from June 1975 through June 1976 and rom February 14, 1977 through June 13, 1977. Paver recalled discussing a union with coworker Jenkins and other Alsip employees "almost everyday from April until the time we were fired in June." During late May, Paver assisted Jen- kins in arranging a meeting of the employees, in order to "make up a list of demands and try to get another union or present our list to the Company." Paver later participated in the employee meeting at the Country Kitchen restaurant. About this time, during late May. as Paver further testi- fied, Branch Manager Spencer "came up" to Paver at work and the two engaged in "just regular chit-chat and hap- pened to bring up a point about the union." Paver then commented to Spencer: "if we could get a union, it would be nice." Paver asked Spencer "what he thought about it." Spencer replied: He [Spencer] said he couldn't say at this time. But he said. "If we got a union, Texas would probably close this shop down." About a day later, Paver. in the presence of coworker Jen- kins, was complaining to Spencer about a particular job. Paver stated: "If we had a union, it would take better care of these problems." Spencer replied that "we'd get more problems." Spencer noted: "I have some money down on a house and I would hate to be transferred and lose my money." Paver recalled a further conversation with Spencer at a "hot dog stand" near the shop. Jenkins and other employ- ees were present. Paver overheard Spencer state: he [Spencer] had some money down a house and he didn't want to lose it. If we kept pushing this union deal, they'd probably have to shut the shop down. Paver also recalled a conversation with Foreman l.eone about this same time. Leone, after taking a telephone call. apprised Paver: They gave me [Leone] the word. If I was caught col- laborating with you on the union. I lose my job. What 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you guys do now I want no part of and I want to keep my nose clean. Paver attended a portion of Harrison's meeting with the employees on or about June 3, 1977. Paver also attended the Thompson meeting with the employees on or about June 10. 1977. Paver recalled that coworker Jenkins had asked Thompson: "What happens, you know, if we went with the union." Thompson replied: This isn't a threat. want to make that perfectly clear. But if you people insist on going with the union and you got a union, we'd probably have to close this shop down. Anthony Gazelle, a technician employed at Respondent's Alsip operation, recalled the efforts of coworkers Jenkins and Paver to unionize the shop. Gazelle recalled that about late May or early' June 1977 he and branch manager Spen- cer had the following conversation while playing golf: Al [Spencer] said to me, he says, "'Texas knows about this union you guys have been talking about." I said, "no." He said, "Do you know what Texas will do." I said, "no, I don't." He says, "well, they will transfer all salaried people, lay everybody on hourly off and shut the office down." I says, "why would they do that." He says, "Texas doesn't want unionists in the Company." Spencer also apprised Gazelle: "I'm just telling you what they said. I don't want to see you guys doing anything you'd be sorry for later." About one week later, Gazelle, as he further testified, was called into Spencer's office. Spencer informed Gazelle: "I'm talking to you as a friend, not as your boss. I don't want to see you get involved in this union thing. You've got a good chance to move up on the Com- pany. I don't want to see you fuck it up."' Paul Durham, employed by the Company as an assistant and, later, as a technician from January until August 1977, recalled that Foreman Leone told him and coworker Paver that "he [Leone] no longer could talk to us about the union, that his job would be in jeopardy." Durham also witnessed branch manager Spencer warn the employees at a "hot dog stand" that: I [Spencer] have $3000 on a new house that I am hav- ing built [and] if we keep continuing this union busi- ness that Texas is going to close the shop and I'll lose my $3000. Durham later witnessed Superintendent Randolph state to the Alsip employees, "Harrison wanted to know what we were going to do about the union business and that Texas would definitely close the shop if we continued it." In addi- tion, Durham witnessed Vice President Harrison explain to coworker Jenkins that "Texas would shut the shop down" if the employees "went union." Robert Thompson, vice president of Respondent, admit- 'Gazelle attended the meeting of employees conducted by Vice President Harrison. Gazelle recalled. inter alia, that coworker Jenkins asked Harrison, "what would Texas do if we get a union in here." Harrison responded: "We'd probably close the shop down." Gazelle also attended the meeting of employees conducted by Vice President Thompson. Gazelle recalled that Jenkins had asked Thompson, "what would Texas do if we got a union in here." Thompson responded: "IHIe didn't see how this could operate if it was a union." tedly spoke with the Alsip employees on or about June 9, 1977. He had seen the employees' "list of complaints or gripes." This "list" was discussed at the meeting. Thompson recalled: "Milt Jenkins had told me they had been talking to a union representative." They then discussed "the pros and cons of a union." According to Thompson: I thought from a business climate basis and efficiency of operation that the business could quite possibly suf- fer if it was unionized. I spoke to that, that I felt this was a possibility. not using it as a threat, that I was concerned that the branch operation would survive as a union operation. Company Vice President Harrison recalled that he spoke to the Alsip employees about June I and that he then re- viewed the "list" of employee complaints. Harrison gener- ally denied, inter alia, that he was asked by Jenkins what would happen if the shop were "organized" and that he responded "that the plant would close down or mentioned the plant closing in any way." Branch Manager Spencer generally denied, inter alia, that Vice President Harrison had told the Alsip employees during his meeting that "he was going to close down the shop if it went union." In addition, Spencer recalled a con- versation with employees at a "hot dog stand" at which time the "pros and cons" of unionization were discussed. Jenkins then said, "we have got nothing to lose" and Spen- cer admittedly responded: "I have got $3000 to lose be- cause I was buying a new house. That is all I remember of that conversation." Spencer further recalled a conversation with employees Jenkins and Paver at which time he said: [D)]o you remember old John Popp [a former manager], what he wanted to do, he wanted a union. and they would probably shut this place down." Spencer next recalled talk- ing with employee Gazelle "regarding a union" during a golf game. Spencer could only "remember saying" that "some of the guys are talking about it" and he, Spencer, "really didn't know" what the Company "will do."4 B. The Company Discharges Employees Jenkins and Paver Employee Jenkins testified that on Monday June 6, 1977, he and coworker Paver went to the ECI refinery to investi- gate "a steam leak." The leak was on "a flange and heat exchanger"--the "exchanger was approximately 12 to 15 feet long . . . it's like a large cylinder or pipe" and the "bottom is approximately three feet in diameter." Jenkins was the assistant technician assigned to this job. Paver was the technician. Jenkins recalled that Paver examined the leak and noted that "there is a weld down here on this flange" and if "we went with a tongue seal [a common form of clamp used to stop such a leak] it could cause us prob- lems." Consequently, Paver wanted to "use packing in- stead" as a seal. Paver determined that: [I]f we went with packing, we could go on the outside of the weld and we could have a 360 [degree] seal on 4 Superintendent Randolph was present when Vice President Harrison ad- dressed the Alsip employees. Randolph was asked if Harrison had said: "Texas would close down the shop." Randolph's response was: "I don't remember him saying that-I never heard him say that." Randolph gener- ally denied telling the employees that the Company was going to close the shop if it went union. 284 LEAK REPAIRS. INC. both flanges all the way around. And, we w ill keep the tongue, except we'll take off a quarter of an inch off the measurement or thereabouts. And we will just use the tongue for taking up space. Jenkins agreed with Paver. The two employees then made their measurements and filled out a company data sheet. See General Counsel's Exhibit 8. Jenkins acknowledged that, in filling out the data sheet (G.C. Exh. 8). the employ- ees recorded the "gap between the head of the flanges" as 3.5 inches although the "exact measurement" of' this gap was approximately 3.75 inches. Paver then "took the data sheet cnd called the information into Texas," where the Company would prepare the clamp. A few days later, Jenkins apprised Foreman Leone that "the clamp Texas is sending up has a tongue seal on it. We ordered it with packing.... he tongue seal won't work because we took a quarter of an inch off of it." Leone said. "wait until it comes in and see what happens." Later, the next day. Jenkins similarly informed Branch Manager Spencer "that the clamp Texas is sending has a tongue seal on it.... It won't work.... We ordered it with packing and we took a quarter of an inch off that tongue, and there is no way that tongue will seal it." Spencer replied, "it's already been made and it's on its way. We will have to see what happens." On Saturday June 11, the clamp arrived from Texas. As Jenkins testified, "it was a tongue seal clamp with no pack- ing." The two employees took the clamp to the ECI job and attempted for over 12 hours "to get this clamp to work": however, "it didn't work." Paver then told Foreman Leone: We can't get it sealed. We have tried everything we could think of. It's not the way we ordered it. I don't know what to say. We just can't get it stopped. Leone responded: "Don't worry about it. Everybody makes mistakes." On Monday. June 13, Company Superintendent Ran- dolph summoned employees Jenkins and Paver into Branch Manager Spencer's office. Spencer was not there. Randolph informed the two employees that "we can't have . . . big mistakes like that and Al [Spencer] and I [Randolph] talked it over and decided to let you two go." Jenkins argued that Randolph had made "many mistakes" and had not been fired. Randolph responded, "that's the way it is." Previ- ously, Jenkins had never received a reprimand or any criti- cism of his work. See General Counsel's Exhibits 5 and 6, the Company's progress reports issued to Jenkins on May 3 and June 13, 1977, respectively. Employee Paver similarly testified that after examining the leak at the ECI job on June 6. he stated to Jenkins. "why don't we put a tongue in and use it to tongue the gap" and also use a "packing seal." Jenkins agreed. Paver had ordered about four or five clamps with "packing" in the past: however. as Paver acknowledged: I never asked for a clamp made this way because usu- ally when I come up to a job and look at a flange it might be mismatched. I never saw a weld on a flange like that.... The way I understood it, it was my job to look at it and see what to do with it. Paver then called in his order to Texas. Paver, as he further testified, told the Texas representative on the telephone that he had a DS 100 sheet -a data supply sheet (G.C. Exh. 8)-and, "[WV]e started from the top of the sheet and we'd go down giving the information that we had. Paver re- called: When we got to the gap, I gave him this 3-1/2 [inch] measurement. And he says. "Where did you get this 3- 1/2? What did you use to measure this?" I said, "my veneers. I will explain this to you in a moment." And I went down and explained this obstruction. Paver, after explaining the obstruction to the Texas repre- sentative on the telephone, stated: "I would like to go with packing on this." Paver was then asked. "Where do you come up with this 3-1,/2? What did ou use to measure?" Paver responded: "I used my veneer. I didn't want to use a tongue as a [seal]." He [the Texas representativej said. "What is this packing. I don't understand." Then, I explained the weld again. And he said, "Well, all right." He goes, "I'll see what we can do with it." And he hung up and I hung up.' Thereafter, as Paver further testified, on Saturday June 1, Paver and Jenkins picked up the clamp for the ECI job. Paver observed, "This isn't going to work" there was no "packing" on the clamp and "it wasn't quite wide enough." In brief, the tongue was cut to a 3-1/2 inch gap as ordered: however, without the packing, it was too narrow to hold in the seal. Repeated efforts to install the clamp and seal the leak were unsuccessful. Foreman Leone later visited the ECI job. Paver explained to Leone that "they didn't make the clamp the way I asked them to." Leone responded: "Don't worry about it. Just go order another clamp." Paver also reported the incident to Branch Manager Spencer on the telephone. Spencer agreed that a new clamp should be ordered. Paver recalled that on Monday June 13, Jenkins and he were summarily terminated by Randolph. Paver acknowl- edged that he had been instructed by management to fill out the data sheet forms accurately and that the ECI data sheet form shows the "gap" at 3.5 inches instead of 3.75 inches., Employee Gazelle testified that he spoke with Manager Spencer on June 13 in Spencer's office. Coworker Paul Dur- ham was also present. Gazelle and Durham then asked Spencer why Jenkins and Paver were fired. Gazelle asked, "How come Milton [Jenkins] was fired. He's just an assist- ant. He doesn't have any final say-so in the measuring of a clamp. That's the technician's final decision on what he feels is the best way to seal it." Spencer replied: 'The data sheet which was filled out by the employees at the ECI job (GC. Exh. 8) states under "instructions for field" "1/4 of in from gap on flange 2 (3/4 inch wide and 1 /4 weld high) (packing)." Paver recalled that he "turned [the data sheet] in" at the Alsip office after leaving the ECI job, 6 Paver also explained that during his last period of employment with the Company (Februar) 14 through June 13. 1977), he had not been repn- manded or warned b the Employer about his work. (See GC. Exh. II. Paver's progress report dated May 31. 1977.) In addition, Paver acknowl- edged that he had been terminated by former Company Manager Bill Buc- hardt in June 1976 "because I left the job leaking." Paver explained the incident, Later, Buchardt was fired by the Company and Manager Spencer then rehired Paver. Paver was then told: "If you want, you got the job because we Spencer and Steve SteAart] know you got the shaft." 285 D[ECISIONS OF NATIONAL LABOR RELATIONS BOARD I[I]e [Spencer] had talked to Texas. and when Texas asked who the assistant on the job was, and he had told him Milt Jenkins, he said get rid of him too. Spencer assured Gazelle and Durham: "Don't worry. No- body else will be fired on account of this." Gazelle acknowl- edged that he had in the past incorrectly measured a clamp; the clamp did not fit; and he was not fired or reprimanded for his mistake. Gazelle also noted that in late 1976 he had ordered a clamp with a tongue and packing seal and Texas "agreed." Gazelle, however, accurately recorded the "gap" for this "tongue and packing seal" clamp. Employee Durham testified that he was at the ECI job on Saturday June I . Durham witnessed coworker Paver explain to Foreman L.eone "that the clamp they were work- ing on wouldn't fit." I.eone assured Paver: "Don't worry about it. We all make mistakes." Later, Leone stated to Durham: [fl]e [Leone] had just called Al Spencer. Leone told me [Durham] that Al Spencer had said not to worry about it. 'Fell l.arry not to worry about it. Just take another set of measurements and send them to Texas so we can get a clamp. Durham also witnessed Leone relate this information to Paver. "Spencer said not to worry about it. Just take an- other set of measurements and get it to Texas." And, Dur- ham recalled that Spencer later assured Gazelle and him- self: "Don't worry about it. Nobody else will be fired for the same thing." Branch Manager Spencer testified that on Saturday June 11 he received a telephone call from Foreman Leone con- cerning the ECI job. Leone then informed Spencer that Paver had admitted that "he [Paver] had things to do that night and had cut a quarter inch off to make the job easier." Spencer then told Leone to have Paver "in the office Mon- day morning." Spencer further testified that he received a telephone call from Paver that same day. Spencer recalled: He [Paver] called me up and told me the clamp didn't fit. Basically that it was his fault. Can't remember the exact words now. He admitted it was his fault and asked me what I was going to do. I don't remember if he asked me whether I was going to fire him or not. I said. "We are not going to do anything right now." Spencer, as he further testified, telephoned Vice President Harrison on Sunday June 12 and apprised Harrison that a technician and his assistant had "cut one quarter inch off a Itongue] of a clamp to make the job easier for themselves and that the clamp did not fit." Harrison assertedly left the "decision" as to "what . . . to do" to Spencer. Spencer claimed that he did not mention the names of the employ- ees involved to Harrison. Spencer subsequently telephoned Superintendent Randolph during late Sunday and "told him [Randolphl I [Spencer] wasn't going to be in the office Monday morning .. . I wanted him to discharge Mr. Paver and Mr. Jenkins." Spencer assertedly terminated both Paver and Jenkins because "they were not employed as en- gineers and they designed this clamp themselves in the field which is not their job." Spencer acknowledged that clamps have been "mismeasured" by employees in the past and the employees involved were not terminated by the Company. Company Vice President Harrison recalled his conversa- tion with Spencer on Sunday June 12. According to Harri- son, Spencer then told Harrison that two employees had "mismeasured" a clamp; the "clamp doesn't fit" and "the technician said they did it on purpose." Harrison responded that "we can't tolerate that." Harrison further testified in part: After . . . I [Harrison] told him [Spencer] to get rid of them [he] said, "It's Larry Paver and Milt Jenkins." I said, "we can't help it; with this Union talk." * * . * * "With this Union talk, can we do that." * * * t * I said, "Al, if there is a good reason regardless who it is, it's my feeling that something should be done. And we cannot tolerate this." Harrison added: I said, "well you know what has to be done." That's before I knew who the individuals were. Superintendent Randolph acknowledged that ten em- ployees have made mistakes in measuring clamps; most of the clamps could not be used; and none of the employees involved were discharged. Randolph further acknowledged that he had seen the data sheet prepared by Paver and Jenkins for the ECI clamp "prior to the installation of the clamp." Foreman Leone claimed that on Saturday June 11, em- ployee Paver made the following admission to him: "Well, I [Paver] had a few things to do today, and I didn't feel like working on this all day long; so when the measurements came in, I took a quarter inch off the measurements." According to Leone, Jenkins also admitted that he "knew of the situation." Jenkins assertedly stated to Leone: "[W]ho am I [Jenkins] to override a technician. I am the assistant tech." Leone later spoke with Spencer. Leone denied that either Jenkins or Paver had told him prior to Saturday June 11 that they had reason to believe that the ECI clamp would not seal the leak. Leone also denied that on June 11 Paver had said that the clamp was "not the way we ordered it." Leone, however, could not "remember" saying to Paver on June I I: "[D]on't worry about it, we all make mistakes." Further, Leone did not know when the initial ECI clamp had been ordered by Paver and Jenkins. Leone agreed that on the day when this clamp was ordered, there was no way of determining exactly when the clamp would be delivered from Texas. Robert Thompson, an officer of Respondent, explained that it is the engineering personnel in the Texas office who "have the ultimate decision to decide how the job should be done. It is not decided in the field" and the "most critical responsibility" of a field technician is "to make accurate measurements." Thompson claimed that the cost of the new ECI clamp was about $3700. 286 LEAK REPAIRS, INC. William C. Grace, employed by the Company as a super- visor of engineering in its Texas office, testified that Re- spondent's Exhibit 2 (sheet 4) is the data sheet which he prepared for the ECI clamp in question on June 7, 1977. According to Grace, "I am the one who took the call and filled it out." Grace claimed that no request had been made for an "unusual sort of clamp." Grace, in any event, would not have approved any request by a technician for a "spe- cial clamp" here. However, General Counsel's Exhibit 8, the data sheet report of Paver and Jenkins, indicates that this order was made on June 6 and not on June 7, as stated in Grace's report. Further, Grace, after being shown Gen- eral Counsel's Exhibit 8, testified in part: I recall a discussion with the technician in regards to obstruction, and the request for packing, and I ex- plained to him there-with the obstruction, the flange clamp, the tongue clamp would be better because of the kind of close on the packing. This is not the exact words, but the discussion. Well, sir, we discussed the data, and he explained the obstruction, the weld, and I remember we dis- cussed packing, and we discussed the weld in trying to close on the packing. We discussed that it would be better to go with the flange clamp because of the gap, no mismatch, and it's easier just to machine the flange to the counter bore larger to get over the weld. I credit the testimony of employees Jenkins, Paver, Ga- zelle, and Durham as detailed supra. Their testimony is in significant part mutually corroborative. Their testimony is also substantiated by the testimony of Vice President Thompson, Vice President Harrison, Branch Manager Spencer, Superintendent Randolph, Foreman Leone, and Supervisor Grace. And, relying upon the demeanor of the witnesses, I am persuaded on this record that employees Jenkins, Paver, Gazelle, and Durham have given a com- plete and credible account of the above sequence of events. Insofar as the testimony of Thompson, Harrison, Spencer, Randolph, Leone, and Grace differs with the above testi- mony of Jenkins, Paver, Gazelle, and Durham, I find the testimony of the latter to be more complete, accurate, and trustworthy. In particular, as discussed below, I am per- suaded here that Spencer, Randolph, Harrison, and Thompson threatened the employees with a shutdown of operations at Alsip and with other reprisals if the employ- ees exercised their rights to union representation. Further, as discussed below, I am persuaded here that the real rea- son for the summary discharge of employees Paver and Jen- kins on Monday June 13 was their unionization activities. I do not credit Foreman Leone's assertion that Paver admit- ted to him on Saturday June II that he, Paver, "had a few things to do today, and didn't feel like working on this all day long, so when the measurements came in [Paver] took a quarter inch off." Indeed, Leone acknowledged that neither Paver nor Jenkins could have known on the day they made their measurements, Monday June 6, when the clamp in fact would be delivered to the job site. Instead, I am per- suaded here that management has seized upon this error on the part of the two employees as an excuse to discharge them and thereby discourage employee organizational ac- tivities at the Alsip facility. C. Discussion Respondent argues that it discharged employees Jenkins and Paver solely for lawful reasons. The question presented is whether Respondent, in discharging the two employees on June 13, 1977, was motivated by an unlawful purpose. For, under settled law, "the Board is not compelled to ac- cept the Employer's statement" of the reason for an em- ployee's discharge "when there is reasonable cause for be- lieving that the ground put forward by the Employer was not the true one, and that the real reason was the Employ- er's dissatisfaction with the employee's" union or protected. concerted activities. The Great Atlantic and Pacific Tea Co., Inc., v. N.L.R.B., 354 F.2d 707, 709 (5th Cir. 1966). And, a discharge motivated only in part by an unlawful purpose is similarly illegal. J. P. Stevens & Co. v. N.L.R.B., 380 F.2d 292, 300 (2d Cir. 1967), cert. denied 389 U.S. 1005. On the credited evidence of record as recited supra I find and conclude that Respondent, in summarily firing employ- ees Jenkins and Paver on June 13, 1977, was motivated at least in part by their union and related, protected, con- certed activities. Thus, Jenkins and Paver were the chief union protagonists at the Alsip facility. They had arranged for a meeting of their coworkers to prepare a list of "gripes." They had attempted to secure the assistance of a union in their organizational efforts. Jenkins had apprised Branch Manager Spencer about the employees' "list of gripes" and that "we'd like to talk with the [Company's] representative from Texas about our gripes and about the shop going union." Branch Manager Spencer thereafter re- peatedly warned the employees: "[I]f you guys push this union thing, Texas will end up shutting this shop down." Superintendent Randolph similarly warned the employees that Vice President Harrison "is coming to meet with you guys" and "if you push this union thing ... Texas will shut this shop down." Indeed, Branch Manager Spencer admon- ished employee Gazelle: "[T]hey will transfer all salaried people, lay everybody on hourly off and shut the office down .... Texas doesn't want unionists in the Conm- pany.... I don't want to see you guys doing anything you'd be sorry for later." Subsequently, Spencer again warned Gazelle "as a friend" not to get "involved in this union thing." Spencer made it clear to Gazelle, "[Ylou've got a good chance to move up . . . I don't want to see you fuck it up." And, on or about June 3, Company Vice President Harrison, in discussing employee Jenkins' list of "gripes" at the Alsip shop, confirmed to the assembled employees that "they'd probably shut [the facility] down" if the employees chose union representation. Thereafter, about June 10, Company Vice President Thompson also warned the as- sembled Alsip employees that "if this shop did go union, you could see how it would not run efficiently as it should and, therefore, yes, we probably would have to shut it down." On the following Monday morning, June 13. employees Jenkins and Paver were fired by Superintendent Randolph because, as Foreman Leone wrote on the employees' pro- gress reports (G.C. Exhs. 4 and 6): 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this time, a mistake that was uncalled for and that never should have been, a 1/4 inch subtraction off a tongue clamp Larry Paver] was doing a fine job as a tech, but when it came down to the end, he knew he was wrong in what he had done, but too late to change. * * * * * At this time, Milt [Jenkins] had gone along with a tech to subtract 1/4 inch off the width of a tongue clamp which caused a misfit. Milt [Jenkins] would have made a good tech. but we felt that Milt should have spoke up at the time know- ing this was not the right thing to do. In the past, about 10 Alsip employees had made mistakes in measuring piping for clamps. In some cases, the clamps could not be used. Nevertheless, management had not dis- charged or apparently even reprimanded the employees in- volved. It is true, as Respondent claims, that employees Paver and Jenkins made a mistake at the ECI job. They made, in my view, a mistake in judgment by not sufficiently and clearly apprising their superiors of their improvisation. However, assessed in the context of management's strong opposition to the employees' union and related, protected, concerted efforts, the willingness of Management to tolerate mistakes in the past, the good work records of these two employees, and the timing of their terminations, I find and conclude that the real reason for their discharges was their union and related protected concerted activities. I find and conclude that management seized upon this mistake as an excuse to deter and chill the unionization and related, pro- tected, concerted activities at the Alsip shop. Respondent thereby violated Section 8(a)(3) and (1) of the Act. Further, I find and conclude that Branch Manager Spen- cer's and Superintendent Randolph's warnings to the em- ployees to the effect that, "if you push this union thing ... Texas will shut this shop down," plainly tended to impede employee Section 7 activities and therefore violated Section 8(a)(l) of the Act. In like vein, Vice President Harrison's and Vice President Thompson's warnings to the Alsip em- ployees to the effect that, "we probably would have to shut it down" if the employees chose union representation, were proscribed threats of reprisal. These statements by upper management were not "carefully phrased on the basis of objective fact to convey an employer's belief as to demon- strably probable consequences beyond his control." See, e.g., N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969).' Finally, Branch Manager Spencer's warning to em- 'And see Surprenant Manufacturing Co. v. N.LR.B., 341 F.2d 756, 761 (6th Cir. 1965): N.L.R.B. v. Miller. er al., 341 F.2d 870, 873 (2d Cir. 1965): International Union of Electrical, Radio and Machine Workers, AFL CIO [NECO Electrical Products Corp.] v. N.L.R.B., 289 F.2d 757. 763 (D.C. Cir. 1960); N.L.R.B. v. Kolmar Laboratories, Inc., 387 F.2d 833, 836-838 (7th Cir, 1967); N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696, 702- 703 (8th Cir. 1967). ployee Gazelle that the Employer would transfer and lay off employees if they persisted in this unionization effort and Spencer's related admonishment to the employee not "to get involved" because "you'd be sorry" or jeopardize "a good chance to move up," also tended to inhibit employee organizational activities, in violation of Section 8(a)(l) of the Act. I find and conclude that Respondent, by the foregoing conduct, violated Section 8(a)(1) and (3) of the Act as al- leged. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)( ) of the Act by threatening its employees with layoff, plant closure, loss of promotion, and other reprisals if they chose union represen- tation. 3. Respondent violated Section 8(a)(3) and (1) of the Act by terminating employees Vincent Lawrence Paver and Milton Louis Jenkins, and thereafter refusing to reinstate them, because they had engaged in union and related, pro- tected, concerted activities. 4. The unfair labor practices found herein affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist there- from and taken certain affirmative action designed to effec- tuate the policies of the Act. And, as the unfair labor prac- tices committed by Respondent strike at the very core of employee rights safeguarded by the Act, I recommend that Respondent cease and desist from in any other manner in- fringing upon rights guaranteed employees in Section 7 of the Act. It has been found that Respondent, in violation of Sec- tion 8(a)(3) and () of the Act, unlawfully terminated em- ployees Paver and Jenkins on June 13, 1977. It will there- fore be recommended that Respondent offer to both employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful terminations, by payment to them of a sum of money equal to that which they normally would have earned from the date of Respondent's discrimination to the date of Respondent's offer of reinstatement, less net earn- ings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).a Further, it will be rec- ommended that Respondent preserve and make available to the Board, upon request, all payroll records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement un- I See, generally, Isis Plumbing & Heating co., 138 NLRB 716 (1962). 288 LEAK REPAIRS, INC. der the terms of these recommendations. Respondent will also be directed to post the attached notice. Upon the foregoing findings of fact, conclusions of Law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER9 The Respondent, Leak Repairs, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with layoff, plant closure, loss of promotion, and other reprisals if they chose union representation; (b) Discouraging membership in any labor organization by discriminatorily discharging any of its employees or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condi- tions of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer employees Vincent Lawrence Paver and Milton Louis Jenkins immediate and full reinstatement to their for- mer jobs or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make them whole for any loss of earnings they may have suffered due to the dis- crimination against them in the manner set forth in The Remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its offices and facility in Alsip, Illinois, copies of the attached notice marked "Appendix."' 0 Copies of said g In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '1 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the notice, on forms provided by the Regional Director for Re- gion 13, after being duly signed by Respondent's represent- ative, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days there- after, 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, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board has found that Leaks Repairs, Inc., has violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We therefore notify you that: WE WILL NOT threaten our employees with layoff, plant closure, loss of promotion or other reprisals if they chose union representation. WE WILL NOT discourage membership in any labor organization by discriminatorily discharging any of our employees or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL offer Vincent Lawrence Paver and Milton Louis Jenkins immediate and full reinstatement to their former jobs or to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered due to the dis- crimination against them, plus interest. LEAK REPAIRS, INC. 289