Nibco, Inc.

NIBCO, INC. 277 AIL of the arguments and contentions urged upon me by the General Counsel hale been carefully considered by the Board and the Courts and have been rejected as pointed out in detail above. In my opinion, what the General Counsel seeks to accomplish in this proceeding can be brought about only by an amendment to the Act. If the Congress wishes to sound the death knell to peaceful, recognition picketing by a 'minority because of the economic pressures such picketing exerts on an employer, it of course may do so, but it may not be done by administrative fiat. As the New York Court of Appeals stated in Wood v. O'Grady, 307 N. Y. 532, cert. denied 349 U. S. 939, "It is axiomatic that we may not, under the guise of interpretation, import into a statute conditions or criteria which the legislature has been careful to omit." See also Colgate-Palmolive-Peet Co. v. N. L. R. B., 338 U. S. 355. Indeed, the Joint Committee on Labor Management Relations whose function, among others, was the study and investigation of "the administration and operation of existing Federal laws relating to labor relations " considered the problems we have in the instant case and was also of the opinion that to achieve the objective here sought by the General Counsel, the Act would require amendment 11 In view of the foregoing and upon the entire record, I will recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of Curtis Brothers, Inc., constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, -Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent, Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section S (b) (1) (A) of the Act. [Recommendations omitted from publication.] "Report of the Joint Committee on Labor Management Relations , Committee Print No. 986, pt. 3, 80th Cong., 2d sess., pp. 86-87. See also address by Professor Archibald Cox, at the CIO Conference on Labor Law, December 9, 1954. Nibco, Inc.' and Lewis R. Thomas. Case No. 16-CA-931. Oeto- ber 31,1957 DECISION AND ORDER On February 28,1957, Trial Examiner Thomas N. Kessel 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The General Counsel filed exceptions limited to the remedy and a sup- porting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Jenkins]. i The name of the Respondent appears as corrected at the hearing. 119 NLRB No. 36. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and exceptions noted below. We agree with the Trial Examiner that the Respondent, in violation of Section 8 (a) (3) and (1) of the Act, laid off employee Thomas on September 8, 1956, because of his union activities and not, as the Re- spondent contends, because of economic necessity.2 However, we do not agree with the Trial Examiner that the evidence warrants the in- ference that, subsequent to the layoff, Thomas might, nevertheless, have been separated for valid reasons. In support of this inference, the Trial Examiner relies on evidence to the effect that the Respondent, on or about January 1, 1957, discontinued the helper classification in the maintenance department which Thomas and another employee, Baker, occupied. However, at that time Baker was transferred to a job in another department. In these circumstances, and in view of all the evidence in the record, we have reason to believe that, but for Thomas' union leadership, he, too, Would have been transferred to a comparable position in another department which he was qualified to perform.' Ac- cordingly, to remedy the discriminatory action taken against Thomas, we shall direct the Respondent to offer Thomas immediate and full re- instatement to his former (if such position is reestablished) or a substantially equivalent position without prejudice to his seniority or other rights and privileges and to reimburse him for any loss of pay he may have suffered by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings during said period. Determination of the amount of back pay due shall be based on the quarterly method of computation established by the Board in the F. IV. IVoolworth Company s case. We find that the foregoing remedy is necessary and appropriate to effectuate the policies of the Act. 2 There is some doubt whether there was economic need for any layoff. Not only did the Respondent release merely 2 out of approximately 300 employees, but an exhibit in the record indicates that there was actually an increase in the number of employees during the month of September 1956, when the layoff occurred. In any event, whether or not there was an economic necessity for a reduction in force, the evidence abundantly estab- lishes that the Respondent was motivated by antiunion considerations in the selection of Thomas for the layoff. We note that the Trial Examiner in certain portions of his report characterized the separation of Thomas as a discharge. However, he appears to conclude that the separation was a layoff and not a discharge. We do not believe it necessary to determine the type of separation as, no matter how it was designated, it was a discriminatory separation from employment. 3 90 NLRB 289 , 291-294. NIBCO, INC. ORDER 279 Upon the entire record in the case and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders Nibco, Inc., Nacogdoches, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activities on behalf of, any labor organization of its employees by laying off or discharging 'employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condi- tion of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees as to their union views and ac- tivities and as to the identity of employees engaged in union activi- ties in a manner constituting interference with, restraint, or coercion ,of employees in violation of Section 8 (a) (1) of the Act. (c) Directing employees not to discuss union matters with a warn- ing that such discussions will lead to abandonment of any contem- plated construction of new buildings. (d) Warning employees that they will lose their jobs or be trans- ferred to other jobs if-the plant becomes unionized. (e) Warning employees that their union activities are suspected by plant officials and that they should therefore reveal all knowledge which they have pertaining to union activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Lewis R. Thomas immediate and full reinstatement to his former (if such position is reestablished) or a substantially equivalent position, without prejudice to his seniority-or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination, as provided in this Decision and. Order. (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- -security payment records, timecards, personnel records and reports, 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (c) Post at its plant in Nacogdoches, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. • 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 Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in, or activities on be- half of, any labor organization of our employees by laying off or discharging employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent per- mitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees as to their union views and activities and as to the identity of employees engaged in union activities in a manner constituting interference with, restraint, or coercion of employees in violation of Section 8 (a) (1) ; direct our employees not to discuss union matters with a warning that such discussions will lead to abandonment of any contemplated construction of new buildings; warn our employees that they will lose their jobs or be transferred to other jobs if the plant becomes unionized; or warn our employees that their union activities are suspected by plant officials and that they should therefore reveal all knowledge which they have pertaining to union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form, join, or assist any labor organization, to bargain NIBCO, INC. ` t 281 collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section8 (a) (3) of the Act. WE WILL offer Lewis R. Thomas immediate and full reinstate- ment to his former (if such position is reestablished) or a sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered because of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except as such right is affected by an agreement as authorized in Section 8 (a) (3) of the Act. NIBco, 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 a charge against Northern Indiana Brass Company of Texas, whose cor- porate name was changed in January 1957 to Nibco, Inc., herein called the Respond- ent, filed by Lewis R. Thomas, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued on November 28, 1956, his complaint in this proceeding alleging that the Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of the National Labor Re- lations Act, 61 Stat. 136, herein called the Act. Copies of the formal documents and notice of hearing were duly served on the parties. With respect to the unfair labor practices, the complaint alleges that the Re- spondent had engaged in conduct violative of Section 8 (a) (1) and (3) of the Act. The Respondent's answer denies these allegations. Pursuant to notice a hearing was held at Nacogdoches, Texas, on January 22, 1957, before the Trial Examiner duly designated to conduct the hearing. The General Counsel and the Respondent were represented by counsel and were afforded full opportunity to be heard, to ,examine and cross-examine witnesses, and to introduce evidence . After the hearing, the General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Nibco, Inc., is an Indiana corporation with plants at Elkhart, Indiana, and at Nacogdoches, Texas. At its Nacogdoches plant the Respondent produces metal products used in the home construction industry. This plant annually produces goods valued in excess of $50,000 which it ships to points outside the State of Texas. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, herein called the Union, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The relevant evidence All the unlawful conduct is alleged to have occurred at the Respondent's Nacog- doches plant. In early August 1956 a representative of the Union had sounded out. the employees about forming a labor organization. After employee Lewis R. Thomas. had been approached by fellow employees concerning this matter he communicated. with the Union's representative who came to Nacogdoches for an August 8 meeting. Directly afterward, Thomas with other employees solicited membership of the. Respondent's employees in the Union and in the first week of these activities 38 signatures were procured. Thereafter, Thomas continued to solicit members in the company of representatives of the Union and he continued with these activities until his separation from employment on September 8, 1956. In all, according to his. best estimate, Thomas personally solicited up to 50 employees. Thomas had worked for the Respondent approximately 2 years before his separa- tion on September 8. On this latter date he was sent by his foreman, Wilson, to Jack Hargis, the personnel manager, who notified him that he was being laid off. Thomas questioned why seniority was not being observed in his selection and" Hargis replied, "We do not have to." When Thomas remarked that he would file: an unfair labor practice charge with the Board against the Respondent, Hargis re- torted that it was he who mentioned the Union. Thomas then asserted that he had' not mentioned the Union to employees or signed them up on the job, and Hargis conceded that so far as management knew this was right. Thomas had worked in the Respondent's -maintenance crew from the time he was first employed. His impression was that he had been classified by the Respondent as a millwright and was unaware that he might actually have been classified as a maintenance helper. He conceded that he was not a skilled plumber, electrician, or- carpenter. He testified that work in the plant was "pretty steady" at the time of his separation. Although some production employees had been laid off a few months earlier no maintenance employees had been touched. He claimed that the plant was. on three shifts, on September 8, that a number of laid-off employees had been recalled, and that the Respondent was hiring new employees. Following his layoff Thomas had applied to the Texas Employment Commission for unemployment compensation and had signed a document in which a clerk had noted as the reason, for his separation "laid off-not needed." Thomas explained that he had told the- clerk that his separation resulted from union activities, but that the clerk had omitted this information from the application. Thomas related an incident which occurred about a month before the beginning: of the organizing campaign on August 8, when Foreman Wilson asked a group of maintenance employees whether they had heard anything about the Union and said, "If you have you had better not mention it because they have been approved' for the new building and if they get wind of it they won't build it." Employee Bobby Henry Baker testified that about a week before Thomas' separa- tion Foreman Wilson asked him what he thought about the Union and remarked' that all that he could do against it would help him in his job. Wilson added that he was not supposed to say this about the Union, and Baker responded that he- needed his job. Chester Sachtleben works for the Respondent and is also a pastor in a local church. Sometime after Labor Day in 1956 his foreman, Martin Johnson, asked' him how the Union was going and how he felt about it. Sachtleben told him he intended to stay out of the Union because of his pastorship, and in effect indicated' that he felt obligated to maintain neutrality on the issue. Johnson, however, indi- cated that he should take a "stand" one way or the other. Sachtleben disagreed. Johnson did not suggest what stand he should take. He also asked Sachtleben. whether he had had an "opportunity" to sign a union card. Sachtleben expressed the opinion that Johnson had not in this conversation come to him to find out about the Union. According to Sachtleben, the day before Thomas' separation, Johnson, said to him, "They wasn't interested in who signed the cards. They wanted to know who started it." Johnson further said "that they had a description of the people who started it, but they didn't know about it." He then described the person as a man with "bad teeth in the front" and stated he was a molder. (Thomas has some- teeth missing from the front of his mouth.) On the Friday before Thomas' separa- NIBCO, INC. 283, tion Sachtleben had been visited by Thomas and-.a union representative. Thomas` was separated the. next day. On the following Monday Sachtleben divulged in a conversation with Johnson that he had had visitors the preceding Friday. Johnson, then asked for their identity, but Sachtleben refused to give their-names. A few minutes after Johnson left, Personnel Manager Hargis came to Sachtleben and asked who had visited him. Sachtleben still refused to answer, whereupon Hargis inquired whether it was Thomas. Sachtleben replied, "I still won't answer it, but you are just close enough." Employee Jefferson Wheeler testified that in October 1956 he had two conversa- tions with Lee Martin, the Respondent's vice president. One lasted about an hour, and the other about 30 minutes. Wheeler related that they had "quite a talk about the union." He could not remember all that was said, but did recall the following. Martin asked him whether he knew Mr. Ford. Wheeler did not then know that Ford headed the Union's office in Houston. Martin also asked Wheeler whether he knew Mr. Ledbetter, one of the Union's representatives who had come to Nacog- doches to assist in organizing the Respondent's plant. Wheeler admitted that he knew him. Martin then asked Wheeler how much Ledbetter was paying him to get union cards signed. Wheeler denied receiving any payment and Martin commented that he was getting a raw deal, that up North they paid 25 dollars for each card signed. He pointed out that he had been dealing with the Union at Elkhart for 15 years during which there had been 3 strikes. Wheeler expressed the opinion that this was a good record. In the second conversation Martin had walked up to Wheeler, according to the latter, and said, "Wheeler, there isn't any beating around the bush with me; I know what you are doing. You are going around with Mr. Ledbetter signing people up in the Union." Wheeler told him this was no secret and that he was not ashamed of these activities, and Martin expounded on the lack of need for a union. Hoover Green has since January 1, 1957, been the supervisor of the office at the Respondent's Nacogdoches plant. Before then he had been assistant to Glen Epps, the foreman of the shipping department. He testified that Thomas had called him twice in 1956 during the period when the Union was conducting its organizing activi- ties. Green had spoken to Epps in this period and had told him he had been "ap- proached" about the Union. He told him that Sanders, the union representative, and Wheeler had come to his home to have him sign a union card. He also told Epps about the first call he had received from Thomas. He claimed, however, that he did not tell. Epps that it was Thomas who had called as he had not caught the name of his caller but had learned only that he worked in the maintenance department. Green knew Thomas personally and was aware that he then worked in the maintenance department. W. C. Sparks is employed in the Respondent's maintenance department. He testi- fied that on the Monday after Thomas was separated he had asked Foreman Wilson what had happened to Thomas, and Wilson had replied that Thomas has been fired because "he tried to give somebody a card and they came in and told Jack." The "Jack" referred to is Personnel Manager Hargis. According to Sparks, Wilson also told him that for his own benefit he should tell Hargis if he knew anything "for if it went Union [he] wouldn't have a job." Wilson mentioned the names of certain employees in the maintenance department who he indicated would be dis- persed to other departments of the plant. He further said that from the way he had been questioned by Hargis the latter suspected Sparks' support for the Union. All of the foregoing testimony was adduced by the General Counsel. The only witness presented by the Respondent was Robert R. Kline, the general manager of the Nacogdoches plant. Kline testified that he had been aware of the Union's cam- paign and had consequently instructed his supervisors that in accordance with the Respondent's policy they were to remain neutral and were not to indicate to em- ployees whether they should or should not join the Union or what their sympathies should be. Because he did not know of any claim of representation by the Union he had instructed his supervisors to listen to any employee who wished to speak to them but not to open conversations with them about the Union or to inquire as to their membership in the Union. Various employees had voluntarily apprised him of their membership in the Union but none had told him that Thomas was a member and he did not know on September 8, 1956, when Thomas was separated, that he be- longed to the Union. Kline offered the following explanation for Thomas' separation. He denied that he had been discharged because of his union activities and claimed that Thomas had been laid off for justifiable economic reasons. The Respondent's business, he related, customarily underwent a decline in the closing period of each year. In September 1956 there was not only the usual expected decline but there were prog- 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nostications of a general slump throughout the ensuing year. On top of all this Kline received a telephone call in July or August from the home office in Elkhart, Indiana, instructing him to curtail employment. He thereupon summoned his gen- eral foremen and told them that there must be cost reductions. Production of exist- ing orders, however, was not to be affected by such reductions. He instructed them to screen all categories of personnel and to report where cuts could be made. At the meeting of general foremen on Friday afternoon, September 7, the foremen pre- sented their reports. All favored retention of their employees except the plant engineer and the foundry superintendent. The former recommended dropping 1 maintenance employee and canceling a requisition for 2 new hires in the toolroom. The foundry superintendent stated that he could eliminate a sweeper. Acting upon these recommendations, Kline approved the layoff of the foundry sweeper and of Thomas in the maintenance crew. Before doing so, he had investigated Thomas' seniority standing and was satisfied that because Thomas was the junior employee in his department in his classification his layoff was in accord with the Respondent's seniority policy. Apart from the layoffs of Thomas and the foundry sweeper and the cancellation of the requisition for the two toolroom jobs, no other employee either in production or maintenance was affected by the Respondent's economy drive. Orders were given to eliminate all overtime, but according to Kline there had not been "too much" overtime work performed before September 7. At that time the Respondent employed 196 production workers. No new employees have since been hired. Presently, the Respondent employs 184 production employees and has a total force of 286 employees. Kline further explained that among the 12 employees comprising the maintenance crew on September 7, all but Thomas and the aforementioned Bobby Baker were skilled in certain craft duties. Thomas and Baker were the only helpers in the crew, and Baker had several months' seniority over Thomas. From the spring of 1954 the Respondent had conducted a plant expansion program which had neces- sitated an enlargement of its maintenance force. By September 1, 1956, this pro- gram had terminated with no further expansion work remaining to be done. This was a factor which motivated the decision by the plant engineer and the maintenance foreman, Wilson, to dispense with Thomas. Since his layoff on September 8, 1956, no employee has been brought into the maintenance department either by new hire or transfer to perform his duties, and on about January 1, 1957, Baker was trans- ferred to another department without a replacement. Thus, at present, there are no helpers employed in the maintenance crew, only skilled maintenance men. When- ever one of these employees requires assistance it is furnished by another skilled employee. B. Findings and conclusions 1. Coercion, restraint, and interference The Respondent offered no evidence to refute the testimony of the General Counsel's witnesses as to comments attributed by them to Foremen Wilson and Johnson, Vice President Martin, and Personnel Manager Hargis. Because nothing appears in this record and nothing occurred at the hearing to impeach the credibility of these witnesses, I find, in accord with their uncontroverted testimony, that the aforementioned supervisors and officials of the Respondent uttered the following remarks which coerced, restrained, and interfered with the activities of employees guaranteed by Section 7 of the Act in violation of Section 8 (a) (1) of the Act: (a) Foreman Wilson's directive to employees not to mention anything about the Union lest the Respondent hear of it and in consequence abandon a plan it had ap- proved for construction of a new building. (b) Foreman Wilson's interrogation of employee Baker as to his union views coupled with the observation that all he could do against the Union would help him in his job. (c) Foreman Wilson's remark to employee Sparks that employee Thomas had been discharged for giving out a union card; his remark to Sparks that if the plant were unionized he would lose his job and that other employees would be transferred from their jobs; and Wilson's directive to Sparks that he reveal to Personnel Manager Hargis what he knew about the Union coupled with his warning that Hargis suspected that he was supporting the Union. (d) Foreman Johnson's comment to employee Sachtleben concerning the Re- spondent's interest in ascertaining who had instigated the union drive, and his inter- rogation of Sachtleben as to the identity of his union visitors. (I do not regard as coercive Johnson's interrogation of Sachtleben as to his union views or whether he had had an opportunity to sign a union card particularly as Sachtleben conceded that Johnson had not come to him to find out about the Union; nor do I regard NIBCO, INC. 285 Johnson's suggestion to Sachtleben that he take a stand about the Union one way or the other as coercive, especially as Sachtleben conceded that Johnson did not indicate how he should stand. I did not gather the impression from Sachtleben's account of these remarks that there was anything more involved in them than casual conversation.) (e) Personnel Manager Hargis' interrogation of employee Sachtleben to determine the identity of his union visitors. (f) Vice President Martin's interrogation of employee Wheeler to determine whether he knew certain representatives of the Union; Martin's interrogation of Wheeler as to compensation by the Union for activities in its behalf; and Martin's accusation to Wheeler that he knew he was actively supporting the Union. The Respondent argues that the above-detailed conduct should not be found vio- lative of the Act because the remarks were uttered in a spirit of friendliness, were not coercive in content, or constituted privileged free speech, and because General Manager Kline had imposed a strict rule of neutrality upon his supervisors in which he forbade them to interrogate employees as to their union views or activities or to influence their views. Even if spoken in a spirit of friendship the remarks under consideration were reasonably calculated to have a coercive effect, and are therefore proscribed. They therefore do not fall within the ambit of free speech. That Kline may have forbidden these coercive interrogations and warnings of reprisal by his supervisors is immaterial for his instructions to these supervisors were never com- municated to the rank-and-file employees and their comments were not neutralized by appropriate repudiation. Finally, the Respondent contends that because the Union had claimed to represent a majority of its employees it had a right to interrogate these employees to determine the correctness of the Union's claim. Assuming this posi- tion to have been correctly stated, the facts show more than mere interest in the validity of the Union's claim to have been involved in the several interrogations. Thus Foreman Wilson's interrogation of employee Baker as to his union views was coupled with a comment which could have been construed as a promise of benefit or a threat of reprisal; Foreman Johnson interrogated Sachtleben as to the identity of persons who came to him from the Union and this interrogation was clearly related to his coercive remark concerning the Respondent's interest in the identity of the Union's instigator; Hargis' interrogation of Sachtleben also sought identification of union adherents; and Martin's questioning of Wheeler was designed to disclose his union ac- tivities. These were not merely casual inquiries for the purpose of investigating the Union's claim of representation, but were patent attempts to secure information as to the union activities and sympathies of specific employees in a manner prohibited by the Act. 2. Discrimination All elements necessary to support the allegation of the complaint that Thomas was unlawfully discharged because of his union activities are clearly established by the record. These are that he had taken a leading part in the instigation and promotion of the drive to unionize the Respondent's employees, that his activities were suspected or known to the Respondent as revealed by Foreman Johnson's remarks to employee Sachtleben, that there were overt expressions. of opposition and hostility to the Union from the Respondent's supervisors and officials notably at the high level of the Respondent's vice-presidency, that the Respondent's agents had committed unlawful coercive conduct in opposing the Union's progress, and that Thomas had been discharged in the midst of the Union's campaign at a time when the Respondent's supervisors were attempting to identify the employee who was sparking the union movement. In addition to these circumstances strongly pointing to discrimination, there is the more direct evidence contained in the admission of Thomas' foreman, Wilson, that he had been discharged for activity in behalf of the Union. This is forceful proof which has not been overcome by the Respondent's economic defense designed to show that Thomas was laid off merely as the result of an economy program. I am satisfied that he was laid off, and not discharged, but find nevertheless that this action was unlawfully motivated. In the face of the General Counsel's compelling evidence, I am not convinced that it was the mere necessity for economy, as related by Kline, which produced the selection for layoff of only 2 employees out of hundreds, 1 of whom coinci- dently happened to be so leading a figure in the union movement as Thomas. In concluding that Thomas was discriminatorily selected for layoff it is not necessary to find, as the Respondent suggests, that General Manager Kline was personally aware of Thomas' activities or was himself unlawfully motivated, for it was not he who selected Thomas but the maintenance superintendent in concert with Fore- man Wilson as to whom there is abundant evidence to show his discriminatory motives 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as well as his uncontroverted admission that Thomas was in fact discharged for union activity. I am persuaded that Wilson, probably out of fear of the effects of unioniza- tion on his own job, as evidenced by his above-related comments, had selected Thomas for layoff under the guise of economy to impede the Union's progress by get- ting Thomas out of the plant. Whether Kline would have authorized such action had he been aware of Wilson's motive, or whether Wilson's conduct was in opposition to Kline's instructions is immaterial to a finding of violation by the Respondent, for Wilson was its agent and was acting within the scope of his agency in selecting Thomas for layoff. By such conduct the Respondent violated Section 8 (a) (3) of the Act. The foregoing finding does not preclude the fact that Thomas might eventually have been separated from his job for justifiable reasons. The record shows that the Respondent has reduced its maintenance force since Thomas' departure for valid reasons through the transfer of Baker, the other helper, from the department and no employees- have been brought into the department as replacements for Thomas or Baker. This circumstance, however, does not affect the foregoing finding of violation but pertains only to the remedy as indicated hereinafter. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. It has been found that the Respondent had on September 8, 1956, discriminatorily laid off employee Lewis R. Thomas and that it has since failed to reinstate him to employment. It will, therefore, be recommended that the Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges, subject to the following conditions. The record contains evidence which, as I have indicated, shows that absent the discrimination against him Thomas might nevertheless have been sepa- rated from his employment because of a reduction in the Respondent's maintenance work. If there is now insufficient work to warrant Thomas' employment by the Respondent either as an employee of its maintenance department or in any other equivalent job in which he might have been employed absent the discrimination against him, it is recommended that the Respondent not be required to offer him immediate reinstatement, but that it be required to place his name on a preferential hiring list and that he be offered employment therefrom as work requiring the services of a maintenance helper in the maintenance department becomes available or as work in any other department for which he may be qualified becomes available and before any other person is hired for such work. If any other person has been hired since the close of the hearing to perform such work, it is recommended that he be dis- missed and that Thomas forthwith be offered reinstatement. It shall also be recommended that the Respondent make whole Thomas for any loss he may have suffered because of the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, or placement on such preferential list, as the case may be, less his net earnings during said period, with back pay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As it appears that he might ultimately have been separated from employment even if he had not on September 8, 1956, been discriminatorily laid off, this possibility will be taken into consideration in de- termining the back pay due him in compliance with this recommendation. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices may reasonably be anticipated. It will therefore be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Sec- tion 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: LOCAL NO. 48 287 CONCLUSIONS OF LAW 1. Nibco, Inc., is an employer within the meaning of Section 2 (2) of the Act, and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Lewis R. Thomas, thereby discouraging the free exercise of rights guaranteed by Section 7 .of the Act and discouraging membership in and activities for the above-mentioned labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. 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.] Local No. 48, Sheet Metal Workers International Association, AFL-CIO, and its agents, W. J. McDowell and T. E. Reid [Gads- den Heating and Sheet Metal Company] and Mark Louis Talia- ferro Sheet Metal Workers International Association , AFL-CIO, and its agent, C. J. Heckel and Mark Louis Taliaferro. Cases Nos. 10-CD-76 and 10-CD-77. October 31, 1957 DECISION AND DETERMINATION OF DISPUTE On December 31, 1956, Mark Louis Taliaferro filed charges with the Regional Director for the Tenth Region, and amended charges thereafter, alleging that Local No. 48 and its agents, McDowell and Reid, and also the International and its agent, Heckel, had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice. The hearing was held at Gadsden, Alabama, on' February 28 and March 1, 1957, before Louis Libbin, hearing officer. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing were free from prejudicial error and are hereby affirmed. All parties filed briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS Or FACT 1. Leach Manufacturing Company is engaged in commerce within the meaning of the Act. 119 NLRB No. 30.