Fleming Manufacturing Co., Inc.

452 DECISIONS OF. NATIONAL LABOR RELATIONS. BOARD Fleming Manufacturing Company, Inc. and International Associ- ation of Machinists, AFL-CIO. Case No. 14-CA-1531. Novem- ber 12, 1957 DECISION AND ORDER On April 9, 1957, Trial Examiner Louis Libbin issued his Inter- mediate 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. exceptions to the Intermediate Report and a supporting 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 [Members Rodgers, Bean, and Jenkins]. 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- mediate Report, the exceptions, the briefs, and the entire record`.iii this case, and hereby adopts the findings,' conclusions, and recom_ mendations 2 of.the Trial Examiner. . ORDER .. Upon the entire record. in this case, and pursuant to Section 10:(c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that; the -Respondent, Fleming Manufacturing: Company, Inc.-, -Cuba,' Missouri;, its officers, agents, successors, and; assigns, shall: 1. Cease and desist from: (a) Making unilateral' changes in the hours of 'employment and schedule of work or other terms and conditions of employment, with-: out first consulting the International Association of Machinists, AFL-. CIO, or in any other similar or. related manner refusing to. bargain collectively with the aforenamed Union as the exclusive bargaining agent of all production and maintenance employees at its Cuba, Missouri, plant, excluding office clericals, guards, watchmen, pro fessionals, and, supervisors as defined in the Act. 1 The Trial Examiner found that Foreman Sigler prohibited employees from, and threatened employees for, engaging in union talk during working time, and, that the Re- spondent thereby violated the Act. We do not adopt these findings as the testimony per- taining to the incident in question is ambiguous and conclusionary in form. In the absence of exceptions from the General Counsel, we adopt, without necessarily approving, the Trial Examiner's recommendation that the Respondent not be ordered to restore the discriminatorily changed work schedule and the discriminatorily abolished Paid coffee periods with free coffee. 119 NLRB No. 55. FLEMING MANUFACTURING COMPANY, INC. 453 (b) Discouraging membership in the above-named Union, or in any other labor organization of its employees, by discriminating with respect to its employees' terms .and conditions of employment. (c) Interrogating employees concerning their feeling and attitude toward the Union and their position with respect to a scheduled Board election in a manner constituting interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. (d) Promising benefits to employees for voting against the Union, threatening employees with economic reprisals and loss of benefits if. or because, the Union was designated as bargaining representative, and imposing economic reprisals against its employees. for desig- nating the Union as such representative. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of. their right to self-organization, to form, join, or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of, collective 'bargaining or other mutual aid or' protection, or to re- frain'-from any or all of such activities, except to the extent that such right may be affected by an agreement requi'ring' membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. . 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the International As- sociation of Machinists, AFL-CIO, as the exclusive representative of all employees in the above-described appropriate unit with respect to the hours of employment, the schedule of work, coffee breaks, and the service of free coffee. . (b) Make whole all employees, in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimina- tory reduction of the workweek. ,(c) 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 under the terms of this Order. - (d) Post at its plant in Cuba, Missouri, copies of the notice at- tached hereto marked "Appendix." 3 Copies of said notice, to be fur- nished by the Regional Director for the Fourteenth Region, shall, after being signed by the Respondent's authorized representative, be 3 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." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent engaged in unfair labor practices by discharging Raymond Richardson and by other con- duct as to which no violations have been found. 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, we hereby notify our employees that : WE WILL NOT make unilateral changes in the hours of employ- ment and schedule of work or other terms and conditions of em- ployment, without. first consulting the International Association of Machinists, AFL-CIO, or in any other similar or related manner refuse to bargain collectively with the aforesaid Union as the exclusive representative of all our employees in the appro- priate unit described below. WE WILL NOT discourage membership in the above-named Union, or in any other labor. organization of our employees, by discriminating with respect to our employees' terms and condi- tions of employment. WE WILL NOT interrogate our employees concerning their feel- ing and attitude toward the Union and their position with re- spect to a scheduled Board election in a manner constituting interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT promise benefits to employees for voting against the Union, nor threaten employees with economic reprisals and loss of benefits if, or because, the Union was designated as bar- gaining representative, nor impose economic reprisals against our employees for designating the Union as such representative. 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 labor organizations, to join or assist the above- FLEMING MANUFACTURING COMPANY, INC. 455 named or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment in conformity with Section 8 (a) (3) of the Act. EVE WILL make whole our employees for any loss of pay suffered by them as a result of our discriminatory reduction of the work- week. WE WILL, upon request, bargain collectively with the Interna- tional Association of Machinists , AFL-CIO, as the exclusive rep- resentative of all our employees in the appropriate unit herein described with respect to the hours of employment, the schedule of work, coffee breaks, and the service of free coffee. The bargaining unit is: All production and maintenance employees at our Cuba, Missouri, plant, exclusive of office clericals , guards, watch- men, professionals, and supervisors as defined in the Act. FLEMING MANUFACTURING COMPANY, 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 duly filed by International Association of Machinists, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued his complaint, dated December 19, 1956, against Fleming Manufacturing Company, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that (1) Since on or about July 16, 1956, the Union has been the exclusive collective-bargaining representative in an appro- priate unit of production and maintenance employees at Respondent's plant, located at Cuba, Missouri; (2) during the period from July 17 to 30, 1956, Respondent refused to bargain collectively with the Union as said exclusive representative by cutting and changing the hours of work and discontinuing the morning coffee break, all-without notice to or consultation with the Union, by discharging employee Raymond Richardson, and by the conduct of Foreman Sigler in threatening employees with discharge and other economic retaliation for engaging in union activity; (3) the Respondent engaged in the foregoing conduct for the purpose of retaliating, and in reprisal, against its employees for exercising rights guaranteed by the Act; (4) Respondent discharged employee Raymond Richardson on July 30, 1956, because its employees had engaged in the exercise of rights guaranteed by Section 7 of the Act; (5) Superintendent McClelland interrogated employees about their union activities and threatened to discharge an employee when he indicated his support for the Union; (6) Foreman Sigler on certain specified dates 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened employees with cutting the working hours, eliminating the coffee break, discharge, and other acts of reprisal because the employees exercised rights guaranteed by Section 7 of the Act; and (7) by the foregoing conduct Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In its duly filed answer, as amended, the Respondent admitted that it cut and changed-the • hours of work and eliminated the coffee break; denied that such conduct constituted a refusal to bargain but affirmatively alleged that such changes were necessary and justified as a matter of business economics and to avoid layoffs; denied the com- mission of any unfair labor practices; and affirmatively alleged that Raymond Richardson was discharged for cause. Pursuant to due notice, a hearing was held on February 18 and 19, 1957, at Steelville, Missouri. All parties were represented at the hearing and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and there- after to file briefs as well as proposed findings of fact and conclusions of law. The Respondent's motion to dismiss the complaint, made at the conclusion of the hearing and upon which -I reserved ruling, is disposed of in accordance with the findings of fact and conclusions of law made below. Subsequent to the hearing, the General Counsel and the Respondent filed briefs, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 1 The -Respondent is, and has been at all times material hereto, a Missouri cor- poration with its principal place of business at Cuba, Missouri, where it is engaged in the manufacture of concrete blockmaking machinery and plant equipment. During the calendar year 1955, the Respondent, in the course and conduct of its business operations, shipped directly from points within the State of Missouri to, points outside the State of Missouri goods valued in excess of $50,000. Upon the basis of the above admitted facts, I find that the Respondent is, and at all times relevant hereto was, engaged in commerce within the meaning. of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent and the General Counsel stipulated , and I find, that International Association of Machinists , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction: the issues By a letter, received by the Respondent on June 30, 1956, and signed by Union Business Agent Whitson, the Union informed the Respondent that a majority of its employees in a production and maintenance unit had authorized the Union to. represent them for collective-bargaining purposes, and requested a meeting for the purpose of negotiating a collective-bargaining agreement. About the same time the Union filed with the Board's Regional Office a petition for certification as the collective-bargaining representative of the Respondent's employees in such a unit. On July 5, 1956, J. Marvin Krause, the Respondent's counsel, met with Union Business Agent Whitson at the Board's Regional Office in St. Louis, Missouri, and a consent-election agreement was executed, providing for the holding of an election by the Board on July 16, 1956. The Union won the election and on July 24, 1956, was certified by the Regional Director as the exclusive bargaining representative of the Respondent's employees in a production and maintenance unit. After the Union won the election , but before receiving the Regional Director's certificate, Manager McClelland admittedly, without notice to or consultation with the Union, changed and reduced the hours of work and eliminated the coffee break, unilateral conduct which the General Counsel contends constituted an unlawful refusal to bargain. The General Counsel contends, as the complaint alleges, that both before and after the election the Respondent, through its Plant Manager 1 The findings in this section are based on the allegations in the complaint and admissions In Respondent's answer. FLEMING MANUFACTURING COMPANY, INC. 457 McClelland and Foreman Sigler , engaged in unlawful conduct by interrogating and making threatening and coercive statements to employees and by discharging em- ployee Richardson on July 30, 1956. The General Counsel also contends, as the complaint further alleges, that the Respondent's unlawful conduct after the election, including the discharge of Richardson , was in retaliation or reprisal against the employees for selecting the Union as their collective -bargaining representative and for the purpose of undermining the Union's majority status. The Respondent con- tends that: The reduction and changes in hours, as well as the elimination of the coffee break, were dictated by business considerations; Foreman Sigler is not a supervisor whose conduct is imputable to Respondent; in any event, any state- ments by Sigler and McClelland constituted permissible expressions of free speech not violative of the Act; and Richardson was discharged for inefficiency and improper work. I will first treat with the issue of the supervisory status of Foreman Sigler and Foreman Brady, to whom some of the unlawful statements are claimed to have been made by Sigler. B. Supervisory status of Foremen Sigler and Brady 2 The General Counsel contends that William Sigler, foreman of the subassembly department, is a supervisor within the meaning of the Act, and that Joseph Brady, machine-shop foreman, is not a supervisor within the meaning of the Act. The Respondent contends that Sigler and Brady have the same authority and that neither is a supervisor within the meaning of the Act. The Respondent manufactures concrete block machinery and plant equipment. K. R. McClelland, plant manager, is in overall charge of all production, engineering, and service. He has an office in the engineering department and divides his time equally between the engineering and production departments. He is the only one at the plant with the authority to hire and discharge employees. The production work is performed in one large open room with no physical partitions. Respondent employs approximately 32 production and maintenance employees, with 12 to 15 employees in the subassembly department under Foreman Sigler, the largest depart- ment in the plant. Various operations are performed in the subassembly depart- ment, such as sawing, burning, grinding , drilling, and welding. Sigler, who is in charge of all the operations in this department , assigns the work and directs and places the men within his department. He exercises his independent judgment in determining where the employees are needed and where they can best work in his department. In the exercise of this function, he has the authority to, and does, transfer the men to various jobs within his department. If the foreman of another department makes a request of Sigler for the use of a welder , Sigler is the one who decides which specific welder to release . He also has the authority to grant leaves of absence to employees in his department for a temporary period of time, and to adjust grievances of employees in his department involving conditions of employment, except that he may not discharge an employee. Sigler testified that it is part of his job to keep the production in his department going. If necessary, he will train or instruct an employee, or help out by doing some production work himself, as he is qualified to perform all the operations in the department. However, no specific production work is assigned to Sigler, and, unlike the employees in his department, Sigler does not fill out a job card when he does production work. Sigler receives $2 an hour, which is more than is paid to anyone in his department, the lowest being $1.20 an hour. Joseph Brady is foreman of the machine-shop department, which has only two other employees. There are two lathes and a shaper in this department. Louie Ezell operates the shaper; Howard Summers operates the smaller lathe; and Brady operates the larger lathe. Unlike Sigler, Brady is a full-time production worker. He sets up his own lathe just as Summers does in connection with his lathe. Like Summers and Ezell and the other production workers, but unlike Sigler, Brady uses a job card on which he records the time he starts and completes every job on which he works. On occasion, when Ezell or Summers runs out of work, Brady will tell them what to do next . He has never transferred anyone within his depart- ment and has never been informed that he had such authority. The work in this department is more specialized and precise , requires greater skill, and is generally higher paid. Brady has been a machinist since 1937 and receives $1.80 an hour; while Summers, who operates the smaller lathe, receives $1.50 an hour. 9 The factual findings in this section are based on evidence and testimony which is: either admitted , undenied, or mutually consistent. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The machine-shop department is located right next to Sigler's department. Sigler testified that when he receives the work orders that come into his department, "I issue the orders out to Brady and all the different men that come in there." When Plant Manager McClelland prepared a list of the production and maintenance em- ployees-in the bargaining-unit, after Union Business Agent Whitson had•requested.such a list of Respondent's Attorney Krause, he included the name of Joseph Brady but not of William Sigler. The employees also regarded Brady as a rank-and-file employee, as evidenced by their selection of Brady as one of the employee repre- sentatives on the shop committee which at one time functioned at the plant. Upon the basis of the foregoing and the entire record considered as a whole, I find that William Sigler has the authority, in the interests of the Respondent, to transfer, assign, responsibly direct, and adjust the grievances of, other employees, and that the exercise of such authority is not of a mere routine or clerical nature, but requires the use of independent judgment. On each of the foregoing grounds, I find that William Sigler is a supervisor within the meaning of Section 2 (11) of the Act. Unlike Sigler, Joseph Brady works as a full-time production worker in the same manner as the other production workers. Plant Manager McClelland admitted that at the time he appointed his foremen, he did not tell them exactly what their authority would be. The record shows that Brady does not exercise the authority exercised by Sigler. The two men working with Brady are skilled employees, performing specialized work, with little need for supervision. Brady's higher pay may be accounted for by the fact that he operates the larger lathe and is an ex- perienced machinist of about 20 years' standing. Any direction which Brady may on occasion give the other two employees appears to be of a routine nature. Upon the basis of the entire record considered as a whole, I am convinced and find that Joseph Brady does not possess any of the attributes of a supervisor set forth in Section 2 (11) of the Act.3 C. Interference, restraint, and coercion 1. Plant Manager K. R. McClelland During the week preceding the union election of July 16, 1956, Plant Manager McClelland admittedly called a number of employees individually into his office .and interrogated them about their feelings and attitude toward the Union and the impending election. During these interviews McClelland had in his possession a sheet of paper, containing two columns of names of Respondent's employees. He explained to the employees that one column contained the names of employees who, he believed, were in favor of the Union; and the other column contained the names of employees who, he believed, were opposed to the Union or as to whose attitude he was uncertain. The sheet contained a total of more than 15 names. 'McClelland admitted that he did not have an independent recollection of just what he said to each employee and that he may have made different statements to different employees. He further testified that, in substance, he asked the employee how he felt "about the election coming up or about the Union"; expressed the view that the Company did not have as much money for pay increases as he would like to give but that they were doing "pretty well" with what he had and would appre- ciate it if he could think that the employee "was on our side in this affair"; that he tried to show the employee, who he thought was "uncertain or amenable," that "we would rather not have the Union," and that he told them he "had an idea as to who was for the Union and it looks like there was more on the other side that don't favor the Union." When asked if he was campaigning for the Company, he replied, "Yes, you could put it that way." a There is testimony in the record that on one occasion shortly after McClelland began to work for the Respondent. Brady told McClelland that he could no longer work with Campbell, who was operating the shaper at that time, and that McClelland gave Campbell the choice of resigning or being discharged. Brady made no recommendation to McClelland at that time. There is also testimony than on another occasion, Sigler recommended that Louie Ezell, the shaper operator, be discharged : that Brady argued against Ezell's dis- charge ; and that McClelland told Sigler he could not follow his recommendation because Ezell was not in Sigler's department. In my opinion, the foregoing evidence is insufficient to warrant or support a finding that Joseph Brady has the authority effectively to recom- mend the discharge or retention of other employees so as to render him a supervisor within the meaning of Section 2 (11) of the Act. FLEMING MANUFACTURING COMPANY, INC. 459 In connection with these individual interviews, employees Samuel Lloyd Cantley, Estel R. Ware, and Hoyt Hughes credibly testified, without contradiction, as follows: On Monday morning, July 9, 1956, Foreman Sigler told Cantley that Plant Manager McClelland wanted to see him in his office. McClelland wanted to know how Cantley "stood on this Union." Cantley replied that he intended to "go along with the boys." McClelland showed Cantley a list of names that were for the Union and a list against the Union; the shortest list contained the names of those in favor of the Union. Cantley asked McClelland, "Why call me in?" McClelland replied, "Because we want to keep you, Sam." In response to Cantley's query as to whether he would be discharged for joining the Union, McClelland replied in the negative. At that point the coffee bell rang, and Cantley left McClelland's -office. About 9:30 in the morning on the Monday or Tuesday preceding the election, McClelland called Estel Ware into his office, showed him a sheet of paper con- taining two lists of names, told him which column was for the Union and which -column was against the Union, and asked where he stood on the Union. About .5 or 6 names in the column in favor of the Union, including that of Joseph Brady, were underlined in red pencil. McClelland stated that the union men were the highest paid and wrote down the salaries of those whose names were underlined in red pencil. Cantley's name appeared in the column against the Union . McClel- land put a check beside Cantley's name and stated that he was the only one they had .any doubt about. However, Ware's name appeared in both columns. McClelland .asked Ware in which column he wanted his name left. Ware left the office without committing himself. Hoyt Hughes was called into McClelland's office about July 10 or 12. McClelland asked Hughes, "What are the boys going to do about the Union around here?" Hughes replied, "I guess they are going to organize a union." McClelland then asked, "What are you going to do about it?" Hughes stated, "I guess I will vote with the men." McClelland told him that "I think you are doing wrong," and -showed him the list of names that were for the Union and the list against the Union. When Hughes asked why some names were in both lists, McClelland stated that that was the way "he wrote them down." McClelland testified that the reason he interrogated the employees in the above manner was that he wanted to find out if there were enough men in the plant in favor of an election. He admitted that he was not aware of the Union's letter claiming majority representation, but that he knew that the Union "had been certifi- cated for election, that an election was O. K.'d and granted." Thus, the interro- gation cannot be explained as an understandable desire to ascertain the Union's majority status before entering into collective-bargaining negotiations 4 Nor can it be explained as an effort to prepare for any litigation, as no litigation was pending or threatened. No useful purpose could be served by. merely ascertaining whether sufficient employees favored the Union to warrant an election as McClelland ad- mittedly knew that the Board had already approved an election.5 The nature of the .inquiries and statements made by McClelland clearly shows that his purpose was to ascertain the voting intentions of the employees, to identify the union adherents, to foster the impression that management knew which employees were for or against the Union, and to intimidate the employees into voting against the Union in the forthcoming election. Conducted in the confines of his office by the Re- spondent's highest representative at the plant who had the exclusive power of hiring and firing, such planned and systematic individual interrogation, during which management's opposition to the Union was revealed and the employee was re- quested to disclose his position with respect to the forthcoming election and his .attitude and feeling toward the Union, reasonably tended, under all the circumstances, to interfere with, restrain, and coerce the employees in the exercise of their statutory rights, in violation of Section 8 (a) (1) of the Act.6 Especially is such conduct violative of Section 8 (a) (1) of the Act, in view of Respondent's other unfair labor practices, herein found.? 4 B lue Flash Express, Inc., 109 NLRB 591. s Moreover , the Board has long and consistently held that whether a union has a sufficient showing of interest to warrant an election is solely a matter for administrative determina- tion by the Board and not litigable by any party. 6 See, e. g., anion News Company, 11.2 NLRB 420, 423-424 ; Franchester Corporation, 110 NLRB 1391. 7 See, e. g., Lien Mills Company, 116 NLRB 96 ; Cranston Print Works Company, 115 NLRB 537, 538. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the record does not support the allegation in the complaint ,that Mc- -Clelland threatened to discharge an employee when he indicated his support for the Union . Accordingly, I will recommend dismissal of this allegation. 2. Foreman William Sigler Before the union election of July 16, 1956, Respondent's employees admittedly worked a 9-hour day, 5 days a week, from 7 a. m. to 12 noon and from 12:30 to 4:30 p. m., with a half-hour lunch period from 12 to 12:30 p. m. There was also a 10-minute coffee break in the morning from 9:30 to 9:40 when the employees congregated in the plant vestibule and, on paid time, were served coffee with milk and sugar, admittedly free of charge . The employees were also working a con- siderable amount of overtime, evenings and Saturday mornings. a. Before the election of July 16, 1956 (1) Threats of reprisal and promises of benefit During July before the election, Sigler came to Joseph Brady's machine during working hours and toldhim that if the Union .got in , "the coffee break be cut out, the hours would be cut to eight hours a day , and that there would be no overtime." On Saturday afternoon , July 7, Sigler and his wife visited the home of Samuel Lloyd Cantley, employed as a welder at Respondent 's plant for about 3 years. During the course of his visit, Sigler stated that he came to "help work this thing up"; that Cantley did as much work as any two men in the plant ; and that Cantley deserved to earn more money but would not get it unless he "agreed to go along with us." Cantley made no commitment . He and Sigler never visited each other's home either before or after this incident. On the morning of July 9 when Sigler told Cantley that Plant Manager McClelland wanted to see him in his office where he was interrogated, as previously found , Sigler also told Cantley that "if they had- a union in there we wouldn't have any more coffee breaks and we wouldn't get anymore overtime." About a week before the election, Sigler told employee Estel Ware at the latter's workbench that if the Union got in, there would be no more coffee break and the plant would be put on a 40-hour -week basis. One day in July, Sigler met employee Hoyt Hughes at the water fountain after quitting time and asked, "What is going on here about this union business ?" When Hoyt stated that he "guess[ed] they are trying to organize the Union ," Sigler replied, "they are going to be sorry . . . no overtime, no more coffee break, no more 45 hours a week." At a meeting of the employees called at the plant by the Respondent during working hours on Friday, July 13, officials of the Respondent told the employees that they did not want or need a union and pointed out the benefits the employees had re- ceived in the past without a union , as hereinafter found in more detail . After the employees had left the meeting, Harold Steel, employed . by the Respondent for about 4 years, was talking to Sigler . The Respondent's Vice President - Schreiter, who had addressed the employees at the meeting, - was also present and stated that "if the Union came in and got tough with the Company the Company was going to get tough with the Union ." Sigler added that "it'd be damned tough on the men." The above findings are based on the testimony of employees Brady, Cantley, Ware, Hughes, and Steel. William Sigler has been employed by the Respondent in various capacities for about 12 years, the last 2 years as foreman of the subassembly department . He has known Mr. Fleming, Respondent's president, during that en- tire period . Sigler admitted that he has no use for unions, that he has strong feelings on the subject . and that "I have thrown a few hints that I didn't like them." He also admitted that one day on the dock during a rest period, he told Brady that "maybe they will take the coffee break away from us and the coffee." He admitted that he visited Cantley's home on Saturday afternoon , July 15, but claimed that it was after the election . According to Sigler, he told Cantley that he did not know "what is going to become of it," that the "men can do what they want to"; but that he did not think "that is going to work out." He denied telling any employee that he was going to beat the Union and make it tough on the men, but did not deny having made the statements attributed to him by employees Ware and Hughes and by employee Cantley on the morning of July 9. Sigler testified in a blustering manner and did not impress me as a credible witness by his demeanor on the stand . Under all the circumstances , and in view of Sigler's admissions, I credit the testimony of Brady, Cantley, Ware, Hughes, and Steel, and FLEMING MANUFACTURING COMPANY, INC. 461 find that Sigler made the statements attributed to him on the occasions to which these witnesses testified . I find that in July, - before the Board election scheduled for July 16, Foreman Sigler told employees that the coffee break and overtime work would be eliminated and the workweek reduced from 45 to 40 hours if the employees selected the Union as their bargaining representative . With respect to the incident at Cantley's home, I find, under all the circumstances disclosed by the record and in view of Sigler's threat to Cantley the following Monday, that Sigler promised Cantley more pay if he would agree to side with the Respondent in the forthcoming election. 2. Prohibiting union talk on company time While employee Harold Steel was at his machine during working time , he noticed a bulletin being posted on the bulletin board and asked Sigler , his foreman, who happened to be near him, what the bulletin was about . Sigler did not answer him. Steel's machine was not running at the time because he was in the process of getting some tools from his toolbox in connection with his work. Steel noticed that employee Bud Ware was looking at the bulletin board. When Ware proceeded to get some tools at the tool cabinet located behind Steel's machine , Steel asked Ware about the bulletin. Ware stopped momentarily, told Steel it was about the union election being scheduled for the following Monday, and walked on to the tool, cabinet . Immediately thereafter , Sigler "bawled" Steel out "for talking union in the plant" and "threatened " Steel or anyone else that was "talking union in the shop." This momentary incident did not interfere with anyone's production. Prior to this time Sigler had never told Steel to stop talking during working hours. The foregoing is based on the credible testimony of employee Harold Steel . Sigler denied threatening to discharge Steel or anyone else for talking about the Union on company premises . He testified that on the occasion in question Steel 's machine was shut down, and that he told Steel to "break it up until after work hours" be- cause they were holding up production . As previously found , I do not regard Sigler as a credible witness. I credit Steel 's version of this incident and find that Sigler prohibited Steel from talking about the Union during working time and threatened him or any other employee ' for engaging in union talk during working time. I fur- ther find that it was clearly apparent that the brief conversation between employees Steel and Ware did not interfere with their work. On the other hand, not only did Foreman Sigler engage in anti-union talk to em- ployees during working time , as herein found, but higher management representa- tives deliberately interrupted production to campaign against the Union during work- ing time. Thus, as previously found , Plant Manager McClelland called individual employees away from their work into his private office where he interrogated them about the Union and admittedly campaigned for the company in the impending elec- tion. Also, on the Friday afternoon preceding the election scheduled for the follow- ing Monday, Vice President Schreiter came to Estel Ware's workbench and asked what he thought about the Union . When Ware replied that he did not know, Schreiter stated, "I can tell you one thing . if the plant goes union, . there won't be any stock parts made in the winter time" and that "the shop wouldn't go more than forty hours a week." 8 About 4 p. m. that same afternoon, management stopped production and requested the employees to assemble in the vestibule where, on paid time, they were served free coffee, beer , and Coke and were addressed by McClelland, Vice President Schreiter , and T. A.. Donihee, Respondent's secretary and sales manager, on the Company's position on the Union and the forthcoming election. Donihee spoke first. He told the employees that he saw no need for a union; . pointed out the . benefits received by the employees without a union; and wanted to know why the shop committee could not work things out with manage- ment without bringing the Union in. This reference was to a 3-man employee com- mittee . which in the past had met with a committee of 3 management representa- tives, including . Donihee. Vice President Schreiter told the employees that they did not need a union; that the Company did not want a union ; and that if the em- ployees did not like what management was doing, they could go out the door any- time they wanted . He also spoke on the poor financial conditions of the Com- 8-As indicated in the subsequent footnote, I do not regard Schreiter as a credible witness and do not credit his denial of Ware's testimony in this respect. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany. McClelland also spoke of the employee benefits granted by Respondent in) the past, and explained the mechanics of the election.9 b. After the election of July 16, 1956 As previously found, the Union won the election conducted by the Board on July 16, 1956. Thereafter Plant Manager McClelland, admittedly without notice to or consultation with the Union, on July 20 cut the workweek from 45 hours to 40 hours and changed the work schedule and lunch period, and on July 23 eliminated the paid coffee period and the free coffee. Joseph Brady testified that on Friday evening, July 27, Sigler had the follow- ing conversation with him at the Cuba Bar in Cuba, Missouri: Sigler told Brady that- he (Brady) had a good job in the plant and a good future with the Company and "that it wasn't too late to get back on the right side of the fence." He then proceeded" to tell Brady "how tough he was going to make it on the men at the plant." Sigler said that they were going to :ship. the work out to various plants and then have the finished products returned; that they were going to lay the men off 1 week, call's them back the next, and repeat this procedure so that the men would not be able to draw unemployment compensation; that they were going to "starve" the men out;. that they were going to shift the men around from one department to another and: discharge a man for the first mistake he made because the "only reason they can( fire a man is for mistakes and poor work." Sigler then mentioned some specific cases. He said that they were going to put employee Bud Ware, a mold box as- sembler, on cutoff saws and if he made a mistake, they were going to fire him; that they were going to put Jerry Grayson, the toolroom attendant, on the grinding wheel: and if he did not use all the right tools, they would fire him; that he was going to take: employee Carl Sanders, whose regular job was holing out hydraulic cylinders, and' give him a job which Sigler knew Sanders could not do and that then he would fire him; and that he was going to discharge employee Richardson the following Monday. Sigler admitted having a conversation with Brady in the cafe. He testified that he was "beered-up a little bit" at the time and told Brady, "You can have all the union you want, I don't want any.. part of it." He admitted telling Brady that the: Company sent work out to be done because it was cheaper and done on better ma- chines, and that they would continue to do so. He generally denied having made the other statements attributed to him. I have already found that Sigler is not a. credible witness. Upon the basis of the entire record, and in view of the other threats of reprisals previously made by Sigler, I credit Brady's testimony and find that,. in substance, Sigler made the statements attributed to him by Brady. James Bailey was first employed by the Respondent on September 21, 1956. He- credibly testified, without contradiction, that during October and November, Sigler, his foreman, told him several times that he knew every man who belonged to the Union, that he could call them by name, that they were getting plenty of overtime "when this happened" but that "there would not be any more overtime" for the "ones that belonged to the Union," and that "the boys were getting coffee breaks each morning, but after the union trouble started they cut that out." Donald H. Jacques was first employed by Respondent on September 25, 1956.. He credibly testified, without contradiction, that while working overtime Sigler, his foreman, told him on several occasions "about what kind of deal it had been before this union trouble and what kind of a deal they were going to have after this." Jacques asked Sigler why they did not have any coffee breaks. Sigler re- plied that "they had coffee breaks before the Union came in." Sigler also stated D The findings with respect to this meeting are based on a composite of the credible testi- mony of Plant Manager McClelland and employees Brady , Ware, Gibson , and Steel. Donihee did not testify . On direct examination , Schreiter testified that he told the em- ployees it made no difference to him whether they joined the Union or not, that he ex- pressed no opinion as to his own position on the matter , that he stated that joining the Union would not get them any more money , and that he told them the Company had been losing money from the beginning. On cross-examination, he first testified that he did not say anthing about the Union . After further prodding, he admitted saying that the employees "could join or didn't have to join ." When asked if he did not indicate which po- sition he favored , he replied , "No, I don't think so." In response to a question by the Trial Examiner , Schreiter testified that he did not recall mentioning the 'Union but he "might have." Schreiter did not impress me as a reliable witness. Under all the circumstances, I do not credit his testimony where it is inconsistent with that of the above-named employees. FLEMING.MANUFACTURING COMPANY, INC. 463 that "as long as he was there he wouldn't give overtime to men that belonged to the Union." Upon the basis of the foregoing, I find that Foreman Sigler (1) warned an em- ployee that his future with the Company might be jeopardized by continued ad- herence to the Union; (2) told an employee that the Respondent would take eco- nomic retaliation against the employees for having designated the Union as their bargaining representative, by various stratagems such as layoffs on alternate weeks, so that the employees could not draw unemployment compensation, and transfers to new jobs in order to utilize the first mistake as an excuse for discharge; (3) led employees to believe that he knew the name of every union member and told them that he would not give any more overtime to the union men; and (4) told employees that coffee breaks were eliminated because the Union came in. c. Conclusions I find no merit in Respondent's contentions in its brief that Sigler's statements, as hereinabove detailed, are to be regarded as mere expressions of opinions pro- tected by Section 8 (c) of the Act. 10 In some respects, they were a reflection of similar statements made by as high a management representative as Vice President Schreiter, as previously found. They constituted direct threats of actual or possible economic reprisals and in some instances promises of benefits, and hence were coercive. I find that by the conduct of Foreman Sigler before the election in warn- ing employees that the coffee break and overtime work would be eliminated and the workweek reduced from 45 to 40 hours if they selected the Union as their bar- gaining representative, and in promising an employee more pay if he would agree to side with the Respondent in the forthcoming election; and by the conduct of Sigler after the election in warning an employee that his future with the Company might be jeopardized by continued adherence to the Union, in specifying various stratagems to which Respondent would resort to impose economic reprisals upon the employees for having designated the Union as their bargaining representative, such as laying employees off on alternate weeks to prevent them from drawing un- employment compensation and transferring employees to new jobs in order to utilize their first mistake .as: an' excuse for discharge, in threatening employees that he knew the names of every union man and that he would not' give any more overtime to union men as long as he was there, and in reminding employees that the coffee breaks were eliminated because the Union had been voted in as collective-bargain- ing respresentative, the Respondent has interfered with, restrained, and coerced the employees in the exercise of their statutory rights, in violation of Section 8 (a) (1) of the Act. As previously found, Sigler prohibited employee Steel from talking about the Union during working time and threatened him or any other employee for engag- ing in union talk during working time. I have also found that the brief conversa- tion between employees Steel and Ware did not cause any interruption in produc- tion. The Respondent had not promulgated any rule prohibiting the employees. from talking about the Union during working time. On the other hand, as previ- ously found, Foreman Sigler, Plant Manager McClelland, and higher officials of Respondent campaigned against the Union during working time on company premises and intentionally interrupted production to carry out their campaign. Un- derithese circumstances, I find that Sigler's conduct in this respect was discriminatory- and for the purpose of impeding the self-organizational efforts of the employees. Upon the basis of the entire record, and particularly in view of the inconsist- ency between Sigler's action against Steel and the conduct of Respondent's higher representatives, I find, as alleged in the complaint, that Sigler's conduct in pro- hibiting Steel from, and in threatening him and any other employee for engaging in, union talk during working time constituted interference, restraint, and coercion. within the meaning of Section 8 (b) (1) of the Act." I find no support in the record for the allegation in the complaint that Sigler told an employee that the Company had the names of the employees who had instigated the Union and that those employees would be fired after the election. According- ly, I will recommend dismissal of this allegation. Nor do I make any findings as to whether Secretary Donihee and Vice President Schreiter violated the Act in their '° See, e. g., J. S. Abercrombie Company, 83 NLRB 524, 530, enfd. 180 F. 2d 578 (C. A. 5). 11 Delta Finishing Company, 111 NLRB 659, 661; Franchester Corporation, 110 NLR&. 1391, 1393; See also united Steehvorkers of America, CIO v. Al. L. R. B., 243 F. 2d 593.. (C. A., D. C.). 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talks to the employees on the day of the plant meeting called by management be- for the election, as there are no allegations in the complaint with respect to them and the General Counsel takes no contrary position in his brief. D. The refusal to bargain 1. The appropriate unit; the Union's status as exclusive bargaining representative in said unit On June 29, 1956, the Respondent and the Union, with subsequent Board ap- proval, executed a consent-election agreement for the conduct of an election by the Board on July 16 in a unit of all production and maintenance employees of the Respondent at its Cuba, Missouri, plant, but excluding office clericals, guards, watchmen, professionals, and supervisors as defined in the Act. The complaint al- leges, the parties stipulated, and I find, that the above-described unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In a secret-ballot election conducted on July 16, 1956, under the supervision of the Regional Director for the Fourteenth Region, the Union was selected as bar- gaining representative by a majority of the employees in the said appropriate unit. On July 24, 1956, the Union was accordingly certified as the exclusive bargaining representative of the employees in the said appropriate unit. The complaint al- leges, the Respondent's answer admits, and I find that at all times since July 16, 1956, the Union has been, and is, the exclusive representative of the employees in said appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, within the meaning of Section 9 (a) of the Act. 2. The refusal to bargain The Respondent admitted that prior to the election, the employees worked 9 hours a day, 5 days a week, for a total of 45 hours a week, and that the work schedule was from 7 a. m. to 4:30 p. m., with a half hour lunch period from 12 to 12:30 p. m. The Respondent also admitted that prior to the election the em- ployees were permitted to have a 10-minute coffee -break at the plant on paid time from 9:30 to 9:40 a. m., and that coffee, milk, and sugar were furnished by Respondent free of charge. Plant Manager McClelland admitted that he was present at the counting of the ballots, which showed that the Union had received a 'majority of the votes, cast in the election. He also admitted that 4 days later, on July 20, without prior notice to or consultation with any representative or official of the Union, he reduced the hours of work from 45 to 40 hours a week, and changed the work schedule to 8 hours a day, from 8 a. m. to 5 p. m., with a 1-hour lunch period from 12 to 1 p. m. He further admitted that on July 23, without prior notice to or consultation with any representative or official of the Union, he eliminated the paid coffee period and the free coffee, milk, and sugar. That such unilateral action with respect to wages, hours, and working conditions was in derogation of Respondent's obligation to bargain with the Union as the duly elected exclusive bargaining representative is now so well settled as to require no citation of authority. It is not material that the unilateral action was taken before Respondent received the document from the Regional Director certifying the Union as the exclusive representative and before any new bargaining request was made by the Union. The Union's majority was established on July 16, 1956, when the tally of ballots was counted. On that day McClelland admittedly was aware of the establishment of the Union's majority status. The Board has held that once any employer becomes aware of a properly designated bargaining representative, he may not unilaterally make changes in the employees' terms and conditions of em- ployment, without first giving the representative an opportunity to bargain col- lectively.12 It is conceded that before the election the Respondent had received the Union's letter, claiming majority representation and requesting a bargaining conference. As the record contains nothing to indicate that the Union at any time thereafter abandoned its intent to negotiate with the Respondent, such a request has been held by the Board to. constitute sufficient notice of the Union's desire to 'a See, e. g., 16th Annual Report of the National Labor Relations Board, page 199; Jordan Bats Company, 107 NLRB 717, 729; Cranston Print Wor7cs, Company, 115 NLRB 537, 545- 547; Tennessee Valley Broadcasting Company, 83 NLRB 895, 897-898. FLEMING MANUFACTURING COMPANY, INC. 465 bargain concerning working conditions . 13 Nor is there any merit to the Respond- ent's defense, even if true , that its action was dictated by economic considerations. "The Respondent had a duty to bargain with the employees ' representative, and it could not elect to observe or disregard this duty on the basis of economic expedi- ency, even in good faith ." 14 Thus, the Board has found a refusal to bargain in violation of Section 8 (a) (5) of the Act in an employer 's unilateral reduction of wages even though the Board also found , contrary to the Trial Examiner, that the reduction was for economic, and not for discriminatory, reasons.15 I find, as alleged in the complaint , that the Respondent , by its unilateral action in reducing the hours , changing the work schedules, eliminating the paid coffee periods, and discontinuing the serving of free coffee, all without prior notice to or consultation with the Union , has refused to bargain in good faith in violation of Section 8 (a) (5) of the Act . I further find that by such conduct the Respondent has also interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1).16 The complaint also alleges, and the General Counsel contends , that the dis- charge of employee Richardson on July 30, 1956 , and the unlawful conduct of Foreman Sigler after the election were designed to undermine the Union as the majority bargaining representative , and that therefore such conduct also consti- tuted additional violations of Section 8 (a) (5) of the Act. I find it unnecessary to resolve this issue, as my recommended remedy with respect to Respondent's 8 (a) (5) violations would, in any event, be the same. F. Discrimination in terms and conditions of employment The General Counsel contends, as the complaint alleges, that the Respondent unilaterally reduced and changed the hours of work and eliminated the coffee period with the free coffee , as hereinabove found , in order to discourage member- ship in the Union and in reprisal for the employees ' exercise of their statutory rights in selecting the Union as their bargaining representative . The Respondent contends, as its answer alleges , that such changes were made solely for economic recscns. Plant Manager McClelland testified as follows : During June and the preceding 6 months he had attended conferences with higher management officials, including President Fleming, at which there were discussions about the Company's poor financial conditions and the need for doing something about it. At one of the conferences held in December 1955, higher management officials recommended a general layoff but McClelland talked them out of it. In June Respondent was experiencing difficulties in buying some steel items from warehouses because of the impending national steel strike, and was unable to stockpile available items because of lack of funds. At the last conference held in June, McClelland was instructed to cut down on his purchasing and to cut down generally , without any specific instructions as to how or where such cuts were to be effected. The national steel strike became effective on July 1, 1956 , and lasted until August 5. During the first week in July the plant was closed for the employees ' scheduled vacation. The decision to reduce the hours and change the work schedule on July 20 was made solely by McClelland . He thought that he would be able to extend the steel over a longer period by cutting the hours and thus avoid a layoff. He also took it upon himself on July 23 to eliminate the coffee break with the free coffee, in view of his knowledge of Respondent 's poor financial condition.17 Other evidence in the record , however, tends to impugn McClelland 's asserted motive for selecting that particular time to make the aforementioned changes. Contrary to McClelland's testimony, a general layoff was in fact announced by him on June 29, 1956 , after consulting with President Fleming, but was canceled 13 Cranston Print Works Company, supra. 14 Had the Respondent bargained with the Union concerning these proposed changes and reached a good-faith impasse , it then could lawfully have instituted these changes. See, e. g., Central Metallic Casket Co ., 91 NLRB 572 , 573 ; I. B. S. Manufacturing Company, 96 NLRB 1263, 1268; 16th Annual Report, page 200. 15Jordan Bus Company, 1.07 NLRB 717 . See also Brown Truck and Trailer Manufac- turing Company, Inc., 106 NLRB 999, 1000 ; Butler Chemical Company, 116 NLRB 1041. 11 Tennessee Coach Company, 115 NLRB 677 , 678-679. 17 Lawrence T. Gill, Respondent 's accountant , also testified from his records to Respond- ent's poor financial position. His own figures, however , demonstrate that Respondent's financial condition was not as poor as Respondent's witnesses sought to paint it. 476321-58-vol. 119-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Krause, Respondent's counsel, before it became effective in order to maintain the status quo. In a letter addressed to the employees and received by them dur- ing their vacation period, McClelland informed them that, due to the critical steel situation, operations would be discontinued until further notice. Krause, who had been instructed by Fleming to take charge of the labor situation, testified. that at the meeting in the Board's Regional Office on July 5, when the consent-election agreement was executed, he advised Business Agent Whitson about the layoffs that had been ordered and informed Whitson that he, Krause, had had the layoffs can- celed and had "told them to keep things status quo until we could finish every- thing." Moreover, McClelland admitted that there was sufficient steel on hand for the men to work on when they took their vacation during the first week in July. The record also shows that during the period from June through September, at least five new employees were hired and some employees worked a considerable amount of overtime. At the time when one of the new employees applied, McClelland first stated that he could not "hire anyone until this trouble was over." 18 In addition, Respondent's own records show that the gross sales for the month of June were the highest for the year and reflected an increase of approximately 30 percent over the preceding month. Finally, changing the work schedule and lengthening the lunch period could neither have affected any economies nor conserved the supply of steel items in any conceivable way. On the other hand, as previously found, the Respondent was opposed to having the employees designate the Union as their bargaining representative and, through its representatives including McClelland, unlawfully campaigned against the Union before the election. During the course of this campaign, Foreman Sigler warned employees that if the Union came into the plant, the hours would be reduced from 45 to 40 a week, overtime and the coffee break would be eliminated, and that "it'd be damn tough on the men." Vice President Schreiter, in McClelland's presence, told the employees that the Company did not want a union and that the employees could quit if they did not like what management was doing. He also told an employee that if the plant goes union, the shop would not work more than 40 hours a week. Within a few days after learning of the Union's victory in the election, Plant Manager McClelland, without notice to or consultation with any union representative. reduced the hours of work, changed the work schedule, and eliminated the coffee period with the free coffee. It is significant that the em- ployees were given no reason for these changes and no notice that they were impending. So sudden and abrupt were these changes that a 9-day supply of coffee remained unused at the time. Thereafter, Foreman Sigler told several new em- ployees about the kind of "deal" they had.before the "union trouble" and "what kind of a deal they were going to have after," that the coffee break was eliminated because of the "union trouble," that he knew everyone who belonged to the Union, that they were getting plenty of overtime "when this happened," and that there would be no more overtime for the "ones that belonged to the Union." Upon the basis of the entire record considered as a whole, I am convinced, and find, that, while economic justification for the reduction in hours and elimination of the coffee period may have existed, the effectuation of the changes at this time was discriminatorily motivated. I find that Plant Manager McClelland chose this particular time to reduce the hours of work, change the work schedule, and eliminate the paid coffee period with the free coffee in order to discourage con- tinued adherence to the Union and in reprisal for the employees' designation of the Union as their collective-bargaining representative in a Board-conducted elec- tion several days earlier. By such conduct, the Respondent has discriminated, and is discriminating, with respect to its employees' terms and conditions of employment, in violation of Section 8 (a) (3) and (1) of the Act.19 F. Alleged discriminatory discharge of Raymond Richardson Raymond Richardson was employed by the Respondent as a welder from Novem- ber 7. 1955, until his discharge on July 30, 1956. Foreman Marks, Foreman Sigler, and Plant Manager McClelland testified as follows concerning the events leading to Richardson's discharge: During the week before his discharge, Richardson was working in Marks' department. On Tuesday evening, June 24, when Marks brought is Based on the credible and undenied testimony of employee James Bailey. 19 Thomason Plywood Corporation, 109 NLRB 898, 903-904, enfd. 222 F. 2d 364 (C. A. 4) ; Cranston Print Works Company, 115 NLRB 537, 545-546; Spitzer Motor Sales, Inc., 102 NLRB 437, 439-443, enfd. 211 F. 2d 235 (C. A. 2) ; D'arcy Company, Inc., 115 NLRB 1320. FLEMING MANUFACTURING COMPANY, INC. 467 the timecards for his department into McClelland's office, a practice customarily followed by all foremen, Marks complained about the slowness of Richardson's work and suggested that they check his job on his timecard. They made the check, which showed that Richardson's performance was extremely slow. On the after- noon of the next day, June 25, Marks again complained to McClelland that Rich- ardson was taking an "awful" long time on a particular job. McClelland suggested that Marks have Richardson punch his timecard out and then ring back in again on the same job in order to enable them to time him on this particular job. That evening they checked Richardson's timecard again and found that his production had almost doubled during the period in which the check was made. The next day, June 27, Richardson was transferred to Sigler's department to help Sigler catch up on his backlog. Sigler had received a rush order for a mold box, told Richardson to weld the parts onto the box, and assigned Cantley, a more competent welder, to show Richardson how to do it. Although Cantley showed Richardson how to do this welding operation, Richardson welded the brackets on backwards. Sigler reported to McClelland that Richardson had "fouled up" a mold box. Sigler warned Richardson that the next time he made a mistake like that he would be through, as far as Sigler was concerned. The next day, Friday, June 27, Richardson performed welding operations on other types of parts until about noon, when Sigler received another order for a mold box. When Sigler asked Richardson if he needed anyone to help him on the mold box, Richardson replied in the negative. Sigler warned Richardson that he wanted him to have it correct because if the boxes get out of shape, "I'm the one they get on." That afternoon Richardson's request to leave about 3 p. m. was granted. After Richardson had left, Sigler told employee Licklider to put the parts on the mold box on which Richardson had worked. Licklider reported back that the pillow blocks had not been welded on the mold box. This was the "worst" part that could have been left undone. Sigler told Licklider to have employee Gibson finish welding up the mold box. Sigler then reported to McClelland that Richardson "messed up a box" yesterday and "today he messed up a box," that "everytime he turns around he is messing up on something," and that "I'd like to turn him loose." By that time McClelland was "a little tired of hearing about Richard- son"; agreed that he be discharged; and directed Sigler to tell Richardson when he came in the following Monday. When Richardson reported for work on Monday morning, July 30, Sigler told him that he need not punch his card or open his toolbox and that he could get his check as soon as someone arrived in the office. The foregoing testimony was not materially disputed. Richardson admitted that he had been told by Foreman Marks to punch out his timecard and ring in again on the same job. He also admitted that he had welded the brackets on backwards on the mold box on Thursday, July 26; that Sigler had reported the incident to McClel- land; that Sigler told h?m at that time that "one more mistake like that and you're through"; and that on Friday, June 27, he had welded two mold boxes. Employee Gibson, called as a witness by the General Counsel, admitted that on Friday after- noon, July 27, Licklider brought a mold box down to him, that he welded four welds of three-fourths of an inch which were left off the box, and that he knew that this was the box on which Richardson had worked. Richardson's sole union activity consisted of attending five union meetings. The General Counsel contends, as the complaint alleges, that Richardson was discharged in reprisal for the employees' exercise of their rights guaranteed by the Act. It is the General Counsel's theory that Richardson was discharged, not because of his own union activities, but because he was the one "who happened to fall under the eye of Mr. Sigler" and provided the excuse for discharging him because of union activity of the employees in general. In support of this theory he points to the conduct of Foreman Sigler in telling Joseph Brady in the cafe on the evening of July 27 that Respondent would retaliate against the employees for having desig- nated the Union as their bargaining representative by resorting to the stratagem of transferring employees to new jobs in order to utilize their first mistake as an excuse for discharge, as previously found. He points to the testimony in the record that Richardson had never before been assigned to the operation of welding parts on mold boxes, and contends that Richardson was deliberately transferred to Sigler's depart- ment so that Sigler could assign him to a new operation with the expectation that he would make a mistake which could serve as a pretext for discharge. In my opinion, the record does not support the General Counsel's theory. Thus, the record shows, as Richardson himself admitted, that it was not unusual to. transfer welders from one department to another, and that welders were assigned wherever they were needed. Richardson admitted that in the past he had been transferred from one department to another "maybe [every] three weeks," and that he, had worked in Sigler's department off and on. The record also shows that Richardson had not been a satisfactory worker. This is borne out not only by the testimony 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent's witnesses but also by that of the General Counsel's witnesses. Thus, employee Gibson testified that within a period of 2 months before Richard- son's discharge, Sigler spoke to Gibson several times about the poor quality of Richardson's work. And Richardson himself admitted that in May or June 1956,20 and again on Friday afternoon, July 27, Sigler complained about the slow manner in which he was working. Finally, Richardson was not discharged for the first mistake which he made on the operation of welding parts on mold boxes on Thurs- day, July 26. It was not until he made the second mistake the following day, after previously having declined any assistance and been warned of the consequences of another mistake, that he was discharged. Upon the basis of the entire record considered as a whole, I find that the General Counsel has not sustained his burden of proof that Richardson was discharged be- cause of the union activities of the employees generally. I will accordingly recom- mend dismissal of this allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion 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, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effecutate the policies of the Act. Having found that the Respondent has refused to bargain in good faith with the Union by unilaterally reducing the hours of work, changing the work schedule, and eliminating the paid coffee period with the service of free coffee, I will recommend that the Respondent, upon request, bargain with the Union concerning these matters or other terms or conditions of elriployment.21 Having also found that by the foregoing unilateral changes the Respondent has discriminated against its employees' terms and conditions of employment in violation of Section 8 (a) (3) of the Act, I will recommend that the Respondent make whole the employees for any loss of remuneration caused them by the reduction in the hours of work, until such time as the Respondent would have reduced the hours of work for nondiscriminatory reasons.22 The development of the precise period and the vary- ing amounts for which each employee should be remunerated must of necessity be left to the compliance stage of the proceeding. "This procedure of course always contemplates the possibility which not infrequently happens of settlement by the parties upon an agreed method of arriving at the correct amount to be paid to each of the employees who has suffered by reason of the Respondent's unfair labor prac- tices." 23 Although urged by the General Counsel in his brief, no restoration of the work schedule or the paid coffee periods with the free coffee will be recommended, as these are matters which are appropriate subjects for collective bargaining and, as such, may well be bargained for under the bargaining order herein recommended.24 The unfair labor practices committeed by the Respondent indicate a purpose to defeat the self-organization of its employees. I am convinced that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores v. N. L. R. B., 326 U. S. 376, 386-392. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: 20 Richardson testified that this occurred about 7 or 8 months after he started to work for Respondent . He was first employed on November 7, 1955. 21 Kibler-Camp Phosphate Enterprise , 107 NLRB 1068, 1071. 22 Spitzer Motor Sales, Inc., 102 NLRB 437, 453, enfd . 211 F. 2d 235 ( C. A. 2). 22 Thomason Plywood Corporation, 109 NLRB 898, 910-911, enfd . 222 F. 2d 364 (C. A. 4). 21 Thomason Plywood Corporation, supra, at p. 911. LOCAL NO. 980 CONCLUSIONS of LAW 469 1. International Association of Machinists, AFL-CIO, is a labor organization with- in the meaning of the Act. 2. All production and maintenance employees of Respondent at its Cuba, Missouri, plant, but excluding office clericals, guards, watchmen, professionals, and supervisors as defined 'in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 3. At all times since July 16, 1956, the Union has been, and now is, the exclusive representative of all the employees in the aforesaid unit for the purpose of collec- tive bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating with respect to its employees' terms and conditions of employ- ment, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the foregoing conduct, by interrogating employees concerning their feeling and attitude toward the Union and their position with respect to a scheduled Board election, by warning employees that the coffee break and overtime work would be eliminated and the workweek reduced if they selected the Union as their bargaining representative, by promising an employee more pay if he would agree to side with the Respondent in the forthcoming election, by warning an employee that his future with the Company might be jeopardized by ' continued adherence to the Union, by specifying various stratagems to which Respondent would resort to impose economic reprisals upon the employees for having designated the Union as their collective- bargaining representative, by threatening not to give overtime to unionmen, by reminding employees that the coffee breaks were eliminated because the Union had been voted in as collective-bargaining representative, and by discriminatorily pro- hibiting an employee from and threatening employees for engaging in union talk during working time for the purpose of impeding their self-organizational efforts, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 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. 8. The Respondent has not engaged in unfair labor practices by discharging Ray- mond Richardson and by other conduct, alleged in the complaint, as to which no find- ing of a violation has been made. [Recommendations omitted from publication.] Local No. 980, International Hod Carriers ', Building & Common Laborers' Union of America, AFL-CIO, and its agent, Robert Myers and The Kroger Company. Case No. 5-CC-70. Novem- ber 12,1957 DECISION AND ORDER On May 22, 1957, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party, the General Counsel, and the Respondents filed ex- ceptions to portions of the Intermediate Report. The General Coun- 119 NLRB No. 58.