The Cross Co.

THE CROSS COMPANY 699 the "wet-milling" process, and because the industry generally appears to have followed the pattern of bargaining in plant-wide units. After thorough and careful consideration of the contentions of the parties, we conclude that the same compelling reasons that exist for applying the National Tube doctrine in the industries referred to in' the American Potash decision involving plants with a prior industrial bargaining history hold true with respect to new plants in those in- dustries. We shall, therefore, grant the petitions of the Aluminum Workers and the Steelworkers and dismiss the petitions of the IBEW and the Pipefitters . Accordingly, we find appropriate a unit of pro- duction and maintenance employees. We find that all production and maintenance employees of the Employer at its Ravenswood Works, Ravenswood , West Virginia, in- cluding plant clerical employees, routine analysts, spectographic an- alyst, and laboratory assistants , but excluding professional laboratory .employees, administrative personnel employees, office clerical em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [The Board dismissed the petitions filed in Cases Nos. 9-RC-3111 and 9-RC-3112.] [Text of Direction of Election omitted from publication.] The Cross Company and William A. Ziolkowski. Case No. 7-CA- 1401. December 9,1957 DECISION AND ORDER On December 31, 1956, Trial Examiner Charles W. Schneider issued his Intermediate Report in this proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report. attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins].' s The Respondent's request for oral argument before the Board is hereby denied as the record, the exceptions, and the brief adequately, present the issues and positions of the parties. 119 NLRB No. 97. 700 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 Intermedi- ate Report, the Respondent's exceptions and brief, and the entire rec- ord in the case, and hereby adopts the findings,' conclusions, and rec- ommendations of the Trial Examiner. We agree with the Trial Examiner's conclusion that the Respondent discharged Ziolkowski in January 1956, because of his activities on be- half of the Union. Like the Trial Examiner we view the Respondent's reliance upon alleged economic excuses for the discharge as a pretext to cover its unlawful objective to rid itself of a union adherent. Ziolkowski worked for about 15 months without any significant complaint regarding his competence or attitude. In addition to receiv- ing a general wage increase, he was given 4 separate merit raises, and 5 times during his employment was rated satisfactory by his super- visors. He favored the Union during its organizational campaign, wore a union button at work, and repeatedly expressed his union con- victions in conversations with company representatives in the plant. Indeed, he openly defended his views when supervisors broached the subject to him and protested the. rights of other employees to engage in union activities without criticism from management. Clearly, the Respondent had him marked for his enthusiasm, for his foreman called him a "union red hot," "poisoning the minds of the apprentices." With this knowledge of Ziolkowski's activities and attitude, the Re- spondent discharged him about a month after the Union lost the election. In the face of these incriminating facts, the Respondent attempts to explain the discharge on a number of grounds, none relating to Ziolkowski's union activities, but none supported by the record. The detailed evidence concerning the various reasons advanced, some as -serted only after the discharge, are fuly set out in the Intermediate Report and need not be restated here. Suffice it that all were shown by the record to be baseless. On the facts set out above, including the patently belated and unsupported nondiscriminatory reasons now urged by the Respondent, and on the record as a whole, we can only conclude that the Respondent discharged Ziolkowski because of his union activities, and not because of any dissatisfaction with his work. The Respondent was, of Bourse, as it argues in its brief, privileged to voice its opinion regarding the advisability of union activity. This right does not, however, require dismissal of a case in which the perti- nent facts, apart from pure expressions of opinion, substantially estab- 2 The Intermediate Report incorrectly reflects that "about October 26" Ziolkowski so- licited Milton Cross, the Respondent's president, to contribute to the fund for employee Max Mutz. Such solicitation in fact occurred on or about January 26, 1956. THE CROSS COMPANY 701 lis'h an unlawful intent. Accordingly, we find that by discharging Ziolkowski the Respondent violated Section 8 (a) (3) and (1) of the statute. ORDER Upon the entire record in this case, and pursuant to Section 10 (c). of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Cross Com- pany, Detroit, Michigan, its. officers, agents, successors, and assigns, shall:.., 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Local 155, or in any other labor organiza- tion of its employees, by discharging or discriminating in any other manner in regard to their hire or tenure of employment, or' any term or condition of employment. (b) Interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist International Union, United Automobile, Air= craft and Agricultural Implement Workers of America, AFL-CIO, and its Local 155, or any other labor organization, to bargain col- lectively 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 any and all such activities, except to the extent that such right may be affected by any agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William A. Ziolkowski immediate and full reinstate- ment to his former or substantially equivalent position without preju- dice to his seniority and other rights and privileges, and make him whole in the manner set forth in section V of the Intermediate Report. (b) Upon request, make available to the Board and its agents for examination and reproduction all payroll records and other data necessary to analyze and compute back pay and reinstatement rights required by the recommended order. -(c). Post at its plants at Detroit, Michigan, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be 3 In the event that this Order Is enforced by a decree of a United States Court of Ap- peals, 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." 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ;furnished by the Regional Director for the Seventh Region (Detroit, Michigan) shall, after being duly signed by the Respondent or its representative, be posted by the Respondent immediately upon.receipt thereof, and maintained by it for sixty (60) consecutive days there- after 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. (d) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS, dissenting : I would not affirm the Trial Examiner's conclusion in this case. I agree with the Trial Examiner that the Respondent's asserted rea- sons for Ziolkowski's discharge do not stand up under close scrutiny. But it does not necessarily follow from this, as the Trial Examiner states, that it has therefore been shown that Ziolkowski was discharged for discriminatory reasons within the meaning of the Act. The proof of discriminatory intent does not automatically come about when a respondent's assigned reasons for a discharge are rejected. Something more is required by way of proof, which is singularly lacking in this case. Ziolkowski was discharged on January 28, 1956. When this hap- pened, the Union's impact on the Respondent's operations was negligible, for the Union had previously lost an election held on December 9, 1955. Ziolkowski's role in the union drive had been minimal; he had been a union supporter, but not an organizer. So far as the record shows, the most serious expression of antiunion sentiment which can be charged to the Respondent was directed not against Ziolkowski, but against his fellow employee, Szysmanski, who apparently was a union organizer.' Significantly, however, Szys- manski was not discharged. Moreover, unlike the usual case, no conduct of the Respondent's is here found to have violated Section 8 (a) (1) of the Act; indeed none was even alleged so to have done. In these circumstances, I cannot say that the General Counsel has sustained the burden of showing that the Respondent discharged Ziolkowski because of his support of the Union. 4 There exists a serious legal issue as to whether McKittrick's various remarks as set forth in the Intermediate Report, to Ziolkowski, Szysmanski, and Gandras, including those relied upon by my colleagues to show knowledge of Ziolkowski's union activities and Re- spondent's intent to discharge him because of them, are noncoercive opinions and therefore privileged under Section 8 (c) of the Act. If they are so privileged, they may not be con- sidered against the Respondent as "evidence of an unfair labor practice ." I do not resolve this issue, however, for, in my opinion, the remarks, even if not privileged, are not sufficient to show the Respondent's guilt. THE CROSS COMPANY 703 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 discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Work- ersof America, AFL-CIO, and Local 155 thereof, or any other labor organization, by discharging employees or by discriminat- ing in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and Local 155 thereof, 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 pro- tection; or to 'refrain from any and 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 employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer William A. Ziolkowski full and immediate re- instatement of his former or substantially equivalent position without prejudice of his seniority and other rights and privileges, and will make him whole for any loss of pay incurred as a result of his discharge. All our employees are free to become, or to refrain from becoming, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. THE CROSS COMPANY, 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 filed by William A. Ziolkowski, the General Counsel of the Board issued his complaint dated August 16, 1956, alleging that the Respondent had on 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or about January 27 , 1956, committed unfair labor practices in violation of Section 8 (a) (1) and ( 3) of the National Labor Relations Act, 61 Stat. 136, by dis- criminatorily discharging Ziolkowski . More specifically , the complaint alleged that the Respondent had discharged and refused to reinstate Ziolkowski because he had joined or assisted International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Local 155 (both referred to herein as the Union ), and because he had engaged in concerted activities for the purpose of collective bargaining and other mutual ' aid and protection . Copies of the charge, complaint; and notice of hearing were duly served upon the Respondent, which in due course filed its answer admitting the jurisdictional allegations of the complaint but denying the commission of unfair labor practices. Upon due notice a hearing was held in Detroit, Michigan, on September 18, 19, and 20, 1956, before the duly designated Trial Examiner . Upon motion the Union was permitted to intervene . All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence , and to engage in oral argument and file briefs and proposed findings. Briefs have been filed by the General Counsel and . the Respondent and considered. Upon the basis of the entire record in the case, after consideration of all the relevant evidence, and from observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation engaged in the manufacture of heavy machine tools utilized primarily in the field of automation . Its principal office and place of business are in Detroit, Michigan. In the course and conduct of its business operations during the fiscal year ending September 30, 1955, the Respondent purchased materials and equipment in an amount in excess of $600,000, of which in excess of $500,000 represented shipments directly from points located outside the State of Michigan to its aforementioned places of business in Detroit , Michigan. During the same period of time the Respondent manufactured at its Detroit, Michigan , plants machine tools valued in excess of $600,000, of which in excess of $500,000 represented shipments made by it from its Detroit, Michigan , plants directly to destinations located outside the State of Michigan. Respondent has been, at all times mentioned herein, and is now engaged in commerce within the meaning of Section 2 (6) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Local 155, are labor organizations admitting to membership 'employees of the Respondent. III. THE UNFAIR LABOR PRACTICES William A. Ziolkowski, the complainant herein, was hired by the Respondent as a layout man on October 12, 1954. On January 4, 1956, he was transferred to the night shift under Foreman Donald Rogers, and 21/2 weeks later, on January 28, was discharged as unqualified. A considerable amount of evidence and examination in the record is devoted to the question of the quality of Ziolkowski 's performance while employed on the day shift, his paper qualifications , and whether he was hired as an upgrader (not a full journeyman). These issues I find concluded by the testimony of the two persons who supervised or directed Ziolkowski 's work on the day shift, by his record of regular and merit wage increases , his satisfactory ratings in periodic reviews of his work, and by the absence of any substantial complaint concerning his work while employed on the day shift. For whatever Ziolkowski's status and background were, the evidence reflects two dispositive factors making the issue academic : ( 1) His services on the dayshift were satisfactory to his supervisors; and (2 ) he was not discharged for lack of paper qualifications , for Foreman Rogers testified that he was unaware of what those were. The two persons who supervised or directed Ziolkowski on the day shift were William McKittrick , day-shift foreman, and Fred Gandras , day-shift leader. The following testimony of McKittrick, as a witness for the Respondent given on cross-examination , is inconsistent with any conclusion other than that Ziolkowski was a satisfactory employee while on the day shift: THE. CROSS COMPANY 705 Q. Did (Ziolkowski] fail to meet the minimum standards of the company ,so as to retain employment with the company?-A. I don't know that. Q. Well, was he good enough to continue to work for the company in your opinion, or was he so bad that he should have been fired?-A. He was good enough to work for me. Q. Is that throughout the time that he worked for you?-A. Yes. Q. All right. Did he meet the minimum standards of the company through- out the time that he worked for you?-A. Yes. The sum of Gandras' testimony, with allowances for the difficulties of his position as a witness, was that on the average Ziolkowski's work was acceptable and satis- factory; indeed that of the two layout men on the day shift, Gandras regarded Ziol- kowski's work as superior in quality.' I think it clear from the record, and I therefore find, that Ziolkowski's perform- ance on the day shift was satisfactory to McKittrick and Gandras, his immediate supervisors. There is no indication that it was then unsatisfactory to anyone else in the Respondent's supervisory or managerial hierarchy. Whatever criticisms McKittrick and Gandras may have had as to Ziolkowski's performance were either subsumed in their overall evaluation of him, or academic because involving faults in the early period of his employment which were corrected by training or experi- ence before. his discharge.2 Moreover, I do not think any other conclusion or contention plausible with respect to an employee who, in addition to a general wage increase of 15 cents per hour, is given 4 individual wage increases in a period of a year after his hiring, and whose performance was formally reviewed and rated by his supervisors at least 5 times during that year with satisfactory result. I cannot accord any credence to attempts by some supervisory and managerial witnesses for the Respondent to derogate the significance of these matters. Thus, I cannot credit the testimony of the Respondents' personnel official to the effect that the supervisor's review and rating of employees measures nothing but the employee's attitude.3 Similarly unacceptable is testimony by the Respondent to the effect that Ziol- kowski's wage increases were quite "normal" phenomena which "would have hap- pened to anyone who continued their employment with the Company over these periods." Of the three regular layout men employed by the Respondent at that time (I exclude Gandras as a leader) Ziolkowski was the only one to receive a merit increase during the period of Ziolkowski's employment. One of the other two received no wage increase at all during that period, other than a general increase given all employees. It therefore appears to me that Ziolkowski's wage increases were not usual, ordinary, or "normal," or given to "anyone who continued their employ- ment with the Company over these periods." I do not think it normal operating ' Q. . . . You testified on the average that he did acceptable work, is that right?-A. That's right. 'As, for example, Ziolkowski's original insistence on working some layout problems by trigonometry, a method which Gandras sought to persuade him was unnecessary-indeed one contrary to the respondent's operating procedures-because the dimensions he sought could be determined from the blueprints. When Ziolkowski was not persuaded, Gandras and 11IcKittrick let him use his trigonometric -methods on the assumption that experience would succeed where exhortation failed. In this they were apparently right, for Ziolkowski shortly abandoned his procedure and from then on followed Gandras' suggestions. 3 The rating is a written evaluation by the supervisor on a prepared form, evaluating and grading against a comparative standard the employee's work performance with respect to each of the following individual items : quality, adaptability, job knowledge, dependa- bility, and attitude. These evaluations are then translated by the personnel office pur- suant to a code or key, into a numerical score which is recorded on another form which is retained as a part of the Respondent's permanent records. The Respondent's testimony reduces itself to the assertion that the ratings measure the employee's "attitude" about his "attitude." I consider implausible the assertion that the ratings serve no useful purpose and are required of the supervisor only to insure that he periodically reviews the employee's performance. Otherwise, the translation of the supervisor's evaluation into numerical scores by the personnel office, and the recording of the translation on other forms, and the retention of that data as a part of Respondent's original records, became completely point- less. I cannot accept any conclusion other than that the review is intended to measure and grade an employee's work performance and capabilities, and to determine whether his services are satisfactory, and to what degree. 476321-58-vol. 113 46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure to single out an employee for a merit increase, unless he is deemed deserving of it. In this connection it is to be noted that other testimony by the Respondent indicates that as an employee becomes eligible for an upgrade or merit review his case is discussed between the foreman and the superintendent. Ziolkowski was thus either a satisfactory employee on the day shift, or his fellow employees must have been even less so in the judgment of the Respondent. Equally unacceptable is testimony by another official of the Respondent to the effect that the wage increases given Ziolkowski are no indication as to whether his work was satisfactory; but are indicative only of the fact that the Company was discharging its "contractual obligation" to increase his pay at regular upgrading intervals . I do not understand that the Respondent was under any obligation, contractual or otherwise, to reward unqualified employees, and it is scarcely plaus- ible that it has a policy of doing so. Perhaps the Respondent' s distinctions are too subtle for me to grasp. But I deem incredible the supposition that responsible employers give wage increases-even merit increases-to individual employees with- out any regard to the quality of their performance. The attempt of the Respondent to derogate the quality of Ziolkowski's work prior to his transfer to the night shift, and to impeach its own formal evaluations of him, undermine the probative value of much of its testimony bearing on his discharge. Without doubt Ziolkowski had his faults, as what employee does not. Few records are proof against a searching determined to discover flaws in it; and scarcely anyone's performance so universally esteemed that none can be found to derogate it. Several employee witnesses testified for the Respondent as to errors made by Ziolkowski and criticized his layouts. The General Counsel produced a number who testified to the contrary, and who attested to the superior character of Ziolkowski's work. The General Counsel further asserted at the hearing that he would produce more such witnesses if given an adjournment to the next after- noon-which the Trial Examiner declined to grant. I think the testimony of these employee witnesses substantially cancels each other out. I have discounted their conclusions as the more likely product of partisanship than of objective evaluation. All the Respondent's layout men made mistakes, and there is no persuasive evidence that Ziolkowski made any more than- or even as many as-any other. In sum, I am of the opinion that, fairly viewed, the evidence does not reflect any substantial dissatisfaction on the part of the Respondent with Ziolkowski's work while on the day shift-or any apparent substantial cause for it.4 The fact that Ziolkowski was a satisfactory employee on the day shift is not, however, dispo-sitive of the whole issue here, for the Respondent contends that it was dissatisfaction with his services on the night shift which was the reason for his dis- charge. But before turning to that question it would perhaps be best to set out the background facts against which the allegations of the complaint and the testimony as to the discharge are to be appraised. This we now do. _ ` On October 19, 1955, the Union filed a petition for certification as bargaining rep- resentative of the Respondent's production and maintenance employees. A hearing thereon was held on November 18 and an election-which the Union lost-on De- cember 9. Prior to the election 4 or 5 employees were union buttons in the plant. Ziolkowski was one of these. Prior to the election conversations, in which Ziolkowski and other employees par- ticipated, were held around the layout table in the plant. According to his undenied evidence, Ziolkowski favored the Union in these conversations, in contrast to the op- position of other employees; Ziolkowski, seeking to explain to the others what the Union had done and why it was needed, and specifically that some of the benefits they already enjoyed were attributable to the Union. . Both before and after the election Foreman McKittrick, who was opposed to the Union, had conversations with employees concerning the Union and the election. The record specifically reveals a number of such conversations with or concerning Ziolkowski which are either admitted by McKittrick or not denied by him. In the first of these, in the weeks prior to the election, McKittrick came to the layout table and commented upon the fact that he had noticed that Ziolkowski was 4 There is suggestion in some of the Respondent's testimony that Ziolkowski's per- formance on the day shift was not up to a standard where he could work alone, or without substantial help. If that is the fact it would have to be concluded that the Respondent deliberately transferred Ziolkowski knowing that he was incapable of fulfilling the require- ments of the job-a conclusion irreconcilable with its good faith. THE CROSS COMPANY 707 wearing a union button . He asked' Ziolkowski what his "beef" was, and initiated a discussion about the advantages and the disadvantages of the Union. During the course of this conversation McKittrick asked Ziolkowski who had given him the but- ton. Ziolkowski declined to reveal where he had got the button. McKittrick also commented to Leader, Gandras about Ziolkowski's button. Some- time prior to the election he came to Gandras and asked Gandras whether he had seen Ziolkowski wearing a union button. Gandras replied that he had not. McKittrick said, "He is" and went on. Sometime prior to the election Foreman McKittrick had a conversation with em- ployee Szysmanski, a boring mill operator, in which McKittrick argued against the Union. When Szysmanski took issue with some of McKittrick's assertions McKit- trick exclaimed, "Why don't you quit being an organizing union bastard." To avoid controversy Szysmanski broke off the conversation and walked away. This incident with Szysmanski came to the attention of Ziolkowski. Some days later McKittrick came to the layout table and initiated another discussion with Ziolkowski concerning the Union. Ziolkowski told McKittrick that he "didn't think very much" of McKittrick for calling Szysmanski a "union organizing bastard." Caustically he observed to McKittrick that a soldier must respect an officer's uniform, but did not have to respect the man inside it. On another occasion 5 or 6 days before the election McKittrick approached Ziolkowski at the layout table and suggested to Ziolkowski that if the Union got in the plant, it would "load the place down with niggers" and put them at all the machines. Ziolkowski, in reply, referred to the Constitution, and said that men were brothers and had to live by the precepts of the Bible. A few days before the election McKittrick made a similar remark to Szysmanski. In an incident 3 or 4 days before the election McKittrick came to Ziolkowski and told him that when he hired Ziolkowski he did not think that Ziolkowski was a "Union red hot." Ziolkowski replied that he was not. He said that in fact he had worked in more nonunion than union shops. He went on to say that at the time he had signed the Union's card he had not been sure that a union was needed in the plant, but that because of the treatment of the men he was now convinced of it. Specifically Ziolkowski referred to McKittrick's characterization of Szysmanski, telling Mc- Kittrick that the employees did not have to tolerate being called such names. On another occasion 2 or 3 days before the election Foreman McKittrick came to Ziolkowski at the layout table and said that he understood that "you Union men" were "poisoning the minds of the apprentices." Ziolkowski replied that he had ex- plained the Union to the apprentices, told them what its benefits were, and had told them to vote, but said that he did not tell them how they should vote. As has been seen, the election was held on December 9-the Union losing. Six days later, on December 15, the employees were paid a bonus. Ziolkowski's bonus was given to him by Foreman McKittrick who said, as he gave it to him, "Here is the bonus that the Union got you." The Transfer Sometime in December 1955 Englehardt Luft, the layout man on the night shift, requested a transfer to the day shift. The testimony is that, being senior to Zio.lkowski, Luft was entitled to the day-shift job if he desired it. As a consequence, on December 20, 1955 Ziolkowski was notified by Foreman McKittrick that he was being trans- ferred to the night shift. Ziolkowski's testimony is undenied that after informing him of the transfer McKittrick added that if Ziolkowski "wasn't happy with the ar- rangements I could look for another job. They would give me ample time to find me another job, more to my liking." On January 3, 1956, Ziolkowski was transferred to the night shift under Foreman Don Rodgers and 21/z weeks later was discharged by Rodgers as "unqualified." The Discharge During all of January 1956 Max Mutz, a layout man on the day shift, was ill and absent' from work. Around the 24th of January Foreman McKittrick directed Leader Gandras to take up a collection among the employees for Mutz. Pursuant to McKittrick's direction, Gandras solicited employees on the day shift. As each em- ployee contributed he put his signature or initials on a yellow sheet of paper which was later given to Mutz along with the proceeds of the collection. Heading the list were the initials of Foreman McKittrick. Needing a solicitor on the night shift, Gandras asked Ziolkowski to take over the job andZiolkowski consented . The col- lection was completed and the fund and the list of contributors turned over to Mutz sometime before January 28. 708 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD Among others, whom Ziolkowski solicited was Milton Cross, the Respondent's president. This was about October 26. Cross refused to contribute. He told Ziolkowski that the personnel department handled such matters, and said that the Respondent paid for sickness and accident insurance to take care of such situations. Cross further told Ziolkowski that the Respondent frowned upon such collections. January 28 was a Saturday. Ziolkowski came to work at about 3:30 p. m. on that day. Disregarding unessential facts, Ziolkowski's testimony as to the occur- rences on that evening is as follows: Early. in the evening Ziolkowski had heard a rumor to the effect that the shift would end early that evening. Seeing Foreman Rodgers on the floor, he asked him if it were true. Rodgers merely smiled and passed on. Later, at about 6:30 p..m. Foreman Rodgers came to Ziolkowski at the layout table with a "Green Book" in his hand. This is a printed pamphlet or handbook explaining to employees the Respondent's business, its procedures, benefits, programs, and its rules and regu- lations respecting employee conduct. Rodgers asked Ziolkowski whether he had received one of the books when he was hired and whether he had read it. Ziolkowski replied that he had. Rodgers then turned to a paragraph forbidding solicitation on company time without management approval.5 Rodgers then told Ziolkowski that he was discharged for violating that rule by the Mutz collection. Ziolkowski pointed out that McKittrick's name had headed the list of donors and that therefore the collection had the management approval required by the rule. The record does not indicate any response by Rodgers. Ziolkowski then accused Rodgers of not giving him the real reason for the discharge. He charged that Rodgers was firing him because of the Union, and said that he would take the matter to the NLRB. Rodgers stated that would do no good, that nobody would listen to Ziolkowski, and that Ziolkowski could not "fight big companies like Cross." Rodgers finally told Ziolkowski that the Respondent could get "twenty men" to testify that Ziolkowski did not do his work and "wandered around the shop." Ziolkowski replied that in view of the results of the election, they could probably get more than 20. That conversation terminated and Ziolkowski proceeded to check out. Later in the evening, as he was putting his tools in his car, Rodgers came up to him and said, "Bill, sometimes this is a hell of a job. I'm sorry it had to happen." He further said that he hoped that Ziolkowski would get another job. Ziolkowski responded that he had worked before coming to Cross, and would again. He then left the plant. At no time that evening, according to Ziolkowski, did Rodgers make any reference to the quality of his work. Rodgers disputes some of this testimony. His testimony is as follows: At about 7:30 on that evening Ziolkowski came to Rodgers and said that he wished to go home at 8 p. in. Rodgers told him that he could do so, because he was being discharged anyway: "I says, `Yes, you can go home at 8 o'clock,' that I was going to discharge him that night, so he could take his tool box along with him when he left." Rodgers did not discuss Ziolkowski's work with him at that time or tell him why he was discharging him. Thereafter, Rodgers' testimony continues: .. . [Ziolkowski] says, "You can't fire me." He says, "You have to give me reasons to fire me." He said that the company is getting rid of me because of union activity and I told him that wasn't so. He says, "Well," he says, "You can't fire me. I'm not going to pull out of there. I'm going to leave my box here," he says, and "they're going to hear about this Monday. I'm going down to the Labor Relations Board and bring this out, because this company's been trying to get rid of me ever since I worked here." Then I told him that he wanted reasons why that he was discharged and I told him that he wasn't qualified to do this type of layout work and then, that I wasn't satisfied with it. He said, "Oh go on, that's no way to get rid of a man," he says, "There's more than that. Give me the reasons." I says, "Well, suit yourself." He says, "I'll tell you, I'm going to leave my box right here," and I said, "Suit yourself," and I walked away from him. That was the first conversation. Q. Did you have a second conversation ?-A. Yes, then I walked down through the shop. I went down around the planer mills at the far end and 5 The paragraph reads : NO SOLICITATIONS ! We don't want our employees to be embarrassed at work by requests for contribu- tions or memberships. Therefore, we don't allow solicitation on Company time, except with special management approval. THE CROSS COMPANY 709 I looked up and found the green book that we have and looked up in the green book and noticed that some of the things that was bothering me also about Bill, he would leave his place and go down around the planer mills and roam through the shop and I seen in there already that you are supposed to stay in your department and I glanced through it, and refreshed my mind on it and also in there that you are not supposed to make collections in the shop, go around and get donations in the shop. He was roaming around through the shops, and left it at that. Q. Then did you tell him that, then?-A. No, no. I went down over to the other desk down by the crib and he came over and he told me that he changed his mind that he was going to check his box out at 8 o'clock, so I told him all right. I says, "I'll have the crib operator check through your box so you can check out and I'll make out a package pass for you." So, I made out a package pass for him, went over to layout, gave him the package pass and he started firing reasons to me again. So I told him then, "Did you ever read this?" I never opened the book. I just asked him if he ever read it. He said yes, he read it. I says, "Well," I says, "You're breaking some of the rules in here too, but you're not supposed to go around roaming around in other departments which you have done on the last three weeks that you worked on the night shift, but you've roamed around in these other departments, keeping men from their jobs that they are trying to do, taking up their time, and also going through the shop and taking up a collection without telling me that you were taking up a collection or asking permission or going into the front office and asking permission" and I left it at that and he checked out and that's all there was to it. Q. Now, you referred to the conversation regarding collections, too. Did you fire this man because of his collections or recommended firing because of that?-A. No. Q. Is that the reason that motivated you?-A. No. That's no reason to fire a man. The testimony as to the discharge interview has been set out at length because the credibility of Ziolkowski and Rodgers largely hinges upon a resolution of the disputes therein. And, since the Respondent's contention and Rodgers' testimony is that he, and he alone decided upon the discharge of Ziolkowski for reasons dis- cussed hereinafter, that resolution will be substantially dispositive of the accept- ability of the reasons asserted for the discharge. In determining this credibility issue I am assisted by my estimate of the witnesses based upon observation of their demeanor, and by other objective considerations provided by the record. Among the latter are the following. In the first place Rodgers' testimony is not consistent. A written statement was given by him under oath on July 31, 1956, respecting the circumstances of Ziolkow- ski's discharge. In that affidavit Rodgers related that when he told Ziolkowski that the latter was discharged, he gave him the reasons for the action. According to that statement, in addition to Ziolkowski's lack, of qualifications, the reasons he gave to Ziolkowski included talking to other employees and interfering with their work and taking up a collection without Rodgers' permission. Thus the statement declares: About 10 minutes of 8 in the evening of January 28th [Ziolkowski] asked me for a pass to leave early and I gave him such a pass and at the same time told him he was discharged. I gave him the reasons for the discharge, saying I was going to let him go because I felt he wasn't qualified to handle the job on his own, that I had constantly to give him help, that his constantly talking with other employees interfered with their work, and recently he had taken up a collection on the night shift without my permission. Rodgers' action in placing all these assertions in the first conversation recounted in the affidavit is not attributable to telescoping of the narrative in draftsmanship, for the affidavit later recounts a second, conversation at the time Ziolkowski came to check out. Thus, after the termination of the first conversation, Rodgers' affidavit continues: I left him at that time and he came back five minutes later and said he would check out, he wanted to take his tool box out, but he would come back and the Company would still hear of it. He-mentioned that the Company was getting rid of him because of Union activities and I told him it wasn't so. It will thus be noted that the affidavit is consistent with Zio]kowski's testimony to the effect that the reasons for the discharge were given to him in the first con- 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD versation, but it is unconsistent with the testimony of Rodgers. Thus, the record reflects the following questions and answers by Rodgers: Q. Did you mention anything about his work in your [first] conversation?- A. No, I didn't say anything then. He kept talking. He says that he was going to-that we were firing him because of Union activity in the shop. Q. Now, did you discuss his work with him at that time and tell him why you were firing him?-A. No. Secondly, Rodgers' testimony itself contains inherent contradictions concerning both the reasons he gave Ziolkowski for the discharge, and the reasons he now asserts truly motivated him. -Thus, he admittedly told Ziolkowski that Ziolkowski's "roaming around the plant" and his taking the Mutz collection were reasons for his discharge. But according to his testimony now, those assertions were false. Ad- mitted mendacity necessarily renders dubious any assertion by a witness, particularly those not susceptible of direct contradiction. There is no suggested reason as to why Rodgers' present statements as to his motives should be deemed more reliable than his former ones. If it is argued that such falsities are of insubstantial bearing because not made under oath, it is to be observed that Rodgers' July statement was under oath. The fact is that Rodgers was in something of dilemma. Having asserted the collection as a ground for the discharge, he had either to disavow it or else admit that the discharge was discriminatory and unwarranted. For that Foreman McKittrick initiated the collection and signed the collection sheet, thus giving it the management approval required by the green book, and that Gandras did the day shift soliciting and procured Ziolkowski to do it on the night shift, were easily demonstrable facts-as Rodgers no doubt in time discovered. For that very evening, after leaving the plant, Ziolkowski went to Mutz and secured the original collection sheets bearing the signatures of the contributors, in order to preserve them as evidence . Rodgers was thus compelled by circumstances to repudiate his assertion of the collection as a ground for the discharge. Nor could he deny that the subject was mentioned in the discharge interview, for, as the testimony of employees Langeveld and Hughes establishes, other employees had seen Rodgers consulting the green book that evening, and he had even conversed with one of them (Jim Allen) over its contents. No explanation is offered by Rodgers as to why he gave Ziolkowski untruthful reasons for the discharge. The best that can be said is that the incident reflects a willingness to falsify when pressed. But most significant, I think, is the fact that in order to accept as true Rodgers' testimony as to why he discharged Ziolkowski, one must begin with the assumption that Rodgers does not always tell the truth. Other factors cast doubt upon Rodgers' testimony. Thus, among the criticisms of Ziolkowski which Rodgers voiced in his testimony was that Ziolkowski did not exercise his own judgment but was constantly requesting Rodgers for assistance with respect to the correctness of his layouts , and as to whether castings should be scrapped . Among Ziolkowski's duties, Rodgers testified, was that of inspecting the casting before laying it out , in order to determine whether it was of acceptable quality to machine, or whether it should instead be scrapped . Rodgers' first testimony with respect to this question was that the layout man makes the determination-an indispensable hypothesis if the testimony were to have any significance . However, on cross-examination he modified this to the extent of saying that on the night shift the layout man had to leave doubtful castings for the day shift to "double check" before scrapping: but he was now insistent that the day-shift layout man had authority to scrap castings without authorization from anyone else .6 The testimony of Leader Gandras, however, whom I think a reliable witness, is to the contrary . Gandras testified, and I find, that no layout man, either night or day , may scrap a casting without the permission either of the foreman or of Gandras. Rodgers' testimony in this regard appears to me reflective of significant zeal to portray Ziolkowski as incompetent. Even with respect to Luft's request to transfer to the day shift-which the General Counsel does not dispute he made-Rodgers' testimony indicates exaggeration. Thus, Rodgers testified that the reason for Luft's transfer was that Luft had com- plained for a year because he was kept on the night shift while Ziolkowski, with less e Rodgers testified as follows : Q. . . . In respect to the layout man who works on the day shift, must he obtain permission before he scraps a casting?-A. No. Q. Are you sure of your answer?-A. He can scrap it if he wants to scrap it. THE CROSS COMPANY 711 seniority, was retained on the day shift.7 This vivid picture of the situation, with its impression of a reluctant and constantly grieving Luft forced to remain on the night shift in violation of his seniority rights, despite his insistent demands, is entirely at variance with the more objective testimony of Gandras, who is Luft's cousin. Gandras' explanation for Luft's continued service on the night shift is quite simple: Luft preferred it because of the 15-cent differential in shift pay, and in fact had declined transfers for that reason. Luft's decision to transfer in Decem- ber 1955 was occasioned by the delicacy of his wife's health and his consequent desire to be with her at night. Evidently Rodgers felt it necessary to color even this simple and noncontroversial situation in order to buttress the Respondent's position. These extrinsic evaluations of Rodgers' testimony accords with my estimate of his evidence based upon observation of him as a witness. For these various reasons I reject Rodgers' testimony as to the occurrences and statements made on the night of the discharge. On the other hand Ziolkowski's testimony with respect to the events of that night were more plausible, consistent, and obviously not fabricated. For were his testimony concocted it would, I think, be much more damaging to the Respondent than it is. I therefore credit Ziolkwoski's account of the events of that evening. The Grounds Asserted for the Discharge As has been seen, Rodgers assumed full responsibility for the discharge of Ziol- kowski. The reason which he now gives, and which he now asserts was the sole reason for Ziolkowski's discharge, was that Ziolkowski was unqualified to perform the work. In support of this assertion Rodgers gave the following testimony as to Ziolkowski's performance on the night shift. Rodgers had to watch Ziolkowski's work. The first 3 or 4 days he had to help Ziolkowski find dimensions on prints. Ziolkowski asked Rodgers whether castings would pass and whether they were laid out right. Rodgers did not, however, have the time to go over these matters with Ziolkowski, so he told Ziolkowski to leave a note for the day shift to check the work to see whether it was done properly. This occurred "constantly" during the period of Ziolkowski's employment on the night shift. In about the second week that Ziolkowski was on the night shift Ziolkowski told Rodgers that a section base casting which was distorted looked like it would have to be scrapped. Rodgers, however, showed Ziolkowski how to lay out the casting so that it could be used despite the distortion, thus saving the job. In addition, Rodgers received "a lot" of complaints from employees who machined the castings laid out by Ziolkowski. The gist of these complaints was that the em- ployees "constantly" had to check Ziolkowski's layouts because they were "so often" faulty. Rodgers himself saw one particular piece on which Ziolkowski's layout should have allowed for a deeper cut in order that surface pit marks could be removed in machining. Ziolkowski began work on the night shift on January 4, 1956, a Wednesday. On the following Saturday, which would be January 7, Rodgers told Superintendent Frank Joyce that Ziolkowski's work was unsatisfactory and asked for permission to discharge him. Joyce told Rodgers to give Ziolkowski "more time," and to "look him over a little closer" in order to "make sure that [Rodgers] knew what [he] was talking about." In the second week Superintendent Joyce asked Rodgers about Ziolkowski. Rodgers repeated his desire to discharge Ziolkowski, telling Joyce that Ziolkowski was "giving [him] a lot of trouble," that the men were making complaints and showing Rodgers "different jobs" that Ziolkowski was not laying out properly. The final conversation with Joyce was on Saturday of the discharge. In this Rodgers "told him about it again, the same thing." This time Joyce said, "well, all right, Donald, go ahead if you want to." During Ziolkowski's period of employment on the night shift, Rodgers "constantly" 7 Thus, Rodgers' testimony on direct examination : . . . Luft was constantly beefing about having to work on the night shift with more seniority than William Ziolkowski on the day shift , and why should he [Ziolkowski] get the benefit of working days when he [Luft] should be there? And on cross-examination : Luft was constantly talking about he should be on the day shift and William Ziolkowski should be on the night shift. It bothered the man. He wanted his rights as far as seniority to hold his position on the day shift , as it should be. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked to Ziolkowski about his performance. In the very first week when Ziolkowski was constantly asking Rodgers' opinion of his layouts, Rodgers told him, "Bill, you're going to have to do a better job here." Around the second week Rodgers told him again. During the last week of Ziolkowski's employment Rodgers told him "two different times about it." This is the gist of Rodgers' testimony concerning his experiences with Ziolkowski. Much of this testimony, it will be noted, is general in character and lacking in specificity, particularly with respect to the question as to the time and occasions when Ziolkowski's performance was deficient and Ziolkowski informed of it. For, as has been seen, all layout men made mistakes. It seems significant that of the two layout men employed on the day shift, Gandras thought Ziolkowski's quality the better. It would seem that the assertion that the quality of his performance completely changed character the moment he went on the night shift, would have some credible and specific support if true. Words and phrases like "constantly," "a lot," "often," and "different times" appear throughout Rodgers' testimony as to occasion, time, and frequency of asserted fault in Ziolkowski, and reproof by Rodgers. Giving these words and phrases-indeed all of Rodgers' testimony- their ordinary meaning and connotation, it is apparent that, if Rodgers is to be believed, Ziolkowski was a hopeless incompetent. This I think too exaggerated to be credible. A performer as sad as Rodgers' drawing of Ziolkowski would not, I am sure, have remained on the Respondent's payroll more than a few days, much less given wage increases. Yet Ziolkowski had served satisfactorily for over a year. In addition to these considerations, Rodgers' testimony in these respects was denied by Ziolkowski, both specifically and generally. Ziolkowski's testimony is that during the entire term of his employment on the night shift Rodgers did not criticize his performance. In fact, he testified that only twice during that period did he consult Rodgers about his work. One of these occasions was to ask Rodgers whether it would interfere with subsequent assembly if he left an excess part remain on a casting rather than have it machined off. This consultation was necessary, according to Ziolkowski, because he did not have the assembly print, and thus was unable to ascertain the fact for himself. The second occasion was with regard to the section base. Ziolkowski's testimony as to this incident is radically different from that of Rodgers. Ziolkowski testified that he merely called Rodgers' attention to the fact that because of the twist in the casting there would be sparse clearance after machining (1/16") but that he thought it could be done. Ziolkowski specifically denied that Rodgers had ever informed him or suggested to him that his work was unsatisfactory. Rodgers' own account of the discharge interview would seem to indicate the truth of this latter testimony; for if Rodgers had been constantly criticizing Ziolkowski's work and telling him he must do better, Ziolkowski would scarcely have been insistent upon being given reasons. Nor do I think that Rodgers would have failed to have pointed it out to him. Neither do I believe that in such circumstances Rodgers would have felt under compulsion to invent reasons, as he did. In this connection I also think it significant that when, on the Monday following his discharge, Ziolkowski asked Personnel Manager Gal- lant for a letter stating why he was discharged, Gallant refused to give him one.° Moreover, Gandras' testimony is that the layout men frequently have to ask questions of the leadman or foreman: when they cannot find a dimension on a print, when in doubt as to whether to attempt to lay out a doubtful casting, or if "stuck" for any reason. That foremen are expected to help layout men is like- wise evident from McKittrick's statement to Ziolkowski at the time the latter began work, to the effect that if he had any problem with respect to his work he should bring it either to Gandras or McKittrick. The picture Rodgers draws of Ziolkowski as indecisive, unsure of himself, and lacking apparent confidence in his ability to decide upon proper procedures, is al- together at variance with the Ziolkowski of McKittrick and Gandras. Their testi- mony indicates a man of decisive mind and firm faith in his own procedures. for these reasons I cannot credit Rodgers' testimony as to Ziolkowski's per- formance on the night shift. That being so, Rodgers' assertion of Ziolkowski's work deficiencies as the reason for his discharge necessarily also falls. Neither McKit- trick nor Gandras were consulted concerning the discharge. 8 Ziolkowski's testimony as to this is undenied. THE CROSS COMPANY 713 Conclusions The basic facts and findings have been set out heretofore. No useful purpose will be served by summarizing them here. As has been seen, Ziolkowski's work performance on the day shift was satisfactory enough to have merited his continued employment, favorable evaluation by his supervisors, and regular wage increases. I cannot credit Foreman Rodgers' testi- mony that in the space of 4 days a man who had performed satisfactory service should suddenly become so incompetent as to merit his summary discharge. Nor can I believe that a responsible supervisor, unactuated by illegitimate considerations, would in so short a space of time have decided upon such a discharge without at least consulting those under whom Ziolkowski had worked before he made such a decision. For the reasons previously indicated I cannot accept Rodgers' testimony as to Ziolkowski's performance on the night shift. I do not believe that Ziolkowski's work under Rodgers was deficient or that Rodgers thought so. That being so the reason for the discharge must be sought elsewhere. In the circumstances the only other substantial evidence in the record providing a motive for the discharge, and a ground for it, is Ziolkowski's union and con- certed activities. In the light of his work record, and the exaggerated, unsubstan- tiated, and discredited defense, it can only be concluded that the reasons now ad- vanced are pretexts to conceal the true reasons. Ziolkowski's union and concerted activity provides the only plausible and substantial explanation. It must conse- quently be, and is, found that Ziolkowski was discharged because he had joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid and protection. It is further found that by that action the Respondent discriminated in respect to hire and tenure of employment, discouraged membership in the Union, and inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act; and by these various acts the Respondent engaged in unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer William A. Ziolkowski immedi- ate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any wage losses incurred as a result of the discrimination against him, in accord- ance with the Board's usual remedial policies. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union , United Automobile, Aircraft and Agricultural Imple- ment Workers of America , AFL-CIO, and its Local 155, are labor organizations admitting to membership employees of the Respondent. 2. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of William A. Ziolkowski , thereby discouraging membership in a labor organization, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]