Premier Panels, Inc.

PREMIER PANELS, INC 305 and the Union not having been certified as such representative under the provisions of Section 9 of the Act, it must be, and is, concluded that those activities were also violative of Section 8(b) (4) (B ) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union, set forth in section III, above, occurring in connection with the operations of Mach 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 Respondent Union has engaged in violations of Section 8(b) (4) (A) and (B) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action which I find to be necessary to ef- fectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record on the case, I make the following CONCLUSIONS OF LAW 1 Mach Lumber Company is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act 2 Local Union 522, Lumber Drivers, Warehousemen & Handlers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent Union has not been certified, at any material time herein, as the collective-bargaining representative of employees of Mach Lumber Company pursu- ant to Section 9 of the Act 4 Since on or about March 20, 1959, Respondent Union has induced and en- couraged employees of employers doing business with Mach Lumber Company in Port Newark, New Jersey, and Brooklyn, New York, to engage in strikes or con- certed refusals an the course of their employment to perform services for their em- ployers, with an object of (a) forcing or requiring the said employers to cease doing business with Mach Lumber Company, and (b) forcing or requiring Mach Lumber Company to recognize or bargain with Respondent Union as the collectivebargai ing representative of employees of the said Mach Lumber Company 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I Premier Panels, Inc. and Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No 14-CA-°2035 January 26, 1960 DECISION AND ORDER On August 27, 1959, Trial Examiner Earl S Bellman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto Thereafter the Respondent filed exceptions and brief to the Intermediate Report 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 Fanning] 126 NLRB No 45 554461-60-vol 126-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner 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 exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions? We agree with the Trial Examiner that the Respondent violated Section 8(a) (3) of the Act by discharging employee Sadler, and refusing to reinstate him, because Sadler engaged in organizational activity on behalf of the Union. Sadler was employed by the Respondent when it commenced opera- tions at a new plant in McBride, Missouri, in March 1958, and was first assigned to the laminating machine. In August 1958 when the operator of the glue machine was transferred elsewhere Sadler was assigned to that machine. While there was no increase in pay accom- panying this change, we agree with the Trial Examiner that the operation of the glue machine was a more responsible job. In Sep- tember 1958 the Respondent directed a request to the local draft board for a deferment for Sadler from military service. From the opening of the plant until November 1958 there were continual discussions and conversations about the advantages of a union. At several of these discussions among employees the Re- spondent's Plant Manager Ewing was present and made the remark that, "It just wasn't time for the Union." On November 24, 1958, an organizational campaign was started in which employee Sadler took a very active part. Ewing heard from another employee on the eve- ning of November 24 that authorization cards were being circulated at the plant. Later that evening Ewing went to the plant and dis- cussed the matter with the night supervisor in an effort to find out about the union activities. On November 25 Ewing noticed Sadler away from his machine at times and walking about the plant. Under the plant rules Sadler-was required to stand by his machine only when it was in operation. Nevertheless, without any investigation or any evidence that Sadler had violated the plant rules, on the following morning Ewing called Sadler into his office and discharged him for "unsatisfactory work." The Respondent's contention that Sadler's work had become progressively worse since a short time after his employment is contradicted by the Respondent's action in promoting IIn agreement with the Trial Examiner , we find no merit in the Respondent 's argu- ment as to the alleged failure of the proper charging party to show compliance with Section 9 (f), (g), and ( h) of the Act. The charges herein were brought in the name of Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Local is therefore the charging party for the purpose of these proceedings we are administratively advised that the Local was in compliance at all pertinent times. 2 As no exceptions were filed to Trial Examiner 's findings that Respondent did not violate Section 8 ( a) (1) of the Act by interrogation , nor Section 8(a) (3) of the Act by discharging employee Hoehn, we adopt them hereby pro forma PREMIER PANELS, INC. 307 Sadler to a more responsible position, and requesting a draft defer- ment for him in September. Viewing these actions against the background of Ewing's repeated antiunion remarks along with Ewing's admission that he suspected that Sadler was passing out union cards on November 24 and 25, we find that Sadler was discharged for his union activities. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Premier Panels, Inc., McBride, Missouri, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization, by discharging or in any other manner discrimi- nating against any employee in regard to his hire or tenure of em- ployment, or any other term or condition of employment, except as authorized by Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the aforesaid union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Robert Sadler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Post at its McBride, Missouri, plant copies of the notice at- tached hereto marked "Appendix." 3 Copies of said notice, to be '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." 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted by the Respondent immediately upon the receipt thereof, and maintained by it for a period of 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. (c) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps have been 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 violated Section 8(a) (1) of the Act by threatening its employees with discharge or other reprisals if they attended a meeting sponsored by the Union, and Section 8(a) (3) of the Act by discharging employee Hoehn. 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 Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization, by discharging or in any other manner discriminating against any employee in regard to his hire or tenure of employment, or any other term or condition of em- ployment, except as authorized by Section 8(a) (3) of the Na- tional Labor Relations Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL NOT in any other maner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form, join, or assist the aforesaid Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the puropse of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. PREMIER PANELS, INC. 309 WE WILL offer Robert Sadler immediate and full reinstatement to his former or substantially equivalent position, without prej- udice to his seniority and other rights and privileges. WE wiLL make Robert Sadler whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become or to remain, or to refrain from becoming or remaining, members of Local 2022, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, 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 National Labor Relations Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. PREMIER PANELS, 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 On the basis of a handwritten charge, dated December 18, 1958,' which sets out the full name of party filing charge as "Local 2022, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO," herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board , by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued the complaint herein, dated March 19, 1959 , against Premier Panels, Inc., herein called the Respondent , alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint and notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices , the complaint alleged, in substance that: ( 1) The Respondent , about November 26, 1958,2 "did lay off or discharge Robert Sadler and Donald Hoehn ," and has since refused "to reinstate said em- ployees to their former or substantially equivalent positions ," because said employees engaged in organizational activities on behalf of the Union; and (2) the Respondent, about December 17, "threatened its employees with discharge or other reprisals if they attended a meeting sponsored by the Union." 3 Respecting the aforesaid allegations, the Respondent 's answer admits only that it "discharged" Sadler and Hoehn about November 26, and specifically denies the commission of any unfair labor practices. Pursuant to notice , a hearing was held on May 12, 13, and 14, 1959 , at Perryville, Missouri, before me, the duly designated Trial Examiner . The General Counsel and the Respondent were represented by counsel and participated throughout the hearing. At the outset, the Respondent moved twice to dismiss the complaint, first essentially on grounds that the Board lacks jurisdiction because ambiguities in the charge affected determination as to compliance status, and thereafter because the 3 Said charge, upon which the Respondent predicates contentions later noted , is stamped as received at the Fourteenth Regional Office on December 19, 1958 The handwriting is apparently that of Melvin E Shasserre, who signed the charge as secretary-treasurer of the Missouri State Council of Carpenters. As evidenced by a return receipt for registered mail, the Respondent received a copy of this charge on December 20 2 Throughout this report, when the year is omitted in giving dates , it will be under- stood to be 1958. 3It should be noted that the above alleged threat is the only independent 8(a)(1) violation alleged in the complaint 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handwritten charge, referred to above in footnote 1, fails on its face to comply with the Board's requirement that four copies of a charge be filed. After comments by the parties on said motions, during which the General Counsel asserted that Local 2022 had been treated as the charging party, I denied the foregoing two motions of the Respondent to dismiss, stating that the possibly novel compliance questions raised should be presented to the Board in a separate administrative proceeding, and that failure to file four copies of the charge had not been shown to have prejudiced the Respondent. Thereafter, growing out of discussion (adverted to later herein) of an eventually withdrawn motion by the Respondent to quash a subpoena daces tecum, the parties, at my request, discussed their respective contentions and posi- tions.4 Upon completing the first day of the hearing, all counsel and the Trial Examiner spent almost an hour inspecting the premises, seeing all of the machinery involved, and the entire physical layout of the McBride plant. During the course of the hearing, various statements given prior thereto by witnesses called by the General Counsel were made available for examination by counsel for the Respondent, except that I denied a request by counsel for the Respondent for what the General Counsel characterized as "another piece of writing" which was never seen, read, signed, or adopted by witness Donald Hoehn, but "does record information taken" by an attorney with the Fourteenth Regional Office. At the close of the hearing, the Gen- eral Counsel argued orally on the record. Pursuant to an extension of time for filing to June 8, 1959, the Respondent filed a brief which has been carefully considered. Said brief asserts at the outset that the Respondent is not "dropping or waiving" its objections to the Trial Examiner over- ruling at the hearing its "contentions with respect to the compliance status of the charging party" and its further "contention with respect to the General Counsel's obligation to produce a prior statement taken" from witness Hoehn. In view of the foregoing, I have painstakingly examined the record herein and decisional precedent respecting these procedural matters. As a result of this reappraisal, I am convinced that the rulings at the hearing in said respects were correct, and they are hereby reaffirmed.6 On June 3, 1959, I received a four-page "Stipulation to Correct the Record," signed by counsel for the Respondent and the General Counsel. All of said correc- tions have been duly considered and, being found appropriate, the transcript is hereby corrected in accordance therewith and said stipulation is made a part of the record herein. Furthermore, it having become evident from my study of the record that certain additional corrections in the transcript should be made, the tran- script herein is hereby further corrected. Upon the basis of the entire record in this case, as above corrected; my observa- tion of the demeanor of the witnesses at the hearing; the view of the premises taken; and my consideration of all of the positions and contentions of the parties, I make the following - FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Premier Panels, Inc., is a Missouri corporation engaged in the manufacture, sale, and distribution of insulated panels. Its principal office and place 'It should be noted that the Respondent's answer gave no explanation as to why It "discharged" Sadler and Hoehn, and also that during this discussion on the record, after the Respondent claimed surprise at mention by the General Counsel of interrogation, the General Counsel specifically stated that such evidence in that respect as he proposed to adduce would go only "to establish motive and knowledge " See footnote 3, above 6 In addition to the Respondent's attorneys listed above in the appearances, Mr. Carroll 3 Donohue, of St. Louis, Missouri, also signs the brief 9 Respecting the compliance contentions, see Langlade Veneer Products Corporation, 118 NLRB 985, 986, and Standard Cigar Company/, 117 NLRB 852, 853-854 Concern- ing my reaffirmation of the ruling that the Genei al Counsel is not required to produce a piece of writing which concededly has not been "read, signed or sworn to" by witness Hoehn, and which my scrutiny of the record in the instant matter convinces me has not been shown to be a substantially verbatim recital, reflecting fully and Without distortion what Hoehn said, I rely not only on Section 102 95 of the Board's Regulations, but also upon the recent Supreme Court decision of June 22, 1959, in Palermo v United States, which I have examined with great care, assuming, in so doing, that the definition of what constitutes "a statement" In Section 102 95 of the Board's Rules and Regulations is related to the requirements of the so-called Jencks Act, 18 U S.C. § 3500, upheld by the Supreme Court in the aforesaid decision PREMIER PANELS, INC. 311 of business is located in St. Louis, Missouri; it has a plant in McBride, Missouri, which is involved in the instant matter. The Respondent's answer admits that, prior to November 30, 1958, its McBride plant had been in operation for 7 months, and that during said period the Respondent had received, at its McBride plant, directly from points outside the State of Missouri, materials valued in excess of $50,000. I find that it will effectuate the policies of the Act for the Board to assert jurisdiction. 11. THE LABOR ORGANIZATION INVOLVED The Union, Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of the Act. It admits to membership employees of the Respondent 's McBride plant. III. THE UNFAIR LABOR PRACTICES A. The issues and problems involved Aside from the procedural issues already considered, the issues herein concern the admitted separation, by Manager William Ewing, Jr., from the Respondent's payroll of Robert Sadler and Donald Hoehn on November 26, 1958, and an alleged threat on December 17 by Ewing to employee William Winkler, to discharge any employee who attended a meeting of the Union scheduled for that evening. Also involved are contentions as to whether substantially equivalent employment has ever been offered to Sadler, who was not working for the Respondent at the time of the hearing, and as to whether the reinstatement given Hoehn on December 8, 1958, was actually substantially equivalent employment.? While simple enough to state, these issues actually are enmeshed in a total situa- tion involving unusual elements, and are posed through testimony which in numerous ways is inconsistent, conflicting, or flatly contradictory. Further, a good deal of the aforesaid testimony bears on the sharply conflicting contentions of the parties as to the behavior or performance of Sadler and Hoehn on their respective jobs in the plant, and this in turn involves some rather complicated industrial processes and machinery sand a general plant layout, a diagram of which is in evidence. Moreover, my understanding of the foregoing is grounded to a considerable extent on actual observations, made during the above-mentioned inspection trip through the plant. In addition, it is worth noting at this point that, with respect to the alleged threat of December 17, the credibility problems are so highly involved and the testimony pertaining thereto so flatly contradictory that the Respondent's brief states that on "this there can be no question that one of these two men was lying." Determining motivation with respect to alleged discriminatory discharges in a case such as the one at bar is, as has been well put in a decision cited in the Respondent's brief, "a grave responsibility because of the elusive intangibles involved." 8 Hence, in seeking to discharge faithfully this responsibility in the instant matter, all of the numerous bits of evidence, and all of the various contentions of the parties, have been carefully weighed and interrelated, with the purpose of discovering the pattern underlying events and the factors actually operative in motivation. And while this time-consuming process of analysis, which it would too greatly protract this report to recapitulate in full, has resulted in answers which will not satisfy either the Respondent or the General Counsel, it may well be that the future of labor relations, in a most interesting plant, can best be served by taking care not to brand any witness a liar unnecessarily. At any rate, we begin our difficult task with a chronology of events. B. Chronology of events9 1. The establishment of the plant and early developments The Respondent's McBride plant, which manufactures insulated panels "classified as plastic sandwich polystyrene," is located about 8 miles from Perryville, the county seat of Perry County, Missouri. The plant building, which was furnished by the Perry County Development Corporation, was erected during the beginning of 1958 7 See footnote 32, below. 8 See Transport Company of Texas and Transport Company, Inc, 115 NLRB 681, 691, one of the several cases, including all of the other cases cited by the parties, which have been duly considered 'Except where specific evidence bottoming findings is identified, findings in this chro- nology are based largely on my synthesis of essentially uneontradicted testimony, by various witnesses, or upon such a preponderance as to make analysis of minor variations unnecessary. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Respondent's specifications, being constructed by union labor. Just before the first machinery was moved into the plant about the middle of March, the con- struction contractor came to Manager William Ewing 10 and pointed out two em- ployees, Russell Brown and Robert Sadler, indicating that he "thought they would be two good workers" for Ewing . Ewing hired both, knowing that Brown was a union steward and that Sadler was a union member.ii Among others hired were Bernard Welker and William Winkler , two other union men whose testimony as witnesses will be discussed later. By sometime during April of 1958 , construction and installation of machinery was sufficiently completed so that it was possible to begin production. Because the Perry County Development Corporation is furnishing the building , it has been the Respondent's policy to try to confine its "hiring to the Perry County area." And since Ewing has never lived in that area, in hiring employees , most of whom are from Perryville, he has "leaned towards" local merchants, and Sheriff Zahner and Prosecuting Attorney Toohey, who is "president of the Development Corporation that owns the building," for recommendations . Further, "if any of the employees have trouble," Ewing consults individuals who he feels "know the men better than [he does] because they live around here." In this connection , Ewing at one point testified, "I always talk to Mr. Toohey." Since the Respondent's products are relatively new and certain processes and machinery fairly novel, and since a number of its employees are from a relatively rural area and have had little or no factory experience , the Respondent naturally has expected that it would take a period of time before its employees could become experienced and its production would be running smoothly and efficiently . In fact, it seems evident that this also was assumed by some of the employees . For instance, the above-mentioned Bernard Welker, who was called as a witness by the General Counsel, testified credibly, on cross-examination by the Respondent , that the first time he had heard about "getting a union in this plant" was at a meeting of the Union in the spring of 1958, soon after the plant started operating; that he got the idea at that time that "the boys were not going to bring the union in for some six months" ; and that several, including himself , believed and had "expressed the thought that it was a good idea to wait until this new plant got situated." Welker also testified credibly, on cross-examination by the Respondent, that during the summer of 1958, what month he could not remember, he and Ewing were "just talking one evening after the day shift had gone home"; that he told Ewing that the Union would "probably get in"; and that Ewing thereupon said: They probably will, but this is not the right time, that the plant is new, every- body is making mistakes and the company has been operating in the red and that this isn't the right time. Welker, who Ewing knew was a member of the Union when he hired him , became the supervisor of the second shift in September , shortly after that shift was started in August.ia It may be well at this point to describe briefly the two shifts at the plant. The first, or day shift, which starts at 7 a.m. and, with a half-hour lunch period, runs until 3:30 p.m., normally vanes from about 15 to 19 in number of employees. The second shift has about four or five employees , including its supervisor. It com- mences at 3:30 in the afternoon , and runs until midnight , also with a half-hour lunch period . There is thus no lapse of time between the two shifts, but each shift has two break period of 10 minutes each, one coming before the half-hour lunch period and the other after it. It will also be helpful at this point to have before us a picture of supervisory responsibility at the plant. Production on the first shift is primarily supervised 10 Manager Ewing, who has the overall responsibility for the McBride plant, was first called as a witness by the General Counsel under rule 43 B, and later as the Respondent's principal witness All of the quotations in the above paragraph and in the one which follows it are from Ewing's testimony . Ewing has no superior at the McBride plant and reports directly to the Respondent's St Louis office Next to Ewing in authority at McBride is Raymond Miller , the plant superintendent, who reports directly to Miller, and spends most of his time in the plant supervising production Miller was not called as a witness u Sadler was a member of "Local 916, a labor local " 11 Welker's testimony clearly shows that this second shift , also referred to as the evening shift or the night shift, started in August , with Marlin Sandler, whom Sadler then succeeded on the glue spreader , first serving as the supervisor thereon for some 3 or 4 weeks before Welker took over as second -shift supervisor in September PREMIER PANELS, INC. 313 by Superintendent Miller, whose responsibility to Manager Ewing has been explained in footnote 10, above. Miller, who spends 80 to 90 percent of his time in the work- ing area of the plant, has a leadman on the day shift to assist him. This leadman receives 10 cents an hour more than the rest of the employees.13 The supervisor on the evening shift, who also receives 10 cents an hour more than the other employees on that shift, all of whom get a 5-cent per hour night-shift differential, has direct responsibility for the work on the night shift, getting only general instruc- tions, with intermittent visits from Ewing and Miller, who share the overall responsi- bility for the second shift. There is extensive and not very consistent testimony as to the supervisory status of the second-shift supervisor, who is also referred to as the leadman. It should be noted that apparently it is only the second-shift supervisor whom the Respondent considers a supervisor, and that apparently the General Counsel, at least during most of the hearing, considered neither the leadman nor the supervisor to be a supervisor, within the meaning of the Act.14 In any event, while doing so is perhaps not indispensable to determining the issues herein, since interrogation definitely cannot be considered an issue, I believe it will be better to determine which, if either, of these positions is supervisory, withm the meaning of the Act. On all of the evidence, I am convinced and find that the leadman on the day shift, while closer to management than other employees on that shift, is essentially only Miller's assistant, and is not a supervisor within the meaning of the Act. On the other hand, the second-shift supervisor, at all times material Welker, exercises responsibility for the second shift, and most of the times he does so without any superior being present in the plant. Welker carries a key to the plant, and is responsible for directing the work of the second-shift employees. I am also confident that he is expected to report to Ewing and Miller on what takes place during this second shift, and that any recommendation of his would be care- fully considered. Hence, I believe that Welker actually has been exercising super- visory responsibility, within the meaning of the Act, even though he has never spe- cifically been told that he is a supervisor, and despite the fact that I believe that Welker honestly did not think of himself as a supervisor when testifying as a witness for the General Counsel. We turn now to certain testimony about rumors as to union activity and conversa- tions concerning such matters. Ewing testified that "ever since he] had been there," he had been hearing rumors from merchants and other townspeople of the possibility of a union trying to get in the plant. It is scarcely surprising that there would be such rumors in a relatively small community in which a number of citizens obviously are interested in this newly established plant. Ewing also testified as to a number of conversations concerning the Union and rumors about it which he had had from time to time with the above-mentioned William Winkler, a 48-year-old employee with a seventh grade education, who Ewing had known was a member of the Union when he hired him. I believe, for reasons indicated in the footnote, that it is unnecessary to relate most of this testimony.15 Further, without trying to decide whether or not the extent and nature of these various conversations beween Ewing and Winkler would warrant the characterization in the Respondent's brief of Winkler as the one "who constantly ran to the boss to report every rumor about union organi- zation," I think there can be no doubt, from the record as a whole, that Winkler and Ewing had, by the time of the events in issue in this case, become accustomed to conversing rather freely about the Union, about rumors concerning the Union, and about why Winkler was interested in continuing his membership therein, as Ewing knew that Winkler, who has been a member of the Union for some 11 years, actually was continuing to do.16 13 At the time of the hearing, Edwin Coffey, a witness whose testimony is later dis- cussed , was the leadman on the day shift, having become so in December 1958, when he replaced Marlin Sandler, who had been day-shift leadman since the fall of 1958 Sandler was not called as a witness 14 However, the General Counsel took the position during oral argument that "whether Welker is a supervisor or a leadman," it is "safe to sav he was a representative of management in some respect within the meaning of" Harrison Sheet Steel Co , 94 NLRB 81, 82 151n fact, the Respondent did not offer some of this testimony by Ewing to establish the truth or falsity of the content of what Ewing testified that Winkler had told him, but rather to show wi'at was in Ewing's mind when lie did the things in issue in the instant matter 1a Although there is testimony by Winkler to the contrary, it is my opinion that Winkler's explanations to Ewing for continuing his union membership probably included 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It would also appear from the testimony of Winkler, who explained that he talked with Ewing about the Union "once in a while," but only when Ewing brought up the subject, that in one of their earliest conversations, just after Winkler first started working for the Respondent, Ewing told Winkler that as far as the Union coming into the plant was concerned, "it was up to the men." In any event, as Ewing testi- fied, "in the early part of November" Winkler volunteered to Ewing, one day at his work bench, that he had heard "rumors that cards were being distributed." 17 While Ewing did not testify what, if anything, he thereupon said to Winkler on that occasion, it is clear, as we shall presently see, that Winkler, who sometime during the early part of November received union cards to distribute, did not choose to distribute them. 2. Organizational activity and other developments prior to the separation of Sadler and Hoehn For about a month before Sadler and Hoehn were terminated on November 26, a group of employees "on occasions" discussed organizing.18 Late in October or early in November,19 a group of "four or five guys" met Delmar Pohlman, a business agent of the Union, "along the roadside at McBride" and discussed with him how to go about organizing. Pohlman told the group that the way they "would have to do it would be first to sign cards," and that he would see that "they got the cards." Some time having elapsed without having received the promised union cards, Hoehn, who was with Sadler at the time, telephoned Pohlman "to ask him where the cards were." Pohlman told them that "Winkler had the cards " Shortly thereafter, on Monday afternoon, November 24, Sadler, Hoehn, and employee Anton Ruch went to Winkler's home to get the cards from Winkler, who had had them for some time.20 In giving the cards to Sadler, Winkler told him that "he would sign a card if the other men did." When Sadler received the cards from Winkler, Hoehn and Ruch each took a card and then Sadler "took the rest and went down to the plant." 21 It is undisputed that Sadler distributed four cards at the plant that day to the four employees then working on the second shift. Supervisor Welker, who testified that Sadler was at the plant that afternoon "about 4 or 4:30," admittedly signed an application card which he received from Sadler that "same evening." Around dinnertime on the evening of November 24, employee Anton Ruch went to Manager Ewing's home and had a conversation with Ewing, concerning which the testimony of Ruch and Ewing is significantly in conflict. Ruch's version on direct examination is essentially that: He went to Ewing's home "around 7 or 7:30" because the employees had had "a lot of discussion at that time about a raise," and he was "trying to figure out some way" they could get together with Ewing and "talk it over"; Ewing "talked about getting a few of the men" into the office certain death benefits provided for members, and a feeling on Winkler's part that such membership would be necessary if he ever should need to go "back to carpenter work." 11 Having carefully considered the conflicting and contradictory testimony of Ewing and Winkler, which will be more fully discussed later, I accept the convincingly given testimony of Ewing as to the above conversation, rather than Winkler's testimony that he did not "recall talking about a union" with Winkler around the first of November. On the whole, I believe that Ewing discussed the Union with Winkler more frequently and more fully than Winkler's testimony would tend to indicate. is The quotations in the above paragraph are all taken from the Respondent's cross- examination of Sadler, a witness called by the General Counsel, who impressed me, on the whole, as careful and forthright throughout his testimony For reasons which appear presently, I am satisfied that the wage rate then being paid by the Respondent was a substantial factor In this discussion about organizing. 11 Sadler estimated the date as approximately "three or four weeks" before he got union cards from Winkler on November 24 20 Winkler testified consistently on direct and cross-examination that he had received the cards from Pohlman , that he had declined to pass them out himself ; and that he had "kept those cards at home on [his] refrigerator quite a while" 21 The above quotation is from testimony of Hoehn. There is no essential inconsistency In the testimony of Hoehn, Sadler, Ruch, and Winkler as to the way In which Sadler got the union cards from Winkler It will be recalled that the first shift ended at 3 :30 p in , and I ,am satisfied that the above developments at Winkler's home took place not long after the end of the first shift on November 24 PREMIER PANELS, INC. 315 to talk it over; 22 they talked about the Union; and Ewing said, as well as he could remember, that "he wasn't against the union, but it just wasn't the time, the Com- pany wasn't ready for it or something like that." On cross-examination, Ruch unhesitatingly admitted that, during the course of their conversation, he also asked Ewing if it would "jeopardize" his job if he were to join the Union, and that Ewing had told him that it would not. Ruch was not questioned as to whether he told Ewing anything about having been asked to sign a union card. As to what transpired on this occasion, Manager Ewing testified, on direct examina- tion, that on the evening of November 24- Anton Ruch came to my home and asked me, he told me he wanted to talk to me and he told me he had been asked to sign a card and he asked me what bearing it would have on his position at the plant, and I said absolutely none, he would have to make his own decision as to that, and he asked me not to ask him who had asked him to sign this card. . . . I did not. On cross-examination, Ewing again gave essentially the foregoing explanation of the gist of the conversation, pointing out that the conversation had taken place just as he and his wife were ready to eat their evening meal, "a barbecue in the garage." Ewing stated that his wife "was present during all our conversation"; 23 and testified that there was "no mention of raises in that conversation" that he recalled. All factors analyzed, I believe and find that the conversation of November 24 between Ewing and Ruch took place essentially as testified to on direct and cross- examination by Ruch, but with one thing additional, noted below, and that Ewing was mistaken in not remembering that raises were discussed during this conversa- tion. In the first place, I am convinced by Ruch's testimony as a whole and his demeanor as a witness, that Ruch, in a conflict situation which left him highly em- barrassed, was doing his best to answer truthfully questions put to him with as little damage as possible to anyone, and that, having had his work criticized some months earlier by Ewing,24 Ruch was reluctant to give testimony adverse to the Respondent. Further, I have no doubt that wages did concern employees at that time. Not only was Ruch's testimony on this point convincing, but Ewing admitted that on one occasion at the plant, as he was walking past Sadler and Ruch, they "mumbled something about getting a raise." Moreover, Supervisor Welker, whose testimony about the decision at a union meeting that spring to wait about 6 months before trying to organize has been cited, also testified, during cross-examination by the Respondent, that he had heard "from the other boys" that Sadler had "decided to pass out the cards" because he did not "get a raise in pay." In short, everything considered, I believe that Ruch, patently one of the employees then engaged in organizational activity because of dissatisfaction about wages, went to Ewing to sound him out on the question of a wage increase for the employees; that Ruch then became concerned at Ewing's emphasis on that not being the time for a union because "the company wasn't ready for" one; and that Ruch thereupon asked Ewing if joining the Union would jeopardize his job. And while the testimony is consistent that Ewing verbally assured Ruch that joining the Union would not jeop- ardize his job, there can be no doubt, in my opinion, that the total impact of the conversation was to convince Ruch that the Respondent was opposed to having its employees organize at that time. Further, I believe that during the latter part of their conversation, Ruch also told Ewing that he had been asked to sign a union card. As soon as Ewing finished his dinner on the evening of November 24, he drove out to the plant. There he had a conversation with Supervisor Welker, concerning which there are discrepancies in the testimony. According to Welker, Ewing came to the plant that evening between 6 and 8 o'clock and asked Welker to come into the office. As to what then transpired, Welker testified, on direct examination, as follows: I did and he told me that he had heard somebody was going around passing cards and asked me whether I had been confronted by anybody. I told him I was and I had signed a card. 21 Ruch also referred to "the whole bunch of us" in this connection, and later explained that he was not talking about a raise merely for himself but was "wanting us to get together so he could explain it to us," that is to say, about "raises and things like that " 23 Mrs Ewing was not called as a witness ii Ewing testified that Ruch was one of two employees whom he had called into his office "several months" earlier, at which time he had "more or less criticized them for work they had done on the machine." 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When then asked what else had been said, Welker replied, "That was about all." Upon being questioned as to whether Ewing had asked who was passing out the cards, Welker further testified: If I can remember correctly, Bill had asked me who was giving out the cards and I told him that I would rather not say . . . . Bill lust said, "O.K." On cross-examination, Welker acknowledged that Ewing would come on routine visits to the plant to check on its operation, and would consult him, as the one in charge of the night shift, to see whether everything was going all right. Welker also acknowledged that he had been told that there was a rule that he was supposed to enforce that no one not working on his shift was to be in the plant during that shift 25 The version originally given by Ewing, when called by the General Counsel under rule 43 B, of his conversation with Welker was that when he and Welker went to his office, he did not mention "union cards"; that he said to Welker that "there was something strange going on"; 26 and that Welker immediately said, "I will have to tell you that I have signed a card." Ewing also testified that Welker said, "Don't ask me who asked me to sign this card"; that he did not do so; and that he had gone to the plant that evening to make a routine check and not because he had heard that union cards were being passed around. When later called as a witness by the Respondent, Ewing's version of this incident was essentially like the above, except for these added details: Before going into the office, he had asked Welker "how things were going"; after stating in the office that there was something going on, he asked Welker if he "knew anything about it"; thereupon Welker "got shook up a little bit"; and on the way out of the office they talked "about production problems." It is my opinion that, while Supervisor Welker was called as a witness by the General Counsel and was a member of the Union, Welker was testifying truthfully and to the best of his recollection. Further, I believe that while his loyalties were divided, as frequently happens with minor supervisors, especially when their super- visory authority has not been made clear to them, Welker was not biased against the interests of the Respondent. Everything considered, I believe that Ewing went to the plant the evening of November 24 primarily to find out what he could about union activities, which he believed were in progress; that the conversation there took place essentially as Welker's testimony reveals; and that Welker, who was under- standably "shook up" by Ewing' s questions, did not tell Ewing that Sadler was the one who had given him the union card. It is my opinion, however, that the incident as a whole unmistakably establishes that Ewing was then seeking to determine who was responsible for organizational activity among the Respondent's employees at a time which he considered to be premature. On the following day, Tuesday, November 25, organizational activities continued. Sadler, who I am confident was doing the major part of the soliciting, and who then worked on the glue spreader, also referred to as the glue machine, testified unhesi- tatingly that he distributed some application cards on November 25 "on the parking lot before work and some during working hours and at noon," estimating that he dis- tributed "around five" cards during working hours that day. Hoehn, who had signed his own card the evening before, also was active as a solicitor. Hoehn, a member of a crew of three operating the laminating machine , also referred to sometimes as the glass machine, testified that as well as he could remember, he "may have asked two, three, four, five, maybe" employees, and that he was "pretty sure that Bob Moll and Wayne Bauwens," the other members of the laminating machine crew, signed cards which he gave them while they "were setting up the machine to get ready to run." 27 "There is no evidence that such a rule has ever been posted, and whether or not Sadler had ever been informed of any such rule, it would appear that Supervisor Welker signed one of the cards given him by Sadler. rather than telling Sadler that he should not be in the plant In any event I do not understand that the Respondent advances violation of any such role as having been one of the factors entering into its separation of Sadler. 20 Ewing explained, on the stand, that lie made the above remark because "some of the men in the plant" had been "leaving their machines more" than they previously had done 27 It usually takes about the first quarter of the first shift, or the period before the morning break, to set up this laminating machine, which is housed in a relatively smaller room of its own Once it is ready to run, the laminating machine operates continuously thereafter that day It is clear that the laminating machine's operation is essentially different from that of all of the other machines in the plant, none of the rest PREMIER PANELS, INC. 317 Extensive and conflicting evidence as to how much of the time on November 24 and 25 Hoehn and Sadler may have been away from their usual places of work, may have neglected their work, and may have been seen by other employees and by Ewing himself„ along with the bearing of plant rules on such matters, will be con- sidered in a subsequent section of this report, dealing with the alleged discrimina- tions. At this point I believe it would be well to note that, as is indicated by the immediately preceding footnote , the work of Sadler was of a type significantly differ- ent from that of Hoehn, and that Sadler , who was the more active of the two in solicitation, was also the more precise and convincing in his testimony bearing on various phases of matters pertaining to his discharge . It should also be noted now that Manager Ewing, who admittedly suspected that both Sadler and Hoehn were engaging in union activity on company time, and who , in my considered opinion, undoubtedly had noticed that both men were at times on November 25 away from their work stations , testified credibly that he first decided , on the way home on the evening of November 25, to discharge Hoehn , and that it was later that evening that he decided to take action also with respect to Sadler. 3. The separation of Sadler and Hoehn and developments thereafter On the morning of November 26, Ewing took action during two separate inter- views in his office, the first with Sadler and the second with Hoehn , which the Gen- eral Counsel conceded, during oral argument, was tantamount to discharging them, when considered as a total transaction , even though the General Counsel contended that what Ewing told them was ambiguous . Reserving for later consideration the testimony, in several respects inconsistent , as to these two separation interviews, I think it will make matters clearer to note now that I believe that Ewing told Sadler that he was being laid off, but that he told Hoehn that he was discharged. In any event, it is undisputed that an hour after Hoehn had left the office , Hoehn called Ewing on the telephone and asked Ewing if he "would reconsider this discharge to be a lay-off so that he would be able to collect unemployment compensation," and that Ewing told Hoehn that he "absolutely could not" change it to a layoff after he "had already discharged him." 28 Two days later, on the morning of Friday, November 28, the day after Thanks- giving, Winkler went up to Ewing, when Ewing was checking a shipment in the plant, and said, "What's wrong with those two guys?" Ewing replied, "I don't know." Winkler then told Ewing that he "was asked to pass out those cards" but would not do so, and that Hoehn and Sadler came to his home, where he had the cards, and he "gave them to him." One evening shortly after their separation ,29 Sadler and Hoehn went to Ewing's home to ask about getting their jobs back . Ewing told them that "as far as he was concerned" they did not have any jobs . There was also some discussion about the plant in general and about the Union . Ewing, who some 20 years ago was the president of a local of the United Mine Workers, explained that he was not against the Union; that "at one time he was president " of a union; but that "this was not the time for the union down at the plant." 30 On December 3, 1958, the Union filed a petition in a representation case, which was docketed as Case No. 14-RC-3522. A copy of this petition , which described the unit sought as "All production and maintenance employees , but excluding office clericals, guards, watchmen, professionals, and supervisors" at the McBride plant, was received by Manager Ewing on December 4. He immediately forwarded it to the St. Louis office of the Respondent, where it was received on Friday, Decem- ber 5. In the meantime, one evening early in December, when Ewing and his wife were in Perryville at a restaurant which is operated by Edgar Sauer, who has known Hoehn for about 5 years and who had recommended Hoehn for employment when the plant had opened , Ewing asked Sauer if he knew that Hoehn had been "released." Sauer said that he had not heard anything about it. Ewing then told Sauer that he had released Hoehn because his work was not "satisfactory after the union activity of which is so complicated , or requires such setup time , or is continuous in its operation. The rest of the machines are spread out over a large plant area, which Is not partitioned off, and throughout which various materials and products are stored. 28 The above quotations and those in the paragraph which follows are from credited testimony of Ewing 20 The date Is uncertain , but it was obviously prior to December 5 20 The findings in the above paragraph are made on my analysis of credited testimony of Sadler and Hoehn , with which I find no testimony of Ewing's in essential conflict. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD got started." There was also some mention by Ewing that Sadler, whom Sauer did not know, had been released "at the same time." That same evening, following his conversation with Ewing, Sauer telephoned Hoehn and told him that if he wanted his job back, he "might be able" to get it.31 Obviously prompted by the above telephone call from Sauer, Hoehn went to Ewing's home, this time by himself, and asked about getting his job back. Ewing told Hoehn that he "thought it was possible," if Hoehn would "stay" at his work and do his job the way Ewing knew that Hoehn "could do it." They "discussed things down at the plant, discussed the Union." Ewing stated that he "wasn't against the Union, just wasn't the time for it at the plant." As to the conditions upon which it was decided that Hoehn was to return to work, Ewing told Hoehn that he was to do his best to do "a good job," and that he was to start "as a new man on a new job" on the night shift at $1.55 an hour. Hoehn thereafter returned to work on Monday, December 8, on the foregoing basis, and was employed on that basis at the time of the hearing.32 On December 8, the same day that Hoehn returned to work, Ewing agreed, during a long distance telephone conversation with an attorney in the Fourteenth Regional Office, to the details of a consent-election agreement for the unit sought in the above-noted petition. Said consent agreement, put into written form and signed by Ewing for the Respondent, and by Shasserre for the Union,33 was approved by the Regional Director on December 15. The election scheduled therein to be held on December 22, with Local 2022, the Union herein, to appear on the ballot, has been postponed indefinitely, the filing of the charge in the instant matter having intervened. Early on the morning of December 17, Welker telephoned Winkler, informing him that Business Agent Pohlman wanted Winkler "to get the word" around about a meeting to be held that night, because Welker was on the night shift and could not do it. Later that morning, when Ewing was out in the plant, Winkler went to Ewing and volunteered the information that there was "supposed to be a meeting held that night at the Intersection Cafe." On this much of the incident the testimony of Winkler, from which the foregoing two quotations are taken, is consistent with that of Ewing. But as to other aspects of the conversation, their testimony is flatly contradictory, particularly as to whether Ewing told Winkler, as Winkler testified, that "anybody that goes will get fired," or made only the statement, "Well, so they are," and walked away, as Ewing testified. Since this conflict is a crucial one which goes to the heart of the alleged independent 8(a) (1) violation , and involves numer- ous credibility factors and extensively briefed and argued credibility contentions, the problem of what else was said during this conversation will be reserved for the next section of this report In any event, whatever else Ewing actually told Winkler during the above conver- sation on the morning of December 17, it is undisputed that during that day Winkler told several employees that Ewing had told him that if they attended the meeting of the Union that night, they would be fired.34 On the evening of November 17, only Sadler turned up at the scheduled meeting of the Union at which a Mr. Said, "an international representative of the Carpenters Union," was scheduled to tell the employees what the Union could and could not do for them. Hence no meeting was held, but Sadler gave Said a statement, consisting of three pages dated December 17, 1958, which was produced by the General Counsel at the bearing for examination by the Respondent. Also that same evening, Winkler had a telephone conversation with Pohlman during which Winkler told Pohlman that Ewing had told him that morning that men would be fired if they went to the union meeting. It is not clear whether Winkler or ai The findings in the above paragraph are made on credited and uncontradicted testi- mony of Sauer as Quotations in the above paragraph are from undisputed testimony of Hoehn Hoehn had received $1 60 an hour on the day shift prior to his separation It will be recalled that the night shift differential is 5 cents per hour The General Counsel contends that Hoehn's present employment is not substantially equivalent because the rate of pay is 10 cents less per hour and because Hoehn, who was hired shortly after the plant began operating, has lost his seniority. The Respondent contends that Hoehn's present em- ployment is substantially equivalent but that, in any event, whether it is or not is im- material because Hoehn was discharged for cause. 33 See footnote 1, above. 34 Winkler's testimony is consistent that he so told employees, and Ruch gave corrobora- tive testimony. PREMIER PANELS, INC. 319 Pohlman initiated the call, but it may well be that Pohlman called Winkler to find out why none of the men then working turned up for the meeting. In any event, the following day, December 18, the date of the charge in the instant matter, Winkler told Ewing that Pohlman had asked him why he had not passed around word about the meeting, and that he had told Pohlman that he did not want the same thing to happen to him that had "happened to those other two guys." Around "the latter part of December," Sadler, who has not resumed employment with the Respondent, had a further discussion about returning to work. During this discussion, which took place in Ewing's office, Ewing told Sadler, among other things subsequently to be considered, that "there was a potential opening for him" on the third shift 35 C. The alleged threat to discharge employees We return to the threat which Manager Ewing is alleged to have made to em- ployee Winkler, that employees who attended the December 17 meeting of the Union would be discharged. This is the matter about which the Respondent's brief asserts that "one of these two men was lying." It should be noted that this incident not only constitutes the alleged independent 8(a)(1) violation in this case, but that the General Counsel stresses this as a "very important" element in establishing "a con- tinuing anti-union animus on the part of" the Respondent, which, in turn, constitutes a major factor in the General Counsel's position as to the alleged discriminatory treatment of Sadler and Hoehn. What transpired during their conversation on the morning of December 17, up to the point where the version of Winkler and Ewing sharply diverge, has been presented above in its chronological setting, and this total picture must be kept in mind. But before we can adequately analyze this pivotal problem, it will be necessary to have a clearer and more detailed picture of the conflicting evidence in- volved and the contentions pertaining thereto. We begin with a resume of Ewing's testimony. When questioned on direct examination by counsel for the Respondent concerning his having heard "about a union meeting that was to be held at the Intersection Cafe," Ewing gave the following explanation of when and what he had heard from "Bill Winkler": Oh, about 8 o'clock that morning of the day that this meeting was supposed to be held I was out there in the plant and he came and told me that Bernard Welker had called him early in the morning and told him Pohlman had called Welker to tell the men at the plant this meeting was to be in effect. However, Welker said that he was on the second shift and he couldn't very well do it, so he told Winkler to do it and Winkler says he wasn't going to do it about the meeting. . . . However, later that day Winkler did tell me some of the men knew about it on the conversation on the way to work, is the way he put it tome. [Emphasis added.] Ewing further testified that the "only answer" which he made to Winkler's state- ment about the meeting was "Well, so they are"; that he "absolutely" did not make "any such statement" to Winkler as that anybody who went to the meeting would be discharged; that he was aware that such a statement would have been illegal; and that he had "absolutely not" ever made any statement threatening employees with respect to joining the Union. We turn now to Winkler's testimony. Asked on direct examination by the General Counsel what he and Ewing had said during the conversation in issue, which Winkler erroneously thought took place on "either the 25th or 26th" of December, Winkler answered: 1 Well, I told him there was suppose to be a meeting held that night at the Inter- section Cafe and he told me, the way I understood it, anybody that goes will ,get fired. Winkler's direct examination ended with the foregoing answer. Throughout Winkler's subsequent examination, which was rather extensive and detailed,36 Winkler did not retract or substantially vary from the foregoing testimony. There was some elaboration, however. For instance, Winkler explained how Pohlman had called Welker and how Welker had called him about getting the word around, The above quotations are from Ewing's testimony. 4 Winkler's cross-examination, redirect examination, and recross-examination, taken together, are about seven times as extensive as his direct examination 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he admitted that he had , of his own volition, told Ewing that he had been asked to pass around word about the union meeting 37 However, Winkler flatly denied that he had told Ewing that he was not going to do so. Without attempting to exhaust all relevant remaining aspects of Winkler's testi- mony, the following matters also are noted . Winkler's admissions leave no doubt that he told several employees that same day that Ewing had told him that whoever attended the meeting would be discharged . In addition , Winkler undoubtedly be- lieved at that time that Sadler and Hoehn had "been discharged for union activity." 38 Further, Winkler admitted that he knew that if he told Pohlman that Ewing had threatened to fire anyone who went to the union meeting, Pohlman would not blame him for any lack of attendance at that meeting.39 Moreover, there are certain discrepancies in three pretrial statements which had been given by Winkler, and about which he was extensively examined at the hearing, which must be considered, and to which we now turn. The first of Winkler's three signed statements is a one-page document , recorded by one Board attorney early in January 1959, and eventually "signed before" another on April 28 , 1959. There is no mention whatsoever therein of any discussion be- tween Winkler and Ewing about the meeting scheduled for less than a month before this statement was made. The second signed statement is a three -page, unsworn document dated March 3, 1959, taken in Ewing's office by Attorney Coday, counsel for the Respondent, when only Coday and Winkler were present . Above Winkler's signature on the third page appears this sentence, "I have read the above three pages and they are true and correct to the best of my knowledge ." Among various things in this statement, the following excerpts appear to have the most direct bearing on the matter now under consideration: Neither Ewing nor Miller or any boss here ever told me that I would be fired or anything like that if I was for the union or went to union meetings. No one ever told me to tell anyone else that anything would be done against them for belonging to a union or going to a union meeting. About the meeting at the Intersection Cafe . . . I told Ewing about it and I told him that I wasn't going to do much about it. Ewing never said nothing one way or the other about it. That's the only conversation I ever had with Ewing or Miller about any union meeting. Winkler's third statement, "signed and subscribed to before " NLRB Attorney Brown on May 5, 1959, contains only one paragraph, which reads as follows: On the morning of the day that the Carpenter's Union representative was to meet with us, Ewing told me that any one of the employees who attended the meeting would be fired. I told this to several other employees that same morning. The above three statements were received in evidence during Winkler's cross- examination . Thereafter , on redirect, in response to a question by the General Counsel as to whether Winkler had told Attorney Coday "any falsehoods," when making the second of the foregoing statements , Winkler replied , "Not intentionally, but I did," and further testified that Ewing actually had said that employees at- tending the union meeting would be fired. Eventually , when the parties had completed their examination of Winkler , I asked the witness whether there had been any threat or promise of any kind made in con- nection with the taking of any of the three statements, and was convincingly told that there had not been. In response to further questions on my part, Winkler in 371 do not find anything in \Vinkler 's testimony precisely on the point of whether or not Winkler explained to Ewing the Pohlman -to-Welker-to-Winkler sequence by which the request had got to him However, I believe that this background actually was explained to Ewing by Winkler , as indicated by Ev ing' s above-quoted testimony , for I am satisfied that such explanation on Winkler 's part is consistent with the behavior shown in the preceding section of this report ii The admission by Winkler , on cross-examination by the Respondent , that he "did believe it at that time" was convincing °° For what Winkler did tell Pohlman on the night of December 17, and Ewing on the following day, see the second half of the next to the last paragraph in the preceding section of this report. The findings there are based on credited testimony given by Winkler during the Respondent 's cross-examination of him. PREMIER PANELS, INC. 321 essence testified that he was not fearful of any reprisals, on the part of either the Respondent or the Union, because of any of his testimony at the hearing. I then gave Winkler "a full minute" in which to reflect upon the question of whether there was anything in his testimony which he wanted "to clear up or change" so his testi- mony would conform "to the full truth," which he had "under oath promised to tell." After Winkler had sat thinking for one minute, my question was then reasked. Winkler at that point testified that he "wanted that changed in that statement," ex- plaining that it was true that Ewing said "if we go to that meeting, we are going to be fired." The parties were then afforded opportunity further to examine Winkler, but neither the General Counsel nor the Resopndent chose to do so. I will not attempt to summarize all of the numerous contentions bearing on the relative credibility of Winkler and Ewing, which have been so ably and so strongly advanced by the General Counsel and the Respondent, respectively. There are, how- ever, several contentions which it would be well at this point to note. The General Counsel, without in any way suggesting "anything improper on the part of Mr. Coday," contends that to call an older employee with limited education into "the boss's office," without giving him a "choice of talking or not talking," is certain to create "an atmosphere that would tend to frighten anyone in Mr. Winkler's position." The General Counsel, noting that Winkler "did admit on the witness stand that he had lied to Mr. Coday," urges that it "takes a certain amount of courage to admit one has lied under any circumstances." The General Counsel further points out that "to spread this threat" by telling other employees, Winkler was "act- ing contrary to the interests" of the Union, unless Ewing "actually had made the threat, and then [Winkler] would only spread the threat in order to protect the jobs of his fellow employees." The General Counsel believes that Ewing's own union affiliation of some 20 years ago must be discounted because Ewing's "utmost con- cern" now, as the manager of a new plant, is to make the business grow, and that Ewing's having repeatedly told employees that "now is not the time to organize" would tend to corroborate Winkler's testimony that he went further and said that employees "would be fired if they did in effect persist in their union activity." In sharp contrast, the Respondent contends that Ewing "was a credible witness" and that there is "nothing in his entire background" or in his conduct as plant manager which "is consistent with the making of such a statement" as is here in issue. The Respondent also urges essentially that, under circumstances established by the evidence, even assuming that Ewing actually "expressed the opinion that the time was not yet ripe for a union to come into the plant," any such statement would constitute "an innocuous expression of opinion" which could not be considered evidence of an unfair labor practice or serve to demonstrate "any animosity toward unions." Stressing in its brief such factors as Winkler having told Ewing early in November that he had heard rumors about union cards being passed out when Winkler actually had the union cards at home on his refrigerator; 40 Winkler's con- stantly running "to the boss to report every rumor about union organization"; Winkler's alleged retention of union membership only "as insurance against the pos- sible need to go back into construction work at a later date"; and various factors related to the above-summarized statements which Winkler had given prior to the hearing,41 the Respondent contends that Winkler "obviously concocted this story and told it to other employees," and gives the following explanation in its brief for Winkler's having done so: The most reasonable explanation is that it was simply an expression of his own desire to keep the Union out of the plant. As will be shown more fully here- after, he had demonstrated during his entire employment that he did not want the Union. When this occasion arose, he decided to take matters into his own hands, to discourage the Union organization and at the same time to blame the Respondent for the action so that he himself could not be held responsible. Unlike an employee who had never been a union member, Winkler felt the need to conceal from his fellow employees who were pro-union and from the Union itself his opposition to the Union. "For the facts as I have found them on this point, see the latter part of the above paragraph which contains footnote 17 41 Tho brief's discussion thereof concludes as follows Not until May 5, 1959, almost seven weeps after the Complaint was issued in this case, did Winkler suddenly remember an incident which had allegedly occurred over four and one-half months before, an incident which he did not remember less than a month after it allegedly occurred, an incident the existence of which he had previ- ously specifically denied. [Emphasis in original.] 554461-60-vol. 126-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think it only fair to state that, considered in its total context, what is here presented is one of the most closely litigated and puzzling credibility problems with which I have been confronted Certainly there is no easy answer, based on my ob- servation of Ewing and Winkler as witnesses, because neither impressed me as in- herently truthful or as a chronic liar. Each seemed to share some normal human frailties. It is true that on the whole Ewing was a more poised and consistent witness than was Winkler. But I am satisfied that, with respect to certain matters noted else- where in this report, Ewing was less than candid and gave versions more favorable to the Respondent than warranted. On the other hand, I am satisfied that Winkler, an obviously embarrassed and sometimes reluctant witness, was less than candid about the extent of his discussion of the Union with Ewing. Yet I got the distinct impression, particularly at the conclusion of his appearance as a witness, that Winkler honestly believed that Ewing actually had told him that anyone who went to the union meeting in question would be discharged. Nevertheless, this does not necessarily mean that I am convinced that Ewing, in so many words, actually did make such a statement, because I am well aware how subtly Memory can be in- fluenced under circumstances such as were obviously operative in the case at bar. Everything carefully considered and repeatedly weighed and appraised, I am of the opinion that, broadly speaking, the General Counsel's contentions and explana- tions are more plausible that those of the Respondent. However, having said this, I must hasten to add that I think that, in addition to the very real possibility that Ewing actually said that employees going to the union meeting would be fired, there is a second possibility which is at least equally plausible and consistent with estab- lished facts. I refer to the possibility that Ewing, without voicing a specific threat in so many words, may have exhibited such displeasure, irritation, resentment, or dis- gust, whether by glance, gesture, tone of voice, actual words, or some combination thereof, that Winkler, by then undoubtedly aware that Ewing was opposed to the employees organizing at that time and unquestionably convinced that Sadler and Hoehn had been discharged because of their union activity, honestly and under- standably inferred and feared that whoever went to the meeting was putting his job in jeopardy.42 Winkler's beliefs and feelings being what they then were, such fear on Winkler's part might have been aroused by Ewing's using an exclamation point of vocal sarcasm with such seemingly innocuous words as "so they are." In any event, while I am convinced that Winkler honestly interpreted whatever it was that Ewing actually said and did on that occasion as constituting a threat to the job security of any employees who might go to the union meeting, and while I believe that on that occasion Winkler also told Ewing that he was not going to pass around word about the meeting, I am not satisfied that the weight of evidence as a whole, all of the subtleties of the situation considered, warrants my finding that Ewing actually made the threat in question. In short, while the matter is not free from doubt, I find that the General Counsel has not sustained the burden of proof as to the allegation that the Respondent threatened its employees with discharge or other reprisals if they attended a meeting sponsored by the Union. Accordingly, it will be recommended below that said allegation of the complaint be dismissed. D. The allegations as to discriminatory treatment of Sadler and Hoehn 42 1. The issues and the broad contentions We come now to the issues concerning discrimination, which have been briefly epitomized above in the first paragraph of section III, A. Because of the complexity of the issues remaining for determination, it will be helpful to present, by way of orientation before proceeding further, some of the broader contentions of the parties on these matters, reserving detailed contentions for later consideration.44 d I have not overlooked the possibility that Winkler may have been so fearful at this time, and so eager to curry favor with the Respondent and thereby to fortify himself from reprisal because of his own long membership in the Union, that he interpreted whatever Ewing actually did say as an invitation to him to tell other employees to keep away from the union meeting. In this connection, it is interesting to note that one of the things which Winkler denied, in the statement which he gave to Attorney Coday, was that he had ever been told to tell anyone else, etc. See the second of the above quotations from said statement. 4S What has been said above, in footnote 9, applies equally to findings throughout this section of the report also 44 Some minor contentions, all of which have been weighed, will not be spelled out hereinafter. PREMIER PANELS, INC. 323 As I understand his basic positions, the General Counsel contends essentially that: "a continuing anti-union animus" on the Respondent's part has been shown by the evidence; 45 Manager Ewing was opposed to the employees organizing at that time and was actively seeking to fix responsibility for organizational activity which he knew was going on; it is reasonable to infer that Ewing was correctly able to fix that responsibility on Sadler and Hoehn; the element of timing is a significant factor to be considered; Sadler and Hoehn, despite some elements in their "work background that indicates some discipline might well have been taken," were essentially satis- factory employees; 46 the respective work histories of Sadler and Hoehn were not such that their being away from their work stations on November 24 and 25 actually could have constituted "the last straw" in the Respondent's motivation; and the Respondent's inflicting of such extreme penalties on Sadler and Hoehn can be ex- plained only by inferring that the Respondent's opposition to its employees organiz- ing at that time played a substantial role in motivating its action. I think we can best get our initial picture of the Respondent's basic position con- cerning its treatment of Sadler and Hoehn by summarizing the opening statement, referred to hereinabove,47 made at the hearing by counsel for the Respondent, and by then presenting the overall explanation testified to by Ewing. In so doing, we reserve for later consideration other details of Ewing's testimony and certain specific contentions in the Respondent's brief. The Respondent's position in its opening statement was that: Hoehn worked on the laminating machine, which operates continuously and "requires constant atten- tion"; Hoehn was discharged because he "left his work station and wandered about that plant" on November 24 and 25 to a "greater degree than he had ever done before"; he had done this, in spite of a "posted notice to the effect that he should not do so" and in spite of his "having been warned about the matter"; and Hoehn would have been discharged for such conduct "regardless of his purpose in running around the plant." With respect to Sadler, the Respondent's position in its opening statement was that Sadler, whose "work record," except during his earliest days of his employment, "had not been good in terms of attention to his work," had been discharged for "this same culmination of offenses," when he had been seen numerous times on November 24 and 25 "wandering about the plant away from his work station." Upon my asking about the relative roles of "a previous background of unsatis- factory work" in the respective cases, counsel for the Respondent explained that there was "a degree of this same offense prior to the last two days" with the respect to Hoehn, although "not nearly as much"; in short, that while Hoehn's behavior on November 24 and 25 "was the last straw, also," prior to those last 2 days, Hoehn's "offenses" had not been as "frequent" as those of Sadler. It should also be noted that, shortly before making the above statement, counsel for the Respondent, in arguing an earlier-mentioned motion to quash a subpena, stated that there was not and never had been any "contention that Mr. Sadler was terminated because of any lack or slow-down in production." We now note the basis explanations given at the hearing by Manager Ewing for these terminations. After detailed testimony, on direct examination by counsel for the Respondent, as to the various times and circumstances under which he had seen Sadler and Hoehn away from their respective jobs on November 24 and 25, Ewing explained that: He did not "do anything as to warning them"; he "just thought it over in [his] mind"; it seemed to him that Sadler and Hoehn were not "interested in their jobs" and that they were "definitely jeopardizing the safety of their fellow employee [sic] and also the quality of the product"; on November 25, before leaving the plant, he made up his mind that he was "going to do something about Hoehn's action in the plant"; "on the way home" that evening he made up his mind to discharge Hoehn; while he was eating dinner, he "got to thinking Sadler was doing the same identical thing as Hoehn" and was no better than Hoehn "as far as his job" was concerned; and he then made up his mind to discharge both employees. Ewing also testified, on direct examination, that at the time he discharged Sadler and Hoehn on November 26, he "absolutely" had not known that they were "passing 41 While this contention of the General Counsel is weakened by my failure, in the foregoing section of this report, to find a threat of discharge, I do not understand that the General Counsel's basic positions are changed thereby 46 As to what elements in the backgrounds of either might have warranted what types of discipline, the General Counsel was quite ambiguous, and seems to modify this position, in turn, by a broader contention that other employees have violated plant rules without being disciplined for so doing. 47 See footnote 4 and the text at that point. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out" cards, although because of what he had heard from Ruch and Welker, "there was a slight suspicion that could be what they were doing." Ewing also testified, on direct examination, that there was "no excuse for their actions" on those last 2 days; that his suspicion that they may have been passing out union cards had absolutely nothing to do with his decision to discharge them; and that it would have made "no difference whatsoever" if Sadler and Hoehn had been "selling tickets for a church social." On cross-examination, in response to a specific question by the General Counsel as to just why he had discharged Hoehn, Ewing replied "for unsatisfactory work," and explained that by that he meant that Hoehn had "neglected his machine" and that in doing so Hoehn had "jeopardized the safety of his fellow employee and the quality of the product both." In answer to a similar specific question as to Sadler, Ewing explained that it was "for practically the same reason except there was no jeopardization on employees' safety," explaining that it was more the fact that Sadler was "negligent in his work and the fact he did not stay at his position at his machine" that had led him to "classify" Sadler's work as being "unsatisfactory." Because my intensive study of the record in this case has persuaded me, for reasons which presently will more fully appear, that the cases of Sadler and Hoehn are not actually nearly so Siamese-twin like as many of the contentions of the General Counsel and the Respondent seem to assume, I believe that it would be well at this point to quote one sentence from the concluding section of the Respond- ent's brief, which illustrates this relative lack of dichotomy in the total view taken by respective counsel. Thus the Respondent's brief, after asserting that it was im- material to the Respondent what Sadler and Hoehn "were doing while away from their work stations," makes this statement: What was material was that they flagrantly flouted the rule against leaving their work stations, even though they had both been previously warned about this very offense. 2. Certain general considerations Before taking up the respective cases of Sadler and Hoehn separately, certain general considerations, some of which have been touched upon earlier in this report, should be discussed. It will be recalled that it was not until the afternoon of Monday, November 24, that Sadler received the union cards from Winkler and took them to the plant during the second shift.48 Hence, since Sadler and Hoehn both worked on the first shift, if Manager Ewing actually saw them away from their work stations on November 24, as he testified that he did, Sadler and Hoehn obviously were not distributing union cards at that time, although they may have been discussing the desirability of organizing. In any event, Ewing learned that union solicitation was underway from his conversations with Ruch and Welker on the evening of November 24, and I have no doubt that he was thereafter seeking to identify the leaders in such activity. Moreover, Ewing's testimony about his observations on Monday was not so con- vincing as his testimony about what he saw Sadler and Hoehn doing on Tuesday, when I am satisfied that Ewing noticed that both men were at times away from their places of work. Further, it should be noted in this connection that the knowl- edge as to the behavior of Sadler and Hoehn during those "last two days," on the basis of which Ewing testified that he acted, came, so far as the record shows, from Ewing's own personal observation, rather than from any reports of other employees or supervisors, such as Superintendent Miller, who normally spends 80 to 90 percent of his time in the plant.49 Among factors already touched upon, which should be kept in mind, are sig- nificant differences in the types of work then being performed by Sadler and Hoehn; the relatively greater amount of union activity engaged in on the part of Sadler; and the fact that Sadler, generally speaking, impressed me as being a more precise and convincing witness on matters now material than Hoehn.50 Moreover, generally speaking, Ewing's testimony about matters pertaining to Hoehn's discharge was, in my opinion, more persuasively given than was his testimony respecting Sadler's 48 See footnote 21, above. 49 As noted earlier, Miller was not called as a witness Moreover, testimony of em- ployees Ruch and Coffey to the effect that Sadler and Hoehn were away from their places of work more than usual on November 24 and 25, which tends generally to corroborate Ewing's testimony, was testimony as to what Ruch and Coffey had observed, and not as to anything which they had reported to Ewing. Coffey had not by that time become the day-shrft leadman, as indicated in footnote 13, above. 50 See footnote 27, the paragraph to which it is attached, and the paragraph following it, PREMIER PANELS, INC. 325 separation, which testimony, on the whole, had about it an overtone of afterthought. Hence, in what follows during the discussion of the respective separations, where there are conflicts in the testimony , Ewing's version in Hoehn's case is usually cred- ited in preference to the version of Hoehn, while in Sadler's case, Sadler's version generally prevails as more convincing than that of Ewing. An additional consideration remains to be stated . During the week of October 26, the Respondent posted, on its bulletin board by the timeclock, a one-page document, typed in red and captioned "SAFETY RULES." 51 This document contains six separately stated and numbered rules. These six rules are followed by the statement, "ANYONE NOT COMPLYING WITH ABOVE RULES WILL BE SUBJECT TO DISCIPLINARY ACTION OR DISMISSAL." This posted notice is signed "The Management." It is my carefully considered opinion that only the last two of these rules are material to the issues in this case .52 These ma- terial rules, numbered 5 and 6, are herewith set forth: 5. Do not leave any machine unattended, while it is in operation. 6. Do not leave laminating machine, while it is in operation , for "break" or lunch period until you are relieved by another person 3. The discharge of Donald Hoehn Donald Hoehn, a 23-year-old married man with two children, who was recom- mended for employment by a local businessman, Edgar Sauer, started working for the Respondent in March 1958.53 After helping set up machinery for some 3 or 4 weeks, Hoehn's first production job was on the laminating machine, also called the glass machine; he continued to be one of the members of the crew of three on that machine until he was discharged on November 26, 1958. The laminating machine, which is, as noted earlier, housed in a separate room in the plant, is the most complex machine in the plant, and the only one which operates continuously after it has been set up. This setup procedure takes approximately the first quarter of the first shift, so that the laminating machine usually starts its run shortly after the morning break period. It operates thereafter continuously, right through subse- quent lunch and break periods, until the material prepared for its day's run has been exhausted This usually occurs around the end of the first shift, but sometimes not until an hour or so after the second shift has come to work, in which case the second-shift employees finish out the day's run on this continuously operating machine. This laminating machine actually fabricates, in various colors and thicknesses,54 the polyester fiberglass face and back cloth used in the assembly of the "insulated laminated sandwich panels" which the plant produces. Other materials, such as cement-asbestos board and styrofoam core, are purchased by the Respondent, and stored in various sizes and thicknesses in stacks around the plant area outside the laminating-machine room. The description which follows of this machine, which plays such a unique role in contributing to the Respondent's relatively new and novel product and which was observed in operation during the trip through the plant, is given partly in the words of Manager Ewing, whose obvious pride in this machine is quite understandable The first step, which takes place at what is called the front end of the laminating machine, consists of impregnating with -a "catalyzed polyester resin," which is in 51 While these rules were posted about the time discussion of organizing got underway, the General Counsel makes no contention based on this fact 52 In making the above finding, I am not unmindful of certain testimony about failure of employees to wear safety goggles when operating certain machinery , as is required by the second of these safety rules, and of the contention of the General Counsel that employees have violated that rule without being disciplined. However, having duly considered that phase of the case , I find myself In agreement with the following observa- tions in the Respondent's brief : In the first place , such evidence was extremely sketchy. Of more importance, how- ever, the General Counsel failed to show that the Respondent had knowledge of these alleged violations . One exception to this was the instance where the General Counsel's witness Coffey admitted that he had been disciplined for failing to obey the rule about wearing goggles at all times while his machine was in operation. ra Hoehn testified that he was the sixth employee hired at the McBride plant, but as one man had quit , he was "No. 5 on the list " 63 A number of samples of this fabricated material are In evidence Two thicknesses frequently indicated in a bulletin of the Respondent are 0 018 inch and 0 063 inch 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liquid form, such raw materials as "glass cloth, glass mats, absorbent papers" or some combination of them.55 This impregnated material is then "carried through ,the machine by use of paper and cellophane or a combination of both," which form a protective film above and below at the point where the liquid resin is merged with the cloth. The thus protected combination of cloth in resin passes "around a large metal drum which is approximately 21 feet in diameter," and which is heated to a temperature "varying from 180 degrees to 212 or 215 degrees." As this resin, which starts around this heated drum in a liquid state, progresses around this steel drum, the resin is partially cured to "a jell state." This partially cured product, still being carried between its protective sheets,56 then "passes through a steam tunnel, so to speak, at a temperature from 260 to 275 degrees where it is post-cured." As the polyester fiberglass comes out of what is called the back end of the laminat- ing machine, it is "inspected for flaws, pin holes, and the waste is trimmed off to size and it is cut to a rough length and a rough width." Two of the crew of three on the machine, which has an overall length of some 64 feet, work at the front end; the third crew member works at the back end. At all times material, Donald Hoehn and Robert Moll have been the two members of the crew on the front end; Sadler was the third member of the crew working at the back end of the laminating machine until he was transferred to the glue machine during August 1958.57 The speed with which materials traveled through the lami- nating machine varies with the type of material involved, the range being from a minimum of 4 feet per minute to a maximum of 11 feet per minute, with "normal operating speed" being from 8 to 10 feet per minute. The major controls of the machine are on the east side of the front end where Moll is stationed. They include "a stop, start, and reverse switch, light switch, heater switch for the heater bars, and . . . a switch for the splicing bar," used to splice material. On Hoehn's side of the machine, the west side opposite Moll's position, there is "an emergency stop" switch. Ewing's convincingly given explanation of the reason for this "safety factor" on Hoehn's side of the machine follows: That is there for the purpose of, if the material, if the cellophane breaks or the paper breaks or anything happens to the machine while it is in operation and the man on the east side could not reach his control and the man on the west side could reach his control to stop the machine or in the event the man on the east side got his fingers caught in the squeeze roll or under the belt under the drum the man on the west side of the machine could stop the machine immediately. In my, opinion, the foregoing description of the laminating machine and its opera- tion renders superfluous any comment as to the applicability of the above-quoted rules, which were posted in October. Further, the evidence as a whole convinces me that well before those rules were posted, Ewing had explained to the members of the laminating-machine crew the necessity for staying at that machine while it was in operation, a necessity which my observation of the machine in operation and my study of the record as a whole convinces me was genuine. For instance, Ewing testified that it was important for men working on this machine not to leave their work stations for more than a few seconds while the machine was in operation because to do so would "jeopardize" both fellow employees and "the quality of the material" being produced. He pointed out that men on the machines should leave only for such personal reasons as "getting a drink of water or going to the bathroom," and that they should secure replacements if they were going to be gone for such purposes for any length of time. Moreover, Hoehn admitted that the cellophane or paper would tear and that when this happened it was necessary to stop the machine immediately dt is undisputed that at one time while Sadler was still a member of the crew, Ewing had a discussion with Hoehn, Moll, and Sadler, when he found them talking together "at the approach to the post-cure tunnel" of the machine, away from their actual work stations. On that occasion, Ewing told the three crew members that their jobs were at their respective stations and that they were supposed to stay there 65 The material being used during my observation, woven from fiberglass, was placed in the front end of the machine in a large i nil, not unlike a roll of newsprint in a printing press se During the run which I observed, paper was being used on the bottom side and cellophane on the upper side e7 while it is not possible to tell from the testimony of Sadler or Ewing when Sadler left the laminating machine, it is possible to fix the date as during August, from other testimony explained above in footnote 12 PREMIER PANELS, INC. 327 at all times while the machine "was in operation unless we had a relief," as Hoehn phrased it. Moreover, in explaining what Ewing said to the group, on that occasion, which must have been at least as early as the summer of 1958, Hoehn testified that it was to the effect that "we would be seeing new faces back there if we didn't shape up." In addition to the above group warning, I credit Ewing's convincingly given testi- mony that during the 2 months preceding Hoehn's discharge, Ewing, after having found that Hoehn had been away from the laminating machine, told Hoehn that "he was not suppose to leave that machine," and that he had "been instructed before" to that effect 58 In view of all of the foregoing and certain matters to be developed presently, I believe it would serve no useful purpose to attempt the difficult, if not impossible, task of determining from the testimony of Hoehn and Ewing, and certain testimony of Ruch and Coffey tending to corroborate that Ewing, just how often and under what circumstances Ewing actually saw Hoehn away from work on November 24 and 25. This is partly true because, however exaggerated some of the Respondent's contentions in this respect may be,5° I am satisfied, after carefully studying the evidence as a whole, in the light of the diagram in evidence and my observation of the plant layout, that Ewing saw Hoehn away from his machine on several occasions, under circumstances which would have raised questions in his mind, and that there was at least one incident on November 25 which was particularly flagrant and provocative. I refer to the following incident, described in uncontradicted testi- mony credibly given by Ewing. On the day before he discharged Hoehn, after Ewing had seen Hoehn making one of the several trips which Hoehn made that day past the office,60 Ewing "made a trip back" to the laminating machine and found that "Hoehn was nowhere in sight." Ewing then asked Moll, "Where is your buddie?" Moll only "looked up and grinned and shook his head." 61 It has been earlier indicated that I credit Ewing's testimony that it was on his way home from the plant on the evening of November 25 that he decided to discharge Hoehn. As to what took place when only ,the two were present in Ewing's office the next morning, the findings which follow are made on my analysis of the respective versions of Ewing and Hoehn, which are, except as noted in the footnote, more sup- plementary than contradictory. At the outset, Ewing informed Hoehn that he had some rather unhappy news for him; that he could not tolerate his running around the plant; and that he was going to have to discharge him for unsatisfactory work. Hoehn asked Ewing what he meant by saying that his work was unsatisfactory. "As to this second occasion, Ewing also testified that Moll "was on the other side of the machine" and that he was "almost certain Moll could have heard " Moll, one of the two fellow crew members signed up by Hoehn for the Union on November 25, was not called as a witness. Under all of the circumstances, Hoehn's testimony that he had "never been warned individually" is not credited It should further be noted that I be- lieve that Hoehn was mistaken in his testimony that Ewing had said some "eight or ten months ago" that he would "warn any man three times before he fired him " Ewing convincingly testified that he believed that Hoehn "was confused about the time," and that what Hoehn had reference to was actually a warning system recommended in January 1959 by counsel, under which the Respondent would use printed warning forms, with places for first, second, and third offenses, and that it was the Respondent's "plan to use these slips on minor offenses only." According to Ewing, previously there had been "no set rules as to how many times they,had to be warned." 69 For instance, the contention that, when all of the incidents are added together, it is "clear that Hoehn was away from his work station as much as he was there during those last two days " I simply am unable to believe that Ewing would have permitted so protracted a jeopardization of employee safety and product quality, without any comment whatsoever, as such absences on Hoehn's part would have entailed. 00 Ewing's office is on the opposite side of the plant, over 160 feet from the laminating- machine room, and any employee going from that room to other parts of the plant, in- cluding the men's room and the adjoining smoking area, can be observed through windows in his office. 01 According to Ewing, he was at the laminating machine at least five or six times when Hoehn "had been gone. and his machine was in operation while he was away." It will be remembered that Moll was not called as a witness. Hoehn admitted leaving the laminating machine on November 25 while it was in operation but did not "recall" leaving it for any reason other than to go to the, bathroom or to get a drink of water. Hoehn also testified that he did not think that lie had left his machine that day more than usual, estimating the number of times as "maybe two, three, while it was in actual operation." 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ewing replied that Hoehn had left his machine several times the day before. Hoehn explained that he had had to go to the restroom and Ewing said that if his kidneys were that bad, he should not be down there anyway . Hoehn asked whether he was being dischaged or laid off Ewing informed him that it was a discharge ,62 but that Hoehn could think things over for 30 days , and if Hoehn then had made up his mind to do his work to the best of his ability , he could come back to see Ewing, who indicated that he would be willing to consider rehiring Hoehn. During their conver- sation, Hoehn kept bringing up the question of whether the Union had something to do with Ewing's decision, and Ewing repeatedly insisted that it definitely did not.63 The circumstances surrounding Hoehn 's reemployment have already been set forth in section III, B , 3 In my opinion, in view of the intercession of a local busi- nessman on bzhalf of his married young friend who has two children, I do not consider that the Respondent 's willingness to reemploy Hoehn prior to the end of the 30-day period , which Ewing had given Hoehn in which to think things over, demonstrates lack of real cause for discharging Hoehn. Significant in this connec- tion are the terms upon which Hoehn was reemployed , including Ewing's insistence that Hoehn was to stay at his work and do a good job, and that, as a new employee, Hoehn would lose his seniority and receive less pay. Thus the total transaction of Hoehn 's reemployment amounts to reducing the drastic penalty of discharge to a layoff of less than 2 weeks, with reduction in pay and loss of seniority. Hence, while I agree with the General Counsel that Hoehn did not receive the substantially equivalent employment to which he would be en- titled if the Respondent discharged him in violation of the Act , I cannot help wonder- ing whether, in the General Counsel 's opinion, this substantial modification of the "extreme penalty" constitutes the type of discipline which the General Counsel apparently concedes "might well have been taken" in the light of Hoehn's record. In any event, the essential issue is whether Hoehn 's discharge was discriminatorily motivated, for if it was not, the terms of his reemployment are, as the Respondent correctly contends, not material , unless, of course, the very terms of this reemploy- ment are such as to stigmatize the entire transaction . However, I do not believe that this can be said to be true, under all of the circumstances of this case , even though, as the General Counsel stresses , Ewing reiterated in the reemployment interview itself that he was not against the Union, but that it was not "the time for it at the plant " 64 On this point, I believe it is particularly significant that Hoehn had re- peatedly asked Ewing, during their discussion on November 26 at the time of the discharge, whether the Union had something to do with it. While patient and protracted study of all of the facets of this case , including those discussed in the following section of this report, has not dissipated all doubt with respect to the Respondent's real reason for discharging Hoehn, I am of the opinion that the Respondent's essentially consistent position throughout with respect to Hoehn must prevail . Clearly Hoehn was on a continuously operating machine which required constant attention. Further, while Hoehn had been clearly and repeatedly told that he was to stay at his work station , he was noticeably absent therefrom on November 25.65 Moreover, while I feel certain that Ewing suspected that Hoehn was involved in the organizational activity which Ewing knew was then in progress, there is no evidence that Ewing necessarily believed, when he discharged Hoehn, that Hoehn was primarily responsible for said activity . And finally, I am persuaded , everything considered , that the circumstances under which Ewing found that Hoehn was absent from the laminating machine, while it was in operation on November 25 without having secured 'a replacement were such as to arouse Ewing's indignation to the point where it is believable that Ewing could have decided to discharge Hoehn, regardless of his reason for said absences. Accordingly, although I am not sure that Ewing's clearly established conviction that organization of the plant at that time was premature was not a factor entering 63 As to whether Hoehn was discharged or laid off, I accept Ewing 's testimony that he discharged Hoehn, rather than Hoehn 's that he was laid off e, Hoehn', testimony th-t "the union was mentioned " but that he did not "recall what was said" was not convincing , and the above finding is made on Ewing 's testimony Gi It will be recalled that , shortly bet ore, when Hoehn and Sadler had gone together to see Ewing about getting their jobs back , Ewing had taken virtually the same position az; I have not gone into the troublesome question, concerning which the evidence is ambiguous , as to just how brief an absence from the laminating machine may have been permissible without a replacement for "personal reasons," a matter about which the actual plant practice may have been less than uniform, because I believe that the absences of Hoehn from his work station on November 25 tall partly, in any event , outside of the normal range permitted by such practice PREMIER PANELS, INC. 329 into his consideration in discharging Hoehn, the weight of the evidence as a whole, in my opinion, does not warrant finding that Hoehn's discharge was for any reason other than good cause.66 This being so, the fact that Hoehn, in view of all of the circumstances herein prevailing, has not received substantially equivalent employ- ment is mimaterial Therefore, in the light of all of the foregoing, it will herein- after be recommended that the allegations of the complaint as to Hoehn be dismissed. 4. The termination of Robert Sadler and his continued separation from the Respondent's employ Robert Sadler, admittedly "one of the first employees to be hired," 67 was em- ployed by Ewing, as earlier noted, upon the recommendation of the building con- tractor; Ewing knew that Sadler, then a member of "a labor local," was a union member. After first assisting in the installation of machinery for about a month, Sadler's initial production job was on the back end of the laminating machine. Sadler was part of the crew on the machine when Ewing had the above-discussed talk with them as a group about not leaving their stations on that machine. I am satisfied, upon weighing the testimony noted in the footnote, that this group repri- mand was the only reprimand which Sadler ever received while he was working on the laminating machine.68 As previously noted, it was during August 1958, at the time that Marlin Sandler was taken off the glue spreader, that Sadler was transferred from the laminating machine to the glue spreader. According to Sadler's credited testimony, he was not given "any specific reason" for this transfer. He apparently understood that said transfer was made simply to fill the place vacated by Sandler. Essentially the Respondent's explanation, given in Ewing's testimony and in its brief, for the foregoing transfer is that Sadler's work on the laminating machine began "to deteriorate" so much, due to Sadler's "playing around," that Miller recommended to Ewing that Sadler be taken off the "highly responsible" work on the discharge end of the laminating machine and given another chance, so to speak, at less responsible work on the glue spreader. I have carefully considered all of the testimony of Ewing and the arguments in the Respondent's brief bearing on Sadler's transfer. I have also considered the General Counsel's contentions with respect to this matter. Without detailing the foregoing, I will explain my conclusions with respect thereto. To me it is particularly significant that Superintendent Miller, the one most likely to be in possession of the facts, was not called as a witness to supply convincing details about Sadler's "playing around" and the alleged deterioration of his work. Further, my appraisal of the conflicting evidence, 69 in the light of my observations, convinces me that if it can be said that one of these two positions was essenitally more exacting or responsible than the other, it was the work to which Sadler was transferred. This is true because there is an additional man in the glass storage area who inspects glass after it leaves the laminating machine and before it enters into the finished product. Moreover, as we shall presently see more fully, the posi- tion to which Sadler was transferred on the glue spreader constitutes a crucial step in the final process of combined various materials, including the glass which the Respondent laminates in its own plant, into its final product, insulated laminated 00 Compare the case of Frank Kerr in Geo Byers Sons, Inc, 111 NLRB 304, 315. Also note, in Augioell Curtain Company, Inc, 94 NLRB at 677, the failure of a "highly suspect" incident to establish discriminatory motivation sa Sadler who is 22 years old, has been married 2 years, and has no children, testified that he was "the first one" hired "Sadler convincingly testified that his only reprimand about lea, ing hic post on the laminating machine was the gioup one already discussed Ewing less convincingly testi- fied that one other time, shortly before Sadler went off the laminating machine, he met Sadler "out back where the glass was stored" and had to warn him about leaving the machine Whatever may actually have happened, it is clear that "glass" which comes off the laminating machine is taken back to the storage area, and Ewing did not testify that the laminating machine was in operation at the time of this alleged second warning. Moreover, it is noteworthy that Ewing testified that there is, in addition to the laminat- ing machine crew of three, "another man inspecting glass out of the laminating machine room" in the area where glass is stored, and it would appear that this additional man sometimes serves as a relief man on the laminating machine 6D Among other things, Ewing testified that the back end of the laminating machine involved more responsible work than the work to which Sadler was transferred on the glue spreader Sadler gave contrary testimony 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sandwich panels, which are essentially made up of layers of various kinds of ma- terial glued together. In addition, if Sadler's transfer actually had been made for the reasons which the Respondent now assigns, Sadler surely would have been told why his work had been considered unsatisfactory, and that he was being tried out on another job. But no such explanation was given to Sadler. Finally, the fact that on September 17, 1958, shortly after Sadler's transfer, Ewing admittedly wrote a letter to "the local draft board," requesting deferral for Sadler for from 6 months to a year, makes it particularly hard to credit the Respondent's contention that Sadler had an unsatis- factory work record prior to its requesting his deferral 'i Everything considered, I am convinced and find that prior to mid-September 1958, at which time Sadler was already working on the glue spreader, Sadler had been an essentially satisfactory employee, and that his work record had no "offenses" in it which can realistically be said to have any bearing on the termination of his employment over 2 months later, especially since the group warning which Sadler had earlier received, about the importance of not leaving his post at the laminating machine, was not applicable to the glue spreader, a machine whose operation is not comparable, as we shall now see. As noted earlier by way of general orientation, the glue spreader is one of several machines located, along with stacks of various materials, in the unpartitioned area of the plant, which is housed in a square building, measuring approximately 160 feet on each side. Except for the laminating-machine room , and a few smaller in- closures, such as those housing the laboratory, the men's room, and the office, the remainder of the building, constituting probably some 90 percent of its total area, is devoted largely to material storage and to housing such machines as the glue spreader, the sander, the Porter saw, and the Porter shaper, all four of which are located toward the central part of the open area, are some 20 to 30 feet from each other, and have relatively few obstructions between them. There is also a ,large press, about 34 feet in diameter and some 24 feet from the glue spreader, to which the freshly glued panels go from the glue spreader. Some of the areas next to the respective walls are devoted to such things as a partially enclosed spray booth, a crating department, a sample department, a glass storage area, and a smoking area. This smoking area is located next to the men's room, and along the walls thereof are located facilities for keeping production records. Such crews as are required to operate the above machines are all small. For instance, the Porter saw, from which the glue spreader can be readily observed, was operated at all times material by a crew of two composed of employees Ruch and Coffey, both of whom have been repeatedly referred to hereinabove. The crew on the glue spreader usually consisted of only three employees. Sadler worked on the intake, or front side of this machine, which looks something like a very large wringer, the principal moving parts being large rollers, so arranged that glue may be spread on either one side, or on both sides simultaneously , of material being run through it. An example of such material might be, for instance , a piece of styrofoam core or a piece of cement-asbestos board, let us say some 4 feet wide and 8 feet long, which will, upon leaving the glue machine, as it is also sometimes called, be stacked, by the two men on the back side , with other pieces of material of similar size in such a way as to form a panel some 4 feet by 8 feet in size.li When a sufficient number 70 Ewing testified that lie talked with Prosecuting Attorney Toohey first about Sadler's deferral and that Toohey told him to write the letter. It will be recalled that Toohey is the president of the Development Corporation which owns the building housing the Re- spondent's McBride plant, and that Ewing customarily talks with Toohey if any of the employees are having trouble Surely if Ewing had been having anything like the kind of trouble with Sadler which the Respondent now contends it was then having, it is hard to believe that Toohey, after discussing the question of Sadler's deferment with Ewing, would have suggested writing such it letter. Ewing explained that one of the things he stated in this deferral request was that when you have to "train men" to work on new machinery, it is expensive because of "the number of mistakes they make " I do not credit Ewing's additional testimony that he wrote the letter because lie "felt more sorry for Sadler's family" than because of Sadler s "work in the plant," his wife having talked with Sadler's wife at "a family picnic " It will be recalled that Sadler, while married , has no children. 71 The sample piece from such a panel, which is in evidence, measures approximately 11/4 inches in thickness It is composed, looking at it in cross section, of a very thin layer of polyester fiberglass cloth, which is beige in color, glued to a piece of cement- asbestos board one-eighth inch in thickness, which is in turn glued to one side of a Styrofoam core, a porous material of high insulating value which is about an inch thick, PREMIER PANELS, INC. 331 of such freshly glued panels have been completed, they are placed in the press, where they are kept under pressure until the glue has set. Sadler's responsibilities on the glue spreader included receiving from Miller "the slip showing just what" materials would be needed for any given run of panels; getting these materials together, either by himself or with the help of other crew members; 72 mixing the glue used in the spreader; seeing that the glue reservoirs on the spreader are kept sufficiently filled with glue so that sediment particles do not damage fiberglass facing, which is often quite thin and can be defaced; feeding panel materials into the front side of the glue spreader; seeing that materials so fed are clean enough to avoid marring fiberglass; seeing that the tension on the machine's rollers is such that it does not mash soft material, such as styrofoam; and keeping the daily records of everything run through the glue spreader. I think there can be no doubt that Sadler's work on the glue machine was the most exacting and respon- sible of that of any member of the crew, and that he was actually the leader on this crew.73 As I understand the issues, the only specific incident prior to the events of November 24 and 25, which the Respondent relies upon to show that Sadler, after his transfer to the glue spreader, "continued to be careless in his work," was one occurring some 3 or 4 weeks before Sadler's separation, which resulted in "defective panelling which had to be rejected." 74 According to the Respondent's brief, Ewing and Miller "cautioned the entire crew about their work" on this occasion, and Sadler "admitted at that time that he had let the spreader run out of glue and in doing so it had picked up chips which had gotten into the panelling." Since the foregoing incident occurred not too long before Sadler's separation, and may constitute an element in the "work background" for which the General Counsel ambiguously conceded in oral argument that Sadler might well have been dis- ciplined,75 the evidence thereon will be reviewed. Questioned by counsel for the Respondent on cross-examination about an incident involving a reprimand of the crew by Ewing because of "a lot of bad defective panels," Sadler answered: I remember it this way, the night crew laid up a bunch of panels and they came out with pimples on them and when the day shift came in [Ewing] told the day shift about it, but he got on the day shift for night shift's work. It wasn't just me individually, no. In this connection, Sadler also testified that he had tried to explain to Ewing that the defective work had been done by the night shift; that Ewing never cautioned him about letting the glue run out, except in connection with the above group incident; and that Miller had never warned him about letting the glue run low. which is in turn glued to another one-eighth-inch slab of cement-asbestos board, to which is glued a blue polyester fiberglass cloth Such a panel as the one from which this sample was taken could form part of a wall, with a beige inside finish and a blue outside finish, or vice versa. 72 Occasionally a fourth man would be assigned to the ci ew for a short time. The record shows that the materials used in this major assembly operation, which takes place in connection with the glue spreader, may be stacked almost anywhere in the plant, de- pending on the different sizes and thicknesses needed Also needed at times would be rags and paper cups, which are kept in the laboratory, and occasionally tools, such as a hammer, which might be picked up almost anywhere one could be found 73 This is another reason why it seems to me unbelievable that Sadler's work before his transfer was unsatisfactory, for if it had been, he surely would have been assigned to less responsible work on the back side of the glue spreader, and one of the other members of the crew would have been shifted to the front side of that machine 74 The quotations in the above paragraph are taken from the Respondent's brief. It would appear that any specific issue of "horseplay" on the glue machine, in terms of Sadler putting glue on the handle of a trowel which the members of the crew used to spread glue on spots missed by the mechanical operation of the spreader, has been abandoned In any event, the Respondent introduced no affirmative evidence on this point Sadler admitted, during his cross-examination, that some individuals are so sensitive to the glue used that getting it on their skin can cause a rash. However, Sadler insistently and quite convincingly denied that he had ever put any glue on the handle of this trowel, and it is obvious that such glue as may have got on said handle could have got there from glue on the hands of the crew members, who handle glue- covered material as it comes from the glue machine 75 This ambiguous concession was made about Hoehn and Sadler jointly, and illustrates the lack of dichotomy mentioned earlier herein. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In explaining, on direct examination as a witness for the Respondent , the quality of Sadler's work on the glue machine, Ewing testified about observing panels being taken out of the presses some 3 or 4 weeks before he had discharged Sadler, ex. plaining that one load of panels in particular , work done by the day-shift crew on the preceding day, had such an excessive "amount of dirt" that the panels had to be rejected . Ewing also testified that there were "some but not nearly as many from the second shift." As to what he thereupon did, Ewing testified: I talked to [Sadler] and the whole crew at the same time, and I called Ray Miller over and we cautioned them about it and told them exactly what hap- pened and they didn't deny it, and [Sadler] said he let the glue spreader run out of glue and in doing so it picked up those chips and got to the glass. Considered in the light of all credibility factors and the record as a whole, the testimony about this incident does not convince me that Sadler was particularly at fault. Again we have a situation where Superintendent Miller was clearly the individual best in a position to corroborate Ewing, but Miller did not testify . Sadler, far from admitting that he had let the glue run out, obviously felt that the second shift was to blame. And even on Ewing's version, the excessive amount of dirt showed up in panels made by both shifts, thus raising a serious question as to whether the cause really was a low glue supply, which would entail neglect by two different individuals on separate shifts. Moreover, the record does not show the relative number of panels being made at that time on the two shifts .76 Hence, the "not nearly as many" defective panels from the second shift may have been proportionately even greater. In any event, whatever disciplinary action may have been justified at that time, what the Respondent's two top supervisors actually did was to caution "the whole crew at the same time." We come now to the Respondent's contentions about Sadler 's behavior on No- vember 24 and 25. It will be remembered that Sadler admittedly distributed around five application cards in the plant during working hours on November 25. What has already been said about corroborative testimony of Ruch and Coffey, whose work on the Porter saw obviously put them in a position to observe Sadler, and who evidently observed that Sadler was away from his usual place of work some- what more , on the Monday and Tuesday involved, than he usually was , should be kept in mind .77 Perhaps the simplest and fairest way to present the Respondent's contentions as to what Ewing observed with respect to Sadler, on the 2 days in question, is to quote the following two paragraphs in the Respondent 's brief: On November 24, Ewing, on several of the occasions when he went back to the laminating machine, saw Sadler coming out of the laminating room where he had no business . On a couple of other occasions Ewing saw Sadler come out of the lab where he had no reason to be. On still another occasion he saw Sadler over in the smoking area also where he had no right to be at the time. The next day, November 25, Ewing saw Sadler in the lab four times talking to Moll (who was engaged in work there ) and Hoehn . In addition, he saw Sadler wandering around in the back of the plant and talking to some of the men and constantly running around the plant. On another occasion, Ewing observed the glue spreader running and the rest of the crew laying out the panels, but Sadler was nowhere to be seen. Then Ewing saw him coming back, empty-handed , from the laminating machine room. Sadler appeared to be disconcerted with Ewing 's presence. Aside from stating that I am of the opinion that Ewing exaggerated the extent to which he had observed Sadler away from work on the 2 days preceding Sadler's separation,78 I will not undertake the apparently impossible task of trying to de- 76 It will be remembered that the first shift , on which Sadler worked, was some four or five times larger than the second shift , and that on the laminating machine , the second- shift crew merely completed unfinished runs started by the first shift 77 See footnote 49, above It is also worthy of note that Coffey , who had not signed a union card, testified that Sadler had asked him to sign one before they "went into the building to go to work" ; he did not know "who in particular" Sadler had talked with on November 25 he had seen employees other than Sadler and Hoehn talking together on November 25 ; and there was "a lot of moving around " among employees in the plant, so that one could not "keep track of them all of the time when you have a job to do " 79 Among other findings already made , compare footnote 59, above Further, concerning contentions in the first of the above-quoted paragraphs , it will be remembered that Sadler got rags and paper cups from the laboratory , and that facilities for keeping production records adjoin the smoking area. PREMIER PANELS, INC. 333 termine just how much Sadler was away from his machine on the Monday and Tues- day in question, since I am convinced that, in any event, the evidence as a whole does not support the contention that Sadler, during those 2 days, engaged in any "flagrant flouting" of the rules of the Respondent about which he "had already been repeatedly warned." In the first place, except for the laminating machine, the record does not show that the Respondent had any rule against any employee merely being away from his work station. In fact, the machines in the open area of the plant, including the glue spreader, are the type which are not continuous in their operations, and from which employees go, from time to time, for personal reasons and to assemble various ma- terials to be processed. The only applicable rule here is not to leave such a machine unattended while it is "in operation." I am convinced, from all of the testimony thereon, that "in operation" means while materials are being processed, rather than merely while a motor may be left running. With respect to the glue machine, "in operation" would mean, let us say by way of illustration, while a 4-foot by 8-foot slab of cement-asbestos board was actually being fed through its rollers. Thus this glue spreader could be "running," in the sense that its mechanism was still going after a slab of material had been fed through it, and the member of the crew on the back side could be laying out the panels, and Sadler could be absent for personal reasons or to get more materials-all this without this machine being left unattended while it was in operation, within the meaning of safety rule number 5. And the foregoing is, at most, all that I believe Ewing claims to have seen. Sadler testified convincingly that he had "never left that machine while we were actually in the process of running stuff through," and I credit his repeated and con- sistent testimony to that effect. Hence, since Sadler's group warning, given several months earlier and before the plant rules had been posted, pertained to remaining at his station on the laminating machine, an entirely different type of operation, and since I find that Sadler did not violate the plant rule applicable to the glue spreader by leaving that machine unattended while it was in operation, I further find that the Respondent's contention that Sadler flagrantly flouted the Respondent's rules on November 24 and 25, thereby engaging in the very dereliction for which he had been repeatedly warned, is without merit. In addition, it is noteworthy that there is no evidence that the Respondent has any rule against any kind of solicitation in its plant. Further, it is evident that employees in this large area of the plant go about gathering materials for their re- spective runs and taking care of personal needs, without production-line regimenta- tion, without the necessity for obtaining previous permission to leave their particular machines, and without a requirement that a relief operator first be secured. More- over, in such operations, intervals of idleness between runs are not infrequent occurrences. It also appears that November 25 was a day of less than maximum operation for the glue spreader. Sadler testified that November 25 "was a slow day," one of those days when they did not have "too much work to do," and that there are such times when they do not "have the work to run through." This testimony was convincingly given and I find nothing in the Respondent's evidence which I feel can be said to contradict it. In fact, as earlier noted, counsel for the Respondent stated at the opening of the hearing that there was no contention that Sadler was "terminated because of any lack or slow-down in production." In addition, Coffey testified that the glue machine "operates almost every day"; that it "varies"; and that he wouldn't know" whether or not it operated all day on November 25. In view of the foregoing, I am satisfied that, however much Sadler may have been absent from his machine the 2 days before Ewing called him into the office on November 26, there is no evidence to show that the quality or the quantity of Sadler's work had been affected in any way thereby. Nor did the Respondent introduce any evidence to show any such effect on the work of any other employee. It will be remembered that Ewing's testimony on direct examination equates the conduct of Sadler with that of Hoehn as to its jeopardizing the safety of employees and the quality of the product. However, on cross-examination, Ewing admitted there was no jeopardization by Sadler of the safety of other employees. I am now satisfied that there likewise was no jeopardization by Sadler of either the quantity or the quality of the Resopndent's products, and no violation of any plant rule. In fact, the only way in which the behavior of Sadler and Hoehn can be said to be reasonably similar on November 25 was that both engaged in union activities in the plant on company time. But unlike Hoehn's case, I am unable to conclude that Sadler's activity, on either November 24 or 25, afforded the Respondent good cause for disciplining Sadler, under all the circumstances prevailing. In short, as far as good cause is concerned in Sadler's case, I find neither a sufficiently tangible series 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of previous offenses, nor a last straw of any genuine substance, which can serve reasonably to explain Ewing's decision as to Sadler, a decision admittedly not reached until after Ewing had decided to discharge Hoehn. We turn now to what transpired between Ewing and Sadler on November 26, at the time of Sadler's separation, and again about a month later, when Sadler went back to the plant to seek reinstatement. Ewing had Sadler brought to his office before work on th8 morning of November 26, prior to the above-discussed interview during which Hoehn was discharged. This is Ewing's version of what occurred between him and Sadler, after Sadler had been seated: I told him we were not satisfied with his work. His work was very unsatis- factory and we were going to have to discharge him. He didn't say anything. He just sat there. I said, "Maybe after thirty days you get a chance to think it over and you feel you want to come back and do your work to the best of your ability then I might reconsider hiring you." He still didn't say nothing. He just sat there, so I made an attempt to explain why his work was unsatisfactory. He got up and took off . . . out the door, never said a word. On direct examination, Sadler, having explained that Miller left the office before he was seated, gave this answer, when asked what had been said: Well, he told me he was going to lay me off for 30 days, my work was unsatis- factory and that was the first time I had ever been told my work was unsatisfactory. When asked, on cross-examination, if it was not true that he had "got up and walked out" before Ewing could tell him "the details of your unsatisfactory work," Sadler unequivocally answered, "No, that is not true " In addition, in a subsequent part of his cross-examination, when the word "discharged" was used in a question on another matter, Sadler insisted, quite convincingly, "Well, he told me it was a layoff, that is the way he told it to me." All factors considered, I believe and find that Ewing laid off Sadler for 30 days, stating only that his work was unsatisfactory. I also credit Sadler's testimony that this was the first time that he had ever been told that his work was unsatisfactory, and that he did not leave the office without affording Ewing a chance to explain any reasons Ewing might have had for his action. In fact, I am convinced that Ewing, who knew at that time that Sadler was, under all of the circumstances prevailing at this relatively new plant, an essentially satisfactory employee, and whose decision to take some action about Sadler was obviously an afterthought, did not at that time have any specific explanation to give Sadler, such as Ewing did give shortly there- after in discharging Hoehn. Further, I am convinced that the real thrust behind Ewing's decision to include Sadler along with Hoehn stemmed from the fact that he at least strongly suspected organizational activity on Sadler's part, if he had not actually been able by that time to establish Sadler's role as the primary leader thereof. And it is quite understandable that, lacking real cause for disciplining Sadler, such as he did have with respect to Hoehn, Ewing would have resorted to a 30-day layoff rather than to a discharge.7° Whatever uncertainty there may have been in Ewing's mind, when he laid off Sadler the day before Thanksgiving, was obviously dispelled the day after Thanks- giving by the discussion during which Winkler told Ewing that he had given the union cards to Sadler. And it will be remembered that during another discussion at Ewing's home shortly thereafter, when Sadler and Hoehn went together to see Ewing about getting their jobs back, Ewing told them that, as far as he was con- cerned they did not have any jobs. Moreover, when Hoehn, whose activity on behalf of the Union was clearly overshadowed by that of Sadler, was reemployed on December 8, the Respondent made no effort, so far as the record shows, to get in touch with Sadler to give him an opportunity also to consider reemployment. It was not until about the last of December, approximately 30 days after Sadler had been laid off on November 26, that Ewing and Sadler again discussed the question of reemployment, during a talk in Ewing's office which we now consider. Before this discussion got underway, Superintendent Miller and Marlin Sandler, the first-shift leadman during the last several months of Sadler's employment, left 79 I think it possible, incidentally, that one factor in Hoehn's telephoning Ewing an hour subsequent to Hoehn's discharge to ask if Ewing could change the discharge to a layoff may have been that Hoehn had learned, in the interim, that Sadler had been laid off rather than discharged. PREMIER PANELS, INC. 335 the office and went into the plant, leaving only Sadler and Ewing. Sadler then asked Ewing if he could have his job back. Ewing told Sadler that he would just as soon have him as anybody else, because he was experienced; that "there was a potential opening for him"; that they were "anticipating doing some work on the presses"; and that Sadler "could work with Robert Sandler on the third shift in rejuvenating these presses." Sadler asked what his rate of pay would be. Ewing told him that he would have to start as a new man and lose his seniority, as Hoehn had done. About that time, Miller came to the office and asked Ewing if he was ready to go to dinner. Ewing told Miller that he was, and asked Sadler to come back the following week. Sadler did not thereafter return to discuss the matter further.80 Considering the total pattern of events depicted in this report, I think there can be no doubt that by the time of the above discussion, the last one between Ewing and Sadler, Ewing was well aware that Sadler, at a time when there had been employee dissatisfaction with wage rates, had spearheaded the organizational activity on behalf of the Union. Further, it is clear that by the time of this interview, which Ewing at one point in his examination placed as "several weeks after [Sadler's ] discharge" and at another as "the latter part of December," the consent election which had been set for December 22 had been indefinitely postponed, the filing of the charge having intervened. Moreover, it is significant that there was no mention by Ewing during the above discussion, as there had been on December 5 during the reemployment discussion between Ewing and Hoehn, of any conditioning of Sadler's possibly returning to work on Sadler's staying at his work and doing a good job 8i Further, I believe that the General Counsel correctly contends that the "potential opening" which Ewing mentioned to Sadler-repair work on the third shift, which clearly was not a regular shift at the plant 82-would be only "a tem- porary thing, and certainly not equal in terms and conditions" to Sadler's previous, work on the day shift. When the foregoing is combined with the elements of reduc- tion in pay and loss of seniority, it becomes obvious that what Ewing suggested to, Sadler, at approximately the end of his original 30-day layoff, was far short of a firm offer of reinstatement to substantially equivalent employment. In fact, I believe that the total transaction, seen in perspective, must be treated as tantamount to the Respondent's discharging Sadler and thereafter refusing him reinstatement. As to why the Respondent treated Sadler as it did, I think a careful appraisal of the total pattern of events leaves only one plausible explanation. Despite his office in a union some 2 decades ago and his professions that he was not against the Union, Ewing patently was convinced that the Respondent's employees should not organize at that time, evidently because Ewing believed that the Respondent's rela- tively new operation, of which he was in charge, was not financially ready to meet wage demands, among other things. So when it turned out that Sadler had been the prime mover in activity which Ewing obviously felt was adverse to the interest then uppermost in his mind, Ewing, having separated Sadler from the Respondent's, payroll, has since kept him off it by refusing to offer Sadler substantially equivalent employment. Everything considered, I am convinced and find that the Respondent's ascribed reasons for discharging Sadler are pretexts; that the Respondent, by its total transac- tion with respect to him, has discharged Sadler, and has failed and refused to reinstate him, because Sadler engaged in organizational activity on behalf of the Union; and that by so doing, the Respondent has violated 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 in section III, above, occurring in connection 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 com- merce and the free flow of commerce. 10 The findings in the above paragraph are made on the essentially supplementary testi- mony of Sadler and Ewing, whose testimony as to this incident is not in conflict. The quotations in the above paragraph are all from Ewing's testimony. m In fact, the two individuals who would have been best in a position to explain in, what way Sadler's work had been unsatisfactory, if it actually had been, left Ewing's office as Sadler came in e' Ewing testified that the plant had only two shifts, and that while they had a mainte- nance man "working third shift," it would not be "classified as a third shift." 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent, by discharging and failing to reinstate Robert Sadler, has dicriminated against him in respect to his hire and tenure of employment, and has thereby violated Section 8 ( a)(3) and ( 1) of the Act. I shall therefore recommend that the Respondent cease and desist from such dis- crimination. I shall also recommend that the Respondent offer Sadler immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges .83 I shall further recommend that the Respondent make Sadler whole for any loss of pay he may have suffered by reason of the aforesaid discriminatory treatment , by payment to him of a sum of money equal to that which he normally would have earned , less his net earnings, from November 26, 1958, the date of the beginning of the discrimination against him, to the date of a proper offer of reinstatement to substantially equivalent em- ployment, computation of the amount of backpay due to be made in the customary manner.84 I shall further recommend that the Respondent preserve and, upon re- quest, make available to the Board, payroll and other records to facilitate the check- ing of the amount of backpay due. As the unfair labor practices committed herein by the Respondent are of the type which strike at the roots of employee rights safeguarded by the Act, it will also be recommended that the Respondent cease and desist from interfering in any manner with the exercise by its employees of rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization, within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Robert Sadler, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a)(3) of the Act, and has also thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , thus engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. 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.] 13 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 8s Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v N L.R B., 311 U.S. 7; and F. W. Woolworth Company, 90 NLRB 289, 291-294. Tailored Trend, Inc. and Oscar Swerdlik. Case No. 4-CA-1846. January 26, 1960 DECISION AND ORDER On September 24, 1959, Trial Examiner Leo F. Lightner issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety. Thereafter, the Charging Party filed exceptions and 126 NLRB No. 43.