Rickert Carbide Die, Inc.

RICKERT CARBIDE DIE, INC. 757 violation of Section 8(a) (3) of the statute , and by its attempt , on April 30, 1958, to cause the Respondent Company to discharge her after reinstatement , again in viola- tion of Section 8(a)(3) of the statute, the Respondent Union engaged in and con- tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act , as amended. 7. The unfair labor practices herein found are unfair labor practices affecting commerce, within the meaning of Section 2(6) and ( 7) of the Act, as amended. [Recommendations omitted from publication.] Rickert Carbide Die, Inc. and Carl Walter Beier Rickert Carbide Die, Inc. and Joseph M. Fletcher, Jr. Cases Nos. 7-CA-2283 and 7-CA-2309. February y 23, 1960 DECISION AND ORDER On October 29, 1959, Trial Examiner Owsley Vose issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed .3 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modification indicated below' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor i The Respondent also requested oral argument . As the record, exceptions , and brief adequately present the issues and positions of the parties , the request for oral argument is denied. 2Pursuant 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]. 'The Respondent excepts to the Trial Examiner's refusal to exclude the two alleged discriminatees from the hearing room On motion of the General Counsel the Trial Examiner excluded all other witnesses The determination whether witnesses should be excluded from a hearing is a matter within the discretion of the Trial Examiner. We find no abuse of discretion in this case especially in view of the fact that the two whom the Respondent would exclude filed the unfair labor practice charges in this proceeding. As persons filing a charge , each was a "party" within the Board's Rules and entitled to participate fully in the hearing. Sec. 102 8 Rules and Regulations ; John L. Clemmey Convpany, Inc., 118 NLRB 599, 600; Lewis Karlton, d/b/a Consolidated Frame Company, 91 NLRB 1295. 4 We do not adopt the Trial Examiner 's remarks in footnote 11, as they are unnecessary to the ultimate findings in the case. 126 NLRB No. 99. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that Rickert Carbide Die, Inc., its officers, agents, successors, and assigns, shall : ' 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, UAW-AFIr-CIO, or in any other labor organization of its em- ployees, by discharging, refusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with reprisals if they engage in union activities, or questioning employees as to their union sympathies or activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1). (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, 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 Carl Walter Beier and Joseph M. Fletcher, Jr., immediate and full reinstatement to their former positions, or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered as a result of his discharge, in the manner provided in the section of the Intermediate Report entitled, "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (c) Post at its plant at Dearborn, Michigan, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Re- 5 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 " RICKERT CARBIDE DIE, INC. 759 spondent, be posted by the Respondent immediately upon receipt thereof and maintainedby it for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order what steps it has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Union, United Automobile, Aircraft, Agricultural Implement Workers of America, UAW-AFL-CIO, or in any other labor organization of our employees by discharging them or in any other manner discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with reprisals if they engage in union activities, or question our employees as to their union sympathies or activities in a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organi- zation, to form labor organizations, to join or assist International Union, United Automobile, Aircraft, Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection as guaranteed in Section 7 of the Act, or to refrain from engaging in such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Carl Walter Beier and Joseph W. Fletcher, Jr., reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make each of them whole for any loss of pay suffered as a result of his discharge. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain or to refrain from becoming or remaining members of International Union, United Au- tomobile, Aircraft, Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization. RICKERT CARBIDE DIE, 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 STATEMENT OF THE CASE This proceeding, in which all parties were represented , was heard by the duly designated Trial Examiner in Detroit , Michigan, on July 27 and 28, 1959, upon the complaint of the General Counsel and answer of Rickert Carbide Die, Inc., herein called the Respondent . The issues litigated in the proceeding were whether the Respondent's discharge of Carl Walter Beier and Joseph M. Fletcher, Jr., violated Section 8 (a)(3) of the Act, and whether certain other acts and conduct of the Respondent constituted interference , restraint, and coercion, in violation of Section 8(a) (1) of the Act. Counsel for the General Counsel and Respondent presented oral argument at the close of the hearing. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent operates a machine shop in Dearborn, Michigan , where it manu- factures carbide dies. During 1958, a typical year , the Respondent delivered dies of a value in excess of $100,000 , to customers outside the State of Michigan. I find, as the Respondent admits, that it is engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The International Union , United Automobile , Aircraft and Agricultural Imple- ment Workers of America , UAW-AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharge of Carl Walter Beier The Respondent hired Beier as a surface grinder hand at $3.50 per hour on November 16, 1958. Beier was a member of the Union at the time he was hired. Later in the month Beier joined Clyde Rickert, the Respondent's president, and Gordon Carr in a cocktail lounge. Can was an independent contractor who leased space in the Respondent's plant for his tool cutting machines.' During the conver- sation between the three men, according to Beier , he brought up the fact that he occasionally played cards with a neighbor who was an officer in Local 517 of the Union. Whereupon Carr commented, "if anybody ever talks union at Rickerts that they would close the door up and go out of business." At this juncture Rickert did not say anything? At another point in the conversation Beier mentioned the fact 'After the events involved In this case Carr was made foreman of the Respondent's plant 2 When asked at the hearing whether he had said in effect "that anybody belonging to a union could not or would not be able to work for Mr . Rickert," Carr replied, "I don't remember saying that." Carr also failed to remember any "social affair" in November 1958 at which Beier, Rickert , and Carr had been present . Rickert, although called as a witness at the hearing, was not questioned about this incident . I find that the incident occurred as set forth in the text above. RICKERT CARBIDE DIE, INC. 761 that he was a member of the Union. Rickert replied that it did not make any difference whether a man belonged to the Union as long as he did his work. About the end of January 1959, a group of the Respondent's employees met in the basement of Beier's house and discussed, among other things, the "speedup" then in effect at the plant. It was proposed that they should talk to Rickert about the timing of various jobs. Subsequently, some of the Respondent's employees attended an organizational meeting which was held in the house of Ernie Marion, a neighbor of Beier's, who was an officer in Local 517 of the Union. Beier obtained some union authorization cards from Marion about the first week in February. He took these cards into the shop, gave a few to Joseph M. Fletcher, Jr., cthe other employee whose discharge is here involved, and both men solicited other employees to sign. The Respondent employed about 12 men in its small shop. Near the end of the following week Beier scheduled another union meeting at Union Representative Marion's house for February 16, 1959. On February 13, Beier informed other employees in the shop of the coming meeting. At 3:30 p.m. that same day, February 13, Peter Enderle, the shop foreman, came up to Beier at his machine and the following ensued, according to Beier's undenied testimony: "Peter told me that I was all through, that I should pack my tool box. I was fired. So I said `why?' and he said `Well, I don't know why you are being fired.' He said `Mr. Rickert just told me to let you go."' Beier immediately looked up Rickert in his office and asked him why he had been discharged. Rickert said that Beier's work was "too slow" and that he was not "cutting the buck," meaning not doing his share of the work. Beier replied, "I thought I was making money and doing all right for you." However, Rickert said that he did not want Beier working for him any more, and Beier left the shop. B. The discharge of Joseph M. Fletcher, Jr. Fletcher was first hired by the Respondent in December 1956 as a precision grinder hand. He was laid off at the end of April 1958 and recalled at the end of the following October. As Rickert explained, there were not too many internal grinder mechanics available, consequently he instructed Foreman Karnish to look up Fletcher and offer him a job. Fletcher, as indicated above, was active with Beier in seeking employee signatures on union authorization cards and obtained the signatures of two other employees. When Beier was discharged, he turned over to Fletcher the cards which he had had signed, seven in number. At noon on February 17, several days after Beier's discharge, Beier called the Respondent's shop and asked to speak to Fletcher. When Fletcher came to the telephone in the Respondent's office, Beier asked him whether he could get the names and addresses of the employees in the shop and bring them to him. About 2 p.m. that day Fletcher asked Dorothy Brennan, President Rickert's secretary, for the names and addresses of the men. She asked what he wanted them for, and when Fletcher refused to say, Mrs. Brennan inquired "what do you want them for? Union organization, union activities?" When Fletcher repeated, "I just want them," Mrs. Brennan went on to say "I will try and get them for you." The next morning, Wednesday February 18, about 6:50 a.m., shortly before starting time the following occurred, according to Fletcher's uncontradicted and credited testimony: "Peter came up to me, Peter Enderle [Fletcher's foreman], and said `You are done, Joe. You are fired,' or words to that effect, and I said `what for?' and he didn't have any reason except to say `you are fired,' and I said `How come you didn't call me last night, before this morning?' and he said `I didn't know about it myself until 2 or 3 o'clock this morning."' After Foreman Enderle handed him two checks paying him in full, Fletcher left the shop. At noon that same day, Wednesday, February 18, Beier again called the Re- spondent's shop and asked to speak to Fletcher. Mrs. Brennan answered the telephone . Beier's credited testimony concerning this incident is as follows: A. I asked Dorothy if I could speak to Joe Fletcher, and I heard her say over the phone-speaking to somebody else-"Mr. Rickert, somebody wants to talk to Joe Fletcher." Mr. Rickert got on the phone then and identified him- self, and said "This is Clyde Rickert." . . . And he said "Joe Fletcher is no longer employed here." He said "He was organizing the Union," he said, "and he is not here any more. He has been fired," and he said "He won't be the last one if there is any more union talk," and I said then to Mr. Rickert, I said, "I would-" -I could hardly believe what I was hearing, and I said "I would like to talk to Joe Fletcher," and he said "That's who I am talking about, Joe Fletcher." He said "He has been fired," and I said "Okay. Thank you," and I hung up. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Do you recall if, during this conversation, anyone else was mentioned? A. No, I don't recall him saying any other names other than there was absolutely-that-no, there was absolutely no other names mentioned that I can recall, but he did say "Fletcher has been the second one to be fired, but he won't be the last." Neither Rickert nor Mrs. Brennan, although called as witnesses at the hearing, were questioned about this incident. C. Rickert's activities after the discharges Shortly after Fletcher's discharge Rickert called several of the men into the office and questioned them as to whether they were satisfied with the Respondent's treatment of them. When George Katros was called in he volunteered the fact that he had been given a union card to sign. Whereupon Rickert asked "what happened." Katros informed Rickert that he had torn the card up. Rickert then inquired "what's wrong out there" and offered to "straighten" things out, saying "I don't want a shop where there is conflict or anything like that." Thomas S. Jackson was similarly questioned as to whether he was satisfied working for the Respondent. Rickert asked Arnold Wallis, another of the employees "whose side I was on, if I was on his side or if I was on the other side." Rickert then went on to say, "If you are on the other side I don't want you here. . You know who I mean by `the other side.' I don't mention no names." Wallis said that he was on Rickert's side.3 Around the middle of April, about the time the men received notice that the General Counsel's office would like to take statements from them regarding this case, Rickert approached the machines of -Jackson and Charles Lively and com- mented, "this s.o.b. Beier is suing me . . . but no God damn union is going to get in here and run my shop." 4 On another occasion, Rickert similarly com- mented, apparently with reference to Beier, that he was "a general all around trouble maker and union organizer." D. The Respondent's contentions concerning the discharges 1. Beier President Rickert was solely responsible for the decision to discharge both Beier and Fletcher. He did not consult Foreman Enderle, their immediate supervisor, in connection with the discharges, nor did he confer with their former foreman, Karnish. President Rickert testified in general terms that Beier and Fletcher were discharged because they failed to cooperate with his efforts to improve the quality and productivity of the shop. Rickert went on to say that prior to their discharge he had reminded both Beier and Fletcher that they "definitely had to do a little better job. That's all there was about it. Or I was going to make some changes." Foreman Enderle and Foreman Karnish, his predecessor, also testified generally about Beier's alleged slowness or lack of "drive" in his work. To support his general testimony concerning Beier's slowness President Rickert relied on certain cost sheets which he contended showed that Beier on a certain job took an excessive amount of time doing surface grinding operations. Respondent's Exhibit No. 19 is a worksheet giving the Respondent's costs in connection with the production in November and December 1958 of 58 pins for the Ford Motor Com- pany. Under its contract with the Ford Motor Company, the Respondent received $6.50 per pin. According to notations on Respondent's Exhibit No. 19, the cost per pin on this job, on which Beier and four other emloyees worked, came to $12.66 per pin .5 Other cost sheets introduced into evidence, Respondent's Exhibits Nos. 20 and 18, allegedly covering the same operation performed by other employees showed costs of $4.30 and $4.34 respectively, per pin. 3 Rickert was not questioned about this incident. Wallis' undenied testimony is credited. 4 Neither Rickert nor Jackson denied Lively's testimony concerning this incident. I credit Lively's testimony. 5In computing costs on this sheet the Respondent determined the actual cost of mate- rials and labor, added, for overhead, an amount equal to 200 percent of the actual labor costs, and to this total added a figure equal to 10 percent thereof for profit. The unit figure was ascertained by dividing this grand total by the number of pins made. RICKERT CARBIDE DIE, INC. 763 The other cost sheets, however, are not comparable. The markup for overhead and profit on Exhibits Nos. 20 and 18 is computed in an entirely different manner from that on Exhibit No. 19, i.e., by using a flat rate of $10 per hour for labor. The material and tool costs vary considerably in the three exhibits. There was also some difference in the tools used on the three jobs. From this I infer that there was differences in the material used and the way the jobs were run, even though the pins may have all be made pursuant to the same specifications as to size and shape. Unlike Exhibit No. 19, there is no breakdown on Exhibits Nos. 20 and 18 by the various operations involved, such as lathe operations, outside diameter grinding, surface grinding, polishing and finishing, giving the hours spent on each of these operations. Consequently, one cannot determine, by comparing Exhibit No. 19 and Exhibits Nos. 20 and 18, whether it was the surface grinding time which was excessive, or the time spent by other employees on other operations. Nor can it be determined by examining Exhibit No. 19 whether it was Beier or employee Jackson who put an excessive amount of time on surface grinding operations. Both per- formed this operation. Since Exhibit No. 19 does not show the number of pins worked on by each man during the hours spent on this operation, insofar as Exhibit No. 19 shows, it may be that it was Jackson who took an excessive amount of time per pin. For the foregoing reasons I find Exhibits Nos. 18 to 20 to be inconclusive, and they do not, on their face, establish that Beier took an excessive amount of surface grinding time on the Ford pin job. There is no other specific evidence of Beier's slowness. Even assuming that Beier did take an excessive length of time to complete the surface grinding operations involved in the Ford pin job, Exhibit No. 19 shows that the bulk of the work was performed during his first week of employment. The rest was done about the middle of December 1958, 2 months prior to his discharge. The Respondent nevertheless continued Beier in its employment for almost 2 months after the work was done, and about a month after Rickert, according to his own testimony, studied the cost sheet and concluded that Beier had put in too much time on this operation. Upon all of the facts of the case I reject the Respondent's contention that Beier's slowness was a motivating factor in Rickert's decision to discharge him. Rickert's only other testimony bearing on the reason for Beier's discharge was given in response to the question whether he was aware that Beier was coming in late on various occasions. Rickert replied that he was, that he had spoken to Beier about his attendance. Rickert did not mention Beier's tardiness to him when the latter asked Rickert the reasons for his discharge. The record shows that it was not until after Beier's discharge was drawn into question in these proceedings that the Respondent seriously considered Beier's tardiness record. At this time Foreman -Enderle was instructed to go through Beier's timecards and ascertain the occasions on which he had been late. It appears from the timecards that in the great majority of instances Beier was only a few minutes late, and that on only three occasions during the entire period of his employment was he more than 15 minutes late.6 On these occasions he was paid only for the hours he actually put in. The timecards also show that throughout his employment Beier consistently worked long hours of overtime, and that in no full week (i.e., one without holidays) did Beier put in less than 46 hours. The average number of hours actually worked by Beier per week (excluding weeks with holidays and his first and last weeks which were not full weeks) during the entire period of his employment was in excess of 56. In view of the long hours worked by Beier throughout his employment and the informal atmosphere which generally prevailed in the Respondent's shop, I cannot accept the Respondent's suggestion that Beier's tardiness was a cause of his discharge. Foreman Enderle and Karnish, although they had nothing to do with the decision to discharge Beier, also gave testimony concerning Beier's conduct on the job. According to their testimony, Beier frequently left the plant during the workday,7 occasionally left his machine to talk to other employees in the shop, and ate at his 6 It should be noted that the Respondent's timeclock is divided into hundredths of an hoar and not minutes 7 The Respondent's objection on this score apparently is that Beier, by leaving the plant during the day, caused the shop to lose production However, Beier's timecards show that he made up for any short absences during the day by working longer hours As noted above, notwithstanding the hours Beier took off during the day, Beier averaged over 56 hours per week at the shop In these circumstances the Respondent cannot validly complain that Beier unduly disrupted the Respondent's production. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine, contrary to shop rules. Rickert did not mention these alleged shortcomings in his testimony concerning Beier's discharge . There is no showing as to the extent, if at all, that Rickert himself was even aware of this conduct. Since the foreman had no part in the decision to discharge Beier, their testimony concerning these alleged shortcomings , which were not shown to be known to Rickert, is not relevant on the only issue before me on this phase of the case , namely, the motivation underlying President Rickert's action in discharging Beier. 2. Fletcher As noted above, as in the case of Beier, Rickert testified that the quality and quantity of Fletcher's production was not satisfactory . However, in Fletcher's case Rickert, in addition , assigned a specific incident as precipitaing his discharge. Thus, Rickert testified as follows: Late in the afternoon preceding Fletcher's discharge he returned to the shop and was informed by the foreman (apparently not Enderle whose normal shift ended at 3 : 30 -p m.), that Fletcher, in working on a so-called "diesel" job, had scrapped three pieces of material . These pieces of material cost $117.35 each . Rickert immediately directed Mrs. Brennan to make up Fletcher's time. Turning first to the "deisel" incident, Enderle , Fletcher's foreman , made no men- tion of Fletcher's "scrapping" the "diesel" pieces at the time he discharged Fletcher. It is difficult to believe , if the "diesel" incident loomed as large in Rickert's mind as his testimony makes it appear , that Rickert would not have mentioned it to Enderle in directing him to discharge Fletcher. Even at the hearing, although testifying at length as to possible reasons for Rickert's discharge of Fletcher , Enderle did not mention Fletcher's difficulties with the "diesel " pieces as a possible cause of his discharge. Fletcher testified that he did not recall scrapping any jobs the day before he was discharged . He admitted , however, scrapping about six jobs during the entire period of his employment, but he testified that they were "reworkable ." In the face of Rickert's positive testimony that Fletcher scrapped three "diesel" pieces the after- noon before his discharge, Fletcher's rather vague testimony that he did not recall scrapping any pieces on the afternoon before his discharge does not convince me that his work that last afternoon was entirely satisfactory . However, I am not persuaded that the Respondent's loss as a result of Fletcher 's work that last after- noon was as great as is implied in Rickert's testimony that Fletcher "scrapped" three pieces of "diesel" material costing $117 .35 each.8 I find, in accordance with Fletcher's testimony that all the jobs he scrapped were "reworkable," that the "diesel" pieces worked on by Fletcher on his last afternoon were not a total loss. Under all the circumstances of the case , and particularly in light of the affirmative evidence of the discriminatory motivation behind both discharges supra, I reject the Respondent's contention that the "diesel " incident precipitated Rickert's decision to discharge Fletcher. Foreman Enderle and Karnish also gave testimony supporting Rickert's general testimony concerning the alleged inadequacy of Fletcher's work. In brief, they testified that they had spoken to Fletcher about having to improve the quality and quantity of his production.9 While the testimony of the foremen indicates that Rickert might have had grounds for discharging Fletcher, it does not bear on the issue here involved-Rickert's reasons discharging Fletcher at the time he did-since the foremen had no responsible part in the discharge.10 In support of its claim of slowness on Fletcher 's part, the Respondent introduced into evidence Respondent 's Exhibit No. 16 , which is a cost sheet covering three pieces 'As I understand the meaning of the term "scrapping a job" in machine shop par- lance, it does not necessarily mean that the material is a total loss This expression is also used in situations where the finished job does not meet the customer 's specifications and has to be reworked at the shop 's expense in order to be made into a usable item. 9 Karnish testified that Fletcher had scrapped three jobs in a row on one occasion. However, Karnish further testified that he did not think Rickert knew about the in- cident, "it was just between Joe and me" Karnish's observations of Fletcher's work were not recent since he had been relieved of his duties as foreman some 6 weeks prior to the discharges 10 Foreman Enderle testified further that he had observed Fletcher "sleeping" at his machine on various occasions . This latter complaint , however, may be disregarded en- tirely as a factor in Fletcher 's discharge , as Rickert's own testimony affirmatively shows that the only instance of Fletcher 's sleeping on the job Rickert was aware of occurred over a year earlier, prior to the time Rickert rehired Fletcher in October 1958. RICKERT CARBIDE DIE, INC. 765 made for Chevrolet, Bay City, in December 1958. It shows among other things, that Fletcher put in 421/2 hours on internal diameter ( I.D.) grinding operations in the 7-day period ending December 17, 1958. The sheet bears, above the initials of Rickert, the notation, "No good, excessive I.D. time." This exhibit, at most, indi- cates Fletcher took too much time on an operation which he completed over 2 months before his discharge. Rickert's testimony shows that he became aware of Fletcher's work on this job at least by the time he reviewed the cost sheet about 30 days after it was prepared, which was almost a month before Fletcher's discharge. Yet it was not deemed a cause for discharge at that time. The Respondent failed to produce any other records showing more recent slow work on Fletcher's part. These cir- cumstances, standing alone, raise doubts that Fletcher's slowness was in fact a factor in his discharge. In view of the affirmative evidence of the antiunion motivation un- derlying Fletcher's discharge, discussed supra, I find Respondent's contention in this regard without merit. While I have rejected the Respondent' s contentions regarding Fletcher's work, I do not wish to imply that the Respondent had no valid grounds for complaint con- cerning Fletcher's work. On the contrary, I find that the quality and quantity of Fletcher's work on occasion fell below the Respondent's standards, and that his per- formance on these occasions would have furnished good cause for discharge if, in fact, the Respondent had discharged him from these reasons . However, as found below, it was not Fletcher's work but his union activities which were the real reason for his discharge. E. Summary; conclusions concerning the Respondent's unfair labor practices 1. The Respondent's violations of Section 8(a)(3) As stated above, Beier was the instigator of the union movement in the Respond- ent's small shop in which about 12 men were employed. Fletcher was his assistant in these activities. During the week beginning February 9, both men sought the signatures on authorization cards of their fellow employees in the shop. On Friday, February 13, Beier passed along to other employees in the shop word of an organizational meeting to be held at a union official's home the following Monday. At 3:30 p.m. that same day (February 13) Beier was abruptly discharged by his foreman, who was unable to give him any explanation. On the following Tuesday, Fletcher received a phone call from Beier in the plant as a result of which he requested Mrs. Brennan, Rickert's secretary, to furnish him with a list of names and addresses of the men in the shop. At that time she queried him as to whether he wanted them for "union activities." Late that after- noon, after Fletcher had finished work for the day, Rickert decided that Fletcher, too, should be discharged and had Foreman Enderle discharge Fletcher when he reported for work the next morning. Enderle was unable to give any explanation to Fletcher as to the reason for his discharge. The day after Fletcher's discharge, in the conversation with Beier over the tele- phone, Rickert revealed the motivation behind these discharges. Thus, according to the undenied and credited testimony, Rickert said on this occasion "Fletcher is no longer employed here. . He was organizing the Union. . He has been fired. He won't be the last one if there is any more union talk.... Fletcher has been the second one to be fired but he won't be the last." ii The Respondent's contentions regarding the discharge of the two men are not persuasive in light of the foregoing facts. In Beier's case, the Respondent relied primarily on his poor production on the Ford pin job, which dated back, for the most part, to his very first week on the job. As to Fletcher, I have found that Rickert exaggerated Fletcher's difficulties with the "diesel pieces" on his last after- noon of work, and that the Respondent 's general complaints concerning the inade- ii The hostility toward union activity and bargaining which is implicit in the above- quoted remarks was foreshadowed by Rickert's failure to repudiate Gordon Carr's state- ment, made in the presence of Beier, that the Respondent would "go out of business" if "anybody ever talks union at Rickerts." While Rickert said on this same occasion that it did not make any difference to him whether a man belonged to a union, I find that he was speaking of bare union membership, and not the collective-bargaining rights which go along with union membership. In other words, Rickert did not care if his employees individually belonged to a union as long as they did not seek to bargain collectively with the Respondent regarding wages, hours, and other terms and conditions of employment in the shop. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quacy of Fletcher's work, although not without some foundation, were not a motivating factor in Rickert's ultimate decision to discharge him. In view of the entire sequence of events in this case, and the undenied testimony of Beier concerning Rickert's comments over the telephone which clearly reveal the antiunion motivation underlying the two discharges, I find that Fletcher and Beier were discharged by President Rickert in an attempt to nip the incipient union activity in the bud and to prevent the organization of the shop. By discharging Fletcher and Beier for this reason, the Respondent has violated Section 8(a) (3) and (1) of the Act. 2. The Respondent's violations of Section 8(a)(1) In his telephone conversation with Beier on February 18 Rickert stated that Fletcher had been "fired" and that "He won't be the last one if there is any more union talk." This was an open threat of discharge for engaging in union activities and was clearly violative of Section 8(a) (1) of the Act. Subsequently, in the course of questioning various employees about their satis- faction with conditions at the plant, Rickert asked employee Wallis whose side he was on, the Respondent's or "the other side," and then went on to say, "If you are on the other side I don't want you here." In view of the background in which this incident occurred, I find that Rickert, in referring to "the other side," had reference to the Union. By questioning Wallis concerning his union sympathies in a context of a veiled threat of discharge, the Respondent has further violated Section 8(a)(1) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Beier and Fletcher immediate and full reinstatement to their former or substantially equivalent positions without loss of seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less his net earnings during said period, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. I shall recommend also that the Respondent preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of these recommendations. The Respondent's unfair labor practices are such as to indicate an attitude of opposition to the purposes of the Act generally, and accordingly the commission of these and other unfair labor practices in the future is reasonably to be anticipated from the Respondent's past conduct. In these circumstances, the preventive pur- poses of the Act may be thwarted unless the remedy is coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaran- teed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-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 employees Carl Walter Beier and Joseph M. Fletcher, Jr., thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]