Guerdon Industries, Inc.

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact and received instructions not to discuss union activity with any of the employees and "to lust see what happen." In view of the foregoing, it seems to me that the remedy sought by the General Counsel is appropriate and necessary to effectuate the policies of the Act. Accord- ingly it will be recommended that the order herein apply to all terminals of Respond- ent. Public Service Corporation of New Jersey, et a!., 77 NLRB 153. Ben Kostel, d/b/a Kostel Shoe Company, etc., 124 NLRB 651. 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. Truck Drivers, Warehousemen and Helpers Local Union No. 512, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Alterman Transport Lines, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the 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. [Recommendations omitted from publication.] Guerdon Industries, Inc. and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO and Local Union #3204, United Brother- hood of Carpenters and Joiners of America, AFL-CIO. Cases Nos. 12-CA-315, 12-CA-989, 12-CA-1200, 12-CA-12,25, 1.9-CA- 1226, and 12-CA-1227. May 18, 1960 DECISION AND ORDER On February 15, 1960, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceedings, 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 In- termediate Report attached hereto. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations concern- ing the dismissal of Foreman Witt. Thereafter the Respondent and the General Counsel filed exceptions 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, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in the case, 127 NLRB No. 103. GUERDON INDUSTRIES, INC. 811 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addition and the modification ,of the notice to reflect fully the scope of the Order.' 1. The Trial Examiner found that Respondent discriminatorily de- moted C. A. Boston on August 24, 1959, for union reasons, and recom- mended that he be restored to his former or a substantially equivalent position and made whole for any loss of pay resulting from his demo- tion. The Intermediate Report, however, contains no discussion of the facts surrounding this demotion. Based upon the following, we agree with the Trial Examiner that the demotion of C. A. Boston -was discriminatory. At the hearing attorney for Respondent admitted that there was no question that Respondent was aware of this employee's union activity in connection with the 1959 organizational campaign. Boston was first employed by Respondent in February 1959 in the framing depart- ment. After several weeks he was transferred to the finish line where on a morning "break" he asked his then foreman, Clynn Lyons, to sign a union card. Lyons told him he had better put the union cards back in his pocket before he got in trouble. Shortly afterward, as found by the Trial Examiner, Paint Foreman Disbrow came by and said that Boston wouldn't have to pass out union cards to be fired in his department, just having them in his pocket would be enough. The next day, April 10, Boston asked to be transferred back to his original department (framing) and Lyons told him.that he had better get transferred if he didn't want to get fired. In mid-May Boston was made group leader "over the tops" in the framing department. Foreman Summers of framing asked him on several occasions how the Union was going and where meetings were held. During the latter part of July Summers also told him that, if the Union did not get in, the employees would get a raise, and if it did get in, the plant would be closed down. Testimony by Boston as to these remarks by Summers was credited by the Trial Examiner. Summers did not testify. About August 5 Boston was transferred to the job of group leader "over sides" in the same department, at which time he was assured by Plant Superintendent Kennedy that he was doing fine work and "would catch on to the sides easy enough." Kennedy was not asked about this conversation. At this same time Clyatt was made foreman of framing in place of Summers, who took Boston's previous job of 1 Board Member Rodgers does not adopt the Trial Examiner's findings with respect to the events that occurred in 1957, which events preceded the settlement agreement executed on May 26, 1958 . He predicates the Order issued herein solely upon findings and con- clusions with respect to the events that transpired in 1959. Like the Trial Examiner, Members Jenkins and Fanning would rely on the record as a whole. See Courser P08t Pubkshing Company, d /b/a Radio Station KHMO, 102 NLRB 26,' 28. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group leader "over the tops." Shortly thereafter another employee asked Boston whether he was still for the Union, and Foreman Clyatt, who was just coming by, heard Boston say "all the way." According to Boston, Clyatt then told him not to talk about the Union as Ken- nedy had told him to fire anyone who talked for or against it, and he, Clyatt, didn't want to fire Boston. On August 13 Boston's name appeared in an article on the front page of the local newspaper as one of the active union adherents, and, although he was not a subscriber and had never been mailed a copy before, he received a copy through the mail. The following Monday, August 17, Boston talked with Superintendent Kennedy about the article and asked what effect it would have on his job. According to Boston, Kennedy's reply was that he "couldn't do anything until after the election." According to Kennedy, he said only that he knew nothing about the source of the article and suggested that Boston check with the newspaper. The election, which the Union won, took place on August 20. On Monday, the 24th, Foreman Clyatt told Boston that Kennedy wouldn't need him any longer as a group leader. When Boston asked why, Clyatt said, "Boston, you ought to know." Later that week Clyatt brought Boston a slip of paper stating that the reason for the demo- tion was too many repeated mistakes which Boston did not correct, and said that he, Clyatt, hadn't wanted to sign it but Kennedy had told him to. Later Boston showed this slip to Foreman Inspector Nellenbach, who commented that he knew it was not true because Boston was the most cooperative group leader in his opinion, and also observed that he had told Boston if he kept "messing around with the union" he would get in trouble. This conversation is not denied. Nellenbach testified that he was shown the demotion slip by Boston, but was not asked what comment he made. Kennedy initially testified that Boston was demoted for continuing mistakes and wastage of material, also that "we" reduced the leader- men in the finishing department from 5 to 4 as part of a general plan to reorganize. Later he testified that it was Foreman Clyatt's deci- sion-without any discussion with Kennedy-to demote Boston; also that the fact that Boston was so demoted had nothing to do with the policy of the Company "to reduce its over-all personnel." Clyatt's testimony was confusing as to the number of group leaders. At one point he said that Boston was demoted because the "department" needed "only one" leaderman, at another that Boston corrected mis- takes instead of preventing them. He also testified vaguely about an experimental program of increasing the number of leadermen before he was a foreman and Boston was demoted, and implied that Boston's demotion was part of a "reducing back to the normal comple- ment of leadermen." GUERDON INDUSTRIES, INC. 813 We consider the testimony of Kennedy and Clyatt as to the reasons for Boston's demotion unconvincing. The Trial Examiner found, in another connection, that Clyatt showed a "lack of knowledge of re- duction in staff matters" and was "otherwise unworthy of belief." As to Lyons, who denied the remarks attributed to him by Boston, we note that the Trial Examiner did not credit Lyons in other in- stances where Lyons' testimony was disputed. On this record, including Kennedy's statement only shortly before the demotion that Boston was doing fine work and could easily catch on to a new assignment, and Nellenbach's statement that Boston was the most cooperative group leader, we find that Boston's demotion on August 24, shortly after the election, was occasioned by his well- known and continued adherence to the Union, hence was discrim- inatory in violation of Section 8(a) (3) and (1) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Guerdon Industries, Inc., Lake City, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local Union #3204, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization of its employees, by discharging, refusing to reinstate, demoting, transferring, or in any other manner discriminating against employees in regard to hire or tenure of em- ployment or any term or condition of employment. (b) Threatening discharge and plant shutdown or other economic reprisal and promising wage increases or other economic benefit in order to discourage union membership and activity, engaging and threatening to engage in surveillance of union activities, coercively interrogating employees concerning union membership and activities, and participating in circulation of petitions to discourage union mem- bership and activities. (c) 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 labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Charles Stevens immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed and 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make him whole for any loss of pay he may have suffered by reason of his discharge, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (b) Restore Maurice McCleod, Leo Register, and C. A. Boston to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for loss of pay resulting from their demotions. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records under the terms of this Order. (d) Post at its Lake City plant, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, where notices to employees are customarily posted. Rea- sonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed respecting Witt's discharge. 2 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 it Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that : WE WILL NOT fire or demote or transfer or otherwise discrimi- nate against any employee because of membership in or activities in behalf of Local Union #3204, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, or any other labor organization. WE WILL NOT threaten to fire employees or shut down our plant for reasons of union organization. WE WILL NOT engage in, or threaten to engage in, surveillance of union meetings. WE WILL NOT promise wage increases and we will not partici- pate in circulating petitions to induce employees to refrain from union membership and activities. GUERDON INDUSTRIES, INC. 815 WE WILL reinstate and make whole the following employees for any loss of pay resulting from our discrimination against them : Charles Stevens, Maurice McCleod, Leo Register, and C. A. Boston. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self- organization, to join or assist Local Union #3204, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or to form, join, or assist any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection or to refrain from any or all such activities. All our employees are free to become or remain members of thm above-named Union, or any other labor organization. GUERDON INDUSTRIES, 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 consolidated proceeding , with all parties represented , was heard on November 10 and 11, 1959, at Lake City, Florida, before the duly designated Trial Examiner on an amended consolidated complaint (dated October 19, 1959) of the General Counsel and an answer of Guerdon Industries , Inc., Respondent herein. The issues are whether Respondent violated Section 8 ( a)(1) and (3) of the Act. Upon the entire record, from my observation of the witnesses , and upon con- sideration of Respondent's brief filed herein , I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation engaged in manufacturing mobile homes in Lake City, Florida. During the year ending December 31, 1958, Respondent sold and shipped house trailers valued in excess of $50,000 to points directly outside the State of Florida. I find that Respondent is engaged in commerce within Section 2(6) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, herein called UAW, and Local Union #3204, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein called Carpenters, are labor organizations within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This proceeding involves two separate organizational campaigns , the first by the UAW in the spring and summer of 1957 and the second by the Carpenters, beginning in or about April 1959. The UAW lost a Board-directed election on August 21, 1957 (Case No. 12-RC-144); the Carpenters won a similar election on August 20, 1959 (Case No. 12-RC-622), and has accordingly been certified , and presently is, 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statutory bargaining representative. The General Counsel alleges that Respond- ent engaged in specified acts of interference, restraint, and coercion in connection with both organizational campaigns; the General Counsel further alleges that Respondent also discharged Foreman Euart F. Witt in August 1957 for his failure to participate in such stated conduct, that Respondent discriminatorily transferred and/or demoted employees Charles Stevens, Ben Mosely, M. McCleod, Leo Register, and C. A. Boston in 1959, and that Respondent discriminatorily discharged Stevens in May 1959. A threshold procedural problem concerns Case No. 12-CA-315, involving the 1957 events at issue here. A complaint was originally issued in that matter on May 2, 1958, upon charges and amended charges filed by the UAW on February 3 and 12, 1958. On May 26, 1958, the Respondent signed a settlement agreement, which provided, insofar as is material here, that Respondent would post and main- tain for 60 days a notice, which was made part of the agreement, and that Respondent "will comply with all the terms and provisions of said Notice"; that performance with the agreement shall, if the Charging Party appeals, commence upon affirmance by the General Counsel of the Regional Director's approval of the agreement; that the Respondent will notify the Regional Director within 60 days of the General Counsel's affirmance what compliance steps the Respondent has taken; that the complaint shall be considered withdrawn upon the Regional Director's approval of the settlement agreement subject to affirmance of the General Counsel, and that "contingent upon compliance with the terms and provisions Lof the Agreement] no further action shall be taken in the . case." The terms of the notice, with which Respondent agreed to comply, are that. WE WILL NOT threaten our employees with layoff or discharge by saying that if the Union "comes in," the plant will close down. WE WILL NOT warn our employees that we will "get rid" of all the Union men as soon as possible, and that there will never be another Union election at the plant. WE WILL NOT engage in surveillance of Union meetings. WE WILL NOT promise our employees a wage increase if they vote against the Union. WE WILL NOT discharge any supervisor for failure to engage in any of the conduct described above. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Air- craft and Agricultural Implement Workers of America, AFL-CIO, or in any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. The Regional Director approved the settlement agreement on May 29, 1958; and on August 28, 1958, following an appeal by the Charging Party,' the General Counsel sustained the Regional Director's action herein Respondent presumably posted and maintained the notice for the prescribed period and also presumably notified the Regional Director to such effect in conformity with the agreement Charges were filed by the Carpenters in May 1959 And on August 17, 1959, the Regional Director, in behalf of the General Counsel, issued a consolidated complaint on the 1959 charge and in Case No. 12-CA-315, as well; on October 19, 1959, he issued an amended consolidated complaint including matters iaised by amended charges filed by the Carpenters in September 1959. The allegations of the instant consolidated complaint pertaining to the 1957 events are practically the same, if not in haec verba, with the aforementioned complaint issued in May 1958 Contending that the General Counsel has improperly reinstated the earlier case (Case No 12-CA-315), the Respondent asserts that it complied with all terms of the settlement agreement; that a settlement agreement, in any event, does not operate in perpetuity; that the UAW was the Charging Party in the earlier case whereas the Carpenters filed the later charges; that the revival of events 2 years after they occurred, while not barred by Section 10(b) of the Act in the present situation, is inconsistent with the spirit of Section 10(b). Respondent asserts in connection with the last point that most of the supervisors allegedly involved in the earlier case have since left Respondent's emp'oy and that Respondent is without knowledge of their whereabouts; Respondent made no such claim at the hearing, and I have no record information on the matter 1 The Charging Party, the UA\V, was not a party to the settlement agreement GUERDON INDUSTRIES, INC. 817 The first showing in the record of union organizational activities after the UAW lost the election in August 1957, was in or about April 1959 when the Carpenters initiated its campaign. And Respondent engaged in the very same type of conduct in 1959 from which they had agreed to refrain in the settlement agreement. Re- spondent, under the terms of the agreement, agreed not only to post and maintain notices for 60 days, but also agreed "to comply with all the terms and provisions of said notice." Respondent thus violated the agreement at the very first instance of a renewal of organizational activity, and within a year of the General Counsel's affirmance, in effect, of the agreement. And, as also appears hereinafter, much of the unlawful practices were engaged in by supervisors in 1959 whom Respondent did not call as witnesses either to deny or otherwise to explain the conduct attributed to them. This is an act in the public welfare, not primarily for private relief, and the fact that another party filed the later charges is, in my opinion, irrevelant. For it is the General Counsel, not private litigants, whom Section 3(d) of the Act holds responsible for the "issuance" and "prosecution" of complaints. Moreover, as appears in the notice above, Respondent's undertaking was not limited to the UAW. I accordingly find, in the circumstances of this proceeding, that the General Coun- sel's action in reinstating Case No. 12-CA-315, on the basis of postsettlement violations, was not improper or otherwise in contravention of the policies of the Act. Cf. Courier Post Publishing Company, d/b/a Radio Station KHMO, 102 NLRB 26, 27-29. The 1957 Campaign (Case No. 12-CA-315) Wallace MclLhenney was Respondent's plant superintendent in 1957 when the UAW began its organizing drive. Rex Kennedy, the present superintendent, suc- ceeded MclLhenney shortly before the election held in August 1957. In April, early in the UAW's campaign, Superintendent MclLhenney called a meeting of all plant personnel during working hours. MclLhenney told the em- ployees on this occasion that he was aware of the UAW's efforts and that he wanted the employees to know "right then" that Respondent would close down its plant and move out of the State "if a union came in." MclLhenney discussed the UAW at weekly supervisory meetings during this period and he frequently instructed the foremen to do "anything" in order to stop the UAW. Respondent District Manager Van Camp also instructed the supervisory staff to a similar effect. Foremen Charles Russell Morell, Keith Maxim, George Purvis, Conley Wilmont, and Miril Stuart carried out MclLhenney's instructions and, among other things, they told employees that the plant would shut down if the employees chose the UAW as their bargaining representative. The foremen continued these efforts throughout the UAW's cam- paign, particularly during the period immediately preceding the August 20 election. Also, during the period, Foreman Purvis told one of his employees, Charles Crews, that MclLhenney was exerting "pressure . to fire all the boys that participates in the Union" and that he, Purvis, accordingly, "wished" that Crews would quit his union activities. According to the credible testimony of then employee Willard Callahan, Foreman Stuart told Callahan, as indicated above, that Respondent would- close the plant if the UAW came in and he asked Callahan, on another occasion in or about July 1959, to sign a statement withdrawing from the UAW .2 Kennedy, upon becoming plant superintendent, also instructed the foreman to do "anything" the foremen saw "fit" in order to defeat the UAW, including telling employees they would get a wage increase if the UAW lost the August 1957 election and he even mentioned firing employees as a means of combatting the UAW. Fore- man Morrell told employees that the wage increase was one of the reasons for voting against the UAW and he offered to wager any of the employees that the UAW would lose.3 Employee Sidney Williams quit his job with Respondent in September 1957, a month following the election. Foreman Wayne Tomlinson asked Williams in October 1957 whether Williams wanted to return to work. Williams replied that he would like to return but that he had been active in the UAW's organizational campaign and that he therefore did not believe there was any "use" in returning. Tomlinson suggested that Williams discuss the matter with Superintendent Kennedy, which Williams did the next day. According to Williams' credible testimony 2A11 matters recited in this paragraph are based on uncontradicted testimony, except respecting Stuart who in effect denies the conduct attributed to him Stuart was evasive and self-contradictory and otherwise untrustworthy in my opinion ' Morell was not produced as a witness and the testimony concerning him is thus un- contradicted Kennedy did testify, but did not deny the conduct attributed to him in this paragraph 560940-61-vol 127-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied by Kennedy, Kennedy told Williams that he, Kennedy, would not rehire Williams because of Williams' union activities and that he, Kennedy, "was going to get rid of all of them as soon as he could, and there'd never be another union election held out there as long as he [Kennedy] was there, if he had anything to do with it." 4 Euart Witt became a foreman in or about March 1957. Together with other foremen he thereafter received instructions from Superintendent MclLhenney to do whatever they could to stop the UAW as related above. In or about May 1957, MclLhenney directed Witt to discharge three named employees. Witt told MclLhenney, according to Witt's uncontradicted and otherwise credible testimony, that these employees were doing a good job and he thereupon inquired whether the reason for MclLhenney's order was that MclLhenney had "spied" on these three men at a union meeting the night before. MclLhenney said nothing further, but merely grinned and walked away. Witt did not fire the men as instructed. Witt also failed to carry out MclLhenney's, and then Kennedy's, mentioned orders respecting the UAW and its adherents. Kennedy discharged Witt on August 20, the day before the mentioned election. Witt testified that Kennedy stated at the time that this action was because Witt had failed to carry out the aforementioned instructions respecting the antiunion campaign and also because Witt had been seen in the company of UAW officials. Witt had been one of the original union proponents in the plant, although this may have been before his promotion to a supervisory position. Kennedy in effect denied Witt's testimony concerning the discharge conversation and he testified that the reason for the discharge, as he purportedly informed Witt at the time, was that Witt had participated in union activities in violation of instructions that foremen should not do so. 1959 The Carpenters began its organizing campaign early in April 1959, as indicated above, and the record shows that Respondent responded as follows, during the period from April until the election on August 20: Foreman Wayne Tomlinson called a meeting of the metal department during working hours and he told the employees that Respondent would close down its plant and move away if the Union succeeded in organizing the plant, and he also told employee Ben Moseley to be careful about displaying union cards because Respondent was watching every move of the employees and would fire anyone found distributing cards during working hours; Foreman Earl Brown asked employee Leo Register how Register felt about the Union, and Brown called a meeting of his crew and advised them that Respondent would fire any employee who discussed the Union while on duty; Fore- man Fred Summers asked employee C. A. Boston how many members the Union had and where its meetings were being held and he told Boston that the employees would get a wage increase if the Carpenters lost the election but that the plant would close down if the Carpenters won; Foreman Clynn (Sonny) Lyons asked employee Charles Stevens, according to Stevens' credible testimony denied by Lyons, whether Stevens was still for the Union, and he told employees Stevens and George Boston, according to Stevens' and Boston's credible testimony denied by Lyons. that all union members would have "to go" and that Respondent would fire all employ- ees having anything to do with the Union; Lyons also called a meeting of his depart- ment during working hours and he told his employees, among other things, that "all agitators" would have to go, his reference being to the Union, as he indicated at the time according to credible testimony; Foreman Kenneth Richard Disbrow asked employee Leo Register, according to Register's undenied testimony, how Register felt about the Union, and he told employee C. A. Boston, according to Boston's credible testimony denied by Disbrow, that he would fire Boston merely for having union cards in his pocket if Boston were in Disbrow's departments Also during the Carpenters' organizational period, Foreman David Chastain told another foreman that "if the rest of you [foremen] would get rid of these union men like I do, we would kill the union before it got started," and Chastain also told Superintendent Kennedy that Chastain had discovered where union meet- ings were being held, whereupon Kennedy directed Chastain to find out which 4 Tomlinson is also involved in 1959 events as a supervisor. He was not called to testify and matters concerning him are uncontradicted Kennedy, in my opinion, was evasive and self-contradictory respecting some material issues ; on the basis of his testi- mony and demeanor as a witness, I consider him generally unworthy of belief. 5 The conduct attributed to Foremen Tomlinson , Brown, and Summers is based upon uncontradicted testimony . None of these supervisors was produced as a witness. GUERDON INDUSTRIES, INC. 819 employees were attending the meetings and that Kennedy would then fire them. Chastain also told employee Ellis Nettles that he, Chastain, would report any employee whom he found out to be attending union meetings. On an occasion that employees were meeting with Carpenters' representatives outside a garage on the outskirts of town, Chastain came by and remained there for about 10 minutes. Superintendent Kennedy told employee Nettles the next day that Chastain had reported the names of employees who were at the meeting.6 A few days after the Carpenters won the mentioned election on August 21, Lead- erman Fred Melton 7 asked employee Harvey Daughtry to circulate a typed petition which Melton gave him, the petition asking interested employees to sign the petition which read that signatories thereto would not join the Union or pay union dues and that they desired another election. Daughtry showed the petition to his fore- man, Earl Brown, and he asked whether Brown wanted Daughtry to circulate the document. Brown thereupon discussed the matter privately with Assistant Plant Superintendent "Whitey" Busscher, who said he wanted to check on the matter. Busscher left and returned about 5 minutes later and then had a discussion with Brown. Brown thereupon told Daughtry to circulate the petition. Daughtry did so during working hours and then returned the petition to Melton. Leaderman Henry Wilder also openly circulated the same or a similar petition for signature during working hours.8 Also according to the credible testimony of Leo Register denied by Superin- tendent Kennedy and Foreman Lyons, Register had a conversation with Kennedy and Lyons on or about April 23 (Lyons was Register's foreman). Kennedy said on this occasion that the plant would under no circumstances operate under a union and he asked whether Register knew of any Carpenters' members among the employees; Lyons replied that he did not. Kennedy then told Register to report to Kennedy should Lyons acquire such information. Kennedy said that he sus- pected George Boston, Charles Stevens (an alleged discriminatee in this case), and a third named employee of union membership, and Lyons then asked how to "get rid" of these employees.9 Kennedy replied, "Just throw the work on them, make it harder for them, run them off." Several days later, in the presence of Lyons, Kennedy again asked Register concerning the identity of union members, and Kennedy once more stated that Boston and Stevens were union members and that "we got to get rid of them." Lyons, about this same time, told Boston and Stevens in separate conversations the same day, as already mentioned, that all union men would have "to go" and that he hated to lose good employees; he further stated that he wanted to give good men a "second chance" and that they should think it it over Stevens was fired a few days later, as will be discussed. Alleged Discrimination in 1959 The General Counsel alleges that Respondent discriminatorily transferred Ben Moseley to a less desirable job at the same rate of pay on or about April 23, and that it discriminatorily ordered Moseley to perform certain work on August 21 with the knowledge that such work was detrimental to Moseley's health. Moseley entered Respondent's employ in December 1956. He joined the Carpenters Union in mid-April and was elected chairman of the organizing committee on the same occasion. Tomlinson was Moseley's foreman, and Tomlinson called a meeting of his employees on April 23 and told them, as mentioned above, that Respondent would shut down its plant and move away if the plant "went union." That same day, immediately after the meeting, Leaderman Henry Wilder instructed Moseley to perform cool sealing work on top of the trailers; this is messy work with an ele- ment of danger from electrical shock, and the fumes from the cool seal also cause throat irritation particularly to an individual suffering from a bronchial or throat condition Tomlinson knew that Moseley had such medical condition, and that Moseley had never before been assigned cool sealing work. On the occasion that Wilder assigned the cool sealing operation to Moseley, Moseley remarked to Foreman Tomlinson that the assignment was because of Moseley's union activity. Tomlinson nodded his head indicating "yes." 10 Moseley was knocked out by Kennedy (lid not deny the conversations or conduct attributed to him in this para- graph, and Chastain did not even testify. ' No party contends and I do not find that leadermen are supervisors under Section 2(11) of the Act e Brown, Busscher, Melton, and Wilder were not produced as witnesses "Register was the leaderman of the three named employees '-All evidence as to Tomlinson is undenied, as Tomlinson was not even presented as a witness Wilder also was not called. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD electrical shock while doing this work, and after a few days Tomlinson reassigned Moseley to his regular job with the explanation that he, Tomlinson, was taking Moseley off the cool sealing work "on his [Tomlinson's] own." Moseley has not been assigned such work since that time. On August 21, Superintendent Kennedy remarked to Moseley, "Ben, you have won the election [which had been held on August 20]." Later that day, Moseley was required to spend more time in the paint shop than ever before. This too was harmful to Moseley's throat or bronchial condition, as Respondent knew. There has been no recurrence of the paint work situation and I shall not discuss it further because, even if sustained, the recom- mended order would be the same as for the cool sealing incident. Maurice McCleod began working for Respondent in October 1958; he became a leaderman or group leader in June 1959, under Foreman Tomlinson. The General Counsel alleges that Tomlinson discriminatorily demoted McCleod from leaderman to a rank-and-file job on or about August 11 with a consequent loss in pay. McCleod joined the Carpenters in April 1959, and attended union meetings; McCleod attended one such meeting held outdoors on an occasion that Foreman Chastain drove by and saw the group. Tomlinson told McCleod that he, Tomlinson, did not know what happened or why McCleod was "busted." Tomlinson did not testify in this proceeding and Respondent offered no specific defense concerning McCleod except the general one that Respondent was engaging in a program at the time to decrease the number of production workers and leadermen.li Leo Register was demoted on August 24, 1959, from a leaderman to a rank-and- file job with an attendant wage reduction, and the General Counsel alleges that such action was discriminatory. Register entered Respondent's employ in July 1957, and he has been in the finishing department under Foreman Lyons since in or about December 1957. Register became a leaderman in November 1958, and held such position until August 24, 1959. As mentioned above, Superintendent Kennedy, in Foreman Lyons' presence, had asked Register in the latter part of April about Register's knowledge of union members and Kennedy instructed Lyons and Register at the time "to bear down" on Charles Stevens and two other named employees suspected of union membership. Register thereafter joined the Car- penters in May 1959. Respondent meanwhile discharged Stevens on May 4, as is hereinafter discussed, and the instant unfair labor practices' charge concerning Stevens' discharge was filed the same month. Register gave an affidavit to the Board field examiner investigating the Stevens' matter, and shortly afterwards Fore- men Lyons, Disbrow, and Tomlinson separately asked Register what he had told the field examiner; Register's reply to each was that he had, in effect, informed the field examiner that Stevens was fired for union activities. About a week or two before the August 20 election, Foremen Brown, Disbrow, and Tomlinson each asked Register about his union sentiments; he told each, in reply, that he would support the Carpenters.ia According to Register's credible testimony denied by Lyons, Lyons told Register on the occasion of the demotion that he (Lyons) "hated to bust" Register, but that Register "would be busted until all this union . . . was settled." Lyons testified that he had two leadermen under him, Register and Jesse Beck, and that he needed but one leaderman as a result of consolidating their operations. Respondent claims in its brief that Lyons chose Register rather than Beck for demotion on the basis of their comparative seniority and ability, and Lyons testified to such effect. At the hearing, Respondent stated it was raising no issue as to Register's competency. Beck had been in Respondent's employ about a year or so longer than Register, and he had previously been a leaderman in other departments; Beck entered the finishing department as a regular production worker in 1958 under Foreman Lyons, and did not become a leaderman in that department until May or June 1959. Register, it is recalled, had been a leaderman under Lyons since Novem- ber 1958. The record does not establish that Respondent has a seniority policy; in fact, what evidence there is on the matter is contrariwise. The General Counsel alleges that Respondent discriminatorily transferred Charles Stevens to a less desirable job on or about April 13, 1959, and that it discrimina- torily discharged him on May 4, 1959. Respondent claims that it discharged Stevens for being "generally unsatisfactory." Stevens was hired in September 1958 U Respondent's principal witnesses on this reduction -in-staff matter were Kennedy and Clyatt Kennedy' s testimony on this point was vague and inconsistent and Clyatt's testimony demonstrates a lack of knowledge on his part , both witnesses, as I have previ- ously indicated , are otherwise unworthy of belief. 12 The conduct attributed to Foremen Brown , Disbrow , and Tomlinson in this paragraph is undenied. GUERDON INDUSTRIES, INC. 821 in the finishing department; he installed furniture and screens at first, and in or about January 1959 he was assigned to install draperies, and about a month before his discharge he was assigned to the "closer" and "harder" work of finishing bathrooms. Stevens joined the Carpenters on or about April 21, and attended union meetings. A few days later, as already recounted, Kennedy told Register and Lyons that he suspected Stevens and other named employees of union membership and Kennedy instructed Lyons and Register to "make it harder [on Stevens and the others], run them off." Also during this period, as has also been stated, Lyons inquired whether Stevens was still "for the union" and, when Stevens replied he was, Lyons told Stevens that "all the union men had to go, that he [Lyons] wanted to give us good men a second chance," and that Stevens should "think it over." It is also recalled that Lyons and two other foremen questioned Register about the statement Register had given a Board field examiner investigating Stevens' discharge. On May 4, Leaderman Register told Stevens to hand in his tools and that Foreman Lyons had directed his discharge for "loafing." Stevens asked whether Register thought Stevens had been loafing; Register said he did not think so and "if I was the foreman you'd still be working here." Kennedy denies any knowledge of the discharge until it occurred. Lyons testi- fied that he made the determination to fire Stevens and, when asked to state all reasons therefor, he stated "repeated mistakes, agitating the men . . . and for wasting time." Stevens, it is recalled, was hired in September 1958, and Lyons testified that Stevens would do good work at times and not at other times, that Stevens had been unsatisfactory from the very beginning of his employment, and that he (Lyons) had criticized Stevens two or three times each month during his entire employment period.13 As to "agitating the men," Lyons testified that some employees had complained to Lyons that Stevens annoyed them by talking while they were trying to work; Lyons testified that these complaints occurred "a month or maybe two" before Stevens' termination and that he could not recall any particu- lar employee who had so complained about Stevens. Lyons also testified that he, himself, had seen Stevens standing around talking to other employees but that he did not know who had begun these purported conversations. Inspector Nellenbach gave Stevens a "first warning . .. do-better" slip on April 21, 1959, the slip stating "not cooperating," and Nellenbach testified that this was for causing scratches on tile. Nellenbach testified that he told Stevens it was only a first warning and that he would leave Stevens alone if the scratches stopped; although Nellenbach could not recall whether Stevens' work had improved, there is no showing of further "do-better" slips given him. Upon receiving the "do- better" slip in April, Stevens went to Foreman Lyons and announced that he was quitting his job. Lyons asked Stevens to remain, which Stevens did, and Lyons testified that he needed men at that time and that Stevens was not as bad a worker at that time as he had been or as he was on the discharge date 2 weeks later. Lyons testified that the precipitating incident for Stevens' discharge was that, as Lyons further testified, Stevens was standing around. Stevens testified that Lyons made some remark to the effect that he (Lyons) was tired of working while others were standing around; Stevens further testified that he was not standing around at the time and that, so far as he knew, Lyons was not referring to him. Further Findings and Conclusions It is "crystal clear," as Chief Judge Hutcheson has stated,14 that where an em- ployer is "set against" a union's attempt to organize employees, "every equivocal act that was done may be properly viewed in the light of Respondent's animus toward the efforts to organize its men " I am also mindful of the stricture that "opposition of an employer to union organization and restraint, coercion and interference are not enough, without more, to make the discharge of an employee a wrongful one." 15 There is no doubt that Respondent herein is "set against" union organizational ef- forts of its employees and that it is disposed to implement such opposition It is not even contradicted, for example, that Superintendent Kennedy instructed Foreman Chastain to find out which employees were attending union meetings so that he, Kennedy, could discharge such employees, as he told Chastain at the time. Extended analysis is supererogatory in the present circumstances. It appears in the case of Stevens that Kennedy had earlier given orders to get rid of this employee 13 Stevens, during this period, had received three automatic wage increases 14 N L R B v Houston and North Texas Motor Freight Lines. Inc, 193 F 2d 394, 398 (C. A 5), cert. denied 343 U S 934. 11 N.L R B. v Hudson Pulp h Paper Corporation, etc., 273 F. 2d 660 (C.A. 5). 822 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD for his union membership , and I find that Respondent did so for such reason and not for the reasons claimed by it.16 I also find that Respondent demoted Register and C. A. Boston on August 24, 1959, for union reasons , as Lyons in effect conceded to Register as to his demotion, and not for the reasons asserted by Respondent. In McCleod's case there is a situation of a leaderman joining the Carpenters and attend- ing a union meeting which was observed by Chastain ; particularly in view of Ken- nedy's mentioned instruction that Chastain ascertain the names of employees attend- ing union meetings for stated discriminatory purposes , I believe the General Counsel has also established McCleod to have been discriminated against. This leaves Moseley's case , of the 1959 instances of alleged discrimination , and it is uncontradicted that Foreman Tomlinson in effect informed Moseley at the time that the reason for the cool sealing assignment was Moseley 's union activity, and I so find. Mindful of Kennedy's conversation with Witt at the time of Witt's discharge in 1957, and I credit Witt's version of the incident , I nonetheless do not find that Ken- nedy discharged Witt for not participating in Respondent 's antiunion campaign. Witt had been supporting the UAW's campaign and I believe that Respondent fired Witt for such prounion activities , as it had a right to do because of Witt's supervisory status. I shall accordingly recommend dismissal of such allegation. The allegations of interference, restraint, and coercion are so well established, that I shall leave all conclusionary findings to the section entitled "Conclusions of Law." It may the pointed out, morever, that practically all such conclusions are independently established even without regard to testimony in Case No . 12-CA-315. And it should be further noted that no independent violations of Section 8(a)(1) of the Act are predicated on private conversations between supervisors or management officials. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, 'and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative ac- tion to effectuate the policies of the Act. I shall recommend that Respondent offer Stevens immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum of money equal to that which he would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period, in accordance with F. W. Woolworth Company, 90 NLRB 289. I shall also recom- mend that Respondent restore McCleod, Register, and C. A. Boston to the positions from which they were discriminatorily demoted and make them whole for losses in pay resulting from such demotion. In view of the nature of the unfair labor practices committed, I shall also recom- mend that. Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and Local Union #3204, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within Sec- tion 2(5) of the Act. 2. Respondent is engaged in commerce within Section 2(6) of the Act. 3. Respondent has violated Section 8(a)(3) and (1) of the Act by discrimi- natorily discharging Charles Stevens, by discriminatorily demoting Maurice Mc- Cleod, Leo Register, and C. A. Boston, and by discriminatorily assigning work to Ben Moseley. 4. Respondent has further violated Section 8(a)(1) of the Act by threatening discharge and plant shutdown and other economic reprisal, by promising wage in- 101 do not find, however, that Stevens' last-mentioned assignment was discriminatory. UNITED STEELWORKERS OF AMERICA, AFL-CIO 823 creases and other benefits , by engaging and threatening to engage in surveillance of union activities , by interrogation under coercive circumstances, by sanctioning and otherwise participating in the circulation of a petition to induce employees to refrain from union membership and activities. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Steelworkers of America , AFL-CIO [Tennessee Coal & Iron Division of United States Steel Corporation ] and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 91, AFL-CIO; Building and Construction Trades Coun- cil of Jefferson County, Alabama, and Vicinity ; Frank Tom- brello; Sullivan, Long and Hagerty ; International Brother- hood of Electrical Workers, Local 136, AFL-CIO Local 4203, United Steelworkers of America , AFL-CIO and Building and Construction Trades Council of Jefferson County, Alabama, and Vicinity ; United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 91, AFL- CIO; Frank Tombrello ; Sullivan, Long and Hagerty ; Inter- national Brotherhood of Electrical Workers, Local 136, AFL- CIO. Cases Nos. 10-CC-393, 10-CC-396, 10-CC-398, 10-CC-400, 10-CC-40P2, 10-CC-396, 10-CC-397, 10-CC-399, 10-CC-401, and 10-CC-403. May 19, 1960 DECISION AND ORDER On July 30, 1959, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Charg- ing Parties, and TCI filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed a brief in support of the Intermediate Report.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 1 The request of the Respondents for oral argument, which is opposed by union Charging Parties, is hereby denied as, in our opinion , the record, the exceptions, and briefs ade- quately present the issues and position of the parties. 127 NLRB No. 97.