United States Air Conditioning Corp.

UNITED STATES AIR CONDITIONING CORPORATION 117 Mineola, Saugerties, and New Rochelle, New York, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act : All staff announcers, engineers, and engineer-announcers, otherwise called combination men, including all regular part-time and probationary employees, but excluding all other employees and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] United States Air Conditioning Corporation and International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, AFL-CIO.' Cases Nos. 8-CA-1789 and 8-RC-3374. July 19, 1960 DECISION AND ORDER On January 28, 1960, Trial Examiner Alba B. Martin 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 had not engaged in others, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. In his report the Trial Examiner also made recommendations as to the disposition of objections to the conduct of the election in the representation case. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications.2 1. The Trial Examiner found that the Respondent laid off employees Maggard and Bauder in violation of Section 8(a) (3) and (1). Although we agree that Maggard's layoff was unlawful, we do not rely upon the Trial Examiner's assumption that the Respondent's i Referred to hereinafter as the Union. The Trial Examiner found that the Respondent did not violate Section 8(a) (3) and (1) of the Act by reducing Roar's working hours. As no exceptions were filed to this finding, we adopt it pro forma. 128 NLRB No. 23. 577684-61-vol. 128-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president, Way, had counted him as a union adherent on his tally sheet, after Foreman Slater had marked him as neutral but tending to be against the Union.' In finding that the Respondent knew of Maggard's union adherence, we rely instead upon Maggard's credited testimony that prior to the election he told Foreman Frank Roberts that he had attended a union meeting and had signed a union card. We do not agree with the Trial Examiner's finding that Bauder was discriminatorily laid off. The Trial Examiner's assumption that Way counted Bauder as a union adherent, after Slater had marked him as being neutral but tending to be against the Union, is unwar- ranted. Further, the Respondent's knowledge or even suspicion of Bauder's union activity or sympathy has not been established. When questioned by Foreman Slater, Bauder repeatedly denied that he had attended union meetings. Also, it does not appear that the Respond- ent knew that Bauder had signed a union card in May 1958. Finally, as has been stated, Slater considered him to be neutral but tending to be against the Union. On this evidence, we are not satisfied that the General Counsel has sustained his burden of proving that the Re- spondent discriminatorily laid off Bauder. Accordingly, we find that the Respondent did not lay off Bauder in violation of Section 8 (a) (3) and (1) of the Act. 2. The Trial Examiner found, and we agree, that the Respondent discriminatorily laid off John Ott. However, contrary to the Trial Examiner we do not rely upon the unsupported assumption that Way had tallied Ott as a union adherent.4 Instead, we rely upon Foreman Brennaman's admission that he suspected Ott to be a member of the Union. Accordingly, we find that the Respondent selected Ott for layoff because of his suspected union membership, thereby violating Section 8(a) (3) and (1) of the Act. 3. We disagree with the Trial Examiner's finding that the Re- spondent violated Section 8(a) (3) and (1) by laying off Byrd Wolfe on June 27, 1958, because of his actual or suspected union membership. According to the Trial Examiner, on June 17, 1958, Foreman Brennaman drove past Wolfe's home and allegedly identified a person standing with Wolfe on the front porch as Frank Donley, a repre- sentative of the Union. The Trial Examiner asserted that Brennaman knew Donley's identity from having seen him pass out union hand- a Although Slater's list showed the names of employees, Way's tally sheet merely showed the number of employees for or against the Union "A list handed in by Brennaman, Ott's supervisor, contained the names of nine em- ployees of the Respondent's blower and fan division, including Ott Brennaman checked the names of seven employees and put no marks against the names of Ott and another employee Neither the check marks nor the blank space had any significance under the marking system employed by way in his survey of union sentiment way's tally sheet showed that of the nine employees on Brennaman's list, seven were against the Union and two were for the Union As stated above, way's tally sheet did not contain the names of employees, but merely set forth a numerical estimate of employees for or against the Union. UNITED STATES AIR CONDITIONING CORPORATION 119 bills in front of the Respondent's plant. The Trial Examiner also stated that Donley passed a handbill to Brennaman on at least one occasion, and that Brennaman did not deny ever seeing or speaking to the union representative. From the foregoing, the Trial Examiner inferred that the Respondent believed that Byrd Wolfe was a union adherent. Contrary to the Trial Examiner, we find it highly unlikely that Brennaman could have identified Donley under the circumstances presented. Donley testified that he stood with his back to the street as Brennaman passed Wolfe's front porch. Moreover, the record does not establish that Donley ever passed a handbill to Bremnaman, or that Brennaman had otherwise seen Donley prior to June 17, 1958. As there is no other evidence to establish that the Respondent knew or suspected that Wolfe was a union adherent, we find that the General Counsel has failed to prove that the Respondent laid off Wolfe in violation of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United States Air Conditioning Corporation, Delaware, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, and activity on behalf of, Inter- national Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, AFL-CIO, or any other labor organiza- tion of its employees, by discharging, laying off, refusing to reinstate, or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their union activities, affiliations, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) Threatening employees with the loss of employment or employ- ment benefits, the closing of the plant, or other economic reprisals because of their adherence to International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL- CIO, or any other labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Au- tomobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, 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 to the following named employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." Charles T. Martin Ronald Bell Daniel Wells Bozo Petrovic Dwight Andrews Roger Shoaf Lowell Bell Gary Bell Russell Hickson Bernard Scribner Vollie Harrison Maggard James Gentry John Ott Lloyd Huddlestun Jessie Randall Berry Warren Thomas Elwin Gale Burl Coffee Alpheas Jordan Robert Dailey Cathie Parker (b) Make whole the estate of Edward Heineman, deceased, for any loss of pay suffered by the deceased by reason of the discrimina- tion against him, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (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 records necessary to analyze the amount of backpay and right of reinstatement due under the terms of this Order. (d) Post at its plant in Delaware, Ohio, copies of the notice at- tached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in 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." UNITED STATES AIR CONDITIONING CORPORATION 121 conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the working hours of Alva Roar were reduced and that Harold Bauder and Byrd Wolfe were laid off or discharged in violation of the Act. IT IS FURTHER ORDERED that the election held on September 30, 1958, among the Respondent's production and maintenance employees be, and it hereby is, set aside and that Case No. 8-RC-3274 be, and it hereby is, remanded to the Regional Director for the Eighth Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. 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, and activity on behalf of, International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, AFI -CIO, or any other labor organization of our employees , by discharging, laying off, refusing to reinstate, or otherwise discriminating against em- ployees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union activities, affiliations, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT threaten our employees with loss of employment or employment benefits, the closing of the plant, or other economic reprisals because of their adherence to International Union, United Automobile, Aircraft and Agriculture Implement Work- ers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organiaztions, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to the seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of discrimination against them : Charles T. Martin Ronald Bell Daniel Wells Bozo Petrovic Dwight Andrews Roger Shoaf Lowell Bell Gary Bell Russell Hickson Bernard Scribner Vollie Harrison Maggard James Gentry John Ott Lloyd Huddlestun Jessie Randall Berry Warren Thomas Elwin Gale Burl Coffee Alpheas Jordan Robert Dailey Cathie Parker WE WILL make whole the estate of Edward Heineman, deceased, for any loss of pay suffered by the deceased by reason of the dis- crimination against him. UNITED STATES AIR CONDITIONING CORPORATION, Employer. Dated------------ ---- By------------------------------------- (Representati ve) (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, with all parties represented, was heard before Trial Examiner Alba B. Martin in Delaware, Ohio, on complaint of the General Counsel and answer of United States Air Conditioning Corporation, the Respondent, and upon a Board order directing a hearing upon objections filed to an election. The issues litigated in the 10-day hearing (2,328-page record plus exhibits, 52 witnesses) were whether Respondent committed numerous alleged threats and interrogations and discrimi- UNITED STATES AIR CONDITIONING CORPORATION 123 nated against some 25 employees in violation of the Act , and whether Respondent interfered with the freedom of choice of employees at the collective-bargaining election conducted September 30, 1958. Respondent and the Union filed briefs, which have been carefully considered. At the conclusion of the hearing I reserved judgment upon a renewed motion to dismiss the complaint under Section 10(b) of the Act as to three employees-Hick- son, Dailey, and Wolfe. This motion is hereby denied. See N.L.R.B. v. Clay M. Bishop et al., d/b/a New Hyden Coal Co., 228 F.2d 68 (C.A. 6); N.L.R.B. v. Anchor Rome Mills, 197 F. 2d 447 (C.A. 5). Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is and at all times material herein has been a Delaware corporation, with its principal office and plant located in Delaware, Ohio, where it manufactures and sells air conditioners, automobile truck bodies, and industrial cranes, and other equipment such as parts. Respondent annually causes and has continuously caused its finished products in excess of a value of $1,000,000 to be shipped from its Dela- ware, Ohio, plant to points outside the State of Ohio. Respondent admitted, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, herein referred to as the Union, is a labor organiza- tion within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Way's attitude towards the unionization of his employees Although it has some 10 or 15 other supervisors, the entire record established that Respondent is basically a 1-man firm, under the complete domination of its president, majority stockowner, and leading force, Glenn W. Way. One top super- visor, George Brennaman, testified that "Mr. Way is the organization." Since about 1941 Mr. Way has purchased or organized, and has combined into one, several corporations making such diverse products as milk truck bodies, parcel delivery truck bodies, industrial cranes, and large air-conditioning units. As of June 1, 1958, Respondent employed approximately 221 production and maintenance employees, excluding supervisors. As of May 1, 1959, this figure stood at about 208 employees, excluding supervisors. During the years a number of benefits and privileges to employees were granted by Respondent, including a profit-sharing plan, cash bonuses at the end of the year, cash advances on wages, the purchase of merchandise 'at reduced prices through the company, making repairs in the plant during off hours on employees' own equipment such as automobiles, Christmas parties for the primary enjoyment of employees' children, and loaning money to employees secured by mortgages for the purchase of homes. The entire record established that Mr. Way is, and apparently long has been, dead set against the self-organization of its employees. This conclusion is borne out by (1) what other supervisors who have long known him testified about him, (2) what he told assembled employees at three dinners for employees the week before the September 30 election, and (3) by the notice he had posted on company bulletin boards the day after the election (1) Burdett Ross, who has worked for Way for 21 of the last 26 years and has been one of Way's top supervisors for at least the last 8 years, testified that he knew pretty definitely Mr. Way's views concerning the subject of a union in the plant and that Way "never wanted the union in his plant." George Brennaman, who has known Way for 35 years, has worked for Way 14. of the last 17 years, and has been a top supervisor for many years, testified in substance, after some evasion, that it was his opinion that if the Union had won the election in September 1958 and had become the exclusive bargaining agent of the employees, Way would have discontinued the profit-sharing plan. Walter Kunze, a foreman for the last 10 years, testified that "Way has always contended that he would not operate a Union shop. . He said that in due time he would sell his interest and let somebody else take it." 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman Robert Sealey, who had worked for Way for 13 years, testified that he was under the impression, and that it was just in the wind out there, that Way would close his plant rather than do business with the Union. (2) The record contains much testimony as to what Way told employees at the three dinner meetings on the Tuesday, Wednesday, and Thursday nights before the election, which was held on Tuesday, September 30, 1958. Way said approximately the same thing at each dinner meeting, attended by about one-third of the employees and supervisors. Several employees credibly testified that Way expressly said in substance that if the Union won the election certain benefits to the employees, such as the profit-sharing plan, cash advancements, Christmas bonuses, the purchase of materials through the Company, would cease; and that any fighting of grievances would be at the expense of the employees rather than the Company. In substance Way testified that after reviewing the benefits and privileges Re- spondent granted the employees, and after telling the assembled employees and supervisors how much and what percentage of the Company's profit had been put into the profit-sharing fund or disbursed in cash bonuses, how many homes had been bought for employees at an outlay of how many dollars, and, after explaining with facts and figures a good deal about the distribution of Respondent's income dollar for 'a period of years, Way asked those assembled if they believed the Com- pany could continue these benefits to the employees if the Company became union- ized. He said that he would hire help to handle the tremendous amount of grievances there would be and that payment for this help would diminish the Company's profit and thereby diminish the amount that would be distributed to employees. Way testified that he told his guests that no one puts anything into the profit-sharing plan except the Company, and that he read from the plan where it says that the Company reserves the right to discontinue the plan, with or without notice, at any time He testified that he said that any decision wheher the plan would be liquidated would be made by participants in it. He said that profit-sharing and unions were incompatible and gave the reasons he thought so He said also that "if the place were to become Unionized, I would be there gas long as the amount of time required for me to satisfactorily dispose of my interest in the company." Way testified that he spent about 2 hours with the field examiner who investigated these cases, Nora Friel, during which he understood that "she apparently had" the "idea in mind" of receiving an affidavit from him although 'at no time did Way have any intention of giving her an affidavit. On cross-examination at first he testified that he knew she wrote something down during the interview but that he did not know what, that she did riot show it to him at all, that "my recollection is that she tore up and threw away .. . in my office papers that she had been writing on while I was talking to her . . in fact, I know she did." Then he became less certain whether she had shown him what she had written. Then he expressed certainty that he did not write anything on the same paper Miss Friel wrote on. Then seeing -a 1i/2-page document captioned "Affidavit" written in ink in what appears to be the same hand as several other affidavits the record establishes were written by Miss Friel, Way admitted that he had seen the document before and that he made some pencil changes on the same paper. One of the changes was to substitute "unionized" for "organized" in the sentence: "I told each group, among other things, that if this plant were organized, we would discontinue the profit-sharing plan because unionism and profit sharing are incompatible and we could not have both." Way did not execute the "Affidavit " As a witness Way was sometimes evasive. Way admitted reading during the hearing a certain affidavit of a witness, which affidavit mentioned the name of a relative of the witness who worked in the plant Asked if after reading the affidavit Way sought out this relative and spoke to him about the affidavit, although the alleged event had occurred just a few days before Way did not give a clearly negative answer, satisfying himself by saying, "I don't imagine I did. I don't remember it any way. I am reasonably sure that I didn't talk to him about that or any affidavit." As this event had just occurred memory played no factor and Way resorted to naked evasion. In view of Way's lapse of memory and self-contradiction in this instance, as he was less than candid with the field examiner in delaying telling her that he would not execute the "Affidavit" even though he never had any intention of doing so, in view of certain other parts of his testimony, and upon his entire demeanor as a witness, Way did not impress me as a credible witness to be credited as against substantial, credible evidence contrary to his remembrance and his testimony Upon this credibility finding and upon the entire record in the case, I find, as testified in substance by employees Charles Martin, Jack Styer, Alva Roar, Robert UNITED STATES AIR CONDITIONING CORPORATION 125 Wells, Elwin Gale, Burl Coffee, Vollie H. Maggard , and Lloyd Huddlestun, that at these dinner meetings Way expressly threatened that if the Union won the election, the benefits and privileges to employees would be stopped , Way thereby threatening employees with economic reprisals for exercising their rights under the amended Act, Respondent thereby violating Section 8 (a)(1) of the Act , and thereby inter- fering with the election about a week away Even if Way's version of what he told the employees and guests at the dinner meetings be credited , it impliedly, at least, added up to the same threat of economic reprisal as found above . His explanation of how or why the economic benefits to employees would be diminished did not negative the existence of the threat of economic reprisal. Nor did anything he said thereafter negative the threat implicit in his reading that portion of the profit -sharing plan which reserved to the Company the right to discontinue the plan Also, as the employees knew they were working for a "one-man" company, and knew that Way's departure might have an adverse economic effect upon them , Way's threat to sell his interest and leave the Company in the event the plant were unionized amounted to a threat of reprisal, Respondent thereby violating Section 8 (a)(1) of the Act and thereby interfering with the election. (3) On October 1, 1958 , the day after the Union lost the election , Way caused to be posted on the company bulletin boards the following notice adressed to all employees: We wish to extend our congratulations and thanks to the 146 employees of this company who voted against the UAE in the election Tuesday, Sept. 30, 1958. The results of the election prove that right is still might , and we should all be thankful that we have enough people here with good , common sense and who are not afraid to take action which they believe to be in their own best interest We realize , of course, that those people who voted against the Union are the backbone of this concern and any progress we make from this time forward must be made by these people. It became crystal clear to the vast majority of all these loyal people that the 63 people who ultimately voted for the Union were determined to wreck what ,has been built largely by the people who voted against the Union. We sincerely hope that the 63 people who voted for the Union will now be satisfied with the damage they have done , will decide not to try to further wreck the Company and will , at least a fair share of the time, try to put forth a reasonable and honest effort to mend some of the damage they have done over the past few months, by constant neglect of their regular duties and by almost continuous activity in trying to stir up dissention and organized chaos Let us hope that we may over the coming years build an organization of people who will be broad minded and forward looking enough to completely refrain from taking any part in activities to unionize a group of people who have twice proven that they want no part of unionization. Again, the sincere thanks of all right thinking people as usAlRco to the 146 "No" votes. G. W. WAY. As concluded above, Way is dead set against the self-organization of his employees. The above testimony, and the entire record, identify him as one of the employers Congress was referring to in its Findings and Policies under Title I of the Act as amended , one of the employers who denies "the right of employees to organize" and who refuses "to accept the procedure of collective bargaining " It is found that Way repudiated the right to organize, the procedure of collective bargaining, and also "the exercise by workers of full freedom of association," which is ,a part of the declared "policy of the United States." Indeed, so strong was President Way's union antipathy and so well known by his supervisors, that their loyalty to him made it improbable for them not to be influ- enced by his animus in their day -to-day conversations with employees and in their selection of employees for layoff. B. Threats and interrogations by supervisors Substantively the General Counsel contended that some 10 of Respondent's super- visors faithfully followed President Way's lead in his campaign against the Union- Supervisors' Ralph Courter, Frank Roberts, Burdett Ross, Robert Sealey , Walter I It was stipulated that these and others were supervisors under the Act Most of them were foremen Respondent has no classification called supervisor 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kunze, Leonard Lautenschlager, Earl Beal, Henry Slater, Robert Stone, and Carl Roberts. Testimony showed that: Ross was superintendent of the truck body divi- sion, with several foremen under him; Courter was in charge of the machine shop; Frank Roberts was in charge of the fabrication and assembly of cranes; Carl Roberts was in charge of the air-conditioning division with two foremen under him, and George Brennaman was in charge of the blower division These five supervisors reported directly to Way. The Union's efforts to organize the employees of Respondent began March 31, 1958, and continued until the Union was defeated in the election on September 30, 1958. The record contains overwhelming evidence that nearly all, if not all, of Respondent's supervisors knew of the organizational campaign from an early date. About a week before the election Way caused each of his subordinate supervisors to indicate on slips of paper having the names of each supervisor's employees, the union sentiments of all employees, and the supervisors quickly marked their slips and returned them to Way After possibly making some changes on the basis of his own information, Way's tally of these slips indicated 56 employees were in favor of the Union. At the election about a week later 63 employees voted for the Union. Thus, out of approximately 224 eligible voters the supervisory hierarchy and Way were in error only to the extent of 7 votes. From this I conclude that they were well informed as to the union sentiments of the employees. 1. Thirteen employees testified to threats and interrogations by Courter and Frank Roberts. Employee Charles T. (Tink) Martin, who impressed me as a credible witness, testified that on April 1, 1958, the day after he had signed a union authorization card and the organizational drive had begun, he informed Courter and Frank Roberts that he had signed a union card and intended to sign up every man he could. Both of them told him how foolish he was to try to organize the plant be- cause Way would close the plant before he would put up with a union. They also said in substance that Hughes-Keenan, one of the corporations later combined into Respondent, had been located in Mansfield, Ohio, until it was organized by a union, and that then Way had closed that plant and moved to Delaware. (It was later developed in the record that at Hughes-Keenan in Mansfield, Way had contractual relations with an outside union for a number of years before closing the plant, but on this record the fact that Courter and Roberts gave misinformation to employees is not convincing that they did not give it.) Martin testified that Courter and Roberts said Way would do the same thing at the Delaware plant if a union were voted in. Martin testified that between April 1 and the election he had many conversations with Frank Roberts and Courter about the Union, and that in the case of Courter the latter initiated at least as many of the conversations as did Martin. Martin testified that a few days before the election Frank Roberts came to his machine and asked him if he knew what would happen if the Union were defeated. Martin replied that he had a good idea Roberts then asked if Martin had put all his eggs in one basket, Martin replying that he had not Roberts then asked where the Test of his eggs were, to which Martin replied that Roberts should wait until after the election and Martin would tell him. Martin testified that the day after the election "I told Mr. Roberts that we had been whipped as far as I was concerned, it was over with, so forget it." Roberts replied, "No, you may be willing to forget it, but Glenn Way will not." The two observers for the Union at the election were Martin and Alva Roar. On October 3, 3 days after the election, Courter said to Martin in substance that he wanted to give him a little tip off the record, that Way was making a list of 63 employees who he thought "would vote for the Union, that he intended to let enough of them go, as he put it, so that the Union would not be back in another year," that Martin "should start looking for another lob " Martin testified that later that day, October 3, Frank Roberts came to him and told him "word for word" what Courter had earlier said about Way's intentions. Martin testified that in May or June, Courter and Frank Roberts asked him the names of individuals who had signed union cards He stated also that they would ask him questions pertaining to union meetings. In all, about 20 meetings were held. Martin testified that he answered all their questions except those inquiring who had signed the cards. Martin allowed that after he had said to them, "Don't ask me who signed cards," they honored this injunction. Employee Lewis Durst testified that in the machine shop where he and Martin worked there would be conversations every day concerning the Union, that about twice a week during April, May, and June, Courter would come up to the machines where Durst was working and say that Way would never sign a contract, that he would move out of town. UNITED STATES AIR CONDITIONING CORPORATION 127 Durst testified that in about May or June at the witness' machine Courter came to him and said in substance that a union had been voted in at the Mansfield plant, that Way would not sign a contract, and that finally Way had just up and moved out of Mansfield, as he would do here if they got a union in here. During the few days leading up to the September 30 election, according to Durst, several times Courter reminded the witness that Durst had a wife and seven children and "I had better vote the right way when 1 went up there, I had better know how I was voting if I went up there to vote." Durst testified further that about 2 weeks before Christmas 1958 he asked Courter if the Company was going to have a Christmas party this year. Courter replied that there was going to be a Christmas party for company men. Employee Jessie Randall Berry testified in substance that in April and again about a month before the election his foreman, Frank Roberts, initiated conversations about the Union, and said that- If the Union were voted in the men would be cutting their own throats; they would never get Glenn Way to sign a union contract with the Union; the profit-sharing plan and the Christmas bonuses would be eliminated; Way had moved his plant from Mansfield to Delaware to get away from the Union, and if the Union came in Way would close the Delaware plant or sell out. At the first conversation Roberts asked him how he felt about the Union. Berry replied that he was not satisfied with the present company policy and that he had signed a union card and had attended a union meeting This first conversation took place just after the witness had signed a union card the first week or two in April. Berry testified that about 3 weeks before the election, Foreman Courter of the machine shop walked over to Frank Roberts' department where Berry was working and ex- pressed to Berry substantially the same threats that Roberts had expressed in his two earlier conversations with the witness. Berry further testified that during an election post mortem the day after the elec- tion, two other employees being present, when Berry suggested that it was all over and that the best thing to do was to forget about it, Foreman Frank Roberts said, "No, it is not all over. Glen Way will not forget about it." Employee Alpheas Jordan testified in substance that he had "union talk" in the shop with Frank Roberts regularly before the election, Roberts usually initiating the subject He testified that a week or so before the election Frank Roberts told him that if the Union got in "we will all be out of work . . . you and I and all the rest of us because Mr. Way would close the plant down " Jordan testified that the closer the election came, the more regular were Roberts' expressions about what would happen if the Union got in-"the profit sharing, the cash bonuses and the things we had been getting would be cut out." Employee Elwin Gale, who impressed me as a very honest witness, testified that in about May 1958, his foreman, Frank Roberts, came to him and asked him how he felt about the Union The witness replied that he was in favor of a change in working conditions in the shop. Robert "told me, then, if anybody had anything to do with the Union, he would be laid off." Gale further testified that the day rafter the election Foreman Roberts came to where the witness was working and told him that he had seen the witness' name on a list "of 63 men to be laid off for having taken part in the Union, and he said that he was sorry that he saw my name on there and wanted me to go have a talk with Mr. Way. I told him at that time that I did not think it would do any good, in order to hold my job, that is the reason he wanted me to go have a talk with Mr Way." "He said that there was a list of 63 men and they would all be laid off because Mr Way had it on his desk and that was what was coming up " Employee Dwight Andrews testified that in late May or early June, Foreman Frank Roberts came up to where the witness was working during working hours and "said that he had heard that he was the reason that the Union was trying to organize the plant. He asked me if I had heard the same thing I told him that I had signed a union card and attended union meetings. He did not make any answer, he just was mad and walked away." Andrews and also employee Lowell Bell testified that several times when Roberts was having luncheon with Andrews, Bell. and a third employee named Rittenhouse, Roberts said that if the Union came in Way would do away with the profit sharing, Christmas bonuses, advancements in pay, and buying merchandise through the company. Employee Lowell Bell testified that in April his foreman, Frank Roberts, came up to him "while I was working at my station there on the line and he asked me if I had heard anything about the Union. He said he had heard that he was the cause of it, of the Union trying to come in the shop and trying to organize, and I told him yes, I had heard about it, I had been at the meetings and also signed cards and I thought it would be a big help to change working conditions and so forth out there at the shop." Bell testified further that in May "Foreman Roberts asked me to stay 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after work one evening that he would like to talk to me, and we went over to his desk there in the shop right after the buzzer blew to go home, and he asked me about the Union, what I thought of it, and I told him I was all in favor of the Union, that I had signed a card, I thought it would be a big help. He told me then that he thought we ought to go see Mr. Way instead of trying to organize a union and try to iron out our grievances with him and if we didn't, and the Union came in, that he would do away with the profit sharing and so forth, and he also told me that when the Union tried to organize before, a lot of the men had lost their jobs through participating and trying to help the Union organize." (In about 1950 or 1951 an unidentified union had tried, and failed, to organize a majority of the employees ) Lowell Bell testified further that about May or June, Foreman Ralph Courier came to his station on the assembly line and "just stated that he didn't know why we were trying to organize the Union and that we ought to go see President Way and if a union did come in, why, we would lose all the benefits such as profit sharing and Christmas bonuses and so forth." This conversation occurred during working hours. Employee Burl Coffee testified that one day about the middle of May, Foreman Ralph Courter asked him if he had "signed a Union card and I told him I had, and if they had an election, I would vote for them." Courter "said that if the Union got in, that Mr. Way would sell out or lock up the plant . and if the Union didn't go in, that any body that the old man thought was voting for the Union would be out of a job." Coffee testified that several times after this Courter expressed to him the same threats. Employee Cathie Parker testified that about 2 or 3 weeks before the election, Ralph Courter asked him if he was a union member and Parker replied that he was. According to Parker, about a week before the election, Frank Roberts told a group of several employees "that if the Union got in, the old man would either sell out or shut down, we would all be out of a job." Employee Harold Terry testified that some 2 or 3 weeks before the election his foreman, Ralph Courter, said to him that "the old man had a shop in Mansfield and when the Union tried to negotiate a contract up there that Mr. Way had tore the contract up and offered one of his own and said, `either sign that, or do without.' " According to Terry, within a week after the election Courter said to him in substance that employee Robert Dailey, whom the Company had been holding on the payroll while on layoff status since March, "had been called in by those union S B.'s to vote" in the election, and because of that, Mr. Way had taken him off the payroll and canceled out his profit-sharing benefits. Terry testified further that about a week or 10 days after the election he asked Courter "about what would happen to those men that they had figured would vote for the Union, and he said the only thing that the old man could do was get rid of them to keep them from voting in another election." Sometime prior to this conversation, but after the election, Courter told the witness that he had turned in 60 names that he thought "would vote for the Union," and that 63 had voted for the Union so that they had guessed pretty accurately. Employee Vollie Harrison Maggard testified that one day in the summer of 1958 when he was in one of the restrooms smoking during working hours, Roberts came in and smoked and "asked me if I went to a Union meeting, and if I knew anybody that went to them, and I told him I went to a Union meeting, but I did not say any- thing about the other men. Then he asked me if I signed a union card, and I told him yes." About October 27, 1958, when employee Roger Shoaf was talking with Foreman Frank Roberts about returning to work for Respondent, according to Shoaf, Roberts brought up the subject of the Union and asked Shoaf how he felt about the Union. Roberts admitted asking Shoaf if he thought it was necessary that the Union be in Hughes-Keenan. Shoaf testified that Roberts asked him if he had signed a union authorization card. Roberts denied this. Employee Guy Ackerman, who impressed me as an honest witness, testified that after the September 30 election at the witness' machine during working hours while the witness was working, Foreman Courter said to him that the Company was going to get rid of all union pushers. Courter added that Ackerman was booked as a nonunion man. Frank Roberts denied most of the threats and interrogations attributed to him by the 13 employees as given above, and with respect to some of it stated that he did not recall. In substance Roberts' position was that he asked no questions concerning the Union of any employee and that all of his remarks on the subject, with one exception, were in response to employee questions. He admitted that in an effort to try to find out "why these things were happening" he asked employee UNITED STATES AIR CONDITIONING CORPORATION 129 Lowell Bell "what the reasons were, or what it was all about as far as trying to learn why the union sentiment entered the shop." Roberts admitted that the reason he asked Roger Shoaf whether he thought the Union should come into the plant was that "I was curious." If he were curious about this after the election, and was curious enough to ask Lowell Bell at least one question during the union campaign, it appears probable to me that he did not constrain himself from attempting to satisfy his curiosity by interrogating other employees as well. Although Way testified that he gave some instructions to his supervisors concerning their rights and obliga- tions during the union campaign-without testifying as to just what these instruc- tions consisted of-Roberts testified that neither from Way nor anybody else did he receive any instructions to avoid questioning anybody about the Union. In sub- stance Roberts testified that at luncheons with Andrews, Rittenhouse, and Lowell Bell, and at other times, in answer to employee questions Roberts replied that in his opinion Way could close the plant down, etc., "anything is possible"-but Rob- erts denied that he ever told any employees what Way would do. In his affidavit given to the field examiner in January 1959, Roberts said, "When a question was put to me by an employee or employees I expressed my opinion that Mr. Way would or could shut the plant down in the event a union became bargaining agent but that was my own opinion." [Emphasis supplied.] The record established that in late September 1958, Roberts indicated on a slip of paper handed to him by Way, which paper had the names of each of Roberts' employees, whether Roberts had a question as to where the man's union sentiments lay. In his affidavit some 4 months later, too soon to have forgotten the event, Roberts stated, "Prior to the NLRB election of September 30, 1958, I made an evaluation based on my personal opinion of what I thought was the attitude of each employee in my department with respect to the Union. I told Mr. Way how many I thought were for the Union and how many against. I might have told him the names of individuals I thought were for or against the Union based on my own opinion " [Emphasis supplied ] Asked why he told Miss Friel "I might have," Roberts replied that he did not remember. On direct examination Roberts stated, "There were many occasions in which you had to go where you saw a huddle of men, more than two men talking, waving their hands, and it was made-it was no secret who the four people who were for the Union. If you saw one of them working with the other group, you would just assume that that is what it was, because it did not take three of four different men to decide a part change or a necessary modification, or a clarification on the part " He added that he was talking about Martin, Gale, Jordan, and Burl Coffee Roberts testified further that he told another employee, Russell Hickson, with reference to strikers at another plant, that he wished they would run the whole bunch out of the country. In view of Roberts' admissions, and the contradictions between his testimony and his affidavit, given above, as on the witness stand Roberts did not impress me as a credible witness, and as the testimony against him was substantial, almost over- whelming, I do not credit Roberts' denials; and I find that Roberts uttered the threats and interrogations attributed to him by Martin, Berry, Jordan, Gale, Andrews, Lowell Bell, Parker, Maggard, and Shoaf, substantially as testified by each of those em- ployees. By these threats and interrogations, Respondent violated Section 8(a) (1) of the Act. Foreman Ralph Courter denied many of the threats and interrogations attributed to him by Martin, Durst, Berry, Lowell Bell, Burl Coffee, Parker, Terry, and Ackerman, as given above, and gave different versions of some of the conversa- tions. The record established that Courter, as well as the other supervisors, received a list of the names of his employees and marked opposite each name Courter's judgment as to the union sympathies or lack of them of each man. Courter testified that he received his list from Mr. Way, marked it, and returned it to Way. In a document captioned "Affidavit," dated January 28, 1959, which Courter acknowledged contained the truth, Courter said, "I gave Mr. Way a pre-election poll of my department based on my evaluation of how the employees in my department felt I gave him a prediction that seven (7) would be for the Union and eight (8) against it I did not give him names." [Emphasis supplied.] In addition to this plain departure from the truth within a period of 4 months, which was too short a period for Courter to have forgotten that he did in substance give Wav "names," at times while testifying, Courter apneared to me to be testifying from his imagina- tion rather than from his memory. In view of the above, and as by his demeanor he did not impress me as a credible witness, I find that threats and interrogations concerning the Union were made by Courter substantially as testified by the em- ployees named above. By these threats and interrogations, Respondent violated Section 8 (a) (1) of the Act. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Charles T. Martin testified that: On the afternoon of October 3, 1958, 3 days after the election, Foreman Leonard Lautenschlager came to where Martin was working in another building from Lautenschlager's department, and told him in substance that Way was making out a list of employees who Way thought "would vote for the Union"; Martin's name was on top of the list; Lautenschlager said, "For goodness sake, if you haven't a job to go to, start looking"; Lautenschlager understood that some of his own men were on the list and that he had told Way and Burdett Ross that "if they intended to lay any of his men off for union activities, they would have to do it themselves, because he would refuse." Admitting that he is on friendly terms with Martin and has had a lot of small talk with him through the years, Lautenschlager denied this conversation occurred as testified by Martin. As Lautenschlager knew that from the lists or "poll" Way had a pretty accurate idea as to which of the employees were in favor of the Union and presumably had voted for it, as Lautenschlager, on the basis of over 10 years' knowledge of Mr. Way, must have sensed that Way was going to take action against the unionmen, as under these circumstances it would be natural for him to wish to warn a friend who was Way's prime target, and as I believe Martin was telling the truth and accu- rately remembered this conversation, I find that Martin's conversation with Lauten- schlager took place substantially as testified by Martin. Although Lautenschlager was no doubt motivated by a desire to help Martin, his warning amounted to a threat of reprisal against Martin for Martin's union activities, Respondent thereby violating Section 8 (a) (1) of the Act. 3. Three employees attributed threats and/or interrogations to Supervisor Henry Slater. Harold Bauder 2 worked in the construction gang under Foreman Slater. Bauder testified that beginning in August, several times before the election Slater asked him if he had attended the union meetings which had taken place the night before, and Bauder replied that he had not. About a week before the election, Slater asked him how the men in the construction gang felt about the Union and Bauder replied that he thought most of them were in favor of the Umon. Vollie Maggard testified that the day after he attended the preelection dinner at which Way spoke against the Union, Foreman Slater asked him what Way had said and Maggard told him. Slater then asked who was right, the Union or Glenn Way. Employee Ronald Bell testified that a few days after the election, his foreman, Slater, told him that the Company had a pretty good idea who the 63 men were who voted for the Union, and that most of the men would be gone in the next month or two. Slater did not deny asking Maggard the day after Way's speech as to who was right, the Union or Way, which on the entire record amounted to unlawful interroga- tion in violation of Section 8(a) (1) of the Act and interference with the election which was about a week away. As a witness, Slater did not recommend himself for credulity in terms of integrity. He admitted that, contrary to the fact, he told the field examiner who he knew was investigating this case that he did not fill out any list for the Company concerning the union sentiments of his employees Although he knew Miss Friel was from the National Labor Relations Board, he intentionally did not tell her the truth. He testified that the reason he did not tell her the truth was that he did not consider it any of her business. Then he said that as he was not under oath he did not have to tell her whether or not he made out such a list for the Company. Asked if he told the truth only when he was under oath, he replied, "No." Asked what other times he told the truth he replied, "Oh, maybe half the time." Later he admitted that the field examiner asked him for an affidavit and that he refused to give her one and gave her as the reason that he did not feel "that I should give her any information that I should sign and swear to." As Slater was not a credible witness I credit the testimony of Ronald Bell, Harold Bauder, and Vollie Maggard and find that, substantially as testified by them, Slater made threats and interrogations in violation of Section 8(a)(1) of the Act. 4. Five employees testified to threats and interrogations by Foreman Walter Kunze. Jack Styer, a perceptive, honest witness with a good memory, testified that about 10 days before the election he had a long conversation with Kunze who said among other things that Way had moved a plant from Mansfield to Delaware to get away from a union, and that if a union were organized at Delaware "the plant will be closed . . . that we would all be out of a job." For at least 5years before Christmas 1958 all employees and their families were invited to the Company's annual Christmas 9 The court reporter erroneously caught this emnloyee's name as "Earl Bowder " Lists of employees In evidence show a "Harold Bauder" In the construction gang and show no "Earl Bowder" in the construction gang, or on the payroll at all. UNITED STATES AIR CONDITIONING CORPORATION 131 party without written invitations. Shortly before Christmas 1958 a notice was posted that employees would have to have an invitation in order to get into the Christmas party. Considered below herein is the question of whether any employees were deprived of invitations to the 1958 party because of their actual or suspected union activities or sympathies. Styer testified that on the day of the 1958 party Kunze said to a group of employees including Styer that he had just come from Superin- tendent Ross' office and that Ross had said that only the nonunion men would receive invitations to the party. Kunze indicated that he had changed Ross' mind and that all employees would get invitations. Alva Roar testified that about a month before the election, Foreman Kunze told him that if the Umon came in, "old man Way" would close the plant down, and that if Roar wanted a union he could go to Columbus, Ohio, and get a job in a union shop. Columbus is about 24 miles from Delaware. Employee Robert Wells testified in substance that a number of times during the period beginning about 2 months before the election and ending shortly before the election, Foreman Kunze asked lum whether he had attended a union meeting the night before. Wells testified also that continually during the period of the union activity leading up to the election Kunze called the Union corrupt, tried to run it down, and tried to make it look bad to the men. Employee Gary Bell testified that during about the last week in August as he was having a conversation with Kunze about the Union, Kunze asked him what he thought about it, Bell replying that he thought it would be good because it would give him e boost in his wages. Employee Daniel Wells testified that about 2 weeks before the election Kunze stopped him one day and asked him how he felt about the Union. Wells testified further that about 2 days before the election in the presence of several other em- ployees, Kunze asked Wells who would benefit by the Union, Wells replying that all employees would benefit by it. Kunze said that if the Union got in Way would close the plant down. Foreman Kunze admitted that the subject of the Union was openly discussed among the men and himself He allowed that it was possible that he had asked the employees to tell him what they thought about the Union He admitted that in dis- cussing the Union with Robert Wells, Kunze ran the Union down and said that it was corrupt. He admitted asking one employee, Stanley Jones, whether he attended a union meeting and how things went at the meeting. He admitted that he may have passed on to the employees the rumor he had heard that Ross was going to give invitations to the Christmas party only to the men who were "without union activity." He testified that he did not recall asking Gary Bell what Bell thought about the Union, and that he did not recall asking Daniel Wells who would benefit if the Union came in. He admitted telling Roar that if Roar wanted to work in a union shop he could go some place else and get a job. However, Kunze denied telling any employees, including Styer, that Way would close the plant if the Union got in He gave his version as to some of his own opinions concerning the Union which he gave to the employees and allowed that he probably told them a lot more which he could not now recall. In his affidavit, dated February 3, 1959, he stated, "I talked with employees about the Umon in the shop during the weeks prior to the NLRB elections of September 30, 1958, and voiced my opinion and they voiced theirs. I might have asked some in a joking way if they signed a card for the Union. I probably talked a lot about the Union but I can't recall now what I said." Although as compared with most of the other supervisors, Kunze was relatively frank in his admissions, he did not come clean with the field examiner concerning the list on which he set forth the union sentiments of each of his employees. On this subject he said in his affidavit, "The foreman took a poll of the employees about 2 weeks before the NLRB election of September 30, 1958. We did this or I did it by indicat- ing on a list whether we thought an employee would vote for or against the Union Superintendent Ross had the list. I do not care to comment further on this list." The words "an employee" were crossed out and the words "how many" followed by Kunze's initials were substituted in their place. Thus in substance Kunze denied to the field examiner the true fact that he had indicated on a list which of his employees were, in his opinion, in favor of the Union. In view of Kunze's admissions, the misstatement in his affidavit, as the interroga- tions and threats attributed to him were consistent with what was happening else- where in the plant during the union campaign, as his threats were consistent with President Way's attitude, and upon the entire record considered as a whole, I credit the testimony of Styer, Roar, Robert Wells, Gary Bell, and Daniel Wells given above, and find that by Kunze's threats and interrogations, Respondent further violated Section 8(a)(1) of the Act and further interfered with the election 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Employee Jack Styer testified that about June 15, Superintendent Burdett Ross called him into Ross' office and said to him, "I hear you have been pushing the Union." Substantively this was the equivalent of asking Styer if he had joined the Union and was interrogation prohibited by the Act. According to Styer, during a conversation about the middle of November 1958, Styer asked what was going to happen "to us men that you think were for the Union?" Ross replied, "Well, I cannot tell you, Jack . . . all I can say is that Mr. Way has got plans for you." According to employees Robert Wells and Hansford Wine, one day in early September, Ross came to where they were working close to one another and asked them if they had signed union cards yet. Ross denied telling Styer that he had heard Styer was pushing the Union, but he admitted asking Styer and other employees in substance what they thought the Union could give them that they were not already getting. Ross did not deny making the threat that Way had plans for the men he thought were in favor of the Union, which statement, on the entire record, implied a threat of reprisal. Although Ross denied ever asking any of the employees whether or not they belonged to any union, he did not specifically deny asking any of them whether they had signed a union card yet. There was much contradiction in the testimony concerning the pollmg list. Ross testified that he consolidated onto one piece of paper the information on the several lists handed to him by the several foremen under him, and gave the one piece of paper to Way. Inconsistently he testified that he gave Way three pieces of paper, Respondent's Exhibits Nos 6A, B, and C. He testified first that he had not seen the list he sent Way at all during his preparation for testifying herein. The next day he was called back and testified that in answering the way he did, he had in nand the foremen's lists which he had destroyed. In substance, Ross testified that he himself put the evaluation markings on the list or lists which he handed to Way. This was contrary to the testimony of some of his foremen, in the end. For instance, Ross testified that he put the pencil marks opposite the employees' names on Re- spondent's Exhibits Nos. 6A, 6B, and 6C.3 Ross testified that he put the "U" in front of the name of Daniel Wells Kunze testified that he put the "U" in front of Wells' name and that he did not recall that Ross made any change in his markings. Ross testified that he reviewed Foreman Lester Martin's list with Martin, but Martin had previously testified that after he had marked his list he put the list on Ross' desk, and said nothing in his testimony about later discussing it with Ross. Because of the above, and other contradictions between Ross and other foremen, and between Ross' testimony and certain documentary evidence, Ross did not appear to me to be a credible witness. I credit the testimony of Styer, Wells, and Wine and find that by these interrogations and this threat Respondent further violated Section 8(a)(1) of the Act. Employee Jack Styer testified that about 2 or 3 weeks before the election his fore- man, Robert Sealey, said that he could see a union in other companies but he could see no reason to have it in this Company, and that if a union did get in there the old man will "shut down, and then we will all be out of a job." Sealey admitted discussing the Union with Styer several times and he admitted telling Styer, as his own personal opinion, that he did not feel their shop should go union and that "what [sic] would close the shop down." On cross-examination he testified in substance that he told Styer that Way would close the plant if the Union came in. Asked on what he based that opinion, Sealey replied, "Well, after working 13 years for Mr. Way, why, I was more or less under the impression that he would shut it down." Although stated as a personal opinion, under all the circumstances of this case, this threat of reprisal by a foreman amounted to a violation of Section 8(a)(1) of the Act by Respondent and a further interference with the election. According to the uncontradicted and credited testimony of Jack Styer, when Styer talked with President Way in the latter's office on the Sunday prior to the election, Way told him, among other things, that if the Union got in, the employees would no longer be permitted to buy material at the plant "and things like that." By this threat of reprisal, Respondent further violated Section 8{a) (1) of the Act and interfered with the election. Way also told Styer he had no use for unions and that all unions were corrupt. Employee Melvin Disbennet testified that during the month before the election his foreman, Earl Beal, asked him how he felt about the Union and if he though it would have a chance. According to Disbennet, about a week after the election Beal asked him how he voted and about 2 weeks later Beal asked him if he thought the Union would have a chance if it ever came up again. Beal, who impressed me as an honest and credible witness and a more credible witness than Disbennet, 3 ' A" meaning against the Union, "U" meaning for the Union, and "?." UNITED STATES AIR CONDITIONING CORPORATION 133 denied asking Disbennet anything about the election and never asked any other employee how they voted in the election or felt about the Union, except one. I credit Beal's denials of Disbennet's testimony. Beal admitted that he asked one employee in his department, Harry Hummel, a friend with whom he had worked for about 12 years, how he felt about the Union. Friendship notwithstanding, this interrogation of an employee by a supervisor was, under all the circumstances of this case, unlawful interrogation and a violation by Respondent of Section 8(a)(1) of the Act. Employee Warren Thomas testified that about a week before the election Foreman Carl Roberts brought up the subject of the Union and told Thomas that if the Union got in, Way would close the pliant or would move it away, because he would not pay union wages. Without specifically denying this testimony, Carl Roberts denied telling any of the men that Glenn Way would close the plant if the Union got in. As the remarks attributed to Foreman Roberts were substantially con- sistent with what other supervisors were telling other employees during the period leading up to the election, and were consistent with the threats of reprisal made by President Way, I credit Thomas' testimony and find that by this threat of reprisal, Respondent further violated Section 8(a)(1) of the Act, and further interfered with the election Employee Jack Styer testified that in late April 1958, Supervisor Robert Stone walked up to a group of employees and said, "I just came from the old man's office the old man will close this place down if a union gets in here " Employee Bernard Scribner testified that in July or August, Supervisor Stone came up to him and asked him "if I had signed my card yet." One day about 2 or 3 weeks before the election as Stone and several employees were in the toilet room smoking during working hours, according to Scribner, "Foreman Stone got on the subject of the Union and told us then that the last time that the Union tried to get in, that the fellows that was for it was no longer employed there, and before the old man would let the Union in, he would lock the doors. . . He said it would probably happen again this time. . He said that it would probably happen just like the last time, if the Union did not get in, the employees that voted for it would probably be looking for work " The record establishes that Mr. Way was frequently referred to by the employees as "the old man." According to Scribner, about every day during this period, Stone would ask him how he was betting on the Union, Scribner replying that if everybody who had signed 'a card voted for the Union, the Union would go in. Regretably Supervisor Robert Stone suffered a heart attack during the hearing and so was unavailable to testify. By stipulation the record has an agree- ment of counsel as to what Stone would have testified had he been able to do so. Stone's testimony would have substantially denied all of the interrogations and threats attributed to him by Styer and Scribner. As Styer impressed me as a credible witness, and as the alleged remarks of Stone were consistent with the threats and interrogations of other supervisors throughout most of the plant during the period of the union campaign and were consistent with the threats of reprisal made by President Way himself, I credit the testimony of Styer and Scribner and find that by these interrogations and threats committed by Supervisor Stone, Re- spondent further violated Section 8(a)(1) of the Act. By Stone's remarks to Scribner Respondent further interfered with the election. In substance, Robert Wells testified, and according to the stipulation Robert Stone would have testified, that a few days before the election, Supervisors Stone and Sealey, driving in a truck, stopped near where Robert Wells and Hansford Wine were working. Either Sealey or Stone asked Wells and Wine how they were betting on the election. Under all the circumstances of this proceeding this was an unlawful interrogation and a violation of Section 8(a)(1) of the Act, as well as interference with the election. In addition to the above, Respondent further violated Section 8 (a) (1) of the Act by interrogating applicants for employment concerning their union membership and sympathies. The record establishes that Supervisors Burdett Ross and Carl Roberts so interrogated employees in February and March 1958. Carl Roberts did not deny this and Ross confirmed that not in all cases but in occasional cases he asked an applicant whether he is a member of a union. Ross is Respondent's principal hiring supervisor. In prior years all employees and their wives and children were invited to Re- spondent's annual Christmas party. For the 1958 party written invitations, issued by the foremen, were required for the first time. Superintendent Ross asserted as the reason that in previous years there had not been enough presents to go around to all the children. At least one known union adherent, Alva Roar, who had been 5 77084-61-vol 128--10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union observer at the election, did not receive an invitation to the 1958 party. As at least two foremen, one quoting a superintendent, told employees in sub- stance that only nonunion men would receive invitations, 1 find on this evidence and on the entire record that Roar, at least, was deprived of an invitation and thereby discriminated against in retaliation for his assistance to the Union at the election. C. The unlawful discharges 1. Charles T. (Tank) Martin signed up some 50 of his fellow employees into the Union. By President Way and Foreman Courter, he was considered the leader of the Union within the plant, which he undoubtedly was. As has been seen above, he was one of the two observers for the Union at the election September 30. On October 3, Courter and Frank Roberts both warned him to start looking for another job, because he was going to be let go in the near future. The day after the election Frank Roberts warned him in substance that Way would not forget what had gone before. Also on October 3, Foreman Lautenschlager gave a friendly warning to Martin that his name was on top of Way's list and that Martin should start looking for another job. Courter marked Martin "U" on Way's "poll." In the Ohio State election of November 4, 1958, the so-called "right-to-work" issue was on the ballot. During the summer of 1958, Supervisor George Brenna- man solicited, during working hours, signatures of employees in the plant on a petition requesting that the issue be put on the ballot for the November election. During October, Martin passed out buttons and automobile stickers saying in sub- stance "vote no" on this issue. Courter told several employees to remove the buttons, to one employee labeling it a "union lover's badge." Martin had a number of arguments with Courter about the right-to-work issue, and one day 2 or 3 days before Martin's discharge, Courter shook his head negatively at Martin's button. According to the credited testimony of Martin, he was discharged by Courter on Friday morning, October 24, 1958, when Courter told him that when Way left Delaware earlier in the week, he had given orders to Courter that Martin was to be gone when Way got back on Saturday, which was the next day When Martin asked the reason, pointing out that there was plenty of work, Courter replied, "Now, hell, Tinky, let's face it You know as well as I do " Martin replied, "Union activities?" Courter smiled and threw out a hand As Martin testified, in addition, that Courter added "What else?" the demeanor of the witness suggested to me that Courter had not spoken those words. Martin's affidavit did not attribute those words to Courter. This was the only material respect in which Martin's 12-page affidavit was at variance with his long testimony. As Martin's demeanor through- out the rest of his testimony strongly indicated to me that he remembered well what had happened and was telling the truth, I do not discredit hire or his testimony because of this one variance from the truth or complete, correct recollection. Later that morning, Foreman Frank Roberts told Martin that he was sorry he was leaving, that he did not think Martin should be laid off, because although he had fought a losing fight, he had "fought clean." The son of Charles T. Martin, Dexter Martin, credibly testified that 2 or 3 days before the election of September 30, as Courter was buying some furniture from 'a furniture store in which Dexter Martin was working, Courter said to Dexter Martin "that my dad was in for a big surprise after the election." A week or 10 days after Charles Martin's discharge, when Dexter Martin was at Courter's home selling china to Mrs Courter, Dexter Martin asked Courter why his father had been laid off According to the credited testimony of Dexter Martin, Courter replied, "you know just as well as I do that he was laid off because of union activities" During this conversation, Courter also said that Mr. Way "had one whole block of men sign union cards with no intentions of voting for the Union, but dust to speed it up and get it over with." Respondent's defense to the discharge of Charles Martin was self-contradictory and confusing. The first day of the hearing, Respondent's counsel said "we claim he [Martin] was lawfully laid off on account of lack of work." The ninth day of the hearing, Foreman Courter testified concerning the termination of Martin, "I said T fired him for cause . T didn't fire him for lack of work." Company records and Martin's layoff slip indicated that he was laid off for lack of work. In substance, Respondent contended that Martin was discharged for being away from his machine too much, and for soliciting for the Union on company time. Martin credibly testified that of the 50 men he signed up in the Union, he got only 4 or 5 in the plant at noontime He testified he did not pass out any union cards on company time although he did talk to some people on company time about joining the Union. Some of Respondent's testimony to the contrary notwithstanding, the UNITED STATES AIR CONDITIONING CORPORATION 135 entire record establishes that Respondent had no rule against solicitations or talking on company time. In the plant, during working hours, employees and foremen participated in the selling of raffle tickets, punchboards, football pools, baseball pools, world series pools, solicitation for the Boy Scouts, etc. On Martin's last workday, Foreman Courter was soliciting for a football pool for about one-half hour during working hours in the shipping department, a considerable distance away from Courter's own department, the machine shop. One of Martin's regular duties, which took him away from his machine, was to solicit all over the building in which he worked blood donations for the blood bank of the Red Cross, which he did with the blessing of the Company. During his last several months of employment, Martin worked at machines in two departments, the machine shop of Courter's and also on a drill in Frank Roberts' department. Merrill Courter, who worked in the machine shop at the machine next to Martin's machine, credibly testified that Martin was not away from his machine any more than the others in the department. He said that it was the habit of those in the department to just wander off from their machines sometimes. Courter's department and Frank Roberts' department are located in the same building next to each other. Shortly before closing time on Saturday, October 18, 1958, Courter posted in his department the following notice signed by Courter. The same day or on the following Monday Roberts posted the same notice, signed by himself, in his work area. NOTICE Effective Monday, October 20, 1958 1. There will be no loafing, talk sessions and etc. in any rest room in this building. 2 Workers will stay on their own jobs in the work areas assigned 3. Every man changing from hour rate to piece rate or from piece rate to hour rate must have his time slip checked by the foreman before starting next job. 4 No early washing up prior to lunch or quitting time before the buzzer blows. You would be very unhappy if you were not paid for a 9 hour day, so each man is expected to work a full 9 hours for such pay. 5. When the buzzer sounds to go to work, you will start to work at that time-not 10 minutes later. This applies at the start of the day, break time and at the close of the day. 6. All men will ring time slips out and in at noon and at any other time they leave the building. 7. No coffee making on company time. A snack bar provides this service 8 Pop bottles and/or milk bottles will not be carried away from the snack area at any time. RALPH E. COURTER REC:dm The record indicates that it was Courter who decided to post the notice and that Roberts asked him to add paragraphs four and five and make Roberts a copy. That these two foremen decided to post such a notice indicates that Martin was not the only employee who indulged in the practices for which he was allegedly discharged. This raises the question as to why Martin was the only one let go in the machine shop Courter testified that he decided to post the notice because upon his return to his department after an absence he caught Martin talking with another employee in Roberts' department. This sequence of events strongly sug- gests that Courier's real motive in posting the notice was to set a trap for the discharge of Martin. Courter testified that: Again on Monday, October 20, Martin was talking with the same employee when Courter returned to his department; Courter asked the other employee what they were talking about and was told in substance that Martin was trying to stir up dissension and was saying that the election was crooked; and thereupon immediately Courter went to Martin and told him this was his last week of work and told him that he was to be discharged. If this testimony were credited, which it is not, it would strongly suggest that Courter was motivated to discharge Martin because he was talking to another employee about interferences with the election, the objections to the election having been filed on October 3 If Courter had really intended to discharge Martin on this Monday because he was trying to stir up dissension I find it difficult to believe that Courter would have permitted him to remain in the plant all the rest of that week which would have given him 41/a additional days for such activities. Rather, it seems to me, Courter would have discharged him on the spot. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the above considerations, upon my credibility findings herein, and upon the entire record in the case considered as a whole, I find that Respondent discharged Charles T. Martin on October 24, 1958, because of his membership and activity on behalf of the Union and for the purpose of discouraging further membership and activity in the Union, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 2. Daniel Wells had worked for Respondent for over 5 years in the truck body department. He was discharged on November 5, 1958, upon orders of President Way. On the foremans list he was marked "U," which list Way had in his pos- session after the election and on November 5. By his supervisors Wells was con- sidered a good workman and he was always one of the highest wage earners (paid on a piece-rate basis) in his department. Among the employees Wells talked in favor of the Union, telling them the advantages it would bring them. About 2 days before the election when, in the presence of several other employees, Kunze asked Wells who would benefit by the Union, Wells replied that all employees would benefit by it. The incident leading to Wells' discharge was that President Way saw him smoking several minutes before the noon buzzer in another department than his own. Wells was in the shipping department talking with the shipping clerk when Way came in, talked with the shipping clerk, said nothing to Wells, and deft. Shortly after Way left, the noon buzzer rang. That afternoon Way gave instructions to Superintendent Ross to get rid of Wells, that he had seen Wells smoking before quitting time that noon. Wells was the only employee allegedly discharged for smoking in the entire history of the Company. Twelve employees and six supervisors testified on the question as to whether there was any no-smoking rule, if so what it was, and the extent to which it was obeyed- On the basis of all this testimony, which I have carefully considered, I find as follows: a. Respondent has a no-smoking rule, which is that there shall be no smoking in the plant during working hours, except during authorized breaks. In addition to a luncheon period the men are given a break period in the morning and in the afternoon. The basis for the rule, which goes back to the beginning of the firm, is President Way's belief that a man cannot work and smoke at the same time, and employees are paid to work. b. For many years this rule has been honored throughout the plant more by its breach than its observance A number of employees claimed never to have heard of the rule from a supervisor, but only through employees. No-smoking signs were posted from time to time, but soon disappeared. None of the signs ever mentioned any penalty for violation. Supervisors testified that they told new employees of the rule. In any case the evidence was not only substantial, but overwhelming, that employees and supervisors, frequently together, smoked cigarettes during working hours in the plant and had done so for many years prior to the discharge of Wells Usually they did their smoking (other than at breaktime or lunchtime) in the toilet rooms, which were small rooms on the periphery of the buildings; but some employees, at least, smoked also at their work stations. Although some foremen cautioned employees against smoking at their work stations or in the plant as distinguished from toilet rooms, as a group the foremen contributed to the universal disobedience of the rule. c. According to uncontradicted and credited testimony, one day in 1956, President Way looked into a toilet room in which 8 or 10 men were smoking during working hours, and not during a break period. Although Way must have seen that the men were smoking, the incident passed without comment or without disciplinary action being taken. About the middle of October 1958, some 3 weeks before the discharge of Wells, President Way came face-to-face upon Oscar Landacre smoking during working hours in the stockroom where he worked. Landacre was not discharged, and insofar as the record shows, was in no way disciplined. On Way's blacklist, Landacre was marked with a "?." In these two instances, at least, prior to the union campaign, Way condoned smoking during working hours in the toilet room and at a work station despite the rule. It was in accordance with plant custom that Wells had quit work and left his duty station a few minutes prior to the noon buzzer. The plant consists of three buildings. A number of employees and foremen from several departments, including Wells' department, in at least two of the buildings credibly testified that the em- ployees ceased their work several minutes ahead of the noon buzzer. Wells' foreman, Kunze, who had 30 to 35 men under him, testified that this was the practice of 90 percent of his employees. About that time, the janitor turned out the lights. Those employees who were going to eat at the plant would go to one of the several UNITED STATES AIR CONDITIONING CORPORATION 137 toilet rooms and await their turn at the limited number of washbowls . One room used by about 10 men in Kunze's department had only 1 washbowl . Those em- ployees who ate lunch at home, including Daniel Wells, started for a plant exit on the way toward their cars. Wells had been doing this for months. Kunze knew it, and knew that Wells was generally one of the first ones to reach the parking lot The record does not establish that Wells was ever reprimanded or warned for this practice . The testimony was that employees did not customarily leave the plant until the buzzer blew. To be noted in this connection is the inclusion of item 4 in the Courter-Roberts notice, effective October 20 , 1958, set forth above. As this plant custom of quitting work a few minutes prior to the noon buzzer, turning out the lights, and getting washed for lunch or getting ready to leave the plant, had been going on for months or years, President Way must have known of it and condoned it There is no showing that he made any effort to stop it . On the basis of the entire record, I conclude that Way did know of this custom and did condone it. Upon order of Way through Ross, Foreman Kunze discharged Wells. Seeking, but getting no satisfaction from Ross, the latter suggested that Wells see Way, which he did, later that afternoon . When he asked Way why he was laid off, Way told him that he knew good -and well why he was laid off. When he asked if there was any chance of staying on or getting back very soon , Way replied that maybe Way would take him back in 3 to 6 months. Way told him that he was laid off and not fired. On company records , the reason was carried as "gross violation of rules." Respondent did not undertake to explain why Way did not discharge or lay off Wells on the spot that noon when he saw him smoking during working hours before the noon buzzer in another department than his own . If in fact Wells was then in gross violation of rules-which I find he was not-it seems highly probable to me that Way, a busy man with a corporation on his shoulders , would have disposed of the matter there and then. His not doing so gave Way time to consult his black- list and find that Wells was marked "U" on it. Although Way testified he did not consult the blacklist between the election and his preparation for the hearing in this case, in the light of the entire record this testimony is not credited I find on the entire record in the case that , when Way gave orders for the discharge of Wells some several hours later, he knew that Wells was a union advocate , and had been marked "U" on the blacklist. On the basis of the entire record considered as a whole, I believe and find that Wells was discharged , that the smoking incident was but a pretext , but not the real reason , for the discharge, and that the real reason was to make an example out of a union adherent for the purpose of discouraging membersh ip and activity in the Union By discriminatorily discharging Wells for this purpose , Respondent violated Section 8(a) (3) and ( 1) of the Act 4 D The unlawful "layoffs" 1. The broad picture The record establishes that President Way was not only completely hostile to the self-organization of his employees, but that he was long-memoried and vengeful toward the 63 he suspected of supporting the Union at the election . Frank Roberts, who had worked for Way for some 12 years and was a foreman reporting directly to Wav and must therefore have known Way well, expressed the opinion to two employees, Martin and Berry, that Way would not forget. Foremen Courter and Frank Roberts told Marlin shortly after the election that Way would make a list of the 63 he suspected of voting for the Union and that he was going to let enough of them go so that the Union would not be back in another year. Foreman Lauten- schlager corroborated that Way was making such a list. Early in the union cam- 4 The record contains a decision of a referee of the Bureau of Unemployment Compensa- tion of the State of Ohio which, upon the record in the he'iring before the referee, reached conclusions as to company rules and whether Wells was discharged for cause After the hearing herein , counsel for Respondent sent inc with conies to the parties , a decision upon rehearing of the Board of Review of the Bureau of Unemnlovment Compensation of the State of Ohio Neither the transcript of the original hearing, or of the rehearing, has been made vailable The record herein establishes that different witnesses testified in those two hearings The record herein further establishes that the entire onestion of company rules and the reason or reasons for Wells' discharge were much more tlioiouglly and exhaustivelc gone into at the hearing before me than in either of those other two hearings In reaching my ultimate decision as to the reason for the layoff of Wells, I have given due consideration to the decision of the referee and the decision on rehearing of the Board of ReNlew of the Bureau of Unemployment Compensation of the State of Ohio 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paign Frank Roberts threatened Elwin Gale that anyone who had anything to do with the Union would be laid off, and the day after the election Roberts told Gale that he had seen Gale's name on a list on Way's desk of 63 employees to be laid off for having "taken part in the Union." After the election Foreman Courter told employee Terry the only thing Way could do to keep those he suspected of supporting the Union at the polls from voting in another election was to "get rid of them." After the election Foreman Courter told employee Ackerman the Com- pany was going to get rid of all union pushers; Foreman Slater threatened that most of those who had voted for the Union would be gone in the next month or two. In November Superintendent Ross threatened Styer that Way had plans for those suspected of being for the Union. The record established not only that President Way developed Respondent and dominated it through his majority stock interest and the force of his personality and strong convictions, but also that Way arrived at his office early in the morning, worked weekends, had a minimum office staff, and all-in-all was one of the hardest workers, if not the hardest, in the Company and was in constant touch with most of the major activities in the plant. For such a man, his business is his life. Such a man would no more willingly walk out of his business than he would give up his life That such a man would, rather, undertake instead to rid himself of his troublesome employees-at whatever cost to them-is not only believable, but is highly probable. As has been seen above, about a week before the election Way had his supervisors record on slips of paper containing the names of all employees eligible to vote in the election, which employees were in favor of the Union, which were in favor of the Company, and which were doubtful. Way totaled up the list making such changes as he felt were indicated by his own knowledge of some employees (Way testified he knew by name at least 175 employees) As is seen by the following table he resolved numerous doubts left by the foreman, which necessarily required him to consider carefully the union status of any doubtful cases. The foremen marked their lists "A" for against the Union, "U" for in favor of the Union, "NU" meaning neutral but leaning toward the Union, "NA" meaning neutral but leaning against the Union, "N" meaning neutral, or "2" meaning no information or doubtful 5 As is seen before, in converting the 1 NU, 10 NA's, 15 N's and 12 ?'s into definite "Company" or "Union" on his tally, Way had to ponder upon and resolve the union sentiments of at least 38 employees. That he considered himself well enough in- formed on the subject-or made himself well enough informed on the subject-to make the conversion is convincing testimony on how well-informed he became. Below is a chart showing the foremen's markings and Way's tally which he made from those markings: ' ' Fm enmen s Markings s Tally Way A N N ' Co U 18 4 1 3 14 Air Conditioning Division ___ 30 13 2 7 3 1 Machine Shop --------- ---------- ---- 6 7 4 4 4 Outside Construction __________ 6 6 8 (2 not marked ) Tool & Die Dept ---- ----------------- 10 0 (7 checked,2 not checked ) Fan (Blower ) Dept__________________ 7 2 ( 10 2 2 Miscellaneous _____________________1 10 3 lists { 7 1 1 Stock room Janitors__________________J 36 5 3 Parcel delivery truck bodies --- -------- 36 8 29 1 1 Milk truck bodies and Maintenance---- 29 2 14 5 1 Fabrication ------------------------ 14 6 2 0 Shipping Dept----------------------- 2 0 15 4 6 Crane Division______________________ 16 8 Had Way not had in mind in taking the "poll" something other than how the election would come out-which he assigned in his testimony as the only reason- he would have asked the foremen simply fora summarized estimate of how many would be likely to vote for the Union and how many against. His asserted reason for giving each foreman a list of names was so that each foreman would include only his own employees and not someone on loan from another department-an unconvincing reason since at most a handful of employees would be on loan at the time. Respondent made no explanation as to why Way asked for the shades of opinion of employees, such as "NA"-neutral but leaning against the Union; "NU"- neutral but leaning toward the Union. Way's remembrance was that he did not tally the "poll" until the day of the election, September 30, just before the tallying up of the official tally of ballots. If this testimony be believed it completely nega- In the crane division, Foreman Roberts used "No" meaning not for union UNITED STATES AIR CONDITIONING CORPORATION 139 tives the asserted reason for taking the poll 7 to 10 days before-to predict the probable outcome of the election. Respondent offered no reason why Way kept the lists once they had been tallied and the asserted reason for their existence fulfilled. That the lists were kept is strong evidence that they were kept for a purpose-the entire record established that Mr. Way did not indulge in purposeless activity. As the record proves the likelihood and proability that retaliatory action would be taken against the union adherents, I find that the lists were kept and consulted as a storehouse of information for the taking of this retaliatory action. In view of this finding, the lists or poll which Way kept are hereafter referred to, for what they were, as Way's blacklist or the blacklist .6 Of the 17 employees named in the complaint who were laid off after the election- between October 10 and December 12, 1958-I was marked on the blacklist with a "?," 2 with "NA," 1 with "NU," and the rest, 13 in number, were marked "U." The record as thus far set forth strongly suggests that the 14 employees marked "U" or "NU" were laid off because of their actual or suspected union activities or sympathies. According to Respondent's records, 22 of the 23 employees alleged in the com- plaint to have been discriminatorily terminated were laid off for lack of work. The record established from the lips of Respondent's supervisors that there was no necessary connection between the reason for the severance and the reason for its being earned on Respondent's records. Regardless of whether the severance was a discharge or a temporary layoff and whether for cause or lack of work, it was carried on the Company's record as a layoff for lack of work. The asserted reason for this was so that the severed employee would not have a black mark against his name and so that he could draw his unemployment insurance. As company records cannot be relied on for an accurate statement of the reason or reasons for a severance, no credence can be given them in resolving the issues before me. Further, in severing employees, Respondent was not frank with them as to how they stood with the Company. In the case of at least four employees whose sever- ance slip said "lack of work"-Cathie Parker, Robert Dailey, Byrd Wolfe, and Gary Bell-Respondent never told them that it did not intend to reemploy them, although Respondent now contends that was the fact This lack of frankness with some employees raises a question as to the extent of Respondent's candor or lack of it in the severing of other employees and in its testimony herein Respondent's principal defense to the layoff of 21 employees named in the com- plaint 7 was that business conditions demanded the layoffs. This is doubtful in view of Respondent's actual employment record during the period beginning with the start of the Union's organizational campaign (April 1, 1958) and ending the day of the last discharge included in the complaint, which included the time of the alleged slack in business During this period, April 1 to December 12, 1958, according to uncontradicted and credited evidence, Respondent hired 51 employees, laid off 45 employees, and 8 employees voluntarily quit Thus at the end of this period the payroll carried only two less employees than it had at the beginning, which raises serious doubt whether business conditions had anything to do with the layoff of any employees during this period. The record established that prior to the union campaign, in an effort to keep its employees working and receiving wages during slack times, the slack department would reduce the number of hours of its normal 491/2 hour workweek (from 491/2 hours to 40 hours to 32 hours) and/or would get some employees transferred to other departments then in need of men. Most of the 21 named in the complaint and in the footnote were laid off without any effort to get them transferred, and some of them when laid off were still working a 491/2- or 40-hour week, although others in their department may have been on a reduced schedule. When employees were laid off prior to the union campaign they were customarily called back to work in a few days or a few weeks. In the case of the 21 named in the complaint and in the footnote, none have ever been recalled even though they have been "laid off" for "lack of work" for months and months-some for nearly a year. While keeping these employees in a layoff status, some of whom had worked for Respondent for many years, were well thought of by Respondent as employees, were obviously well-qualified workmen, and had never been laid off before. Re- To be noted in this connection is that although Way testified he personally partici- pates very little in hiring or firing employees, lie participated in the severing of 16 of the 25 named in the complaint 7 Dwight Andrews, Harold Bander, Gary Bell, Lowell Bell, Ronald Bell, Jessie Berry, Buil'Coftee, Robert Dailey, Elwin Gale, James Gentiv IIarry _llaggard. Edwaid Heineman, Russell Hickson, Lloyd Huddlestun, Alphca^,, Jordan, James Ott, Cathie Parker, Bozo Petrovic, Bernard Scribner, Warren Thomas, Byrd Wolfe. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent has employed many new employees-in fact, 88 new employees between April 1, 1958, and the heanng herein in May 1959. Foreman Frank Roberts testified in substance that on the average it would take a man about a week to learn a new job in the assembly of cranes. Foreman Kunze testified that it would take an employee about a week to break into the front end assembly job on truck bodies which Daniel Wells performed before his discharge. Kunze testified that it would take an average man only 11/2 weeks to learn certain additional duties which one Atherton performed. Superintendent Ross testified that to become proficient it takes the average man 3 or 4 weeks on a job in the plant. From this testimony I conclude that with the exception of some highly skilled jobs, most jobs in the plant could be learned by an average employee in a week or two. From this it follows, and I find, that if Respondent had not been motivated against keeping employees sympathetic to the Union it would have offered them many jobs otherwise filled by new employees. Respondent's fiscal year runs from November 1 through October 31. Despite the recession in business generally during 1958, during its fiscal year November 1957 to October 31, 1958, Respondent's income from sales exceeded the same figure for its previous fiscal year. Although the sales of cranes, crane parts, truck bodies, and body parts were below the level of the previous fiscal year, this was over- balanced by the sale of air-conditioning equipment from the Delaware plant, which began in April and continued each month through October 1958. 2 The "layoffs" in the crane department and the failure to recall Shoaf Of those named in the complaint, seven were discharged from the crane depart- ment by Foreman Frank Roberts. Dwight Andrews, Lowell Bell, and Russell Hickson were discharged June 20, 1958, and Jessie Randall Berry, Elwin Gale, Alpheas Jordan, and Cathie Parker were discharged December 1, 1958. As has been seen earlier in this report, Roberts knew from conversations with Andrews and Lowell Bell that they had signed union cards, had attended union meetings, and were in favor of the Union. On the entire record there can be no doubt, and I find, that Respondent also knew that Hickson was sympathetic toward the Union. In fact Hickson signed a union card, attended two meetings, and tried to persuade three other employees to sign cards. That Way knew of Hickson's interest in the Union was indicated by Way's remark to Hickson, a very honest and credible witness, about 2 weeks before his layoff, that- Here is what we are trying to do Sometimes a man makes a mistake, but when it comes to a good man, sometimes we cannot let him go. . We are going to pick out the best men we got and the rest of them can go. [Emphasis supplied.] Nor is there any doubt that Roberts and Way knew that Berry, Gale, Jordan, and Parker were in favor of the Union and assumed they had voted for the Union in the election. On the blacklist Gale, Jordan, and Parker were marked "U" and Berry was marked "? " Roberts' interrogations of and threats to these employees have been seen above, as well as Berry's reply that the latter had signed a union card and attended a union meeting. Thus, Roberts knew that all seven of these employees were sympathetic to the Union a. Dwight Andrews worked for Respondent some 7 years and had never before been laid off He made parts for cranes and also dies and fixtures for the air- conditioning department. He did all of this work under Foreman Frank Roberts. According to his credited testimony, at the time of his discharge Andrews had about 2 or 3 weeks' work ahead of him and he was working a regular 491h-hour week. Andrews had signed a union card early in the campaign, had attended union meet- ings, and had persuaded several employees to sign cards Respondent's testimony did not state the basis of selection of Andrews for layoff on June 20, instead of some other employee. b Lowell Bell started workine for Respondent in September 1951, was away on military service for 4 years, returned to Respondent in June 1956 and continued until his discarge June 20, 1958 He was an assembler on the assembly line in the crane division under Frank Roberts his last 2 years In 1956 when work was slow in cranes Bell was transferred temporarily to the construction crew for 3 or 4 months In the spring of 1957 when work was slow in cranes he was transferred to maintenance work on company machinery for about 2 months. According to Bell's credited testimony, when he was laid off there was at least 2 weeks' work ahead of h,m on his iob Respondent's testimony did not state the basis of selec- tion of Bell for layoff on June 20, instead of some other emnlovee; nor did it establish that Thomas Hartley, who succeeded to Lowell Bell's job, was more UNITED STATES AIR CONDITIONING CORPORATION 141 competent than Bell. Hartley was younger in seniority than Bell, and on Way's blacklist Hartley was marked "No," meaning against the Union. c. Russell Hickson worked for Respondent for about 6 years prior to his dis- charge June 20, 1958. His principal job was assisting in the assembling of cranes but he also performed such other jobs as building air hoses, and doing some spot welding and mechanical work, always under Foreman Frank Roberts. He had never before been laid off. He credibly testified that at the time of his layoff and for quite awhile before that he had been working 491/2 hours per week. He signed a union card early in the campaign, went to two meetings, and tried unsuccessfully to persuade two or three other employees to sign cards. Construed in the light of the entire record, Way's comment to Hickson about 2 weeks before his dis- charge, quoted above, amounted to a statement that Way was overlooking Hickson's union sympathies and activities and was going to try to keep him employed never- theless. Hickson declined the proffered job because it was too heavy for him. Re- spondent's testimony did not state the basis of selection of Hickson for layoff on June 20, instead of some other employee; nor did it prove that James Coffee, who succeeded to Hickson's job, was more competent than Hickson, who was obviously considered a good worker. Although Coffee was older in seniority that Hickson, it is also a fact that on Way's blacklist Coffee was marked "No," meaning against the Union. According to company records, laid off simultaneously with Andrews, Bell, and Hickson, from the same department, was Farnum Smith, whom Roberts believed, according to Roberts' testimony, to be not in favor of the Union. Smith was recalled to work in Roberts' department on November 20, and on December 1 was trans- ferred to the blower department instead of Berry. Alton Walker, whom Roberts marked "No," meaning against the Union, on the blacklist, was called into Roberts' department from layoff status on July 14, 1958, instead of Andrews, Bell, or Hickson, allegedly because Walker knew more jobs than they did. According to the credited testimony of Roger Shoaf, at this time Shoaf taught Walker some operations he didn't know. Following a conversation between President Way and Roberts at the initiative of Way, at quitting time on Friday, June 20, 1958, Roberts got the address and telephone number of each of his employees (about 19 in number) and told them there would be no further work until further notice As a result of a further conversation with Way the following day, Saturday, the entire department, except Hickson, Smith, Bell, and Andrews, was contacted over the weekend by Roberts and reported for duty on the following Monday or shortly thereafter Again on December 1, 1958, following a conversation with Way, Foreman Roberts assembled his department and announced that all were to be laid off, that Berry, Gale, Jordan, Parker, and Walker were laid off as of that day, that the rest had jobs to finish which would take a few days, at the conclusion of which they would all be laid off. In fact only the five were laid off-Berry, Gale, Jordan, Parker, all of whom were known by Roberts to be against the Union. Walker was called back to work January 5, 1959. The other four have never been called back. d. Jessie Randall Berry was a welder with 14 years' experience at his trade who had worked for Respondent as a welder for some 8 years doing all kinds of electrical and acetylene welding. Berry wended parts for cranes, including bumpers, the rear section, the steering box, shaft and universal joints and wheels, and steering wheels. When work was slack on his regular job he was customarily sent to the blower department to work on a custom job there making piledrivers.8 Also he had assisted with some welding sheetmetal work, which work he had regularly done the first 3 years of his employment with the Company. The very day of Berry's discharge, December 1, Respondent hired a new welder, Paul Sabms, Jr., to work in the blower department. The morning of Berry's discharge Berry went to the blower department and saw Sabins welding sheet metal work, the same type of work that Berry had on occasion done. Some 10 days before Berry's discharge, on November 20, Farnum Smith, a welder, was recalled from layoff and put to work in the blower department working on piledrivers, the same custom work which Berry had performed. Berry had last done work in the blower department some 2 or 3 weeks before his layoff. Smith was a much younger man in seniority with the Company than Berry, as was, of course, Sabins. No convincing reason was adduced as to why Berry was laid off instead of being transferred to the work that either Smith or Sabins or both were doing after December 1. Berry credibly testified that at the time of his discarge there was no shortage of work that he was 8 Misnamed power drivers at one place in the record 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing on his regular job. In his testimony Foreman Roberts admitted that Berry was qualified to do the work which Smith was sent to do in the blower department. A few days after his discharge Berry went back to the plant and had a discussion with Foreman Roberts. According to the credited testimony of Berry, I asked him, what the story was on the lay-off and he told me that he just didn't understand all that was going on, that he though that Glenn Way made one big mistake when he fired Danny Wells and he knew why-he could under- stand why Tink Martin was laid off, but myself and the rest of the fellows, he just didn't understand it. e. Elwin Gale worked for Respondent for about 4 years from 1942 to 1946 and about 8 years from January 1950 until his "layoff" on December 1, 1958. During these 12 years of employment he was laid off only once, in May 1958 for 1 or 11/2 days. He was an assembler and subassembler on cranes, having to do with the assembly of the front section and running gears of the crane. He assembled the running gears, including the brake and differential into the front section, and apparently later he assembled the wheels and the steering apparatus. He did arc and acetylene welding On assignments earlier in his employment for Respondent he had spray painted, had done construction work on the outside crew, had loaded cars, had worked on roofing, had done odd jobs. In May 1958 he took a 1-month leave of absence to help a carpenter build two homes On December 1, 1958, the witness had taken the afternoon off. That evening Foreman Roberts came to his home and told him that he was laid off for lack of work, that more would be laid off when they finished their work There was no discussion of another job assignment for Gale, and the record does not show that Respondent made any effort to find such an assignment for Gale, whose work record with Respondent shows him to have been,an old employee capable of learning and performing many functions Gale has never been recalled. During the union campaign Gale signed a union card and went to four meetings. Foreman Roberts admitted that Gale was a good worker and Roberts stated that he holds Gale in high esteem as a workman. Gale was an impressively honest witness. f. Alpheas Jordan worked for Respondent for almost 6 years, working as a janitor and odd job man. For a year or two he did chipping and grinding His last 6 months he did sandblasting and painting. In his earlier employment he frequently unloaded steel He signed a union card in April 1958 and went to three or four union meetings. He talked in favor of the Union in the plant. The day after Way's dinner for employees a week before the election, which Jordan had not attended, Foreman Frank Roberts remarked to Jordan that he had seen him at the dinner. Jordan replied that he had not wanted to go. Roberts replied that that did not help Jordan any. This remark of Roberts caused Jordan to begin to think: Well, I thought that somebody had told Mr. Way I was for the Union. When he told me it didn't help me any, I couldn't figure out what the help meant and I thought somebdy told him I was for the Union, and then after that, the talk I had with Mr. Roberts, and Dave Rittenhouse, that if I had to just about change my mind, and the time when I talked around them like that, Mr. Roberts and Dave Rittenhouse, they told me to go over there and Mr. Way. . . about changing my mind because he had did me some favors. . . . about being for the Union. As a result of Roberts' remarks Jordan called on Way at the latter's office on the Sunday before the election. Jordan said to Way, I am from the coal field and always for organized labor . .. but I have been here just about 6 years and I never did push any union on the job because I know that you didn't want it because you had did me some favors, and my conscience wouldn't let me push any union on your job when I know that you didn't want it. Way told Jordan "to go over there and talk that around the rest of the boys." Way also told him that he would give Jordan credit for being honest in telling Way that Jordan was in favor of organized labor. On previous occasions when work was slack Jordan would be moved to other jobs such as sweeping, delivering parts, grinding, smoothing up cranes, sanding them over. Frequently when his work was nearly caught up, Jordan would be assigned with Cathie Parker, the overhead crane operator, to straighten up and neaten up the steel pile. Jordan estimated there was 3 weeks' work ahead of him straightening up the steel pile at the time he was laid off. Foreman Roberts admitted that work can always be done on the steel pile, that it can always be reduced in bulk and put in better order. UNITED STATES AIR CONDITIONING CORPORATION 143 g. Cathie Parker, aged 60, had worked for Respondent for some 15 years prior to his December 1 "layoff," and had never before been laid off except for 1 week some 8 or 10 years previously. His last 2 years he was the operator of the overhead crane which ran on tracks from one end of a big bay to the other and serviced all de- partments in the crane department building. He signed a union card in April and attended four meetings. He credibly testified that at the time of his layoff there was work on the steel pile which he and Jordan could have performed. During his last 2 years he worked about one-half his time painting and cleaning parts. After his discharge a boy just out of high school named Dalton, who had been hired September 12, 1958, as a crane test driver, was used to run the overhead crane in the place of Parker h. The record contains sales records but no production records. Respondent admitted that in cranes and crane parts production and shipment did not necessarily coincide; and that it is possible to stockpile cranes and crane parts. Although in the summer months of 1958 the sale of cranes and crane parts was slack, the record did not establish how many cranes and parts were actually produced during this period and Respondent's proof did not establish that it was necessary to make seven permanent layoffs of old employees on June 20,and December 1. Nor did Respondent explain why it felt necessary on each occasion, the first time on a Friday and the second time on a Monday, to announce the layoff of the entire crane division and then in fact sever only a handful. The fact that both these actions were initiated by President Way suggests, on the entire record, that he wished to make the layoffs appear more needed than in fact they were, as a coverup for ridding himself of some of the union adherents Assuming that some layoffs in the crane department were justified, Respondent's testimony as to the basis of selection of those laid off was spotty, somewhat con- flicting, revealing, and altogether unconvincing. Way testified that in reductions in force seniority governs if all other factors are equal; that many other factors are considered, including whether employees do their work well, their attitude, their cooperation, the quality and quantity of their work. Way said nothing about how many jobs the employees considered could perform. Roberts testified that in addi- tion to seniority, a man's ability to do one or more kinds of work, his work habits, whether he is regular, whether he is a good employee, are the elements considered. Way testified that in these two layoffs Roberts selected the employees to go and Way approved Roberts' selections. Contrariwise Roberts testified that on each occasion-on the second occasion for 2 hours-he and Way discussed each employee in the department and decided which ones to keep and which ones to lay off. Roberts' testimony is credited. Although Roberts told Way that Gale was a good worker and that Roberts held him in high esteem as a workman, Respondent's alleged reason for laying off Gale was that he could not do the work of some other employees on the assembly of cranes, whereas some of those who were kept could perform Gale's job. Gale had worked for Respondent for many years and obviously had the capacity to learn the other jobs in short order Alton Walker, who had much less seniority than Gale (1 year as against 12 years), was recalled on January 5, 1959, to work on the assembly of cranes, where presumably he performed at least a part of Gale's operation Although Foreman Roberts gave lack of work as the reason in laying off Cathie Parker, and although lack of work was carried on the company books as the reason for Parker's severance, Roberts testified at the hearing that the reason for this sever- ance was because Parker was careless and not safe in the operation of the large over- head crane-a 10-ton crane running on a track nearly 400 feet long. Roberts testified that Parker was laid off not because of lack of work but because of his eyesight and his judgment. In substance Respondent's testimony contended that during the period that Parker had operated the overhead crane, and particularly the last 6 or 8 months, he had had one accident and several near misses. The accident had occurred 5 or 6 months before his discharge and Respondent had not then discharged him for it. Thereafter he continued operating the crane every day. Roberts testified that several times he requested Way to let him discharge Parker and each time Way vetoed the idea. Under the circumstances of this case I conclude that Parker was laid off not for the accident or any near misses or poor eyesight or poor judgment in the handling of the crane, and that all these alleged reasons were mere pretexts for getting rid of a union adherent. i. Upon the above evidence and considerations and upon the entire record con- sidered as a whole, I believe and find that Respondent used "lack of work" as an excuse or 'Pretext for ridding itself of union adherents in the crane department and that the real reasonf or laying off Dwight Andrews, Lowell Bell, Russell Hickson, Jessie Randall Berry, Elwin Gale, Alpheas Jordan, and Cathie Parker was to rid 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itself of these known union sympathizers in order to discourage further membership and activity in the Union and, in the case of Berry, Gale, Jordan, and Parker, to prevent the Union from seeking or winning another election a year after the election of September 30, 1958, Respondent thereby violating Section 8(a)(3) and (1) of the Act. Roger Shoaf worked for Respondent under Frank Roberts from June 1957 until, at his own request, he was granted a leave of absence on July 18, 1958, in order to be able to accept another job yielding more money. On Monday, October 27, 1958, he was laid off from the other job and that evening called on Frank Roberts at his home and applied to return to Respondent. Roberts replied, according to Shoaf's credited testimony, that he could return to work the next morning and that he would be work- ing on the drill press which Tink Martin had been working on until his layoff the previous Friday. Shoaf told Roberts he could not come to work until noon because the following morning he had to go out to where he had been working and pick up his tools That was satisfactory to Roberts. It was then that, as has been seen before, Roberts asked Shoaf how he felt about the Union, Shoaf replying that he was in favor of the Union at Respondent and that he had signed a union card. Shoaf credibly testified, "By the look on his face, he didn't realize that I was for the Union. He was astonished, by the look on his face, that I was for the Union " The following morning Shoaf drove 18 miles, picked up his toolbox, and returned to his home to get ready to go to work for Respondent At that point he was informed by his wife that Roberts had called and wanted to talk with him. He thereupon tele- phoned Roberts who said that Roberts had talked to Mr. Way and that Mr Way said he did not need Shoaf. One day after that Shoaf met Roberts uptown and Roberts told him that he was "awful sorry he had to make that phone call." Shoaf did not return to work at Respondent. Roberts had a different version of this con- versation, which, under all the circumstances of this case, is not credited. Roberts volunteered that Shoaf is a very good worker. On the entire record I find that on October 28, 1958, Roger Shoaf was not hired or rehired or recalled by Respondent because of his sympathy for the Union and in order to discourage membership and activity of its employees in the Union, Respondent thereby violating Section 8(a) (3) and (1) of the Act. 3 The failure to recall Robert Dailey Robert Dailey worked for Respondent for some 9 years prior to his layoff on February 17, 1958 He worked in the machine shop under Foreman Ralph Courter. Dailey ran engine lathes, turret lathes, nailing machines, saws, drill presses. During one period he worked for some 3 years on a night shift as a "catch all," which required him to operate all the machines from time to time. At the time of his layoff in February Courter told Dailey that his layoff would be temporary. Courter testified that he told Dailey this because it was President Way's decision that Dailey should be temporarily laid off and not permanently severed-although Courter had urged the latter course upon Way on the ground that Dailey was a substandard machinist. At the suggestion of Charles T. Martin, Dailey presented himself at the polls at the September 30 election and was permitted to vote on challenge, after which as he was getting into his car in the company parking lot he was approached by and had short conversations with Russell Hickson, and the Union's principal repre- sentative , Frank Donley As has been seen earlier in this report, several days after the election Foreman Courter said to employee Terry in substance that as Dailey had been called in to vote by the Union, Way had had Dailey taken off the payroll. In testifying Courter admitted that the day after the election he heard the "boys" talking about Dailey's having voted. Courter admitted also that he heard that Charles T. Martin had called Dailey and told him to come in and vote That Dailey was carried as a temporary layoff was shown by the fact that the Company paid him his annual vacation pay for the vacation that the other employees were given the last week in August. Further, during the summer months Respondent continued to carry Dailey as one of the insured persons under Respondent's group insurance plan Sometime during October 1958, Dailey returned to the plant and talked with Courter about returning to work Courter told him Dailey would have to see President Wav. On this record, why Courter told Dailey this can be explained only because Courter must have known that, in the eyes of President Way. Dailey had been tainted with the union brush. Further, Courter testified that he knew who had signed union cards. During the summer Dailey had signed a union card and had attended two union meetings. UNITED STATES AIR CONDITIONING CORPORATION 145 When Dailey asked Way if he would be coming back to work in the near future, Way replied that he definitely would not be . Then Dailey talked with Ruth Sheehe, an office girl in charge of insurance for the Company , who told him that the Com- pany would no longer carry hun as one of the insured persons under the Respondent's group insurance plan. After Dailey's reapplication for employment in October the next person employed in the machine shop was John Hetrick, who was hired January 12 , 1959, instead of recalling Dailey. Upon the above evidence and the entire record considered as a whole, I believe and find that Dailey was not recalled on January 12, 1959, despite his 9 years' employment with Respondent , because he had signed a union card and had voted in the election at the suggestion of Charles T. Martin, Respondent hoping by this failure to recall Dailey to discourage membership and activity in the Union and to prevent the Union from seeking or winning another election, Respondent thereby violating Section 8(a) (3) and ( 1) of the Act. 4. The layoff of the outside construction crew Respondent had an outside construction crew which built at least two buildings for Respondent, including the air-conditioning building. This crew started building what was called the East Building, was taken off that to construct the air-conditioning building during the last several months of 1957 and the first several months of 1958, and then in the summer of 1958, was returned to work on the East Building, which they were working on at the time of the election of September 30, 1958. Of the 12 men listed on Way's blacklist as on the construction crew just before the election, as has been seen above, Slater marked four against the Union, four in favor of the Union, and four neutral, but leaning against the Union; and Way converted these into six in favor of the Company and six in favor of the Union. These figures included Foreman Slater himself, who was marked against the Union. Upon orders of President Way, on October 10, 1958, six of these employees were laid off , one was transferred into the plant the same day, and five, including Slater, were kept on outside construction work. In previous years, it had been Respondent 's practice to keep the construction crew working outside throughout the winter whenever weather permitted it, and to give the crew temporary work inside the plant doing maintenance work, or cleaning parts, or making installations, or painting, or cleaning up, when weather outside did not permit outside work. On October 10, 1958, the construction crew was working inside the East Building doing such work as painting, scraping paint, plumbing, installing lights, etc. Ad- mitting that work on this building was not finished, Respondent's principal defense to the layoff of these six employees was that Respondent was just completing the paying off of a number of financial obligations amounting to about $ 1 million, and so President Way decided in substance to discontinue work on construction. How- ever, after the layoff, some of the men continued working in the East Building and some of the construction crew were used, apparently for several months, to install cranes in the new air-conditioning building, from which I conclude that there is no connection between the paying off of the large indebtedness over a period of a year prior to October 31, 1958, and the layoff of six employees from the construction crew on October 10, 1958. Retained at the time of the layoff were Slater and the three employees (Donald Fisher, Fred Terry, Emory James ) who had been marked against the Union on the blacklist. One of these, Terry, was immediately transferred to a job inside the plant. Fisher, who had worked for Respondent for only 2 months , was retained until December 12, 1958, when he was laid off, only to be reemployed by Foreman Courier in the machine shop on January 28, 1959.9 Emory James continued in the construction crew for an indefinite period of time, and then was transferred to the Shear department in the truck body division , where he was working as of May 1, 1959. Retained also at the time of the October 10 layoff were Lester Henry, marked "U" on the blacklist , and Jack Miller, marked "NA" on the blacklist. Slater testified that these were good workers and that in addition , Henry had six children , which overbalanced the fact that he was marked for the Union. Laid off on October 10 were three of the four employees marked "U" on the blacklist-Ronald Bell, Bozo Petrovic, and Heinrich Reintjens . Laid off also were three employees originally marked "NA" on the blacklist-Harold Bauder, Harry (Vollie) Maggard, and Fred Lash , Jr. Lash was a new employee, having been hired 9 At one of Way's dinners for employees the week before the election , Way introduced Fisher, a new employee who spoke for a few moments against the Union. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only 2 months before, whereas Bauder had worked for Respondent since April 1957, and Maggard had worked for Respondent since September 1956. The complaint alleges that Bauder, Bell, Maggard, and Petrovic were terminated in violation of the Act. Bauder had signed a union card in May, and, as has been seen above in this report, about a week before the election Slater asked him how the men in the construction gang felt about the Union, and Bauder replied that he thought most of them were in favor of the Union. Ronald Bell signed a union card in April, attended union meetings, and told employees on the construction crew that the Union would help the shop and would raise wages. Petrovic talked with his fellow workers in favor of the Union, saying that it would bring better pay, which he needed. He told employees and Slater that the hat he was wearing was a union hat. Maggard had signed a union card and attended about seven union meet- ings. He had worked on the construction crew for only a few months. Prior to that, during most of his 2 years' employment, he worked in the crane department performing some five to eight functions, and also worked in the truck body di- vision, performing several functions. Bell had worked for Respondent for some 2 years and Petrovic for some months over 1 year. At the time of the October 10 layoff, lack of work was given the employees as the reason. Consideration of the above facts, in the light of the entire record, leads to the conclusion that Bauder and Maggard were the two employees originally marked neutral but leaning against the Union by Slater, who were converted by Way into being in favor of the Union. Assuming this to be true, of the six employees laid off on October 10, five of them were considered for the Union on the blacklist and one was a brand new employee with only 2 months' seniority. All of the other five had worked for Respondent for at least 1 year, and some of them for 2 years or more. Lack of work was given as the reason for the layoff, although work re- mained to be done. Neither Bauder, Bell, Maggard, nor Petrovic were offered jobs elsewhere in the plant. Upon all of the above considerations and upon the entire record considered as a whole, I believe and find that Bauder, Bell, Maggard, and Petrovic were selected for layoff by Respondent because of their actual or suspected union activities and sympathies and in order to discourage further membership or activity in the Union and to prevent the Union from seeking or winning another election a year after the 1958 election. By selecting these four employees for layoff for these reasons and purposes, Respondent violated Section 8(a) (3) and (1) of the Act. 5. Layoff and failure to recall Gary Bell Gary Bell, aged 18 or 19, worked for Respondent from April 9, 1958, until his layoff September 16, 1958, with the exception of a layoff period of about a month, from about the middle of July to about the middle of August. He moved parts from the stockroom or from where they were fabricated to the assembly line in the truck body division, under Foreman Kunze and Superintendent Ross. As has been seen earlier in this report, in about the last week in August, after Bell's return from layoff, Kunze asked Bell what he thought about the Union and Bell replied that he thought it would be a good thing because it would give him a boost in wages. Kunze then replied that he knew that Bell's two older brothers, with whom Bell rode to work, were strongly in favor of the Union. Gary Bell was "laid off" September 16, 1958, by Foreman Kunze, allegedly for lack of work, Kunze telling Bell that he would be recalled when work picked up. Although work has picked up, Bell has never been recalled Although normally the severance slips were made out by the foreman, in this case the foreman only signed his name to the severance slip and somebody else-Superintendent Ross thought it was in Ross' own hand- writing-filled in the rest of the form including the statement that Bell was being laid off for lack of work. Respondent's defense failed to explain why or how this case differed from the normal situation such as to demand the attention of both the foreman and the superintendent in laying off a young boy from one of the least skilled jobs in the plant Respondent contended that although Bell was told he was laid off for lack of work, and although this reason was carried on Respondent's books as the reason for the severance, the real reason for the discharge and failure to recall Bell when work picked up was that he was an unsatisfactory employee, that he was slow, immature, and a playboy. If such things were true about Bell it appears highly probable to me that Respondent would have discussed these matters with Bell, who to its knowledge was a young boy when it had employed him just a few months before in an effort to improve him and convert him into a satisfactory employee, which his two older brothers evidently were. This Respondent did not do. This failure, together with Repondent's failure to deal honestly with Bell when it severed UNITED STATES AIR CONDITIONING CORPORATION 147 him, considered in the light of the entire record as a whole, convinces me that Respondent's defense is unworthy of credence. Upon the entire record I believe and find that Gary Bell was selected for layoff and was severed on September 16, 1958, because of his suspected union sympathies and the known sympathies of his two older brothers, one of whom had already been severed and the other of whom was about to be, and for the purpose of discouraging membership or activity in the Union and of defeating the Union at the September 30, 1958, election, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 6. Layoff of Bernard Scribner Bernard Scribner worked for Respondent for some 5 years between July 1953 and his layoff on October 13, 1958. Mostly he worked in the truck body division although at times he performed functions out of it. On previous occasions when work in the truck body division was slow he had been transferred out of it and then returned when work picked up. In the truck body division he worked toward the end of the "milk body line," doing final assembly work, performing such func- tions as welding, spray painting, "fixing up anything that would be wrong with the trucks as they come down the line." His foreman was Robert Stone Other jobs Scribner had performed involved construction work, spot welding, light weld- ing, metal finishing, and unloading boxcars full of lumber. Scribner's conversations with Foreman Stone, from which Stone undoubtedly learned of Scribner's sympathy for the Union, have been given earlier in this report. Counsel stipulated that Foreman Stone would have testified (he was the one who had the heart attack during the hearing) that "I believed Bernard Scribner was for the Union from general conversation which I heard in the shop. I believed him to be an active union supporter " Stone would have testified further that on the list of names Superintendent Ross gave him he put a "?" against Scribner's name and wrote nothing against the other names on the list; that Ross reviewed the list with Stone and put all the rest of the marks on the list, which is in evidence. Ross changed the "?" against Scribner to a "U," put a question mark before Ralph Selby, an "A" before each of the other names on the list-there being 25 names on the list. Thus as Ross handed the list to President Way it had only Scribner's name marked with -a U, 1 question mark, and 23 A's. Superintendent Ross testified in contradiction of Stone that he knew Scribner was for the Union, not because any foreman told him that but because "I seen that on the list." In nonchalant self- contradiction Ross then immediately added that he got his information about Scribner from general conversations between himself and the foremen but that he did not believe that the name of Scribner had come up in any conversation. In any case the record established conclusively that both Superintendent Ross and Foreman Stone knew or thought that Scribner was the only solid union man in the group of 25 employees in which he worked. In fact Scribner had signed a union card in July, and shortly before the election Scribner told Stone that if all the employees who had signed union cards voted for the Union the Union would win the election Scribner was laid off October 13, 1958, allegedly for lack of work, which was the reason carried on the books of the Company. At the time of his layoff there were at least two employees in this group of 25 younger in seniority than Sciibner whose work Scribner was then capable of performing according to his uncontra- dicted testimony. In addition there were eight other employees in the group who were younger in seniority than Scribner and who were retained when he was laid off. Stone would have testified in substance that Scribner was laid off at his own request after Stone had discussed the matter with Ross. Making no allusion to this alleged conversation with Stone and with no suggestion that Scribner was laid off at his own request (which Scribner credibly denied) Superintendent Ross stated the reason as being that there was no work for Scribner and that Ross did not consider looking for another spot for Scribner because Scribner had already worked on numerous jobs and was never satisfied with anything they ever put him on. Scribner credibly testified that his job performance always met all require- ments and that he was never criticized adversely. Upon the above considerations and upon the entire record considered as a whole I believe and find that Scribner was selected for layoff and laid off on October 13, 1958, because of his actual and suspected union sympathy in order to discourage membership and activity in the Union and in order to prevent the Union from seeking or winning another election, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The layoff of James Gentry and Edward Heineman Edward Heineman was a machine operator and James Gentry a machine operator helper in the fabrication department of the truck body division under Superintendent Burdett Ross and Foreman Leonard Lautenschlager. They were not a team on the same machine. The fabrication department fabricated parts for all three divisions of the Company-truck body, crane, and air-conditioning-the major portion of its work being for the truck body division. Gentry signed a union card about July 1, 1958, and attended three or four union meetings. He carried union cards in the shop and tried to get the operator he worked with, George Murfield, to sign a card-evidently without success. During about the first week in September, Foreman Sealey, of the truck body division, heard Gentry talking in favor of the Union to several employees. Heine- man talked in the plant in favor of the Union. The blacklist for the fabrication department included the names of 15 employees, of whom 1 was marked with a "?," 4 were marked with a "U," and the rest, 10 in number, were maked "A." Gentry and Heineman were in favor of the Union. Superintendent Ross laid off Heineman and Gentry on October 17, 1958, telling them that they were laid off because work was slowing up. Lack of work was carried on the company books as the reason for these severances Although the sales of truck bodies and body parts in October were the lowest of any month in 1958 ($124,118), the sales of these items the following month, November, were the second highest of the year ($244,586). On previous occasions when work had been slow, Gentry had been transferred temporarily to other work Re- spondent did not prove how long in advance of sales production orders were issued to, and work was scheduled in, the truck body division, but it seems highly unlikely to me that Respondent did not know as early as October 17 that its sales the following month-and indeed the following several months-would considerably raise its level of production in October and the preceding 2 months. On the entire record, I conclude that Respondent did not prove the necessity of laying off two men from fabrication in the milk body division on October 17, 1958. As has been seen above in this report, some 2 weeks before the layoff of Heine- man and Gentry, Lautenschlager had told Charles T. Martin that he had informed President Way and Superintendent Ross that "if they intended to lay any of his men off for union activities, they would have to do it themselves, because he would refuse." When it came to laying off two of Lautenschlager's men, Ross told Lauten- schlager to do it and the latter refused, so Ross did it. The testimony of Ross and Lautenschlager attributed the latter's reluctance to an occasion several years before when Lautenschlager had laid off an employee and a few days later another com- pany supervisor hired him back. The affidavit Lautenschlager gave the field examiner indicated that Lautenschlager understood and distrusted the guile of President Way. The affidavit said, "I have refused to fire anyone since 3 or 4 years ago when company President Way kept telling me to discharge a man and then when I discharged him, Way hired him back Since then, I have refused to discharge anyone." It is clear that in the present instance, Lautenschlager sensed that Heineman and Gentry were about to be discharged because they were in favor of the Union, and he wished to have nothing to do with it. In substance, Respondent's defense was that Heineman and Gentry were selected for layoff because they were lowest in seniority and because Heineman was a careless operator, and Gentry a slow-moving worker. Prior to the hearing, in his affidavit dated February 13, 1959, Lautenschlager said, "The Company pays no attention to seniority in layoff." At the hearing he testified, in substance, that in selecting men for layoff, seniority and the competence of the individuals considered are given about 50-50 weight. This shifting position is typical of Respondent's defense in the treatment of seniority. In those cases where older Employees were laid off and younger ones retained, seniority was said to be overridden by other factors; in those situations where the employees laid off were younger in seniority, the latter factor was said to be the overriding determinant. Further, Respondent had no defined policy as to whether seniority related to a division, a department, or a small group within a department. Under all the circumstances, I do not credit the defense of seniority in the selection of Heineman and Gentry for layoff. Heineman was an ambitious young man and a hard worker, qualities Respondent valued in its employees. However, on occasion, he was somewhat reckless and careless in the operation of his large machine. In April 1957 a man had lost a part of an arm in this machine, but Respondent, including President Way, did not then consider Heineman responsible for this accident, did not discharge him for it, UNITED STATES AIR CONDITIONING CORPORATION 149 and, insofar as the record shows, did not consider discharging him for it . Heine- man had worked for Respondent since April 10, 1956, and presumably had been operating this machine most of the time since that date. Despite his shortcomings, Respondent must have considered him, on balance , to be a satisfactory employee. On the entire record, I do not believe that he was selected for layoff because of the way he operated his machine. Superintendent Ross testified that he has high admiration for Gentry. This was in direct contradiction of his earlier statement that Gentry was selected for layoff partly because he was a slow-moving operator with no future in fabrication, and was not a competent worker. Under all circumstances, I do not credit this defense as the reason for the selection of Gentry for layoff. The entire record considered as a whole establishes , and I believe and find, that Heineman and Gentry were selected for layoff, and were laid off, because of their actual or suspected union activities or sympathies , in order to discourage further union membership and activity and in order to prevent the Union from seeking or winning another election, Respondent thereby violating 8(a) (3) and (1) of the act. 8. Layoff of Lloyd Huddlestun Foreman Carl Roberts hired Lloyd Huddlestun as a janitor in the air -conditioning division in March 1958, at which time, according to Huddlestun's credited testimony, the latter told Roberts that he had had a heart attack and that was the reason he was applying for nonheavy work such as watchman or janitor. From August to December 1958, Roberts had Huddlestun doing part -time work in the shipping room assisting in the crating of large and small air-conditioning units. Foreman Roberts selected Huddlestun for layoff and laid him off effective December 12, 1958, the reason carried on Respondent's records being lack of work. Huddlestun is 62 years old. Huddlestun signed a union card May 10, attended many union meetings over the next months, talked to other employees about the Union , and persuaded at least three employees in the air-conditioning division to sign cards which he passed out to them during break periods and at noontime. Huddlestun testified that as far as he knew his job performance was always entirely satisfactory and that he was criticized only once, as follows: In about July or August , shortly after he had passed out the cards to be signed , he spoke with Charles T. Martin in the crane department as he was going to or from the toolroom to get a bar sharpened . Shortly thereafter Foreman Frank Roberts of the crane division went over and talked with his brother , Foreman Carl Roberts of the air- conditioning division. Shortly thereafter Carl Roberts went to Huddlestun and said, "I want you to pay more attention to your business , not be talking all the time." When Huddlestun asked him what work he had not done Roberts replied, "I simply want you to pay attention to your businesss ." Huddlestun testified, "I asked him again and that is all he would tell me and that was all that was ever said." The following morning Carl Roberts again went to Huddlestun and said "Lloyd . I don't give a damn about the Union. If you vote for it, that is your business, but I want you to pay attention to your business." Huddlestun came down with pneumonia on November 14, was taken to the hospital November 21, and was released November 29. On December 24, when he first returned to the plant, Foreman Roberts told him that he had been laid off as of December 12. On the blacklist Foreman Carl Roberts marked Huddlestun "U" and President Way left it that way. Roberts testified that he concluded Huddlestun was for the Union on the basis of his personal observation plus the comments of several em- ployees who told him that they thought Huddlestun was for the Union . Roberts testified that Huddlestun was open with his union activities and, in Roberts' opinion, Huddlestun was organizing on company time. Roberts testified further that Huddlestun is a talkative person who likes to talk about a number of subjects. As has been seen above, there is no rule against talking in the plant and the entire record establishes that there was a great deal of it by persons other than Huddlestun, including supervisors. In substance Carl Roberts testified that he laid off Huddlestun because work was getting slack , because sales were down , and because Roberts did not care for Huddlestun's work anyway. Sales in the air-conditioning division were as follows from October through February : October $157,745; November $91,056 ; December $108,842 ; January $60,287; and February $ 131,180. It thus appears that sales in December were higher than in November, and it was not shown that what the sales would be in January could be foretold as early as December 12. In any 577684--61-vol. 128-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case these figures are not convincing proof that it was necessary to lay off a janitor on December 12 for business reasons. On direct examination Roberts testified that Huddlestun's work at janitoring and at crating was not satisfactory. In self-contradiction Roberts testified on cross- examination that Huddlestun's work at crating was satisfactory. Although Roberts testified that he criticized Huddlestun several times for neglect of his janitorial duties, I credit Huddlestun's testimony that Roberts spoke to him only once on the subject, as quoted above. Upon the above considerations, and upon the entire record considered as a whole, I believe and find that Roberts laid off Huddlestun because of his actual and suspected union activities in order to discourage further membership and activities in the Union and to prevent the Union from seeking or winning another election, Re- spondent thereby violating Section 8(a)(3) and (1) of the Act. 9. Layoff of Warren Thomas Warren Thomas, an experienced welder who had had 4 years' experience welding during a recent war, worked for Respondent in the air-conditioning division from March 17, 1958, until his layoff December 12, 1958. His principal job was silver- soldering copper coils for air conditioners. In addition sometimes he electric-welded frames and also worked in the fan assembly, assembling and welding fans. Thomas signed a union card in July, attended two union meetings, and talked in favor of the Union with other employees. As has been seen above in this report, about a week before the September 30 election Carl Roberts told Thomas that if the Union got in, Way would close the plant or move it away, because he would not pay union wages. During the summer of 1958, a summer employee (otherwise a student) who was time-studying Thomas' job told Thomas that he was faster than a number of the others were. When one Lester Martin, who was a foreman until he began doing time studies on a full-time basis in early October 1958, was time-studying Warren Thomas' job in late October, he allowed Thomas 100 percent efficiency, which is a good rating. Martin testified that Thomas' performance was up to standard. Thomas was laid off by his immediate foreman, Joel Nelson, who, when asked the reason, told Thomas that "Roberts [meaning Carl Roberts] said it was lack of work." Thomas credibly testified that at that time there was at least 2 to 3 days' work ahead of him. At the time of the selection of Thomas for layoff there were at least four younger men in seniority than he, but not younger by very much, in his department who did work similar to his. At that time the department and Thomas were working a 9-hour day, which meant a 491/2-hour week, Respondent's normal maximum workweek, which fact does not suggest lack of work in the department. Carl Roberts testified that on December 12 it was necessary to lay off somebody in the coil department because of lack of work. As, for reasons given above in the consideration of the discharge of Lloyd Huddlestun, this conclusion was not proved, I do not credit it. Admitting that Thomas was a very good welder, Roberts testified that he selected Thomas for layoff for two reasons, because he was dissatisfied, and because he was handicapped in that he had only one arm. Later in his testimony Roberts admitted that other employees in the department-indeed, most of them- were dissatisfied, and many of them made complaints, the chief complaint evidently being that the employees wanted to go on to piecework. As to Thomas' handicap, Roberts hired Thomas only about 9 months before. The record being silent con- cerning any accident to Thomas during his 9 months' employment with Respondent, it may be presumed that Thomas had had his handicap during all of his employment under Roberts, during each day of which Roberts had not discharged him or selected him for layoff because of his handicap. Roberts testified that Thomas asked not to be assigned to any copper-cutting equipment. On rebuttal Thomas denied this and he and another employee who worked near him, William Hesson, both testified that in fact Thomas did cut copper. Their testimony is credited. One day in about November Foreman Courter came upon Thomas sitting on a box doing nothing. He was resting a moment after a strenuous period of work. Thomas had just been timing himself and he had just completed the soldering of 480 connections in less than an hour-which, according to Thomas, was about 11/2 hours' work. Courter asked Thomas something about his work and Thomas replied with a "bright remark." Courter quoted Thomas to Carl Roberts, who testified that Thomas' attitude as shown on this occasion was a factor in his selection of Thomas UNITED STATES AIR CONDITIONING CORPORATION 151 for layoff. Roberts never discussed this episode with Thomas; if he had, he would undoubtedly have seen it in a different light. Thomas was the one employee marked "NU" by Carl Roberts on the blacklist, which presumably was construed by President Way as indicating Thomas was in favor of the Union-Way, as has been seen earlier in this report, having convertea 18 "A's," 4 "U's," 1 "NU," 3 "NA's," and 14 "N's" into 30 for the Company and 13 for the Union. Thomas was well qualified to do the work performed by Camdon Snyder, hired November 25, 1958, and by Paul Sabins, Jr., hired December 1, 1958. Upon the above considerations and the entire record in the case I believe and find that the reasons asserted by Respondent for the layoff of Thomas were mere pretexts and that the real reason for the selection and layoff of Thomas was his actual or suspected union sympathies and activities, in order to discourage further membership and activities in the Union, and to prevent the Union from seeking or winning another election, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 10. Layoff of Burl Coffee Burl Coffee worked for Respondent from June 1953 until his layoff on November 5, 1958, with the exception of the period January 1955 until April 1957. During 1958 he served as a stockroom clerk in two stockrooms, one in the crane division, one in the truck body division, and also assisted in a shipping room in the crane division. On company records he was listed as being in the crane division as of June 1958. His name appeared on two blacklists, the one for the crane division and the one for janitors, watchmen, and stockrooms which Way testified was filled in by Superintendent Ross. Both Foreman Frank Roberts and Superintendent Ross marked Coffee "U." Coffee signed a union card about the middle of April 1958, attended about 10 union meetings. Foreman Courier's interrogation of and threat to Coffee have been seen early in this report. In October Courter told Coffee to remove the badge Coffee was wearing urging its readers to vote "No" on the right-to-vote issue. According to the credited testimony of Coffee, on November 5, 1958, Supervisor George Brennaman told Coffee that he was being laid off as of the end of the day by orders of President Way because of lack of work. In a conversation with Myron Shoat, who was in charge of the shipping room in which Coffee was then working- which conversation presumably took place the same day-Shoat said as far as he could see there was plenty of work there to keep the three clerks then working busy. In substance Brennaman testified that in view of certain circumstances which he outlined he didn't need Coffee any more in his department. He admitted asking Way what he should do with the "extra" men in his department, Way replying that if he didn't need them he would have to transfer them or lay them off. Brennaman laid off Coffee without looking for another spot for him. According to Brennaman he knew some time in advance that he would run out of work for Coffee. Respond- ent hired two stockroom assistants, who obviously were hired to do work within the competence of Coffee-Raymond Smith on November 3, 1958, and Andrew Bryant on November 11, 1958. As from the blacklist President Way knew, and as, in addition, Superintendent Ross, Foreman Frank Roberts, and Foreman Courter knew that Coffee was in favor of the Union-and as Coffee's layoff was ordered by President Way who was strongly motivated to rid himself of the union sympathizers among the employees-I find on the entire record that lack of work was but a pretext and that the real reason for the selection for layoff of Burl Coffee was his actual or suspected union activities and sympathies and in order to discourage further membership or activity in the Union and to prevent the Union from seeking or winning another election, Respondent thereby violating Section 8(a) (3) and (1) of the Act. 11. Layoff of John Ott John Ott worked for Respondent in the blower department under George Brenna- man.from July 10, 1957, until his layoff December 5, 1958. He was a sheet metal worker and machine operator. He also did some assembly work and welded "frames and things" that were used to store parts. Several times Brennaman told him what a good worker he was. Ott signed a union card about August 1 and attended two or three meetings. About the first week in September one day when Ott was in Brennaman's office on business, Brennaman brought up the subject of the Union He told Ott he did not see why people wanted the Union in there, and "told me what a good place it was to work and what we would have in a few years, profit-sharing bonuses. He said anybody that was for a union just was not Christian." 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brennaman, who because of his convenient loss of memory at times did not impress me as a credible witness, had almost no memory as to how he marked Way's black- list. Of the nine employees on the list for the blower and fan division, Brennaman checked the names of seven but put no marks against the names of two others, one of whom was John Ott. On Way's tally seven were marked for the Company and two for the Union, from which it follows that Way considered Ott to be sympathetic to the Union. Brennaman admitted that because of his associations he suspected that Ott was a member of the Union. On December 2, 1958, Brennaman called Ott into his office and told him that Ott was to be laid off as of December 5, Friday night, and told him further that Brennaman had told President Way that Way was getting rid of one of his top producers and that Way had replied that it did not make any difference to Way, that Ott had to go. During that week Ott was working on the assembly line assembling blowers. At this time a new employee, Camdon Snyder, who had been employed November 25, 1958, was also working on .the assembly line, as was also one Paul Sabins, Jr., who was employed December 1, 1958, the day before Brennaman told Ott he was being laid off. Brennaman admitted that Ott was capable of doing the work that Sabins was doing during Ott's last week of employment, and which Sabins continued performing immediately after Ott's "layoff." Ott testified that his own welding skill was sufficient for him to perform the work that Sabins was doing. According to the credited testimony of John Ott, about 2 weeks later Ott went out to the plant and saw a new employee who had been hired 2 or 3 monthe before, performing Ott's operation. Brennaman's testimony suggested that shortly before Ott's layoff Brennaman had asked him if he wanted to learn to perform operations other than his own and that Ott had refused. The fact is that during his latter days Ott performed some new functions. In any case it is clear that prior to laying him off Brennaman never gave Ott the choice of either learning some new operations in the department or being laid off. Nor is there any doubt that Brennaman regarded Ott highly as a worker and would have retained him but for the union factor. Brennaman admitted dis- cussing Ott with Way and admitted that Way told Brennaman that if he did not need Ott in his department he should lay him off. Upon the above considerations and the entire record in the case considered as a whole I believe and find that the alleged reason for the layoff of Ott-lack of work- was a mere pretext and that the real reason for the layoff of Ott was his actual and suspected union activities and sympathies , in order to discourage further mem- bership and activity in the Union, and in order to prevent the Union from seeking or winning another election, Respondent thereby violating Section 8(a)(3) and (1) of the Act. 12. Layoff of Byrd Wolfe Byrd Wolfe, aged 162, served Respondent as a janitor from when he was hired in October 1955 by George Brennaman until he was "laid off" by Brennaman on June 27, 1958. According to the credited testimony of Wolfe and Frank Donley, a representative of the Union, on June 17, 1958, as Wolfe was talking on his own front porch with Donley and employee Lewis Durst, Supervisor George Brennaman drove by in an automobile and waved, Wolfe waving back. On that occasion Wolfe signed a union authorization card. On April 22, 1958, Frank Donley had first passed out handbills at the gates of the plant . On at least one occasion when Donley was passing out handbills he passed one to Brennaman . Brennaman testified that he had received handbills at the gate an estimated 8 or 10 times , that the man "would naturally pass it to me and maybe I would kid him a bit ." Although in testifying Brennaman denied knowing the identity of Frank Donley , who was sitting in the hearing room at the counsel table, Brennaman did not recall , but did not deny, ever seeing Donley pass out handbills or ever kidding with Donley . On the above evidence and on the entire record I find that on June 17, when Brennaman saw Donley and Durst on Wolfe's porch , he knew that Donley was the man, or one of the men, who had pre- viously passed out union leaflets at the gates of the Company. Brennaman admitted that he became aware of the union organizational drive in May or June 1958. Asked if he received any instructions from any person concern- ing the organizational drive Brennaman replied that he had not . "We naturally conferred. I was in a supervisory position and I naturally conferred regarding these things. . . . With Mr. Way, of course management . . We naturally discussed it. I don't know what you refer to as instructions there, but we discussed the procedure and he was naturally interested in who might be for the Union or who might not be." The Saturday before the September 30 election Brennaman summoned Charles T. Martin to his office and cautioned him about being away from his machine in the UNITED STATES AIR CONDITIONING CORPORATION 153 fabrication department, over which Brennaman had no direct authority and possibly, at this time, no authority at all. In the course of his conversation Brennaman told Martin that he had been wanting to talk to him about "this other trouble." Martin replied that if Brennaman referred to the Union, Martin did not believe that there was going to be any trouble, that he believed Way would go along with the men and that everything would work out all right. Brennaman replied that he knew Way better than Martin did, and that the fellows who vote for the Union were going to be surprised because Way would not sign a union contract, especially one with a seniority clause. From the testimony in that paragraph I conclude that Brennaman learned what he could concerning which employees were having anything at all to do with the Union and discussed his knowledge on that subject with Way, including his having seen the union representative on Byrd Wolfe's front porch. On June 27 Wolfe was laid off by George Brennaman, who said that Way had told him to lay off the night men. Brennaman told him he did not know whether or not he would even be called back. "Lack of work" was carried on the books of the Company as the reason for the severance of Wolfe. Wolfe was then working from 2 p.m. until about 11 p.m. Insofar as the record shows he was the only one on the night shift. Although in servering Wolfe, Brennaman gave him no reason for the severance other than that Way had ordered it, Respondent's defense is that Wolfe was laid off because of economic necessity, a position which, on the entire record, I find was not sustained. Wolfe was allegedly selected for layoff because at some time in the past-the period ending in June 1957-he had failed to perform a portion of his duties, cleaning machines in the machine shop, in a satisfactory manner. At that time, June 1957, he was taken off those duties, was not discharged for his short- comings, and was continued in his other janitorial duties, which included cleaning up and sweeping up in different parts of the large building which housed the machine shop, the crane division, and the blower department, and, in cold weather, firing pot-bellied stoves to warm the employees. A list of employees as of June 1, 1958, lists four janitors in the crane division, who took care of the entire building. Two of these four, who were retained when Wolfe was laid off, had been hired late in 1957, Wolfe's employment dating back to October 1955, some 2 years before. Although Wolfe was merely "laid off" Brennaman testified that he would not rehire him, so that in fact Wolfe's severance was a discharge. Upon the above evidence and the entire record considered as a whole, I find that Wolfe was discharged because of his actual or suspected union membership or sympathy in order to discourage further membership and activity in the Union, Respondent thereby violating Section 8 (a)(3) and (1) of the Act. 13. The alleged discrimination against Alva Roar Alva Roard had worked for Respondent for some 10 years and was still employed at the time of the hearing. He does the electric welding on truck tops, working with a group of five employees, each of whom performs one or more functions in con- structing the top. Roar's is the first operation. Using four pieces of metal which come to him cut to size he forms them on a press and then welds the four pieces together. Roar signed a union card, signed six or eight employees into the Union, attended six or eight union meetings in Delaware, and, together with Charles T. Martin, served as an observer at the September 30 election. The complaint alleges that on or about January 14, 1959, and thereafter Respondent discriminatorily reduced Roar' s hours of work because of his union activities. Roar's own testimony was uncertain and vague as to when or whether he was discriminated against. He thought he was discriminated against when on several occasions he would have no steel to work and when he would ask Sealy what he should do Sealy would tell him to go home and Sealy would call him back soon, which Sealy would do in 2 or 3 days. Roar contended that while he was off, sometimes other employees in the group would do his work-this happening, according to Roar, two or three times in around December, January, and March. Roar thought the discrimination began in late November. Analysis of hours worked by the five men in this group reveals that nearly every week from September 30, 1957, until March 28, 1959, Roar worked fewer hours than the other four employees, and that on a comparative basis with the comparable period the year before, Roar worked even fewer hours than the others during the period from November 24, 1958, through February 9, 1959. The General Counsel contended that Roar's comparatively fewer hours than the others during the November to February period was attributable to Foreman Sealy's discrimination against him in the assignment of work. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the credited testimony of Foreman Sealy, a credible witness, during 1957 and 1958, Roar wanted time off from the plant in order to do work at his new home. Sealy credibly testified further that when they started working Saturdays in the early part of 1959 Sealy gave Roar and all employees the choice on Fridays of coming in to work Saturday mornings or not coming, and on a number of occasions Roar chose not to. Roar admitted that three or four times Sealy gave him an opportunity to work Saturday mornings and he did not accept, figuring that there was not enough work for him to make an hourly wage out of it. Roar was paid on a piece-rate basis, but sometimes on a much lower hourly rate basis. Roar performed the first function in the group and the nature of his work was such that he could stockpile his work somewhat and thereby get ahead of the others. On some occasions if Roar left unfinished work on his fixture Friday night and then did not come in Saturday, Sealy would have some of the other men finish the work that Roar had started. At the hearing, Roar cited this as discrimination against himself. On Way's blacklist, of the five men in the group, three, Roar and two others, were marked "U" and the other two were marked "A." Thus the alleged discrimina- tion against Roar by giving the others more work than him, served to discriminate, if such it was, in favor of two other union men as well as two other antiunion men. When Sealy went through the list of his employees who were invited to the Christmas party, 1958, he noticed that Roar' s name was missing. He mentioned this fact to Harry Hupp, who worked in the Company's office, and who replied that the invitations came from Mr. Way. Sealy testified that he let it go at that, figuring that it was for Way to determine who should receive the invitations, since Way was giving the party. The fact that Sealy spoke to Hupp indicated that Sealy was concerned that Roar not be overlooked and that he receive an invitation. Sealy would not have spoken to Hupp as he did had he been motivated by a desire to discriminate in any way against Roar because of Roar's union activities. By this action Sealy revealed, rather, a motive to prevent Roar from being discriminated against. There is no evidence that President Way had anything to do with the alleged discrimination against Roar. Sealy credibly testified that Roar never complained to him that he was being discriminated against prior to the filing of the charge naming Roar as a discriminatee. Upon the above considerations and all the testimony relating to this situation, and upon the entire record considered as a whole, I find that the General Counsel has not proved the alleged unlawful discrimination against Roar. Accordingly I shall recommend that the complaint be dismissed as to Roar. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged or unlawfully laid off Charles T. Martin, Daniel Wells, Dwight Andrews, Lowell Bell, Russell Hickson, Jessie Randall Berry, Elwin Gale, Alpheas Jordan, Cathie Parker, Harold Bauder, Ronald Bell, Vollie Harrison Maggard, Bozo Petrovic, Gary Bell, Bernard Scribner, James Gentry, Edward Heineman, Lloyd Huddlestun, Warren Thomas, Burl Coffee, John Ott, and Byrd Wolfe, and having unlawfully failed to rehire or recall Roger Shoaf and Robert Dailey, because of their actual or suspected union or concerted activities, and not having offered them reinstatement or recalled them, I recommend that Respondent offer to each of them immediate and full reinstatement to his former or a substan- tially equivalent position 10 without prejudice to his seniority and other rights and privileges and make each whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge (as found above, and repeated in the footnote, all dates being in 1958 10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. In the case of Roger Shoaf I recommend that Respondent restore him to his former job as an assembler in the crane division. UNITED STATES AIR CONDITIONING CORPORATION 155 except as otherwise noted) 11 the dates of the discrimination against them to the date when, pursuant to the recommendations herein contained, Respondent shall offer them reinstatement,12 less the net earnings of each during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, I recommend further that Re- spondent make available to the Board on request payroll and other records, in order to facilitate the checking of the amount of backpay due. The violations of the Act committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coex- tensive with the threat. In order, therefore, to make more effective the interde- pendent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. During the period between the signing of the stipulation for certification upon consent election on September 10 1958, and the holding of the election on Septem- ber 30, 1958, by threatening empfoyees with reprisals if the Union won the election, by interrogating employees concerning their union activities and sympathies, and by discriminatorily discharging Gary Bell, Respondent interfered with the election and so coerced the voters in the election as to prevent a free choice of ballot. Under the circumstances I shall recommend that the Board set aside the election and hold a new election at a suitable time after the effects of the unfair labor practices have been dissipated. 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. The United States Air Conditioning Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating and threatening employees concerning their union activities and sympathies, and by other acts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Charles T. Martin, Daniel Wells, Dwight Andrews, Lowell Bell, Russell Hickson, Jessie Randall Berry, Elwin Gale, Alpheas Jordan, Cathie Parker, Roger Shoaf, Robert Dailey, Harold Bauder, Ronald Bell, Volhe Harrison Maggard, Bozo Petrovic, Gary Bell, Bernard Scribner, James Gentry, Edward Heineman, Lloyd Huddlestun, Warren Thomas, Burl Coffee, John Ott, and Byrd Wolfe, thereby discouraging membership in the labor organization named in paragraph 2, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Because of Respondent's interference with and coercion of the voters in the election of September 30, 1958, thereby depriving voters of a free choice in the election, the election should be set aside. [Recommendations omitted from publication.] "Martin, October 24; Wells, November 5; Andrews June 20; Lowell Bell, June 20; Hickson, June 20, Berry, December I, Gale, December 1; Jordan, December 1 ; Parker, December 1 ; Bauder, October 10; Ronald Bell, October 10; Maggard, October 10; Petrovic, October 10 ; Gary Bell, September 16 ; Scribner, October 13 ; Gentry, October 17 ; Heineman , October 17; Thomas, December 12, Coffee, November 5; Ott, December 5; Wolfe, June 27. In the case of Robert Dailey backpay should begin as of January 12, 1959, the date Respondent hired another employee instead of Dailey. In the case of Roger Shoaf, backpay should begin October 28, the date Respondent failed to hire or rehire or recall him. In the case of Huddlestun backpay should commence February 1, 1959, the date he was released by his doctor as fit to return to work. 19 To December 28, 1958, in the case of Edward Heineman, the date of Heineman's death. Any money due Heineman should be paid to his personal representative.