Arnoldware, Inc.

228 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively with us, or refuse to bargain with said Union, as the ex- clusive representative of all our employees in the bargaining unit, set forth above. INTERNATIONAL TELEPHONE AND TELE- GRAPH CORPORATION, INDUSTRIAL PRODUCTS DIVISION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Arnoldware, Inc. and International Leather Goods, Plastics and Novelty Workers' Union , AFL-CIO. Case No. 1-CA-2831.. October 3, 1960 DECISION AND ORDER On May 25, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and. take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu sions, and recommendations, with the following modification. The Trial Examiner found that the purpose of the discontinuance of the third shift printing department was to punish employees. Bernice Lyons, Nina Day, Marjorie Rice, Barbara Miller, Carol Shippee, and Dorris Malone because of their union activity and mem- bership. For the reasons given in the Intermediate Report, we agree with the Trial Examiner that Respondent violated Section 8 (a) (3) of the Act by terminating these employees. However, the Trial Examiner recommended that the complaint be dismissed as to two other third shift printing department employees, Gertrude Towne 129 NLRB No. 25. ARNOLDWARE, INC. 229 and Lillian Bickford, who were also terminated at the same time, on the ground that the absence of any evidence of union activity on their part precluded Respondent's knowledge thereof. As the Trial Examiner found, Respondent ceased operating the third shift printing department to thwart the Union. As Respondent's objective in effect- ing the closedown was illegal, it is immaterial that in carrying out this objective, some of the victims of Respondent's discrimination may not have been union employees or that Respondent had no knowledge of their union membership and activities. Discrimination in regard to hire or tenure of employment of a group of employees, including nonunion employees of the group or union members not known by the employer to be union members, tends to discourage union membership and activities no less than discrimination against known union mem- bers alone. All victims of discrimination are in such cases entitled to the same relief under the Act as are known union members.' Accordingly, we find, contrary to the Trial Examiner, that by terminating Gertrude Towne and Lillian Bickford, Respondent dis- criminated against them in violation of Section 8(a) (3) of the Act. As there is uncontradicted testimony that Respondent offered Towne reinstatement on May 20, 1959, we shall order Respondent to make this employee whole for the period of her layoff to the date of the offer. We shall also order Respondent to reinstate Bickford and make this employee whole except for the period between the date of the Intermediate Report and the date of the Order herein:' ORDER Upon the entire record in the case, the National Labor Relations Board orders that Arnoldware, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Leather Goods, Plastics and Novelty Workers' Union, AFL-CIO, or in any other labor organization of its employees, by discharging or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of employment, except as permitted by the proviso to Section 8(a) (3) of the Act. (b) Threatening its employees with loss of employment if they join the Union, threatening to close its plant rather than deal with the Union and insinuating to its employees that their union activities are under surveillance. (c) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization to form, 1 Heat Timer Corporation, 124 NLRB 1256; American Bottling Company, 99 NLRB 345, 352, enfd. 205 F. 2d 421 (CA. 5), cert. denied, 346 U S. 921. 2 J. B. Wood, at al., d/b/a Wood Manufacturing Co., 95 NLRB 633, 641. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities,, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Beulah Brunelle, George Guerrin, Charles Henderson, Bernice Lyons, Nina Day, Marjorie Rice, Lillian Bickford, Barbara Miller, Carol Shippee, Dorris Malone, Lawrence Anderson, Eleanor Burkewitz, and William Smith, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of the aforesaid employees and Gertrude Towne whole for any loss he may have suffered by reason of the Respondent's discrimination against him in the manner set forth in section VI of the Intermediate Report entitled "The Remedy" as modified by the Board's Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (c) Post at its Brattleboro, Vermont, plant copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, in con- spicuous places, including all places where notices to employees are customarily posted, and maintained by it for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply therewith. 8 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." 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 : ARNOLDWARE, INC. 231 WE WILL NOT discourage membership in International Leather Goods, Plastics and Novelty Workers' Union, AFL-CIO, or in any other labor organization of our employees, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment or any term or con- dition of employment, except as permitted by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT threaten our employees with loss of employment if they join the Union, threaten to close our plant rather than deal with the Union, nor insinuate to our employees that their union activities are under surveillance. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employee hired following their discharges, and we will make each of these employees and Gertrude Towne whole for any loss of pay he may have suffered by reason of our discrimination against him : Beulah Brunelle Barbara Miller George Guerrin Carol Shippee Charles Henderson Dorris Malone Bernice Lyons Lawrence Anderson Nina Day Eleanor Burkewitz Marjorie Rice William Smith Lillian Bickford WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join or assist in any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. ARNOLDWARE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and amended charges filed on .April 3, May 18, and October 26, 1959, by International Leather Goods, Plastics and Novelty Workers' Union, AFL- CIO, herein referred to as the Union, the Regional Director of the National Labor Re- lations Board for the First Region, on October 27, 1959, issued an amended complaint (following the issuance of an earlier complaint on June 30, 1959), against Arnold- ware, Inc., herein referred to as Respondent, alleging violations of Section 8 (a)( I) and (3) of the National Labor Relations Act, herein called the Act. In its duly filed answer Respondent, while admitting certain allegations in the original and amended complaints, denied the commission of any unfair labor practice. Simultaneously with the filing of its answer to the original complaint Respondent filed with the Regional Director for the Board's First Region a motion for specifica- tion. Said motion and the Regional Director's opposition thereto were duly referred to Trial Examiner Owsley Vose who, upon noting that the Regional Director had meanwhile amended his complaint in certain respects pertinent to Respondent's motion, denied the motion. Respondent thereafter filed with the Regional Director its exceptions to the Trial Examiner's denial of its motion. Prior to hearing counsel for the General Counsel moved to strike from Respond- ent's answer a certain allegation on the ground that it was incompetent, irrelevant, and immaterial to these proceedings. As the matter complained of consisted of Respondent's allegation that the Charging Party had itself engaged in unspecified interference, restraint, and coercion, an issue which can be raised only by the filing of a charge under Section 10(b) of the Act, I shall grant the motion and direct that the final paragraph of Respondent's answer be stricken. Pursuant to notice a hearing was held before me at Brattleboro, Vermont, on November 17, 18, and 19, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence,' to present oral argument, and to file briefs. Parties waived oral argument and in lieu thereof filed briefs with me thereafter. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Arnoldware, Inc., is a Vermont corporation, with its plant and principal office located in Brattleboro, Vermont, where it is engaged in the manufacture, sale, and distribution of plastic dishes and containers. While so engaged Respondent annually transports finished products valued in excess of $50,000 to destinations outside the State of Vermont. Respondent admits, and its records further establish, that it is engaged in commerce within the meaning of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. The insinuations of surveillance and the threats of reprisal in President Marti- nelli's speech. 2. Respondent's awareness of the union activities and interests of those whom it allegedly discharged for specified shortcomings , and in the case of certain employees, for poor departmental production. 3. The real reasons for the foregoing discharges as disclosed by Respondent's opposition to the Union. During the course of the hearing I granted a motion of counsel for the General Counsel to amend the complaint by adding the names of five employees alleged to have been discriminatorily discharged. 2 Unless specifically indicated to contrary, any credibility evaluation which I make of the testimony of any witness appearing before me is based, at least in part, upon his or her demeanor as I observed it at the time the testimony was given. ARNOLDWARE, INC. IV. THE UNFAIR LABOR PRACTICES 233 A. Introduction Arnoidware, Inc., is one of three operations headed by Arnold C. Martinelli, Rogers Plastics Co., located in West Warren, Massachusetts, and a third operation located in Canada, are all engaged in the production of plastic dishes and containers. President Martinelli established Arnoidware, Inc., in Brattleboro, Vermont, during the fall of 1958, but production did not get underway until late December. Oswald Abbiati, previously employed at the Rogers plant, was named chief engineer and plant manager and assumed his duties on January 12, 1959; Henry Gangwisch was general manager and assistant to the president; Richard Newman became personnel manager on January 1, 1959, and Norman Beach was printing department foreman. During the fall of 1958 an employee recruitment program was carried on in the area and a number of individuals, including Alvah Jones, Stanley Olzowy, and Kenneth Barden,3 were selected for supervisory training and sent to the West Warren plant for that purpose. Upon the completion of their training they assumed super- visory positions with Respondent. In addition to the foregoing, the supervisory staff also included Paul Bishop and Roland Thomas, both of whom have since left Respondent's employ. As a part of the supervisory training program at the West Warren plant the candi- dates attended a number of meetings called for the purpose of familiarizing them with plant organization and policy. Presiding over one of these meetings, President Martinelli discussed Respondent's policy with respect to the unionization of its employees and made it clear that "under no circumstances would he have a union in the Brattleboro plant" and "if such were the case, the doors would be locked." He also instructed the trainees that "any union activity should be reported to the Company." 4 B. The nature of Respondent's operations Respondent's principal product at Brattleboro during early 1959 was the plastic tumbler, in various sizes and designs. This item began in raw form as plastic pellets, was machine molded into the appropriate shapes, and arranged by hand for move- ment by conveyor belt to the printing machine. During this transfer the rough edges and protrusions were hand-trimmed and the articles inspected. On arrival at the printing department each article was individually imprinted with a distinctive design and the products were then ready for packing and shipment. Some were packed, undecorated. Of the two machines utilized in the process it appears from the record that the printing machine was the most sensitive to human error, with the result that unless proper adjustment, attention and control was maintained the breakdown expenses and the rate of spoilage would become excessive. As for the molding machine, apart from the usual mechanical failure, the principal problem appeared to be that of jamming; the failure of the attendants to remove the finished products as they came from the molding machine to provide for a steady flow from the machine. The plant operated on three shifts, 8 a.m. to 4 p.m.; 4 p.m. to midnight; and mid- night to 8 a.m.-the third shift of which we shall hear considerable. Because of the inexperience of the supervisory staff and the general confusion attendant upon the establishment of a new plant a considerable amount of personnel transfer occurred, particularly among the foremen on the molding and printing machines, so that, as we shall note in context hereafter, individuals were supervised by several different foremen during their employment. In addition, the turnover among the employees during the period in question was very high, a situation attributable to the inexperi- ence in the local labor market and to the normal problems connected with establish- ing a new plant with an unstable work force. C. The advent of the Union During late February 1959 the Union, through its International Representative George Sylvia, made its first contacts with the Arnoldware employees. Employees were given authorization cards to distribute and by the end of February 16 employees had designated the Union as their representative . Meanwhile, Sylvia and another 8 Barden and Olzowy terminated their employment with Respondent prior to the hearing. * The credited testimony of Foremen Barden and Jones. Olzowy did not testify on the- subject Martinelli's denial of this and other conduct attributed to him is not credited.. See infra. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union representative, Barberia, distributed leaflets at the plant gate at every oppor- tunity and continued this distribution well into March. The first meeting of employees interested in the Union was held on March 17, at a nearby restaurant, Alfredo's. Seventeen attended. A second meeting was held at the Log Cabin, another nearby restaurant, on the morning of March 24, immediately following a speech at the plant by President Martinelli. Eight employees, all from the third shift (Anderson, Burkewitz, Day, Lyons, Miller, Rice, Shippee, and Smith), were in attendance.5 Meanwhile Respondent's officials became aware of the Union's activity, the foremen having been questioned about it and instructed to "keep their eyes open" and report any union activity to the Company.° At this point Respondent took definite steps to combat the Union, having admittedly called the activity to the attention of its foremen and instructed them to report anything they observed "that interfered with production on their shift." 7 D. Interference, restraint, and coercion 1. President Martinelli's speeches All employees present for work on March 13 were assembled at 8 a.m. and again at 4 p.m. to enable President Martinelli to speak to them at either the beginning or end of their respective shifts. Martinelli delivered the speech extemporaneously, having papers in his hand as he spoke .8 He cloaked his remarks in "get-acquainted" terms and spoke at length of the woes attendant upon the opening of a new business. He outlined general company plans and policies, including wages, working conditions and available employee benefits, and he suggested that management and employees cooperate with each other, and bear with each other, in the spirit of one big happy family. At the end of the second shift and immediately following Martinelli's speech a number of employees met with union representatives at Alfredo's, as previously noted. An intensified organization campaign followed. Thereafter, on March 24, Martinelli again addressed the employees who had again been assembled by prearrangement, at approximately 8 a.m. and again at 4 p.m. Whereas Martinelli's March 13 appearance before his employees took on an aura of conciliation and friendliness, this time he was admittedly more forceful, and for the first time referred directly to the Union. He again spoke extempora- neously, holding notes or papers in his hand without referring to them. He began his speech by telling the employees that he was well aware that some of them had met at Alfredo's, referring to it facetiously as Hernando's Hideaway, and that he knew who they were. Bernice V. Lyons, employed on the third shift in the printing department, was among those who heard Martinelli' s 8 a.m. speech. The following is her version of the full speech which I credit: So he did tell us that he understood that there were agitators among us, and that he understood that members of the shift had met at Alfredo's Hideaway- he called it Hernando's Hideaway, and he said he couldn't give any more than he promised us, and he said when the mill started turning out and money in- creased, he would increase our pay accordingly, but the Union could not promise any more than he was giving us, and the mill at the present time was 5 The credited testimony of employees Day and Burkewitz. The credited testimony of Foremen Barden, Jones, and Thomas, corroborated by Fore- man Olzowy whose testimony I shall rely on only when it corroborates credited testimony of other witnesses . Olzowy's lapses of memory with respect to those under phis supervision casts doubt upon statements which he did make concerning them. For this reason I do not rely upon him as a credible witness. 7 The testimony of Chief Engineer Abbiati. I consider it at this point merely to estab- lish the Respondent's knowledge of the Union's activity and its determination to keep it under surveillance. For reasons which I shall detail hereafter, I do not credit Abbiati generally and do not accept as credible his statement quoted above to the effect that foremen were to report to him only such union activity as interfered with production. 8 The extemporaneous character of this speech and a later one given on March 24 is the subject of much contradictory testimony. On the credited testimony of employees Lyons and Day I find that Martinelli delivered the speech extemporaneously in context form as described in the text. As to whether Martinelli had a written document in his hand, or, if he did, whether he referred to it in the course of his speeches , I am not disposed to evaluate a welter of confused recollections of a 7-month-old incident that is itself inconsequential and has no significant bearing upon the content of the speech as I have found it to have been given. ARNOLDWARE, INC. 235 not making a profit, that he was more or less paying us out of his own pocket, and he said he had come to Brattleboro because he understood there was a great deal of unemployment in Brattleboro, and that he was doing the people of Brattleboro a favor by setting up the mill. He didn't need another mill, he had a mill in West Warren, he also had a mill in Canada. He said that he could not pay us at any higher rates then he was already paying us, because he couldn't get blood from a beet. He said that we would have to think about paying the Union a dollar a week out of our pay, 52 weeks a year, and he couldn't understand why we wanted to do that when they would just take it from our pay, but they would give us no more money, and he said if the Union could offer us so much more, why weren't they honest enough to come in and stand before him and have an open discussion before him, and with us; and a few minutes later he said if the Union men dared set foot on his property he would have them arrested... . He did call the Union men some names-leeches, and he said he would have nothing to do with them, and that anyone that was an instigator or was thinking of joining the Union, or was going to make trouble for him, he would get rid of them, he did not want the Union in there, he said it would only take a few days to dismantle the machinery; he said he did not need Brattleboro, but Brattleboro needed him. He said that when he came to Brattleboro it was a non-union town, the only two industries that had a union was the Church Manufacturing Company and Margolin, and he said the Margolin Company was represented by the Union that did want to come in there, but he under- stood when he came here it was a non-union town, that industry did not want Unions here. * * * * * * * He said if the Union came in he would not allow the Union in there, he was not going to have the Union in there. If the workers wanted a Union he could dismantle the plant, it would only take a few days.9 2. Analysis and conclusion As I have previously indicated, I have credited the version of the speech to which employees Lyons and others credibly testified and in so doing I have rejected Martinelli's account of it. Upon my observation of this gentlemen as a witness and upon consideration of all of his testimony and the credible testimony of other wit- nesses I do not credit him in this proceeding except as to such matters corroborated by the testimony of credible witnesses, matters dealing with his technical knowledge of the industry not otherwise disputed, and matters which constitute an admission contrary to a position taken by him for Respondent. Martinelli's testimony is replete with contradictory and confused statements on matters that, as president, he should have been fully conversant with. Thus he testified .that he sought to recall employees laid off on the third shift printing (infra, pp. 239-242), yet the testimony of other Respondent witnesses clearly indicates that letters were sent to these employees not to recall them but "to see if they were available," and this after charges had been filed. (See footnote 27 infra.) Similarly Martinelli could not confirm a previously stipulated fact that 141 employees had been hired after April 1, and, as on most matters relating to specific facts, avoided, answering by referring the subject to other future Respondent witnesses. As further illustration of Martinelli's evasive testimony is his answer on cross-examination to 9 The above-quoted account of Martinelli's morning speech of March 24 agrees , substan- tially, with accounts given by employees Day and Burkewltz and Foreman Bishop whose testimony I also credit. Respondent, by way of rebuttal, called a number of employees who also claimed to have heard the speeches. One witness, La Plante, offered nothing with respect to the subject matter of either speech, confining herself to fixing the time. Employees John and White confused their testimony by not recalling which of the two speeches came first. Employee Coburn, Respondent's office manager, sought, it appeared to me, to tailor her impressions of the speech to her Employer 's descriptions. In doing so, however, she testified he never once used the word "union," which Martinelli admittedly did use Employee Ebbighausen testified in like manner. Because of the confusion, lack of recollection, inaccuracy, and evasion in their testimony Illustrated by the foregoing exam-ples, I do not credit these witnesses. For reasons which I shall develop in further detail hereafter , I do not credit Martinelli's versions of his speeches conflicting as they do with the testimony of credited witnesses. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he knew of his employees' union interests. Having testified that in his speech he told the employees that there are some of you who are strongly sympathetic to these organizers, there are also some of you who may have organized meetings with them, and remem- ber, I say some who may have . .. . he stated and restated on cross-examination, "I don't know what they wanted." In such findings as I have made, therefore, and in such consideration as I give to the explanations and defenses offered by Respondent for any of its conduct detailed herein, I shall not rely upon any statement, reason, or explanation supplied by this witness. A review of the version of Martinelli's second speech which I have credited and set forth above clearly discloses his determination to avoid dealing with the Union. This position was conceded by him, in fact, in his testimony before me.20 But while this feeling is one that he is perfectly free to indulge, it does, however, provide a revealing background for the further remarks he made in his speech, and for the personnel activity in which he and his management subordinates engaged during the same period, and to be discussed in detail hereafter. In his speech Martinelli not only informed his employees that he was aware of their union interests but added that he knew of their meeting, their meeting place, and who attended. The Board has consistently held that such a statement, fostering as it does the impression that surveillance has been engaged in, is calculated to engender in employees a fear of unfortunate consequences at the hands of their employer. u Similarly, when he stated that anyone who instigated the Union, joined it, or planned "to make trouble for him" would be. gotten rid of, his determination thus was expressed in terms that any employee could understand, and no citation of authority is necessary to establish its threatening character. And finally, by his suggestion to the employees that he actually did not need the Brattleboro plant and that if the employees wanted the Union he could dismantle the plant in a few days, Martinelli was most certainly expressing his threat to close down the plant if the Union actually persisted. Upon the foregoing, therefore, I conclude and find that by Martinelli's speech delivered on the morning of March 24, he stated that he had, in effect, engaged in the surveillance of certain of his employees' union activities; and in this speech he threatened to discharge employees who instigated the forming of a union or joined it, and to close the plant in such an event. Respondent thereby interfered with, re- strained, and coerced his employees in the exercise of the right to self-organization guaranteed them by Section 7 of the Act, in violation of Section 8(a) (1). E. The discriminatory discharges 1. Brunelle, Guerrin, and Henderson It is established by the credited testimony of Respondent's foremen that periodic supervisory meetings were held at which production and personnel problems were discussed. At these meetings the foremen were advised of the union situation among the employees and were instructed to "keep their eyes open" and report any evi- dences of union activity. On these occasions foremen reported such information on the Union as may have come to their attention.12 Included in these discussions, according to Foreman Barden, was the union activity of employees George Guerrin, Beulah Brunelle, and Charles Henderson. One specific incident highlights Respondent's intentions and explains a series of events which follow. Early in March, on the third shift, employee Minerva O'Neil 10 Martinelli's testimony : Q You didn't want a union in your plant, did you? A. Of course not Q. You don't like unions, I take it? A. I don't, I don't think they have any part in a plastic plant like mine. "A & M Karagheusian, Inc., 126 NLRB 104 ; Idaho Egg Producers, 111 NLRB 93, 103 ; F. W. Woolworth Co., 101 NLRB 1457. The complaint does not specifically allege, nor does the evidence support a finding that Respondent actually engaged in the surveillance which Martinelli's statements suggest. lz The credited testimony of Foremen Barden, Jones, and Thomas. General Manager Abbiati testified that foremen were expected to report only union activity that interfered with production. I do not credit the qualification that he would thus put upon his instruc- tions (supra, footnote 7). ARNOLDWARE, INC. 237 of the molding department received from Guerrin a union application for her signature. Henderson sought out O'Neil several times thereafter to get the signed card back from her. O'Neil, in a state of excess emotion, reported the incident to Foremen Barden and Beech. On March 6, at the end of the night shift (8 a.m.) Foreman Barden notified em- ployees Guerrin, Henderson, and Brunelle that they were being terminated. Barden had with him a paper signed by General Manager Abbiati that had been left on his desk, without explanation, earlier in the shift. On this paper were the names of employees Brunelle, Guerrin, and Henderson, a statement that they were being terminated because they were "unsuitable for work," and Abbiati's signature.13 At the hearing Respondent introduced as exhibits a "Separation Notice" for each of these employees, Abbiati identifying them as official records of the Company. He did not indicate, however, whether they or copies of them were presented to any of these discharged employees.14 Neither Henderson nor Brunelle ever saw these "notices." Guerrin did not testify. Foreman Barden testified that it was by a single paper and not by means of these alleged notices that the discharges were accom- plished, and Henderson corroborated this fact. Upon this testimony and because employee Brunelle credibly testified that she was told by Barden that she was being discharged for "unsuitable work" and not for the other reasons assigned on the alleged "Separation Notice" I now reverse my ruling admitting these exhibits (Respondent's Exhibits Nos. 8, 9, and 10) and reject them as not being credible evidence, because they do not accord with credible testimony relating to the discharges. Upon this testimony, moreover, I find that at the time of their discharge Henderson, Guerrin, and Brunelle were told that it was because they were unsuitable for the job. Upon receiving their notification from Foreman Barden all three employees went directly to see Personnel Manager Newmann who disclaimed any knowledge of what had happened and suggested they see Abbiati later in the day. Brunelle never re- turned, but Henderson and Guerrin saw Abbiati on the same afternoon. Hender- son's uncontradicted account of this visit indicates that when he and Guerrin appeared at the plant office and asked Abbiati why they had been discharged, and in what respects their work was unsatisfactory, Abbiati became quite exercised and wanted to know who let them in the plant. Thereupon, according to Henderson, he said, "you are no longer employed here, you have no right to be in the plant," and I said "Well I would like a reason, this doesn't seem very sub- stantial, the reason I got," and he said-he didn't say anything, he jumped up and walked out of the office, and Mr. Newmann was standing outside and he spoke to Mr. Newmann a minute or so, and he pointed his finger into the office where George and I were standing, and Mr. Newmann shook his head in the negative manner... . and I walked out and I said, "what's the reason?" and he pointed to the door and he said, "Get out." TRIAL EXAMINER: Who did this? The WITNESS: Mr. Abbiati, he pointed to the door and said, "Get out right now, and don't come back," and he turned around and walked away rather rapidly, and so I didn't pursue it further, I walked out the door.15 Although Respondent offered no explanation to employees Brunelle, Guerrin, or Henderson other than the reason set forth on the paper left with Foreman Barden, it did supply at the hearing considerable testimony of their shortcomings and amplified them in its brief to me. George Guerrin, who did not testify at the hearing, but whose union activity and Respondent's knowledge of it is established by credible evidence was, according to General Manager Abbiati, a sloppy worker and "he was warned about it." Upon cross-examination Abbiati indicated that Guerrin was also lackadaisical, and that 18 The credited testimony of Foreman Barden, corroborated by employee Henderson. While I credit Henderson's testimony generally I do not accept as an accurate chronology his statement that the critical O'Neil Incident occurred immediately prior to his dis- charge. Barden's explanation of the overall situation, placing it several days earlier, gives a more reasonable picture. Neither Beech, Guerrin, nor O'Neil testified at the hearing 14 The "notices" for Henderson and Guerrin stated : "Not suited for the job. Not mak- Ing satisfactory progress." Brunelle's "notice" stated : "Unable to keep up with her work. Would not notify foremen when machine stopped producing as she was told to do." 35 Personnel Manager Newmann was subsequently called to testify in behalf of Respond- ent but was not questioned on this incident. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this and his sloppiness were first detected during the latter part of February and early March, thus coinciding with the period during which Guerrin had assumed leader- ship among the employees seeking to organize themselves. I cannot accept Respondent's reason for Guerrin's discharge based as it is upon Abbiati's testimony. In fact it is this particular testimony that best illustrates why I reject (i.e., discredit) 16 Abbiati's testimony, except when corroborated by the credited testimony of other witnesses, or where the matter to which he is testifying is within his peculiar official knowledge as an officer of Respondent, or is, in effect, an admission against the interests of Respondent in these proceedings. Whereas Abbiati testified initially that Guernn had been warned for his alleged slopiness, he testified on cross-examination that he "may have been warned." In fact, he did not recall whether the warning was given or not, although it was customary to give one. In the face of this contradiction I cannot and do not accept Abbiati's expla- nation of Guerrin's dimissal. Furthermore, Guerrin has not otherwise been shown, to have been warned of his alleged shortcomings and he continued at his work for a period of a month and a half without criticism until his union leadership became known to Respondents. Only then was his work deemed so unsatisfactory as to. warrant his dismissal without hearing or explanation. Under such circumstances it is fair to assume, and I so find, that he was not discharged for the reason as- signed 17 at the time of his discharge but for his union activities. Beulah Brunelle was told at the time of her discharge that she was being let go because she was unsuited for the job. She denies, and I credited her, that anyone told her then or thereafter that she was being discharged because she was "unable to keep up with her work" or because she "failed to notify her foreman, as required, when her machine failed to operate." On the contrary, I accept Foreman Barden's version of Brunelle's discharge (as well as Guerrin's and Henderson's) that he told the three they were through, reading, as he told them, from a paper signed by Abbiati, which stated that each was unsuited for the job. Brunelle was admittedly discharged as a result of complaints which employee O'Neil had also lodged against her, although, according to Abbiati, she never had an opportunity to confront O'Neil. Moreover, Abbiati never warned Brunelle of her work nor has her supervisor, Barden, been shown to have warned her either.'& All we have, therefore, is Mrs. O'Neil's impassioned complaints, as conceded by Abbiati, which I find to have been based, not upon Brunelle's work habits, but upon the union activity in which Brunelle was joined with Henderson and Guerrin. Upon the credited testimony before me, then, and in view of the disparity between the reasons for the discharge given at the time and those urged, even in documentary form, at the hearing, I find and conclude that Beulah Brunelle was not discharged for the reason given her by Foreman Barden, as read from a communication he had received, nor for the reason assigned on the "Separation Notice" offered in evidence, but rather because, upon complaint of employee O'Neil and from other sources, Respondent learned of her union activity and discharged her because of it.1e, Charles Henderson was never reprimanded nor told his work was unsatisfactory, nor did his foreman, Barden, ever report any complaint about him or his work to- Abbiati,20 nor was Barden ever consulted about Henderson's discharge. General Manager Abbiati's conflicting, and sometimes self-contradictory testimony with respect to Henderson's employment and discharge reveals particularly Re- spondent's effort to obscure what I find to be the true reason for his discharge, namely Henderson's union activities, as disclosed to Respondent by Mrs. O'Neil and other sources. Thus Henderson, who commenced work late in December did not become- "unsuitable" nor "lackadaisical" until the end of February, a date coinciding with the peak of the Union's campaign. Although Henderson was concededly a "very intelligent fellow," Abbiati did not feel this sudden indifference and negligence could be cured by a transfer to another job, nor even by a warning to correct the shortcomings alleged to be present 21 Upon the foregoing credited evidence, therefore, I conclude and find that Charles. 19 Jackson Maintenance Corporation, 126 NLRB 115, footnote 1. 11 As I discredit Abbiatl generally for his confusing and contradictory testimony, I Would discount for all purposes the suggestion that Guerrin was discharged specifically for sloppiness and a lackadaisical attitude. I do not credit Abbiati's testimony that Barden had warned Brunelle. 16 In so concluding I also rely upon the testimony of Foremen Barden and Tones that it is their belief that she was discharged for her union activity. is Abbiati's testimony in conflict is not credited. 21 As further indication not only of Respondent's equivocation with respect to Henderson but of Abbiati's general unreliability as a witness is Abbiati's statement that action was. ARNOLDWARE, INC. 239 Henderson was not discharged for the reason given him at the time nor for the reasons assigned at the hearing but rather because of his active participation in the organizing efforts of the Union. 2. The discontinuance of the printing department, third shift The record abounds with testimony that production on the "third shift printing" had taken a serious turn for the worse during March 1959. Before considering this in further detail, however, I shall recount briefly the facts relating to the em- ployees who were on the "third shift printing," and to the discontinuance of the shift on March 27. When the third shift printing was discontinued the following employees were affected: Bernice Lyons, Nina Day, Marjorie Rice, Barbara Miller, Carol Shippee, Dorris Malone, Gertrude Towne, Lillian Bickford, Pricilla Herzig, Beverly Ebbig- hausen, Ida Worden, Mildred White, Vi Seppalio, and Bernice Coughlin. Of this group the four employees last listed (Worden, White, Seppalio, and Coughlin) were assigned other duties. The remainder were laid off and, although the Employer has concededly hired 141 employees 22 between April 1, 1959, within a week of the layoff, and the date of the hearing, only Herzig and Ebbighausen were recalled to work,23 and that within a few days. The remainder of those initially laid off for the alleged economic reasons which I shall discuss in detail were not recalled, in spite of the constant hiring, because of alleged shortcomings which I shall also consider further. Before doing so, however, it would be significant to the issues raised by the complaint to consider the status of the individuals concerned. Thus, of the eight who were laid off and never rehired, five of them-Lyons, Day, Rice, Miller, and Shippee-were among the eight employees who met with the union representatives on the morning of March 24 at the Log Cabin, immediately following President Martinelli's second speech to his employees. As Martinelli had stated that he was well aware of the previous meeting at Alfredo's and who was there, and had threatened to get rid of those who were "cutting his throat behind his back," it is reasonable to assume that he had implemented his plan, at least to the extent of continuing the surveillance of union meetings, and was therefore aware of the particular activity of these five employees from the third shift printing. In addition to these five, Dorris Malone was identified by credible witnesses as having been closely associated in discussions with the other active union members and as having acted as spokesmen for the group as they protested their layoff. The remaining two employees laid off with third shift printing group, Bickford and Towne, have not in any way been identified with the union activity. Respondent, therefore cannot be held to have known of their union affiliations when the record itself is barren on the subject. Of this we may be certain, therefore. Respondent was aware of the union activities of 6 of its third shift printing department's 14 employees. When it closed down that operation it retained four, recalled two more shortly after the closedown, and never recalled the remaining eight, including all of the known union adherents in the departments. Thus the only casualties of the third shift printing closedown were all of the known union adherents on the shift, plus two whom we cannot catalog for lack of identity. Because two of these remaining eight cannot be shown to have been union ad- herents, I will not include them in the group as being those Respondent may have believed to be members. In the absence of record evidence I am not disposed to thus "second guess" the Respondent by means of an inference, however otherwise warranted. Accordingly, I find and conclude that employees Towne and Bickford were not among those on the third shift printing whose union membership or activity was known to Respondent or was in fact disclosed on the record, and I shall therefore recommend the complaint be dismissed with respect to them. It is Respondent's contention that the third shift printing department had, during the month of March, become an operating liability. Figures were introduced and considerable testimony presented to demonstrate that for reasons not fully explain- able printing production on the shift had slumped miserably. This, it is contended, taken on the basis of consultation with three foremen, Barden, Jones, and Olzowy. Barden credibly denies such a conversation, Jones' recollection of what took place at foremen's conference with Abblati did not include anything concerning Henderson, and Foreman Olzowy "didn't have Charles Henderson too long, Charles Henderson started on the third shift as a new employee and [Olzowy] had him for that month." 22 Sixty-seven men and seventy-four women 3 Personnel Manager Newmann testified without contradiction that on May 20, he solicited Gertrude Towne's return but she refused , being employed elsewhere. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the reason why President Martinelli, upon reviewing the production records with his responsible officers, summarily decided to abolish the third shift printing department. Leaving for the moment Respondent's avowed intent to discontinue its slow producing third shift printing department, I shall consider the several stated reasons why, in a period of admittedly distressing turnover, to quote President Martinelli, Respondent failed to recall the laid-off employees of the discontinued shift. When employee Malone protested the layoff of some of the shift and the reten- tion of others, Foreman Beech told her that some employees had more seniority than the others, and furthermore "their attendance records would have something to do with it." 24 In this respect it is to be noted, however, that one of the employees who was selected for layoff, presumably on the seniority basis first suggested by Foreman Beech, was employee Ebbighausen who had only been working for a total of 2 weeks prior to her layoff and recall. It is suggested, therefore, that while seniority may have been one of the criteria for layoff, it certainly had no relevance to a recall policy. Employee Lyons was not given absenteeism specifically as the reason for her selection. She was told by Beech on the morning she was laid off, however, that she was a rapid learner, but that her absences were "against her on the records." Lyons did not dispute the absence record, stating it had been caused by the illness of her children. In any event she appears to have been excused for her absence, for in June 1959, following the filing of charges and an amended charge in this case, Newmann asked her if she would be interested in returning to work. She was then otherwise employed. Nina Day was considered by her foreman, Thomas, to be a good worker, and, according to Day, Thomas complimented her on her work. It was her understanding from Foreman Beech who notified the employees of the layoff that it was a temporary one. Her absentee record does not appear to have been a factor in her selection at the time, although Personnel Manager Newmann testified that it was excessive. Marjorie Rice, by all accounts, was a better than average worker 25 and, in addition, had a mechanical capacity for repairing ailing machinery. Her absences were claimed by Newmann to have been excessive. Rice confirms this, stating that during the period of her employment she was absent for a week because of the death of her father. Barbara Miller, Carol Shippee, and Dorris Malone were likewise considered by Foreman Thomas to have been satisfactory workers, but according to Personnel Manager Newmann's records, their absences were excessive. From a brief analysis of the work history of the above- named union adherents it appears that absence was the determining factor not only in their selection for layoff but for their rehire. I have difficulty in accepting this proffered excuse at its face value, and for several reasons. (1) Although requested to do so at the hearing, Personnel Manager Newmann could not give accurate absence figures by days missed, but only by percentages; (2) no comparative absence records were offered for other employees, except in several isolated instances; but it is significant that Lyons, with the greatest absentee record, according to Newmann, was invited back to work after charges had been filed; (3) no attempt was made to offset indi- vidual absenteeism with an employee's competence, as in Rice's case, where a better than average employee was claimed to have been selected for layoff because of her absence-for her father's funeral, no less; 26 and (4) finally, there is no evidence in the record, credited or otherwise, that these or any employee was warned about her absences and told they might be cause for discharge. "The credited testimony of employee Lyons Beech did not testify. The credited testimony of Foreman Thomas. ae On the basis of Respondent's handling of Rice's case, I cannot accept Newmann's statement that "you have got to take all things into consideration " Throughout his testimony and in the reason for the layoff selection given employees by Foreman Beech (who did not testify) absenteeism was stressed as a dominant factor. But Newmann's statement quoted above preceded this colloquy : Q. (By Mr. KowAc) It follows if one had an absentee record of 30 percent, that does not lead to discharge? A. That alone would not. The foregoing illustrates the confused and contradictory character of Newmann's testi- mony which prompts me to discredit it except when corroborated by credited witnesses or when it constitutes an admission against Respondent's interests herein. The foregoing also further convinces me that absenteeism was not a factor in the layoff nor recall selection. ARNOLDWARE, INC. 241 Upon consideration of the competence of the people selected for layoff and thereafter not recalled, it is clear that as a group they were neither better nor worse than those retained or recalled . Rice was better, yet she was not only laid off but never recalled,27 and Worden, who on the other hand was retained, was judged by Foreman Thomas to be "not as good as the younger girls" and specifically, not as good as Marjorie Rice . I conclude and find, therefore, upon the foregoing analysis of the circumstances relating to the six named employees on the third shift printing who were active in the Union that neither their absence record nor their competence was a controlling factor in their selection for layoff and for Respond- ent's failure to provide other employment for them then or thereafter. Having thus concluded that the selection of these individuals was for reasons other than those claimed by Respondent , it is incumbent upon me to consider with relation to their layoff, and the discontinuance of the third shift printing generally, the economic necessity upon which Respondent relies for its curtailment. I do not feel obliged to substitute my meager understanding of the plastics industry for Respondent 's in matters concerned with production , turnover, employee adapta- bility, and other items peculiarly within the competence of trained men in the industry. Suffice it to say that if there were present in the circumstances detailed herein a legitimate basis for curtailing the operations of the third shift printing and at the same time conclusive evidence that this economic necessity was used to implement Respondent's intent to rid itself of the Union, the economic justification would evaporate. For it is well settled that "a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." 28 Over and above President Martinelli's avowed objections to his employees' self-organization and his threats of reprisal relating thereto, there is credible evidence in the record to support the conclusion which I reach that Respondent sought to destroy the Union. Thus Foremen Barden, Jones, and Thomas each testified that they were instructed to report to management any union activity they may have observed; Foreman Bishop testified that-Henry Gangwich, assistant to the president, voiced Martinelli's inten- tion to close the plant if the Union came in; Foreman Jones credibly quoted Abbiati as stating that Brunelle (not involved on the third shift printing) was discharged for union activities; Foreman Thomas was told by Martinelli that if anyone was found to be "disloyal" to the Company, that person would be fired; and Foreman Bishop quoted Foreman Beech as predicting that there would be layoffs because of union activities, and thereafter, following the discontinuance of the third shift printing, Beech confirmed to Bishop that he had made the statement.29 Under such circum- stances which so convincingly demonstrate Respondent's intent at reprisal, the co- existence of an economic motive based upon poor production for the discontinuance of the third shift printing becomes meaningless. Accordingly, as I deem Respond- ent's reliance upon the poor production of the shift to be but a cloak, however substantial, to hide its real determination to visit reprisal upon all of the union members in the printing department for that shift, I find it unnecessary to consider further the evidence as to operations and production that was presented in the hearing in great volume by Respondent in support of its defense and by the General Counsel in rebuttal thereof.30 Irrespective, therefore, of any evidence that the third shift printing department may have been an economic liability, I find that at least one of the reasons for its discontinuance was Respondent's determination to punish its employees for their efforts and interest in self-organization. By such conduct I find and conclude that Respondent thereby effectively discriminated against 21 It would be appropriate at this point to make reference to a so-called availability letter mailed to each employee whose name appeared on the charge and amended charges in this case, 1-CA-2831. From the evidence it is clear that these letters, three to each dischargee, were exploratory in nature and never intended to be an offer of rehire or reinstatement. For some reason not fully developed in the record Respondent canvassed each named employee on advice of counsel. As they are thus not relevant to any issue presently before me I reject them. m N L R B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8). See also N.L R.B. v. Wh4tzn Machine Works, 204 F. 2d 883 , 885 (C.A. 1) ; N.L.R.B. v. Jamestown Sterling Corp, 211 F. 2d 725, 726 (CA, 2) ; N.L.R.B. v. Jack Lewis, et at, d/b/a California Footwear Co, et al., 246 F. 2d 886 (C.A. 9). 21 Foreman Beech did not testify at the hearing ° In the course of the hearing I had occasion to reserve decision upon General Counsel's motion to strike from the record Respondent's Exhibits Nos. 12 and 13, printing produc- tion figures, as being contrary to facts developed during the hearing. Because I do not, under my disposition of the issues herein, rely upon production figures for any purpose I shall overrule the motion and permit the record to stand intact for future review. 5 8 6 4 3 9- 61-vol. 129-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bernice Lyons, Nina Day, Marjorie Rice, Barbara Miller, Dorris Malone, and Carol Shippee for reasons of their union membership and activity in violation of Section 8 (a) (3) of the Act 31 3. Lawrence Anderson Anderson was hired early in January and assigned the job of inspecting tumblers and cutting away their rough edges. Within 3 weeks he was assigned to an automatic molding machine as operator. Anderson testified that he had had no previous train- ing for this type of work when he was assigned to it but that he had worked at machines before. Foreman Barden, his supervisor during all but the last few days of his employment, testified credibly that Anderson was an average workman, consider- ing his lack of training for the job. On March 25 Foreman Olzowy, who had but recently succeeded Barden as super- visor of the molding department, third shift, informed Anderson that he was being terminated for unsatisfactory progress 32 Olzowy testified, however, that he had not been consulted concerning the discharge and that he knew nothing of it until the discharge slip was left on his desk, signed by General Manager Abbiati. Abbiati testified that Foreman Barden had complained of Anderson's work, and that Foremen Barden, Jones, and Olzowy were all of the opinion that Anderson was not making satisfactory progress. Conflicting as it does with the testimony of both of Anderson's supervisors, and because I do not, in any event, place credence on Abbiati's testimony, I reject the suggestion that Anderson was discharged for cause. On the contrary I am aware that Anderson's discharge on March 25 coincides with the discontinuance of the third shift printing and followed the union meeting at the Log Cabin. Because President Martinelli clearly indicated to the employees that he would know who was attending these union meetings it is reasonable to conclude that he was aware of Anderson's attendance at the Log Cabin meeting in the com- pany of employees to be displaced by the shutdown of the third shift printing. In addition, upon the credited testimony of other employees, including Lyons and Day, Anderson's active participation in union affairs was generally known. Upon the fore- going, I have no alternative but to conclude that Anderson, who was not shown by credible evidence to be an unsatisfactory worker, was discharged, in accordance with Respondent's expressed reprisal against union adherents, because of his union membership and activity. By such action I find that Respondent has discriminated against him in violation of Section 8(a) (3) of the Act. 4. Eleanor Burkewitz Eleanor Burkewitz was not hired until February 19, at which time she was assigned to the molding department on the third shift. Within 2 weeks of her hiring Burkewitz signed a union authorization card and became active in the Union. She was present for Martinelli's speech in which he assured the employees that he knew who was attending union meetings and told them what would happen to those who belonged. Immediately thereafter, on March 24, Burkewitz, in the company of Anderson (supra), five of the third shift printing employees and employee Smith attended a union meeting at the Log Cabin. It was on the morning of March 27, 3 days later, that Burkewitz was told by Foreman Olzowy that she was being laid off for lack of work, being replaced by someone who had been displaced by the printing department shutdown with more seniority than her own 5 weeks. Although Burkewitz concededly was light on seniority I do not accept this as the reason for her layoff. As noted above when the third shift printing was discontinued employees Herzig and Ebbighausen were laid off with eight others, and shortly thereafter recalled to work. At the time of the recall Ebbighausen had 2 weeks seniority and Herzig 21/2 weeks. Burkewitz, with 5 weeks seniority, and laid off because of lack of seniority, was never recalled The incongruity of Respondent's layoff practice in these instances is obvious. This, coupled with the Respondent's knowledge of employee Burkewitz' union interest and activity and her attendance at the Log Cabin union meeting convinces me, and I find, that Respondent laid her off and failed to recall her, not for reasons of seniority, but because of her union membership and activity, thereby violating Section 8(a)(3) of the Act. 31 Cases cited in footnote 28, supra 32 A motion was made at the hearing to correct an amendment to the complaint to the . effect that Anderson was terminated on March 25, not 26 . Upon consideration of the entire record I grant the motion. ARNOLDWARE, INC. 243 5. William R. Smith William Smith was the last of the employees attending the Log Cabin union meet- ing to be discharged. This occurred a week thereafter, on April 1, when he was shown his separation slip stating, "Unsatisfactory progress." Smith began work at the end of January and held four jobs during his 2-month employment. His first job required picking up plastic tumblers as they came off the molding machine and cutting off the rough ends and edges, and hand-packing them in boxes. His next job involved the filling of the molding machine with raw plastic pellets to be ground and melted for molding. This operation approximated the detail and effort one would expend grinding coffee in the local supermarket. His next job was automatic machine operator, a job at which he was admittedly not adept and from which he was transferred after 2 weeks. Meanwhile he received a 5-cent automatic increase. His final job consisted of stacking tumblers upright on the conveyor belt as they came out of the machine. This was a hand operation involving. nothing more than standing the containers on their base and arranging them in an, orderly fashion for passage to the next operation. From this job employee Smith was discharged for not making satisfactory progress. Smith's employment record with Respondent was certainly not a sparkling one. But while I do not presume to substitute my judgment on running a plant for Respondent's it would appear that for a worker whom Respondent's officials con- tended was always below par their 2 months handling of his case was most unusual. After assigning him first to a simple trimming job and then to a hand-loading opera- tion and giving him an automatic increase, Respondent then assigned him to the job of automatic machine operator-one that concededly required machine experience. Then after 2 weeks on this lob with apparently poor results he is again transferred, this time to the job of picking up tumblers and standing them upright. But it was from this job, not the machine operating, that he was discharged. It is inconceivable that responsible businessmen who would consider an employee assignable to an automatic machine would be so lacking in personnel judgment as to later find the same individual incapable of standing tumblers in an upright position. On the contrary it is clear to me from the facts and circumstances of this case that Smith's shortcomings were tolerable to Respondent just so long as his union interests and activities were not known 33 I have no alternative but to conclude therefore, that Respondent discharged William Smith, not for the reasons assigned, however well founded they may have been, but because of his known participation in the affairs of the Union. By such conduct Respondent discriminated against William Smith in violation of Section 8(a) (3) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with their business operations described in section 1, 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. VI. THE REMEDY Since it has been found that Respondent, by discharging certain named employees, discriminated against them in violation of Section 8(a)(3) of the Act and has other- wise interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, I shall recommend tha Respondent cease and desist therefrom and from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act. 34 I shall recommend that the Respondent offer to the aforementioned employees immediate and full reinstatement to their former or substantially equivalent positions 35 without prejudice to their seniority or other rights and privileges. I shall also recommend that Respondent make whole each of the aforementioned employees for any loss of earnings they may have suffered be- cause of the discrimination against them with backpay computed in the customary manner.3° I shall further recommend that the Board order Respondent to preserve "Thus "the difficulties Inherent in his case only became seriously unsupportable" when he became active in the Union Agwilines, Inc v N L.R B , 87 F. 2d 146, 154 (C A. 5). 34 N L R B. v Express Publishing Company, 312 U S. 426, 437. 15 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.. 38F. W Woolworth Company, 90 NLRB 289. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and make available to the Board upon request payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. Since it has been found that the Respondent has committed certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 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 operations of Respondent occur in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Beulah Brunelle, George Guerrin, Charles Henderson, Bernice Lyons, Nina Day, Marjorie Rice, Barbara Miller , Carol Shippee, Dorris Malone, Lawrence Anderson, Eleanor Burke- witz, and William Smith, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 4. By the foregoing conduct, and by threatening its employees with loss of em- ployment if they joined the Union, by threatening that it would close its plant in preference to dealing with the Union and by insinuating to its employees that their union organizing activities were under surveillance Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not violate Section 8 (a) (3) or ( 1) of the Act, by the discharge of Gertrude Towne and Lillian Bickford whose union membership or activity , if any, was not established on the record herein. [Recommendations omitted from publication.] New Orleans Furniture Manufacturing Company and Local Union 3031, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases Nos. 15-CA16692, 15-CA-1659, and 15-CA-1709-1. October 4, 1960 DECISION AND ORDER On May 27, 1960, Trial Examiner George A. Downing issued his Intermediate Report in the • above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and the Respondent and the General Counsel filed briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 129 NLRB No. 30.