Fetzer Television, Inc.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pears that otherwise there is no substantial difference in their interests. Both groups of employees enjoy the same general working conditions and fringe benefits; both are under the overall supervision of the plant superintendent. No union seeks to represent the printshop employees separately. As the printshop employees are engaged di- rectly in the production of printed material, we find they are produc- tion employees. As we also find that they have sufficient interests in common with other employees in the unit, we shall include them.13 We find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Mill- ville, Pennsylvania, operations, including the scheduling clerk, pro- duction control clerk, inventory control clerks, production clerk, traffic department clerk, and other plant clericals; the factory serv- ice representative; printshop employees; truckdrivers; janitors; and working group leaders; 14 but excluding all other employees; drafts- men; the receptionist-switchboard operator, accountant-factory pay- roll clerk, and other office clerical employees; professional employees; guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 13Kentueky Rural Electric Cooperative Corp., 127 NLRB 887 (print shop) ; Litton Industries of Maryland, Inc., 125 NLRB 722 (publications section). 14 The Employer would include certain working group leaders. At the bearing, the Petitioner did not clearly indicate its position with respect to these employees ; they are not specifically contested in the Petitioner's brief. In any event, the record indicates that the working group leaders are merely more experienced employees performing regular pro- duction and maintenance work; they possess none of the statutory indicia of supervisory authority. We include them in the unit. Fetzer Television, Inc. and National Association of Broadcast Employees and Technicians (AFL-CIO) Fetzer Television, Inc. and National Association of Broadcast Employees and Technicians (AFL-CIO). Cases Nos. 7-CA- 2567 and 7-CA-2567(1). November 16, 1960 DECISION AND ORDER On June 21, 1960, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondent had engaged in certain unfair labor prac- tices. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. These findings, conclusions, and recommendations are more fully set forth 129 NLRB No. 76. FETZER TELEVISION, INC. 661 in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party and the Respondent filed exceptions to the Inter- mediate 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 these cases to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- tions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Fetzer Tele- vision, Inc., Cadillac, Michigan, its officers, agents, successors, and assigns,'shall: 1. Cease and desist from : (a) Discouraging membership in or activities on behalf of National Association of Broadcast Employees and Technicians (AFL-CIO), or any other labor organization, by relieving its employees of any of their duties or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with discharge or other reprisals if they join or assist the above-named labor organization, or any other labor organization, or select such labor organization as their bargain- ing representative. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modi- fied 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) Revoke its interoffice memo addressed to Gordon Stone, dated October 30, 1959, insofar as it relieves him of maintenance duties theretofore performed by him. (b) Offer to Gordon Stone immediate and full reinstatement to his former or substantially equivalent maintenance duties, and make him 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole for any loss of pay he may have suffered by reason of the dis- crimination against him, in the manner set forth in the Intermediate Report. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (d) Post at its offices in Cadillac, Michigan, and its transmitter site in Tustin Township, Osceola County, Michigan, copies of the notice attached hereto marked "Appendix." 1 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondent illegally inter- rogated its employees, discriminated against Gordon Stone on October 23, 1960, or discriminated against George Labbe on November 30, 1959. 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, you are notified that : WE WILL N OT discourage membership in or activities on behalf of National Association of Broadcast Employees and Technicians (AFL-CIO), or any other union, by relieving our employees of any of their duties, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with discharge or other reprisals if they join or assist any union, or select any union as their bargaining representative. FETZER TELEVISION, INC. 663 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 any union, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a union as a condition of employment, as authorized by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL revoke our interoffice memo addressed to Gordon Stone, dated October 30, 1959, insofar as it relieves him of main- tenance duties theretofore performed by him. WE WILL offer to Gordon Stone immediate and full reinstate- ment to his former or substantially equivalent maintenance duties, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. FETZER TELEVISION, INC., Employer. Dated---------------- 13y------------------------------------- (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. CONSOLIDATED INTERMEDIATE REPORT These cases involve allegations that Fetzer Television, Inc., herein called the Respondent , has interfered with, restrained, and coerced its employees in certain specified respects since on or about May 19, 1959; that it discharged employee George Labbe i on or about November 30, 1959, and has since failed and refused to reinstate him, because he was a member of the bargaining committee of National Association of Broadcast Employees and Technicians (AFL-CIO), herein called the Union, and joined and/or assisted the Union or engaged in other concerted activities ; and that it changed and shortened the hours of employment and changed other working conditions of employee Gordon Stone , on or about October 26, 1959, and has since refused to restore him to his former conditions of employment, because of his membership in and activities on behalf of the Union and/or because he en- gaged in other concerted activities. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act. The two cases were consolidated for hearing. After the issuance of a consolidated complaint by the General Counsel2 and the filing of an answer by the Respondent, a consolidated hearing was held before the duly designated Trial Examiner at Cadillac, Michigan, on March 2 and 3, 1960. All parties were represented and participated in the hearing . After the close of the hearing, the Union and the Respondent filed briefs, which have been duly considered. Upon the entire record in these cases,3 and from my observation of the witnesses, I make the following: i Referred to in the pleadings as George Labbee. 2 The term "General Counsel" refers to the General Counsel of the National Labor Relations Board and his representative at the hearing. 3 On June 6 , 1960, the transcript was corrected in certain specific respects. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT There is no dispute, the Board has found,4 and it is now found, that the Respondent is, and at all material times has been , engaged in commerce within the meaning of the Act, that its operations meet the Board's jurisdictional standards,5 and that National Association of Broadcast Employees and Technicians (AFL-CIO) is, and at all material times has been, a labor organization within the meaning of the Act. A. Sequence of events In 1958 television station WWTV in Cadillac, Michigan, was owned by Sparton Broadcasting Company, herein called Sparton. The Union filed a representation petition with the Board (Case No. 7-RC-3697) and an election was directed among the technical and production employees of the station, with certain inclusions and exclusions not here material.6 The Union lost the election which ensued.? On October 1, 1958, the Respondent purchased station WWTV from Sparton. Most of Sparton's former personnel, both managerial and rank-and-file, continued to work for WWTV without interruption after the sale of the station. On July 20, 1959, the Union sent a letter to the Respondent claiming to represent a majority of the employees in the Respondent's engineering and production depart- ments. This was received by the Respondent on July 22 8 Meanwhile, on July 21, the Union had filed with the Board a representation petition (Case No. 7-RC-4176) seeking an election. A Board-directed election 9 was conducted on October 23 among the technical and production employees at Station WWTV with certain inclusions and exclusions. The Union won and was certified on November 2. B. Interference, restraint, and coercion 1. Threats and interrogation a. Contentions of the parties The complaint alleges that since on or about May 19, 1959, the Respondent has engaged in a continuous course of interference, restraint, and coercion of its em- ployees. The following "particular acts in furtherance" of this course of conduct are alleged: (a) by threats of reprisal and promises of benefit, urging, persuading, and warning its employees to refrain from supporting the Union; and (b) interrogat- ing employees concerning their union membership, sympathies, and activities. This conduct is alleged to have been accomplished by the Respondent's officers, agents, and representatives, including Cleetis Eugene Ellerman, Ronald M. Baker, and Richard Dwight Wheeler. The answer denies that any threats of reprisal, promises of benefit, or interrogation took place, and further states that "any such interrogation, if such did in fact occur, was within the limits permitted by law." Let us take up seriatim the conduct of each of the Respondent's supervisors. b. Cleetis Eugene Ellerman Ellerman was vice president and general manager of station WWTV under Sparton, and continued in those capacities after the station was sold to the Re- 4 Television, Inc, Case No. 7-RC-4176, Decision and Direction of Election issued September 30, 1959, not published in NLRB volumes 5 The Respondent Is a Michigan corporation with its principal office in Cadillac, Michigan, where it operates a television station (WWTV) by virtue of licenses from the Federal Communications Commission. The Respondent performs services valued in excess of $100,000 annually for enterprises, each of which produces and ships outside the State In which they are produced, products valued in excess of $50,000 annually The Respond- ent is a wholly owned subsidiary of Fetzer Broadcasting Co, a Michigan corporation, which also owns and operates a radio and television station at Kalamazoo, Michigan (WKZO and WKZO-TV) Respondent and/or Fetzer Broadcasting Company transmit radio and/or television signals outside the State of Michigan and receive revenues in excess of $25,000 annually for services from enterprises located outside the State of Michigan 6 Sparton Broadcasting Company (WWTV), Decision and Direction of Election Issued June 25, 1958, not published in NLRB volumes. 7 Spartan Broadcasting Company (WWTV), 122 NLRB 1191. 8 All dates herein refer to the year 1959, unless otherwise noted 8 Fetzer Television, Inc, Decision and Direction of Election Issued September 30, 1959, not published in NLRB volumes. FETZER TELEVISION, INC. 665 spondent. The complaint alleges, the answer admits, and I find that, at all material times, he was a supervisor within the meaning of the Act. Shortly before the election in October, Ellerman asked John Charles Jacobson, an announcer in the Respondent's employ,10 how he thought the election would go. Jacobson replied that he did not know. Ellerman then said: "If the Union comes in . . . it's going to make it bad on a few fellows because we're not going to be able to pay the wages that the Union demands and we're not going to be able to continue with our strong local programmings. So this will probably mean the ter- mination of employment of some of the fellows that work on the production staff; and maybe even announcers." 11 Under the circumstances here present, the casual questioning of Jacobson as to how he thought ,the election would come out was the harmless fruit of curiosity and lacked any reasonable tendency to interfere with the rights of employees.12 So far as the statement which followed it is concerned, I do not consider this a threat that if the Union should come in, the Respondent would use its economic power to retaliate against the employees. Rather I find it constitutes no more than a prediction of what might be expected to happen if the Union should be successful.13 It follows, and I find, that Ellerman's conduct was not violative of the Act. c. Ronald M. Baker 14 Baker became chief engineer of station WWTV on July 1, 1959. As such he has general supervision of all engineering work and is also responsible for maintenance of the studio building. The complaint alleges, the answer admits, and I find, that at all times since July 1, 1959, Baker has been a supervisor within the meamng of the Act. Gordon Stone, then a janitor, maintenance man, and part-time cameraman em- ployed by the Respondent, testified that on approximately July 21 Baker asked him and Carl Edberg, an engineer, into his office and stated that he had just received a telephone call from Ellerman that the Union was seeking an election. According to Stone, Baker then asked, "What do you boys know about it?"; Edberg replied that he did not believe it; Stone answered that he had been "approached by a union repre- sentative a number of times"; Baker rejoined that it was "a very poor time to talk about unions because Gene [Ellerman] is just starting to soften up" and Edberg re- marked that if an election was held, he hoped it would not come while he was on vacation "because I came clear back from across the Straits last year to vote " Stone further testified that on August 13 Baker said to Stone and Edberg: "There's some- thing you fellows want to think over, that if the Union gets in, cameramen and possibly T.D.'s 15 will have to have first class licenses 16 and therefore [cameramen] Arthur Runyon and George Labbe and possibly you will be looking for new jobs." According to Stone, Stone replied, "Well, Ron, the Union doesn't require cameramen to have licenses"; Baker responded that "the company won't feel like paying-or won't be able to pay-the wages that the Union will demand for cameramen to a man that doesn't have a first class license. Therefore, they will want engineers," and Edberg left before the conversation ended. Edberg testified that it was George Wilson,17 rather than Baker, who told Stone and Edberg that he had received a telephone call from Ellerman that the Union was 10 In its 1959 Decision and Direction of Election, the Board excluded announcers from the bargaining unit. However, this fact does not deprive announcers of the protection of the Act. Arlington Hotel Company, Inc., 127 NLRB 736. "The findings of fact with regard to this conversation are based upon a synthesis of the testimony of Jacobson and Ellerman. 12 Blue Flash Express, Inc., 109 NLRB 591, 592-595 13 Crosby Chemicals, Inc., 121 NLRB 412, 415, enforcement denied 274 F. 2d 72 (C A 5). 14 Referred to in the complaint as Ronald W. Baker. "The technical director (or switcher-director) on a live television show selects, by means of switches, which video and audio signals go out over the air at any given moment 16 This refers to a Federal Communications Commission license required to operate cer- tain transmitting equipment No Federal Communications Commission regulation has come to my attention which requires the operators of television cameras to be licensed. 17 Wilson was Baker's predecessor as chief engineer of WWTV. Although Baker took over this lob on July 1, Wilson remained at the station for several weeks thereafter Wilson is not named in the complaint, nor does the General Counsel contend that any conduct of Wilson violated the Act. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seeking an election. Edberg further denied that he had ever heard Baker, in Stone's presence, state that cameramen would have to be licensed. Ellerman testified that on July 22, after receiving the Union's letter of July 20, he communicated with Wilson rather than Baker. Baker flatly denied that he had any conversation with Edberg ,and Stone following a telephone conversation concerning the Union's request for recognition. He further denied asking Stone what he knew about the Union. Fin- ally, he denied having any conversation with Edberg and Stone on August 13 to the effect that if the Union came in cameramen would have to be licensed. In view of the testimony of Ellerman, Edberg, and Baker Lam convinced that Stone was con- fused with regard to the incident on July 21. Furthermore, I credit Baker's denial, as partly corroborated by Edberg, respecting the incident of August 13. Accord- ingly, I will base no findings on Stone's testimony as to either of these events. In October, about 2 weeks before the election, Baker told Norman Bradshaw, an engineer employed Eby the Respondent, that "if the Union does get in here . the cameramen are going to be required to have first class phone tickets [Federal Com- munications Commissions licenses]." Bradshaw responded: "If you're referring to .,the union that is trying to get in here, you're mistaken, because nothing in their union requirements say that anyone has to have a license. . . . you must be re- ferring to I B E.W. which does require their cameramen in most stations . . . to have first phone licenses." 18 It is clear from the context of this conversation that Baker made no threat of reprisal by the Respondent. On the contrary, the subject under discussion was speculation upon the prediction of what demands the Union, if successful, would make regarding the licensing of cameramen. Viewed in this light Baker's remark had no coercive effect. d. Richard Dwight Wheeler 19 Wheeler was operations manager for station WWTV under Sparton. As such he headed the production department and supervised such activities as programing, film traffic, art, photography, and live studio arrangements. He continued in this capacity after the Respondent acquired station WWTV from Sparton. The complaint ,alleges, the answer admits, and it is found, that at all material times Wheeler was a supervisor within the meaning of the Act. On May 12, 1959, Wheeler told Arthur Runyon, ,a cameraman then employed by the Respondent, that he understood there was a "Union man" in town and asked if Runyon had been contacted by him, or by any engineer in the Respondent's employ, regarding union activities. Runyon replied that he had not. Wheeler then stated that there was "one rat" who had invited the Union's representative to organize the Respondent's employees and threatened: "We'll find out who this troublemaker is and we'll get rid of him in time." After Wheeler commented on reasons why "the Union would be 'a bad thing," Runyon revealed that, before joining the Re- spondent's staff, he had been a member of the Union at his former place of employment.20 The earliest charge in these cases, that in Case No. 7-CA-2567, was served on the Respondent on November 19, 1959. The incident described above took place on May 12, 1959, more than 6 months prior to the service of the earliest charge. Hence the matter is barred by the 6 months' limitation contained in Section 10(b) of the Act. Accordingly, no unfair labor practice findings may be based on this incident. On July 1, Wheeler asked Dawn Kennedy,21 then an employee of the Respondent, if she had been contacted by the Union. Kennedy answered that she had been con- tacted by the Union in 1958, but not in 1959. Wheeler then stated that "they had an inkling that the Union was coming in" and had estimated the number of union supporters in each department and that there was "an extra person in our depart- ment they couldn't account for." On August 14, Wheeler returned from the representation hearing in Case No. 7-RC-4176, which was held that day, and was asked by Kennedy "What was all the Is The findings of fact regarding this conversation are based upon Bradshaw's undenied testimony. 19 Referred to in the complaint as Dwight Wheeler. 20 The findings of fact with regard to this conversation are based on Runyon' s uncon- tradicted testimony. Runyon further testified that after this revelation, Wheeler re- sponded • "If I had known that quite likely we wouldn't have bad you come up here" Wheeler denied making such a statement. I deem it unnecessary to resolve this conflict. ii At that time Kennedy was unmarried and her maiden name was Dawn Peckham. FETZER TELEVISION, INC. 667 trouble about?" Wheeler replied that "it was mostly caused by Quintan Daily" 22 whom he described as a "troublemaker .. . always trying to get the Union in" and added that "if he [Daily] wasn't such a good engineer . . . he would have been discharged long ago." 23 With regard to the conversation of July 1, I find nothing in Wheeler's questioning of Kennedy which was violative of the Act. NOT did his subsequent remark in that conversation (that there was an extra person in the department that they could not account for) tend to interfere with, restrain, or coerce the employees. The con- versation of August 14, however, stands on a different footing. In the context of a recital of Daily's alleged attempts to bring the Union into station WWTV, Wheeler's remark that Daily "would have been discharged long ago" if he had not been such a good engineer 24 constituted a threat of economic reprisal by the Respondent against employees who engaged in concerted activities. e. Paul Hill Hill was station WWTV's chief announcer. His name does not appear in the complaint. During the hearing the parties stipulated, and I find, that at all times since October 5, 1959, Hill has been a supervisor within the meaning of the Act. About 2 weeks before the election held on October 23, Hill had a conversation with Jack Arrington, the Respondent's film editor, about the Union. During this conversation, Hill told Arrington that Ellerman "wasn't going to stand for-that he wouldn't monkey around with the guys this time like he did a year ago; that . . . chop-chop, we'd be going down the old country road." 25 It is found that this con- stituted a threat of reprisal for union activities. Within a month after the election held on October 23, Hill told Jacobson that, with the Union in, the Respondent wanted to be prepared in case of a strike, and added: "There's going to be a lot of dead flies swept away." 26 As the General Counsel stated at the hearing that this evidence was adduced solely to support the 8(a)(3) portions of the complaint, and for no other reason, no finding of an independent violation of Section 8(a) (1) of the Act will be based thereon. 2. Wage increases a. Facts (1) In general In January 1959, Wheeler posted a notice directed generally to the studio staff, which stated, in part: "Several raises have been given and more will be forthcoming to deserving personnel." At oral argument, the General Counsel contended that the Respondent had estab- lished "normal wage increases which were set up to come every six months or so." The record does not support this contention by any clear and convincing proof. It is true that Arrington, a witness for the General Counsel, testified in answer to a leading question that according to some vague "Company schedule" he was due for a wage increase on January 1, 1960, or "thereabouts." On the other hand Stone, another witness for the General Counsel, testified clearly and without contradiction that he "had had only about one raise in two years." (2) Gordon Stone During the morning of July 22 27 Stone complained to Baker that he was "very dissatisfied" with the wages he was being paid. Baker replied that he would see what ra The transcript in Case No. 7-RC-4176 indicates that the Union's only witness therein was Quenton S Daly, then an engineer employed by the Respondent. as The findings of fact regarding these two conversations between Wheeler and Kennedy are based upon Kennedy's undenled testimony. Wheeler admitted that he asked Kennedy if, she had been contacted by the Union. 21 As will appear in more detail hereafter, station WWTV was in need of engineers at that time. ze The findings regarding this conversation are based upon Arrington's undenied testimony 26 The findings regarding this conversation are based upon Jacobson's undenied testimony. aT Stone placed this conversation as occurring "approximately July 21st." From sur- rounding circumstances and from Ellerman's testimony I find that it took place on July 22. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could do about it. That afternoon Baker recommended to Ellerman that Stone's wages be increased and Ellerman approved. Baker then informed Stone that he had been granted a wage increase of 25 cents per hour, effective August 1.28 (3) George Labbe In 1958 Labbe asked Wheeler for a raise in pay. The request was refused at that time. At the end of July 1959, Wheeler summoned Labbe to his office and told him that he would receive a wage increase based on a 44-hour week. This became effec- tive August 1.29 (4) Norman Bradshaw Early in October Bradshaw asked Baker for a wage increase. The request was not granted 30 (5) Jack Arrington In November Arrington told John North, the Respondent's studio supervisor, "it seems like I ought to be worth more money." North replied that "All wages have been frozen since the Union has come in." 31 Arrington did not receive any increase in pay. The parties stipulated that North was, at all material times, a supervisor within the meaning of the Act. b. Contentions of the patties The General Counsel asserts that the Respondent's according wage increases to Stone and Labbe on August 1, accomplished "with the knowledge of the union's com- ing in there," constituted promises of benefits for refraining from union activity and interference with the employees' rights. The Union agrees. The General Counsel further contends that the Respondent's refusal to grant a pay raise to Bradshaw when requested by him in October 1959, and its failure to accord a wage increase to Arrington, although it was due him on January 1, 1960, constitute further violations. Finally, the General Counsel maintains that North's statement to Arrington in No- vember that all wage raises had been "frozen" since the Union's advent constituted still another violation of the Act. The Respondent, conversely, argues that none of this conduct transgressed the law. c. Conclusions In American Freightways Co., Inc., the Board set forth a test for determining whether an employer's granting of economic benefits to his employees violated Section 8 (a) (1) of the Act. It there stated: the test . does not turn on the employer's motive or whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee right under the Act.32 Let us apply that test to the facts of the instant cases. The picture presented is that, during the Union's organizing campaign, the Respondent granted wage increases to Stone and Labbe but denied Bradshaw's request for a pay raise.33 In none of these discussions was the subject of the Union mentioned. In evaluating this conduct, it cannot be fragmentized; it must be considered as a whole. It seems reasonable to consider that whatever coercive tendency the wage raises to Stone and Labbe might have had were completely offset by the Respondent's refusal to increase Bradshaw's pay. No consistent pattern was established from which a tendency to coerce could emerge, even though all three employees involved (Stone, Labbe, and Bradshaw) The findings of fact regarding this incident are based upon a synthesis of the testi- mony of Stone and Ellerman. 29The findings of fact regarding this event are based upon Labbe's undenied testimony 80 The findings of fact regarding this incident are based upon Bradshaw's undenied testimony. "'The findings of fact with respect to this conversation are based upon Arrington's undenied testimony. 82 124 NLRB 146. In True Temper Corporation, 127 NLRB 839, this test was further discussed. In my opinion, nothing said in True Temper altered or modified the test laid down in American Freightways. "I find no credible evidence to support the General Counsel's contention that a raise in pay was due Arrington on or about January 1, 1960 FETZER TELEVISION, INC. 669 were active supporters of the Union. I conclude that, without regard to the Respond- ent's motives, the General Counsel has failed to prove that the conduct in question, under the circumstances here present, reasonably tended to interfere with the free exercise of the employees' rights. There remains the remark of North to Arrington in November that all wages had been "frozen" since the Union "came in." This remark was made in response to what could reasonably have been interpreted as an individual employee's attempt to bargain about his own wages. The Union was then the statutory bargaining agent of all employees in the unit, hence such individual bargaining was proscribed by the Act.34 In view of that fact, North's reply to Arrington may reasonably be regarded as a refusal to deal with an individual employee with respect to his pay. Thus it in- volved no violation of the Act. 3. Conclusions On September 10, 1959, the Union filed charges against the Respondent in Case No. 7-CA-2511 alleging, inter alia, illegal interrogation of employees , discrimina- torily granting economic benefits to discourage union activity, and other violations of Section 8(a) (1) of the Act. The Union withdrew this charge on November 5, 1959. The Respondent urges that these facts prevent findings herein that the Respondent committed violations of Section 8(a)(1) of the Act prior to November 5, 1959. I do not agree. In my opinion, the Union's withdrawal of the charge in Case No. 7-CA-2511 neither estopped the Union from filing the later charges in the instant cases, nor prevented the General Counsel from proceeding in the instant cases. I conclude that at all times since August 14, 1959, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. This conclusion is based only upon Wheeler's undenied re- mark to Kennedy on August 14, in a discussion of Daily's support of the Union, that if Daily had not been such a good engineer he would have been discharged "long ago"; and Hill's undenied statement to Arrington early in October in the context of a discussion concerning the Union that Ellerman "wouldn't monkey around with the guys" and that "chop-chop, we'd be going down the old country road." The General Counsel asserts that the record facts demonstrates the Respondent's antipathy toward the Union. The Respondent contends in its brief that it "displayed no hostility or animus toward the Union ." The nature of the two violations of Section 8 (a)(1) of the Act found above convinces me that the General Counsel is correct in this respect.35 This conclusion is bolstered by consideration of Wheeler's remarks to Runyon on May 12, 1959, regarding the "one rat" who invited the Union in, coupled with a threat to discover his identity and "get rid of him in time," 36 and Hill's statement to Jacobson within a month after the election that "there's going to be a lot of dead flies swept away ." Based upon these four incidents it is found that, at least since May 12, 1959, the Respondent's attitude toward the Union has been one of animosity 37 C. Changes in working conditions of Gordon Stone 1. Facts Stone was hired in April 1957 by Sparton as janitor and building maintenance man for station WWTV. A condition of his hire was that he operate a television camera. He did so immediately, and combined the duties of cameramen with those of janitor and maintenance man, performing "any building repair that needed being done." When the Respondent purchased the station, Stone continued at WWTV without interruption in the same capacities . He was paid on an hourly basis and his hours varied from week to week. He spent an average of about 10 hours per week on camera work and about 35 hours per week on janitorial and maintenance work. Prior to June 1959, he was one of two cameramen on a live evening telecast. In June he was taken off this evening show and assigned instead to a live afternoon ^ Medo Photo Supply Corporation v N L R R, 321 U.S. 678 3e The Respondent , of course , has a legal right to resent the Union See NLRB. v T. A McGahey, Sr, et al, d/b/a Columbus Marble Works, 233 F. 2d 406, 409 (CA. 5). Therefore the finding of union animus is made as a simple statement of existing fact, and not in a critical sense. But, as pointed out in McGahey, this animus may not legally give rise to conduct violative of the Act ° Although this event occurred outside the statutory 6-month period it can nevertheless be considered as evidence of union animus. 37 In reaching this conclusion I have not relied upon evidence introduced by the General Counsel other than the four specific incidents recited above 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show known as "Party Line" as the only cameraman. This telecast required approx- imately 2 hours per day of Stone's time. As mentioned above, Stone received a wage increase to $1.87/ per hour effective August 1. Stone has been president of the Union 's local at station WWTV at least since early in December. He acted as the Union 's official observer at the Board election on the morning of October 23. That afternoon he received an interoffice memo from Wheeler which read as follows: Subject: Camera Operation. Since you have expressed the opinion that the camera operation on "Party Line" is in conflict with the hours which you would normally work on your other duties as maintenance man, we would like to release you from your obligation to run camera on this show . Effective Monday, October 26, 1959, you will no longer be expected to operate camera. Accordingly, October 23 was the last day on which Stone operated a camera. During the following week, October 26 through 30, Stone worked a total of 40 hours, even without camera work. This was because he completed the installation (begun the previous week) of a doorway through a cement-block wall. On October 30, Stone received two interoffice memos from Baker, his immediate superior. The first one read: Subject: Job and schedule changes. GORDIE, As we are making some changes in the Engineering Department which primarily effect the Staff Engineers , I am also making several changes effective November 1st next, that will effect [sic] you. As of the aforemen- tioned date, I will be placing you on the early A.M. shift (starting at 6 a.m.) to be responsible only for the proper cleanup, waxing ect. [sic] of the transmitter building in its entirety. Your hours will probably vary from week to week, depending on the workload that will be required of you. The second one read: Subject: Hourly wages. Supplemental to my memo of October 30th , I am advising the Accounting Department that effective November 2nd, your working hours per week will be of an indefinite number, and that they are to pay you on the basis of $1.87 per hour. Upon receiving these, Stone telephoned to Baker and requested that his starting hour be changed from 6 a.m. to any time after 4 p.m. Baker replied that he would see what he could do. On the next day Stone received another memo from Baker which read: Subject: Re your call to me Oct. 30. GORDIE, I have been trying to justify your request to have your new assigned hours (6 a.m.) changed to some other time. I have to, in the Company interest maintain them as assigned. The hours that I have assigned you will get the best job done as far as cleaning ect. [sic ] just before the broadcast day has begun. Hoping that you will be able to make the necessary adjustments at home to adjust to this schedule. On November 2, Stone replied to Baker as follows: In reply to your memo of Oct . 31 I wish to express that I have no objection to the new assigned hours of starting my shift ( 6 a.m.). I wish to inform you that I am available for the duties which I have been performing since my hiring date of April, 1957. Also that I did not express the opinion as per. Mr. Dwight Wheeler's memo of Oct. 23, 1959 that camera operation on "Party Line" is in conflict with my other duties. After November 1, Stone worked on a shift beginning at 6 a.m. He averaged from 25 to 30 hours work per week. He had previously commenced some painting and had put on a primer coat, but after November 1 did nothing further toward completion of this project. Since November 1 Stone performed maintenance work in only two instances : On about January 1, 1960, on Baker's orders, he knocked a hole in a wall for ventilation; and on January 13, 1960, patched a roof. The re- mainder of his time has been devoted to janitorial work. Other maintenance projects still remain to be done on November 1 at .the time of the hearing. On January 13, 1960, while working on the roof, Stone was injured. He had not yet returned to work at the time of the hearing and was carried on the Respondent's FETZER TELEVISION, INC. 671 payroll in sick leave status. A temporary replacement, who performs only janitorial services, has been hired to fill in for Stone until he is able to resume working. 2. The General Counsel's case The General Counsel and the Union contend that Stone was relieved of camera work on October 23 because of his known union activities. In support of this con- tention they point to: (1) the hostility of the Respondent to the Union; (2) the timing of the order of October 23 within hours after the Responden became aware that Stone was a supporter of the Union; (3) the Respondent's need for Stone as a cameraman, demonstrated by the fact that, during the week following October 23, Labbe was required to work 10 hours overtime in order to take over Stone's camera assignment on "Party Line." The General Counsel also appears to maintain that on October 30 the Respondent discriminatorily changed Stone's starting time to 6 a.m. because of his known union adherence. In this connection, the record shows that after receiving the memo of October 30 Stone notified Baker that he preferred a different starting hour, but despite this fact Baker refused to rescind the change; and after Stone was injured, his replacement was put on a shift beginning at midnight-hours which Stone preferred, but which Baker had denied him. Finally, the General Counsel urges that the memo of October 30 discriminatorily deprived Stone of some of his former maintenance duties, because of his known union activities. In support of his contention, the General Counsel points to the fact that the memo of October 30 caused Stone to abandon an unfinished painting job, and that there then were, and still are, a number of maintenance projects for which Stone is needed. 3. The Respondent's defense The answer alleges as a defense: that effective on or about October 26, 1959, Respondent undertook con- solidation of its camera activities with the view to ultimate replacement of cameramen and the transfer of the duties thereof to engineers ; that in con- sequence thereof and in consequence of the desire of the said Gordon Stone to be relieved of camera duties, he was relieved of all such duties effective Monday, October 26, 1959. There is no contention that the quality of Stone's work in any of his three capacities (cameraman, janitor, and maintenance man) was unsatisfactory. With regard to the transfer of camera duties to engineers, the credible testimony of the Respondent's witnesses establishes the following facts: When the Respondent took over station WWTV the men operating cameras were not engineers. Ellerman and other administrative personnel visited WKZO, the Fetzer station at Kalamazoo, Michigan. Among other things, Ellerman found that at WKZO the men running the cameras were engineers. Shortly after January 1, 1959, he discussed with Carl Lee, executive vice president of Fetzer Broadcasting Company, the feasibility of of having engineers operate cameras at WWTV. The situation at WWTV, in Eller- man's words, was: "We were short of engineers at the time. We were searching desperately for qualified engineers . We had advertised for engineers; we were interviewing engineers. . . . And we had some difficulty in finding qualified people." In June, Lee, Ellerman, and other executives of Fetzer held a managers' meeting at which the subject was discussed further. This strengthened Ellerman's "belief that we should have engineers perform our camera operation." 38 When Baker became chief engineer of WWTV in July he was immediately informed of this objective, pre- sumably by Wilson "who had always been a firm advocate of having engineers on camera " The Respondent's attempts to secure more engineers-begun as early as January 1959, but temporarily dropped-were revived in the summer of 1959. Baker suggested hiring junior engineers (men with licenses but little actual experi- ence) and "we commenced looking for junior engineers [and] . contacted several people." As a result in August or September a junior engineer, Dean Bass, was hired to fill a vacancy on the engineering staff. In October arrangements were made to hire another junior engineer, Scolton, who was due to start work on '8The advantages of this system, as explained by Ellerman, are (1) an engineer run- ning a camera speaks the same language and works more closely with his fellow engineer in the control booth ; (2) in case a camera breaks down during operation, a visual observa- tion to locate the trouble by an engineer is more meaningful than one by a nonengineer ; and (3) in case of trouble with the transmitter, there are two engineers present to make repairs instead of only one 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 26.39 In the middle of the week ending October 23, Ellerman instructed Wheeler to take Stone off camera work at the end of that week. On Friday after- noon, October 23, Ellerman learned that Stone had acted as the Union's observer at the election that morning, and that Scolton would not report for work for a week after the originally anticipated date of October 26. In the light of this knowledge, Ellerman and Wheeler discussed the advisability of going ahead with the plan to remove Stone from camera work. Wheeler assured Ellerman that he could "cover the camera shows" without Stone until Scolton reported. Ellerman decided: "since NABET is a charging union they're going to [file] an unfair labor [practice] charge anyway so let's go ahead with our plans . we might as well just go ahead with our policies and not let this enter our thinking at all . . . we were still running a television station; we were still adhering to our policies. . . . I was not of the opinion that we should interrupt [a] change in policy just because there had been an elec- tion. . I felt this was not important enough to change our . . . carrying out of the plan " In addition, Ellerman knew that Stone was constructing a door at the time, which "we wanted to get . cleaned up just as quickly as possible . the engineering department [wanted] to get the dust nand dirt out of the place because . . . dust and dirt [are] rather expensive to a transmitter"; keeping Stone on camera operation an additional week "would have just [dragged] out the job [on the door] that much more." Accordingly, Stone was taken off camera work on October 23. He completed work on the door by October 30. Labbe took over Stone's camera assignment on "Party Line" that week, requiring 10 hours of overtime by Labbe. Scolton reported for work November 2 and was assigned to camera work. Later in November, Runyon, a nonengineer cameraman, resigned and Bass, the engineer hired in August or September, was assigned to camera work. 4. Conclusions I am convinced, and find, that the Respondent adopted a policy of using engineers to operate cameras entirely aside from the union activities of its employees, for reasons of efficiency, and in line with the policy of other Fetzer stations. The delay in effectuating this policy was due, in major part, to the difficulty of finding qualified engineers. At the time Scolton's services were arranged for, and the decision was made to relieve Stone of camera work, the Respondent did not know of Stone's union activities. When such knowledge was obtained, Ellerman decided nevertheless to go ahead with the already formulated plan to replace Stone with Scolton. He did so, despite the delay in Scolton's reporting, because of the desirability of having Stone complete work on the door as rapidly as possible. 40 In view of these facts, although the matter is not entirely free from doubt,41 I conclude that the General Counsel has failed to prove that the Respondent removed Stone from camera work on October 23 for discriminatory Teasons. Nor do I perceive any discriminatory motive in Baker's memo to Stone of October 30, insofar as it changed Stone's starting hour to 6 a.m. During the entire summer and until October 16, Stone had worked from 7 a.m. to noon, -and from 1 to 4 p m 42 Thus, the early morning starting hour was not unknown to him. More- over, in his letter to Baker of November 2, Stone made it clear that he had "no ob- jection to the new assigned hours of starting my shift (6 a.m.)." And Baker had ample reason to prefer that janitorial work be done in the morning rather than at night,43 and was not required to place Stone's personal convenience above the in- terests of the Respondent in efficient operation. Finally, as Stone was no longer needed on the camera for "Party Line" in midafternoon, this was a logical time to change his starting hour. I therefore conclude that the General Counsel has failed se The Respondent had considered hiring a third specific junior engineer but decided "at the last moment" not to do so "for personal reasons." 111 find no evidence in the record to support the Respondent's alternative defense that Stone was relieved of camera work in accordance with his own desire 41 It is true that the timing of the October 23 memo plus the Respondent's union animus creates some suspicion of illegal motive, but in my opinion they are insufficient to over- come the evidence indicating the Respondent had a legitimate motive for relieving Stone of camera work on October 23 42 Beginning October 18, and through October 30, he worked from 2 to 10 p.m 48 According to Baker, it is preferable to have cleanup work done at the beginning of the day "so that the station will look at its best throughout . . the remainder of the day"• moreover, supervisors are present during the day, but not after the station signs off at 1 •30 am FETZER TELEVISION, INC. 673 to prove that Baker's decision to have Stone start work at 6 a.m. beginning No- vember 1 was discriminatorily motivated.44 There remains the issue of whether, on October 30, Stone was discriminatorily taken off his former maintenance duties. This presents two questions: Were Stone's duties regarding maintenance actually changed after October 30, and if so was the change discrirninatonly motivated? Ellerman testified categorically that, so far as he knows, Stone has never been relieved of any maintenance duties and that he per- forms "everything else that he had done outside of camerawork." Ellerman also testified that there are projects "still waiting to be completed . and . Mr. Stone will do those jobs" when he is well enough to resume work. The fact that Stone actually was assigned to two maintenance tasks in January 1960, lends some support to this view. However, in the light of the wording of the memo of October 30, and the testimony of Baker, discussed below, it appears likely that Ellerman may not have been fully informed on the matter. Baker, who authored the memo, testi- fied that it was intended to confine Stone to "any normal maintenance" which he de- fined as including cleaning, waxing, and "routine preventative building maintenance" such as touching up the paint on trim around a doorway or replacing a washer in a leaky faucet, but excluding projects "of major proportions," for example knocking a hole through a wall, putting in a new window, or painting the transmitter or the studio Stone's own interpretation of the memo is indicated by his ceasing work on the painting job he had commenced before receiving it-and in the light of the memo's wording, such an interpretation was not unreasonable. In this connection it is significant that although Stone left the painting job partially completed from No- vember 1 to the time of his injury more than 2 months later, he was never criticized for this or told to finish this project. Finally, if the phrase "to be responsible only for the proper cleanup, waxing etc., of the transmitter building" [emphasis supplied] was not intended to place a limit on his previous maintenance functions, there would appear to be no logical reason for its inclusion in the memo. Accordingly, I am convinced, and find, that Baker's memo to Stone on October 30 was intended to limit and change Stone's former duties. In any event, even had it not been so intended, it had that effect, for Stone never completed the painting job and thereby lost work. Let us turn now to the question of the motive behind this change. Baker, who made the decision, offered no reason for it. In the complete absence of any ex- planation, and in view of its timing and the Respondent's hostility to the Union, plus the Respondent's knowledge of Stone's adherence to the Union, I conclude that this change was discriminatorily motivated. D. The discharge of George Labbe 1. Facts Labbe was hired by Sparton in November 1957, to work in the film department of station WWTV and as part-time cameraman and messenger. He also did shipping and receiving of films. In mid-1959 he was put on camera work full time. He remained at WWTV without any break in employment when the Respondent took over the station. In addition to his duties as cameraman , there were periods when he performed other functions. Thus he was a "vacation fill-in" on film editing and also acted as a technical director (switcher) full time for approximately a month. As mentioned previously, Labbe received a raise in pay effective August 1 1959. Prior to the election held in October, Labbe signed a card authorizing the Union to represent him in collective bargaining. After the election he became the Union's production steward at station WWTV. This entitled him to a place on the Local's negotiating committee, the other members of which were Stone and Bradshaw. As such, he attended the first negotiating meeting between representatives of the Re- spondent and representatives of the Union which was held around November 23 or 24.45 Labbe worked as usual on Friday, November 27. On Monday, November 30, a regular payday, he went to the studio to pick up his paycheck. The head of the Re- 44 The fact that Stone's temporary replacement at that time began working at midnight does not alter this conclusion, for because of the presence of the tower repair crew, morning janitorial work was not feasible 4 There is a conflict in the testimony as to whether or not, on this occasion, Labbe was introduced to the Respondent's representatives specifically as the Union's steward. I deem it unnecessary to resolve this conflict, as in any event all witnesses agree that he attended the session as one of the Union's representatives. 586439-61-vol. 129-44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's accounting department handed him his regular paycheck , an additional check, and an interoffice memo signed by Ellerman which read: We are cutting down on the number of production employees at WWTV. Effec- tive immediately your services will be terminated. Enclosed you will find a check covering your earned vacation plus two weeks termination pay. Labbe went to Ellerman's office and said to Ellerman : "Thanks a lot, Gene." Eller- man replied : "That's all right, George." Labbe then left and has not worked for the Respondent since that time. After his discharge, Labbe applied for unemployment compensation . His claim was not opposed by the Respondent. At Labbe's request, Wheeler furnished him with a letter of recommendation which read , in part: The reason for his ultimate release was a reduction in camera use, and the transference of the basic responsibility for camera operation to the engineering department. At the time of Labbe's discharge, the only other people who operated cameras at WWTV were Bass and Scolton, both engineers. For about a month after Labbe's discharge, there was some occasions when cameras were run by nonengineers. How- ever, since January 1 , 1960, the only people who have operated cameras at WWTV have been licensed engineers. 2. Contentions of the parties The complaint alleges, and the General Counsel and the Union maintain, that Labbe was discharged on November 30 because of his union activities. In support of this contention they point to the Respondent's union animus, the timing of the dis- charge shortly after Labbe's connection with the Union became known , and the fact that nonengineers operated cameras after Labbe was dismissed . The answer admits that Labbe was discharged on November 30, but alleges that this was because "busi- ness reasons dictated the discontinuance of the cameraman classification and the transfer of the duties thereof . . . to the engineering department." There is no contention that the Respondent was dissatisfied with Labbe's work performance in any capacity except for his switching work, as appears below. 3. Conclusions As described previously, the Respondent decided to have its camera work per- formed by licensed engineers. As the initial step in this program it hired Bass and Scolton, then took Stone off camera operation and replaced him with Scolton. When Runyon later quit, and was replaced on the camera by Bass, this left Labbe as the only cameraman who was not an engineer. During the last week of Labbe's employ- ment Ellerman conferred with Wheeler about the matter . On Wheeler's recommen- dation, Ellerman decided to complete the plan to have engineers run cameras by relieving Labbe of camera work. They discussed the possibility of transferring Labbe to other work. Labbe had been a messenger, but WWTV no longer employed such a classification . He had also been a film editor , but the Respondent already had a full-time film editor. The only other possibility for Labbe as a nonengineer was technical director (switcher). Wheeler informed Ellerman that Labbe had tried this before but "hadn't proved too satisfactory, and I really didn't consider him capable and qualified for the position ." Accordingly, Ellerman decided to discharge Labbe. After January 1 , 1960, the completed plan was put into full effect, and thereafter cameras were operated only by engineers.46 For the foregoing reasons I am convinced , and find, that the General Counsel has failed to prove that the discharge of Labbe on November 30 was violative of the Act. THE REMEDY It has been found that the Respondent threatened its employees with discharge or other reprisals if they joined or assisted the Union or selected the Union as their bargaining representative. It has also been found that the Respondent, on October 30, 1959, discriminatorily relieved employee Gordon Stone of certain maintenance se While it is true that for a month after Labbe's discharge there were still instances of nonengineers operating cameras , it is not altogether clear on the record that this was done pursuant to any specific instructions from , or with the knowledge or consent of, any supervisory personnel . Moreover, such functional changes sometimes take a little while to inure. NORTH ELECTRIC COMPANY 675 duties theretofore performed by him. These unfair labor practices indicate a basic opposition to the purposes of the Act, and therefore danger exists that the Respondent may in the future commit other unrelated unfair labor practices. Accordingly, it will be recommended that the Respondent cease and desist not only from committing the unfair labor practices found, but also from in any other manner violating the rights guaranteed its employees in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent rescind its memo to Gordon Stone dated October 30, 1959, insofar as it relieves Stone of maintenance duties theretofore performed by him. It will further be recommended that the Re- spondent offer to Stone immediate and full reinstatement to his former or substan- tially equivalent maintenance duties, as they existed prior to October 30, 1959, and make him whole for any loss of pay he may have suffered by reason of the discrimina- tion against him by the payment to him of a sum of money equal to that which he normally would have earned in the performance of maintenance duties from October 30, 1959, to the date on which the Respondent restores him to the maintenance duties performed by him prior to October 30, 1959. It will further be recommended that the Respondent preserve and make available to the Board or its agents all records needed to determine the amount of backpay due hereunder, and post the usual notices. Finally it will be recommended that the com- plaint be dismissed, insofar as it alleges that the Respondent illegally interrogated its employees, discriminated against Gordon Stone on October 23, 1959, or discrimi- nated against George Labbe on November 30, 1959. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. National Association of Broadcast Employees and Technicians (AFL-CIO) is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 2. By relieving Gordon Stone on October 30, 1959, of certain maintenance duties theretofore performed by him thus discriminating in regard to his hire and tenure of employment, thereby discouraging membership in the above-named labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the above-described conduct, and by threatening its employees with discharge or other reprisals if they join or assist the above-named labor organization or select it as their bargaining representative, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices, occurring in connection with the Re- spondent's operations, 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 thereof, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to prove that the Respondent illegally interro- gated its employees, discriminated against Gordon Stone on October 23, 1959, or dis- criminated against George Labbe on November 30, 1959. [Recommendations omitted from publication.] North Electric Company and United Steelworkers of America, AFL-CIO. Case No. 8-CA-1975. November 16, 1960 DECISION AND ORDER On April 27, 1960, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices but recommending that the complaint be dismissed, as 129 NLRB No. 78.