Ipik Door Co., Inc.

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ipik Door Company, Inc. and General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, Ind. Case No. 15-CA- 1611. November 23, 1960 DECISION AND ORDER On July 18, 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 Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and sup- porting briefs. The Board 1 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ipik Door Com- pany, Inc., Kenner, Louisiana, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees coercively concerning, and threaten- ing to discharge them and to impose onerous workloads because of, their union memberships, sentiments, or activities. (b) Discouraging membership in General Truck Drivers, Chauf- feurs, Warehousemen and Helpers, Local 270, Ind., or any other labor organization, by discharging employees, or discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment, to discourage membership in a labor or- ganization, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 1 Fursuant 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 Fanning and Kimball]. • In the Intermediate Report, the Trial Examiner inadvertently stated that Marr testi- fied that he had checked the production records of Riley and Stampley earlier in the day. As the record shows that this was Arabi 's testimony , we correct this minor inaccuracy in the Intermediate Report which does not affect our ultimate conclusions herein. 129 NLRB No. 87. IPIK DOOR COMPANY, INC. 731 (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the Charging Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing or 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 authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Lucindia Reid and Eddy Antoine 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 them whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Make whole Lloyd Vinnett, John Anny, Samuel Slack, Albert Stampley, James Riley, and Leroy Whittaker for any loss of pay each may have suffered from the date of his discharge to the date on which Respondent offered him reinstatement, in the same manner as provided in the foregoing paragraph. (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 records necessary to analyze the amount of backpay due and the rights of Lucindia Reid, Eddy Antoine, Lloyd Vinnett, John Anny, Samuel Slack, Albert Stampley, James Riley, and Leroy Whittaker under the terms of this Decision and Order. (d) Post in its plant at Kenner, Louisiana, copies of the notice at- tached to the Intermediate Report marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and main- tained by it for 60 consecutive days thereafter, in conspicuous places, 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner " the words "A Decision and Order ." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting 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." 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in New Orleans, Louisiana, on February 8 ,to 12, 1960, inclusive, pursuant to due notice and with all parties represented. The complaint, issued on October 30, 1959, and based on charges duly filed and served, alleged that Respondent had engaged in unfair labor practices proscribed by Sec- tion 8(a)(1) and (3) of the Act by certain specified acts of interference, restraint, and coercion in July and August 1959, and by discriminatorily discharging and re- fusing to reinstate 13 employees 1 on various dates in July, August, and September 1959, because of their union membership and activities. Respondent answered with a general denial of the unfair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint and -admitted in the answer that Respond- ent, a Louisiana corporation engaged in the manufacture of institutional type doors, is engaged in commerce within the meaning of the Act (i.e., annual extrastate pur- chases and sales in excess of $50,000 each), and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction and issues Respondent manufactures a solidly filled door; it employed in July 1959, approxi- mately 75 employees in plant operations in the yard, rough mill, millwork (fin- ishing), veneer, and shipping departments. At material times Louis Pick, president, was general manager of Respondent's business, Wilfred S. Marr was plant super- intendent, and the foremen were Will Arabi, millwork; Ward Hawkins, (followed by Homer Lambert and Duelle Eves), in the rough mill; Milton Duker, finishing; Marr, acting in veneer, followed by Roger Johnson; and Cambre, yard. Pick and Marr were, of course, agents and supervisors within the meaning of the Act, and _I find on evidence concerning the power of the foremen to hire and fire and/or to -effectively recommend such action that the foremen were also supervisors.2 In late June, Pick negotiated with and hired as prospective plant superintendent Wilfred S. Marr, who had formerly been in Respondent's employ. Marr reported on July 6, on the eve of Pick's departure on a trip, and was temporarily assigned to surveying the various operations, starting with veneer, with a view to increasing the efficiency and production of the plant; he assumed the superintendency on July 20, after first quitting on that date. Union activity began during Pick's absence, and when he returned to the plant on Friday, July 17, he found a letter from the Union, dated July 16, formally de- manding recognition as majority representative. I Lucindia Reid, Eddy Antoine, James Riley, Albert Stampley, Stafford Jackson, Joseph Brumfield, Preston Turley, Jr., Felther Mars, Lloyd Vinnett, Samuel Slack, Raymond J. Anderson, John Anny, and Leroy Whittaker. a The main issue here concerned Lambert, who, though hired for maintenance work, acted as foreman of the rough mill following Hawkins' quitting on July 23, 1959, and remained to train Eves as foreman after the latter was hired on August 11. Though the complaint charged certain conduct to Ivan Leopold as a supervisor, the evidence failed to establish either the conduct or Leopold's exact status save that he was Pick's brother-in-law. IPIK DOOR COMPANY, INC. 733 The General Counsel offered testimony by numerous witnesses-both employees and ex-foremen-to conduct by Pick, Mars, and Arabi, beginning around July 20, consisting of coercive statements and of a series of discriminatory discharges in July and August and a final one on September 8. Pick, Marr, and Arabi denied making the corecive statements, including those of discriminatory content, and testified to conduct by each of the dischargees, such as failure and refusal properly to perform their work, which led to the discharges. Respondent also offered a number of ex- hibits compiled from its records to support its defenses that the discharges were made for the causes assigned, during the course of its own legitimate campaign to increase the production and efficiency of the plant, which Marr had been hired to undertake. The main issues in the case concern the question of Respondent's knowledge of the union membership and activities of the dischargees and the alleged discrimi- natory motivation of the discharges. Though there was little conflict in most cases concerning the circumstances of the discharge incidents (i.e., failure or refusal to per- form work or to meet production quotas to Respondent's satisfaction), the crucial issue was whether Respondent deliberately provoked and achieved the results it obtained by the shifting of employees and the setting of unrealistic standards, i.e., whether its campaign .to increase production and efficiency was used as a cloak be- hind which to carry out a plan to rid the plant of union adherents and to discourage organization generally. As will be seen, the findings vary in individual cases accord- ing to whether the preponderance of the evidence established, or failed to establish, a discriminatory motivation. Since we are met at the threshold with Respondent's denial of knowledge of the union membership and sentiments of all the dischargees except John Anny, we may start appropriately with the evidence of such knowledge, which includes also niuche that is relied upon to establish unlawful motivation, as well as much of the alleged interference, restraint, and coercion. B. Knowledge; motivation; interference, restraint, and coercion As stated previously, .the union activity began during the period of Pick's absence; it was centered at a nearby grocery store, patronized by many of the employees as a lunch place. Knowledge of the activity reached some of the foremen, and Pick re- ceived formal notice on July 17 by the Union's demand for recognition and by receipt from the Board of a copy of a representation petition. Three ex-foremen testified concerning subsequent discussions of the Union with Pick and Marr, including re- ports on individual employees, and several employees in turn testified to interro- gations by Pick, Marr, and Arabi. We start with the testimony of the foremen. Ward Hawkins, foreman of the rough mill, testified that he was informed of the union activity by employees Charlie Cade and Walter Brown and that within a day or so he reported it to Pick, who replied that he knew about it, that it was the Teamsters, and who talked with Hawkins about his previous experience in plants which were being organized. Hawkins subsequently learned that "a considerable proportion" of the employees had signed with the Union, and also reported that ,fact to Pick, who replied that he knew about it and knew how to handle it. Hawkins testified further that following Pick's discharge of Antoine (see infra, section C, 3), which he questioned, he informed Pick that he had never worked in a plant where the men had been treated as Pick had treated his crew from the time the news of the Union became known and that he refused to have any part of it. Describing the plant as "a hell hole" for the last few days he was there, Hawkins testified he told Pick he should see a doctor. Hawkins thereupon quit (on July 23). When Pick was called originally by the General Counsel under Rule 43(b), FRCP, he testified he did not remember talking with Hawkins concerning the union activity, but when called as Respondent's witness. he acknowledged as substantially correct Hawkins' testimony concerning their conversations about the Union. Homer Lambert (who succeeded Hawkins) talked with Pick about employment on July 18, reported on July 21, and was discharged after a few weeks. Lambert testified that Pick called him into the office, discussed with him his previous ex- perience with unions, told him he was "right in the middle" of a union campaign, that he (Pick) wanted to find out for one thing whether the Union had a majority, and directed Lambert to get together with Charlie Cade and find out the names of the employees who had joined the Union. Thereafter Lambert went around the plant with Cade, who pointed out the union members, and Lambert in turn reported on them to Pick. Among those on whom he reported were Eddy Antoine, Leroy Whittaker, John Anny, Lucindia Reid, Samuel Slack, and Joseph Brumfield (8(a)(3)'s), and Clarence Herring and Oscar Boutte (non-8(a)(3)'s). Lambert's report on Antoine and Reid followed a conversation which he overheard between 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them concerning a union meeting which they proposed to attend; and Lambert tes- tified that when he informed Pick and Ivan Leopold what he had heard, Pick stated, "Well, they got to go." Lambert testified they were terminated within the next day or so. Lambert testified that on another occasion he discussed with Pick the fact that Herring had a union card and Pick stated that he was "going to run him [Herring] out of here." When Lambert remonstrated that Pick would not be able to replace Herring, Pick replied, "If he stays here . . . the little son of a bitch is [sic] got to do three or four men's work, it's that way." Lambert testified to a similar con- versation with Pick (in Marr's presence) concerning Boutte, whom Pick also threatened to "run out of here." Lambert urged Pick to retain Boutte and to "sleep on it." Neither Herring nor Boutte was discharged. Pick denied most of Lambert's testimony, and suggested that Lambert was not reliable or trustworthy because he had broken frequent promises to stop drinking. Pick testified he specifically instructed Lambert (as he did the rest of his foremen) not to discuss the Union with the employees. He admitted, however, that Lambert had pointed out John Anny as the "union man" in the plant, that Lambert also told him "a lot of other things," but that he did not know what Lambert was talking about much of the time, and that there were times when he had to get up and leave the office to get rid of Lambert. Pick denied having directed Lambert to get with Charlie Cade to find out who was in the Union, denied that Lambert reported to him concerning Antoine, Reid, Whittaker, Slack, or Brumfield (8(a)(3)'s), but admitted that Lambert interceded with him concerning Herring and Boutte (non- 8(a) (3)'s), though under his version there was no reference to their union activity. Though Cade was in Respondent's employ at the time of the hearing, neither he nor Leopold was called as a witness in denial of Lambert's testimony. Duelle Eves was hired on August 11, as foreman of the rough mill and was dis- charged around September 4. He testified that on the Saturday before he reported he talked with Marr, who told him they were having labor trouble at the plant, that he knew part of the men who were trying to organize the Union, and that he did not want a union. Marr continued that if he should come and get some of the men in Eves' crew, Eves should not be disturbed about Marr "overrunning" Eves' job, because if he found out that men had signed a union card, he was to move them. There was also discussion of some men whom Eves was to bring in and recommend for employment, and Marr inquired whether they belonged to any union. Eves replied he did not know and that Marr would have to ask them. Marr denied Eves' testimony concerning the discussions of the Union. Three of the men whom Eves sent in were Ray Newcomb, Joe Tortorice, and Salvador Bonfiglio, all of whom testified to conversations with Pick concerning the Union after they were hired. Newcomb testified that Pick told him about the Union, stated he did not want a union in there, and that if anyone signed a paper to have a union, he would be discharged. Newcomb denied that Pick was reading anything to him at the time. Bonfiglio gave testimony to the same effect and also denied that Pick appeared to be reading anything. Tortorice testified that Pick told him the Union was trying to come in and that he did not want it, but he testified to no state- ments made by Pick which were of a coercive nature (i.e., Pick told him only that if a union came in, he would have to pay for a union card and would have to go to union meetings once a month). Pick made no specific denial of the foregoing testimony. He did, however, identify a memorandum of a written statement which he testified he read to all new em- ployees from July 20 to the middle of August, and which he testified he read to Newcomb, Bonfiglio, and Tortorice. Though there were references to the union activity, the statement was privileged under Section 8(c) of the Act. Four of the dischargees whom Lambert allegedly "fingered" for Pick testified to subsequent interrogations by Pick, Marr, or Arabi. We start with John Anny, on whom Pick admitted that Lambert reported. Anny testified that some 2 or 21/2 weeks before his discharge on August 11, he was called to Pick's office by Arabi, that Pick inquired if he knew about the Union, and that when he denied any knowledge, Pick replied, "Son, don't give me that shit. You know about it . . . I heard it said that you signed up for the union . If that's what you all want, that is what you are going to get . This union is going to make it hard on a few of you fellows." Anny testified further that the next day Pick called together a group which included himself, Riley, Stampley, Jackson, and one Fifi. Pick informed them of a standard or quota of production which he was setting for them and of certain reports which they were to make, telling them if they wanted a union, he was demanding first-class workmanship as required "on these papers." Anny testified that his own standard was set at 40 molds an hour, IPIK DOOR COMPANY, INC. 735 that his actual output varied according to the type of molding he was doing, and that he could not produce 40 molds an hour. He admitted on cross-examination, how- ever, that he was sometimes able to make that quota. Though Pick denied outright Anny's testimony concerning the first incident, his testimony contained no denial of the later meeting with the group nor of his ref- erence then to the Union in connection with his setting of quotas. Lucindia Reid, who signed an authorization card on July 15, testified that on the day of her discharge (July 22), Marr told her Pick wanted to know if she had signed a union card. Upon her denial, Marr went back to the office but later returned and repeated the inquiry. When Reid affirmed that she had signed, Marr told her that Pick said in that case he could not use her any more, and directed her to get her timecard and go to the office, where he paid her off. Reid denied on the stand that Pick discussed the Union with her at any time, though her affidavit given the Board's field examiner stated that Pick had also asked her if she had signed a card. She explained on cross-examination that in talking with the field examiner, she was reporting to him what Marr had said in quoting Pick. Samuel Slack, who signed an authorization card around July 14, testified that his foreman (identified by other evidence as Marr) asked him on one occasion if he had been to the Union or was in it, and that he replied that he would go with the majority. Leroy Whittaker testified to an occasion, after transfer to a new job, when Pick inquired if Whittaker knew anything about the Union, or if he had signed a card. Whittaker replied that he had .3 Responded attempted to impeach Whittaker by the minor variation in his affidavit given the Board to the effect that Pick asked hun if lie knew anything about the Union, and that (acting on a suggestion made at a union meeting), he told Pick he had joined the Union. The point is unimpressive and wholly immaterial to the question of Respondent's knowledge of Whittaker's union membership, for under both the affidavit and the testimony, Whittaker told Pick he had joined the Union. There was testimony by four other dischargees concerning interrogations by Pick, Marr, or Arabi.4 Stafford Jackson testified that some 2 or 3 days after he signed a union card at the grocery store, on July 14, Arabi asked him whether the union "people" were at the store and whether he had signed. Jackson denied signing, and Arabi stated that if he signed he did not know what he was getting into. Jackson testified to another similar conversation with Arabi prior to his discharge as he returned from lunch on July 23. James Riley, who signed an 'authorization card on July 20, testified that on July 22, Arabi called him and Albert Stampley together and asked them if they were in favor of the Union. They told him they were and that they had signed for the Union. Arabi then went into the office and came back later with their timecards and told them that Pick wanted to see them. Pick in turn asked them if they had heard anything about the Union and if they had signed for it. When they answered both questions affirmatively, Pick stated that he could not use them. Stampley asked if he was discharging them because they had signed for the Union and Pick answered that he was and told Arabi to give them their checks. Stampley, who signed an author- ization card on July 15, testified to substantially the same effect, though he did not mention his alleged inquiry to Pick. Riley was questioned on cross-examination concerning discrepancies in two dif- ferent statements he had given to the Board's field examiner. The first statement accorded substantially with his testimony on the stand except for Stampley's alleged inquiry of Pick as to the cause of the discharge, which was covered in the second affidavit. In the second affidavit, Riley stated that Arabi's inquiries concerning the Union were put to -a group of some six employees in the millwork department and that they told Arabi they had been hearing about the Union but were not in favor of it. Riley testified on cross-examination that Arabi's discussions with the group, which he referred to in the second affidavit, did not concern the Union. 3 Whittaker testified that he had already signed a card at that time, some week and a half before his discharge The card itself, offered by the General Counsel, bore the date September 17, but Whittaker testified that he signed the card before his discharge, and that his name was called off from it during the first union meeting in July. Respo^'lent's objections to receipt of the card, on which ruling was reserved, are hereby overruled, and the card (General Counsel's Exhibit No 4g) is hereby received in evidence. 4 Although Felther Mars also testified to an occasion on which Pick allegedly Interro- gated him concerning the Union, Mars' testimony is not credited for reasons which are stated under section C, 6, infra. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd Vinnett, who joined the Union 2 or 3 weeks before his discharge on August 4, testified that on one occasion Pick called a meeting of the five members of the trim saw crew during which he discussed production, set a quota which he expected from the saw, and then inquired what they thought of the Union. No one answered except Vinnett, who said he thought it would be a good idea if the Union came in. Pick denied flatly having discussed the Union with any of the employees , either singly or in groups, and denied that , except for Anny, he had any knowledge that any of the dischargees were in the Unior or in favor of it. Pick testified further that he consulted counsel either on the 20th or the 21st and that he later called his foremen together and directed them not to discuss the Union with employees. Marr and Arabi also denied the interrogations and the other statements that were attributed to them, and Marr also denied knowledge of the union membership of any of the dischargees . Arabi denied that he was ever present in Pick's office when Pick discussed the Union with employees or questioned them about their union membership. Credibility Findings As is apparent, the findings as to Respondent's knowledge of the union member- ship and activities of many of the dischargees ( as well as on the motivation of the discharges ) will turn largely if not entirely on a resolution of the credibility issues posed by the conflicting testimony outlined above. If the General Counsel's wit- nesses are believed, it is plain that both knowledge and motivation are established in most of the cases, while if Respondent's witnesses are believed , it had no knowl- edge of union membership except in Anny's case . In resolving credibility the mere face that the General Counsel 's witnesses far outnumbered Respondent's does not itself require rejection of the latter testimony , though it is a weighty factor; for if the defense testimony be the more credible, rejection of the opposing testimony will throw the preponderant weight of the evidence to Respondent 's side of the scales. We turn then to a consideration of other factors which aid in resolving the conflict. If the testimony of the discharged employees stood alone, their interest in the outcome might be considered as a factor of some weight, though the same factor is to be applied to the testimony of Respondent 's witnesses . What is of controlling significance here is that the testimony of three ex -foremen, Hawkins, Lambert, and Eves,5 substantially confirmed and corroborated the testimony of the employee wit- nesses. As Lambert gave the most damaging testimony , it is not surprising to find that Respondent's attack was centered most strongly on Lambert. What the attack consisted of was a claim that Lambert was not a reliable or trustworthy person be- cause he repeatedly failed to keep his promises to stop drinking and because of alleged animus due to his final discharge. Consideration of those factors does not require rejection of Lambert 's testimony however, for the other evidence in the case supplied substantial corroboration. Hawkins testified, for example, that he had learned of the union activities through one Charlie Cade, who, significantly, was the very employee to whom Pick directed Lambert to go to ascertain what employees had joined the Union . In addition, four of the employees on whom Lambert reported testified to contemporaneous interroga- tions by Pick or Marr regarding their union membership and sentiments . Anny's testimony was of particular significance since he had admittedly been pointed out as the "leader" or the "union man" in the plant. Thus Anny testified that Pick emphati- cally rejected Anny's disclaimer of knowledge of the union activities and stated he had information that Anny had in fact joined the Union. Eves' testimony concerning his conversation with Marr lent further corroboration to Lambert's testimony, since it was further evidence of Respondent 's plan to com- bat the organizational drive by shifting union members from job to jobs Further- more, Respondent's failure to call Charlie Cade, who was still in its employ, was itself a fact of some significance since Cade was obviously in position to refute the heart of Lambert's story, if it was untrue. Furthermore, Pick's own testimony contained confirmation of Lambert's. Thus he admitted that Lambert had reported to him on Anny and that Lambert was fre- quently in his office talking about many things to which he allegedly paid no atten- 6In addition, Milton Duker, ex-foreman over Lloyd Vinnett, testified in direct refuta- tion of Marr's and Pick's testimony concerning Vinnett. See section C, 7, infra 6 Aside from other evidence in the record concerning the transferring of prounion em- ployees, Eves' testimony received corroboration from Duker 's testimony concerning the circumstances of Vinnett's transfer out of his department . See section C, 7, snfre. IPIK DOOR COMPANY, INC. 737 tion. It is difficult to believe that Pick would have countenanced such conduct absent permission or direction, in view of his readiness to rid the plant of unwanted or unsatisfactory foremen. Significant also was the fact that though Pick denied that Lambert had reported to him on other alleged 8(a)(3) employees, he corrobo- rated Lambert's testimony that the latter discussed with him and interceded for Herring and Boutte, whom he did not discharge. To sum up, Lambert's testimony received corroboration from that of three other ex-foremen-the only disinterested witnesses in the case-and from the other evi- dence as above summarized. The General Counsel's case thus consisted of the mutually corroborative testimony of the discharged employees and of four ex- foremen, three of whom, at least, were disinterested witnesses. Opposing that are the denials of Pick, Marr, and Arabi, coupled with the fact that Pick sought legal advice and that he instructed his foremen not to discuss the Union with the em- ployees. That latter fact, of course, cannot lift Respondent's case by its bootstraps, the pertinent inquiry, under the circumstances here, is the extent to which Re- spondent chose not to follow the advice it received. The mutually corroborative testimony of the General Counsel's witnesses is there- fore credited, and it is found that Respondent engaged in the conduct which they testified to, as summarized above. It is therefore concluded and found that Re- spondent had knowledge of the union membership and activities of Reid, Antoine, Slack, Brumfield, Whittaker, Anny, Riley, Stampley, and Vinnett. Questions con- cerning the membership of Mars, Jackson, Turley, and Anderson, and Respondent's knowledge thereof are considered under the following sections. C. The discharges The evidence concerning the actual discharge incidents (omitting that covered in the preceding section) will be summarized under the names of the individual dis- chargees, arranged in the chronological order of the discharges. 1. Lucindia Reid Lucindia Reid worked in the veneer department under Marr, repairing faces. Reid was one of the employees on whom Lambert reported to Pick, and she testified concerning her own interrogation by Marr just prior to and at the time of her dis- charge on July 22. See section B, supra. Reid denied that Marr spoke to her at the time about her work or about keeping up her repairs, denied that there was any work left over from the previous day, and denied that there was any veneer in her area which needed repairing at the time. Marr denied having any conversation with Reid concerning the Union and denied knowing from any source that she was in the Union. He testified that he had warned Reid many times about her failure to stay abreast of her work and that on the day of her discharge she flatly refused to obey his direction to repair a pile of veneer, stating that he would have to fire her. He did so without consulting with Pick. Pick testified similarly that Marr did not consult with him and that he himself did not talk with Reid. The latter testimony thus confirmed Reid's testimony on the stand (rather than her affidavit) that Pick did not discuss the Union with Reid. (See section B, supra.) 2. James Riley and Albert Stampley James Riley and Albert Stampley worked in the millwork department under Arabi, and both were molding doors. Riley had been working at the same job for 31/2 years and Stampley for over 2 years. Their testimony concerning their dis- charge on July 22, is summarized under section B, supra. Both of them admitted that Arabi frequently discussed production with them, but they denied that it was mentioned by Pick when he discharged them. Pick testified originally under Rule 43(b) that Arabi had complained to him on numerous occasions about the production of the two men and that he had in turn talked with them, "because they were both very capable boys." On the final occa- sion, however, when he exhorted them to increase their production, each of them stated he could not do any more than he was doing, and Pick discharged them. When called as Respondent's witness, however, after Marr had testified, Pick con- verted their statement of inability into an outright refusal to produce more, thus according with Marr's testimony, below. Marr testified that he had checked the production records of Riley and Stampley earlier in the day, found them to be very low, and told them they would have to in- crease their output. On checking their reports later and finding no improvement, he 586439-61-vol. 129-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reported to Pick, who directed that they be brought to his office. Marr's testimony as to the happenings there accorded substantially with Pick's, including the denials of any reference to the Union, though under his version both of the men responded to Pick's exhortations with an outright refusal to produce more, rather than with a statement of inability to do so, as Pick originally testified. Respondent also offered production reports for the month of July, which, though not capable of precise analysis because of the variety of operations listed under "Moulders," showed that Riley and Stampley (identified by their initials, J. R. and A. S.) produced at a higher rate than their successors (identified by their initials E. B. and M. T.). Thus, from July 1 through 21, Riley and Stampley produced on an average of 85 items per day,7 while their successors produced an average of only 69 items per day. 3. Eddy Antoine Antoine was one of the employees on whom Lambert reported to Pick and was also one whose discharge on July 23 led to Hawkins' protest and quitting. Antoine worked in the rough mill under Hawkins, who described him as a very capable worker at his regular job as off-bearer on the press. For a day or so during some "cleanup" operations, Hawkins put Antoine to feeding crossbands through the glue spreader. Hawkins testified that Antoine was clumsy, and that the job was difficult for him be- cause he was not accustomed to doing it. Around 6 p m. Pick came out and watched the operation, and when Antoine broke several pieces of crossbanding, Pick told him that that was enough and he could go home. Not realizing that Pick was actually fir- ing Antoine, Hawkins told him to come back the next day, and he then put Antoine back on his regular job of off-bearing. Around 11 a.m., Pick saw him on the job and told Hawkins he had fired Antoine the previous day. Hawkins thereupon pulled Antoine's card and told him he was through. Antoine testified that Pick came up as a crossband broke and ordered him to try another one. Antoine sent two more through slowly, so as to avoid breaking, and Pick then ordered him to speed up. When Antoine complied, the next crossband broke, and Pick told him, "This is it." Pick testified that he attempted to instruct Antoine how to put the crossbands in the machine, that Antoine rejected the offer of help, stating that he knew "what the hell he was doing." Pick thereupon dared Antoine to "do it again," and when An- toine broke another, Pick discharged him. As is seen, Hawkins and Antoine gave substantially the same account of the inci- dent, whereas Pick testified to an attitude on Antoine's part which bordered on insub- ordination. It is plain from the Hawkins-Antoine testimony, including the fact that Hawkins protested and quit because of the discharge, that Pick was plainly seeking for an excuse to discharge Antoine and deliberately ordered a speedup for the purpose of forcing Antoine into further errors. It is also plain that if Antoine had let loose the "barrage" which Pick claimed, Hawkins would have heard it and would have understood both that Pick was discharging Antoine and the basis of the discharge. Under all the circumstances, the Hawkins-Antoine testimony is credited. 4. Stafford W. Jackson Jackson worked in the millwork department under Arabi and at the time of his discharge on July 23, was running a router saw. Though Jackson had signed an authorization card, he had answered Arabi's inquiries in the negative ( see section B, supra), and there was no direct evidence that Respondent had knowledge of his membership.8 Jackson testified that as he returned from lunch on July 23, Arabi simply discharged him, saying he was sorry, and assigned no reason or cause. He also testified that Arabi never criticized his work and to the contrary had voiced approbation. Jackson admitted on cross-examination that he sometimes turned off the air valve which blew the dust and shavings away from the bit, and that the valve 7 The wide daily fluctuations such as 55 Items on July 1 and 41 on July 3 as against 146 on July 2 and July 8 (before union activity began), are explainable on the record only on the basis of employee testimony that their production varied according to the kind of doors they were making and the type of materials they were using. Respondent's premise is incredible that such fluctuations merely represented employee unwillingness or indifference and that the achieving of maximum production on 1 day demonstrated the employees could reach it every day. 8 Although the General Counsel contends that Lambert Identified Jackson to Pick as the employee who brought the union cards into the plant, Lambert did not do so by name, and his identification otherwise was too uncertain to support a finding that Jackson was to fact the employee whom Lambert pointed out to Pick. IPIK DOOR COMPANY, INC. 739 facilitated the smoothness of the operation, but he denied that he turned the valve off some three times on the morning of his discharge and denied that Arabi had spoken to him about it. Jackson claimed further that cutting off the valve, as he did, would aid the operation of the router when air pressure was low. Arabi testified (in addition to denying the conversations with Jackson about the Union) that some three or four times on the morning of Jackson's discharge, Jackson had turned off the air which blows upon the router bit, resulting in the making of a bad or "wavy" door; that he had warned Jackson to keep the pressure on; and that Jackson had complied each time. Some 10 or 15 minutes after Jackson returned from lunch, Arabi again found that Jackson had turned off the air, and discharged him on the spot, without talking with either Pick or Marr. He testified further that turning off the air as Jackson did had no effect whatever on the supply available for the .operation of the machine and that in the case of low pressure, the machine cannot be operated at all. 5. Joseph Brumfield and Preston Turley, Jr. Joseph Brumfield and Preston Turley, Jr., were discharged on July 23, shortly after Antoine's discharge. Brumfield was one of the employees on whom Lambert re- ported to Pick; he signed an authorization card on July 14 and Turley signed one on July 15. Turley testified that he signed the card at the grocery store, but there was no direct evidence that Respondent had knowledge of his membership. Brumfield and Antoine were the regular team of off-bearers from the press in the rough mill, but after Antoine was discharged, Hawkins assigned Turley to work with Brumfield, though Turley was inexperienced on the job. Hawkins testified that off- bearing was strictly a physical job, but a heavy and awkward one, and that though a new man could keep up with an experience hand, he would tire himself out. There was no substantial conflict in the evidence as to the circumstances under which the discharge was made. Pick testified (under Rule 43(b)) to finding an accumulation of work at the press, indicating both that the off-bearers were roughly 20 minutes behind in their work and that a load of doors had remained in the press for 20 minutes, a time far beyond the prescribed cycle and one which would result in complete spoilage of the load of 10 doors (valued roughly at $16 each) .9 Pick spoke to Brumfield and Turley, asking what the trouble was, and they stated that there was too much work and they could not do it. Pick told them in that case they would have to leave. Testimony by Brumfield and Turley was not in substantial conflict. Though Brum- field testified that he assigned the working with a new man (Turley) as an excuse for not keeping up, Turley testified to the contrary that Brumfield expressly disclaimed to Pick that Turley was "slacking him up." Their testimony also disclosed the reason why they had left the doors in the press beyond the prescribed time. The bell which signals the end of the press cycle had sounded just before their 10-minute break period, and they had decided that since they would have to work during their break period to take the doors out of the press, they would take the break first and unload the press later. Brumfield testified that he had never before left doors in the press during a break period because in the past he had more time for unloading (pre- sumably because the cycle was longer). He also admitted knowing that the doors should not be left in the press beyond the end of the cycle. 6. Felther Mars Mars testified that he procured an authorization card at the grocery store from another employee on July 15 and signed it on that date, but that he kept it in his possession until a week after he was discharged (on July 29). His explanation was that he was unable to return the card to the fellow employee (whose name he could not supply), because the latter had been fired in the meantime and he had no way of knowing where the discharged employee lived. He did not explain how he was finally able to locate that employee, to whom he testified he actually returned the card. Though the General Counsel contended that Mars thought he was joining the Union, he disclaimed any contention that Mars delivered the card to the Union or thought that he was delivering the card to the Union prior to his discharge. Since I find suspect Mars' explanation of his failure to deliver the card and since I am otherwise unable to credit his testimony for reasons hereinafter stated, I find 'There was a mass of conflicting testimony as to the exact cycle under which the press was operating at the time, though there was no conflict on the point that the cycle had been changed frequently during a relatively short period of time, usually downward. Hawkins testified that the cycle was 5% minutes, and his testimony is accepted here as elsewhere. A number of factors, including the type of glue, the catalyst, etc , go into the fixing of the cycle. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Mars did not sign the card or join the Union until after his discharge, and I accordingly reject the General Counsel's offer of his card. For the same reasons I accept Pick's denials of Mars' testimony that Pick on one occasion before his dis- charge inquired whether Mars knew anything about the Union and Mars' further testimony that at the time of the discharge Pick charged Mars with being with "the boys outside" and proposed that Mars give him a free day's work to prove that he was still with,the Company. My rejection of Mars' testimony is based on his manner of testifying. Thus as his testimony was given hurriedly, thoughtlessly, and, indeed, recklessly, it contained a number of mconaistencies and contradictions. One example was his testimony on direct, in excusing his use of knotty lumber, that Pick bought nothing but knotty lumber, and his denial on cross a few minutes later that he had testified that Pick purchased bad lumber. The most glaring illustration of Mars' deficiencies was his following testimony on cross-examination: Q. (By Mr. KEENAN.) Let's see, after you were shown those doors, didn't you go back and pick up your jacket? A. I did not. I was told, "Let's come to the office." He wanted to see me, and I went and got my coat. It was winter time. [Emphasis supplied.] Thus in the space of a single short answer Mars first denied and then affirmed that he got his coat. His further gratuitous explanation that it was wintertime is inexplicable in view of the fact that the discharge occurred in New Orleans climate in July. As Mars' testimony is rejected, Respondent's evidence need be only briefly noted. Pick testified that he discharged Mars when he and Marr found numerous defective (knotty) doors which Mars had produced. Man corroborated that testimony. Pick also testified (and Mars admitted) that he had periodically warned Mars about care- less work on former occasions. 7. Lloyd Vinnett Lloyd Vinnett worked in the finishing department under Foreman Milton Duker until 2 or 3 days before his discharge on August 4. Vinnett's testimony concerning Pick's inquiries about the Union (denied by Pick) is set forth under section B, supra. Vinnett testified that shortly before his discharge Duker directed him to report to the lumberyard, and that he was there put to stacking lumber. The following day Ivan (Leopold) told him he was expected to stack 22 layers an hour. On the morn- ing of his discharge Vinnett was informed he was stacking only 16 layers an hour and he was later taken to the office (by Marr) and discharged. On the way to the office Marr told him two or three times to remember he was being discharged for not stacking enough lumber, and at the office Marr informed Ivan "This is the man," and Ivan paid him off. Pick testified he had nothing to do with transferring Vinnett from the trim saw and nothing to do with the discharge. Marr testified that Vinnett was transferred as a result of complaints by Duker that Vinnett was banging up doors on the trim saw and that he could do nothing with him. Marr thereupon transferred Vinnett to the lumberyard. Thereafter he called Vinnett down for not working at his job, and on the morning of the discharge, noticing again that Vinnett was not at work, he told Vinnett he would have to go to work or Man could not use him. Marr could not recall whether he told Vinnett to leave or whether Vinnett stated he would go. Marr's testimony contained no reference to the conversation on ,the way to the office. Duker, called by the General Counsel in rebuttal, testified that Vinnett's work on the trim saw was satisfactory and that he never complained to Marr about Vin- nett. Duker testified further ,that during the "disturbance" at the plant, when people were "coming and going," Pick told him that if they should need men in another department to send Vinnett, and that he complied with that direction when either Marr or Leopold later reported a need for a man. On cross-examination he denied further that he discussed with Marr complaints about defective work during the time Vinnett was there, explaining that his troubles arose after Vinnett left. The testimony of Man and Pick is rejected in view of its direct refutation by Duker, a disinterested witness. 8. Samuel Slack Samuel Slack had been employed some 8 or 9 months in the veneer mill He was one of the employees on whose union membership Lambert reported to Pick,io 1O Though Slack testified that he had signed a union authorization card a couple of days before he was discharged (on August 6), a time stamp of the Board's New Orleans office showed that it was received on July 17. IPIK DOOR COMPANY, INC. 741 and Slack's testimony concerning interrogation by his foreman has been summarized under section B, supra. Slack's regular job was on the chop saw, but he testified that 2 or 3 days before his discharge (on August 6), Pick changed him to filling doors behind the chop saw and told him he would have to keep up with another employee who was doing the same work. Because of a disadvantage in height (5 feet 31/2 inches versus 6 feet plus) which required him to move his completed doors more frequently than the taller employee, Slack found it impossible to keep up with his competitor. On the day of his discharge (August 6), Marr, who was his foreman at the time, criticized him for not keeping up, and Slack admitted to Marr he could not do so. Marr told him he would have to go. Slack admitted on cross-examination that the work was not new to him and that he had helped out on it in the past. Pick testified under Rule 43(b) that Marr made the decision to discharge Slack .and that he did not participate in it. He did not deny Slack's testimony that it was he who transferred Slack to the other work. When called on Respondent's behalf, Pick testified to an occasion when he criticized Slack for being behind on his work .on the chop saw and when Slack replied that Pick could fire him if he wanted to but that Slack was not going to quit. Marr testified that it was he who transferred Slack from his regular job because 'Slack was not keeping up with his work and was doing a poor job of grading ma- terial. He testified that he discharged Slack because Slack was not turning out enough production and because his doors were not filled properly, and that despite his own efforts to show Slack how to increase his production, Slack's attitude was that he did not want to do it. Marr testified further that lack of height would not disadvantage an employee more than 5 minutes a day in the moving of doors. 9. Raymond Anderson Raymond Anderson , who had several separate employments with Respondent, worked from around December 1958 until August 1959 , in the rough mill. Though he signed a union authorization card on July 4, there was no direct evidence of com- pany knowledge of his union membership . On the day of his discharge (August 6), Anderson testified he was moved (by Marr ) from his regular job on the glue spreader to .filling doors on .the chop saw, replacing Slack who had just been discharged. An- other employee was brought in to show Anderson how to do the job, but left after a -short time telling Anderson he was on his own. In about an hour Pick and Marr -came over and informed Anderson they wanted a hundred doors a day. When Anderson replied he did not think he could produce that number, Pick told Man that in that case he saw no sense in putting Anderson on the job, and thereupon Marr discharged him. Anderson denied telling Marr he was not going to do the job, but told Marr instead that he would try. Marr testified that he discharged Anderson when Anderson absolutely refused to do the new job despite Marr's insistence that Anderson give it a try, and that Ander- son repeated his refusal to Pick who came along during the discussion . Pick cor- roborated that testimony. 10. John Anny John Anny was employed from 1953 until his discharge on August 11, 1959. For some 4 years he had cut molding in the millwork department and had acted as group leader for some 6 months before Arabi came in as foreman . His earnings had pro- gressed from 90 cents an hour to $1.60. Anny was one of the employees on whom Lambert reported to Pick, and Army's testimony concerning Pick's further interro- gations is summarized under section B, supra. Army testified further that after Pick's interrogations and the setting of the pro- duction quotas, Pick discussed his production with him every day, telling him he was not getting his quota. On the day before his discharge Pick sent for Anny and in- formed him that if he could not produce the quota , Pick could not use him any more. When Anny promised to do his best, Pick replied he was not interested in Anny's best but wanted the quota, and that if Anny could not do better there was no use in him coming back the next day. When Anny asked if he was fired, Pick repeated that he wanted Anny to produce the quota. When Anny reported the next morning, Pick said he was glad to see Anny had decided to make his quota , and Anny repeated he would do his best. Pick con- tinued that if Army's best was what he had been producing , there was no use in start- ing to work because Pick could not use him any more. Pick's testimony under Rule 43 (b) did not vary greatly from Army 's concerning their discussions prior to Anny's termination, though under his version he left the decision up to Anny as to continuing at work, and Anny stated he had better leave. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When called as Respondent's witness, however, Pick testified that Army's response to the exhortations to make his quota was that he could not do any more than he was doing and that he was not going to do any more. According to Pick the con- versation was repeated on the morning of the termination, with Pick concluding that if Anny was not going to do any more than previously, there was no use in him starting to work, and that Pick thereupon walked away. Pick also testified that Anny sometimes made his production quota. Arabi also testified about Anny's failures to make his quota and about taking Anny to Pick's office concerning that matter the day before Anny's termination. Arabi's testimony was that Anny then promised to try to reach his quota. Arabi testified, however, that the next morning Anny stated he was quitting. Respondent also offered and relied upon certain production records, which showed the following: Respondent's standards for the two main operations which Anny per- formed were 5 units per hour for making louvers and 40 units per hour for cutting molding. Its millwork records for the week from August 5 through August 11, showed Anny's performance for full 8-hour days as follows: 11 Date Molding Prod. hrs. Louvers Prod. hrs. Total hrs. cut made 8/5----------------------------------------- 101 2 5 2 0 4 2 9 8/6----------------------------------------- 114 2 8 26 5 2 8 0 8/7----------------------------------------- 115 2.9 14 3 0 5 9 8/10---------------------------------------- 71 1 8 8 1 6 3.4 8/11---------------------------------------- 93 2 3 15 3 0 5.3 Those figures compare favorably with (indeed, they exceed) Anny's production for the month of July, analysis of which indicates that Anny at no time approached Respondent's prescribed quotas. Though precise comparison is impossible because Anny performed diversified operations and because the July records showed frequent instances where Anny did work other than making louvers and cutting molding, the tabulations below afford a basis for a reasonably accurate comparison, for they are limited to the days in July when Anny's work was confined to his two main jobs. The production hours shown below have been calculated on the basis of the same standards used in the August reports. Army's worktime was 8 hours a day except on July 17, when he worked 73/4 hours, and July 28, when he worked 81/2 hours. Date Molding cut Prod. hrs. Louvers made Prod. hrs. Total bra. 7/10---------------------------------------- 97 2 5 ------------ ------------ 2.5 7/13---------------------------------------- 84 2.15 ------------ ------------ 2 15 7/14---------------------------------------- 140 3 5 ------------ ------------ 3 5 7/15---------------------------------------- 115 2 9 - 2 9 7/17---------------------------------------- 71 1 8 15 3 4 8 7/23---------------------------------------- 66 1 65 6 1 2 2.85 7/24-------------------------------------- 43 1 10 18 3 6 4 70 7/28---------------------------------------- 45 1 15 ------------ - 1 .15 It thus appears that in the week ending with Anny's discharge his production hours averaged 5.1 daily (plus additional work on 3 days which did not enter into the calculation) as against average production hours of 3.7 for 8 days in July (on none of which additional work was done). The records thus establish two signifi- cant facts: (1) Anny was producing substantially more in August than in July (by about 38 percent); and (2) Respondent's production quotas were wholly unrealistic. Indeed the only day on which Anny even closely approached his quota was on August 6 in the week of his firing, and on that day Anny had in addition made six shelf brackets which did not enter into Respondent's calculation of production hours. 11. Leroy Whittaker Leroy Whittaker was employed in June or July 1959 and was discharged on September 8. Whittaker was one of the employees on whom Lambert reported to Pick, and was himself one who admitted to Pick (on the latter's interrogation) that he had signed a union card. 11 Those records contained no allowances for other operations which Anny listed in his own daily reports for August 5, 6, and 10, and which be described as cutting mutt for louvers, ripping moulding, making shelf brackets, and cleaning up. IPIK DOOR COMPANY, INC. 743 Whittaker had worked on a number of jobs during his employment , including work on the glue machine and the press, but had been assigned by Pick to making chop saw doors shortly before his discharge . Whittaker testified that Pick had showed him how to do the latter job, that they discussed changes in doing the work so as to make more speed , and that he agreed with Pick's suggestions in that regard. Thereafter from time to time, following the interrogation about the Union, Pick was after Whittaker to step up his production . After about 2 hours work on the day of the discharge, Pick, who had been watching Whittaker for about half an hour, told him, "You just can 't make it. Can't do it. Go to the office and get your money." Pick testified that he at no time told Whittaker he was fired and that Whittaker made the decision regarding the termination , which occurred during a discussion between them concerning the manner in which Whittaker was doing his job. Whit- taker ended the discussion by saying he could not please Pick , and turned and walked off the job. Pick testified further that before that occasion he had discussed Whittaker's poor production record with both Whittaker and Marr. Marr testified to Whittaker's erratic production record and to occasions when he also reprimanded Whittaker for doing defective work. On one such occasion shortly before Whittaker's termination, Marr testified he had started to discharge Whittaker but that Whittaker begged for another chance and Man permitted him to remain. Respondent also offered Whittaker 's daily reports for some 8 days before his dis- charge, which showed that his production of chop saw doors and salvage doors had fluctuated widely, from a low of 26 doors on September 1, to a high of 74 doors and 87 doors on August 29 and 31 , respectively. For comparative purposes , Respondent offered similar reports for Oscar Boutte for February 1 and 2, 1960, which showed total production of 64 and 75 doors, respectively . Not only does Boutte's produc- tion for only 2 days furnish no sound basis for comparison , but the reports showed that Boutte worked mainly on different "Items" than Whittaker had and that the "Sched ." requirements were different as well as the "Reqd." standards . Further- more, Whittaker testified credibly on cross-examination that on the 2 days of his heaviest production he was in fact assisted by Boutte, and that on his low days he had also cut stiles on the stile saw (as he had done on other days ). Respondent did not call Boutte, nor did it produce time records, to refute Whittaker 's claims. Respondent's Further Evidence In addition to denying knowledge of union membership and the testimony of Pick, Marr, and Arabi relating to the individual discharge incidents , Respondent offered the testimony of Pick and Man concerning their campaign to improve the efficiency of operations and to increase plant production. They testified that such was the object of Marr's employment , and that Man had embarked upon the pre- liminary surveys during Pick's absence and before the union activities , or at least before knowledge of them reached Pick upon his return to the plant on July 17. According to their testimony Marr found and reported on conditions and methods of operations which could only be termed deplorable ; and it was a result of those and of their efforts to effect improvements , both in the operations and in the effi- ciency of the employees, that they shifted employees from job to job and began the weeding out of those who were incapable of making , or unwilling to attempt, greater efforts. To those ends Pick and Man kept a close eye on the plant operations and on the output of individual employees . Pick devised new daily report forms for use by the employees , which kept immediately before them the standard or quota which was expected of them,12 and he resorted to frequent , if not daily, checking of the reports and to conferences with the employees concerning their failure to turn out the required output . Where the employee excused his failure on the ground of in- ability to produce more than he had , Pick would counter by pointing out that the employee had in fact reached the quota on some days.13 In addition, Respondent offered both a number of individual and plant production records for the purpose of supporting its defenses as to the cause of individual dis- 'a Though Pick denied that quotas were in fact increased it was plain from all the evi- dence that there was no insistence on attainment of quotas until after Marr assumed the superintendency on July 20. "Pick's argument seemed to assume that an employee is cable of maintaining maximum output at all times , and ignored the fact , testified to by it number of employees , that their output varied widely according to the type of material they were using or working on. Analysis of the production figures tended to confirm that testimony 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges (see e.g. Anny, Whittaker, and Riley and Stampley, supra), as well as a tabulation and analysis of plant production on a weekly basis from June 10 through the month of January, the latter to demonstrate the extent to which it finally suc- ceeded in increasing production and efficiency. The latter tabulations showed that Respondent's production actually dropped sharply coincident with the beginning of its campaign to speed up production, and that there was no consistent improvement until mid-December. In January, Re- spondent's production reached the levels previously attained from June 10 through July 15. However, the tabulation also showed that the number of employees di- minished from 70-odd in the earlier period to less than 50, a reduction of about 40 percent. This in turn showed a resultant substantial improvement in plant efficiency, i.e., a decrease in the number of man-hours per door. For example, doors pressed averaged 1.43 hours per door for the period from June 10 through July 15, and millwork doors averaged .681 (correcting an error in millwork doors produced in the week of July 8). For the last 3 (full) weeks in January, the corresponding figure for pressed doors was approximately .90 and for millwork doors, it was ap- proximately .250. In the intervening period those indices showed wide and un- explained fluctuations, even in successive weeks, as shown by the following examples: Hrs. Per door Week Doors pressed Millwork doors 7-29---------------------- 1 27 0.492 8-5----------------------- 3 55 . 690 8-12---------------------- 1.09 .240 8-19---------------------- 2. 55 .244 8-26---------------------- 1. 27 . 294 9-16---------------------- 1.66 .313 9-23---------------------- 2 45 . 168 9-30---------------------- 2.49 . 247 Respondent also introduced ^a list of terminations, which in pertinent part showed the following: Month: Quit Fired Unknown July---------------------- 11 29 ------- August------------------- 9 22 ------- September----------------- 25 16 7 October------------------- 6 12 3 The July figures included 3 who quit prior to July 20, and 7 who were discharged prior .to that date, reducing the net figures subsequent to Judy 20 to 8 quits and 22 dischargees, 8 of whom are charged as discriminatory. The August discharges in- cluded four alleged to be discriminatory, and in September, only one discriminatory discharge. D. Concluding findings 1. Interference, restraint, and coercion The credited testimony summarized under section B, supra, showed that in addi- tion to commissioning Lambert to seek out and to report on union members, Re- spondent followed through with a course of interrogation of known and suspected union adherents, with threats of discharge and to impose onerous workloads. Its conduct included (1) Pick's interrogation of Anny, Riley, Stampley, Vinnett, Bon- figlio, and Newcomb; Marr's interrogation of Reid and Slack; and Arabi's interroga- tion of Riley, Stampley, and Jackson; and (2) Pick's threats of discharge made to Bonfiglio and Newcomb, his threat to Anny to make it hard on employees because of the Union, and his threatening of heavier workloads because of the Union. By said conduct Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Discrimination To revert briefly to the issues surrounding the discharges, the General Counsel, relying mainly on the evidence summarized under section B, supra, contends that all of the discharges were made with the discriminatory intent of ridding the plant of union adherents, whose membership of prounion sentiments were known to Respondent. Respondent, on the other hand, denies both knowledge of union membership (except in Anny's case) and discriminatory intent, and it contends affirmatively that each of the discharges was made for the cause assigned, i.e., failure or refusal properly to perform work or to meet or attempt to meet production quotas. The burden was, of course, upon the General Counsel to establish his case by a preponderance of the evidence on both the issues of knowledge and motivation. IPIK DOOR COMPANY, INC. 745 The findings made under section B, supra, have disposed of the issue of knowledge on most of the 8(a)(3)'s, and the same evidence also made out a prima facie case of a discriminatory motivation, with exceptions which will be considered later. We turn then to Respondent's affirmative contentions. The progress of the organizational drive did not, of course, affect Respondent's right to proceed with its own campaign to increase the production and efficiency of the plant and to eliminate inefficient, incapable, or unwilling workers. As all of the discharges were defended on that basis, the problem in individual cases becomes one of determining whether Respondent acted with bona fide intent to eliminate an un- satisfactory workman or whether it used its efficiency campaign merely as a cloak behind which to achieve its real aim of removing a known union adherent Credibility findings previously made effectually resolve that issue as to Lucindia Reid, Eddy Antoine, James Riley, Albert Stampley, John Anny, Leroy Whittaker, Lloyd Vinnett, and Samuel Slack. Indeed, in the case of Reid, Riley, and Stampley, Respondent expressly assigned union membership as the basis for the discharges.i4 Antoine's case was essentially the same as Reid's. When Lambert reported on the two of them together, Pick replied they would have to go. Antoine's breaking of crossbands while doing an unaccustomed job was so plainly a pretext that Hawkins revolted over the manner in which Pick was treating the employees after the advent of the Union. The evidence also showed that Anny was a marked man from the outset. Thus Pick made good his threat to make it hard for some of the employees by assigning Anny a quota he was seldom able to meet and by daily harassment of Anny about his failure to make that quota. Pick's intent, as evident from the final incidents, was to force Anny to quit. Though Anny's testimony is credited and though it is found that Pick in fact discharged him, it is plain in any case that Pick's conduct would have constituted a constructive discharge. Whittaker, Slack, and Vinnett were further examples of discharges which followed the formula or pattern which Pick and Marr had worked out for handling and harassing known union adherents, as disclosed by the testimony of Lambert, Eves, Hawkins, and Anny, i.e., transfers to other jobs, assigning heavy, if not impossible, workloads, or a combination of both. In Whittaker's case, like Anny's, Pick con- tinued to press for more production, and finally discharged Whittaker for not pro- ducing enough. Such records as Respondent produced furnished no persuasive sup- port for its position in view of Whittaker's unrefuted explanations. Indeed, the records, as in other cases, served to support employee explanations regarding their fluctuating outputs. Slack was one who was assigned to other and (for him) more difficult work and who was then required to keep pace with an experienced competitor. Vinnett's case was a smaller illustration of a transfer to unfamiliar work and the assigning of an impossible quota. Duker's testimony concerning Vinnett's transfer directly refuted that of Man and Pick, and it exposed further the unreliability of the latter as witnesses. Respondent makes two points which are pertinent to the foregoing cases and which require only brief comment, as both are based on obvious fallacies. Citing as "proof of the pudding" the fact that its efforts to increase efficiency met with ultimate substantial success, Respondent argues that the results support its position that it discharged each of the 8(a)(3)'s, to eliminate an inefficient, unwilling, or unproductive workman. That exercise in pragmatism not only ignores the evidence that there was no substantial improvement in either production or efficiency until long after the disputed discharges, but it ignores the real issue-whether in specific cases Respondent used its production campaign merely as a shield to protect against a discharge which was actually motivated by antiunion discrimination. See, e.g., N.L.R B. v. C. & J. Camp, Inc., et al. d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (C.A. 5), enfg. 107 NLRB 1068. The same issue is ignored in Respondent's further argument that it discharged many employees during the course of its production campaign whereas it is charged with discrimination in only a relatively few cases.15 That argument cannot avail Re- spondent in any of the foregoing cases where the preponderance of the evidence clearly established that each of the discharges was motivated by Respondent's desire 14 As these were the first discharges and they were the most crudely handled, the evi- dence would justify the inference that Respondent's obtaining of legal advice may well have occurred at a later time than indicated by Pick's testimony. 15 That argument appears to be a variation on one more frequently made (and rejected) that a discriminatory motivation is disproved by a showing that an employer retained in his employ other union members See, e.g, N L.R B. v. W C Nabors, d/b/e W. C. Nabors, Company, 196 F. 2d 272, 276 ( C.A. 5), cases there cited. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to rid itself of union adherents and that the alleged failure or refusal to produce was used by Respondent only as a pretext for eliminating union members. We come now to the cases where the preponderance of the evidence tails on Re- spondent's side, and we start with Felther Mars, the rejection of whose .testimony left without substantial support the General Counsel's claim of discrimination. Neither can it be found, on all the evidence, that Brumfield and Turley were dis- charged pursuant to Respondent's plan to rid itself of union members, and this is true despite the fact that Brumfield was one on whom Lambert reported to Pick. Thus, it was Hawkins who assigned the inexperienced Turley to work with Brum- field following Antoine's discharge. There was no dispute that the two men left a load of doors in the press far beyond the prescribed time. This they had done deliberately, and with full knowledge on Brumfield's part that the doors should not have been left in the press. The shortening of the press cycle to 51/2 minutes afforded no excuse under all the circumstances. Brumfield and Antoine had appar- ently kept abreast of the work for a substantial period under that cycle, and Turley testified that Brumfield expressly disclaimed to Pick that Turley had slowed him up. The General Counsel's case on Raymond Anderson falls both because there was no evidence of company knowledge of his union membership and because of lack of a preponderance of evidence that the discharge was discriminatorily motivated. Anderson was moved from his regular job to replace Slack, who had just been dis- charged, and there was no indication that the transfer was to set him up also for discharge. Even assuming that Anderson was assigned a quota, the mutually cor- roborative testimony of Marr and Pick was that Anderson refused even to give the new job a try and that he was discharged for that reason. That testimony is accepted in the absence of corroboration of Anderson. The General Counsel also failed to establish knowledge of umon membership as to Stafford Jackson, who denied his membership to Arabi. Furthermore, the evi- dence did not support the claimed discriminatory motivation. Jackson did not deny that he sometimes shut off the air valve and that that sometimes resulted in the production of a defective door. Jackson's testimony concerning his reason for doing so cannot be credited over Arabi's explanations. Arabi's testimony is also credited over Jackson's concerning Jackson's turning off of the air valve on the day of the discharge and as to the time of the discharge. It is concluded and found for the foregoing reasons that the General Counsel did not establish by a preponderance of the evidence that Mars, Brumfield, Turley, An- derson, and Jackson were discharged because of their umon membership or activities. ITS. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, as provided under Recom- mendations below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Respondent offered resinstatement to Vinnett, Anny, Slack, and Stampley on De- cember 28, 1959, and to Riley and Whittaker on January 11, 1960. As the General Counsel conceded that the letter to Stampley (which was phrased in identical terms with the others) was a valid offer of reinstatement, the usual backpay provision will be limited in the foregoing cases to the period between the discharges and the respective offers of reinstatement. No offer was proved as to Reid and Antoine. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. By discharging Lucindia Reid, James Riley, Albert Stampley, Eddy Antoine, Lloyd Vinnett, Samuel Slack, John Anny, and Leroy Whittaker on the dates found above. Respondent engaged in discrimination to discourage membership in the Charging Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several THE MOSLER SAFE COMPANY 747 'States, and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not engage in unfair labor practices by discharging Felther Mars, Joseph Brumfield, Preston Turley, Jr., Raymond Anderson, and Stafford -Jackson. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, Ind., or in any other labor organization of our employees , by discharging or refusing to reinstate employees because of their union membership and activities, nor will we discriminate in any other manner in regard to hire or tenure of employment, or any term or condition of employment, to discourage membership in a labor organization except as author- ized by Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT interrogate employees coercively concerning their union mem- bership, sentiments, and activities, nor will we threaten to discharge employees or to impose onerous workloads because of their union membership , sentiments, and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to form, join, or assist said General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing, or 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 authorized by Section 8(a)(3) of the Act, as modified by the Labor- Management and Disclosure Act of 1959. WE WILL offer to Lucindia Reid and Eddy Antoine immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. WE WILL make whole Lloyd Vinnett, John Anny, Samuel Slack, Albert Stampley, James Riley, and Leroy Whittaker for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become or refrain from becoming members of the above Union, or any other labor organization, except to the extent that said right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. IPIa DOOR COMPANY, 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. The Mosler Safe Company and United Steelworkers of America, AFL-CIO, Petitioner and Safe Workers Organization, Chapter No. 2. Case No. 9-RC-4037. November R3,1960 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, dated April 21, 1960, an election by secret ballot was conducted on 129 NLRB No. 97.