Standard Metal Fabricating Co.

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any earnings during the period she was not working, to be computed in accordance with the Board's policy established in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Cooks, Waiters, Waitresses & Bartenders' Union, Local 748, is a labor organization within the meaning of Section 2(5) of the Act. 2. By engaging in surveillance, ordering an employee to engage in surveillance, and interrogating him as to what he observed in the course of his surveillance of a union meeting, Respondent has engaged in and is engaging in conduct interfering with, restraining, and coercing employees with respect to the exercise of rights guar- anteed them in Section 7 of the Act in violation of Section 8(a)( I) of the Act. 3. By discharging employees Frances Johnson and Lula Bell Williams because they engaged in union activity and joined the aforesaid Union, Respondent discrim- inated against them, and is discriminating against them, in regard to their hire and tenure of employment , and the terms and conditions of their employment, thereby discouraging membership in the aforesaid Union in violation of Section 8(a)(3) and (1 ) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Standard Metal Fabricating Co. and United Steelworkers of America, AFL-CIO. Case No. 17-CA-1649. Hay 29, 1961 DECISION AND ORDER On February 24, 1961, 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 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 filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. We agree with the Trial Examiner that the Respondent knew of Thomas' union activities when it decided to discharge him the morning of July 11, and that the decision to do so was prompted by its desire to rid itself of a union adherent rather than because it was dissatisfied with his work. In reaching these conclusions, we do not adopt the Trial Examiner's finding that the Respondent violated Section 8(a) (1) through a remark of Wallace Shearon. The Trial Examiner found that Shearon was a supervisor within the meaning of the Act, and he imputed Shearon's knowledge of Thomas' union activities to 131 NLRB No. 112. STANDARD METAL FABRICATING CO. 845 the Respondent, as well as finding that Respondent was responsible for Shearon's alleged threat to an employee named Sullivan. The Trial Examiner pointed out that on learning that Sullivan had signed a union card, Shearon advised him that he had "Better watch out, people had been fired for trying to get a union in before." The quo- tation is from the testimony of an employee who overheard Shearon's conversation with Sullivan. Sullivan, however, to whom the remark was addressed, testified that after he had acknowledged that he had signed a card, Shearon stated that "We should have protection or something, last time people had been fired for that." Based on Shearon's complete statement, as testified to by the individual to whom it was addressed, we conclude that Shearon was expressing concern over what might happen if union activities continued, rather than that he was uttering a threat. Thus, whether or not Shearon was a supervisor, we conclude that his remark to Sullivan did not consti- tute interference, restraint, or coercion within the meaning of Section 8 (a) (1) and do not, therefore, rely on the Trial Examiner's finding of an 8(a) (1) violation in adopting his conclusion that Respondent has violated Section 8 (a) (3). ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Standard Metal Fabricating Co., Omaha, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or by discrimi- nating in any other manner in regard to their employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Charles Thomas immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due. (c) Post at its plant in Omaha, Nebraska, copies of the notice at- tached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent, be posted by the Respond- ent 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. (d) Notify -the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent threatened its employees in violation of Section 8(a) (1) of the Act. MEMBERS RODGERS and BROWN took no part in the consideration of the above Decision and Order. 1 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 Labor Manage- ment Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor organization of our employees, or in any other manner discriminate in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL offer to Charles Thomas immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the STANDARD METAL FABRICATING CO. 847 above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. STANDARD METAL FABRICATING CO., Employer. Dated---------------- By----------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Relations Act of 1947, as amended , 61 Stat. 136 , 73 Stat. 519, herein called the Act, was heard in Omaha, Nebrasks , on October 18 and 19, 1960, pursuant to due notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that Standard Metal Fabricating Co., herein called the Respondent , had engaged in unfair labor practices proscribed by Section 8(a)(1) and ( 3) of the Act . In its answer, duly filed, the Respondent conceded that it was engaged in commerce within the meaning of the Act, but it denied the commission of any unfair labor practices. At the hearing all parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, and to argue orally. Oral argu- ment was waived. A motion to dismiss the complaint , made by the Respondent at the close of the hearing, is disposed of as appears hereinafter in this report. Subse- quent to the hearing both the General Counsel and the Respondent submitted able briefs.' Particular note should be made to the brief of counsel for the Company which was unusually thorough and comprehensive. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Nebraska corporation with its principal office and plant in Omaha, Nebraska, is engaged in the fabrication of sheet metal products . Its annual purchases of goods and materials, shipped to Omaha from out-of-State, exceed $50,000. Similarly, its sales of finished products, shipped to points outside Nebraska, are in excess of $50,000. On the foregoing facts, the Respondent concedes, and I find, that Standard Metal Fabricating Co. is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The United Steelworkers of America , AFL-CIO, herein called the Steelworkers, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Contentions of the parties The General Counsel alleges that on July 12, 1960, the Respondent discriminatorily terminated Charles Thomas because of his activity on behalf of the Steelworkers and that the Company further violated Section 8(a)(1) of the Act through the com- i After the close of the hearing, counsel for the Respondent and the General Counsel submitted a signed stipulation'to correct numerous errors that appear In the stenographic transcript. This stipulation Is hereby received as Joint Exhibit No 1 and the record corrected In accordance therewith. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments of Wallace Shearon. The Respondent avers that the discharge of Thomas was for cause and that it was not responsible for any remarks Shearon may have made because he had no supervisory status. B. The facts 1. Background and sequence of events Charles Thomas was hired by the Respondent in June 1959 as a laborer in the pipe department. His starting rate of pay was $1.50. Upon completion of a 2-month probationary period, he received a raise to $1.60. Late in September, Herbert Q. Urbach, vice president and works manager, told Thomas that he was ready for a supervisory job and on October 19, 1959, he became foreman of the night shift.2 His predecessor on that post was Wallace Shearon. The latter remained with Thomas on this shift for about 2 weeks and was then transferred to a similar position on the day shift. In April the night shift was discontinued for economic reasons and Thomas was then transferred to a rank-and-file job on the day shift. Thomas testified, and in this respect his testimony was undemed, that at that time Urbach told him that he was being transferred solely because the Company was losing money on the shift and not because of any lack of ability on his part or any desire on the part of the Company to downgrade him. Other than a 6-cent an hour differential paid for night work, Thomas suffered no loss in pay by the transfer. His wage re- mained at $1. 85 an hour from that time until his discharge. After the elimination of the night shift, Thomas was assigned to operate what was known as the slitter machine and cutoff line. In this capacity, he worked under Macchietto most of the time. Occasionally, however, Macchietto assigned him to work in the special fitting and duct department under Wallace Shearon, the same individual whose place Thomas had taken as supervisor on the night shift. The General Counsel contends, and the Respondent denies, that while on the day shift Shearon was a supervisor within the meaning of the Act. To that issue we will now turn. The Respondent had several witnesses testify on the question of Shearon's author- ity and status but Shearon himself was never called. From this testimony it appears that Shearon is classified as a shop leader for the special fittings and duct depart- ment, a section that has a total of approximately 10 employees. Urbach and Mac- chietto testified that he has limited authority to assign and direct employees, that he is consulted as to problem employees in some cases, and that he has occasionally attended factory supervisors' meetings. Both denied that he had any real supervisory authority. This testimony, however, was not corroborated by that of Walter Wolf, who testified that he is the group, or shop, leader for the fittings department and that his job is similar to that of Shearon. According to Wolf, he has the responsi- bility to direct the work, assign the jobs, and discipline the employees in his depart- ment. He further testified that he has the authority effectively to recommend trans- fers and suspensions and that in the past his recommendations in this respect have been adopted. According to Wolf, although he has never recommended the dis- charge of an employee, both Macchietto and Urbach have told him that he has the authority to do so Wolf is paid $2.20, a wage that is approximately 45 cents an hour more than that of any of the 10 employees in his department According to Wolf, Shearon is the only other employee in the plant with the same classification that he has. Two employees in the special fittings and duct department, Virginia Brumley and Gerald Boham , testified that it was from Shearon that they received their instructions, work assignments, and orders. Thomas testified that in November 1959 he was present during a conversation between Macchietto and Shearon in 2 The General Counsel contends, and the Respondent denies, that while on the night shift Thomas was a supervisor within the meaning of the Act At the outset of this assign- ment Thomas attended a training course for supervisors conducted at intervals over a period of several weeks in the office of Vice President IIrbach. It was undisputed that Thomas was in sole charge of a group of from 10 to 18 female production employees throughout the period from November 1959 to April 1980 The shift hours were from 4 p in to 12 30 a in and from 6 p in until closing no other supervisor was present in the plant. Thomas testified that while he was in charge of this shift he recommended promo- tions for several named employees and that his recommendations were adopted. He also effectively recommended the discharge of one Diana Leisk Macchietto corroborated Thomas' testimony in this connection and described Thomas as "night shift supervisor or group leader, night shift foreman." From the foregoing it is apparent, and I find, that while on the night shift Thomas was a supervisor within the meaning of the Act. STANDARD METAL FABRICATING CO. 849 which the production superintendent told Shearon that he was to be transferred to the day shift as a working foreman. This testimony was uncontradicted and un- denied. At the time of the hearing Shearon was still in the Company's employ. Notwithstanding this fact, the Respondent did not call him as a witness. Nor did it offer any explanation for its failure to do so. Earlier herein, it has been found that Thomas, who assumed Shearon's position on the night shift, was a supervisor while in that post. Wolf, who testified that he had the authority to recommend the discharge of employees was, in fact, a supervisor within the meaning of the Act. I so find? Further, this same witness also testified that Sharon's position was the same as his own. Consequently, on these facts, and on this record, I find, contrary to the testimony of Macchietto and Urbach, that Shearon was a supervisor within the meaning of the Act. On June 25, Thomas went on vacation. On July 5 he came back to duty. Upon his return he discussed with his fellow employees the desirability of a union. As an outgrowth of these conversations Thomas telephoned Earl M. Graham, staff representative of the Steelworkers, to ask his advice and assistance. The latter arranged to meet with a group of the Respondent's employees on Saturday, July 9. On that date, Thomas, Gerald Boham, Cloyce Sullivan, and Virginia Brumley met with Graham who discussed the tactics of a union drive. Each of the four signed authorization cards and Thomas was designated aschairman of their organizational committee. Graham gave each of them a supply of union cards for solicitation of their fellow workers. The group also agreed that Thomas would be responsible for collecting the cards and submitting them to Graham at the union headquarters. On July 11, the following Monday morning, Thomas, Boham, and Sullivan sta- tioned themselves in the plant parking lot where they endeavored to contact their coworkers as they reported to the plant at the beginning of the day shift. As a result of these efforts the organizing committee secured signed authorization cards from about eight of the employees in the period from 7 to 7:30 a.m. In addition to the production employees, several of the supervisors, including Production Super- intendent Macchietto, Plant Engineer Donald Jefferson, Shearon, and Wolf, arrived at the parking lot during this period and entered the plant. During the noon lunch hour Thomas and his two associates renewed their efforts and secured four addi- tional signed cards. The following morning the foregoing members of the organiz- ing committee resumed their solicitation on the parking lot and induced one more employee to sign an authorization. At this time there were about 40 production and maintenance employees in the plant and, having secured signed cards from over 30 percent of this number, on July 12 the Steelworkers filed a petition for a Board election. On the afternoon of that day Thomas was discharged. One incident that figures in the case occurred on July 11. At noon on that day Shearon and Sullivan had a conversation about the union during the course of which Shearon asked Sullivan whether he had signed a union card. When the employee replied in the affirmative, Shearon advised him, "Better watch out, people had been fired for trying to get a union in before." 4 2. The termination of Charles Thomas At 2 p.m. on July 12, Production Superintendent Macchietto went to Thomas' machine and stated to the employee: "You had sort of a bad interview here about a week'ago. . . . We can't see how you improved any, so we are letting you go You can go anytime now." With that announcement Macchietto handed Thomas 3In 1957, Wolf voted in a Board- conducted election that was held at the plant Such a fact might constitute an index of employee status if the Board had made such a determina- tion In ;the representation proceeding-and the period involved in the unfair labor practice case was contemporaneous with that involved in the election matter. That, however, is not the case here, for the 1957 election was held pursuant to a stipulation for certifica- tion upon consent election Thus, "neither the Board nor the Regional Director ever made a definite determination of [Wolf's] status. The Regional Director merely approved the arrangement for the election as agreed to by the Union and the employer." N L R B v Montgomery Ward & Co , Inc, 242 F. 2d 497, 501 (C A. 2) The fact that Wolf may have voted without challenge in such an election, held under these circumstances, is not dis- positive of the question as to his supervisory status in an unfair labor practice proceed- ing 3 years later Leonard Ntiederrster Company, Inc., 130 NLRB 113, footnote 2 4 The ouc tatmn is from the testimony of Gerald Boham who was present durng the conversation Boham was corroborated by Sullivan. Both were credible witnesses and their testimony as to this conversation was uncontradicted and undenied 599198-62-vol 131-55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his final check. The General Counsel alleges that this employee was discrinunatorily discharged. The Respondent avers that Thomas was dismissed for cause. Thomas testified that he had had no conflicts with the plant management prior to his discharge. He conceded having had some difficulty with the operation of the slitter and cutter machine but he denied that this had ever provoked a reprimand. On June 24, the day before Thomas left on his vacation, Macchietto had conducted an interview with Thomas pursuant to the Respondent's personnel practices. Dur- ing the course of this conference Macchietto used a grading sheet and recorded thereon his analysis of the employee's capabilities. These marks, as they appear from the boxes that were checked on the interview sheet, were as follows: Quality Rating Accuracy------------------------------------ "Very accurate" Speed--------------------------------------- "Satisfactory" Knowledge of work---------------------------- "Knows job fairly well" Cooperation ---------------------------------- "Cooperation acceptable" Initiative ------------------------------------- "Usual amount displayed" Potentiality---------------------------------- "Slow development ahead" Supervisory ability----------------------------. "Inadequate supervision" 5 It appears that most of the above ratings were discussed by the superintendent and Thomas. The latter testified that Macchietto expressed dissatisfaction with the way he had cut certain steel and that he explained the reason for this to the superin- tendent. He also conceded that Machietto rejected his request for a raise at that time. The Respondent's officials, Macchietto and Urbach testified that they decided upon Thomas' discharge on Monday morning, July 11, and that that decision was the result solely of acute dissatisfaction with his work. Both denied any knowledge of Thomas' union activities and Macchietto further denied that the subject of the employee's union affiliations had ever been considered in their deliberations on that day. Macchietto testified that with one exception 6 Thomas' work as group leader on the night shift had been satisfactory, but that after his return to the day shift it had become very unsatisfactory. According to Macchietto, at the interview on June 24, he warned Thomas that unless his work improved he would be terminated. Macchietto testified that after Thomas returned from vacation he continued to make mistakes on the slitter and cutter machine, that his attitude did not improve, and that, as a result, on the morning of July 11 he and Urbach concluded that Thomas should be dismissed. Urbach, who corroborated much of Macchietto's testimony about the Respondent's concern over Thomas' work, also testified that no other em- ployee who operated the slitter and cutter machine had: complained about it before or after Thomas used it from April through June. This latter testimony, however, was not corrobated by,Gerald Boham, one of the employees who operated the ma- chine in question while Thomas was on vacation and, later, after Thomas was dis- charged. According to Boham, he had experienced many of the same difficulties with it that Thomas had described and had frequently called them to the attention of Macchietto. These experiences, however, had not affected" this employee's work record for Urbach described Boham as a "satisfactory employee" and Macchietto characterized him as a "good worker." Although Macchietto testified that on June 24 he warned Thomas that failure to improve would result in discharge, this testimony was not corroborated by the statement which Macchietto wrote on the interview sheet immediately after his conference with the employee on that date No reference appears in this statement as to any such warning. Whereas the statement reflects Macchietto's concern about Thomas' attitude it contains no suggestion whatever that the employee was warned of an imminent dismissal .? Thomas denied that Macchietto gave him any such 5 At the time, Thomas was not, of course, in a supervisory position. The instructions set forth on the grading sheet specifically stated that this category was not to be rated in the event the employee performed no supervision O According to Macchietto, this was an incident that occurred early in- January and involved a complaint from certain female employees on that shift about his actions The superinutendent testified that after an investigation of the matter and a discussion with the complainants, "I took Charley aside the next day and talked to 'him about it and explained that they were objecting to this, and that was all that was said. There was talk about it but that was all between Charley and I." 7 This statement read as follows : I was very direct and frank with Charles , in turning down his request for a wage increase . I explained to him that his present rate of $1 . 85 is a great deal more than STANDARD METAL FABRICATING CO. 851 warning on June 24, or at any other time. Macchietto's testimony as to this issue was not persuasive. For this reason and because it lacked any corroboration in the statement which the superintendent himself prepared on June 24, I find, as the employee testified, that Thomas received no warning of possible discharge prior to his actual dismissal. As noted above, Macchietto and Urbach testified that in reaching their decision to discharge Thomas there had been no discussion of the union. This testimony was not borne out by Bernard L. Koyen, personnel director for the Respondent. Koyen testified on the day prior to the day that Macchietto and Urbach took the stand. According to Koyen, during their deliberations, the plant officials were aware "that there was some union activity" 8 and, as a result, they discussed the prospect of difficulties on this score if Thomas was discharged at that time. Koyen testified, however, that President J. W. Hennen concluded that if there was cause for discharge of Thomas, the presence or absence of a union should not deter the management from proceeding to terminate the employee. The position taken by Mr. Hennen, as related by Koyen, was, of course, sound and in no conflict with the Act. As one court has said, "If an employee is both inefficient and engaged in union activities, that is a coincidence that does not-destroy the just cause for his discharge." N.L.R.B. v. Birmingham Publishing Company, 262 F. 2d 2, 4 (C.A. 5). At the same time it is also pertinent to recall an observation by the Court of Appeals for the Eighth Circuit that under the Act here involved "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8).9 The only issue, therefore, with which we are concerned is whether the true motivation for the discharge was Thomas' work record or his union activity. - The Respondent's officials denied that it had any knowledge of Thomas' union activity at the time of his dismissal. As we have seen, Macchietto and Urbach denied that the subject of union activities had entered their discussion of this em- ployee's termination. On the other hand, Personnel Director Koyen conceded that during their deliberations the plant officials knew that there was "some union activ- ity" among the employees and that they considered its implications in connection with Thomas' discharge. Moreover, the testimony of Wolf and the testimony about Shearon establishes that these supervisors learned quickly of the Steelworkers' campaign. Thus, Wolf testified that he heard of the solicitation for the Union on Monday, July 11, and he conceded that he might even have heard about it as early as July 8. He further testified that on the morning of July 11 he saw Thomas talking to a group of employees outside the building. In this connection, Wolf was asked the following question and gave the answer which appears below: Q. What, if any information did you obtain later on about what he was doing? A. Well, it was just mentioned in a sort of round about way that it looked like someone was talking union, so I thought. Wolf also testified that during the course of that day he mentioned to Wallace Shearon the prospect of another union campaign at the plant. As found earlier herein, that same morning Shearon warned Sullivan that he had "better watch out, people had been fired for trying to get a union in before." Finally, when Wolf was asked at the hearing as to whether he had come to any conclusion on July 11, as to we would ordinarily pay for slitting and cut-off, but we are paying him this higher rate on the basis of his potential as a leader. However, he has not shown good leadership since coming off the night shift. I went over each point in this review and at great length explained the deficiencies and how possibly to improve them, particularly initiative and imagination. Charles did not agree with my evaluations but I explained that these were my feelings and if they are wrong he should try to prove it to me. Charles was sullen throughout [the] discussion. s The quotation is from Koyen's testimony. 6 See also N L.R B. v. L Ronney & Som Furniture Manufacturing Co., 206 F 2d 730, 737, where the Court of Appeals for the Ninth Circuit stated, "It is well settled that an employer violates Section 8(a) (3) by discharging . . . an inefficient employee if the employer's reason for so doing is not the employee's inefficiency but his union affiliation or activity" Cf. N.L.R B. v. C & J Camp, Inc, et al. d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (CA 5), where the court held that a justifiable cause for 'discharge cannot shield discrimination in employment shown to have been unlawfully motivated. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was responsible for the Union , he stated "Well, I thought perhaps I had heard that Charley Thomas was behind it." Thomas was, of course , the prime mover in the newly organized campaign . He and his two associates , Sullivan and Boham, openly conducted their solicitation for the Union on the plant parking lot on the morning of July 11 , during the noon hour that day, and on the following morning. Upon the foregoing facts, as well as the fact that the Respondent 's plant is small, with approximately 40 production employees," it is my conclusion , and I find, that on July 11 the Respondent quickly learned, not only of the Steelworkers' campaign, but of Thomas' participation in it. Thomas, as one of a group of about 10 employees getting $1 .85 an hour or above,ll was one of the highest paid production employees in the plant. Macchietto testified that he could not recall any dismissals in this pay category during the 2 years that he had been superintendent . Even among the lower-paid employees who have passed their probationary period , dismissals occur infrequently . Macchietto could recall only one within the preceding 6 months, that of a woman who had been receiving $ 1.45 an hour . Urbach could recall two others that had taken place since the fall of 1958 , and both of these were classified at the next level above "trainee." From the record, it is obvious that the Company , rarely, if ever, dis- missed an employee in the same pay scale or classification as Thomas. It is clear that at the interview with this employee on June 24 , Macchietto was concerned about Thomas' attitude and various other aspects of his work. On the other hand, as found above and contrary to Macchietto's testimony, Thomas re- ceived no warning at that time or later that he would be dismissed for failure to improve. In fact, on the written statement which the superintendent put on the interview record, Macchietto wrote, "Charlie did not agree with my evaluations but I explained that these were my feelings and if they are wrong he should try to prove it to me." [Emphasis supplied.] 12 This clearly indicated that, notwithstanding Macchietto's dissatisfaction, Thomas was to be given an opportunity to establish that he could do better. Immediately after that interview Thomas went on vacation. On July 12, and only 7 working days after his return to the plant, Thomas was terminated. In the week before his discharge, Thomas had become identified with the Steel- workers and had been designated chairman of its organizing committee. On the morning of July 11 , Thomas, Sullivan, and Boham openly began their solicitation of the employees to join the Union . Earlier I have found that on that day the Re- spondent learned not only of the union campaign but of Thomas' association with it. About noon on July 11, Shearon warned Sullivan that "people had been fired for trying to get a union in." On July 12, Thomas was dismissed without warning in the middle of his shift and given his final paycheck on the spot. In view of the Respondent's knowledge of Thomas' participation in the incipient union movement, the abruptness of his discharge, and the unconvincing reasons advanced to explain it, I conclude and find that the real reason for his summary dismissal was his union activities. Although the Respondent had cause for dissatis- faction with some of Thomas' work, as the Court of Appeals for the Third Circuit observed in a similar case, "it apparently became intolerable only after he had joined the union." N.L.R.B . v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C.A. 3) By this action, the Respondent violated Section 8(a)(3) and (1) of the Act. I further find, in view of my conclusion as to Shearon 's supervisory status, that , the Company must be held responsible for Shearon 's- conversation with Sullivan in which he voiced the warning that union activities in the past had resulted in dis- missal . Shearon's statement constituted a violation of Section 8(a)(l) of the Act by the Respondent and I so find.13 10 See Angwelt Curtain Company, Inc v NLRB , 192 F. 2d 899 , 903 (C A 7), where the court stated "It was not an unreasonable inference that in a small plant in a rela- tively small community news of the intense union organizational drive came quickly to the attention of the plant officers " ' Urbach testified that there were from 6 to 10 employees getting $1 85 or above. 12 This appears on Respondent's Exhibit No. 1 which was prepared on June 24, 1960 Respondent's Exhibit No. 2, which purports to explain Thomas' discharge, was prepared by Macchietto on July 12, after the Respondent had decided to terminate the employee Because of its self-serving character, I have accorded no weight to this second document Is One further point must be considered . The allegations as to the Section 8(a) (1) violations appear in paragraph 4 of the complaint and were based on an amended charge filed by the Union on August 22, 1960. The Respondent contends that these allegations must be dismissed because ( 1) they were based on a charge solicited by the General STANDARD METAL FABRICATING CO. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 853 The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Charles Thomas on July 12, 1960, I will recommend that the Respondent offer him immediate and full reinstatement, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the afore- said date of his discharge to the date of the Respondent's offer of reinstatement, less net earnings during said period. The backpay provided for herein shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due as backpay. Since I have found that the Respondent, by various acts, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in the Act and particularly because the discriminatory discharge found herein goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Manufacturing Co., 120 F. 2d 532, 536 (C.A. 4)), and indicates a purpose to defeat the self-organization of its employees, I am convinced that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. Accord- ingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in, any manner infringing upon the right of employees guaranteed by the Act. May Department Stores d/bla Famous-Baar Company v. N.L.R.B., 326 U.S. 376, 386-392. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Charles Thomas, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. Counsel's representatives (citing the dissenting opinion in Petersen Construction Corp , et at, 128 NLRB 969), and (2) the amended charge lacked sufficient particularity to sup- port the allegations in paragraph 4 of the complaint As to the first objection, there is no evidence of any improper conduct on the part of the Regional Office personnel here involved See majority opinion, Petersen case. The Respondent's second objection is answered by the opinion of the Supreme Court in N L It.B v. Fant Milling Co., 360 U.S. 301, 307, wherein It said, A charge filed with the Labor Board is not to be measured by the standards appli- cable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. Labor Board v I & M. Electric Co., 318 U S. 9, 18. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged In the charge would reduce the statutory machinery to a vehicle for the vindication of private rights This would be alien to the basic purpose of the Act The Board was created not to adjudicate private controversies but to advance the public interest in eliminat- ing obstructions to interstate commerce, as this Court has recognized from the be- ginning. Labor Board v. Jones & Laughlin, 301 U S. 1. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Ramon C. Shull and McGraw Con- struction Co., Inc., Party to the Contract McGraw Construction Co., Inc. and Ramon C. Shull and Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Parties to the Contract Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Thomas B. McQuain and McGraw Construction Co., Inc., Party to the Contract McGraw Construction Co., Inc. and Thomas B. McQuain and Ohio Valley Carpenters' District Council , United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Parties to the Contract McGraw Construction Co., Inc. and James Macdonald and Local Union No. 1477, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Party to the Contract. Cases Nos. 9-CB-845, 9-CA-1923, 9-CB-816, 9-CA-1992, and 9-CA-2053. May 29, 1961 DECISION AND ORDER On July 25, 1960, Trial Examiner James T Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging in any of the unfair labor practices alleged in the complaints, and recommending that the complaints be dismissed in their entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and James Macdonald, one of the Charging Parties, filed exceptions to the Intermediate Report and supporting briefs. The Respondent Unions filed an exception and both Respondents filed briefs in support of the Intermediate Report. 131 NLRB No. 111.