Threads, Inc.

THREADS, INCORPORATED 451 The Union contends that James Nelson, Edwin Herrenbruck, and Thomas Sharkey should be excluded from the unit as supervisors, and 'Fred Grimm as a salesman; the Employer asserts that all four should be included. Nelson and Herrenbruck were foremen before the strike which began in May 1960. Since the strike Nelson has been working as a machinist and Herrenbruck as a welder. Neither is now exercising supervisory authority. It is not clear from the record whether Nelson and Herrenbruck are merely temporarily assigned to nonsupervisory 'duties because of a decline in business resulting from the strike, or whether their assignment to their present duties is more or less per- manent.6 In these circumstances, we shall make no determination at this time as to whether they are included in the unit but shall permit 'them to vote subject to challenge. Thomas Sharkey is a parts man in the shop and also drives a truck picking up and delivering merchandise. He receives considerably more per hour than the other parts man, but there is no evidence that he has ever acted as a supervisor. We find that he is not a supervisor and include him. Fred Grimm was a salesman when the strike started, but is now working as an automatic welding machine operator. According to the Employer, his sales record during the 4 months preceding the strike was so poor he would have been eliminated as a salesman even if no strike had occurred. As his assignment to the shop appears to be per- manent, we include him in the unit. [Text of Direction of Election omitted from publication.] 9 See United States Rubber Company, 86 NLRB 338, 340. Threads, Incorporated and Textile Workers Union of America, AFL-CIO. Case No. 11-CA-1651. July 26, 1961 DECISION AND ORDER On February 15, 1961, Trial Examiner William Seagle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- 132 NLRB No. 30. 614913-62-vol 132-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member panel [Chairman McCulloch and Members Leedom and .Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following additions, modifications, and exceptions.' 1. For the reasons indicated in the Intermediate Report, we agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by its attempts to bypass the processes of the Board and, buttressed by threats, to induce employees, previously un- lawfully discharged, to waive their rights to reinstatement, and by interrogating an employee, as more fully set forth in the Interme- diate Report. The Trial Examiner also found that the Respondent violated Section 8(a) (1) by subjecting such discriminatorily dis- . charged employees, after their reinstatement, to "surveillance with respect to their legitimate activities during their working hours." The record shows that, after reinstating : employees who had, been discharged because of their union activities, the Respondent subjected them to an extraordinary amount of watching by supervisors in order to discover some pretext for again discharging them., While such watching did not constitute surveillance in the normal sense, as it did not involve scrutiny of employees' union or concerted activities, we find, because of the inhibiting effect upon employees who knew they were being watched and why; that the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guar- anteed in Section 7 of the Act, in violation of Section 8(a)(1), by such conduct. We also find, as did the Trial Examiner, that the Re- spondent violated Section 8(a) (1) by "proclaiming to its employees that there would 'never be a union in the plant and that they would never derive any advantage from joining a union.2 2. We find, as did the Trial' Examiner, that the Respondent dis- charged Leonard Fields in violation of Section 8(a) (3) and (1) of ,the Act, as ' more fully set forth in the Intermediate Report. . i The Trial Examiner found that the Respondent unlawfully induced James Goodson, who had been previously unlawfully discharged , to waive his right to reinstatement In view of Goodson 's 1"conduct ' in offering information to an executive of the respondent concerning the preparation of the General, Counsel's case," , the Trial Examiner recom- mended that it would not effectuate the policies of the Act to reinstate Goodson As no exception was taken thereto, we adopt this recommendation pro • forma. We correct an inadvertent error in the Intermediate Report, which does not affect the Trial , Examiner's ultimate conclusions , by substituting the word "Bell" for the word "Underwood" in the last paragraph of section III. 2 Member Leedom . disagrees with this finding as he finds no such implications in the speech upon which these conclusions are based. , THREADS, INCORPORATED 453 3. We also -agree with the Trial Examiner that the. Respondent dis- charged William F. Bell in violation of Section 8 (a) (3) and (1) of the Act, but for a different reason. The Trial Examiner found that the Respondent discharged Bell because he engaged in note-taking. We do not rely on this rationale. The Respondent knew of Bell's union adherence. He had identified himself as a supported of the Union as early as October 1959, when he testified at an earlier Board hearing. The Respondent asserts that it discharged Bell because of excessive absences from his machine. It was the recognized practice in the Respondent's dyehouse, where Bell worked, for employees to take breaks of as much as 15 minutes in an hour when they had noth- ing to do in connection with their machines and the break was con- sistent with the scheduled running time of the machine. During these breaks, employees could smoke, take a drink, eat, or talk. The circumstances of Bell's discharge were similar to those in the case of Fields, whom we have found to have been discharged because of his union activities. After coming to work on May 31, 1960, Bell took his first break at 4:15 p.m., which lasted about 10 minutes, and had a smoke. At 5:30 p.m., he took a break in order to eat a sand- wich. Bell did not take another break until about 7 :15 p.m., when he went out for a smoke. When, he returned, "a few minutes later," he was told by his foreman, McGuire, that he would have to let Bell go as he `was riding a free horse to ,death." Before his last break, Bell had sampled his machines, and when he was discharged they still had 15 minutes to run. In the light of the Respondent's other unfair labor practices, more fully set forth in the Intermediate Report, we find that the Respondent utilized Bell's absences from his machine as a pretext, and that it discharged him because of his union adherence.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National' Labor Relations Board hereby orders that the Respondent, Threads, In- corporated, Gastonia, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in and activities on behalf of Textile 'Workers Union of America, AFL-CIO, or any other labor organiza- tion, by discriminatorily discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to 3 The fact that Bell damaged property or committed derelictions on other earlier occa- sions is immaterial as the Respondent did not purport to discharge him for any such alleged misconduct As in the case of the excessive watching of Fields and Underwood, which we found to be 8(a) (1), we find that the watching of Bell was likewise excessive. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their hire or tenure of employment, or any term or condition of employment. (b) Subjecting any discriminatorily discharged employee, or any other employee, to excessive watching of their legitimate activities. during their working hours, in a manner constituting interference,. restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (c) Interrogating employees concerning any personal note-taking in any manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (d) In any other manner interfering with, restraining, or coercing- its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Leonard Fields and William F. Bell immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Leonard Fields and William F. Bell for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount which they normally would have earned as wages from the date of their discharge to the date of the Respondent's offer of reinstatement, less their net earnings during said period, said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due Leonard Fields and William F. Bell and their right of reinstatement under the -terms of this Order. (d) Post at its Gastonia, North Carolina, plant, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's authorized representative, be posted for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not defaced, altered, or covered by any other material. (e) Notify the Regional Director for the Eleventh Region, in writ- ing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith. 4 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." THREADS, INCORPORATED 455 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT subject any discriminatorily discharged em- ployees, or any other employee, to excessive watching of their legitimate activities during their working hours in a manner con- stituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT interrogate our employees concerning any personal note-taking in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. WE WILL NOT discourage membership by any of our employees in, or activities on behalf of, Textile Workers Union of America, AFL-CIO, or any other labor organization, by discriminatorily discharging or discriminating in any other manner against any of our employees in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or -coerce our employees in the exercise of their rights to self- organization, to form, join or assist labor organization, to bargain -collectively through organizations of their own choosing, and to -engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or in their right to refrain from any or all such activities. WE WILL offer to Leonard Fields and William F. Bell imme- diate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of our discrimination against them. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization. THREADS, INCORPORATED, 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 In the complaint the Respondent is charged with violations of Section 8(a)(1), (3), and (4) of the Act. On September 27 and 28, 1960, the duly designated Trial 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner held a hearing with respect to these charges at Charlotte, North Carolina. After the testimony had been taken at the hearing, the parties waived oral argument with respect to the issues involved in the proceeding, and were afforded an oppor- tunity to file post-hearing briefs. However, neither the attorney for the General Counsel, nor counsel for the Respondent has filed such a brief. Upon the record so made, and based upon my observation of the witnesses, I make the following findings of fact: 1. THE RESPONDENT The Respondent, Threads, Incorporated (hereinafter sometimes referred to as Threads), is a North Carolina corporation which owns and operates a mill at Gastonia, North Carolina, where it is engaged in the processing of textile products. During the year preceding the issuance of the complaint in the present case, the Respondent manufactured, sold, and shipped directly to points outside the State of North Carolina f rushed products valued in excess of $50,000. u. THE UNION Textile Workers Union of America, AFL-CIO (hereinafter referred to as the Union), is a labor organization that has sought to organize employees of the Re- spondent. III. THE UNFAIR LABOR PRACTICES The Union began its attempt to organize the employees of the Respondent early in January 1958 but this attempt proved unsuccessful. In an election held on No- vember 13, 1958, a majority of the employees in the unit found appropriate by the Board voted to reject representation by the Union.' Subsequently, the Union filed objections to conduct affecting the validity of the election, and also filed charges of unfair labor practices against the Respondent. After investigation, the General Counsel issued a complaint against the Respondent alleging violations of Section 8(a)(1) of the Act. The representation proceeding 2 was consolidated with the case involving the charges of unfair labor practices,3 and a hearing with respect to the consolidated cases was held at Gastonia, North Carolina, before Trial Examiner Eugene F. Frey, who, on July 10, 1959, issued his Intermediate Report, finding that the Respondent had violated Section 8(a) (1) of the Act by interrogating employees concerning their union activities, by engaging in surveillance of their union activities and giving an impression of such surveillance, and by threatening employees with various forms of economic reprisal if they engaged in such activities. The Trial Examiner also found that, by engaging in certain of these activities in the period immediately preceding the date of the election, the Respondent had interfered with the conduct of the election and deprived its employees of their freedom of choice in selecting a bargaining representative. Under date of September 18, 1959, the Board issued a decision adopting the findings of the Trial Examiner and an order directing the Respondent to cease and desist from the unfair labor practices found to have been committed by it, and setting aside the election of November 13, 1958, until such time as circumstances would permit the free choice of a bargaining repre- sentative by the Respondent's employees .4 The Respondent did not institute judicial proceedings to set aside the order of the Board, but posted the notice required by the order in which it declared that it would no longer engage in the unfair labor practices which it had committed. Upon further charges filed by the Union, however, the General Counsel subse- quently issued another consolidated complaint against the Respondent,5 charging it with violations of Section 8(a)(1), (3), and (4) of the Act, and a hearing was held on this complaint at Gastonia, North Carolina, on October 14, 15, and 16, 1959, before Trial Examiner Arnold Ordman, who, under date of February 8, 1960, issued his Intermediate Report finding that the Respondent had violated Section 8(a)(3) of the Act by discharging James Goodson, Leonard Fields, and Glenn Underwood because- of their union activities, and finding also that the Respondent had inde- pendently violated Section 8(a)(1) of the Act by promulgating and maintaining a no-solicitation rule, enjoining its employees from engaging in union solicitation on company property during nonworking time. The Respondent filed no exceptions to the Trial Examiner's Intermediate Report, and under date of August 17, 1960, the Board issued an order directing the Respondent to cease and desist from its i The Union lost the election by a vote of 262 to 228 2 Case No 11-RC-1146 6 Case No 11-CA-1386 4124 NLRB 968 6 Case No 11-CA-1505 and Case No 11-CA-1535 THREADS, INCORPORATED ' 457 unfair labor practices, and to reinstate to their' former or substantially equivalent' positions, without prejudice to their seniority or other rights and privileges, the three employees who had been found to have been discrinunatonly discharged, and to make them whole for any loss of earnings which each of them may have suffered as the result of the discrimination, against him. Thus, the complaint in the present case represents the third time that the Re- spondent has been charged with unfair labor practices in connection with the Union's organizing campaign. The allegations of the complaint in the present case are that: (1) instead of simply reinstating James Goodson, Leonard Fields, and Glenn Underwood to their, former positions, the Respondent first sought to induce them to renounce their rights to reinstatement by offering to pay them sums of money for a renunciation of these rights, telling them at the same time that they had no future with the Respondent, and that if they were reinstated to their jobs they would be discharged for some reason or other; (2) the Respondent threatened its employees that they would never get a union in the plant; put Leonard Fields and Glenn Underwood, who had been reinstated,6 under surveillance; and promulgated and enforced a rule forbidding employees from making personal notes of any kind in the plant; 7 and (3) thereafter the Respondent again discharged Leonard Fields, and also another employee, William F. Bell, because of their activities on behalf of the Union, and because these two employees had appeared for the purpose of giving testimony in the prior unfair labor practice proceeding-.8 J. W. Thompson, the personnel director of Threads, called as the first witness on behalf of the General Counsel, in support of the allegations of the complaint, admitted in the course of his testimony that toward the end of February 1960, which would be several weeks after the issuance of the Intermediate Report recommend- ing the reinstatement of Goodson, Fields, and Underwood, he entered into negotia- tions with these three discharged employees to persuade them to renounce their rights to reinstatement to their former positions in return for various cash payments. Of course, Thompson attempted to put the best possible interpretation upon these offers. According to him, the Respondent's executives still felt, despite the adverse findings against them, that Goodson, Fields, and Underwood had been discharged for just cause, and were resolved to go on with the case. But they also felt that if they could reach an agreement with the three discharged employees under which they would agree to renounce their rights to reinstatement, in return for the immedi- ate payment to them of what would be awarded to them ultimately in backpay,9 that this would avoid the morale problem that would be created by their return to the plant after their discharge by their foremen,ls and would be preferable to incur- ring the considerable cost of further litigation. In talking to the three discharged; employees, and in attempting to persuade them to accept his offers, Thompson also testified, he did not go beyond an explanation of these motives. Thus, when he was directly asked by counsel for the Respondent: "Did you ever, in any way, threaten by inference or expression or otherwise, any of these three men about what would happen to them if they came back to work?" he replied unqualifiedly: "No." Thompson's account of the Respondent's motives in seeking to persuade Goodson, Fields, and Underwood to give up their jobs, and of the nature of the consideration which he offered them for doing so, does not withstand the scrutiny of analysis. If the Respondent's executives were ever resolved to go on with the case unless they could reach agreement with the three discharged employees, they certainly changed their minds, for Thompson was unsuccessful in attempting to persuade Fields and Underwood to waive their rights to reinstatement. These two employees, after much 9 As subsequently to be related, James Goodson was not reinstated because he had ac- cepted the Respondent's offer of a cash payment, and signed a waiver of his right to reinstatement I This is alleged to have occurred on Apr11 21 and May 19, 1960 8 A further allegation made in paragraph 12 of the complaint that the Respondent, through Ralph Harmon, one of its supervisors, warned its employees not to talk to or have anything to do with employees Fields and Underwood, was withdrawn at the hearing by the attorney for the General Counsel 6 Thompson put this very emphatically at one point : "We were offering only . . . loss of earnings, not a penny more." ' m As Thompson explained it in reference to Goodson, "once an employee leaves us, no matter for what reason, whether he is discharged, it creates a morale problem, it is poor employee relations for that man to come back into the plant . . Other employees don't like the person, the foreman has to take a man back that he knows that'he'had discharged the man for just cause, well, I think you can see what problems occur in that " 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressing by Thompson, gave him a figure of $5,000 as the price of abandoning their jobs but they clearly preferred to return to work, and Thompson would not agree to pay so high a price. Nevertheless, the Respondent's executives decided not to go ahead with the case." Thompson was successful in inducing Goodson, who appar- ently was then thinking of going to Georgia to enter business 12 to accept $2,000, free and clear of all taxes, in return for a waiver of his right to reinstatement. 13 But the further understandings under which this payment was made indicate even more clearly that the Respondent was prepared to offer any one of the discharged em- ployees sums that might be a good deal more than their lost earnings and "not a penny more." What was paid to Goodson was considered as an advance on what- ever backpay would ultimately be awarded to him, his backpay not having yet been determined, and, of course, if the backpay turned out to be less than the sum that had been advanced to him, the Respondent would be able to recoup the difference. The Respondent's records would show what Goodson would have earned in wages since the date of his discharge but Thompson could not know what his interim .earnings might have been and, in determining whether he was entitled to backpay, it would also be necessary to take into consideration whether he had diligently sought other employment. The making of similar arrangements with Fields and Underwood would have had the same consequences.14 It is particularly necessary to take cum grano salts Thompson's explanation of the morale problem that would have been presented by the return of the three dis- charged employees. It is difficult to understand why employees should ordinarily feel aggrieved or perturbed by the reinstatement of fellow employees. Those em- ployees who were union adherents would certainly feel distinctly encouraged, by the reinstatement of fellow employees, who had been discharged for union activity. This was precisely the effect that the Respondent was seeking to avoid. Of course, it is true that the feelings of the foremen who had discharged them might be hurt by the reinstatement of Goodson, 'Fields, and Underwood, but at least in the case of another employee, Gene ("Dean") Teague, who had been fired by a foreman not long after the reinstatement of Fields and Underwood, Thompson was not deterred from agreeing with the plant superintendent that Teague should be reinstated, not- withstanding the danger that the feelings of the foreman who was overruled might be hurt. Surely, a foreman's feelings would be hurt less when he was overruled by a Trial Examiner than when he was overruled by his own superintendent? I also cannot credit Thompson's denial that he made no threats to the three dis- ,charged employees concerning what would happen to them if they did return to work at Threads. All three discharged employees testified that Thompson did make such threats, and the circumstances under which he conducted his negotiations with them plainly indicate that they were telling the truth. Goodson testified with respect to his first interview with Thompson on February 25 ,or 26, 1960, as follows: I came home around noon, about a quarter to twelve, I believe it was, and my wife told me that a man was here to see me, that it was an insurance man, that he would be back at 12:30 to see me, and so I had dinner, and about that time when I finished dinner, Mr. Thompson came to the door, and I asked him into the house, and he said , "No, I would rather you would come out here to my car," and so I went out there to the car with him, and he said that he had a propo- sition to make, and he told me that he had an offer to make me of a job back at Threads, and so I told him that I didn't want none of his offers, that I was going to let the National Labor Board take care of it, so he kept on, and he said, he "As a matter of fact, the negotiations with Fields and Underwood extended into the latter part of March 1960, and by this time the Respondent could no longer have filed exceptions to the Intermediate Report I take official notice of the fact that the time for 'filing exceptions expired on March 2, 1960, and that the time for filing exceptions was not extended Although the Board's order was not issued until August 17, 1960, it would seem that it represented merely a ministerial act, since Section 10(c) of the Act provides that if no timely exceptions are filed to a proposed report and recommended order, "such recommended order shall become the order of the Board, and become effective as therein prescribed " 12 In fact, Goodson never went to Georgia. is The deal was consummated in the office of counsel for the Respondent, and Thompson then took Goodson and his wife, who was with him, to lunch, after which Thompson drove them home 14 Indeed , Thompson admitted that, in dealing with Fields and Goodson , he had no knowledge of what earnings they had had. THREADS, INCORPORATED 459' brought up about the social security and unemployment and income tax, that if I had been working they were going to put me in jail, and that the income tax men would come around and investigate me, and all that, and I was just liable to end up in jail somewhere, and so I told him, no, that I hadn't been working, that I was just going to let the National Labor Relations Board take care of it, and he said, "Well, I will come back tomorrow," and said for me to think it over; and another thing he said there, he said Robert Bridges and Neal McGuire 15 are liable when you come back down there, they will fire you again, said I didn't have no future in Threads, Incorporated." [Emphasis supplied.] The testimony of Fields and Underwood with respect to their meetings with Thompson was pretty much to the same effect. Fields' testified that Thompson first came to his house, but that, when he asked him to step into the house, Thompson said that he wanted him to go out to his car and talk, and that when in the course of the conversation, he declined Thompson's offer of money if he would give up his job, Thompson told him: "Well, if you take your job back, McGuire and Bridges one will fire you again," and he added: "We don't want you fellows back down there in the plant." Fields had two other meetings with Thompson but both of these meetings were in drive-ins at Thompson's suggestion. Similarly, when Thompson and Under- wood were arranging to meet, the personnel director told the latter that he thought that they should not talk at his office but that they should meet at some other place, whereupon Underwood suggested that they meet at Keever's Amoco Station. When they met there, the conversation between them took place in Thompson's car, and in the course of the conversation Thompson remarked. "Well, I don't see why you want to go back in there. . . . What guarantee do you have that you won't be fired again, if you don't follow certain rules and regulations " Two subsequent conversations between Thompson and Underwood also took place at the service station. There is good reason to reject some of Goodson's testimony in the present case. About 2 weeks before the hearing Goodson went to Thompson's office in the plant. According to Goodson, the purpose of his visit was to inquire about his backpay be- cause he needed some more money to go to Jacksonville where his wife was at the time. But, although it is denied by Goodson, I credit Thompson's testimony that Goodson told him that if he would give him $400 he would give him some informa- tion about the scheduled hearing in the present cases, for Goodson admitted that he had said to Thompson: "I want to see you about this trial." Moreover, there was no good reason why Goodson should see Thompson about his backpay, which would be handled by the Board's Regional Office. Nevertheless, I credit Goodson's testimony concerning the threats Thompson made to him. Not only does his testimony with respect to these threats have the authentic ring of truth but it is entirely in harmony with the similar testimony of Fields and Underwood, whose credibility I have no reason to doubt. Moreover, while Thomp- son denied that he had told Goodson that Bridges and McGuire would fire him if he came back to work, he answered a question whether he had said anything to Goodson about Bridges and McGuire by replying merely: "No, not that I recall." and he admitted that he told Goodson that if he came back to work that he would have no immunity from dismissal if he did not obey the rules and perform his job right. Under the circumstances, this remark had in itself a menacing overtone. In the last analysis, however, I reject Thompson's denials of threats because he did not also deny the testimony of Goodson, Fields, and Underwood relating to the circumstances under which the interviews with them took place. If Thompson were seeking to persuade the discharged employees to waive their rights to reinstatement by perfectly legitimate means and in a perfectly legitimate manner, he would not have proceeded as furtively as he did. He would not have huddled with them in the winter in automobiles when he could have talked to them inside their homes, where they would have been more comfortable. Indeed, he would have summoned them to his office, and even invited agents of the Board and the Charging Union to partici- pate in the meeting. He might even have left the door to his office open during the meetine. Not being a lawyer he may not have known that the right of a discrimina- torily discharged employee to reinstatement and backpay is not a private right sub- ject, like an ordinary debt, to private adjustment. but a remedy that is provided in the public interest in order to enforce a public right,16 and hence cannot be affected 15 The dyehouse, where Goodson, Fields, and Underwood had been employed, worked in three shifts, and Bridges and McGuire were foremen on two of the shifts Bridges had been Goodson's foreman at the time of his discharge 16 See Amalgamated Utility Workers, etc v Consolidated Edison Company of New York, Inc, 309 U.S. 261, 269 ; National Licorice Company v N.L R B , 309 U S. 350; Agwilines, -460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by any private agreement.17 But, even as a layman, he knew the implications that flow from attempts at secrecy and concealment. Thus, he testified that when Good- son, on the occasion when he came to offer him information about the hearing, sug- gested that they close the door, he said to his visitor: "Mr. Goodson, there is nothing we have to discuss that can't be discussed with an open door " Having failed to include Fields and Underwood to renounce their rights to rein- statement, despite the unlawful pressures to which he had subjected them, Thompson under date of April 13, 1960, addressed identical letters to them in which he offered 'to reinstate them to their jobs, or substantially equivalent ones, and asked them to report for duty at 3 p m. on Thursday, April 21, 1960. When Fields and Underwood reported for work on April 21, 1960, each of them was first interviewed individually by Thompson, who told each of them that, al- though the Company felt that they had been discharged for just cause, they were being reinstated to their old jobs, the pay rate of which had been increased in the meantime. He also told each of them that they could not expect any special priv- ileges just because the Company had been required to take them back; that they would be expected to abide by the rules applicable to all other employees; and, if they did not abide by the rules, that they would be discharged by McGuire or Bridges. Thompson also had each of them sign an employment application form which concluded with a statement:- "I have read (or have had explained to me) the company and plant rules and I understand that I am expected to observe these rules." Fields and Underwood each demurred against signing the form on the ground that there might be some rules of which he might not be aware because he had not been employed at the plant for some time 18 but Thompson told each of -them that if there were any new rules, their foreman would explain such rules to them. The application form that Fields and Underwood were thus required to sign had not been in use when they had first been employed, and those who had already been employed at the time the form was introduced were not required to sign it. However, new employees were required to sign the form, and it is apparent, there- fore, that Fields and Underwood were being treated as new employees This was hardly consistent with the idea of reinstatement to an existing position. The re- quirement that they sign the form was, therefore, in itself discriminatory. Moreover, Fields and Underwood were not permitted to start work immediately after signing the employment application forms. The Respondent's executives pro- ceeded to make quite a ceremony of the occasion of their reinstatement. John J. Koppen, the Respondent's general superintendent, had all the dyehouse employees, including Fields and Underwood, assembled in the chemical room of the plant, and read to them a prepared speech, the typewritten copy of which ran to almost 21/2 pages. The speech covered three separate topics, which may be characterized as (1) the reinstatement of Fields and Underwood; (2) the removal of dyeing for- mulas from the plant in violation of company rules; and (3) the position of the 'Company with respect to the Union. In dealing with the first topic, Koppen called the attention of the dyehouse em- ployees to the fact that nine men had been discharged "for not doing their jobs properly or obeying company rules" and that six of them would not "be working here again." 19 As for the other three men, although the company could have "continued a contest of their cases and appealed to the highest courts," it had been decided to offer these men "another chance to do their jobs satisfactorily," and that jobs had been offered to these three men but that only two of them had "seen 'fit to come back to work." After calling attention to the fact that these two men were present and listening to what he had to say, Koppen continued: "To these Inc v. N L R B., 87 F. 2d 146, 150 (C.A. 5) ; N.L R B v. General Motors Corporation, 116 F 2d 306, 312 (C.A. 7) ; N.L R B v. Horace G. Prettyman, d/b/a Ann Arbor Press, 117 F. 2d 7'86, 792 (C.A. 6); N.L.R.B. v. Newark Morning Ledger Co, 120 F. 2d 262, 267 (C A. 3). 17 N.L R B v. Louisville Refining Co , 102 F 2d 678 (C A. 6) ; N L R.B. v. Arthur Jr Cotten, et al. d/b/a Kiddie Kover Manufacturing Company, 105 F. 2d 179 (CA. 6). 1e Fields and Underwood had been discharged by the Respondent on August 26, 1959. 19 Koppen explained that nine men had brought charges but that "after going through various hearings and red tape," it had been determined that six of them would not return to work at Threads. This was not entirely accurate. Only eight employees had been named in the charge and amended charge, and only six employees had been named in the amended complaint in the consolidated cases However, the case of a seventh employee was considered at the hearing and in the Intermediate Report subsequently issued by the Trial Examiner. THREADS, INCORPORATED 461 two men I would like to make this specifically and directly clear-we are willing to have you back so long and only so long as you do your work satisfactorily. In order to stay here you will be expected, just like every other employee to perform your job and perform it right!" Since he was now talking about employee conduct, Koppen made a transition to his second topic. He pointed out that the dyeing formulas and methods used by the company were valuable trade secrets, and that the disclosure of such information to unauthorized persons would destroy their value to the company and that its removal from the plant had always been in violation of company rules. He then mentioned that at a Labor Board hearing-this referred to the hearing involving the cases of Goodson, Fields, and Underwood-it had been learned that a company employee had made extensive notes of processing instructions and timings, and had taken such information out of the plant with him. Koppen went on to say that if this had been known at the time, the employee in question would have been dis- charged for such a flagrant violation of company rules. "I say to him and to each of you, anyone who removes, in any manner, dyeing instructions and processing data from this plant will be immediately discharged." 20 Coming to his third and last topic, Koppen read from his speech, as follows: 21 NOW WITH REGARD TO THE UNION, I WANT TO MAKE THE COMPANY'S POSITION ON THIS SUBJECT AS CLEAR AND PLAIN AS'I CAN: WE ARE OPPOSED TO THE UNION. WE CONSIDER IT NOT ONLY A MATTER OF CONCERN TO THE COMPANY BUT ALSO A SERIOUS CONCERN TO YOU. IT IS OUR SINCERE BELIEF THAT IF THIS UNION WERE TO EVER GET INTO THIS PLANT IT WOUD NOT WORK TO YOUR BENEFIT BUT TO YOUR SERIOUS HARM. IT IS THEREFORE OUR POSITIVE INTENTION TO OPPOSE THE UNION AND BY EVERY PROPER MEANS TO PREVENT IT FROM COMING INTO THE PLANT. THOSE W 0 [SIC] WHO MIGHT JOIN OR BELONG TO A UNION WILL NEVER GET ANY ADVANTAGE OR ANY PREFERRED TREAT- MENT OF ANY SORT OVER THOSE WHO DO NOT JOIN OR BELONG TO ANY [SIC] UNION. NO PERSON WILL EVER BE ALLOWED TO CARRY ON UNION ORGANIZING ACTIVITIES ON THE JOB HERE. IF ANYBODY UN- DERTAKES TO DO SO AND HEREBY [SIC] NEGLECTS HIS OWN WORK OR INTERFERES WITH THE WORK OF OTHERS, THAT PER- SON WILL BE DISCHARGED. IT IS NOT NECESSARY, AND IT IS NOT EVER GOING TO BE NECESSARY, FOR ANYBODY TO BELONG TO ANY UNION IN ORDER TO WORK FOR THIS COMPANY! After reading the prepared speech,22 Koppen also remarked to the assembled 'employees that "the company had given two pay increases during the past year." Koppen also read the same speech to all the dyehouse employees on the first and third shifts but, since Fields and Underwood, who were on the second shift, were not present on these other occasions. Koppen slightly changed the wording in which it was assumed that they were present and listening to him. The ceremonies attending the reinstatement of Fields and Underwood, including Koppen's speech, at one and the same time, deprived their reinstatement of its intended prophylactic effects and further violated the provisions of Section 1 of the Act. The harm accomplished by the unfair labor practices, consisting of the discriminatory discharges of the three employees, which discouraged union activities on the part of all of the employees, could hardly be dissipated when the Respond- 2° Although Koppen did not mention the culprit by name, he was none other than Glenn Underwood However, Trial Examiner Ordman found in his report that Under- wood had taken the notes in anticipation of needing them "if Respondent should predi- cate adverse action against employees on the basis of its own records concerning such operations " 21 In the typewritten copy of the speech, what Koppen had to say about the Union is typed entirely in capital letters, unlike the text of the rest of the speech, which is in lower case I have adopted, therefore, the same usage 22 The speech was prepared with the assistance of Thompson and counsel for the Respondent For some reason that is not clear, the speech was sometimes referred to as a "letter" but the context makes the meaning clear 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's general superintendent in the presence of all the dyehouse employees in effect expressed his conviction that they had not been doing their jobs satisfactorily; in other words, that they had been discharged for just cause. When the Trial Ex- aminer found that Goodson, Fields, and Underwood had been discharged because of their union activities, the Respondent had a choice between accepting his findings, or taking exceptions to them, and subsequently availing itself of whatever legal remedies could be invoked to attempt to set them aside. It could not, however, both eat its cake and have it, too, which in this case meant proclaiming its innocence at the same time that it decided not to resist the findings. Moreover, Koppen was proclaiming the Respondent 's innocence at the very same time that he was engaging in the further unfair labor practice of declaring not only its unalterable opposition to the union but that none of its employees who joined the union would ever get any advantage of any sort out of it. This was in effect a declaration in advance that the Respondent was opposed to collective bargaining, and would never grant any benefits to any of its employees as a result of it. In announcing that the Re- spondent would oppose the union only "by every proper means," he was contra- dicting the announcement in the same breath that he was making it. One of the things that had been emphasized to Underwood and Fields upon their reinstatement was the importance of obeying all company rules. On or about May 19, 1960, which was about a month after their reinstatement, Underwood was summoned to Superintendent Charles Eyeler's office to account for an alleged infraction of a company rule. Among those present on this occasion were also Robert Bridges, his foreman, and Thompson. The two persons who testified in de- tail concerning what was said at this meeting are Thompson and Underwood but their accounts are markedly divergent. Thompson testified that the subject of the meeting was "Mr. Underwood's note- taking activities in the plant," and summarized what was said to him as follows: Mr. Underwood was told that notetaking of processing instructions and so on was not permissible, and could result in discharge. He was also read to him [sic] that portion of Mr. Koppen's speech pertaining to taking notes of process- ing instructions. He was also specifically informed that other notetaking was permissible, and then Mr. Underwood was, shall we say, chewed out for the number of re-dyes that he had been running in his job, and for the Trial Exam- iner's benefit, a re-dye is a remaking of dyeing operations that we have. [Em- phasis supplied.] Asked who the person was who had read to Underwood from Koppen's speech, Thompson testified that he was not sure "whether I did or whether Mr. Eyeler did." He revealed further in his testimony that it was Bridges, Underwood's foreman, who had taken him to task about his redyeing, and he added: "Mr. Underwood is a good machine operator, and his re-dyes were excessive, and it was rather surprising." Thompson also maintained that he knew nothing about Underwood's note-taking prior to the meeting, and that it was Eyeler who told him about it. Thompson's testi- mony with respect to this was as follows: Mr. Eyeler asked did I know about it, and explained to me that Mr Bridges had told him that he had heard from some other source about Mr. Underwood's taking notes and creating pandemonium in the department, by having employees constantly running to Underwood with messages and so on,23 which in turn is getting them away from their jobs, and interfering with Underwood's work, and possibly had a darned good connection with the number of re-dyes that Mr. Underwood is running. All of this testimony by Thompson was given during his direct examination by the attorney for the General Counsel. A day later when he was testifying on behalf of the Respondent he added some further details and contradicted his testimony of the day before in at least one significant respect. He testified that it was Eyeler who had talked to Underwood about his note-taking, and that "Mr Underwood was very fractious or facetious in this meeting, and he acted like he did not know what process- ing instructions were or anything else." But now he was in no doubt concerning who it was who had read to Underwood from Koppen's speech. He now testified that after Eyeler had again patiently explained what they meant by processing in- structions "to reemphasize that, I read the excerpt from the exhibit here, Mr. Kop- pen's speech. . . Thompson was not asked by his own counsel whether Eyeler had specifically told Underwood that note-taking not involving processing instructions was permissible. Thompson was simply asked: "Was anything said to him by you, 28 Thompson characterized these employees as "quite a few" ; among those he named were three employees in the dyehouse who were known union adherents THREADS, INCORPORATED 463 Bridges, or Eyeler, about not taking any other types of notes?" and he replied, "There was nothing said about not taking any other kinds of notes." In giving an account during his direct testimony of what was said at the meeting, Underwood maintained that when he entered Eyeler's office Thompson rose and closed the door, and that when, after being told that "records of certain types are not allowed," he asked for an example, Eyeler explained: "Well, the yarn quality, dye processes, length of running time, comings and goings to and from the department, some employees, from the water house, et cetera.. . It was at this point, accord- ing to Underwood, that Thompson intervened in the conversation, and calling his attention to Koppen's speech, read him the extract about the processing instructions, and added: "Now if the keeping of such records continues, you as well as the ones who might be giving you this information can expect some form of further action." Underwood asked Thompson "what he meant by further action," and the latter replied, "That depends." During his cross-examination, Underwood admitted that he kept on taking notes even after the meeting in Eyelet's office, and that he continued to receive reports from other employees but he explained that he regarded what he was told at the interview as "designed to break the union" or else as part of "a scheme to fire us," and that he felt that the note-taking was "the only defense we had." He also contended that the notes which he had taken prior to his discharge for similar reasons were records of faulty machines rather than of dyeing operations, and that no competitor could have made "heads or tails" out of them.24 Insofar as the testimony of Thompson and Underwood with respect to the meeting in Eyeler's office are divergent, I credit Underwood's testimony. Thus, I am con- vinced that the Respondent's executives present at the meeting did not confine the discussion with Underwood to the taking of notes concerning confidential informa- tion, such as processing instructions, but also brought up the subject of taking notes on the comings and goings of employees, and warned him against the taking of any such notes. Nevertheless, I do not believe that the allegation of the complaint that the Respondent promulgated and enforced a rule prohibiting personal note-taking of any kind has been established. Certainly there is nothing in Koppen's speech to the dyehouse employees on April 21, 1960, that deals in any way with personal note- taking by employees, and so far as the meeting on or about May 19, 1960, is con- cerned, while Underwood was warned also against personal note-taking, the warning does not appear to have been communicated directly to any other employees, and did not constitute, therefore, the promulgation of any general rule. Nevertheless, the interrogation of Underwood, which went beyond the discussion of the subject of processing instructions-this in itself would have been legitimate-and the warning against personal note-taking that was given to Underwood in the course of this discussion, was an act of interference with his rights, and constituted an unfair labor practice, especially under the circumstances of the present case. It was the recognized practice in the dyehouse for the employees to take breaks of as much as 15 minutes in an hour when they had nothing to do in connection with their machines, such as adding formula, putting the machine into operation, or taking warps out of the machine, and the break was consistent with the scheduled 'running time of the machine.25 During these breaks, employees could smoke, take a drink, eat, or talk. It is apparent, therefore, that personal note-taking during working hours would not necessarily interfere with the duties of the employees. The interrogation of Underwood with respect to his note-taking looms particularly large when it is considered that it was followed by the discharge of Fields on May 20 "for being away from his job too much," as Thompson put it. At the time of his discharge, Fields had been in the employ of the Respondent for about 7 years. I accept Fields' testimony with respect to the circumstances of his discharge. Almost from the moment of his reinstatement, Fields was put under surveillance by Robert Bridges, his foreman, who would sit down within 5 feet of his machine and 24 Counsel for the Respondent contended at the present hearing that Underwood prior to his discharge "had some three or four hundred pages devoted almost entirely to the processing instructions, and formulas, how long it took to bring a machine up to heat, how long you kept it, what change you made in it, et cetera, and when it was taken out," and requested that I take "judicial notice of that testimony " That testimony indicates that counsel for the Respondent was exaggerating both the extent of Under- wood's notetaking and the usefulness which it would have to anyone else While Underwood's notes were voluminous, they did not run to 300 or 400 pages but to 249 pages Counsel so stipulated after the pages had been counted by Koppen and Thompson While Underwood took down the numbers of the dyeing formulas for identification purposes, the formulas themselves were not recorded as This is not disputed Indeed, it was so stipulated on behalf of the General Counsel and counsel for the Respondent. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watch him for 15 or 20 minutes at a time. He was also watched by Neal McGuire,. the foreman on the first shift,26 and by Eyeler, who would come into the dyehouse, and place himself some 25 or 30 feet away from Fields' machines. On the day of his discharge, Fields had just put into his machine a hank that had 20 minutes to run, and his other machine was caught up to 30 minutes. Consequently, he accepted the sug- gestion of Homer Sosebee, a fellow employee, that they go out for a smoke, and the two of them walked to a point only 3 or 4 feet outside the door from which Fields. could see his machines. There they were joined by Teague, and after 5 to 10 minutes. Fields and Sosebee started to return to their jobs but when Fields had gotten nearly to his machines, Bridges met him and said to him: "Looks like I am going to have to let you go again." Fields asked him "What for this time?", and Bridges replied,. "Well you are staying away from your job too much." Fields protested, "Well, you can check my production, you can check your charts and see that my machines have been running exactly right." Bridges told him, however, "I am not talking about your production, your production is all right. You are just staying away from your job too long." When Fields had gone out for a smoke, it was only the second break that he had taken since coming to work at 3 p.m. He had taken his first break to eat his lunch, but he had eaten it at his machines. As he explained it, he had taken fewer breaks since his reinstatement than he had taken theretofore "because I knew they was watching me, and I knew what Mr. Thompson said, and I figured they would do, what they had said they would do." Moreover, he had not been warned by Bridges, prior to his discharge, that he was staying away from his job too much. The follow- ing morning Fields went to see Thompson and to suggest that he check his production but he received the same comment from Thompson as he had received from Bridges, namely, that the question was not his production but his staying away from his job too much, and Thompson added: "We have to take Bridges' word for it." As Fields left his office, he said to Thompson "You are going to do what you said you'd do." When Thompson asked "What was that?", Fields replied, "You said you would fire, me and Underwood if we came back in, and it looks like that is what you are doing, it looks like." Thereupon Fields left and went home. Teague and Sosebee, who were both adherents of the Union, were called to cor- roborate Fields' testimony, and they testified that the time they spent in smoking had not exceeded 10 minutes. In addition, they testified that they had observed a difference in the manner in which Bridges and McGuire subjected Fields to super- vision after he had returned to work. A disproportionate amount of the testimony at the hearing is devoted, indeed, to, this question. Many of the supervi ory employees of the Respondent, most of whom were obviously too busy to be able to watch the employees in the dyehouse at work, testified that they observed no change in the nature or extent of the super- vision there. At least five or six nonsupervisory employees in the dyehouse who, were called by the Respondent gave testimony to the same effect. I do not credit the testimony of these witnesses. The most important of the witnesses who were supervisory employees is, of course, Bridges, since he was primarily reponsible for supervising Fields' work. In testifying at the prior hearing with respect to Fields" discharge, he admitted that he had kept him under observation for 3 days before discharging him discriminatorily, and it is, therefore, not surprising that he should have done so again. As for the nonsupervisory employees who testified that they- observed no change in Bridges' supervisory activities, if they were really engaged' in watching Fields and Bridges to the extent that is implicit in their testimony, they should themselves have been discharged for neglecting their work. Moreover, it appears that the majority of them were related by marriage to supervisory employees of the Respondent,27 or were otherwise shown to have had an interest which would bias them in favor of the Respondent. In any event, the question whether Bridges watched Fields more closely after his reinstatement than before is of relatively minor importance. Even if I were to as- sume that Thompson's threats had made Fields so apprehensive that he thought that he was being subjected to undue surveillance, although there was no real basis for his impressions, it would not necessarily establish that his subsequent discharge was nondiscriminatory. The crucial question is whether Bridges had a valid reason for discharging Fields. According to Bridges, Fields "was gone three times as much as anybody else in the plant," and he had occasion to warn him about this twice before his discharge, the first warning being given to him the Tuesday following the Thursday that he 26The hours of McGuire and Bridges overlapped from 2 30 to 5 p.m 21 Thus, Robert L. Costner is a brother-in-law of Henry Moore, the foreman of the third shift, and David Roy Fronenberger is a brother-in-law of Bridges. THREADS, INCORPORATED 465, was reinstated, and the second some 3 or 4 days later.28 But Bridges provided no, particulars concerning the absences of Fields that had occasioned his supposed warn- ings, except that there had been improvement in Fields' behavior for a period of from 3 to S days, and in testifying with respect to the immediate circumstances of Fields' discharge, he supplied details that are not entirely reconcilable with the. the testimony of Fields, Sosebee, and Teague. Bridges, who surprisingly, kept no. notes on Fields' alleged absences from his job, estimated that the total time involved in his absences before his discharge was about 35 minutes, but this period of absence was not Continuous. Technically, therefore, Fields did not exceed the cus- tomary time limit on each break by more than a few minutes. Moreover, it is not established that there was a clear limitation on the number of breaks that might be, taken by an employee within a single hour. Thompson, basing himself on reports received after Fields' discharge, gave an even more horrendous account of Fields' alleged absences from his machines than Budges. He not only testified that Fields was absent twice as much as any other employee in the department-this would be the most difficult of all estimates to make without some form of note-taking-but also that he was away no less than 40. minutes in the hour, and that this occurred "quite frequently" over a period of "several weeks." This, if true, would mean that Fields' absences began from the, moment of his reinstatement to the moment of his discharge, since he was dis- charged after working only several weeks, and that he engaged in this alleged mis- conduct during all this time, quite heedless of Koppen's and Thompson's warnings prior to his reinstatement that every employee must behave. Thompson's testimony does not allow even for the period of good behavior conceded by Bridges to Fields, in his testimony. If, indeed, Fields was absenting himself from his machines as. frequently and as continuously as Thompson testified, and if the Respondent's super- visors attached importance to the desirability of sticking to the machines, the. wonder grows that Bridges did not discharge Fields even sooner than he did It is also of some significance in this connection that, although Bridges claimed that he warned Fields twice before his discharge that he was staying away from his job too much, Thompson could not recall whether Bridges in discussing Fields' case with him had told him that he had reprimanded Fields prior to his discharge. Thomp- son's inability to recall this becomes even more significant in view of his ability to. recall without any difficulty that McGuire had told him that he had reprimanded Bell several times for being away from his job. Generally speaking, it is difficult to perceive why the dyehouse foremen, unless. they were keeping a particular employee under surveillance, would take any notice of the absences of employees from their machines when such absences were per- missible for a quarter of an hour at a time. Even Bridges did not claim that Fields' allegedly excessive breaks had resulted in any damage, and he admitted that he did not check Fields' charts when he fired him. It is not shown, moreover, that Fields was doing anything during his breaks that was improper, prohibited, or discreditable in itself. The Respondent called, to be sure, a considerable number of witnesses 29 to establish that Fields was guilty of the grave dereliction of going on occasion to the water fountain in the mercerizing department for drinks rather than to the foun- tain in the dyehouse itself, where the temperature was extremely high, ranging from 95' to 110'. The differences in the distance from Fields' machines to the respective water fountains was shown to be so small 30 that the absurdity of this whole issue becomes manifest. Moreover, some of the Respondent's own witnesses were shown to have refreshed themselves from the water fountain in the mercerizing room, not to mention another fountain in the bleachhouse. None other than Bridges himself conceded that he never did "get on" to Fields about going to the merceriz- ing department, because he did not see him do this, although he had heard about it. The Respondent's foremen did not apply the same standards of faultless behavior, apparently, to all of their employees, or else they were not interested in checking on them to the same extent as in the case of Fields. One employee, J. C. Jones, who was among the Respondent's nonsupervisory witnesses, when asked on cross- examination how many breaks he took, confessed "I take more than I ought to''; and also that sometimes he took three or four in an hour. On the very day of zs Thus the first warning would have been on April 26, 5 days after Fields' reinstate- ment, and the second on April 29 or 30. ° They were the same nonsupervisory employees who had testified on the issue of surveillance. 80 Koppen, who measured the distances, testified that it was about 64 feet from Fields' machines to the dyehouse water fountain, while it was about 112 to 115 feet from ilia machines to the water fountain in the mercerizing department. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fields' discharge, Costner, the brother-in-slaw of Moore, the third shift foreman, took some rather liberal breaks without incurring even Bridges ' displeasure. He left his machines at 6:06 p .m. and did not return until 6 : 23 p.m. When Costner returned, moreover, Bridges was standing back of his machines. At 6:37 p.m. Cost- ner left again and did not return until 7 p.m. when he was seen with Bridges. During this period Costner was also gone several times for periods of about 5 min- utes in order to take smokes . Another second-shift employee, Guy Forrest Aber- nathy, who was subsequently promoted to the drugroom , a job for which he received an increase in pay, also took some liberal breaks on the day of Fields' discharge. He left at 7:10 p .m. to go to the waterhouse , and returned at 7:19 p.m. He left at 7:25 p.m. and did not return until 7:40 p .m., but during this period he was in the office talking to Bridges (the subject of the conversation is not established). From 9:30 to 10:05 p.m. Abernathy went to the other side of the dyeroom and sat there with Costner. Despite the Respondent's previous unfair labor practices, it did not, of course, lose the right to discharge employees for just cause. But, of all the reasons, which ,its supervisors could have assigned for discharging Fields, surely the flimsiest was the one actually chosen by Bridges. That he was himself aware of this is certainly indicated by his own action in connection with his first discharge of Fields on August 26, 1959. Although Fields was then allegedly staying away from his ma- chine practically all the time, contrary to Bridges' repeated instructions , he did not fire Fields for this reason alone but also for the reason that he had been running his machines overtime. Similarly, when he had fired Underwood on the same day it was allegedly because he was allowing certain processes to run too long and because he was staying away from his machines too much. In the present case , Bridges testified that he had fired an employee by the name of Ellis Barker about 31/2 years before the hearing "for staying off his job and letting his machines run" [emphasis supplied] and McGuire testified that in the last 2 years he had not fired anyone but Bell, the other dischargee in the present case, for staying away from his job too much. In the present case, Fields was discharged at a time when he was not taking an excessively long break , and a time when his machines did not require his attention. In view of all the evidence, I must conclude that the discharge of Fields for tak- ing allegedly longer breaks than other employees was simply a pretext for carrying out Thompson's threat to Fields that he would get rid of him again if he should insist on being reinstated. It is true that the Respondent did not carry out Thompson's threat so far as Underwood is concerned and that he continues to be employed by the Respondent. This is, however, far less puzzling than it seems. Thompson testified that the reason for Underwood's continued employment was that he "was staying on his job," and did not misbehave like Fields and Bell, but this explanation is hardly con- sistent with the interrogation of Underwood concerning his note-taking . Indeed, the Respondent attempted to show that, with other employees coming to him con- stantly with information , he must have been neglecting his work and creating pan- demonium in the dyehouse. Moreover, the fact that he was supposedly running an excessive number of redyes would have furnished a plausible reason for discharg- ing him even if he were staying on his job. It seems to me that there were several reasons why Underwood was not discharged. In the first place, the very fact that he had been subjected to prior interrogation increased the risk of any further puni- tive action against him in the near future. In the second place, the Respondent had learned from past experience with him that Underwood , with his qualities of fore- thought, alertness, and leadership was a formidable antagonist. In the third place, to have fired him, as well as Fields , would have established simply too pat a case. Although the Respondent did not discharge Underwood , it did discharge a second employee for precisely the same reason as Fields. This second employee was Wil- liam F. Bell, who was discharged by McGuire , his foreman on May 31, 1960. Bell had testified on behalf of the General Counsel in the previous hearing that had re- sulted in the reinstatement of Fields and Underwood , and his support of the Union was well known to the Respondent's executives. The circumstances of Bell's discharge were very similar to those in the case of Fields. After coming to work on May 31, at 3 p.m., Bell took his first break at 4:15 p.m., and had a smoke. At 5:30 p.m., he took a break in order to eat a sand- wich . He did not take another break until about 7:15 p.m . When he came back, McGuire stopped him and told him he was "riding a free horse to death ," and that he would have to let him go. Before his last break , Bell had sampled his machines, and when he was discharged , they still had 15 minutes to run. The next morning Bell saw Thompson, and encountered the same unsympathetic attitude as the latter had manifested toward Fields. Bell told Thompson his story but Thompson told him THREADS, INCORPORATED 467 that he would have to take his foreman's word for it, although in some cases em- ployees had been reinstated by him. Underwood testified that just before Bell's discharge, Bell had finished off a sample, and gone to the office; that he then went out for a smoke, and was discharged by McGuire a few minutes later; and that when after Bell's discharge he examined his machine it showed no more than 5 minutes running time. In testifying with respect to the discharge of Bell, McGuire related a number of difficulties that he had had with Bell in the period prior to his discharge. On March 10, 1960, Bell messed up a warp by pouring the wrong dye into his machine. Mc- Guire told him then that "he would have to stay around his machine more," and that if he did not, they would have to put someone else in his place. According to McGuire, Bell "got right mad and walked off." On April 19, McGuire also testified, he noticed that Bell was not at his machine, and when he checked on him, he noticed that he spent only 20 minutes out of the hour at his machine, having taken four separate breaks during the hour. McGuire told Bell that he was warning him for the last time. Bell got mad again but for a while he stayed around his machines. On the night of his discharge, it looked to McGuire as if Bell was taking advantage of him again by spending 40 minutes out of the hour away from his machines in order to take four separate breaks during the hour. McGuire testified: "I caught him, coming back in the last time, and I said, `Bell, didn't I tell you if you didn't stay around your machine more, I would have to put somebody else on them?' and he said, `Yes but that was a month or so ago,' and I said, `Well, that still goes.' So I discharged him." Bridges, who at certain times also supervised Bell's work, also testified that Bell was "awfully careless about his work," and "he wasn't good at staying with the ma- chines," and that he had had to reprimand him "once or twice," the first reprimand being administered 4 to 6 weeks prior to Bell's discharge, and the second the very night of Field's discharge. Bridges also testified that he had reported these repri- mands to McGuire. The case of Bell is so similar to that of Fields that it does not require extended analysis. There are, of course, some differences in the evidence but they are not too significant. So far as the degree of surveillance is concerned, McGuire clearly appears to have watched Bell more intensively than Bridges watched Fields. This greater watchfulness supplied him with what seemed to him, and to some extent was, better information concerning Bell's derelictions. Thus, it is true that on March 10 Bell did mess up a warp by pouring a wrong dye into his machine. But, much to the subsequent regret of the Respondent's executives, he was not fired for this mistake, which was the sort of mistake which was not too uncommon in the dyehouse In any event, it is apparent that pouring in a wrong dye is wholly unrelated to staying at the machine., I also credit McGuire's testimony to the extent of believing that at least one occasion prior to his discharge, he warned Bell about being away from his machines. Indeed, Bell himself testified that on April 25, which would be 4 days after the reinstatement of Fields and Underwood, he was talked to by Thompson, in the presence of Bridges, about his taking excessive breaks. Nevertheless, as in the case of Fields, Bell's breaks caused no damage, were not continuous, and were made the pretext for his discharge at a time when he had not taken an excessively long break, and his machines still had a considerable time to run. In the case of Bell, it is, moreover, established even more clearly than in the case of Fields, that at the time he was discharged by McGuire, the foreman did not even bother to ask him where he had been. For all that appears to the contrary, he may have left his machines on a perfectly legitimate errand connected with his duties, such as going to the office, or elsewhere. If it is indeed true that Bell, as well as other union employees, were away from their machines, after the reinstatement of Bell and Underwood, more frequently than in the past, it is apparent that the Respondent's executives were themselves re- sponsible for this situation. Having committed a whole series of unfair labor prac- tices in the recent past, including the discriminatory discharge of employees, and having threatened reprisals against the reinstated employees, they were hardly in a position to discharge employees for taking legitimate defensive measures , such as conferring with each other during breaks, and taking notes on what was going on in the dyehouse for use if further discharges should take place. As already related Underwood was the master note-taker in the dyehouse. There was, however, a second note-taker in the dyehouse, and he was none other than Bell. The findings with respect to the breaks taken by Costner and Abernathy are based on' Bell's notes . Moreover, Costner knew that Bell and Underwood were taking notes, and he could hardly have failed to mention this interesting fact to his brother-in-law who was the foreman on the third shift. McGuire admitted that he 614913-62-vol. 132-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had seen Underwood taking notes , and receiving reports from other employees, and it was this no doubt that had led to Underwood 's interrogation. Bell's note-taking took place subsequently, and it could hardly have failed to come to the attention of the Respondent's executives. Nothing could have been more inimical to their plans than this note-taking , and when Bell not only became a note -taker, in addition to Underwood, but also took notes on the very day of Fields' discharge, he courted the same fate. In Bell's role as a note-taker is to be found the reason for his discharge. I see no need to make specific findings on the allegations of the complaint that the Respondent also violated Section 8(a) (4) of the Act in discharging Underwood and Fields. Such allegations are really surplusage in all cases where witnesses are also union members, or have engaged in union activities. The remedy is the same, more- over, whether Section 8(a) (3) or Section 8(a) (4) has been violated. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in section III, above, of this report, occur- ring 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 obstructing commerce and the free flow of commerce. V. THE REMEDY As the Respondent has persistently violated the provisions of the Act in many respects, I shall recommend a broad form of cease and desist order, designed not only to prevent the repetition of the specific acts of interference, restraint, and coer- cion of which it has been shown to be guilty in the present case but also to effectuate all the guarantees of Section 7 of the Act. As the Respondent negotiated privately with James Goodson to induce him to waive his right to reinstatement, and his waiver of reinstatement is not binding on the Board, and as such waiver of reinstatement was obtained moreover by coercive means, I should have recommended that the Respondent offer to reinstate him to his former position. However in view of his conduct in offering information to an executive of the Respondent concerning the preparation of the General Counsel's case, I do not believe that it would be consonant with public policy or that it would effectuate the policies of the Act to make such a recommendation, and I shall refrain from doing so. So far as affirmative relief is concerned, I shall recommend that the Respondent offer to Leonard Fields and William F. Bell full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing, if necessary, any employees who may have been hired to replace them. I shall also recommend that each of them be made whole for any loss of earnings he may have suffered because of the Respondent's discrimination against him by the payment to him of a sum of money which he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less interim earnings during such period, the backpay to be computed on a quarterly basis as specified by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, 291-294. Prior to offering to reinstate these discriminatorily discharged employees, the Respondent shall refrain from attempting in any manner or by any means to induce them to waive their rights to reinstatement. If the dis- criminatorily discharged employees accept the Respondent's offers of reinstatement, they shall be reinstated without requiring them to fill out and sign any forms that are not also required of the employees already in the Respondent's employ, and also without making any speeches to -them, or subjecting them to any other form of ceremonial upon their reinstatement. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By attempting to induce employees who had previously been discriminatorily discharged by the Respondent to waive their rights to reinstatement, and by making such attempts coercively and without participation of Board agents; by subjecting such discriminatorily discharged employees to surveillance with respect to their legiti- mate activities during their working hours; by proclaiming to its employees that there would never be a union in the plant, and that they would never derive any MUELLER INDUSTRIES, INC. & MIDWESTERN FOUNDRIES, -INC. 469 advantage from joining a union; and by interrogating one of 'its employees concern- ing his personal note-taking on subjects of a nonconfidential nature the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Leonard Fields and William F. Bell, the Respondent has violated Section 8 (a)(3) of the Act. [Recommendations omitted from publication.] Mueller Industries, Inc. and Midwestern Foundries, Inc.,' Peti- tioner and Local No. 6, International Molders and Foundry Workers Union of North America, AFL-CIO .2 Case No. 13- RM-563. July 26, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William D. Boet- ticher, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. Upon the entire record in this case, the Board finds : 1. Mueller Industries, Inc., herein referred to as Mueller, operates two foundries, one in Bluffton, Indiana, and the other in Milwaukee, a machine shop in Aurora, Illinois, and a pattern shop, Central Pat- tern Shop Division, herein referred to as Central, in South Milwau- kee. Midwestern Foundries, Inc., herein referred to as Midwestern, is an affiliate of Mueller, and operates two foundries, one in Garrett, Indiana, and the other in South Milwaukee, on the -same premises as Central. The foundry in South Milwaukee is operated under the name of Badger Malleable & Manufacturing Company, herein re- ferred to as Badger. Mueller and Midwestern are both Indiana cor- porations, and the principal stockholder of both is Arthur E. A. Mueller. They also have the same president and the same director of industrial relations, who determines labor relations policy for both. In view of the common principal stockholder, control, and labor relations policy, we find that Mueller and Midwestern consti- tute a single employer.3 We find that the Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 1 The name of the Employer has been amended in accord with the evidence s The name of the Union appears as corrected at the hearing. ' See Field Paper Box Co., 130 NLRB 22. 132 NLRB No. 31.