United Wire and Supply Corp.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. VARGEO, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office (614 National Newark Building, 744 Broad Street, Newark, New Jersey ; Telephone Number MAiket 4-6151 ) if they have any question concerning this notice or compliance with its provisions. United Wire and Supply Corporation and United Steelworkers of America, AFL-CIO. Case No. 1-CA-3474. May 1, 1962 DECISION AND ORDER On February 27, 1962, Trial Examiner Eugene E. Dixon 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 Intermediate Report attached hereto. Thereafter, exceptions to the Intermediate Report and supporting briefs were filed by the Respondent and the General. Counsel. 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-member panel [Members Leedom, Fanning, 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 Inter- mediate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings,' conclusions, and recommendations of the 'Trial Examiner with the exceptions and modifications herein noted. Contrary to the Trial Examiner,2 we do not find that the Respondent demoted and constructively discharged Subforeman Adams because of his failure or refusal to follow orders and engage in the unlawful ,surveillance of employee Squillante. Upon the entire record, we are not satisfied that the General Counsel has established by a preponderance of the evidence that Adams was 1 The General Counsel excepted to the Trial Examiner's failure to find that Supervisor Rogers unlawfully interrogated employee Martin on May 15, 1961 , and that Supervisor •Canario unlawfully threatened employee Squillante on May 22, 1961 . These exceptions appear to raise issues of credibility which were not resolved by the Trial Examiner. In view thereof, and as the resolution of these issues would not affect the Order, we make no 'findings of these matters. ' Member Brown would affirm the Trial Examiner's findings and conclusions that Respondent violated Section 8(a) (1) of the Act respecting Adams. He accordingly does not join the majority's reversal in this regard. 137 NLRB No. 2. UNITED WIRE AND SUPPLY CORPORATION 9 selected for demotion for a discriminatory reason. The reorganiza- tion and consolidation of departments which required Respondent to choose between Canario and Adams were, in the words of the Trial Examiner, "made in good faith and had no connection with the union campaign." When Adams was demoted, three other supervisors were also demoted, two of whom had more seniority as supervisors than Adams. The Respondent testified that the principal reason for se- lecting Canario rather than Adams was Canario's greater skill and experience with the machinery in the two departments. This testi- mony stands uncontradicted. Another reason assigned by Respondent for selecting Canario over Adams was Adams' inability to maintain satisfactory relations with several men working under him. The Trial Examiner viewed this reason as suspect because Adams had never been disciplined or demoted for this deficiency. However, the record discloses that Burdon had occasion to discuss Adams' personnel problems with him. And while the Respondent may not have viewed Adams' relations with employees as so unsatisfactory as to warrant a demotion or disciplinary action, its consideration of that factor, when forced to choose between Adams and another in the course of a legiti- mate reorganization, is natural and understandable. We therefore do not adopt the aforesaid finding of the Trial Examiner. Accord- ingly, we shall dismiss the complaint insofar as it pertains to the demotion of Adams. Cf. Southwest Shoe Exchange Company, 136 NLRB 247. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Wire and Supply Corporation, Cranston, Rhode Island, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees by in- terrogating them about their union activities or ideas, threatening them with reprisals therefor, keeping their union activities under sur- veillance or creating such an impression, restraining or discontinuing their normal duties or activities because of their union activities or sympathies, preventing them from engaging in union solicitation or discussion on Respondent's premises on their free and nonworking time. (b) In any like or related manner interfering with, restraining,, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Cranston, Rhode Island, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Company's authorized representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other materials. In view of the extensive antiunion pamphleteering engaged in by Respondent and its practices of keeping its employees informed in such manner on matters of mutual interest, it is further ordered that copies of said notice similarly signed also be distributed individually to Respondent's employees either by mail or by inclusion with their pay. (b) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Decision and Order, what steps the Company has taken to comply herewith. It is further ordered that the complaint, insofar as it alleges that the Respondent violated the Act by unlawfully discriminating against Supervisor Steven Adams, be, and the same is, hereby dismissed. ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : NE WILL NOT interfere with, restrain, or coerce our einp]oyees by interrogating them about their union activities or ideas, threaten them with reprisals therefor, keep their union activities under surveillance or create such an impression, restrain or dis- continue their normal duties or activities because of their union activities or sympathies, prevent them from engaging in union UNITED WIRE AND SUPPLY CORPORATION 11 solicitation or discussion on Respondent's premises on their free and nonworking time. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. UNITED WIRE AND SUPPLY CORPORATION, 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. Employees may communicate directly with the Board's Regional Office (24 School Street, Boston 8, Massachusetts; Telephone Number, LAfayette 3-8100) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed May 15 , 1961 , on behalf of United Steelworkers of America, AFL-CIO, herein called the Union or the Charging Party, against United Wire and Supply Corporation , herein called the Company or the Respondent, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, issued a complaint on July 28, 1961 , alleging that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. The complaint in substance alleged that Respondent on various dates and by various named supervisors ( 1) interrogated employees about their union activity, (2) kept under surveillance the employees' union activities , ( 3) threatened employees with discharges and reprisals if they joined the Union, (4) harassed employees by following them around the plant and holding them up to ridicule because of their union activities, (5) prohibited union solicitation on company premises at any time, (6) created the impression among the employees that their union activities were under surveillance , ( 7) relieved its employees of customary duties and restricted their movements in the plant because of their union activities , ( 8) took disciplinary action against certain employees because of their union activities , and (9 ) demoted or discharged a supervisor, Steven Adams, because of his failure or refusal to engage in 8(l) conduct against an employee. In its duly filed answer the Respondent denied the commission of any unfair labor practices. A hearing on the matter was held in Providence , Rhode Island, before Eugene E. Dixon, the duly designated Trial Examiner, on various dates between August 7 and November 15, 1961. All parties were represented by counsel and were afforded full opportunity to examine and cross-examine witnesses , to introduce evidence, to present oral argument , and thereafter to file briefs as well as proposed findings of fact and conclusions of law. Briefs have been received from all parties. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Rhode Island corporation with its principal office and place of business in the city of Cranston, Rhode Island, where it is engaged in the manu- facture, sale, and distribution of copper, brass, and aluminum tubing and wire and silver-brass alloys, and related products. In the course and conduct of its business Repondent causes large quantities of copper, brass, aluminum, and silver used by it in the manufacture of tubing, wire, and alloys to be purchased and transported in interstate commerce from and to various States of the United States other than the State of Rhode Island, and causes substantial quantities of tubing, wire, and alloys to be sold and transported from its Cranston plant in interstate commerce to States of the United States other than the State of Rhode Island. Respondent annually receives materials at the Cranston plant having a value in excess of $50,000 directly from points outside the State of Rhode Island and ships its finished products having an annual value in excess of $50,000 from its Cranston plant directly to points outside the State of Rhode Island. I find that Respondent is engaged in commerce and that it is within the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES In May 1959 the Union began an organizing campaign at Respondent's Cranston plant. After a period of handbilling and some initial contacts with employees, a meeting was arranged at the home of Hugh McDonald, one of the employees. This took place on November 11, 1960. A second meeting, also at McDonald's house, was held on November 26. Thereafter, meetings were held on various dates at the American Legion Hall in Cranston and the union hall in Providence. All of these meetings were attended by a group of 9 or 10 employees. At a meeting on April 16 or 17 an organizing committee of five employees was selected, composed of Frederick S. Zubyk, Almanzor M. Martin, Hugh J. McDonald, James J. Hart, and Pompeii A. Francese. Beginning in the fall of 1960, almost simultaneously with the first union meeting, Respondent's general manager, F. W. Sullivan, began a prolific antiunion circulari- zation program directed at the employees.' From November 1, 1960, through August 4, 1961, at least 29 communications were transmitted to the employees. These bulletins on occasion described in detail what went on at union meetings and the number of employees attending? They often contradicted or denied positions taken by the Union regarding Respondent's employment policies and took vigorous exceptions to what were described as libelous and untrue personal attacks against Sullivan. Almost invariably these communications (at least up to May 15 when the first charge was filed) 3 referred to the union supporters as agitators (usually set forth in upper case letters) and generally described their union activity as "under- ground" and "subversive" and their purpose as being to "stir up" or "foment" hatred, distrust, and unrest.4 Invariably, Respondent's bulletins closed with a suggestion 1 The circularizing of its employees about matters of mutual Interest was an old prac- tice with Respondent 2 The bulletins of November 30, December 21, and April 21 did so. 3Theie is a noticeable change of tone evident in Respondent commnnicafions after charges were filed. 4 For example, in his November 15 bulletin Sullivan said We have reasons to believe that a few discontented, trouble-making employees are agitating and "needling" their fellow employees to foment dissatisfaction, dis- trust, and unrest in our organization . . . We do not know, definitely, if these INSIDE AGITATORS are working under the direction of the OUTSIDE AGITATORS, but we suspect that they are Why else would they do their dirty work secretively, seditiously, and underground? . . . Why must a few employees be secretive, sub- versive, and seditious in stirring up unrest and dissension' That's how the COM- UNITED WIRE AND SUPPLY CORPORATION 13 that there was nothing that the Union could do for the employees that they could not themselves accomplish better and at a savings of $5 a month or more in dues. In addition to the material transmitted by these bulletins, Respondent also conveyed concise messages to the employees on a large, outdoor signboard on its property similar to those used on theater marquees. For instance there appeared such comments as "More underground dirty work. Don't attend their meetings. Don't get involved with Unions. Dirty business ... I still don't think we need a union." On occasion Sullivan would indicate by means of the marquee how many people had attended union meetings. In this context let us examine the evidence as to the specific 8(a)(1) allegations.5 Surveillance Hugh McDonald testified that on Sunday, April 17, as he and James Hart, another employee, were standing in front of the union hall at 511 Westminster Street in Providence directing people to a 2 p.m. union meeting, a car drove by very slowly, practically stopping in front of the union office. In it were two men and a child. One of the men (not the driver) was Respondent's personnel manager, Raymond Garvey. He waved to the two employees-they waved back and went inside. The next day Garvey approached McDonald and said that that "was a funny way to find out where the . union hall was" adding that he had not known where it was. McDonald said, "You know now." If there was any question about Garvey's motive and the significance of his con- duct in the above matter, it is answered by his own testimony: He admitted that he had learned of the impending meeting 2 or 3 days before it occurred. And because many employees had asked him where 511 Westminster Street was, he "thought (he) would try to find 511 Westminster Street." Accordingly, he got in his car that Sunday and about 1:45 p.m. drove by that address. On this pass, he was "un- able to exactly ascertain if that was the Union Meeting Hall or not." He drove a couple of blocks away and parked, conjecturing whether he "should go by the place again and see if [he] could locate it again" or go to the Elks Club nearby. At this point a fellow supervisor came along in a car. Garvey hailed him and prevailed upon him to give Garvey a ride up Westminster Street for the purpose of attempting again to "locate" the union hall. A few Sundays later, specifically on May 7, another union meeting was scheduled at the American Legion Hall in Cranston, Rhode Island. Again Hart and McDonald among others were standing outside the hall just prior to a 2 p in. meeting. This time, according to their undenied and credited testimony, Assistant General Man- ager Burdon drove slowly by three or four times keeping his hand to his face as if to avoid identification. MUNISTS subvert and undermine a government so they can take over control. It seems to me that anything like this tactic is un-American. .. . In his January 6 bulletin he said: We have reasons to believe that the OUTSIDE AGITATORS have instructed the INSIDE AGITATORS to practice underground subversion, to stir up hatred, distrust, dissension, and dissatisfaction, in order to gain control of our organization for the benefit of union bosses and their hirelings. Mentioning the "well-known Agitators," Sullivan questioned what they expected to get out of their union support and commented, God help the employees if some of these characters ever become stewards or local union officials with power over fellow employees. Most of you know what kind of people they are. . . . 6Section 8(a)(1) of the Act provides: (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of rights guar- anteed in Section 7 , . . . Section 7 provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to retrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3). 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no doubt and I find that the above conduct of both Garvey and Burdon was surveillance of the employees' union meetings within the meaning of Section 8(a)(1) of the Act. In this context, I also find that by describing in its bulletins what went on in union meetings and reported both in its bulletins and on its marquee the number of em- ployees who attended, Respondent created and meant to create the impression among the employees that their union activities were under surveillance-conduct also violative of Section 8(a)(1) 6 R. L. Ziegler, Inc., 129 NLRB 1211; Miller Electric Manufacturing Co., Inc., 120 NLRB 298. Other 8(a)(1) Conduct Respondent's book of "Employment Policy and Benefits," revised January 1958, provides under article IV, entitled "Causes for discharge," that (section 2, h) one cause for discharge, subject to warning procedure, is "Soliciting for any purpose on company premises." In the absence of any showing that such an all-inclusive re- striction prohibiting an employee's union solicition or activity on his own free time was necessary to the safety or efficient operation of the plant (and no such necessity was shown), I find said rule to be an encroachment in violation of Sec- tion 8 (a)( I) of the Act on the rights guaranteed the employees in Section 7 thereof. Adrian Steel Co., 130 NLRB 847; Texas Aluminum Co., Inc., 131 NLRB 443. On December 8, Frederick Zubyk, one of the prounion employees, was given a warning card for distributing " union flyers during the paid lunch period on the company's premises" in violation of the above rule. That the lunch period was paid time does not absolve Respondent from a further violation of Section 8(a)(1) in connection with this card. 1. F. Sales Company, 82 NLRB 137; Mid-West Metallic Products, Inc., 121 NLRB 1317; N.L.R.B. v. Essex Wire Corporation d/bla Essex Corporation of California, 245 F. 2d 589 (C.A. 9); Walton Manufacturing Company, 126 NLRB 697; The Bendix Corporation, Research Laboratories Division, 131 NLRB 599. Hugh McDonald, an employee of 22 years' standing and a member of the union organizing committee, testified as to two conversations with Assistant General Man- ager Burdon as follows: 1. December 9: Burdon sent for him to come to the extrusion press. There Burdon began his remarks with, "I was surprised to hear that you were with the Union." He further commented, "I am going to say what I have to say to you and if you wish, I will call the union downtown and tell them the same thing." When McDonald started to ask what he meant, Burdon told him "to shut up and lis- ten." He told McDonald that he was not to leave his machine for any reason "but to go to the toilet, to go to the nurse or to go upstairs for coffee." He also told him that he was not to go to the machine shop to get tools for the extrusion press which was McDonald's normal duty. He went on to say, "I got your job back when you were laid off because of lack of work, and God knows I wish I never had." He also told McDonald that the first chance he got he would discharge him if he "did anything against the United Wire booklet-" that he would "personally fire" McDonald. The interview lasted 5 or 10 minutes and McDonald apparently said little or nothing. 2. January 27: Burdon sent for him again-this time to come to the office. Bur- don took McDonald to the board of directors' room. There he asked McDonald what he "hoped to gain with the union at United Wire." McDonald said, "Per- sonally, not a thing." Burdon said, "We know who the 9 people were at the meet- ing at your house . . . and what was said about Mr. Sullivan." McDonald denied that anything was said about Sullivan in any meeting. Burdon continued, saying "that some of the fellows from the United Wire had approached him and asked him e In his bulletin of June 28 (after charges had been filed) Sullivan made the statement that he had "never asked any employee to spy on any union meeting" or to attend one; that he never knowingly intimidated , coerced, or discriminated against any employee and that whatever information he had gotten came to him unsolicited from several employees that he had known for years Even if true, the coercive effect of his prior conduct is not eliminated by such fact or by his statement. Neither Respondent's intention nor the effect of its conduct on the employees has any bearing on the lawfulness or unlawfulness of its conduct. The standard by which an employer's conduct is measured in connection with Section 8(a) (1) of the Act is whether or not it is reasonably calculated or tends to interfere with the employees' free exercise of rights guaranteed in the Act Dixie Shirt Company, Inc, 79 NLRB 127, 128, enfd 176 F. 2d 969 (C.A. 4) ; Rubin Brothers Foot- wear, Inc, et at, 91 NLRB 10, footnote 7; N.L.R.B. v. George W. Reed, 206 F. 2d 184 (C.A. 9). UNITED WIRE AND SUPPLY CORPORATION 15 why he didn't fire ... all of the men who were with the union." His answer had been that Respondent "didn't do things like that." Burdon stated, "We know who Johnny Duva and Squillante are." He further said that he had intended to call in the other people who had attended the meeting but on learning that McDonald was the leader had decided to call him in "and let it go at that." Burdon continued saying that "he had nothing personal against unions. He thought unions were all right. It was just that the people at the head of the unions . got all the money." He said he had a lot of respect for John L. Lewis; that he thought Lewis had done a fine job for the miners . He concluded his remarks by saying he would call McDonald in at a later date . He also told McDonald that the latter could tell .the Union about his remarks but that he would deny them. In his testimony, Burdon admitted mentioning the Union to McDonald and ad- mitted he might have said he knew who had attended the meeting . He also ad- mitted that he had told McDonald not to leave his press and had stopped him from getting tools, explaining that McDonald "was walking around too much" and that getting tools was the floorman 's job and that the higher paid operators like McDonald are not supposed to do it. On one occasion , he explained, he saw "McDonald as he carried tools horseplaying with another man." He thereupon told McDonald he wanted lum back in his section. He denied threatening McDonald with any discipline if he engaged in union activities. He also denied threatening to discharge McDonald the first chance he got explaining, "First of all, I have no right to fire 'a man. It is in the book, and I have to follow the policy book. Mr. Sullivan has specifically told me I am no different than any other man even though I am his assistant . We have a suspension if the man warrants suspension ." He told McDonald "that he would be treated like other employees, that this was considered a verbal warning for leaving his sec- tion, wandering and so forth ; and if he continued to break the rules and policies of our company we would turn cards into the Personnel Office as we do with other employees.. . Except for the foregoing denials, McDonald 's testimony was not controverted . For reasons which will appear, I credit McDonald. Almanzor Martin, an employee of 16 years' standing and a member of the or- ganizing committee, testified as to various conversations with supervisory personnel as follows: 1. December 9: Anthony Canario, supervisor of the aluminum mill, told Martin that he was surprised to learn that Martin was among those attending a union meet- ing. Martin asked what difference it made if he attended a meeting he had been invited to. Canario replied that the Company knew who the nine employees were that had attended the meeting and stated that it intended to make it hard for them. Martin replied that "the only way they can make it hard for me is to throw me out." Canario said, "Well, that would be hard enough." Canario in his testimony branded Martin's testimony as a lie. There is little else in the testimony of Canario than his flat denial about this incident upon which to resolve the credibility here. In view of my observation of Canario as he testified and in view of his admission else- where that he had interrogated Squillante about the latter 's union activity, I am inclined to, and do credit Martin here. 2. March 20: Burdon came to Martin at his work station and engaged him in a long conversation. It started with a discussion about Respondent 's grievance pro- cedure and why Martin had never used it. From there the conversation turned to Respondent's seniority practices and apparently how they affected job assignments and bonus earnings. Martin's position was that in general the Company's policies did not work as the Company claimed they did . He cited examples. The discussion became heated . Burdon accused Martin of calling him a liar. Martin denied it. At one point Burdon shouted and waved his finger at Martin saying, "You listen to me. From what things you have said , I gather you are a selfish inconsiderate person. You want all the seniority rules changed to suit you, and you twist words around to suit yourself." At one point Burdon said, "I see where the union has gotten to you"; at another point Burdon asked Martin what he expected to gain from a union . Martin replied that he expected to get a contract where the employees would have something to say on company policies, on seniority, grievances, arbitration , and working condi- tions. Later on Burdon said he was not antiunion ; that he thought John L. Lewis had done a great deal for the coal miners. Martin asked him if he would have that much respect for Lewis if he were "outside organizing the plant. " Burdon did not answer. 3. March 24: Burdon sent for Martin. In Burdon's office they continued their discussion of the 20th . Burdon had all the bonus records of the day shift and the second shift for the year 1959 . The discussion centered around these records. At 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one point, Burdon said he did not think the employees needed a union, but con- ceded that where employees were being exploited a union was necessary He added that unions were "good in a lot of plants." In his testimony Burdon admitted that the subject of the Union came up in these two conversations and admitted asking Martin something about what he thought he would get out of a union. He explained that he went to talk to Martin because he "could see that he had troubles." It was Burdon's purpose to talk "about the grievance procedure, seniority rules and the employment policy in general." This was part of his job. He knew that Martin was dissatisfied because his press was down and he had been used on other jobs to keep him working. Burdon asked him why he did not use the grievance procedure if he thought his assignments were unfair. There is no real conflict in the testimony of Martin and Burdon-I credit both versions. The Men's Room Incident Martin also testified that about 10 p.m. on March 28 he was in the men's room "finishing" a cup of coffee. James Hart, a fellow committee member, came in. About 5 minutes later Andrew Squillante, an active union supporter, came in. Besides these three there were five or six other employees in the men's room at the time. When Squillante had washed his hands, General Foreman Pontarelli came in "and [they] all just left." About a half hour later, Martin's supervisor, Canario, told the employees as a group that if there was any more loitering in the men's room warning cards would be issued.? About the same time Hart's supervisor, Subfore- man DiGennaro, according to Hart's undenied and credited testimony,8 told him, "When you go to the toilet, do what you have to do and get out. You were seen talking to Andrew Squillante and Al Martin, and I caught hell because of this instance." Hart, who was a floorman, also testified without denial and credibly that on this same day 9 he received instructions from DiGennaro that he was no longer to get coffee for the men as had been his practice for about 4 years. A machine operator, Joe Silver, took over that unofficial duty, shutting off his machine for the half hour or more that it took to fulfill the task. DiGennaro testified that Pontarelli had told him to tell Hart not to loiter in the men's room. At the same time he also told DiGennaro not to "send" Hart for coffee any more but to send somebody else explaining that "it would be for produc- tion purposes and efficiency in the department." In his testimony Pontarelli testi- fied in effect that production in that section was down "because there was no one there to load the benches." 10 (This latter was a duty of the floorman who, unlike the machine operators, was not a premium pay man.) According to Pontarelli, this was a change he should have made long before he did. He also testified that in any event, as long as he was in charge it was his prerogative to send a premium pay man to get the coffee if he wished. He further pointed out that the men can get their own coffee if they want to and that in some sections they do so; that it is not neces- sarily the floorman's job; that Squillante (a floorman ) "always has gone up because he has plenty of time to go up." It is also clear that Hart was not restricted from getting coffee for himself. The following day Hart was called to Pontarelli's office. There, the latter told him, "Kid, when I see it, I call it," and added that there was nothing personal in the warning about the men's room matter and, in effect, that all had "been told." When Hart claimed that he was the only one warned in the copper tube division, Pontarelli replied that "he assumed this was an error." 7 Respondent's rules (known by everyone as "the book") provide for a verbal warning to be followed by the issuance of a written "warning card" for a second offense This card becomes part of the employee's permanent record The warning card can be "annulled" by the foreman after at least 6 months . The accumulation of four unannulled warning cards is grounds for discharge. 8Indeed, DiGennaro's testimony in substance corroborates Hart's. DiGennaro testified that Pontarelli had told him that "he had seen Jimmy Hart and two of the other em- ployees loitering in the toilet " Pontarelli identified the other two as Martin and Squillante. 9 There is some discrepancy in the record about the date oft his incident. Since there is no doubt that it occurred the date is immaterial. iB In this connection Hart testified that if anyone ran out of material while he was getting coffee the section hand "might" fill in for him In any event, Hart tried to take care of everything before he went for coffee. There was a standing rule that the three cleaning men would help him load everything up before he left UNITED WIRE AND SUPPLY CORPORATION 17 There is no doubt, as indicated in the testimony of both Martin and Hart, that the whole plant was aware of a "standing rule not to loiter in the men 's room," which had been in effect many years. Squillante -testified that of the five or six other employees in the men's room on this occasion he was the only one to receive a warning from his supervisor, Canario. He also testified that he had never previously had a verbal warning. Squillante had worked for Respondent about 15 years. Canario testified that he told every man under his supervision "personally" that if they were caught loitering in the men's room "they would have a card turned in on them." According to Canario this information was meant as a verbal warning to even those of his employees who had not been involved in the men's room incident. In view of the foregoing plus Martin's testimony, I believe and find that Squillante was not the only one warned but that Canario's warning was made to the group and not individually. Squillante also testified about a conversation he had with Burdon on March 29 as follows: Burdon came to his work place and asked if he could have a few words with Squillante. The latter said, "Yes, you want me to continue working or should I stop?" Burdon said, "Stop, we are not that hungry." Then Burdon began, "I would like to ask you some questions in regard to unions All this union business, what is it in particular that you don't like about the Company? Let's start with the grievance procedure , what don't you like about the grievance procedure?" Squillante replied, "Well, the procedure is very good, but I don't see the third and final step where Mr. Sullivan sits as judge and jury, and the final decision is his; the ultimate and final decision rests in his hands. His decisions cannot possibly be fair; they are bound to be in favor of the Company." Burdon said, "All right, what about seniority?" Squillante said, "Well, this company has never gone according to seniority; they have always fired anybody out of here regardless of seniority. You throw Steve Adams out of here after 27 years." When Burdon protested that Adams had quit, Squillante said, "All right, I will give you the benefit of the doubt." Burdon said, "Don't get me wrong, I think unions are very good in fact. The Coal Miners, for example, they do a beautiful job. John L. Lewis. That was a case where they definitely needed a union. The Steelworkers also, . . . they definitely needed a union. But here in United Wire I don't see wheic we need a union." Squillante said that he saw such need. Burdon said, "But unions have a tendency to go too far." Squillante said, "If it wasn't for the fact that management had gone too far in the first place, there wouldn't be a union in this country today It is people like Mr . Sullivan that force people to rebel and join a union " Burdon said, "All right. I want you to know there are no secrets between me and Mr. Sullivan; anything that I know takes place in this mill I report to Mr. Sullivan. . Squillante said, "I know that, and I believe you. That is why when he says he don't know what is going on in this building he is a liar." After some discussion about a laundry business in which Squillante is involved, Burdon asked, "In the event that the Union gets in, what part do you intend to play in the Union? Do you intend to be president?" Squillante replied, "No. As a matter of fact, when the Union does get in when we organize this place, I have insisted already I do not want to be an officer ." Burdon said, "When you get in?" Squillante replied, "Yes , we intend to organize the United Wire." Burdon said, "I hate to disagree with you; I don't think you will organize the United Wire." Burdon also told Squillante that he was fully aware of the men who were taking part in the union meetings. Squillante said, "Mr. Burdon, I don't attend secret meetings. We were down to Huey McDonald 's house to have a meeting . My car was parked right out front. If you had walked up and rang the bell, he would have let you in. I don't attend secret meetings like a communist like Mr . Sullivan says I am. I am no communist." As he left, Burdon said , "thank you very much for being frank and honest; I will see you again." The conversation lasted about 2 hours. In his testimony Burdon admitted talking to Squillante two or three times and that the subject of the Union came up in these discussions . But he claimed that the talks were not started because of the Union . His explanation was that various people had told him that Squillante and "his people" had started trouble . The sug- gestion was made that if Burdon talked to these people he might be able to "reason" with them and also find out if they had any grievances . If they had grievances it was suggested he find out why they did not use the grievance procedure and find out if they did not think the Company was "following the policy book and also the seniority rules." On cross-examination Burdon testified that the suggestions made to him about talking to Squillante and the union supporters had come from both supervisory and rank-and-file employees . Burdon testified that these people had come to him many 649856-63-voi 137 3 1s DECISIONS OF NATIONAL LABOR RELATIONS BOARD times and asked why Respondent did not "get rid of the people who are causing trouble among the employees " When asked what these troubles were, Burdon answered, "these people continually . when I say `these people,' people have come to me many, many times and asked why we don't get rid of the people who are causing trouble among the employees. They named the people, and this is where we get part of the information. We get most of the information or all of the information from the employees of the United Wire. I am out in the shop quite a bit even though I am assistant general manager. I spend nights there, days, early in the morning. This is nothing unusual; I have done this since I have been back from the service as assistant personnel manager and have interviewed continually and have gone to these people continually and talked to them, and these people have come to me and want to have us fire these people and then they make suggestions of what we can do." When asked what the specific complaints were about Squillante, Burdon testified, "They thought that he had privileges they don't have: for example, going to the telephone whenever he wanted to. Any employee can go to a telephone when he has an emergency, but the number of times he went to a telephone, for example, and called out. I don't know this; this is heresay, sir. They only told me. I am not there on the second shift." When asked what other complaints he had about Squillante, Burdon further testified, "We had complaints about the die room. He disobeyed a direct order. We don't allow people in the die crib. He deliberately went in to the inside of the window on one occasion. I asked Mr. Ciccone to tell him and warn him to stay away from the inside. He bothered people on the inside of the die crib. A couple of weeks ago again he did the same thing, and I asked Harry Pontarelli to speak to him again " According to Burdon they had been getting these complaints about Squillante for "a couple of years.. . . While Burdon talked to Squillante in part because of the suggestions from other employees, in part he did so on his own initiative to see if he could do anything "to stop the troubles [Respondent was] having among the employees." Squillante further testified that on April 17, the day after a union meeting, Fore- man Canario said to him, "I am not supposed to ask you this. Who are the officers you elected at the meeting yesterday?" Squillante replied, "You will find out in good time; the Union intends to come out with a flyer naming these officers." Canario also asked how many had attended the meeting. Later that day Squillante asked Canario why Hart no longer was allowed to get the coffee for the men. Canario replied, "You can figure it out. I guess the company doesn't want him walking around coercing everybody with respect to the Union." Still later that day, according to Squillante's further testimony, when he was talking to Pompeii Francese, a member of the organizing committee, Canario came by and said, "Who is this, one of the big organizers? Who is this, the president, the treasurer?" Squillante said, "You will find out when we come out with a flyer." None of the foregoing testimony was denied by Canario Indeed, he admitted asking Squillante on one occasion how many men attended a union meeting. I credit Squillante. On the following day, according to Squillante's further testimony, Canario said, "I know I am not supposed to ask this How many guys were at the meeting yesterday?" Squillante replied, "I will tell you ,the truth, about 20 or 25." Squillante testified credibly and without denial that before Subforeman Adams left the Company on March 17, he used to threaten Squillante with "reprisals" on the part of the Company practically every night. This started in November after Squillante became active in the Union. Adams told Squillante on a number of occasions about the Company telling him to get something on Squillante so that they could discharge him because he was active in the Union. Both Adams and General Foreman Ciccone told him that Burdon had given orders that he was to be kept busy and that he was to stay in his section and not to go to the tool crib. Later when Canario took over from Adams he told Squillante, "I received orders from Eddie Burdon about you. He wants you to be kept busy for 8 hours steady; he wants 8 hours' work out of you. When you get through doing your floor work, wash the floor, keep it clean. Wash it, dry it with saw dust. You don't have anything to do, go to the pointers. You refuse to do that, I am to refer you to Mr. Burdon." Squillante also testified credibly and without denial that he was the only floorman in Respondent's employ who has to wash the floor and dry it with sawdust. On May 1, Squillante was given a warning card for "continual disturbance of fellow employees." This card was signed by General Foreman Pontarelli and witnessed by Subforeman Canario and Section Foreman Joe Lima. The reversed side of the card read as follows- "Men in the die crib had complained to me before that Squillante would ring the bell very loud and long and then duck and run away. They were afraid the sudden noise would cause them to put their hands in a running chuck or grinder. Yesterday I witnessed the act myself.-Pontarelli." UNITED WIRE AND SUPPLY CORPORATION 19 On the same date, May 1 , a memorandum from Sullivan to the supervisors en- titled "Work efficiency-employee relations" was posted on the bulletin board where it could be seen by rank-and-file employees. In this bulletin Sullivan said that be- cause of the poor man-hour efficiency in the tube department he had spent a half hour that evening observing the operation of the small tube section . He said he had nothing but praise for the various employees in the department including the section foreman , Joe Lima, for their performances . But he singled out the floorman (Squillante ) without naming him for particular and detailed criticism . Sullivan said that the floorman, evidently does not have enough to do; or, if he has, he doesn't do it. Tonight while I was watching he would walk up the aisle , count some ropes, scratch his head, put his hands on his hips, then walk over and pick up a piece of paper at Joe Lima's desk then walk back again , either for the purpose of trying to look busy, or to show me (he evidently knew I was observing him) that he had nothing to do, or for the purpose of aggravating a situation where he would be censured . This man gets good pay for working here, and he should work like the rest of us to help us make our living. The bulletin went on to say that after watching Squillante, Sullivan told the section foreman what he had observed and had given instructions of a specific nature to keep Squillante busy. The section foreman was also instructed to tell the other workmen that they were not being criticized and that Sullivan "had only praise for the way they were doing their work." The bulletin also had this to say about Squillante. The floorman in this section , whom I have criticized, is, I realize, a well known agitator; and it might be his intention to deliberately aggravate us into taking some action relative to his work that he and the Outsiders could use as an accusation of an unfair labor practice . I have evidence to believe that there's some truth in this; but , in spite of that, there is a limit to our patience. In his testimony Pontarelli described in more detail the matter upon which Squillante was given a warning card. In his testimony Squillante denied that he ever conducted himself as charged in the card and in Pontarelli's testimony . I credit Pontai elli's version. Several employees testified about themselves or their fellow employees being con- tinually followed or watched by various supervisors . Thus, Almanzor Martin testi- fied as follows : In March after Pontarelli took over from Ciccone whenever Martin left the press Pontarelli followed him . If Martin went to the men's room Pontarelli followed. Sometimes he would come into the men's room and sometimes stand outside. On occasion Martin as he was starting for the men 's room would see Pontarelli and would deliberately delay his arrival . On such occasions Pontarelli would have arrived first . This lasted until about April 17. Then Pontarelli began following Hart in the same way Martin observed one or two such occasions a week, depending on where he was working . When Hart was coming away from the men's room Pontarelli would be 10 or 15 feet behind him . When Hart went into the men's room Pontarelli would be standing near the coffee machine or near his office . He would notice Pontarelli watching Hart when the latter went to the tool crib and continue his watching until Hart returned to his section. Martin testified that he never saw Pontarelli following Squillante but he did see Sullivan watching from the catwalk the section where Squillante worked. He would notice Sullivan watching on these occasions for as long as 5 minutes . On cross- examination Martin admitted that Pontarelli also watched others than himself in the department but insisted that Pontarelli always made it a point to watch him whenever he left his post. On this same subject matter Hart testified as follows: After his March 28 warning about the men's room , Pontarelli began following and watching him. In the be- ginning Hart thought it was merely a coincidence that when he would go to the men's room or leave his job Pontarelli always would be in the area . So Hart changed his time for going to the men 's room but Pontarelli was still there. Some- times he would walk by, sometimes he would look in , and sometimes he would come in. Hart also testified about seeing Sullivan watching Squillante from the catwalk. This sometimes occurred during the coffee break and would last for periods of 10 or 15 minutes. Sullivan would stand there with his arms folded . The em- ployees used to comment, "He is checking somebody again." This went on from January to May. On this general subject Squillante testified : Before Adams left on March 17, if he saw Squillante go to the men 's room he would follow him. This went on from November until Adams left. As for Pontarelli , the latter has continued to follow 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him without letup. According to Squillante's further testimony before November, on his inspection rounds Sullivan was friendly and would wave to him occasionally. After the December union meeting, however, Sullivan began stopping on the catwalk for progressively longer periods. On one occasion Squillante timed his presence there at 35 minutes. Sullivan averaged about 3 nights a week in these catwalk observations of his ranging anywhere from 5 to 20 minutes per period in length. Squillante further testified that since the charges were filed Sullivan "hasn't been stopping there, just walks by." Besides the light thrown on this matter by the above-mentioned memorandum of Sullivan, he testified that the Company was going through a period of hard times and he was looking for points which affected their operation economically. To this end he was watching Squillante's section because basically it was an old-fashioned operation without up-to-date and contemporary machinery. His observations there were made to see what he could do to improve that section's operation. Pontarelli testified that his office is immediately adjacent to the men's room and that Martin, Hart, or Squillante came under his observation "accidentally." He also testified that it would be physically impossible to follow the three employees around because the plant is a huge building and the three work in opposite corners. In any event he makes two to eight trips per hour through the plant as part of his official duties in expediting and overseeing the work. He admitted that he had warned the three in question about loitering in the men's room. He also admitted that, as Hart testified, whenever the latter left his post Pontarelli might have been in the area. He explained that Hart was one of his better workers and that if he was in the area it was not for the purpose of watching Hart. Pontarelli also testified about Squillante as follows: "Very definitely Mr. Squillante is an agitator. Whether he is one of the inside agitators or not, I don't know. He could be classified as such as far as I was concerned, yes sir. I have known him, Squillante, all his life. I think he was born that way. This has nothing to do with unions whatsoever." According to Pontarelli's further testimony this was true of Squillante when he had previously worked under Pontarelli's supervision some 3 or 4 years prior to March 17. Conclusions In addition to the Section 8(a) (1) violations already found, on the basis of the foregoing evidence I find that the following matters revealed therein also involve transgressions of that section of the Act: 1. Burdon's comment to McDonald on January 27 that Respondent knew who the nine people were that attended the union meeting. 2. Burdon's similar comment to Squillante on March 29 and Canario's similar comment to Martin on December 9. 3. Canario's statement that the Company intended to make it difficult for the prounion employees. 4. Burdon's threat to discharge McDonald, coming as it did in a context of anti- union comments. 5. And in the same context, Burdon's restriction of McDonald's activities. 6. The discontinuance of Hart's coffee procurement duty." 7. Burdon's interrogation of McDonald, Martin, and Squillante regarding the Union and Canario's similar interrogation of Squillante. As to these interrogations, Respondent points to the fact that its supervisory employees had come up from the ranks, that these people had worked together for years, and that "under such cir- cumstances there is naturally a close relationship between supervisory employees and rank-and-file employees and a natural tendency to exchange news, information and ideas which does not exist to the same extent in a company where this situation does not exist and where there is a more distinct line of demarcation between super- visory and rank-and-file employees." I agree that normally such a relationship should give rise to a more liberal appraisal of the verbal exchanges between man- agement's representatives and union supporters. However, in view of the oppro- brium Sullivan heaped upon the prounion employees, I am of the opinion that the spirit of easy "give and take" between them and their supervisors was considerably dampened. Furthermore most of the interrogation occurred in a context of other coercive remarks and thus tends to taint with illegality what otherwise might be permissible questions. Blue Flash Express, Inc., 109 NLRB 591 18. The General Counsel's witnesses contend that they were constantly followed and kept under observation by Respondent's supervisors, chiefly Pontarelli. There is a strong suspicion that this occurred and was generally indulged in as an antiunion n Any doubt I had that this action was motivated by Hart's identification with the prounion faction is effectively dispelled by Pontarelli's testimony. UNITED WIRE AND SUPPLY CORPORATION 21 device. However, because of the location of Pontarelli's office and by the very nature of his duties, I would find no violation of the Act in this connection except in one respect. That has to do with the employee, Squillante. The uncontroverted evidence and admissions all point, in my opinion, to a purpose on the part of Respondent by singling him out for protracted periods of observation to interfere with, restrain, and coerce Squillante in his exercise of rights guaranteed him in the Act. Thus we have the credited testimony of Squillante that Adams had on several occasions told him that because of his union activity the Company was pressing Adams to get something on Squillante so they could discharge him.12 There is also Adams' credited testimony, more fully set forth below, that the Company continually was pressing Adams to watch Squillante and restrict his normal activities and movements because of, or to prevent, his union activity. There is also Sullivan's 30-minute observation of Squillante's section with its re- sulting public praise of everyone in the section and the contrasting condemnation of Squillante coupled with his identification with the Union. On its face, this would seem to cast some doubt on Sullivan's position regarding the "poor man-hour effi- ciency" of the department. Squillante's duties chiefly involved his keeping the rest of the employees (who for the most part were machine operators and thus primary producers) supplied with equipment, materials, and tools. Thus, if in his observa- tion of the department Sullivan had no criticism or corrections to make of the primary operations, it would appear that they were being adequately serviced by Squillante. Jn making the above comments, I do not mean to imply that in my opinion Squillante was an exemplary or perfect employee. I have found, contrary to Squillante's denial, that he did engage in the conduct attributed to him in the warning card he received May 1. The seriousness of that conduct, of course, is not for me or the Board to determine. But, I think it is significant to realize that the orders to restrict Squillante's normal activities and Sullivan's coercive observation of him took place before the warning card was issued. In sum, on the basis of this evidence and my observation of Squillante, I am of the opinion that he is a person not averse to a bit of levity in his daily pursuits and that on accasion he engaged in some of the typical horseplay to be expected in a varied group of industrial workers. Furthermore from his testimony and demeanor on the stand I have the impression that he was not only an articulate supporter of the Union, but a bold, if somewhat brash, one. Accordingly, it seems to me that what- ever validity there might be in Respondent's criticism of Squillante's attitude and deportment in the performance of his duties is considerably lessened in the light of Squillante's 15 years of employment during the entire period of which, according to Pontarelli's testimony, he was a "ball buster" or "agitator." Apparently, only when Squillante became interested in a union did his attitude and idiosyncrasies be- come important and annoying. The Demotion of Adams As of March 17, 1961, Subforeman Steven Adams 13 had been employed by Respondent 27 years, the last 15 of which had been as a supervisor. When Adams arrived at work on March 17, he went to the mill office, as was his custom, to "get lined up from the previous shift." Looking for Arthur Ciccone, the then general foreman of the second shift, he asked Mill Superintendent H. A. McKenna, "Where is Arthur?" McKenna said, "He is retired." Adams thought he was "kidding" and looked puzzled. McKenna said, "Well, there has been some changes around here, and Arthur won't be in. Furthermore, you have an appointment with Mr. Phillips (production manager) at 4:00 o'clock. You will find out what is going on." At 4 o'clock Adams went to see Phillips in his office. Telling him to sit down, Phillips said, "There has been a lot of changes around the plant and you are in- volved. As of tonight, you are being taken off your job. They are consolidating a couple of departments, and somebody else will take over your job." He then told Adams that he was to report to the mill office the following Tuesday when he would be given a job. He also told Adams that one of the reasons for his demotion was that he was having a lot of trouble with his men. Adams voiced his disagreement 18 In this connection it is interesting to note that Adams was the next-door neighbor of Squillante's brother. 18 Adams was subforeman of the second shift in the tool mill. Under him in the line of supervision was a section foreman or foremen Above him in inverse order of im- portance were the general foreman of the shift, the mill superintendent, the production manager, the assistant general manager, and the general manager. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with that statement. Phillips said, "If you are dissatisfied, you are entitled to file a grievance against the Company." Adams said that there was no need to do that adding, "I have been tried and have been convicted." When he went back to the mill to line up his night's work McKenna told him, "Look, Steve, I don't know what happened. All I can say is I am sorry." Adams replied, "Mac, I have been a conscientious worker for this Company for all the years I've been here. I don't think I ever hurt anybody. What hurt me more than anything in that office is a man telling me I have been having a lot of trouble with my help. I know it isn't so." McKenna said, "Steve, believe me I haven't heard any complaints about you and your help." Adams had had no prior knowledge or information about any pending change in his status. He knew by the Company's rules 14 and past practices that as a demoted supervisor he "would report to a night shift and would be given any job available." He also knew by the job posting and bidding rules that "any job that is available in the United Wire is an undesirable job." Accordingly he calculated that his de- motion would result in a salary reduction for him of about $80 a week or 40 to 45 percent. Over the weekend he gave the matter considerable thought and concluded "that after all the years [he] put in there, all the hard work [he] put in there trying to get somewhere, if that is what the Company thought of [him], [he] could never go back there and hold [his] head up " So he did not go back. The foregoing circumstances of Adams' demotion are based on Adams' undenied and credited testimony. Neither Phillips nor McKenna testified Adams further testified as follows: The only incident he could recall involving any trouble with his help occurred sometime between the first of the year and March 17. This involved Andrew Squillante. On this occasion General Foreman Ciccone came running over to Adams and said, "Get that guy [Squillante] the hell away from that desk over there and get him in the section where he belongs. I caught him once over the Coca-Cola cooler; I caught him another time this evening walking down the alley talking to somebody. Now, he is over there standing around talking to people when they are coming in to work." So Adams went over to Squillante and said, "Look, you better get back to your section, Arthur is blowing his stack. He told me he caught you twice previous to this out of the department, and now he comes around and finds you standing around over there." The following day when Adams came to work and went into the office, Squillante was there with Ciccone and McKenna. Squillante said, "I don't like the way I was treated last night." Adams said, "How were you treated9" Squillante said, "You used abusive language at me, and you hollered at me." Adams said, "Squillante, I didn't do anything of the kind; I went up to you and told you in a normal way to get to your section where you belong." The two supervisors sided with Adams and told Squillante that they did not believe he "used that kind of language." Adams said, "If you thought I used abusive language, I apologize; I am sorry, but I didn't do it" Adams further testified that Ciccone had told Adams that Squillante was a union- man and that he was to watch him. Adams told Ciccone that Squillante's section foreman and Squillante were quite friendly and that the foreman had told Adams that Squillante had nothing to do with the Union. Ciccone said, "Look, for your own good, you want to watch him. There is a lot of things going on around here you don't know about." Adams said, "I don't think there is any union activity in my department " Ciccone said, "There is." Ciccone continuously brought up the point to Adams that his job might be in danger if he did not control Squillante and prevent him from taking part in union activities. Ciccone said, "You want to watch him. Your job is involved. If you are interested in your job and keeping your job, you want to watch him." On one of these occasions Adams said to Ciccone, "What do you mean, watch him? The man isn't doing anything." Ciccone said "Keep him in his section." Adams said, "Can't he go to the toilet? You want me to stop him going to the toilet. What do you want around here? Can I tell a man he can't go up during the lunch period and sit with other people and eat his lunch." I. Article IX, section 19, of the Company's handbook on policies and practices states: An employee in a supervisory position for more than C, months may. for justifiable reasons, be returned to a nonsupervisory job in the department he is working in In this event his seniority status will be determined by the length of his continuous service in the department. He will be assigned to a job or jobs, on a night shift, in keeping with the "no bumping" policy, and consistent with his ability, skill, efficiency, and seniority status. He will be ineligible to bid for another job Opening for a period of 1 year. UNITED WIRE AND SUPPLY CORPORATION 23 On one occasion Assistant General Manager Burdon came running over to Adams all excited and upset. Adams was talking to his section foreman, Joe Lima, at the time. Burdon asked Adams if he was watching Squillante. Adams said, "Well, there is nothing to watch him for; I don't think the man is involved in union activities. Joe Lima just told me last night that he hasn't got anything to do with the Union." Burdon said, "He is a god-damn liar; would his own grand- mother, and you can call him over and tell him I said it." 15 Adams had told Lima, time and again, "Look, they're watching that man. Arthur is watching him con- tinuously. Arthur is after me continuously to tell him to keep in his own depart- ment, keep busy." Neither Lima nor Ciccone testified. Burdon did not deny any of the foregoing. Accordingly, I credit the above testimony of Adams. About the Adams' matter Assistant General Manager Burdon testified as follows: Adams' demotion was part of a reorganization plan that had been under consideration for a couple of months before it occurred. The plan was designed to cut down overhead by approximately $100,000 and involved in all the elimination of 11 jobs mostly in the administrative or supervisory categories. Plant Manager Purner who was about 60 years old was given early retirement. Also given early retirement were General Foremen Ciccone and Alexander Rego and Foreman Jack Dorcus. Traffic Manager Casey and Carl Nordhl, a toolmaker, both over 65, were retired. In addition to Adams there were three other supervisory employees below the age of b0 (Adams was in his late forties or early fifties) who were not given early retirement and were demoted to nonsupervisory jobs. Since there was not enough work in the front mill, supervised by Adams, and in the aluminum mill, supervised by Canario, to keep both those subforemen busy they combined the two departments and picked Canario, a man of 9 years' tenure with Respondent,16 to supervise them. They kept Canario because he had had experience with the same kind of equipment that was used in Adams' department while Adams had had no experience with extrusion presses and melting furnaces used in Canario's department. But the demotion of Adams was not solely economic. It was also because he did not get along with people who were working for him. According to Burdon's testimony they had continual complaints from many people in Adams' section about his relationship with his employees The nature of these complaints had to do with the way Adams talked to people and gave orders and what he expected from the men. Burdon testified that this personal aspect of the matter "was a determining factor helping us to determine who would be the best of the two men." In illustration Burdon testified at one point that "if people in your office come to you day in and day out and complain about a person mistreating them or treating them unfairly, I think you would have to take some measures too"; and at another place that "when you have 5 or 10 people in a section that has got maybe 30 people in it continually talking about the supervisor, I think something should be done about it." Burdon further testified that there were one or two individuals who bid on every job to -get out of Adams department. One of these he named as Norman Broder and the other simply by the given name of George. When pressed for the identification of additional complaints, Burdon refused to name any even though I indicated that his refusal to be more specific would make his general testimony about the matter of little probative value. Of the three other supervisory employees who were demoted with Adams, the evidence shows the following percentage of reduction in their take-home pay caused by their demotions: Section Foreman Leitao, about 12 percent; Section Fore- man Sezuroski, about 18 percent; and Die Foreman Loud, about 18 percent.17 Conclusions as to Adams Burdon testified that when Adams left , Respondent was "considering putting him on the capillary oiler" which was an open job on the second shift. This job would have paid $1.741/2 an hour plus bonus and 10 percent premium which would have been considerably more than the 40- to 45-percent decrease Adams anticipated in his reliance on the "hook " Since this machine had never had an operator on it, Respondent contended that it would not have had to put the job up for bidding, Burdon 15 Since Adams had been talking to Lima when Burdon made the remark it would appear either that the comment was directed to Squillante rather than Lima or that Lima had left before the remark was made. 16 Canario so testified. 17 These figures are approximations based on the average weekly take -home pay for sei eral 40-hour weeks worked immediately before and after their demotions. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explaining that Respondent considered this to be in accordance with the policy book. If Respondent really was considering giving Adams the above job, one would think it would have told him so or at least given him some hint of it at the time he was so bluntly relieved of his supervisory duties. This is particularly true in the light of the rigid adherence to the book expected by Respondent of all employees, both supervisory and rank-and-file.18 I have no doubt, and find, that the reorganization which resulted in Adams' de- motion was made in good faith and had no connection with the union campaign. Notwithstanding this finding, however, I am convinced and find on the basis of the foregoing evidence and considering the record as a whole, that Adams' demotion was motivated and executed primarily because of his failure or refusal at Respondent's insistence to engage in the commission of unfair labor practices against Squillante. The direct evidence of this, of course, stands undenied in the record. But there are other interesting considerations here. To begin with, the abrupt and unheralded dropping of a man of 27 years' tenure and his replacement with one of 9 or 10 years' tenure as was done here immediately causes pause.19 This is particularly true in view of the statement in one of Sullivan's flyers to the employees saying that "any fairminded person knows that transfers, work loads, layoff, . . . filling of vacancies, and promotions have been on a seniority basis, in accordance with our employment policy rules. Any one who says they haven't is a LIAR. A deliberate LIAR whose motive is for his own selfish interest." Burdon testified that this did not apply to supervisors. Apart from the fact that super- visors are people if not considered employees by Respondent (and the Act) it would appear that this position is somewhat inconsistent with Burdon's insistence else- where that Respondent's supervisors are governed by and "have to follow the book." Even more pertinent, however, is Respondent's attempt to attribute to Adams difficulty in handling employees as a reason for his demotion. Apart from an almost complete failure of proof,20 it would appear that after 15 years of supervisory duties without an intervening demotion (and such demotions apparently occurred periodi- cally as indicated by Pontarelli who testified that he had undergone such a demotion in his tenure with Respondent) Respondent is a little late in recognizing such a deficiency in Adams' performance. As Burdon described it, Adams' difficulty was "the way he talked to people and gave orders and what he expected from the men " Considering that these things constitute the very essence of a supervisory job the wonder is that Adams ever become a supervisor let alone continued as one without interruption for 15 years As in the case of Squillante, it would appear that any idiosyncrasies in Adam's performance or attitude became important only in the white heat of Respondent's opposition to the Union. In view of the foregoing, I find that Adams' demotion was illegal As stated by the Board in Jackson Tile Manufacturing Company, 122 NLRB 764, 767, "a discharge of a supervisor for refusing to commit unfair labor practices on behalf of his employer constitutes an invasion of the self-organizational rights of rank-and- file employees. This is so because it demonstrates graphically to rank-and-file employees the extreme measures to which the offending employer will resort in order to thwart them in their desire to join or assist a labor organization." Having found that Adams' demotion was illegal, it follows, of course, that there was no obligation on his part to accept it. Accordingly his refusal to take the lesser job he might have had amounts to a constructive discharge and does not absolve Respondent from the obligation to reinstate Adams and make him whole for the loss of pay suffered as a result of Respondent's illegal conduct. 'S Burdon testified, "Supervisors realize that, everyone of them, we have to follow the book. That is what the supervisors, everyone of those fellows in the plant there, have to follow the book " 19 In making this observation I am fully aware that three other supervisors were de- moted in this same situation and that there is nothing in the record to show any difference in the treatment of them in this respect It appears, however, that whereas Adams in his reliance on "the book" logically anticipated a 40- to 45-percent cut in remuneration, the largest cut experienced by any of the other demoted supervisors was about 1'8 percent 20 It is interesting to note that the only substantial evidence appearing in the record in this connection involves Adams' alleged impolitic handling of Squillante on one occasion In view of Respondent's attitude toward Squillante as expressed by Sullivan. and Respond- ent's continual importuning of Adams to keep Squillante under illegal surveillance it seems highly incongruous, to say the least, that Respondent should have been disturbed by Adams' treatment of Squillante. And Respondent's position is further impugned by the fact that at the time Adams' supervisors sided with him in the matter. A.P.W. PRODUCTS CO., INC. 25 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its business operations described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has committed certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent interfered with the rights guaranteed its employees in Section 7 of the Act by constructively discharging its supervisor, Steven Adams, because of his failure and refusal to commit unfair labor practices on behalf of Re- spondent, it will be recommended that the Respondent offer to Adams immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his former rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount he would normally have earned as wages, from the date of his discharge until his reinstatement as described above, less his net earnings during this period. The loss of earnings shall be computed in accordance with the Woolworth formula, F. W. Woolworth Company, 90 NLRB 289, 291-294. In view of the nature and extent of the unfair labor practices hereinfound, I am convinced that the commission of similar and other unfair labor practices by Re- spondent reasonably may be anticipated. I will therefore recommend that Re- spondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Wire and Supply Corporation is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] A.P.W. Products Co., Inc. and United Papermakers and Paper- workers, AFL-CIO. Case No. 1-CA-3354. May 2, 1962 DECISION AND ORDER On June 2, 1961, Trial Examiner James F. Foley issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report, together with supporting briefs. The Respondent filed a brief in support of the Intermediate Report. 137 NLRB No. 7.