Victory Plating Works, Inc.

VICTORY PLATING WORKS, INC. 389 posted. Reasonable steps shall be taken to insure that such notices are not altered, de- faced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the Regional Director for the Twenty-second Region for posting by Avon Sheet Metal Co., at all locations where notices to its employees are customarily posted, if the Company is willing to do so. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Re- spondent has taken to comply herewith.14 14 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL No. 4 UNITED SLATE, TILE AND COMPOSITION ROOFERS, DAMP AND WATERPROOF WORKERS ASSOCIATION, AFL-CIO, AND TO ALL EMPLOYEES OF AVON SHEET METAL CO. Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT lay off Viddie Stravinski or any other employee of Avon Sheet Metal Co., for failing to pay any fine imposed upon him or otherwise cause or attempt to cause the said Employer to discriminate against any employee in violation of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act. WE WILL refund to Viddie Stravinski the amount of the fine he was compelled to pay us and we will make him whole for any loss of pay he may have suffered because of the discrimination against him. LOCAL No. 4, UNITED SLATE, TILE AND COMPOSITION ROOFERS, DAMP AND WATERPROOF WORKERS AS- SOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, 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 No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Victory Plating Works, Inc. and International Association of Machinists, District Lodge No. 24, AFL-CIO. Case No. 36-CA- 1121. December 31, 1962 DECISION AND ORDER On May 9, 1962, Trial Examiner James R. Hemingway 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report. 140 NLRB No. 34. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Rodgers, 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 thereto, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations to the extent consistent with the following. 1. The Respondent is engaged in the business of repairing and re- finishing automobile bumpers. In September 1960, the Respondent entered into a 1-year collective-bargaining agreement with an inde- pendent union of its employees.' On Tuesday, September 5, 1961, 3 days prior to the expiration of the aforementioned agreement, the officers of the Independent met with Ray Polly, Respondent's pres- ident, and presented him with their new contract demands.2 Polly re- plied to the demands by saying that he could not meet any of them, that up to that time the employees had been "demanding and getting," and that now it was his turn to "demand and he was going to get." Polly then made a counterproposal concerning wages, and the follow- ing day he made some additional proposals with respect to variou other terms and conditions of employment. Pursuant to a request by the Independent, Polly submitted his proposals in writing on Septem- ber 7,1961, in a letter stating that this was Respondent's "final offer," and rejecting all the proposals the Independent had submitted. After the meeting of September 5, 1961, the members of the Inde- pendent's negotiating committee reported to the employees the results of their meeting with Polly. As a consequence, "a lot" of the employees indicated a desire to join a "stronger union" in order to secure better representation. After the Respondent had submitted its "final offer" and the employees had expresed their dissatisfaction with such offer, Ervin Dunn, president of the Independent, arranged for a meeting at the local union hall of the International Association of Machinists.' The meeting, according to Dunn, had a dual purpose-(1) to give the employees a chance to vote on the Respondent's offer; and (2) to find out whether they desired to join the Machinists' Union. Notice of the 'Independent Employees' Union, Victory Plating Works Oreg. Ltd, hereinafter called the Independent. I These included changes in wage rates, overtime pay, premium pay, vacation notices, and vacation pay. 3 The Respondent's "offer" included a wage Increase, changes in the vacation schedule, and the definition of a "journeyman," and the elimination of certain grievance and seniority rights. These Items, with the exception of the wage increase, represented terms and conditions of employment less favorable than the employees were then enjoying 9 Hereinafter called Machinists. VICTORY PLATING WORKS, INC. 391 meeting was posted on a bulletin board in Respondent's plant on September 11, 1961.' At the same time as the above-described "negotiations" were being conducted, September 5, 6, and 7, 1961, the Respondent was having managerial conferences 6 concerning production in the plant, with which Polly was somewhat dissatisfied, and the possible adoption of production quotas in the straightening and grinding departments to improve production.' On September 7, 1961, as a result of these con- ferences, Respondent decided to adopt individual production quotas for the straightening and grinding departments," and to institute these Z71 - quotas on Monday, September 11, 1961. On September 9, 1961, a Saturday, Polly decided not to put the quotas into effect on September 11, 1961, because he did not want to influence the employees against accepting Respondent's contract offer. Accordingly, he notified McGowan of this change in plans and told him to inform Foreman Davis thereof first thing Monday morning. Mc- Gowan passed these instructions on to Davis prior to the beginning of work on Monday morning. On September 11, 1961, after the conclu- sion of the workday, Respondent held another conference at which it was decided to institute the quotas the next day, September 12, 1961. As Davis had already left the plant and was not at this conference, McGowan was told to convey the order to Davis prior to the commence- ment of work on September 12,1961. About 45 employees attended the meeting of the Independent at the Machinists' hall on the evening of September 11, 19619 First, they discussed the Respondent's counterproposals for a new contract and voted not to accept them. Then Roberts, the business representative for the Machinists, and another union representative addressed the 5 The notice did not state what the subject of the meeting would be. Although several employees testified uncertainly that they thought the notice was posted on Friday, Septem- ber 8, the president of the Independent , Dunn, testified that the notice was not posted until the following Monday. " These conferences, which had , in the past, been held about every 3 months but which beginning in August were held more frequently , were attended by Polly, Plant Super- intendent McGowan, and Foremen Davis and Stillinger 4 The Respondent had previously adopted production quotas for the grinding and polish- ing departments However, it appears from the record that they were never enforced and that no one was discharged for failing to make the quota. 8 The quota for the straightening department was set at 11 bumpers per day for the men receiving regular pay , 13 bumpers per day for those receiving premium pay, and 23 bumpers per day for the grinding department. The record contains conflicting testi- mony as to how the quota system was to operate . Thus Polly , McGowan, and Davis each testified differently as to what had been established as the penalty for failure to make the quota, and Davis' testimony was at odds with that of Polly and McGowan as to whether the quota was to be averaged over the course of a week or made every day. However, in view of the evidence set forth below that the Respondent changed the quota to a daily one on September 12, 1961 , it would appear that Respondent had originally decided to adopt a quota to be averaged over the course of the week. 9 Respondent had a total of approximately 55 employees. 392 DECISIONS Or NATIONAL LABOR RELATIONS BOARD employees and told them how they could become members of the Ma- chinists' Union. The employees then voted by secret ballot, 38 to 6 in favor of being represented by the Machinists. Thirty-seven em- ployees signed authorization cards at the meeting. At 11 p.m. that night, Polly received a telephone call from employee Hans, one of the Respondent's drivers, who told him that the employees were signing up with the Union. The next morning, September 12, 1961, McGowan, as instructed the previous day, told Davis to put the quota system into effect. Davis then assembled all the employees of the straightening and grinding department and told them about the quota system and how it would operate. Specifically, he told them that the men had to average, on a weekly basis, 11 or 13 bumpers a day, and that at the end of each week the employee with the lowest average, if below the quota, would be discharged. Davis then assembled the employees of the grinding department and informed them of the new production quota and how it would operate. Later that same morning, about 9 :20, Roberts, ac- companied by two other union representatives, arrived at the plant and asked to see Polly. They were ushered into Polly's office and met with Polly, Watts, Respondent's counsel, and McGowan. Roberts handed Polly a letter in which the Union claimed to represent a majority of Respondent's employees and requested recognition and bargaining. After reading the letter aloud, Polly said, "Well, I understand you have been desiring to take a crack at me for a long time," that it was his understanding that the Union had to win a Board election before it was entitled to represent the employees, and that he did not intend to negotiate until the Union had thus demonstrated its majority. Polly concluded his remarks by telling the union representatives that all further matters would be handled by Watts. Watts then told Roberts that the Respondent was willing to enter into a consent- election agreement. The meeting ended about 9:30. At approximately 9 :30 that morning, McGowan came into the weld- ing room and told Davis that he understood the employees had voted to join the Machinists, and that "Mr. Polly's kind of put out about that . . . if they can play rought then we can too . . . change it from a weekly basis to a daily basis as of right now." McGowan then added, "there are some things a man don't like to do but . . . you got to do them . . . I might not agree with him all the way." Pursuant to these instructions, Davis called the employees together and told them that the Company was changing the quota requirements and that they would have to make the quota daily rather than on a weekly average. One of the employees asked Davis, "Is this because of the Union vote," to which Davis replied, "It looks like it to me." As more fully de- tailed in the Intermediate Report, in the succeeding weeks the produc- tion quotas were enforced on a daily basis, and the Respondent dis- VICTORY PLATING WORKS, INC. 393 charged the following employees for failing to make their quota: Gilbert Lehr, Leon Wegener, George Calabro, Alfred V,Test, Ervin Dunn, and Leon Williams. Based on the above evidence, and particularly McGowan's state- ment to Davis that "if they can play rough then we can to," coming on the heels of the union representatives' visit to the plant, we find that the Respondent, in retaliation for the employees' rejection of its contract offer and their selection of the Machinists as their bargaining representative, changed the production quotas it had originally adopted from a weekly average quota to a daily quota.1° Moreover, and in view of the Respondent's entire course of conduct, as described hereinafter, we find that Respondent changed to daily production quotas in order to have a ready pretext for discharging employees it did not wish to retain. This change in the terms and conditions of employment, motivated by Respondent's desire to discourage con- tinued adherence to the Union, and in reprisal for the employees' designation of the Union, violated Section 8 (a) (1) of the Act. Fur- thermore, since the adoption of such daily production quotas was cal- culated to thus discourage membership in and support of the Union, we find that all the discharges effected under that quota system were similarly motivated and therefore violated Section 8 (a) (3) and (1) of the Act. Accordingly, apart from any other considerations, we find that the discharges of Lehr, Wegener, Calabro, and West were un- lawful. 2. On or about September 18, 1961, Davis had a conversation with Polly concerning what Polly intended to offer the Machinists in the negotiations. Polly replied that he was going to offer them less than he had offered the Independent, and that it was "fine" with him if the employees decided to strike, as "then the men that want to cross the picket line I can just take my pick and keep the ones I figure won't cause us any trouble." On September 22, 1961, a consent election was conducted among the Respondent's employees who voted 33 to 8 in favor of representation by the Machinists. On September 24, 1961, Polly approached em- ployee Claud Pierce and asked him if he would go through a picket line in the event of a strike.li When Pierce gave a negative answer, Polly retorted, "Those union guys must have really filled your head lO In reaching the above conclusion, we do not rely upon or adopt the Trial Examiner's finding that Respondent had knowledge, prior to Monday, September 11, that the em- ployees were going to consider affiliation with an outside union at their meeting on that date. In our opinion, there is not sufficient support in the record to justify such an inference In particular we wish to disavow the Trial Examiner's inference of such knowledge based on the fact that Respondent consulted an attorney several days before the meeting. "As set forth in the Intermediate Report, Polly approached Pierce on two other occa- sions, subsequent to the one described above, and each time asked him if he had changed his mind about crossing a picket line. As found hereinafter, Pierce was constructively discharged in October. X94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up with a bunch of ," and that he knew who had voted for the Company and who had voted for the Union. On September 25, 1961, Davis and McGowan had a disagreement concerning the condition of the bumpers coming from the straighten- ing department. Davis then had a further disagreement with both Polly and McGowan with respect to conditions in the shop. As a result, Davis gave 2 weeks' notice that he was going to quit. On September 26, 1961, McGowan told Davis that Don DeRosia, a leadman in the plating department, would be the new foreman, and asked Davis to break him in during the next 2 weeks. Also on that day employee Ray Means, who worked in the straightening department and was the shop steward and a former member of the Independent's negotiating committee, threw a heavy object weighing at least 21/2 pounds at the restroom door, which damaged the door.l" At the end of the workday, the maintenance man, Bill Moon, told Polly about the damage to the door and that he, Moon, thought Means was respon- sible for it. On September 27, 1961, DeRosia indicated that he no longer wanted Davis' assistance in learning how to straighten bumpers. When Davis asked him what the reason was, DeRosia answered, "Well, I guess the main reason I'm up here now is just to watch certain men over in the southeast corner . . . try to get something on them to get them fired." Davis and DeRosia had a second conversation that morning on the roof. DeRosia told Davis that McGowan wanted him to keep written records of the employees' production and of any conduct for which the employees might be discharged. DeRosia said that he didn't like to do this, asked Davis for his opinion, and told him that he wanted to get the opinion of some of the other employees. Davis then called Dunn, Leon Williams, vice president of the Independent, and Means out to the roof and, in DeRosia's presence, told them what the Re- spondent expected DeRosia to do. A discussion followed in the course of which DeRosia told them, "I'm up here . . . to watch certain men and try to get something on them as there are some men up here that are considered troublemakers and . . . the company wants to get rid of them." Dunn said that the three of them were probably the in- dividuals whom DeRosia was supposed to watch, but DeRosia did not reply to this statement. One of the employees then asked if the Company wanted them to quit or wait to get fired. DeRosia answered that Respondent would rather they quit so that they would not be eligible for unemployment compensation. '-'The record contains conflicting evidence as to whether a second object was thrown at the door causing further damage Apparently, throwing objects at the restroom door, while the restroom was occupied , was a not uncommon sport in the Respondent's plant. VICTORY PLATING WORKS, INC. 395 About 1 hour later, Polly told Means that he had heard that Means was the one responsible for damaging the restroom door.13 When Means admitted that he had thrown an object at the door, Polly dis- charged him for maliciously damaging company property. Means made some statement to the effect that he was not solely responsible for the damage, but this was apparently ignored by Polly. Means then picked up his belongings and, on his way out, said to Polly that he had "quite a company going," to which Polly answered, "I did until I hired some agitators." Means asked if Polly considered him an agitator and Polly answered that he did. On September 28, 1961, Polly told Davis that he didn't need two foremen in the same department and therefore he would give Davis 2 weeks' pay and let him go. Sometime later in the day, Davis told Williams that he was leaving that day and that, in case he and Dunn didn't know it, they were the two remaining employees in the straight- ening room that the Respondent was trying to get rid of. Dunn and Williams both failed to make their quota of small parts that day and were discharged. Based on the foregoing evidence, which clearly demonstrates Re- spondent's hostility toward the Union and its desire to rid itself of union adherents, we find that Respondent discharged Dunn, Williams, and Means because they were the leaders in the union movement, and because Respondent regarded them as primarily responsible for the entrance of the Machinists Union. The fact that Respondent was de- liberately looking for an excuse to discharge certain employees, leads us to conclude that the restroom incident was used merely as a con- venient pretext in an attempt to justify Respondent's unlawfully mo- tivated discharge of Means. Similarly, and in view of the credited testimony of Williams that he and Dunn had had difficult small parts to work on during their last day, and therefore should have been ex- cused from making their quotas on that day, we find that Respondent's real reason for discharging them was their union sympathies and ac- tivities. Accordingly, we find that Respondent's discharge of Dunn, Williams, and Means violated Section 8(a) (3) and (1) of the Act.14 3. Sometime after the filing of the charge herein, and at about the time that DeRosia took over as foreman, the Respondent, on the advice of counsel, changed the quota from a daily to a weekly basis. Along with this change in the basis of the quota system, Respondent also began to take into consideration the condition of the bumpers and the degree of difficulty required to repair them, in determining whether an employee should have made his quota. 1a Polly had confirmed the maintenance man's report that Means was responsible for damaging the door, by checking with DeRosia. 14 Even in the absence of the above evidence, we would find that Dunn and Williams were unlawfully discharged as they were discharged pursuant to the discriminatorily motivated quota system the Respondent had adopted. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As found by the Trial Examiner, and more fully set forth in his Intermediate Report, in October, Respondent began to talk to some of the employees in an attempt to justify its position on economic matters and dissuade them from supporting the Union.15 Thus, Polly called Keith Jackson into his office, discussed some of the Union's contracts with other firms, read parts of them to him, and told him that operat- ing under conditions required by these contracts would break him. He also said that if Jackson was so dissatisfied with Respondent's offer to the Independent he should quit. Then Polly asked Jackson if he would cross a picket line and Jackson said he would not. Polly also asked Jackson what he thought of the quota system. Jackson said he didn't think it was fair. Polly also called employee Jacob Hubert into his office and told him he wanted him to hear Respondent's side of the story. He showed Hubert a union contract and the Company's production records, and told him that if the Respondent had to pay the wage rate in the con- tract, it would have to close the plant. Polly also stated that if the Union came into the plant Roberts, IAM representative, and not Polly, would be running the shop. McGowan, who came into the office during the course of the conversation, remarked that all they could do now was wait for a year and vote the Union out. Polly agreed and then said that he didn't think he could give the employees the increased wage rate he had offered the Independent as that might constitute an unfair labor practice. Polly also told Hubert that it would be easier to make the quota in the future because he had instructed his drivers not to pick up any more "real rough" bumpers. On October 11, 1961, Polly had another conversation with Hubert, in the presence of McGowan and DeRosia. They discussed the quota system and Hubert said that he didn't believe in it. DeRosia also f a- vored elimination of the quota system. Apparently as a result of this discussion, Polly decided to lift the quotas for a trial period the follow- ing week to see what effect it would have on production. This resulted in a 20-percent increase in production the next week. However, de- spite such increase, Polly reinstituted the production quotas beginning October 23, 1961, asserting that operating without quotas had proved unsatisfactory. As more fully detailed by the Trial Examiner in his Intermediate Report, on Friday, October 27, 1961, Respondent discharged four employees (Jackson, Hubert, Fred Davis, who was Foreman Davis' is See footnote 11, supra, concerning two conversations with Pierce, both of which occurred some time in October , in which Polly tried to persuade Pierce to cross a picket line, if one was established, by saying that there would always be a job for him if he crossed the picket line VICTORY PLATING WORKS, INC. 397 brother and a past president of the Independent , and Smith's alleg- edly for failing to make their weekly production quotas. However, the Employer's production records show that no one in the straight- ening department made his production quota for the week of October 23-27. Respondent contends that it discharged only the above- mentioned employees because it had determined that all the other employees could not be expected to make their quota that week because of the difficult bumpers they had received . However, the production records clearly indicate that, on this basis, Jackson and Hubert should not have been discharged . Thus it appears that, when the Respond- ent determined an employee's daily average production for the week, it normally took into consideration those days on which the employee had unusually difficult bumpers and excluded those days from its computations. The daily average figure thus obtained was based only upon normal production . Thus employees Bessig, Ianuzzi, Blancic, Percic, and Spanu , who also worked in the straightening department and were not discharged at the end of that week, made their daily average quota on the basis of the above formula. But Jackson and Hubert also made their daily average quota on the basis of the above formula because they were not expected to make their quota on Wednes- day, the day that drastically reduced their averages, as Respond- ent's production records show that everyone had difficult bumpers that day and all the employees were excused from making their quota on that day . It is therefore obvious that Respondent discharged Jackson and Hubert for some reason other than their failure to make the quota.'' We find that Respondent 's real reason for discharging Jackson and Hubert was their adherence to the Union , which Polly had determined from his interrogations of them that they would not cross the picket line of the Union. Accordingly, we find Respondent violated Section 8(a) (3) and ( 1) of the Act in discharging Jackson and Hubert. In addition, and in agreement with the Trial Examiner, we find that Polly's three conversations with Pierce, and Polly's conversa- tion with Jackson, in which Polly interrogated them as to whether 16 At the hearing, the General Counsel amended the complaint to delete Smith's name from the list of those alleged to have been unlawfully discharged 17 Like the Trial Examiner, we have difficulty in accepting the Respondent's contention that the operation of the quota system was nondiscriminatory. When DeRosia became foreman of the straightening and grinding department, he had absolutely no experience in that type of work. Yet he was the one responsible for distributing the work to the employees, in which the prime consideration was the difficulty of the bumpers which DeRosia was supposed to judge. At the end of the workday, DeRosia would take the daily production records to Polly and, after consultation with Polly, who presumably had not seen the bumpers, would make notations on those records as to whether the employee should have made his quota. These facts, in addition to the one set forth above, lead us to the conclusion that the quota system was operated in such a manner as to enable Polly to discharge those employees he felt favored the Machinists Union 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would cross a picket line, and Polly's conversation with Hubert in which Polly said that selection of the Union as bargaining representa- tive would result in the closing of the plant, as described above, inter- fered with, restrained, and coerced those employees in the exercise of their Section 7 rights and therefore violated Section 8 (a) (1) of the Act. 4. We adopt the Trial Examiner's findings, conclusions, and rec- ommendations concerning Claude Pierce and Fred Davis. 5. The Trial Examiner recommended, as part of the remedy, in order to make whole the unlawfully discharged employees, that Re- spondent pay interest at the rate of 6 percent on the amount of backpay owing. Since the Trial Examiner issued his Intermediate Report in the instant case, the Board issued its decision in Isis PTiuinb- ing cC Heating Co., 138 NLRB 716, requiring the payment of interest on backpay awards. Accordingly, and for the reasons and in the manner set forth in Isis, interest at the rate of 6 percent per annum shall be added to the backpay.18 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, Victory Plating Works, Inc., Portland, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their union sympathies and activities within the meaning of Section 8(a) (1) of the Act, and threatening its employees with economic loss for selecting the Inter- national Association of Machinists, District Lodge No. 24, AFL-CIO, or any other labor organization, as their bargaining representative. (b) Changing production quotas and discharging employees pur- suant to such changed quotas in retaliation for their exercising rights protected by Section 7 of the Act. (c) Discouraging membership in International Association of Machinists, District Lodge No. 24, AFL-CIO, or any other labor organization of its employees, by discharging its employees because of their membership in, or support of, the Union, or in any other man- ner discriminating against them in regard to hire or tenure of em- ployment, or any term or condition of employment, except as author- ized in Section 8 (a) (3) of the Act, as amended. is Member Rodgers, for the reasons set forth in his dissenting opinion in Isis Plumbing & Heating Co , supra, would not award interest VICTORY PLATING WORKS, INC. 399 (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization including International Association of Machinists, District Lodge No. 24, AFL-CIO, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Leon Wegener, Gilbert Lehr, George Calabro, Alfred Patrick West, Ray Means, Leon Williams, Ervin Dunn, Claud Albert Pierce, Jacob Hubert, Keith Jackson, and Frederick Davis immediate and full reinstatement to their former or substantially equivalent po- sitions, without prepudice to their seniority or other rights and privi- leges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, including interest on the backpay owing, as provided in the section of the Inter- mediate Report entitled "The Remedy," and in this Decision and Order. (b) 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 amount of backpay due un- der the terms of this Order. (c) Post at its plant in Portland, Oregon, copies of the attached notice marked "Appendix." 19 Copies of said notice, to be furnished by the Regional Director for the Thirty-sixth Region, shall, after be- ing duly signed by the Company's representative, be posted by the Company immediately uopn receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Rea- sonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirty-sixth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. "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 Oider." 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 interrogate our employees concerning their union sympathies and activities within the meaning of Section 8(a) (1) of the Act, or threaten our employees with economic loss for selecting International Association of Machinists , District Lodge No. 24, AFL-CIO, or any other labor organization , as their bargaining representative. WE WILL NOT change our production quotas or discharge em- ployees pursuant to such changed quotas in retaliation for their exercising rights protected by Section 7 of the Act. WE WILL NOT discourage membership in International Associa- tion of Machinists , District Lodge No. 24 , AFL-CIO, or any other labor organization , by the discharge of employees, or by discrimination against them in any other manner in regard to their hire and tenure of employment , or any term or condition of their employment, except as authorized in Section 8(a) (3) of the Act, as amended. WE WILL NOT interfere with, restrain, or coerce our employees, in any other manner, in the exercise of their right to self- organization, to form, join, or assist International Association of Machinists, District Lodge No. 24 , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL offer immediate and full reinstatement to the following employees, and we will make them whole for any loss they may have suffered as a result of the discrimination against them: Leon Wegener Ervin Dunn Gilbert Lehr Claud Albert Pierce George Calabro Jacob Hubert Alfred Patrick West Keith Jackson Ray Means Frederick Davis Leon Williams All of our employees are free to become, remain , or refrain from becoming or remaining, members of any labor organization , except as VICTORY PLATING WORKS, INC. 401 that 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, as amended. VICTORY PLATING I TORKS, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle 4, Washington, Telephone No. Mutual 2-3300, Extension 553, 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 by International Association of Machinists, District Lodge No. 24, AFL-CIO, herein called the Union, on September 20, 1961, an amended charge filed on October 25, 1961, and a second amended charge filed on November 2, 1961, against Victory Plating Works, Inc., herein called Respondent, the General Counsel for the National Labor Relations Board, on behalf of the Board, issued a complaint and notice of hearing on November 21, 1961, alleging that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. In substance, the complaint alleges as violations of Section 8(a)(1) of the Act that, following an employee meeting on September 11, 1961, at which Respondent's employees elected to affiliated with the Union, the Respondent, in retaliation im- posed daily production quotas in its straightening and grinding departments on September 12, 1961, making working conditions more onerous, and between Septem- ber 13 and 29 discharged seven named employees for failure to fulfill said daily production quotas; also, that Respondent interrogated its employees on various dates, including September 25 and October 2 and 11, 1961, concerning their union mem- bership, activities, and desires. The complaint alleged as violation of Section 8(a) (3) of the Act the discharge by the Respondent of 13 of its employees because of their membership in and activities on behalf of the Union.' The Respondent's answer, filed on December 4, 1961, denied the alleged unfair labor practices. Pursuant to notice, a hearing was held in Portland, Oregon, on December 19 to 21, 1961, before Trial Examiner James R. Hemingway. All parties appeared and participated in the proceedings. At the opening of the hearing the General Counsel moved to strike from the complaint the names of two employees as dischargees. The motion was granted. At the close of the hearing, the General Counsel moved to amend the complaint to conform to the proof as to immaterial matters. The motion was unopposed and was granted. The parties waived oral argument but requested and were granted time in which to file briefs with me. Briefs were thereafter received from the General Counsel and from the Respondent and have been considered. From my observation of the witnesses, and upon the entire record in the case, I make the following: 1 This group included the names of the seven in the first group. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been , a corporation organized under the laws of the State of Oregon , maintaining its principal office and place of business in Portland, Oregon, where it is engaged in the rebuilding and distribution of automobile bumpers. During the year preceding the issuance of the complaint, the Respondent manufactured, sold, and shipped from its Portland plant finished products , valued in excess of $50,000, to points outside the State of Oregon. The Respondent admits that it is an employer engaged in commerce within the meaning of the Act and I so find. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization, within the meaning of the Act, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; discrimination 1. Antecedents The Respondent on September 9, 1960, entered into a collective-bargaining contract with Independent Employees' Union, Victory Plating Works, Oreg., Ltd. (herein called the Independent), an unaffiliated labor organization of the Respond- ent's employees, for the term of 1 year, expiring on Friday, Sepetmber 8, 1961. On October 24, 1960, a supplemental agreement on wages was reached, which resulted in a 10-cent-an-hour increase in pay. On Tuesday, September 5, 1961 (the plant did not operate on Labor Day, September 4), as the foregoing agreement was nearing the end of its term, the Independent presented to Ray Polly, president of the Despondent, its proposal for a new contract. This proposal called for a 25-cent an hour increase for journeymen employees and a 15-cent an hour increase for others. Additional changes in overtime and vacations were asked. When Polly saw the demands, he said that he could not meet any of them, that therefore the employees had been demanding and getting, and that it was "his time" (i.e., turn) to demand and get. He said that he would give an increase of 5 cents an hour each year for the next 3 years. On the following day Polly told Independent's committee orally certain other changes he wanted. They requested this in writing. On September 7, Polly delivered the Respondent's "final offer" in the form of a letter. This letter rejected the Independent's proposal and submitted several changes in the expiring contract as the only ones which "our economic situation will permit." Except for a repetition of the 5-cent increase each year for 3 years, the changes proposed by the Respondent were all deletions from the 1960 agreement. Among these was one on the definition of the word "journeyman." The expiring contract had defined a journeyman worker as one who could "produce in his given job the required finished product in sufficient quantity and quality to satisfy his employer and immediate supervisor in accordance with the quality and quantity produced by other journey- men." The Respondent proposed to delete the final phrase starting with "in accord- ance."' The Respondent also proposed to delete the provision concerning laying off men in a reduction in force according to seniority, that concerning leaves of absence, and the provision for grievance procedure and arbitration in cases of discharge. The Respondent's proposals were shown to the employees and were posted on the bulletin board. The reaction was dissatisfaction. The employees began to talk among themselves about having a stronger union. The Independent's com- mittee toward the end of the week arranged a meeting to be held at the Union's hall on Monday night, September 11, 1961. Meanwhile, on Septemebr 5, 6, and 7, the Respondent held conferences which were attended by President Polly, Superintendent Richard McGowan, who was a stockholder in the Respondent, Richard Davis, foreman of the straightening and grinding departments, and, at the last meeting, Wendell Stillinger, shipping room foreman and plant expediter. The subject was the adoption of production quotas for the straightening department and an increase in the quotas for the grinding de- partment. McGowan was in favor of a minimum of 14 or 15' bumpers per day for journeymen bumper straighteners who received premium pay, i.e., in excess of $2.70 an hour, the minimum rate in that department. Davis thought that figure too high. It was finally settled that the quota should be 11 a day for men at the VICTORY PLATING WORKS, INC. 403 $2.70 wage and 13 a day for men receiving more than $2.70 an hour. The grinding department had, for about a year, been on a quota of 20 bumpers a day for each man. According to Polly, this was an average daily figure for the week. However, individual quotas had not been consistently met even on a weekly average, according to the Respondent's records. Nevertheless, the Respondent fixed a new quota of 23 a day for that department. Of the men who attended the September 7 meeting, all testified except Stillinger. The testimony of the other three was at variance as to the disciplinary operation of the quota system. When the quota in the grinding room had been 20 a day no particular penalty was imposed on those who failed to average out to 20 a day on a weekly basis. According to Foreman Davis, the new daily quota was to be averaged out over a week but, at the end of the week, the man with the lowest production below his quota was to be discharged; if there was a tie for low production, then seniority was to govern. According to Superintendent McGowan, there was not to be any weekly averaging under the new system, but the man who produced the smallest number of bumpers each day was to be terminated; that is, if two were below their daily quota, then only the lower of the two was to be terminated. But according to Polly, who also testified that the quota was strictly by the day, any em- ployee who fell below his quota for the day was to be discharged "if we so desired," meaning that extenuating circumstances could be taken into consideration if the Respondent saw fit. Thus, according to Polly, if all failed to make their quota for the day, all could be discharged if the Respondent desired. Because of the diversity of these views, I infer that most of the time in the meetings was spent on fixing the quotas and little or none was spent on penalties. At the September 7 meeting, the effective date for instituting the new quota plan was to be Monday, September 11, according to Davis and Polly. McGowan testified that no date was then set. It is possible that Polly gave instructions to Davis after the meeting of September 7, when McGowan was not present, as to when to put the quotas into effect. In any event, on Saturday morning, September 9, 1961, Polly met with Roscoe Watts, the Respondent's counsel. In a prehearing affidavit, Polly stated that he had "retained" Watts on or about September 9; so presumably Watts had not been the Respondent's attorney previous to this. What prompted Polly to consult Watts on that particular day rather than earlier was not made plain. Polly testified at one point that his reason for consulting a lawyer was because he "was getting confused . . . didn't know what was going on and thought . . . [he] had better talk to someone." At another place he testified that it was because the old contract was running out and he did not know what he could do. No evidence was given to indicate that Polly had consulated a lawyer when the last previous contract was being negotiated in 1960. On September 7, when the Respondent gave the Independent the Respondent's first and final offer, it had decided on the increased quotas and, according to Polly, had decided to make them effective on Monday, September 11. The fact that on Saturday, September 9, Polly decided to consult a lawyer gives rise to the inference that something had transpired between Thursday, September 7, and Saturday morning, September 9. The only explanation appears to be that Polly had learned that the Independent was going to meet on the night of September 11 to vote on the Respondent's last offer and, if that resulted in rejection of the offer, as appeared likely, then to vote on whether or not to affiliate with the Union. The Respondent conceded that it knew of the intent to vote on the Respond- ent's contract proposals but claims that it did not know of the purpose to take a vote on affiliation with the Union. It does not appear likely that acquisition of in- formation that the Independent was going to vote on the Respondent's contract offer would, alone, have prompted Polly to retain an attorney on Saturday, September 9. That such a vote would take place was a foregone conclusion. It appears much more likely that toward the end of the week Polly had received information of the em- ployees' indignation over the Respondent's autocratic attitude, of their disdain for the Respondent's contract demands, and of their talk of joining an outside union-particularly the latter. Arrangements to hold a meeting at the Union's hall on September 11 had been made toward the end of the previous week. A notice of this meeting was posted in the plant but it does not appear with certainty whether it was posted on Friday, September 8, or on Monday, September 11. The former date was believed by several employees who testified to be the time. Another believed it had not been posted until Monday. The notice gave the address of the Union's hall. Previously, meetings of the Independent had customarily taken place in the plant after work. The probabilities are that the Respondent learned on Friday, by seeing this notice, if it was then posted, that the meeting would be held at the union hall on Monday. 681-492-63vol. 140--27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, even if the notice was not posted until Monday, September 11, the Re- spondent had other possible sources of information. The first is the likelihood of information from an employee such as the informant who telephoned Polly on the night of the meeting (September 11) to tell him that the men were signing up with the Union. Another is the Respondent's ability to overhear employees' talk in the lunchroom and various other places in the plant. The Respondent's plant is equipped with an intercom system controlled by switches in Polly's office. If he opened the switch, he could hear anyone speaking in the vicinity of the sender-receiver boxes in various plant departments, including the lunchroom. Employees in the depart- ment would be aware that the key was open only if Polly spoke or if they happened to notice a small red signal light that would come on when the system was operating. Employee Ray Means testified that the employees had discussed the possibility of joining the Union during their lunch period after hearing of the Respondent's con- tract offer. Although Polly testified that on Monday afternoon, September 11, he was not aware of any unusual activities among the employees-no different from what it had been for the prior month-I do not credit his inferential denial that he knew in advance of the intent of the employees to meet at the Union's hall on the night of September 11. Even if he did not know that the employees intended to vote on affilia- tion with the Union in case they voted against the Respondent's contract proposal, Polly had reason to believe that something of the sort was being considered because of the place of the meeting. All the evidence of Polly's conduct between September 8 and 12 was consistent with knowledge by Polly of what was happening, and I so find. As a result of his conference with Watts on September 9, Polly decided to defer putting the quota system into effect until September 12, lest it influence adversely the vote the employees took at their meeting. As Polly was not accustomed to reaching the plant before 10 a.m., he or Watts that day notified McGowan of the change in plans and asked him to instruct Foreman Davis first thing on Monday morning, when Davis normally arrived, not to put the quotas into effect. According to Davis, Mc- Gowan, at 6 a.m. on Monday, September 11, did tell him not to put the quotas into effect, explaining that the men were going to have a meeting that night to "take a vote on the Machinists' Union, whether they wanted to join or not" and that, if the quotas were imposed, it might sway the vote so that they would go into the Union; but he told Davis, according to the latter, to put them into effect on Tuesday, September 12, whether or not they joined the Union. Although Davis did not qualify what Mc- Gowan told him about putting the quotas into effect the next day, this is puzzling, be- cause Polly and McGowan both testified that the decision to put the quotas into effect on Tuesday was made at a conference on Monday afternoon after Davis had left the plant. It seems likely that Davis' testimony regarding the putting of the quotas into effect on Tuesday was a result of his interpretation rather than of Mc- Gowan's express words. After the employees had quit for the day on September 11, President Polly, Superintendent McGowan, Foreman Stillinger, and one of Respondent's truckdrivers, Richard Hans, held a meeting. The presence of Hans was explained by the Re- spondent as due to the fact that Hans had (for a while before his employment by the Respondent) been a superintendent of a company in the same business as the Respondent before that company went bankrupt and that Polly wanted his advice. Of those present at this meeting, only Polly and McGowan testified. The fact that Foreman Davis was not notified of this meeting and that Hans attended it warrants an inference that the meeting had not been planned long before it took place, or that the subject of discussion was more the union activities of the employees than it was quotas, or both. Because Hans attended the meeting at the Union's hall that night, the conference with Polly, McGowan, and Stillinger could have included in structions which Hans later followed. Failure of the Respondent to invite Davis to this conference could also be explained by the fact that Davis had several relatives by blood or affinity among the employees under him and they were favorable to the Union. Polly may well have believed that Davis would communicate with such employees and reveal the Respondent's plans adopted at this conference. Polly and McGowan testified that, at this conference, the Respondent decided to put the quotas into effect on the following day.2 2 Polly testified that this meeting was held between 3 and 5 p .m. on September 11. McGowan testified merely that it took place after 2.30 p.m ., without saying how long after Neither of the other men present testified. Polly's credibility as to time elements is subject to question in view of the variance between his testimony and his affidavit as to the time when he learned what happened at the union hall on September 11. I am not fully convinced that this meeting took place at the time testified to by Polly. I merely find, therefore, that the meeting took place on September 11 at some time between 2:30 p m. and midnight. VICTORY PLATING WORKS, INC. 405 About 8 p.m. that night, about 44 or 45 of the Respondent's employees (which number would include most of the employees in the appropriate unit) met at the Union's hall with several representatives of the Union and of its related locals- Carl Roberts, James Blackwell, and Thomas Stewart. A vote on the Respondent's contract proposal was first taken. It was rejected by a vote of 38 to 6. Blackwell and Roberts were then invited to speak. Roberts told them how they could become members of the Union. It does not appear whether or not this included the Union's taking over the Independent and claiming successorship rights. Another vote was taken on the question of whether or not the employees wished to be represented by the Union. The result of this vote was the same as the first, 38 to 6 for representa- tion by the Union. Thirty-seven signed authorizations for the Union that night. Polly testified that at 11 p.m. on September 11, Hans, the driver previously men- tioned, telephoned Polly and told him that the employees were signing up for the Union and asked if Polly wanted him to join. Polly testified that he told Hans that that was his choice .3 In fixing the time of this call as 11 p.m., Polly, in his testimony, departed from his prehearing affidavit where he averred that "my first knowledge that the men were thinking of affiliating with machinists came after the fact of affiliation when I was told on the morning of September 12 that it had happened, when I came in to the plant about 9 A.M." 2. The discharges a. Facts showing motive for discharges As a result of the conference between Polly, McGowan, Stillinger, and Hans on September 11, McGowan testified, Polly told him to notify Davis before 6 a.m. starting time, that the quotas were to go into effect. McGowan testified that because Davis was late in arriving in September 12, he did not wait for him at the entrance but went to the plating department after first asking Edward Redo, foreman of the polishing department, to tell Davis he wanted to see him. Although both Davis and Redo testified, neither was asked if Redo had conveyed such a message. McGowan testified that "that was done," meaning apparently, that Davis came to the plating department where, McGowan testified, he told Davis to "put in the quota system starting as of that shift, 6 a.m. that morning, eleven and thirteen." Davis mentioned no such incident but testified that when he arrived on September 12, he assembled the men in the straightening room and announced the new quotas-I I a day for the journeymen earning $2.70 an hour and 13 a day for the men earning more than $2.70 an hour. There were a couple of new men to whom quotas would not apply because they were considered as apprentices. Davis also explained to the straighteners the penalty for failure to meet the quota. He told them that at the end of the week, the low man, if below quota, averaged out for the week, would be discharged and that in case of tie, the man with the least seniority was to be the one to be discharged. Davis then went to the grinding room and told the grinders that anyone who had been employed for longer than 30 days would have a quota of 23 bumpers a day and explained the penalty as he had to the straighteners. The following incident, according to Davis' testimony, took place about 9:30 a.m. that day, while he was in the welding room doing some welding. McGowan came to him and said that he understood the men had taken a vote to join the Union. Davis replied that he so understood. McGowan said, "Well, Mr. Polly's kind of put out about that. . If they can play rough, well, we can to.. . So change it from a weekly basis to a daily basis as of right now." 4 McGowan did not specifically deny having spoken these words. His only denial was his testimony of having given Davis the instructions presumably soon after 6 a.m. (in which testimony he did not purport to quote himself directly) and his testimony that from about 9 a.m. to nearly 11 a.m. he was closeted in a conference in Polly's office. Besides the testimony of Polly, there is testimony of Business Agent Roberts that McGowan was in Polly's office at the time he was ushered into that office shortly after his arrival at the plant 3 There was testimony that the truckdrivers (who had been members of the Independent) were opposed to joining the Union. In view of this and of Han's attendance at a con- ference with Polly and McGowan on September 11, I doubt that Hans' question and Polly's answer were intended to be taken seriously. 4 On cross-examination, Davis quoted McGowan again (with a slight variation) as say- ing, "If the fellows want to play that way, well, we can play rough too. Ray [Polly] says to change it from a weekly to a daily, right now." Here, Davis added something, which he had not testified to before, that McGowan also said that "there are some things a man don't like to do, but . . . you got to do them-I got to do things just like you do, Dick. . . I might not agree with him all the way." 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 9:20 a.m. that morning. On the other hand, a number of employees testified to having seen McGowan at the welding room about 9:30 a.m. on September 12. Because Polly and McGowan appeared to me to be withholding or covering up cer- tain information, I would not place much weight in their testimony of the time McGowan went to Polly's office for a meeting. But if all the witnesses excepting Polly and McGowan were credited in their memories of the time when they saw McGowan at the welding room or in Polly's office, it might still be necessary to rely on the fact that the witnesses were merely testifying to an approximation of the time and to find that "about 9:30 a.m." could mean a variance of 15 minutes or so either way. So, if Polly and McGowan be not credited as to the length of time that McGowan was in Polly's office on the morning of September 12, the incident testified to by Davis could have occurred before or after Roberts' visit, which lasted no more than 10 minutes. Because Davis and the production workers who testified as to the time of their seeing McGowan at the welding room were fixing the time by the fact that it was shortly before the coffee break and were not examined closely about the date, there is a possibility that the incident may have occurred on September 13; or, if it occurred on the 12th, there is a possibility that it occurred shortly before the first coffee break instead of shortly before the second one, or that it occurred imme- diately following Polly's arrival and before McGowan went to Polly's office. I notice from the records of the straightening department that few men made their quota on September 12, but most of them began to make it beginning with the 13th. Yet no one was discharged on September 12. This fact supports the conclusion that the incident may have occurred on the morning of September 13. Whatever the day and hour, however, I am convinced and find that McGowan did convey to Davis the message from Polly to discharge on the basis of a daily rather than a weekly quota.5 A possible inference could be drawn that a misunderstanding between Polly, McGowan, and Davis as to how the penalty would be carried out had existed from the outset on September 7, and that on September 12 or 13 Polly explained his understanding to McGowan, who passed this along to Davis. Because of the diffi- culties that might be expected to be encountered in maintaining the daily quota constantly, however, I am unable to believe that Polly, from the outset had ex- pected to discharge every man who failed in his daily quota on any one day. He should have known that this would sooner or later result in the discharge of nearly all his employees, especially in the straightening department, where the greatest difficulty was to be encountered in maintaining a daily quota and maintaining the quality of the work at the same time. I conclude, therefore, that when the Re- spondents fixed the quota on a daily basis and determined to discharge those who did not maintain their quotas, the Respondent did so for the purpose of ridding itself of as many of its employees as it chose to eliminate, whether or not those eliminated included the better qualified workmen. Such a purpose could only have been moti- vated by a bias arising from some cause other than lack of qualifications on the part of the discharged employee. Because of the timing and the way in which the Re- spondent's purpose was effected, and because of evidence indicating bias, I conclude that the Respondent's purpose was to eliminate those whom Polly believed to have been favorable to the Union. On September 12, Polly arrived about 9 a.m., an hour earlier than his usual practice, because Attorney Watts was to be there. About 9:20 a.m. Roberts, ac- companied by the union representatives who had attended the meeting the night before, arrived at the plant. When they were ushered into Polly's office, Polly, Watts, and McGowan were already there. Roberts handed Polly the Union's letter claiming majority representation and requesting bargaining. Polly read it aloud to the others and, according to Roberts, said, "Well, I understand you have been desiring to take a crack at me for a long time." Polly quoted himself as saying that, as he understood it, the Union did not represent the employees until it was so decided in a Board-conducted election and that if that were true he did not intend to negotiate until the Union actually represented the men. Watts told Roberts that the Respondent was willing to sign a consent-election agreement and 5 Polly testified that it was never on any basis except daily McGowan in his testi- mony, although agreeing with Polly that the quota was daily and not a weekly average, gave indication of having had an understanding of the penalty for failure to make the quota that was similar to that which Davis testified was adopted at the meeting on September 7, for McGowan testified that the rule was to be that the man who produced the smallest number per day was to be discharged. This apparently did not envision the discharge of every man who fell below the quota, which is the way Polly would have it appear and the way in which the Respondent applied the quota system during the re- mainder of the month of September. VICTORY PLATING WORKS, INC. 407 have an election at an early dates Polly told Roberts that Watts would be repre- senting the Respondent and that the negotiations would go through him. After Roberts and his associates had left, on the morning of September 12, Watts remained for nearly 11/z hours and explained what the Respondent could and could not legally do. What this advice was does not appear. In any event in a period of about 2 weeks thereafter, the Respondent discharged six employees for failure to make their daily quotas on the day of their termination It is undisputed that, at the 10 o'clock coffee break (the men started work at 6 a.m., had a coffee break at 8 a.m., another break at 10 a.m., a lunch period, presumably of one-half hour, and quit at 2:30 p.m.), be the day September 12 or 13, Davis announced to the men in his department, both straighteners and grinders, that the Respondent was changing the weekly average, which he had previously announced, to a straight daily basis at once. One man in the grinding department asked Davis if this change was because of the vote for the Union, and Davis replied that it looked that way to him. The Respondent adduced testimony to show that this was not the first time that the Respondent had discharged for failure to meet quotas, giving, as an example, the discharge of Ervin Dunn in 1955 for failure to produce a quota of 10. When Dunn was hired, he apparently represented himself as an experienced bumper straightener, and was given a wage commensurate therewith. It soon became ap- parent that he was not experienced, and he was discharged, but he was soon re- hired at a reduced wage until he reached the journeyman's level of production. That new employees who failed to produce up to expectations were discharged is evident, but this does not mean that all experienced men were so treated. The evidence that quotas had existed before September 1961 for both polishers and grinders is clear. The quotas for the journeyman grinders was fixed at 20 in November 1960 and had been in force thereafter until they were raised to 23 a day on September 12, 1961. However, the evidence also shows that the figure of 20 had been treated as a norm for journeymen. No journeyman had been dis- charged for failure to make that quota either on a daily or on a weekly basis. I conclude, therefore, that, if new men did not come up to the quota within a cer- tain period of time, the Respondent would terminate them, but, once a man proved capable of doing the work, he was not penalized for failure to meet the quota on a single day or even in a single week. Davis testified that if the men did not meet the quota, they were "jacked up" occasionally. Discharge for failure to meet the quota was, therefore, an innovation in September 1961, whether based on produc- tion in either a single day or in a single week. Polly, testifying that the quotas had been established because of the need for improving production, claimed that production was falling off in the spring and summer of 1961 and that the cause was insufficient production per man from Davis' department. He testified that Davis had resisted keeping a daily record of the production of individual men and that, in August 1961, the Respondent had insisted that Davis keep one. Presumably this record referred to one for the straightening room, because records for the grinding room for the months of May, June, and July, as well as later ones, were introduced in evidence. Records of bumper straightening for the month of July 1961 and later were also introduced in evidence, so Davis must have begun to keep such records in July 1961. The Respondent introduced in evidence figures which it had prepared to show produc- tion per man-hour from May through November 1961. The original records from which all this information had been collected for this study were not made availa- ble. The figures introduced in evidence show the average number of bumpers per man-hour for May to be 0.682; June, 0.611; July, 0.524; August, 0.633; Sep- tember, 0.564; October, 0.496; and November, 0.630. The figures introduced in evidence purport to be figures for the combined straightening and grinding pro- duction. I have attempted to reach the same result by use of the data furnished on daily production records but without success. From these records I counted as full days all those shown as worked unless part-time was indicated. The total number of hours fell short of those shown in the exhibit of man-hour production. Without seeing the original records, one receives only a partial picture which does not alone justify a conclusion that the lower production figures at any given time (even if they were conceded to be accurate) were attributable solely to lack of sufficient individual effort in the straightening or grinding rooms, which were the targets of the Respondent's criticism at the hearing. For example, the summer months were vacation months. When regular grinders or straighteners were on 6 It was stipulated that the election was conducted on September 22, 1961, and that the vote was 33 for the Union and 8 against. Some employees had been discharged before the day of the election. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacation someone would have to substitute or the Respondent would have to hire new men in order to prevent a noticeable drop in production . The substitute or new man, being less experienced, would reduce the man-hour production figure. This is quite evident from production records of the grinders, for in May and June there were eight grinders, seven of whom were producing close to quota, whereas in July there were only six of these regulars who put in the full month. Two new men appeared in the latter part of June, three new men appeared on the record in July. As the new men became more proficient in August, production increased . From my study of the Respondent's records, I judge that employee turnover and the training of new men was a major contribution of any period of low production experienced by the Respondent. Nevertheless, the Respondent had decided that more production per man was necessary even from experienced men. This decision appears to have been reached in conference during the week in which the Independent had presented its new contract demands. Polly's remark that the employees theretofore had been "get- ting" and that it was now his turn, taken with his one and final offer cutting down considerably on existing privileges, and his decision to raise quotas, reveal a "get- tough" attitude. Even if the Respondent had been justified in its decision to raise quotas, its decision to commence discharging men for failure to make quotas, especially on a daily basis, has all the appearance of reprisal because of the new demands made by the Independent. The work in the straightening room was of a kind where it was especially difficult to maintain consistently high production, while that in the grinding room, although not quite as bad as in straightening. was worse than in the polishing or plating departments In the straightening de- partment, if a man worked on nothing but good bumpers, he might turn out as high as 30 in 1 day. On the other hand, if he worked on nothing but bad ones, he might do only 3 or 4 a day. If it were always possible to make a distribu- tion of bumpers which averaged out the same for each man, the straighteners might be expected to have a fairly uniform production. However, the foreman, who would distribute the bumpers, cannot always accurately judge how much tittle will have to be spent on a given bumper. He might estimate one for an hour's work and an experienced and able man might encounter such problems with it that it would take him 3 hours to straighten the bumper satisfactorily. It was the practice of the foreman to try to even up by giving a man an easier bumper to help him catch up, but it was not possible to be sure that this purpose could be accomplished Following spells of bad weather, the bumpers coming in would be in worse condition than in good weather. Hence, there might be a period of time when better bumpers were not available to improve a man's production. Then production in the straightening and grinding department would fall off be- cause of this excess of bad bumpers. Between September 12 and 18, 1961, Foreman Davis had several conversations with President Polly concerning the subject of bargaining with the Union In the last of these, occurring about September 18, Davis asked Polly what he was going to offer in negotiations. He quoted Polly, who was not asked about the conversation, and who did not deny that it had taken place, as saying that if the employees thought the offer he had made to the Independent was bad, the offer would be less this time. Polly said, "If they want to go on strike, that's fine; then the men that want to cross the picket line, I can just take my pick and keep any of the ones that we figure won't cause us any trouble." 7 Beginning shortly after the election on September 22, 1961, which the Union won, Polly began to show concern over a possible strike and to ask employees their intentions if there should be a picket line. Two of the employees so testi- fying were Claud Pierce and Keith Jackson. Pierce testified that on September 24 Polly came through his department and stopped to speak with him. According to Pierce's undenied testimony, Polly asked Pierce if he would go through a picket line if there were a strike. Pierce answered, "No," and Polly remarked that "those union guys must have really filled your head up with a bunch of s .' Polly told Pierce that he knew the eight men who had voted "for the company" and "the thirty-five that had voted for the Union." 8 Twice in the next 10 days Polly ques- tioned employees about their intentions to cross a picket line. These will be more specifically related hereinafter. 7 Other testimony of Polly's attitude toward those who said they would not cross a picket line will be set forth hereinafter. 8It was stipulated that the vote was 33 to 8 for the Union. No mention was made of the total number of ballots cast or of challenged ballots. VICTORY PLATING WORKS, INC. 409 b. Discharges preceding the union election (1) Discharge of Lehr and Wegener On September 12 all the experienced grinders who had been employed for more than 30 days made their quota (the new men did not come close to it). One man, Gilbert Lehr, who had been employed only a little longer than 30 days was absent that day. On the following day, September 13, four of the men on quota failed to make the required number. Two of them, however, had not worked a full day and so were not penalized. The other two were Leon Wegener, Davis' brother-in-law, who produced 22 bumpers, one short of his quota, and Gilbert Lehr, who produced only 16. Both were discharged by Davis at the end of the day. Polly testified that he believed he had ordered their discharge. (2) Discharge of Calabro On Friday, September 15, George Calabro, a grinder, got a piece of steel in his hand and went to the office to try to gat it out. While there he spoke with Polly, who suggested that Calabro go to a doctor. Calabro said that it would not "do any good" because the bumpers were too rough and he did not think he would be employed after that day because he would not make his quota for the day. Polly said, "That's too bad." Calabro made only 14 that day and was discharged for failure to make his quotas.9 Another man also was discharged on September 15, but Davis testified that he was a new man who was not going to make good and that his discharge was not because of failure to meet the quota. (3) Discharge of West On September 18, 1961, Alfred (Pat) West, a grinder, was terminated when he made only 22. West had fallen short on Friday, September 15, also, but was not then discharged. No explanation was given, but this evidence suggests that who- ever determined the selection for discharge that day may have done so on the basis of discharging only the low man for the day, and Calabro was lower than West that day, but on Monday, September 18, West was low man. It is also possible that West might have been assigned to another job on Friday, September 15, for part of the day, although normally a notation of this or of short hours would be made on the production record, and none appeared there West attributed his failure to make his quota to the fact that, in an effort to reach their own quotas, the men in the straightening department were turning out bumpers in a rougher condition than they had before the quota system was put into effect. I find some basis for this opinion of West. c. Discharges following the election (1) Discharges in September (a) Circumstances preceding the discharges On September 25, Foreman Davis had a discussion with McGowan and Polly about the condition of the bumpers coming from the straightening department. McGowan claimed that the work was not as good as it formerly had been. While Polly and McGowan were inspecting a bumper, Davis got into an argument with them about conditions in the shop and gave them 2 weeks' notice of his intent to quit. The next day, September 26, before 6 a.m., McGowan told Davis that Don DeRosia, a leadman in the plating department, would become foreman to succeed Davis, and he asked Davis to teach DeRosia all he could in the next 2 weeks. That day, Davis showed DeRosia how to straighten bumpers, DeRosia never having done this work. During that day, while DeRosia was working across the straightening room from Ray Means, one of the premium-paid straighteners, Means engaged in horseplay. Occasionally, when one of the men went into the restroom, one of the other employees would throw a hard object at the door to startle the occupant. This was repeated often enough so that it would knock the panel loose in the frame of the door. No one had ever been reprimanded for this type of horseplay. The object 9I notice that Calabro had, on 1 day in August, made only 14, but he had fairly con- sistently made the quota of 20. For example, of 20 days worked in July 1961, Calabro had ground 20 or more bumpers on 14 of those days, had ground 19 on 2 days, 18 on 3 days, and 17 on 1 day. In August, he had fallen short in varying degrees on 7 days and made 20 or more on 16 days. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most commonly used for this purpose was a dolly, a metal implement or tool weighing about 2 or 21/a pounds. The evidence was disputed as to what implement Means used on September 26. He testified that it was a dolly. DeRosia, who witnessed the act, said it was a bending bar a, heavier tool. Others variously testified it was a dolly, or a mall. Means testified that after he had thrown the dolly, employee Jack Buckmeir had thrown an eight-pound mall at the door and that the mall had gone through the door panel, that is, pushed the panel in about 7 or 8 inches, the mall dropping inside. He was confirmed in this by Jacob Hubert. Buckmeir denied that he had thrown the hammer and claimed to have been the man inside the door at the time. However, it seems likely that Buckmeir had another incident of this kind in mind, because he testified contrary to the testimony of the others, that nothing had come through the door on the occasion to which he testified. Polly was informed at the end of the workday of the damage to the door. He testified that the repairman had told him. The information which identified Means as the cause of the damage, how- ever, came to Polly from DeRosia. On the morning of September 27, 1961, DeRosia ceased to take instructions from Davis on bumper straightening. When asked by Davis if DeRosia did not wish to be show how to straighten bumpers, DeRosia replied, according to Davis, that he guessed "the main reason I'm up here now is just to watch certain men over there in the southeast corner ... try to get something on them to get them fired for it." De- Rosia did not mention names but Davis interpreted this remark to be directed at employees Means, Dunn, and Williams. Later that same morning, DeRosia went out to the roof of the adjoining building, to which a door from the straightening room leads, in order to speak with Davis, who was there gathering up "small pieces." DeRosia told Davis that he had a problem he wanted to discuss with Davis. Then he told Davis that McGowan wanted him to keep a written record of each bumper that was finished and of any act for which someone might be discharged. He was concerned about the reaction of the men, he said, and did not know whether or not to tell the men in advance what he was going to do. DeRosia was not able to recall much of what was said in this conversation, but he testified that he spoke to Davis about whether or not he would be able to get as much production as Davis had and "I believe there was something mentioned of union activities." DeRosia decided that he would like to speak with some of the men about his problem and asked Davis to call then out onto the roof.10 It was about 9:30 a.m. when Davis asked Means, Dunn, and Williams to step out. They did so. Why Davis selected these three men to speak with DeRosia was not explained, but a brief sketch will give the probable reason. Dunn had been president of the Independent and, when he had learned that the men wanted a stronger union, he had made arrangements with the Union for the meeting on the night of September 11. Williams had been vice president of the Independent. He and Dunn worked together as straighteners of small parts. Dunn had cut his hand on Friday, September 8, and had had to have stitches taken in it. He did not return to work until Thursday, September 14. While Dunn was away, Polly and McGowan had decided to put him back on bumper straightening work which he had not done since January 1959. One day before Dunn returned, while Foremen Davis and Stillinger were discussing between themselves the question of whether or not Stillinger would be getting enough small parts, after Dunn returned to bumper straightening, to meet his orders, they were joined first by McGowan and then by Polly. McGowan commented that Williams had produced more when Dunn was away on his vacation than he did when Dunn was present. Davis explained that this had happened because he and others had helped Williams while Dunn was away. When Polly joined the group, according to Davis, McGowan explained what they were talking about and Polly said that he thought he could make it harder on Dunn if he were put back on bumpers, "because he figured," according to Davis' testimony, "that Dunn and Williams were the men responsible for talking the others into the Union." Although Means had not been an officer of the Independent, as had Dunn and Williams, he had once been a member of the Union, and he spoke in favor of it at the union meeting on Septem- ber 11 when the employees chose to have it represent them. As a bumper straight- ener, he was one of the top producers and was a premium paid employee. When the three went out on the roof at Davis' request on the morning of Sep- tember 27 to speak with DeRosia, they had a conversation, the substance of which was related in different ways in the testimony with varying degrees of recollection. I have collated the testimony and find that it was substantially as follows. Davis told them that DeRosia was to be the new foreman and that DeRosia had a problem 1o Whether Davis suggested calling some employees out and DeRosia consented or whether the suggestion came from DeRosla is not entirely clear. VICTORY PLATING WORKS, INC. 411 he wanted to discuss. DeRosia told the men that he was required to make a written report of individual production and of misconduct. He said he did not want to lose the respect of the men but that he wanted the job because it paid more than he was then getting. DeRosia said it seemed like he was there just to watch trouble- makers, that he had talked with management several times in the last few days and each time there was mention of three or four men that the Respondent would like to see go. Dunn said that they (he, Means, and Williams) were probably the three. Williams asked whether the Respondent wanted them to quit or whether it wanted them to stay and get discharged. DeRosia said that the Respondent would prefer that they quit, because then there would be no "comeback" and they would not be able to draw unemployment compensation. Means quoted DeRosia also as saying that the Respondent was going to make an offer to the Union that would be so ridiculous that the Union would laugh at it and also as saying that, as far as management was concerned, the whole bunch could leave or go on strike and he would take back the men he wanted, but on his own terms. Following this conversation the men returned to work. (b) Discharge of Means Between 10:15 and 10:25 a.m. that same morning, Polly came to Means and told him that he understood that Means was responsible for damaging the restroom door the day before and that for "malicious destruction" (according to Means' testi- mony) ti he was discharging Means and that Means could leave at 10:30 a.m. Polly and Means differed somewhat in their testimony of what Means then said, but it was agreed that Means made some statement about getting unemployment compensa- tion. Polly said that for the reason he was discharging Means, it would be some time before Means would get unemployment compensation. Means said that he was not responsible for all the damage to the door. Polly did not apparently question him about this and the conversation ended. Means testified that on his way out, after picking up his belongings, he remarked to Polly that Polly had "quite a com- pany going" and that Polly had replied, "I did until I hired some agitators." When Means asked if Polly thought of him as an agitator, Polly replied that he did, accord- ing to Means' undenied testimony. Polly testified that the door was in such condition that it had to be reassembled. The evidence as a whole reveals that the door which was damaged was an old one of inexpensive type, that it had been damaged before in a similar fashion although somewhat less sharply, that on previous occasions the maintenance man had just nailed it together again, that on this occasion the maintenance man had repaired the door by nailing a piece of plywood over the broken panel, and that Polly had collected $15 from his insurance company for the damage. Polly testified that, on the day before, the maintenance man, after repairing the door, had told him of the damage and that the repairman thought Means had done it, but that Polly did not discharge Means until the following day because he wanted confirmation He testified that he made an investigation the rest of that day (Sep- tember 26) and during the morning of September 27. Because Polly testified that, on September 26, DeRosia had gone home before he commenced his investigation, which he purportedly carried on that afternoon and the next morning, he did not learn from DeRosia until the next day that Means had broken the door, l conclude that Polly's "investigation" was limited. If DeRosia had gone home with the men at 2:30 p.m on September 26, no one else would have been around to be questioned and Polly's customary arrival time in the morning was 10 a in. Little time would have remained between then and the time when Polly discharged Means. Polly's testimony was not fully in accord with other credible testimony. For example, Means testified that, at 8 a.m. on September 27, Foreman Davis told him that if he wanted to quit he had better do it that day "because they're really going to make a big issue out of this restroom door incident...." This shows that the decision to dispose of Means was made before Polly's alleged investigation on the morning of September 27. The only time when it could have been made by Polly, who apparently was the one who made the decision, was on the day before, because Polly would not have been at the plant on the 27th before 8 a.m.12 But Polly testified that he could not make an investigation the day before because everyone had gone home before he learned of the door incident. Polly's investigation apparently did n Polly testified that he said "wilful destruction." The grounds for discharge listed in the Independent's contract included, among other things, "malicious damaging of com- pany property." I find that Polly used the word "malicious." 12 I infer that Davis got his information from McGowan or DeRosia on the morning of September 27. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not even include an inspection of the door, because it had already been repaired before he learned of the damage. Because Polly failed to ask Means about his part in the damage to the door before he had made up his mind to discharge him, because he failed to make any further investigation after Means had said that he was not solely responsible for the break- ing of the door, because he made no real effort to learn all the facts, because Means was a top producer whom an unbiased employer would not hasten to discharge, because of the fact that the damage was caused by horseplay rather than by malice, because of the earlier condition of the door, the quickness of repair , and the compen- sation received by Polly for the damage, as well as all the evidence in the case, I conclude and find that the Respondent discharged Means in order to rid itself of an advocate of the Union and not because of the damage he caused. (c) Discharge of Dunn and Williams Ervin Dunn was first employed in January 1955 as an experienced bumper straight- ener but was unable to finish a minimum of 10 bumpers a day.13 He was therefore discharged but was rehired at a reduced wage, and he made it a practice to come in an hour early for 6 months in order to learn. In January 1959, Dunn broke his ankle and was out until August of that year. When he returned, he was put on the job of straightening small bumper parts, and he remained on this work until the time of his discharge. Davis testified that he thought Dunn did a good day's work but that Polly and McGowan had talked about Dunn's ability to produce and that he had heard Polly speak of Dunn as a troublemaker. Polly admitted that he thought of Dunn as a troublemaker-the kind who would do as little as possible to get by without getting fired and who was discontented with conditions-that they never suited him. Some insight into Polly's meaning may be revealed by an incident that occurred earlier in the same year. The Respondent had in its employ in June and July 1961 a man by the name of Warren Goodman About mid-June 1961, Polly issued an order that thereafter the top grinding rate would be the same as the minimum rate, $2.40, rather than $2.70 as the top rate had been theretofore. In other words, after that date no grinder was to receive a premium rate. Those who were already getting more than $2.40 were not cut, but others had no chance thereafter to get such higher rates. In the presence of McGowan and Davis, about the end of June, according to Davis' undenied testimony, Polly said that Goodman was the one who was trying to get the men to go to the Independent and try to "buck" this order and he wanted to find some way to terminate Goodman so that he would not persuade the men to do that In July, Goodman had to go to the hospital for a hernia operation, he having had previous ones. Polly then told Davis that he was going to lay Goodman off as a bad health risk and get rid of a troublemaker at the same time. Leon Williams was hired on January 3, 1957, and was employed continuously there- after until the date of his termination. He and Dunn had worked together in straightening small parts since about August 1959. Before the quotas system, accord- ing to Williams, they averaged about 25 small parts a day each. About September 13, the Respondent set the daily quota for them at 33 each. Thereafter, Dunn and Williams got exactly 33 per day, no more and no less (except on a few days when they did not work a full 8 hours), until their final day. When employees did not work a full day, Polly prorated their production to determine if they were producing at the same rate per hour. If they were, they were not discharged for being short. On September 28, 1961, Polly told Davis that there was no use having two fore- men in the same department 14 and that he thought DeRosia could handle the de- partment; so he was going to give Davis his 2 weeks' pay and let him go early. The evidence is not clear as to the time of day of this incident or as to whether or not Davis finished out the day, but presumably he did because Williams testified that Davis brought them their small parts and that DeRosia would be with Davis when Davis brought them. Williams testified that Davis told him that he (Davis) was being let go that day and that, in case he and Dunn did not know it, they were the remaining two of the three that the Respondent was trying to get rid of in the straightening room. Davis told Williams that he, himself, was being watched by DeRosia and could not bring Williams and Dunn any easy parts to work on. 13 The automobile bumpers being straightened in 1955 were much simpler than those coming through between 1956 and 1960; so 10 bumpers a day was a fairly low figure then. Furthermore, as former Foreman Davis testified, the straighteners were doing very little dollying before June 1959, and therefore should not have taken so long as after that date, when dollying became an added function of the straighteners. 16 DeRosla remained on an hourly rate for about a month after Davis left VICTORY PLATING WORKS, INC. 413 That day, the record shows, Dunn turned out 23 parts in 7 hours and Williams turned out 24 in 71/2 hours. In that time, to reach their quota rate of production, Dunn should have turned out about 28 or 29 and Williams about 30 or 31. No explanation was given of their short hours that day. When Polly got the records after work that day and saw that Dunn and Williams had not made the small parts quota, he telephoned Williams.15 Polly, according of Williams, said, "I see you don't like to work here any more," that he replied that that was Polly's opinion, that Polly had said he could not figure out how, for 2 weeks, Williams and Dunn had been able to meet the quota and then all of a sudden could not make it, that he told Polly that it looked as if "it had been rigged" so that they could not succeed, and that Polly had denied this. Williams also quoted Polly as saying that he had enjoyed working with Williams and that his discharge was not because of union activity. Polly confirmed parts of this conversation, but he also testified that Williams had said that he was not a machine and that they did not make their quota because they had had bad parts. This did not deter Polly from discharging Williams or Dunn, however. Polly testified that the Respondent had no telephone number for Dunn and so he told McGowan to tell Dunn the following morning that he was discharged. McGowan did so. There is no evidence that Dunn was then asked for an explanation of his failure to make his quota. The Respondent argues that Dunn and Williams deliberately failed to meet their quotas in order to invite discharge. Some of the facts lend a possible basis to a suspicion that such might have been the case. The fact that Dunn and Williams day in and day out for 10 or 12 working days had turned out parts exactly at their quota rate suggests that they might have been limiting their performance, because from all the evidence one might expect that production would vary from day to day according to the proportion of bad parts coming through. Williams explained the uniform volume of production of parts by the fact that he and Dunn were receiving help from their grinder and, in welding, from Davis, and also that when they had an easy day they would store extra parts they had done and turn them in the next day when they had rough parts and needed them to make their quota. There was no evidence to contradict any of this. Although the bumper straighteners could not practically carry over completed bumpers from one day to the next, it is conceivable that the small parts straighteners could conceal their extras and hold them over, especially if Davis had cooperated with them, which I surmise he had. On September 29 after the discharge of Dunn and Williams, the records show that their jobs were filled by their grinder, identified only as "Mike," and by one of the bumper straighteners, identified as "Jack B." on the record. I infer that this is Jack Buckmeir, who until then was shown as a bumper straightener. I also infer that Buckmeir was a premium man, for he had been turning out 13 bumpers a day during the quota period in September. On September 29, Mike and Jack B each turned out 18 small parts. Mike had been learning to straighten small parts for some time before September 28 and apparently was capable of turning out an average in excess of 20 parts a day with an occasional day when he could make as high as 34 to 38. Since he completed only 18 on September 29,16 there is some basis for believing that there had been, in fact, a run of bad parts, as Williams testified. During October, Jack Buckmeir turned out an average of about 18 a day, while Mike averaged about 24 a day. On all the evidence, I credit Williams' testimony that he and Dunn had had bad parts to work on during their last day and that they did not deliberately fail to make their quota. On all the evidence, one is justified in concluding that Polly was rigidly enforcing the daily quota to get rid of men who he considered to be "trouble makers " That epithet, I deduce, meant anyone who did not gracefully accept the terms and condi- tions imposed by Polly. Thus, it included any advocate of the Union. It is con- ceivable that Polly might have found an excuse not to discharge Williams for failure 15 According to Polly's direct testimony, he first telephoned Davis and asked about Dunn and Williams and that Davis had told him that Dunn and Williams "didn't make it." Polly quoted himself as saying that "they were on quota-what are we going to do about it?" He then quoted Davis as saying, "That's up to you " Then, Polly testified, he talked the matter over with McGowan and decided that "We had a daily quota" and "if they didn't make it on daily quota, they were to be discharged for that reason " When Davis was on the stand he was not asked by Respondent's counsel if Polly had telephoned him about Dunn and Williams. On cross-examination, Polly testified that Davis had dis- charged them Later on re-cross-examination, Polly testified that Davis had nothing to do with their discharge. In view of these contradictions and of the improbability that Polly would telephone Davis, after his services had been terminated, to ask him what to do about Dunn and Williams, I find no such conversation took place. Is Between September 30 and October 19 Mike had not failed to turn out 20 or more parts a day. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make his quota on September 28 if he could have justified the discharge solely of Dunn on that day. Although Williams had been the vice president of the Independ- ent and was present when Polly presented his contract counterproposal , I judge that Williams might have been less outspoken than Dunn. Furthermore , Polly thought of Williams as a better producer than Dunn . By keeping Williams, Polly could have come fairly close to his set production schedule while training someone else eventually to take Williams' place. However, whether or not Williams, himself , was discharged because of his union activities , I find that it is clear that , at the very least, he was dis- charged in order to attempt to justify the discharge of Dunn , who was, I find, dis- charged because of his union activities. It is significant that the Respondent was will- ing to hear an explanation from Williams but gave Dunn no opportunity to offer one even when he came to the plant on the morning of September 29. Polly's instruction to McGowan was to discharge Dunn when he arrived, not to hear his ex- cuse and pass on it first. From the discharge of Dunn and Williams , as well as those preceding them , it might be supposed that Polly, after the setting of the quotas, was merely letting the chips fall where they might and was not softening the rule for anyone. However, when asked to state exactly what the rule was that had been formulated on September 7, Polly answered that the quota was on a daily basis and that a man who failed in a day to make that quota was to be discharged "if we so desired ." By that, he explained, he meant that "if there were extenuating circumstances , if the man tried , if there was any reason why he couldn 't make it, then he wouldn 't be discharged." It is quite evident that, before October 1961, however, such extenuating circumstances were not considered . The only thing that was taken into account was the actual time worked on the job-that is to say, if a man was tardy in getting to work, if he was put on another job during the day, or if time was lost at the instance of manage- ment, a production below quota was excused if it was approximately at the quota rate. On all the evidence I conclude and find that Dunn and Williams were discharged in furtherance of a plan to eliminate employees favorable to the Union , thereby discouraging union membership and activity. (2) Discharges in October (a) Changes in quota system The original charge was filed on September 20, 1961. Polly learned of it on September 22. Some time following this time-dates were not given-Polly was advised by the Respondent's attorney, Watts, to change the quota system to put it on a weekly basis instead of a daily basis . Because Polly testified that he so in- structed Foreman DeRosia and because DeRosia testified that he went on a weekly basis from the outset of his foremanship, September 29, it would appear that the change to a weekly basis was made shortly after the discharge of Dunn and Williams. No further discharges were made before the last full week of October On Monday, October 2, the Respondent's bookkeeper told Keith Jackson, a bumper straightener and a brother-in-law of former Foreman Davis , that Polly wished to speak with him. Jackson went into Polly's office. Polly and McGowan were there and DeRosia came in during the conversation . Although the time of day was not revealed by the testimony, I deduce that it was at 2:30 p in ., because Jackson, who had a quota of 11 bumpers a day, testified that he had made only 9 that day Polly asked Jackson if he was trying to "get them out," or if he had done a recent day's work. Jackson said that he had always tried to give a decent day's work. Polly said he thought he had . Polly apparently asked Jackson what he thought about the quota system, for Jackson said the way it was he did not think it was fair. After further talk, Polly produced what Jackson called the Union's contract, read parts from it, and told Jackson that he could not operate with a contract like that-that it would break him. He asked Jackson if he would come in to work if there were a picket outside . Jackson said , "No" but that he thought that was none of Polly's business. Polly said, according to Jackson , "That's right , we didn't have you in for that." While speaking of the contract , Jackson expressed his view of the offer the Respondent had made to the Independent . Polly, according to Jackson , said, "If you think we are such SOB's , why don't you quit?" Jackson said he could not do so, meaning, I infer, that he could not afford to give up his job. As he was leaving, Jackson asked if Polly wanted him to come back to work and Polly answered , "Yes." This is the first instance of a change in application of the penalty of discharge for failure to meet a daily quota . Next morning, DeRosia came to Jackson's vise VICTORY PLATING WORKS, INC. 415 and told Jackson that Polly thought Jackson should get 13 bumpers that day to average up for the 9 he had made the day before. Jackson did so.17 During the last of September or first week in October,'8 Polly called Jacob Hubert, a bumper straightener, into his office and asked him to listen to "the company's side of the story." He produced the production records and the union contract (whether this was the Union's contract at another plant or was a proposal made to the Respondent does not appear) which showed a wage rate of $2.91 an hour. Polly said that he could not pay such wages and that if he signed that contract he would have to close his doors. Hubert remarked that Allied Plating, a company which apparently was in the same business as the Respondent, was paying $2 85 an hour and Hubert thought the Respondent's employees should get that much. According to Hubert, Polly said that if the Union got in the plant (with a contract, I presume), he would not be running the shop, rather that Carl Roberts (the Union's business representative) would be running it. Apparently a discussion took place about quotas because Polly told Hubert that he had given his drivers (who picked up bumpers from automobile repair shops) orders not to pick up any more real rough bumpers but that the Respondent still had a great many in stock which were going to have to be worked out, and when they were gone it would be easier to make the quota. McGowan came into the office during the conversation and, according to Hubert, commented that all they could do now was to wait for a year and vote the Union out. Polly agreed and said that his hands were tied and that he thought he could not give the employees the 5 cents an hour increase in pay which he had offered the Independent because if he did he might be held to have coerced employees to refrain from joining the Union. On October 11, 1961, Polly again asked to speak with Hubert. Superintendent McGowan and Foreman DeRosia were also there. They had another conversation about quotas. I note that Hubert on October 11 had finished 9 bumpers and was low man that day, which may have been the reason for the conversation. Hubert said that he did not believe in quotas, that he liked to give an honest day's for an honest day's pay, that if the bumpers were good, one could do more than when they were poor. DeRosia favored elimination of the quota system. After some discussion, Polly decided to remove the quotas for a period of time to see how production went. Starting with October 12 and running through October 20, the straighteners operated without quotas. The daily production in the straightening room for the 2-week period beginning with October 9 is set forth below.19 Despite the improvement in weekly production, Polly decided to put the quota system back into effect the following week, using a weekly average, claiming that production without the quota system was not proving satisfactory. On October 26, 1961, at the end of the workday, the Respondent, for the first time in its history, on advice of counsel, distributed to employees who had failed to meet a daily quota, warning or complaint slips calling attention to the fact that the employee's work that day was "below the minimum standard that this company requires in the following respect." 20 There followed blank lines in which the 37 Two other employees on an 11 quota failed to reach that figure on October 2 and were given a chance to and did get enough the next day to average up 19 Hubert testified that the time was about 2 weeks after the election which took place on September 22. There is reason to believe that the day was September 29, because Hubert testified that he was in Polly's office talking for about 2 hours between 10 a in and noon, and I notice that a notation appears on the production record "two hours lost," apparently justifying the fact that Hubert did only 10 bumpers that day. 19 The daily production for the 2-week period follows: October 9 (with quotas) --------- 76 October 16 (without quotas ) ------ 126 October 10 (with quotas) --------- 83 October 17 (without quotas ) ------ 123 October 11 (with quotas) --------- 82 October 18 (without quotas ) ------ 119 October 12 (without quotas) ------ 105 October 19 (without quotas )------ 87 October 13 (without quotas) ------ 87 October 20 (without quotas )------ 68 433 523 On October 20, two men fewer were doing bumper straightening because they were used on grinding that day. Even so, that must have been a day of bad bumpers because all the men, including those with a quota of 13, made less than 10 each . All likewise were below quotas on October 19. 2OAn amended charge was filed on October 25 and a copy was received by the Respond- ent on October 26. It was on advice of Attorney Watts that the notices of failure to make quota were distributed that day. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman filled in the number of bumpers finished that day. At the bottom was typed the sentence, "If this situation continues it will be cause for discharge." Most of the slips were backdated for other days that week. Slips were also handed out on October 27. On October 26, Jackson received one for the 23d and one for the 25th. Hubert received one for the 25th. On the 25th all but one man failed to meet his quota. It does not appear whether or not each of those who failed to make quota received a notice thereof. I presume that each did, however. (b) Discharges of Jackson and Hubert On October 27, 1961, at the end of the workday, the Respondent discharged four men for failing to produce their quotas on a weekly average. One of these four, Smith, was dropped from the complaint at the outset of the hearing and need not be considered. The others were Fred Davis, brother of former Foreman Davis, Jackson, and Hubert, whose conversations with Polly have been hereinbefore re- lated. The discharges of the latter two may be considered together since they were parallel. That of Fred Davis requires separate consideration. Polly testified that before these discharges were made, he had, on the afternoon of October 27, con- sulted Attorney Watts about them. At quitting time on October 27, the checks of the dischargees were ready and were handed to the men. No evidence was given as to which day of the week was payday or how the men normally received their checks, but from Davis' testimony I infer that he had not been expecting a check. If Friday was not payday, the decision to discharge the four men must have been made in advance, without regard to what the total production of the dischargees would be on October 27, for otherwise their checks would not have been ready for them. Keith Jackson was hired by the Respondent in September 1957, while Jacob Hubert was hired in April 1959. Jackson put in his first year as a grinder. For the remaining 3 years he had been a bumper straightener. In September 1961 he was put on a quota of 11 bumpers a day. Each attended the union meeting on Septem- ber 11, 1961. Their conversations with Polly early in October have already been related. Hubert had one other conversation with Polly on or about October 12 or 13 when Polly was walking past Hubert as he was working. Polly stopped and asked Hubert if he were going to the union meeting. When Hubert said he intended to, Polly suggested that he ask about Pacific Plating. Hubert asked what that was. Polly said that the employees of that company had joined the Union and had been out on strike now for several months, just walking the picket line, getting $5 a day, and Polly said that that would be pretty hard to live on. On Monday, October 23, Jackson finished 10 bumpers while Hubert completed 11. That day two men with quotas of 11, other than Hubert, made their quotas while one other, a man named Louis Blancic, had 10. A man named Ovedio Percic, whose quota was 13, finished 8 that day. The following day, Tuesday, October 24, Jackson finished 12 and Hubert 11. A man named Bruno Bessig, whose quota was 11, finished 9 that day. In making up the production record, Polly credited Jackson with 11 instead of 12 for the 24th. He testified that he had miscounted. On Wednes. day, October 25, only Blancic equalled his quota. Jackson finished 6 and Hubert 7. Others, including the men with quotas of 13, made between 6 and 8 each. On Thursday, October 26, all but Smith and Davis made their respective quotas. On Friday, October 27, all but Louis Blancic and Gus Spanu made their quotas. Pro- duction totals for the week for each man are shown below21 The men with the lowest production were Davis and Bessig, but Bessig was not discharged. Ii will be observed that not one man succeeded in making his quota on a weekly average. a The weekly production totals are as follows: Davis Bessig Ianuzzi Jackson Blancic Pereic Spanu Hubert Smith 8 11 11 10 10 8 13 11 13 8 9 12 12 11 18 13 11 11 A 6 8 6 11 6 8 7 8 10 11 12 11 12 14 17 11 10 11 11 11 11 10 13 10 11 12 37 48 54 50 54 59 61 51 54 `(55) (55) '(55) '(55) '(55) `(65 ) (65) (55) '(65) • Quota. VICTORY PLATING WORKS, INC. 417 Consequently, although Polly testified that the Respondent did, it did not, as it had done in September, in fact, hold the employees strictly to their quotas, for if it had, all the straighteners would have been discharged on October 27. The Respondent claimed that it did not discharge others in the week of October 27 because it took into account whether or not a man could or should have made his quota. With this in view, Polly instructed DeRosia to write on his tabulated records of individual performance, in cases where a man fell below quota, comments as to whether the man could or could not have made his quota on a given day, and if not, why not. The date when DeRosia made these notations is not in evidence, but they were not made at the time the other entries were made. On his record for Monday, Octo- ber 23, DeRosia had made notations that Blancic, Jackson, and Davis should have made their quotas, but that Percic could not have done so because he had two very bad bumpers. The same notation as for Monday was made on Davis' record on Tuesday. For Wednesday, DeRosia had written on his production record that every- body had had rough bumpers, indicating that no one could have been expected to make his quota. Nevertheless, Hubert and Jackson, at least, were given warning slips for that day, indicating that the Respondent was not disposed to excuse them for low production even on that day. For Friday, DeRosia noted on his production records an excuse for Blancic and Spanu and a lack of excuse for Smith. The value of these notations of DeRosia is impaired by the fact that they were not made at the time the original entries were made. In my estimation, they are also unreliable because DeRosia had such limited experience before October 27 that I cannot credit his observations as being the opinion of an expert. However, even an expert might have difficulty in deciding whether or not a man took too long with his work. In order to understand the difficulties to be en- countered in the expression of such an opinion, one needs to understand the prob- lems involved in bumper straightening and the difficulty of making accurate and fair records of individual performance in bumper straightening and so of judging the competence of individual employees. Damaged bumpers arrive at the Respondent's plant in all states of disrepair rang- ing from a few minor dents or scratches to very badly damaged bumpers, some of the worst of which require metal stretching or splicing (having an end cut off and a new end welded on). The repair work in the straightening department could take a man as little as 10 minutes or as much as 3 hours or 4 hours on one bumper.22 Although DeRosia and Davis professed to be able to make a fairly equal distribu- tion of good, bad, or medium bad bumpers to the men so as to permit them to make their quotas, the evidence shows that even experienced men may not be able in advance to estimate accurately the time a good workman might take to straighten a bumper. DeRosia testified that no two bumpers were the same in any model; that even though they looked the same, they would not straighten the same; and that a slightly different procedure had to be used to accomplish the same thing in each bumper. Polly testified that a bumper might look easy but actually take an hour to straighten. At a time when the Respondent ran a test to see if the quotas were capable of being made (the date not being fixed, but apparently sometime around the end of September or during October 1961), the Respondent had DeRosia make a selection of bumpers, such as he would make for the men in his department. Then, one day after working hours, McGowan, whom Polly praised as the best bumper straightener on the west coast, came to the department with Polly. There, Polly would take one of the bumpers laid aside by DeRosia, make an estimate of the time it would take McGowan to repair it, and hand it to McGowan. With con- ditions comparable to those under which the employees worked, including apparently their lunch time and coffee breaks, McGowan completed 11 bumpers. Polly testified that he handed McGowan one bumper which he estimated should take McGowan 15 minutes, but it took him 35 minutes. This could have been rated as a good bumper. DeRosia testified that there was a wide variation in what might be classed as a good bumper. DeRosia testified that a good bumper might have been hit and take 10 or 15 minutes to fix or it might have only a scratch and require no work at all. "It might be just passing to be checked on the pattern." No time spread for medium was indicated in the testimony. After DeRosia become foreman, he kept, at the Respondent's request, a record of each bumper handed to each man, describing it by make of car, year model, whether front or rear, and whether upper or lower section (on bumpers that came in two sections). After the description of the bumper he usually marked initials "G," "B," or "M" to indicate whether it was to be considered good, bad, or medium ra Whether a job ever took longer than this does not appear. I judge that a 2%- to 3-hour job was not rare when the bumpers were arriving in bad condition. Ones that would take 4 hours were probably infrequent 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in condition. Because of the difficulty of determining in advance how to rate the bumper as G, B, or M, according to the time expected to be taken, DeRosia did not enter the description of the condition until after the man had finished his work on it. Then, taking into account the length of time the man had worked on it and perhaps the problems he had encountered that were not apparent at the outset when DeRosia was told about them, he would grade it as good, medium, or bad on his record. It is apparent that this method is far from scientific. If a premium man, one with a quota of 13 a day, took 2 hours on a bumper, DeRosia might have marked it as a bad one. But if that employee had been going through needless motions deliberately in order to take more time, the bumper might more properly have been rated as medium. If a man with a quota of 11 bumpers a day had been given the same bumper and, with exceptional effort and luck, had finished it in an hour, it is conceivable that DeRosia would have rated it as medium rather than bad. Knowing short cuts or little tricks of the trade could make a difference, too. If a man with a great deal of experience could straighten a bumper in 30 minutes because of his knowledge of the tricks, would the bumper be graded as good? If the same bumper were to be straightened by a less ex- perienced man who worked just as hard but had not learned the trick, or short cut, and if he took 55 minutes, is the bumper still to be graded as good? This may actually have entered into the failure of Davis to make his quota. DeRosia testified that the description "good, medium, or bad" is not an indication of the amount of time even an experienced man would take on a given bumper. Apparently it had something to do with the description, however, or DeRosia would have noted the class of bumper when it was handed out rather than when it was finished. DeRosia also testified that what he might call a bad bumper in one model might take an hour to fix, while a bad bumper in another model might take 3 hours. The difficulties of adopting a strictly objective standard are, then, apparent, es- pecially when it is considered that, in October 1961, DeRosia had very little experience in bumper straightening. Yet, as stated, DeRosia, at Polly's request, had noted down such subjective conclusions as that there was no reason why a man had not made his quota for the day or that there was good reason why he had not made his quota because he "had bad bars, took longer than expected." DeRosia conceded that some bumpers (straightened in straightening room) might have gone down to the grinding room in worse state of repair than others. This could indicate that some of the straighteners who turned out fewer bumpers did so because they were turning out better work. On October 25, Johnnie lanuzzi, a bumper straightener with a quota of 11, finished with 8 bumpers, 4 of which were marked bad, 2 medium, and 2 good. On the same day Gus Spanu, a man with a quota of 13, finished 8 bumpers, 4 of which were marked bad, one medium. and 3 good. On surface, therefore, it would appear that Spanu had a slightly better distribution than lanuzzi and should have made more; yet DeRosia did not criticize Spanu's performance on his records that day. Bruno Bessig (quota 11) that day finished 6 bumpers, 3 of which were marked bad, 2 medium, and 1 good. Ovedia Percic (quota 13) finished the same number as Bessig and had identically the same distribution of good, medium, bad. No criticism was noted of Percic's performance that day. If one were to rely on a comparative record such as this, he might con- clude that of the 4 men only lanuzzi had done a fair day's work. I judge, however, that DeRosia found no fault with any that day. Returning to the problem of production for the week of October 23 through 27, we are faced with the question of whether or not the discharges made at the end of the week were discriminatory. As noted previously, the men with the lowest production were Davis 23 and Bessig, but although Davis was discharged Bessig was not. Although no one had made his average for the week, Polly decided that only Davis, Jackson, Hubert, and Smith (whose name was dropped from the complaint) were to be discharged. The General Counsel's theory is that certain of the employees who were of southern European extraction and were, most of them, still aliens, were favored by Polly because they had not associated much with the native American employees or those who spoke English fluently and therefore, presumably had not been influenced by those favoring the Union or were more amenable to Polly influence. It is only speculation that the five bumper straighteners of foreign birth who were on quota were among the eight who voted against the Union, but from the record of the week of October 23 through 27, there appears to be some basis for the General Counsel's theory. For example, on DeRosia's records for October 24, it appears that Bessig, whom Polly identified as an Italian, turned out only 9 bumpers. However, DeRosia had written below g Davis had been absent 1 day that week . His dally average over the week , therefore, was about the same as Bessig's. VICTORY PLATING WORKS, INC. 419 Bessig's record, "Had reason for being short, spent 2% hours on 57 Cad." Davis, the same day, had taken 3 hours on a 1956 Cadillac bumper which Davis testified should have been a splicer, one of the worst kind to straighten if not spliced. DeRosia's record shows it as medium, and DeRosia had made the no- tation on that day for Davis, "No reason. Had better than average bars." There is a suggestion in the evidence that DeRosia may have written notations such as these at Polly's request in order to protect men that Polly wanted to protect and to eliminate those that he chose to eliminate, since DeRosia had not written them on the record until after he had delivered them to Polly. How long it was after he had delivered them to Polly that he made the entries is not clear. The inference is possible that he made them at the end of each day, but even this was not made clear. I consider it probable that before DeRosia made these notations he could have forgotten much and could have confused the work of one man with that of another. Considering all the circumstances, I am convinced that DeRosia's notations are not reliable evidence and I give most of them little weight. One, however, applied to all and was not a comment on individual performance. That was the one written on October 25 which said, "Everybody had rough bars, be- cause of a shortage of these models, and core supply being bad." This has been confirmed. Polly testified that he did not discharge any of the Italians because he took into account whether or not they could be expected to produce their quotas for the week, that they had all tried, and that, although they failed to make quota on certain days, they tried to make up for it later in the week by producing more than their quotas. This testimony displays a definite bias, because it completely ig- nores the fact that DeRosia had written opposite the production record of Louis Blan- cic for October 23 the note: "No reason. Should have made quota." It also ignores the fact that Bessig had not made up for his weekly deficiency by exceeding his quota at the end of the week to make up for low performance before. It further ignores the fact that Bessig produced only 47 bumpers in 40 hours while Jackson had produced 50 and Hubert 51. It ignores the fact that only on Wednesday, October 25, when all the straighteners had bad bars (bumpers) and could not make their quotas, did Hubert fail to make his quota that week. Likewise, it ignores the fact that although Jackson had fallen below quota with 10 on October 23. he had exceeded his quota on October 24 when he finished 12 bumpers, so that he was below quota only on October 25 when all were supposedly excused. When Polly discovered his alleged error in giving Jackson credit for only I1 on October 24 does not appear, but if not until after Jackson's discharge, he still did not re- consider and offer to reemploy Jackson, so far as appears 24 On the entire record, one cannot escape the conclusion that the Respondent had some reason other than poor performance (if failing to make a quota in the straightening department could be called poor performance) for getting rid of certain employees. Other than disparity of treatment between those retained and those discharged, a big factor in leading to this conclusion is the fact that the Respondent was heedlessly reducing its own capacity for production by discharging many of its best producers and by hiring inexperienced help in greater numbers to keep production at the same level. It takes quite a while to train and season a bumper straightener-perhaps 2 or more years. At one point, Polly indicated that a man had to work as an apprentice for 2 or more years before he was considered a journeyman but he testified that when a man had reached the journey- man's wage and was straightening for a year or more the Respondent considered that he was ready to go on a quota and make it. Looking at the record only of the number of bumpers finished by apprentices, one or two of them appeared to be as good or better than some of the journeymen. However, it was the practice of the Respondent to start the men out on the simpler type of bumpers, usually Fords or Chevrolets, and not to give them any very bad ones. The more ap- prentices there were, therefore, the fewer easy bumpers there were for the journey- men. In July 1961 there were two apprentice bumper straighteners, or learners as Polly classed them. Polly's testimony as to the amount of experience they had had appeared somewhat conflicting, but it would appear that they were not brand new because Polly testified that each had had a little less than a 2-year learning period. Neither was yet on a quota. In September 1961, before any bumper u The failure to make such an offer may be inferred from the fact that Jackson had not been reemployed, from the fact that Polly was still trying to justify Jackson's discharge, and from the fact that , if any offer had been made, it would have been in the interests of the Respondent to show it, but it failed to do so. 681-492-63-vol. 140-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straightener was discharged, the Respondent had 10 experienced, or journeymen, straighteners, 5 of whom were on a quota of 13 a day, and 1 or 2 learners (one of whom was producing 11 bumpers a day but was not on a quota). In Novem- ber, after the Respondent had apparently finished its housecleaning (for no ex- perienced straightener was discharged in November, although during the first 2 weeks most of them failed to make their weekly quotas),25 the Respondent had 5 experienced bumper straighteners (those referred to as Italians), only 2 of whom were on a quota of 13, and 9 to 11 learners, depending on the time of the month. Of the 11 learners, all were new but 2. This increase in number of learners pro- duced such a crowded condition in the straightening room that the Respondent was required to put the new men on a second shift. Over and above these considerations tending to show an apparent lack of good business judgment in discharging experienced men is the evidence tending to prove that the Respondent had a reason for discharging experienced men other than a concern over production. Such reason stems from Polly's displeasure that a majority of the employees had chosen to join the Union and vote for it in the election on September 22, from the fact that he considered some employees to be agitators, that he had told one employee that he knew who had voted for the "Company" and who had voted for the Union, that he sought to learn who would and who would not cross a picket line, and that the leaders of the movement were among the first to be discharged. The men who were discharged under the quota system were men with years of service to the Respondent behind them. All such evidence nullifies the reasons advanced by the Respondent for their discharges. I am convinced and find, on all the evidence, that Jackson and Hubert were discharged by the Respond- ent in furtherance of a plan to eliminate those who most strongly supported or be- lieved in the Union and that by their discharge the Respondent discriminated in regard to their hire and tenure of employment. (c) Discharge of Fred Davis As previously stated. Frederick Davis was the brother of former Foreman Richard Davis. He was hired on December 2, 1957. For the first 10 or 11 months he straightened bumpers, mostly Ford bumpers of 1958 or earlier models, with some earlier model Chevrolets. These bumpers are somewhat easier than many of the others to straighten. in 10 or 11 months' time, Davis would not be expected to have become an experienced bumper straightener. Especially is this so as he had not worked on all types of bumpers. About October 1958, Davis became a welder ("the Company welder" he described it) and welded bumpers for about 2 years. Then he was made an inspector, and he supervised in the grinding room when Foreman Davis was not there. His hourly rate was $2.80, which included a 10-cent premium because of his welding ability. In January 1960, Davis was elected to the office of vice president of the Independ- ent, but the elected president was removed by the members, and Davis became and remained president for the remainder of the year. Re took an active part in nego- tiating the 1960 agreement with the Respondent. He attended the meeting at the union hall on September 11, 1961. On October 2, 1961, Davis was transferred to straightening.26 Davis testified that he was first transferred to welding and then to straightening. But if he was welding exclusively before October 2, no evidence was offered to fix the date when he was doing it. In any event, the man who had been welding while Davis was an inspector in the grinding room took over Davis' inspecting job. Then, when Davis was transferred to straightening, a new man was hired to weld. When the new man ss Bessig (quota 11), averaged 10 4 the first week and 10 66 the second ; lanuzzi (quota 11), averaged 10 6 the first week and 10 the second; Blancic (quota 11), averaged 10.4 the first week and 11 66 the second; Percic (quota 13), averaged 11 6 the first week and 10 3 the second, and Spanu (quota 13), averaged 11 2 the first week and 12 the second. Only one man made his quota on average for the third week in November. In the short Thanksgiving week the three with quotas of 11 made their average quota The two with a quota of 13 failed to make it on average During the week of November 27 to 30 the men with quotas of 13 again failed to make it on average. 28 Although the Respondent had put itself in need of men with some experience in bumper straightening, the timing of Davis' transfer was strangely close to the time when Polly heard that former Foreman Davis had made a statement in an affidavit for the Union that the quota system on September 11 was to be on a weekly basis but that the Respondent on September 12, after the union meeting of the night before, changed it to a daily basis. Polly telephoned Richard Davis to ask him about the affidavit and to dispute its accuracy. He told Davis that he might be responsible for "hanging me for thousands of dollars." VICTORY PLATING WORKS, INC. 421 was hired does not appear. The records indicate that Davis had welded on October 11, 16, and 20, 1961. In October 1961, before the 23d of the month, when he was not welding, he was assigned to teaching new men how to straighten bumpers or, himself, to rework bumpers which had not been properly straightened. On October 23, Foreman DeRosia gave Davis for straightening a distribution of bumpers such as he usually gave the others. Davis finished 8 each on the 23d and 24th. He testified that on October 23 he had a bad Cadillac bumper which took him 3 hours and on the 24th he had a bad 1961 Ford bumper which required that the metal be shrunk and blended and that he had never done that before. The records indicate that he was probably mistaken as to the dates. He had a 1956 Cadillac bumper on Tuesday, October 24, which DeRosia had rated a medium, but he had no 1961 Ford bumper until Thursday, October 26 He was absent on October 25 when the regular men got such rough bumpers that none made his quota. On October 26 he finished 10. On the latter date, when DeRosia passed out the com- plaint slips or warning notices, he gave Davis a slip with the dates October 23 and 24, 1961, on it, and the statement, "You only produced 8 bumpers on each of the above dates," and walked away. Before this, Davis did not know that he had a quota. In about 10 or 15 minutes, Davis went to DeRosia and asked him how many bumpers he was supposed to produce. Thinking that the Respondent might have decided to put him on the quota of 13 because of his premium pay, he asked DeRosia if that was the quota the Respondent was then putting him on. DeRosia said, "No, Fritz, they told me you were a journeyman straightener, that you had to produce eleven bumpers." Davis said that this was the first time that anything had been said to him about making a quota. Davis testified that because he had been as- signed to teaching and to repairing poorly straightened bumpers when he first re- turned to the straightening room, he had received the impression that he was not on a quota. During the day of October 27, 1961, Davis had a Corvair bumper in bad condi- tion and had difficulty with it. Later DeRosia came to where Davis was working on a Volkswagen bumper and asked him if it was as hard to straighten as the Corvair bumper. Davis answered that it was not as hard but that each bumper had its own little tricks and that he had never worked on either a Volkswagen or Corvair bumper before. He testified that all bumpers were basically the same to straighten but that you have to know little tricks for each one and he did not know the tricks, so he was not as fast as the other men. All the types that he had been getting were new to him. He told DeRosia that he had not straightened bumpers since 1958 and that then he had been just on Ford bumpers. DeRosia replied, according to Davis, "Well, it sure don't seem fair to me that I've put everything in your rack. They told me you were a journeyman straightener and I've thrown everything at you." DeRosia apparently did nothing about the matter, however. That day Davis completed 11 or 12 bumpers. He testified that it was 12 but the record shows 11, so either he was mistaken or DeRosia overlooked one. DeRosia conceded that he sometimes forgot one, but said that one of them would mention it to him if he did. At quitting time on October 27, Davis saw DeRosia giving Jackson his check. Davis walked over to see what was happening. Hubert was there and he told Davis that the Respondent was discharging Davis, Jackson, Smith, and himself. About then DeRosia walked over, handed Davis his check, and told him, "This is your last day, Fritz." Hubert asked DeRosia if he thought he had done a fair day's work that day. DeRosia replied that he thought everyone had 27 In contrast to the solicitous allowances made for those employees whom the Re- spondent chose to keep, its treatment of Davis appears to have been particularly callous. Davis had not done bumper straightening since 1958, and at that time was not really past the apprentice stage. There is no evidence of Davis' rate of pay while he was straightening bumpers in 1958. His rate of pay in 1961, although equal to or better than the minimum journeyman bumper straightener's pay, was based, I infer, not on his ability to straighten bumpers but on his former job of inspector and on his ability to weld. Had the Respondent not deliberately brought on its shortage M Hubert testified that he first asked DeRosia if he had done a good day's work and that when DeRosia answered that he had , Hubert asked if he had not done a good day's work all week and that DeRosia had answered, "Yes, as a matter of fact, every man up here has." Jackson corroborated this. DeRosia denied saying that the men had done a good day's work all week, saying that he told them for the day when they asked him. I find that DeRosia did comment on the fact that everyone had done a good day's work that day, and I consider it probable that he had told Hubert he had done a good day's work all week. Because I have some doubt as to whether or not DeRosia commented on the work of everyone for a full week , I refrain from finding that he did. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of experienced bumper straighteners for an illegal purpose, one might find Davis' transfer to bumper straightening to be justifiable. Perhaps it was anyway. But what was unjustifiable and indicates bias was Respondent's decision that, without further seasoning, Davis should be put on a quota without even telling him he was on a quota until it was too late for him to raise his average. The evidence creates a strong inference that Davis was transferred to bumper straightening in October 1961 in order to make it difficult for Davis to hold his job. That Polly had a disposition to do this is demonstrated by his statement to Foreman Davis concerning a possible trans- fer of Dunn back to straightening of bumpers in order to make it more difficult for Dunn. These considerations as well as those previously mentioned in connection with Hubert and Jackson convince me that the Respondent, in transferring Davis to straightening and then discharging him with only 1 day's notice that he was on quota, discharged Davis in furtherance of its scheme to eliminate union-minded em- ployees or those it looked upon as potential strikers. By such discharge, therefore, I find that the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act and discriminated in regard to Davis' hire and tenure of employment. (3) Constructive discharge of Claud Pierce Claud Pierce was hired by the Respondent in August 1959 and was employed in the polishing department where, in October 1961, there were nine production em- ployees, who were supervised by Foreman Edward Redo 28 From the titles on the production records, I deduce that, according to the work done, the employees were classified as either "belt" or "polish." Pierce was the only one listed as both belt and polish, and he was the only one shown to have done any work on a device called the "flex." Only the foreman and two employees were senior in length of service to Pierce. In 1960, when a swing shift had been operated, Pierce had been foreman on that shift. On September 24, 1961, a couple of days after the union election, when Polly was passing through the polishing department, he stopped to talk with Pierce This con- versation, in which Polly asked Pierce if he would cross a picket line if there were one, has previously herein been related. It was in this conversation that Polly told Pierce he knew who had and who had not voted for the Union A week after this conversation, Polly asked Pierce if he had not changed his mind about crossing the picket line, saying that there would always be a job for him if he crossed the picket line. Several days after this, Foreman Redo called the employees in his department together and told them that if a strike occurred and there was a picket line and if they decided to walk through the picket line, there would be a job waiting there for them. About 4 days later, Polly again asked Pierce if he had changed his mind (about walking through a picket line) Pierce replied that he had not. On October 25, at the 10 o'clock coffee break, Redo assembled the employees of his department and made an announcement. Just before he made this announce- ment, Pierce had noticed Polly, McGowan, and Redo conferring near the board on which the production record was kept. Redo's announcement was that there would be a cut in hours from 8 hours to 4 hours for some of the men because of lack of work. Redo testified that this lack of work resulted because the discharge of trained men and their replacement by inexperienced men had caused a slower flow of straightened bumpers to the other departments.29 Redo read the names of the men whose hours would be cut. Some he told to go home early that day. Some he told to come in 4 hours late on the following day. The identity of each whose name was read as affected by this reduction in hours was not established by the evidence. Pierce testified that five men were to be affected by this order and that he did not know how long the short hours would continue in effect. Redo testified that seven men were involved and that he told the men that he hoped it would not have to be done more than 1 day. The record does not bear Redo out on the number of men to be affected and I find also that he did not reassure the men as to the length of time the reduction in hours would continue. He offered them no explanation of why he picked the men he did. Pierce was one of the five named. Pierce was one of the ones named to come in at 10 a.m. the next day. 21 Redo testified he had 11 men in the department In September, before 1 man was transferred to another job, there were 11, counting the foreman, according to the produc- tion records. There may have been employees for whom no production records were made. 29 The bumpers were first straightened in the straightening department upstairs, then they were brought downstairs to the grinding department, following which they went to the polishing department. VICTORY PLATING WORKS, INC. 423 The production records indicate that two men, identified only as William (Evers?) and Cross, worked 4 hours each on October 25, while on October 26 two men, William and one Scurlock, worked but 4 hours. A third man, Lamar Kennedy, did not work at all on the 26th. Another man of the nine-man crew (Studimier) worked in the grinding room between October 18 and 25 but returned to the polishing depart- ment on the 26th. On the 27th, however, Studimier worked 4 hours only, while Cross, the second man who had been laid off half a day on the 25th, worked 5 hours. Each of those 3 days, five men worked full days but only three of the men, Morgan, Mangum, and Payne, suffered no loss of time on those 3 days. At least two of these were men with less seniority than Pierce. The identity of the third man with less seniority than Pierce who was not laid off was not given in the testimony but I infer that it was Payne. From the production records, it appears that the men affected by the reduction in hours were the best producers. Payne, whose attendance was irregu- lar, had the poorest production record. There is no evidence which makes it certain that the short hours shown on October 27 resulted from orders rather than from the employee's tardiness. After the announcement of curtailed hours, Pierce and another employee who was affected by the order, Lamar Kennedy, went to speak to Redo and asked if seniority did not count any more. According to Pierce, Redo replied that seniority used to count but that since they had voted the Union in, seniority did not count any more. The 1960 contract between the Independent and the Respondent contained a pro- vision that, in any reduction in force in any department, the last man hired should be the first man to be laid off unless there existed one of the listed causes for dismissals. This was one of the provisions proposed to be deleted in Polly's counteroffer of September 7, 1961. When Kennedy and Pierce spoke with Redo about seniority, Redo terminated the conversation by telling them to "see the man," whom Pierce understood to mean Polly. Pierce returned to work but within 5 or 10 minutes decided to see Polly. Pierce testified that he started toward the office, but on the way passed the stairway that leads one flight up to the storage racks and locker room, that he saw Polly at the top of the flight of stairs, apparently on his way up another flight to the straightening room, that he walked upstairs and asked Polly if it was true that he was cut in hours, that Polly had answered "Yes," and that he had told Polly that he had worked a great deal of overtime on Saturdays and Sundays and that this was all the thanks he got for it, and he asked Polly if seniority did not count, and Polly had told him it did not count and ,told him that, if he did not like it, he could leave Pierce testified he then said "OK" and was going toward the locker room when Polly told him to come back Friday for his check. He then left. Polly denied speaking with Pierce, as testified by the latter. Polly testified that he learned from the office manager of Pierce's departure. Polly testified that he came to work "one morning" about 10:20 or 10:30 and the office manager said that he had just seen Pierce walking down the street and wondered if Redo knew it. Polly testified that he replied, "Gee, I don't know; what happened?" The office manager said he did not know, according to Polly's version, and said that he had waved at Pierce and raised his eyebrows to see if Pierce would answer but that Pierce just dropped his head and walked off down the street. Polly testified that, in his subse- quent investigation, he had learned that Pierce had walked off without speaking to anyone. But for Polly's next testimony, I might have been induced to believe that Pierce was mistaken and had, perhaps, spoken with someone besides Polly, but in view of Polly's next testimony, I find that Pierce's version is more reliable. When Polly was asked about the cut in hours, he testified that there had been a 4-hour layoff in September, when Redo had let five men go for half a day. So, when this time came around , Polly testified, Redo was trying to distribute the time off equally, "so he tried to let the other five men go the next time, as near as he could." Polly ex- plained, "There's some irregularities on that because this one man [no name was given by Polly but the description to me suggests only Pierce ] does a special job there and the rest of them don't do it; and he worked both times. I have payroll records to substantiate these also." The payroll records were not produced. However, the production record for the polishing department for September is in evidence. It shows that all the employees who were still employed in October, with the exception of Payne, had worked 20 days in September. That is the exact number of working days there were in September.30 Two men were terminated completely in mid- September and two or three new men worked some days in the last half of the month. 31 The record for work during the days before September 12 does not follow the dates in the margin , but the number of working days between September 1 and 11, inclusive, add up correctly. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Payne worked 18 of the 20 working days in September. There are no notations to, show that anyone worked less than 8 hours in September, as there were on the October record, except the notation "small parts part-time," apparently applicable to Payne for September 26. No absent marks appeared for Payne in September as there did in October. The evidence fails to convince me that there was any half-day layoff in September such as Polly testified there was. Redo's testimony sounded like an attempt to tell the same story as Polly, but Redo, who should have known the facts better than Polly, if they were true, was not only vague, but he injected an entirely different element into the selection for layoff not mentioned by Polly. Redo had no recollection of the date of either the alleged first or the second half-day layoff.31 As to the second layoff, he said he thought "at least one or two men was kind of want- ing to go home." Asked how he selected the men for the second layoff, Redo answered: "Well, I did it in a way that-you see, our situation, even when we do this, we had a certain amount of bumpers that we call `jobs' that are important that we get them out and I have to be careful not to send men home that we may need. In other words, we have men there that we call `key men' and, too, I have to try to arrange it so I don't make anybody angry. So it's kind of a ticklish situation. At that time, I tried to pick some of the men that didn't get sent home the first time." He testified, on leading questions, that he was more or less practicing a rotation policy but did not practice rotation with those men that he regarded as keymen, so that there were three or four men that did not get sent home either time. Asked by Respondent's counsel to explain what happened to Pierce on the second cutback in hours, he testi- fied: "Well, like I say, we had-some of our men were key men-men that is pretty hard to do without, and Pierce was one of them. Like I said on the first cut- back, Mr. Pierce was one of the men that we just decided we couldn't do without; and the second cut-back, I could have and would have had Mr. Pierce stay right there, but I was under the impression that Mr. Pierce was one of those fellows that wanted a little time off. In fact, he had made a statement to me on that effect previously." By "previously," he said, he meant not more than a week before "because we saw this coming." He testified that Pierce "told me that if anybody would have to leave, he'd like to go home because he wanted to get in some fishing and I told him at that time, I said, `Well, we need you, boy,' . . . I said, `I don't think we're going to have to do it at all,' which we didn't at that time." Pierce, on rebuttal, denied that he had ever asked for time off to go fishing. Redo also testified that no one told him which men to select for layoff. In view of his other testimony, especially that relating to Pierce's indispensableness, when considered in conjunction with the production records and with Pierce's testimony that Redo, Polly, and McGowan were in conference at the board containing the names and production records of the employees of the polishing department just before Redo made his announcement of the reduction in hours, I do not credit Redo's testimony that he, alone, selected the men to be given reduced time. Redo's testimony that he could not remember when either layoff occurred, when the incident that resulted in Pierce's leaving occurred less than 2 months before Redo testified, is unbelievable. He might not have remembered that the day was Wednes- day or that it was the 25th day of the month, but his memory should have been strong enough to be capable of fixing the month and the approximate relative times of the two instances of reduction in hours, if an earlier one really occurred. This vagueness on dates as well as his faulty recollection in remembering that Kennedy had spoken to him about seniority but not remembering whether or not Pierce was with Kennedy at the time, demonstrates what may be termed a "convenient memory"-one that recalls only what the witness wishes to reveal.32 The only evidence of the Respondent's past practice in the method of effecting reductions in force was revealed in the provisions of the Independent's contract for the application of seniority as a basis for selection of men for layoff. There was no evidence that the Respondent had ever laid off employees in a reduction in force for lack of work on any other basis. But even if the Respondent had given weight to ability as well as to seniority, it is evident that the Respondent disregarded both ability and seniority in the case of Pierce, who was a "key man," according to Redo. In view of the Respondent's deviation from its customary, and even from normal busi- ness, practice,33 the fact that the Respondent failed to substantiate, by the records, that si The record for November shows a few instances of short hours but not for more than one man on any single day 32 The General Counsel adduced evidence that Polly had helped Redo when the latter had been "in trouble with the law." The "trouble" was a criminal act of which he was convicted. Although I might discredit Redo on the basis of his criminal record, I do not rest my evaluation of his testimony on that, since the crime was not one normally involv- ing integrity. I do find, however, that he was biased in favor of the Respondent. 83 Carolina Mirror Corporation, 123 NLRB 1712, 1714-1715. VICTORY PLATING WORKS, INC. 425 there had been an earlier curtailment of hours or layoff of the employees who were not affected when Pierce's hours were reduced, the fact that the Respondent showed a disposition to impose penalties on employees favorable to the Union, the fact that Polly questioned Pierce about his intent to cross a picket line if there were one, Polly's declared intent to pick his employees, in the event of a strike, from among employees who would cross a picket line, McGowan's statement about voting out the Union at the end of a year, an aim which would be furthered by the elimination of union-minded employees within the year, and all the evidence, I conclude and find that the Respondent selected Pierce as one to receive reduced hours because of Pierce's unwillingness to promise to cross a picket line. This injustice, with no assurance that the reduction in hours was temporary, provoked Pierce into quitting, thinking that his income would be seriously reduced for an indefinite period.34 I find, therefore, that the Respondent constructively discharged Pierce because of his attitude toward the Union and his intent to observe a picket line. By such conduct, the Respondent discriminated against Pierce in regard to his hire and tenure of employment and discouraged union membership and activity, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in the Act. d. Summary of conclusions reached (1) As to interference, restraint, and coercion The complaint alleged as independent violations of Section 8(a) (1) of the Act, the Respondent's adoption of daily production quotas that made conditions more onerous and its interrogation of employees concerning their union membership, activities, and desires. I find the adoptions of the daily production quotas in the straightening and grinding rooms to be violative of the Act because the quotas were, for the first time, rigidly enforced under penalty of discharge and because this penalty was adopted in order to supply an excuse for discharging employees favorable to the Union. Al- though the General Counsel brought out the fact that the Respondent had imposed these changes without first undertaking to bargain about them with the Union, the failure to bargain was not alleged in the complaint as a violation of the Act. Although this may be a factor to be considered in fashioning a proper remedy, I make no find- ing of a separate violation of the Act because of the various unilateral changes made by the Respondent in its employees' working conditions except to the extent above mentioned. By questioning Pierce, Jackson, and Hubert about their union activities and views, I find that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (2) As to the discriminatory discharges Pursuant to its establishment of its penalty-enforced quota system, with knowledge that the quotas could not be maintained when bumpers were in bad condition, and with intent to use the failure of employees to make their quotas as an excuse to dis- charge those favorable to the Union, the Respondent did discharge Leon Wegener and Gilbert Lehr on September 13, 1961, George Calabro on September 15, 1961, Alfred Patrick West on September 18, 1961, Leon Williams and Ervin Dunn on September 28, 1961,35 and Jacob Hubert, Keith Jackson, and Frederick Davis on October 27, 1961, for failure to make such quotas under overonerous conditions, and thereby discriminated against them in regard to their hire and tenure of em- ployment because of their union membership, activities, and views, thereby dis- couraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent seized upon Roy Means' act of horseplay as an excuse to dis- charge an outspoken advocate of the Union. I find that Means' act of damaging a door was not the real reason for his discharge. By discharging Means, the Re- spondent discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent constructively discharged Claud Pierce because of his adherence to a union principle of refusing to cross a picket line, thereby discriminating against 84 See Bausch & Lomb Optical Company, 107 NLRB 790, 825-826, enfd. 217 P. 2d 575 (C.A. 2). 35 Although Dunn was informed of his discharge on September 29, he was actually dis- charged as of September 28. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him in regard to his hire and tenure of employment and interfering with, restraining, and coercing its employees in the exericse of the rights guaranteed in Section 7 of the Act. Pierce gave testimony that after leaving the Respondent, he went to a competing firm, Allied Plating, and applied for a job. There he spoke with an unidentified person who asked about Pierce's experience. When Pierce said that he had worked for the Respondent since 1959, the interviewer said that he was not hiring anyone from the Respondent. Means testified that he had been told by the superintendent of Allied Plating about a month before his own discharge that Polly had made arrangements with Allied about men fired by the Respondent. This hearsay testi- mony is too vague and unreliable on which to base a finding of blacklisting. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Because it has been found that the Respondent has engaged in certain unfair labor practices, it should be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent has discriminated against certain of its employees in respect to their hire and tenure of employment, I shall recommend and order that the Respondent offer each of them immediate and full reinstatement of his "former" or "substantially equivalent" position (as those terms are defined by the Board),36 without prejudice to his seniority or other rights and privileges, and make each of them whole by payment to each of a sum of money equal to that which he would have earned in the Respondent's employ from the date of the discriminations against him to the date of the offer of reinstatement, less his net earnings elsewhere during such period of time, the amount due to be computed on a quarterly basis in accordance with the Board's established practice.37 The General Counsel requests that the Respondent be required to pay interest on the backpay found to be due to the discriminatees. Although, at this writing, the Board, itself has not included interest on backpay in any of its orders, it is not without authority to do so. In recent Intermediate Reports, such a remedy has been recommended.38 The General Counsel has supported the argument for interest on backpay with an able brief. The only reason for cogitating the matter at all, it appears to me, is to examine the question of whether or not the sum found to be due as backpay is to be treated as a liquidated sum. Traditionally, legal interest is due only on liquidated obligations and not on unliquidated sums. Although the amount due to each discriminatee is not known until the backpay is computed and until earnings elsewhere are offset, these are both figures which are readily ascertainable. The mere fact of setoff in the accounting process should not prevent the recovery of interest on the net amount withheld by the Respondent. A more serious problem may be encountered in cases where it is claimed that a discriminatee has incurred willful losses through insufficient effort to find work, through rejection of work available, or through acceptance of a lower paid job when an equivalent job was offered at a higher rate. Even these considerations, however, should prove no obstacle to the inclusion of interest on the net amount due. The employer's basic obligation to make whole does not depend upon an offset which merely reduces it pro tanto.39 The reduction in the amount due is through no effort or value con- ferred by the Respondent. To the Respondent, such offset is a mere windfall. The Respondent should not, then, gain even more, as a result, and totally escape the obligation to make full compensation by paying interest on what is justly due. ' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. $T F. W. Woolworth Company, 90 NLRB 289. 88 See Puget Sound Bridge & Dry Dock Company, Case No. 19-CA-2283 (Feb. 12, 1962) (not published In NLRB volumes), and Isis Plumbing & Heating Co., Case No. 21-CA- 4579 (Apr. 11, 1962) [138 NLRB 716]. 19 See In re Paramount Publim Co., 85 F. 2d 42, 45 (C.A. 2). DURA ELECTRIC LAMP CO. 427 Although the General Counsel is proposing a rate of 6 percent interest as a uniform practice in backpay cases because that is a common statutory rate, I notice that the Oregon statute does not differ; hence, it is an -appropriate rate in this case based both on Federal statutes and on the State statute. Because the Board usually computes backpay by quarters of a year, the interest payable on backpay should be computed on the same basis. Accordingly, I shall recommend that the Respondent be ordered to pay interest on the backpay due each of the discriminatees at the rate of 6 percent per annum commencing at the end of each quarter of the year for which backpay is shown to be due hereunder. The nature and scope of the Respondent's conduct discloses a purpose to defeat self-organization among its employees and a disposition to disregard the rights guaranteed to employees under the Act, thus demonstrating an underlying attitude of opposition on the part of the Respondent to the purposes of the Act generally. Because of this, I am convinced that there exists a danger of the commission by the Respondent, in the future, of other unfair labor practices which will defeat the policies of the Act. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thus to effectuate the policies of the Act, I shall recommend that the Respond- ent cease and desist from infringing in any manner upon the rights guaranteed in 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. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is, and the Independent was, a labor organization within the mean- ing of Section 2(5) of the Act. 3. By the discriminations against Leon Wegener, Gilbert Lehr, George Calabro, Alfred Patrick West, Ray Means, Leon Williams, Ervin Dunn, Jacob Hubert, Keith Jackson, Frederick Davis, and Claud Albert Pierce on the dates of their respective discharges herein found, and by failing and refusing to reinstate them . . . there- after, because of their union membership, activities, or views, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By the aforesaid conduct, and by questioning employees concerning their union activities and sympathies, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and .(7) of the Act. [Recommendations omitted from publication.] Dura Electric Lamp Co. and Teamsters Industrial & Allied Workers Local No. 97, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. f&-CA-1288. December 31, 1962 DECISION AND ORDER On November 9, 1962, Trial Examiner Samuel M. Singer 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 attached Intermediate 140 NLRB No. 39.