Holcombe Armature

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. A. Holcombe and J . N. Holcombe d/b/a Holcombe Armature and District 50, United Mine Workers of America . Case No. 10-( A-5035. January 16, 1963 DECISION AND ORDER On October 30, 1962, Trial Examiner Alba B. Martin issued an Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and Was engaging in unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in any unfair labor practice in the discharge of Gerald Barnes and recommended that such allegation of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified below.' The Board adopts as its Order the Recommendations of the Trial Examiner.2 1 The Trial Examiner recommended that backpay for Eugene Crouch run from May 25, 1962, the date of his discharge We do not agree As Crouch was, at that time, in the status of a striker, we believe it more appropriate that backpay begin from May 28, 1962, the date when the strike was terminated 2 Por the reasons set forth in the dissenting opinion in Isis Plumbing it Heating Co , 138 NLRB 716, Member Rodgers would not award interest on backpay. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with the General Counsel and the Respondent represented, was heard before Trial Examiner Alba B. Martin in Atlanta, Georgia, on September 10 and 11, 1962, on complaint of the General Counsel and answer of E. A. Holcombe and J N. Holcombe d/b/a Holcombe Armature, Respondent herein. The issues litigated were whether, by interrogations, warnings , threats, and promises, Respondent violated Section 8(a)(1) of the Act; whether Respondent unlawfully discharged Gerald L Barnes on May 22 and Eugene Robert Crouch on May 25, 1962; and whether on May 22 Respondent unlawfully suspended eight named employees and refused to reinstate them until May 28, 1962, because they joined or assisted District 50, United Mine Workers of America, referred to herein as the Union, which Union filed the charge After the conclusion of all evidence-after Respondent had rested its case-in-chief-the General Counsel moved to amend his complaint This motion was denied as untimely. After the hearing, Respondent and the General Counsel filed briefs which have been carefully considered. In his brief the General Counsel 140 NLRB No. 63. HOLCOMBE ARMATURE 619 renewed his motion to amend the complaint. This motion is again denied as untimely. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT E. A. Holcombe and J . N. Holcombe, herein jointly called Respondent , are brothers and copartners doing business under the trade name and style of Holcombe Armature. Respondent has its principal office and place of business at Atlanta , Georgia, where it is engaged in reprocessing automobile armatures and motors of various types. During the calendar year 1961 , which period is representative of all times material herein, Respondent sold and shipped products valued in excess of $50,000 directly to custom- ers located outside the State of Georgia Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharge of Baines On May 21, 1962, employee Gerald L. Barnes and one other employee passed out a number of authorization cards for the Union, and during the luncheon period that day, under an oak tree about 125 to 150 feet from the plant, Barnes obtained the signatures of about nine employees on the cards. In substance the General Counsel offered as proof of company knowledge of Barnes' union activities unconvincing testimony by employee John B Bragg that "about May 21, or thereabouts," around 5.05 p in., Partner Eail A Holcombe called Bragg into his office and asked if Bragg knew anything about "these boys passing out [union] cards-Barnes and any of the rest of them." Bragg allegedly replied that when he returned from lunch there was a card in his locker but he had not signed it. This is all of the alleged conversation. Bragg did not say that Holcombe pressed him for the names of those who allegedly passed out cards, or pressed him for any other information concerning the cards or the self-organizing movement. If Holcombe really called Bragg into his office to interrogate him about the Union there was certainly more to the conversation than was related by Bragg. Thus at best Bragg's memory was scanty and incomplete. In view of this, as Bragg was not specific as to what day the alleged conversation occurred-as seen above-as Bragg by his demeanor did not impress me as a credible witness, and as Earl A. Holcombe, who strenuously denied having the alleged conversation with Bragg at any time, by his demeanor did impress me as a credible witness, I credit Holcombe's denial and hold that the conversation as testified by Bragg did not happen at all The record is therefore devoid of any evidence that prior to his discharge Respondent had any knowledge of Barnes' union activities. During the afternoon of May 21, 1962, the production lathe Barnes had been regularly operating for about 3 months got hot and began to smoke. Partner James N Holcombe removed the motor from the lathe and Barnes was put on another lathe. The next morning, May 22, James N. Holcombe took the motor to an electrical repair shop and remained while it was repaired The overheating was diagnosed as caused by "overloading" of electricity. It was also evident that the hearings needed changing and that the contacts on the switch were badly burned, the reverse contact points being more badly burned than the forward points. The latter indicated to the operator of the repair shop that the switch had been turned to reverse when the motor was going forward, causing an excessive electric current to go through. It was evident that the on-off-reverse switch had been moved from "on" to "reverse" for a braking purpose. Ultimately it developed that the motor also had a shorted coil, which could have been caused by excessive current, and which caused the motor to be returned to the shop a second time on May 28 Later that morning, May 22, Holcombe returned to the plant with the repaired motor and re- assembled it to the lathe At this time, according to the credited testimony of James N. Holcombe, he asked Barnes if he had been using the reverse and Barnes replied in the negative. Holcombe knew that this lathe was operated 99 percent of its running time by Barnes. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime on the morning of May 22, presumably after James N. Holcombe re- turned to the plant, the two Holcombe brothers, Superintendent Vernon Rutledge, and Foreman Carroll Reece conferred and decided to discharge Barnes for intention- ally disregarding operating instructions by using the reverse as a brake instead of using the brake as directed. They concluded that Barnes had used the reverse as a brake and that that is what damaged the motor-a conclusion justified by the evidence before them. The evidence before them was not only the condition of the motor and the contact points, but also Barnes' previous working history. He had worked for Respondent since October 1961, and prior to his assignment to the production lathe in February 1962 he had worked quite a bit on a polishing lathe that had the same kind of switch and same type of brake handle as the production lathe. Several times during the period Barnes operated it the handle of the polishing lathe was broken-presumably because of too much pressure applied to it. Barnes is a large man and has what ap- peared at the hearing to be strong arms Also on one occasion during that period the polishing lathe "burned out" because it was reversed as a brake. The motor was burned and it had to be rewound, and Respondent concluded that it was being reversed to stop it. As two others than Barnes also then operated that lathe, Re- spondent did not conclude that any specific operator was responsible for the burn- ing. Rather, the two Holcombe brothers stopped all operations in that department, explained to all of the operators, including Barnes, what had happened, and cautioned them never to stop a lathe by switching it into reverse, but always to use the brake Other factors in the situation were that Respondent emphasizes production and Barnes normally would run on the production lathe between 400 and 500 armatures daily. He would stop the lathe between 1,000 and 1,500 times a day. He was supposed to turn the switch from "on" to "off" with his left hand and then push the brake handle with his left hand. By simply turning the switch over to "reverse" he could stop the lathe in half the time it would take the proper way by pushing the brake handle, thereby saving 5 seconds Saving 5 seconds 1,000 times a day would save 83 minutes for increased production. Barnes knew that a man's production counted when he was being considered for a raise in wages. And he knew that he had had trouble with brake handles. Nevertheless, he was never supposed to use the "reverse" in his operation and was always supposed to use the brake-which Barnes understood, as he admitted on the witness stand An additional factor is that applying the "reverse" would cause the belt on the lathe to squeal, thereby changing the normal factory noises which drifted into the office of the two Holcombes. As Barnes' machine was the nearest machine to the office and the only one near it-about 15 feet from it-any squeals from his lathe would have made in the office a more pronounced deviation from normal factory noises than unusual noises from any other machine. Both Holcombes credibly testi- fied that a number of times during the several weeks prior to Barnes' discharge they suspected they heard evidence that Barnes was using the reverse to stop the machine. and several times during this period one of them stepped to the door of the office to see if "it" would happen again. It did not in his presence In discharging Barnes right after lunch on May 22, James N. Holcombe read to Barnes the reasons for the discharge rather than simply telling him. Holcombe had written out the reasons before confronting Barnes. These are the words he read- About two and one-half months ago I had a motor to start overheating on the old production lathe There was no reason because we had used this motor for approximately five years without a problem. You along with several others were using this machine. We warned everyone including you what would hap- pen by using reverse for stopping. This motor burned out The only apparent reason was the reversible switch. Since several people have used this machine shortly before the breakdown, I could not definitely say who was to blame. In regards to the motor that over-heated with you late yesterday evening. when I checked it I could not find a reason for the excessive heat until I checked the drum reversible switch. The reverse contacts showed excessive wear; far more so than the forward ones. In questioning your leadman Frost, he stated he had observed you at times using reverse for stopping the lathe rather than the brake provided for this purpose, and warned you on several occasions about this As you know it was too late yesterday evenine to get it checked This morning I carried the motor to an electric motor shop for inspection It showed signs of over-heating Upon request for the reason I was told there was no defects in the motor. From the condition of the contacts it was more than likely being used to stop it HOLCOMBE ARMATURE 621 We cannot tolerate purposeful disregard of our operating instructions. For this we are letting you go as of now paying you for the time you have worked this week plus one week of forty hours in advance. Writing out the reasons for dismissal and reading the reasons was not unusual in the history of the business. Since its founding in 1946 Respondent had discharged for cause some 12 to 15 employees. In some of these cases Respondent had read the dismissal reason to the dischargees, although in most cases it had not. The fact that in the Barnes' case the reasons were read does not alter the conclusion reached herein. Before reading the reasons to Barnes the two Holcombes called Superintendent Rutledge and Foreman Reece into their office; and then Barnes was discharged in the presence of the four of them-the two partners, the superintendent, and the foreman. Although under other circumstances this fact might have pointed to another conclusion, under the circumstances of this case this fact does not alter the conclusion reached herein. The evidence established that Respondent believed Barnes had purposefully disregarded operating instructions, thereby damaging a machine, and that for reasons sufficient unto it Respondent considered this a serious offense and sufficient cause for discharge. Under the circumstances, confronting Barnes with all the top hierarchy of the plant may well have been designed to make the discharge impressive. The General Counsel showed that when two other machines became overheated, Respondent did not discharge the operators of those machines. However, in the case of employ Garmney and his overheated hand broach machine in February 1962, that machine had no reverse or brake on it; the record is silent as to what caused the overheating. In the case of employee Moody and the stripping lathe he burned in April 1962, Moody was just learning to operate that machine and he switched it into reverse without knowing he should not have. He had not been in- structed not to put it into reverse when it was running forward. These situations differed considerably from those surrounding the Barnes' discharge, as has been seen above Barnes had broken the brake handle of a machine several times and was one of those suspected in February of overheating it by switching it into reverse when it was going forward; so when he again burned a machine in May he was. at best, by company lights a repeater as a "mutilator" of machinery, and the burn- ing of the production lathe was no accident but resulted from disregard of company operating instructions which Barnes well knew. Upon the above findings, and upon the entire record considered as a whole, I find and hold that Respondent discharged Barnes for cause and that its action was not in violation of the Act. As Superintendent Vernon Rutledge accompanied Barnes out of the office follow- ing his dismissal, they discussed turning in Barnes' uniforms and Barnes asked Rutledge to go into the plant and get some automobile keys for him so he could drive home Barnes alleged and Rutledge denied that Rutledge uttered words to the effect that "when you start taking bread and butter out of my mouth I will do some- thing about it." As Rutledge was a credible witness I credit his denial and find that nothing said in this conversation changes the conclusion above that Barnes was discharged for cause. B. The concerted activity and the refusal to reinstate When, shortly after lunch on May 22, some of the employees learned that Barnes had been discharged, some of the employees gathered in the plant near the office and asked to talk with the Holcombes. There had been no talk of a strike, and the gathering was entirely spontaneous, the men obviously considering that the discharge was motivated against their then-current self-organizing efforts. When the two Holcombes arrived on the scene the men claimed that Barnes had been fired because of his union activities. In substance both Holcombes credibly testified that this was the first either of them heard about any organizing movement among the men, but the record leaves no room for doubt that they heard about the employees' signing union cards at this point. This was also the first time that the Holcombes had been confronted by a group of employees. Earl Holcombe told the group that Barnes had been fired by the office, that it was none of their business why he was fired, that the Company did not ask any of them when it hired them if it could hire them, and the Company was not going to ask them if it could fire anybody. Holcombe added that nonetheless he would show them why Barnes was fired. He then removed the cap from the switch on Barnes' machines and pointed out that it was evident that on one side the points were completely burned out and on the other side they were only 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slightly used. One of the Holcombes pointed out that Barnes had purposefully dis- regarded the instructions on how to operate the machinery. At this point feelings were clearly running high and some of the men talked of following Barnes out of the plant. Earl Holcombe countered by saying that they should either return to work or punch the clock and leave, that the Company would not pay them for standing around. Eight i employees left: Hoyt Jones, W. T. Gunnin, R. G. Madaris, Jackie Prather, Lawrence Tollison, Bill Brown, Dennis W McFarlin, and Larry Harkins. These men walked out spontaneously over the dis- charge of Barnes under the mistaken notion that Barnes was discharged to discourage membership and activity in the Union 2 Something over 20 employees remained in the plant working. A little later that afternoon, May 22, at the suggestion of a representative of the Union, this group of men returned to the plant and asked to return to work. James N Holcombe told them that he needed time to think it over and that they would be notified The following morning, May 23, at the suggestion of a union representative, the group again reported for work .3 James N. Holcombe told them that they were suspended until further notice. That afternoon they began to picket and continued doing so on May 24 and 25. On May 23, Respondent mailed to each of these eight employees a letter reading as follows: On Tuesday, May 22, 1962, you engaged in a work stoppage. We advised you that you were suspended from work pending investigation. This is to advise you that you are suspended effective May 22, 1962, until Monday, May 28, 1962. If you desire to return to your job, you will report for work at 7:30 a.m Monday, May 28, 1962. Pursuant to these letters the eight men returned to work Monday morning, May 28. From the above it appears, and I find on the entire record, that these eight em- ployees engaged in concerted and union activity on May 22 and following days, for I IIovt Jones testified there wei e nine, the ninth one being Moody Henry Frank Moody testified, but said nothing about going out with the others The parties stipulated that recall letters were sent to eight employees, naming them, but did not stipulate concernina one Moody. On this state of the record, and as Jones was not a reliable witness on some other subjects, I do not credit his testimony that nine men walked out and that one of them was Moody 2 Respondent contended that this situation involved no concerted activity because the men were led out by an alleged supervisor , Hoyt Jones , who was the first one to walk out This position is not adopted. Whether or not Jones was a supervisor, the men did not follow him out as a supervisor but left individually in outrage against the discharge of Barnes , and they thereafter acted in concert until their reinstatement the following Monday, May 28 2In its brief Respondent contended in substance that on May 22 and 23, when the group returned to the plant and asked to return to work , their offer to return to work was not an unconditional offer because they also demanded the reinstatement of Barnes The proof did not sustain this contention Barnes testified, as has been seen above, that after he was discharged he asked Superintendent Rutledge to get someone else's car keys for Barnes, "so I could go home My wife had my car at work that day. So he did, and I left. And that was all that day " Had Barnes not in fact gone home but stayed and joined the group, it seems improbable to me that he would have testified, "and I left And that was all that day " That afternoon the union representative, H A Martin, told the men that even though the Company discharged Barnes they should have kept on working and he sent them back to return to work There was no proof that 'Martin told the group to condition their request to return to work upon the reinstatement of Barnes, or that the group did so According to two witnesses , Gunnin and Jones, James Holcombe's reply was that he would let them know when they should return to work-nothing evi- dently being said about Barnes by either the group or by Holcombe When the group re- turned the following morning, May 23, again nothing was said about Barnes or about a condition to the request. That afternoon or the next morning, the union representative, Martin, called on Respondent's attorney and demanded that the group of employees and also Barnes be reinstated with backpay Respondent's attorney , who testified concerning this interview, did not testify that the demand for reinstatement of the group was in any way conditioned upon the reinstatement of Barnes . To be noted further is that the letter of May 23 to the eight employees made no reference to any alleged condition to their request to return to work Upon all of these facts, I find that the demands of the group for reinstatement on May 22 and 23 were unconditional demands HOLCOMBE ARMATURE 623 which they were deprived by Respondent of any opportunity to work from the after- noon of May 22 to 28. By suspending them during this period, thus discriminating against them because of their concerted activity and discouraging membership and activity in the Union, Respondent violated Section 8 (a) (3) and (1) of the Act. As none of their jobs were filled between when they walked out on May 22 and when they returned asking to go back to work that same afternoon, they were entitled to their jobs upon request, and are now entitled to backpay for the period of their suspension. C. The discharge of Crouch Eugene Robert Crouch, a young man, applied for a job with Respondent on or about May 16, 1962 On the night of May 22, Superintendent Rutledge telephoned him and told him to report for work the following morning. He reported and worked that day, May 23, as a buffer. On May 24 and 25 he joined the picket line and did not work. He did not report to Respondent that he was not going to work those days. When, with the others, he was handed his weekly paycheck on Friday, May 25, there was attached to it a separation notice dated that day saying that he was discharged and giving as the reason the following: Mr Crouch was hired 5-23-62. He worked the entire day until 5:00. May 24, 1962 he did not report to work. May 25, 1962 he did not report back to work and we are severing him as of May 25, 1962. According to the undenied and credited testimony of Crouch, one day while he was walking on the picket line-he believed it was Friday- Superintendent Rutledge came to the door of the plant and looked right at him. At this time Respondent knew the Union was in the picture and on May 23 or 24 a representative of the Union demanded of Respondent's counsel that Respondent reinstate the employees with backpay. Further, on Friday Earl Holcombe took pictures of two pickets carrying picket signs and so must have seen the other pickets, including Crouch. From all this it follows and I find that from seeing Crouch on the picket line Respond- ent knew that he was assisting the Union. One early morning, which the testimony of James N Holcombe convincingly placed as Monday morning, May 28, Holcombe telephoned Crouch and they dis- cussed whether the latter had received any threats. According to the undenied and credited testimony of Crouch, Holcombe wanted him to sign an affidavit that "those men" had threatened him, which Crouch refused to do on the ground that he had not been threatened. According to Crouch's credited 4 testimony, denied by Hol- 4 Respondent's brief contended that Crouch was a completely unbelievable witness be- cause he testified about the group gathering in the plant near the office shortly after lunch on May 22 to protest Barnes' discharge-when at that time Crouch could not have been present because he was not yet employed Crouch's only reference to this incident came on direct examination in answer to a question as to what happened on May 23, the only day he worked for Respondent . He answered as follows. Well, I went to work that morning. I didn't know anything about the union or the strike or anything-it was just a new job to me, and I worked that morning without any incidents and then at 12 00-after lunch, nobody came back in the department I was in I was in there by myself. I didn't know here what was going on So one of the Holcombes-the tallest one-I don't know them by name- called everybody together and said something about a man being fired I still don't know what it was all about, so I just went back to my job until the day was over . . . From this testimony it appears that Crouch was possibly testifying concerning another group meeting than the one which spontaneously gathered to protest the discharge of Barnes The day before the group had spontaneously gathered-neither Holcombe had "called everybody together"-and the record is silent as to whether most of those who punched out were from one department so that their absence depleted it Crouch's testi- mony is susceptible to the interpretation that due to the confusion on May 23, with the outside group trying to get back in and beginning to picket, and production interrupted and perplexity reigning on the inside, one of the Holcombes summoned everybody in the plant and told them what had happened, what it was all about, in order that any who had not been present the day before might hear Respondent's iermon of the events his testimony is susceptible to the further interpretation that an additional group of eni- ployees (from his depaitment) joined those outside on tae afteinoon of May 23 when the picket line was established. That no charge was filed concerning any such additional gioup and that there was no testimony concerning such does not negative this possibility So this testimony is not persuasive to me that Crouch was a completely unbelievable C-24 DECISIONS OF NATIONAL LABOR RELATION3 BOARD combe, the latter then offered him his job back if he would sign such an affidavit. Crouch refused. To be noted is that the separation notice gave as the reason for the severance the fact that he did not report for work May 24 and 25. At the hearing both Holcombes testified in substance that on the basis of Crouch's 1-day's work performance May 23 they considered him unsuited for the work. However they did not discharge him that evening as being unsuited, and when they did sever him 2 days later they gave only absence from work, and not unsuitability, as the reason. So I do not credit James N. Holcombe's testimony that Crouch was severed for two reasons: because of unsuitability and because he was absent from work. Further, had he been un- suited Holcombe would not have offered him his job back on Monday, even conditionally. Upon the entire record, I conclude and find that Respondent discharged Crouch because he joined the picket line and thus joined cause with the eight employees who had been suspended, and that he was not offered reinstatement when the others were on Monday because he refused to give an affidavit against his fellow pickets. Under these circumstances I find that the discharge and refusal to reinstate Crouch was dis- crimination against him to discourage concerted activity and membership and activity in the Union, Respondent thereby violating Section 8(a)(3) and (1) of the Act D. Interference, restraint, and coercion On Monday morning, May 28, shortly before the group of employees returned to work, W. T. Gunnin, one of the group, went into the office and had a conversation with the two Holcombes. The first subject discussed was a debt Gunnin owed the Company. Then Earl Holcombe asked Gunnin what he thought the trouble was, Gunnin replying that he did not know about the rest of them but Gunnin thought they had fired Barnes "for having union activities." The Holcombes denied this. Gunnin testified that the conversation with Earl Holcombe then continued: He said, I think we all would do better without one if we would all get together and talk and talk it over. He didn't want to have any hard feelings with any- body and I told him that I didn't either. And he asked me what did I think would make the men happy, and I told him. I told him a credit union, a retire- ment plan, and to make more money I told him that I didn't think any of us made enough money and stuff like that. And he said, "Well, do you think you could talk to some of the boys" and I said, "No, that that would just put me on the spot." According to Gunnin, Earl Holcombe said something to the effect: ... if they did get a union-they didn't want a union-it would make it rough on us to where we couldn't stand it. In other words, we would not like to work there. It would just make it hard. Also the Holcombes: . said something to the effect if they had to, what they had was paid for; they could sell. Sell the place and rent it, I think he said, or something to that effect. Both Holcombes were asked numerous questions about this conversation and their answers indicated that they did not have very clear memories concerning what was said. They did not recall many of the remarks attributed to Earl Holcombe and they admitted that some of the statements may have been made. As Respondent's attitude toward the Union had then stiffened-as indicated by their keeping the men suspended until Monday-and as Gunnin's memory concerning this conversation was clearer than theirs, I credit Gunnin's version of this conversation and find as follows: Earl Holcombe's statement that he thought they all would do better without a union was a view or opinion protected under Section 8(c) of the Act. Earl Holcombe's question as to what would make the men happy, sandwiched between his announced preference for no union and his request that Gunnin speak to the boys, did not interfere with the employees' rights under Section 7 of the Act because it related to wages and working conditions, and was so understood by Gunnin-,and did not relate to the Section 7 rights. Earl Holcombe's statement that if they got a union it would make it rough on the men, and the statement that the Holcombes could sell the place, in the entire context witness and that he allowed his imagination to place him at the group meeting around 1 p in on May 22 even though he was not then present In fact Crouch appeared to me to be boyish and credible. HOLCOMBE ARM TURE 625 went beyond the bounds of the view, argument, or opinion under Section 8(c) and amounted to implied threats or sanctions against the employees if the Union got in- Respondent thereby interfering with, restraining, and coercing employees in the rights guaranteed in Section 7, thereby violating Section 8(a) (1) of the Act. On direct examination as a witness called by the General Counsel, employee Hoyt Jones was asked nothing about overhearing a conversation between Superintendent Rutledge and an employee named Ralph Arnold. On cross-examination Jones stated that he overheard Superintendent Rutledge ask Arnold if he had signed any papers back there, and then tell Arnold not to "fool around with those boys back there they will just get you in trouble." On cross-examination by the General Counsel, Superintendent Rutledge called as a witness by Respondent, substantially denied testifying as stated above by Jones, but admitted having a conversation with him on about May 24 or 25, concerning whether Arnold would join the picket line of the suspended group. On the witness stand Jones appeared given to uttering conclusions he could not substantiate, and for that reason did not impress me as a completely reliable witness In view of this, and as Rutledge was a credible witness, I do not credit Jones' testi- mony in this regard and I do credit Rutledge's denial. I conclude that it was not proven that Rutledge's conversation with Arnold was a further violation of Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Respondent having unlawfully suspended Hoyt Jones, W. T Gunnin, R G. Ma- daris, Jackie Prather, Lawrence Tollison, Bill Brown, Dennis W. McFarlin, and Larry Harkins on May 22, 1962, and not having reinstated them until May 28, 1962, because of their concerted and union activities, I recommend that Respondent make each whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his suspension to the date of his reinstatement, less the net earnings of each during said period (Crossett Lum- ber Company, 8 NLRB 440, 497-498). Respondent having unlawfully discharged Eugene Robert Crouch because of his union and concerted activities, and not having offered him reinstatement, I recommend that Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position,5 without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, May 25, 1962, the date of the discrimination against him, to the date when, pursuant to the recommendations herein contained, Respondent shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, supra). As provided in the Woolworth case (F. W. Woolworth Company, 90 NLRB 289), I recommend further that Respondent make available to the Board, on request, payroll and other records in order to facilitate the checking of the amount of backpay due. The backpay obligations of the Re- spondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventative purposes of the Act will be forfeited unless the Order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantess of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial stirife which burdens and obstructs commerce, and thus effectuate I The Cha8e National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the policies of the Act, I shall recommend that Respondent be ordered to 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. E. A. Holcombe and J. N. Holcombe d/b/a Holcombe Armature, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Hoyt Jones, W. T. Gunnin, R. G. Madaris, Jackie Prather, Lawrence Tollison, Bill Brown, Dennis W. McFarlin, Larry Harkins, and Eugene Robert Crouch, thereby discourag- ing concerted activity and membership and activity in the labor organization named in paragraph numbered 2 above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By threatening employees concerning their union activities, and by other acts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case considered as a whole, I recommend that the Respond- ent, E. A Holcombe and J. N. Holcombe d/b/a Holcombe Armature, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities by its employees or membership in District 50 United Mine Workers of America, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2 Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer reinstatement to Eugene Robert Crouch in accordance with the recom- mendations set forth in "The Remedy" herein. (b) Make whole Hoyt Jones, W. T. Gunning, R. G. Madaris, Jackie Prather, Lawrence Tollison, Bill Brown, Dennis W. McFarlin, Larry Harkins, and Eugene Robert Crouch, for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in "The Remedy" herein. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of the above-named employees under the terms of these Recommendations. (d) Post at its plant in Atlanta, Georgia, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for 6In the event that these Recommendations be adopted by the 'Board, the words "A De- rislon and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals. the words "Purssuant to a Decree of the United States HOLCOMBE ARMATURE 627 the Board's Tenth Region (Atlanta, Georgia), shall, after being signed by the repre- sentative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materials (e) Notify the Regional Director for the Tenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith 7 I recommend that the complaint be dismissed as to the discharge of Gerald L. Barnes Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " s In the event that these Recommendations 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 EMPLOYEES 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 Relations Act, we hereby notify our employees that. WE WILL NOT expressly or impliedly threaten our employees with economic or other reprisal because of their membership in or activity on behalf of District 50, United Mine Workers of America, or any other labor organization of our employees WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to join District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL make whole Hoyt Jones, W. T. Gunnin, R. G. Madaris, Jackie Prather, Lawrence Tollison, Bill Brown, Dennis W McFarlin, Larry Harkins, and Eugene Robert Crouch for any loss of pay suffered by them by reason of the discrimination practiced against them in accordance with the Recom- mendations of the Intermediate Report. WE WILL offer to Eugene Robert Crouch immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges. All our employees are free to become or refrain from becoming members of the above-named Union or any other labor organization. E. A. HOLCOMBE AND J. N. HOLCOMBE D/B/A HOLCOMBE ARMATURE, Emplover. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE -We will notify Eugene Robert Crouch if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after his 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 , 528 Peach- tree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or if they have information that its provisions are being violated. 681-492-63-vol. 140-41