Marshfield Steel Co.

MARSHFIELD STEEL COMPANY, ETC. 985 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer Lois Smart immediate and full reinstatement to her former or substantially equivalent position, without prej- udice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that she would have earned as wages, absent the discrimination, from November 30, 1961, to the date of offer of rein- statement, in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligations of the Respondent 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. In view of the serious and continued nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from in any manner infringing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By discriminating as to the tenure of employment of employee Lois Smart, thereby discouraging membership in and activity on behalf of the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] deny a rumor that the plant would be closed If the Union came in, yet there is no evi- dence that any such rumor actually existed; and (2) if such a rumor had existed its origin more reasonably would have been found among management representatives than among employees who were union adherents. Marshfield Steel Company, Marshfield Development Corporation, Frank L. Stockton, and Herschel L. Davis and United Steel- workers of America Marshfield Steel Company and United Steelworkers of America. Cases Nos. 17-CA-1974 and 17-CA-2001. February 1, 1963 DECISION AND ORDER On October 23,1962, Trial Examiner Phil Saunders issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 140 NLRB No. 99. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board l has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' ' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Rodgers, Fanning, and Brown]. 2 For the reasons stated in the dissenting opinion in Isis Plumbing & Heating Co , 138 NLRB 716, Member Rodgers would not award interest on backpay INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner Phil Saunders at Springfield, Missouri, on July 17, 18, and 19, 1962. The General Counsel, Marshfield Steel Company, herein called the Respondent or the Company, and Marshfield Develop- ment Corporation , were represented by counsel, and all parties participated fully in the hearing . The General Counsel and Marshfield Steel Company submitted briefs which have been duly considered by me in arriving at my conclusions and findings. These cases were before me upon the General Counsel 's consolidated complaints. It is alleged that the Marshfield Steel Company violated Section 8 (a)(1) and (3) of the Act by threatening employees that if the Union won the election the plant would be moved or closed; by threatening to discharge employees if union activity resumed; by interrogating employees concerning their union activities and other employees' union activities ; by suggesting to employees that they withdraw from membership in or support of the Union ; by engaging in surveillance and/or creating the impression of surveillance of the employees' union activities ; by discharging Bill Miles, Fred Williams, Myrl Page, Edward Towers, and Roger Murphy; and by laying off Jerry Price, Edward Sherrell, Danny Mathis, Darrell Whittaker, and Tom Watterson, all because of their activities on behalf of the Union , and in order to discourage membership in the Union It is also alleged that the Marshfield Devel- opment Corporation, Frank L. Stockton, president of the Development Corporation, and Herschel L. Davis, a member of the board of directors of the Development Corporation, acting as agents of and/or in conspiracy with the Marshfield Steel Company, violated Section 8 (a)(1) of the Act by threatening employees that if the Union won the election the plant would be moved or closed; by interrogating em- ployees concerning their union activities and other employees ' union activities; by suggesting to employees that they withdraw from membership in or support of the Union; and by engaging in surveillance and/or creating the impression of surveillance of the employees' union activities. MARSHFIELD STEEL COMPANY, ETC. FINDINGS OF FACT 987 1. THE BUSINESS OF THE RESPONDENT Since the allegations of the complaint of the facts upon which the jurisdiction of the Board is predicated are admitted in the answer, I find that the Respondent, Marshfield Steel Company, a Missouri corporation, is engaged in the fabrication of tandem systems used on trailer trucks. In the course and conduct of its business operations, the Respondent annually sells products valued in excess of $50,000 to Missouri firms who manufacture and anually sell products valued in excess of $50,000 to customers outside the State of Missouri. The Respondent also purchases goods and materials valued in excess of $50,000 directly from sources outside the State of Missouri. I find, therefore, that the Respondent is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7), respectively, of the National Labor Relations Act, as amended, herein called the Act, and that it will effectuate the policies of the Act to assert jurisdiction over the Respondent. H. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For the purposes here Marshfield Steel Company was originally located in Spring- field, Missouri. In the latter part of 1960, for various reasons, plans were made to move some of the operations from Springfield to Marshfield.' The various moves were made on a piecemeal basis, and lists were prepared as to the employees at Springfield who would accept transfers to the new location. At the time of the initial moves to Marshfield an old sheet iron building was first occupied, but by January 1962 the Company had about 60 employees in a new building at Marshfield, constructed for them through the efforts of the Marshfield Development Corporation. Marshfield Steel Company then continued to fade out its Springfield operations, and has only very recently completed the moves and transfers. It appears from this record that the Union started its organizational campaign at the company plant in Marshfield during the early part of January 1962.2 Al- leged discriminatees Murphy and Williams obtained authorization cards from the Union, and, during the period of several months following, they were able to sign up approximately 30 employees at the plant .3 The record further reveals that a representation election was scheduled for June 8, but the election was canceled by the Union shortly prior thereto. B. As to Marshfield Development Corporation findings and conclusions The issues here are as follows: Were Frank Stockton and Herschel Davis, officers and directors of Marshfield Development Corporation, acting as agents of the Marshfield Steel Company when they allegedly threatened and interrogated employees of the Steel Company, suggested that employees withdraw from union activity, and engaged in surveillance of their union activities? The authority of Stockton or Davis to act for Marshfield Steel Company is specifically denied. The record establishes that the new plant building in Marshfield, as aforestated, was built by the Development Corporation for the operations of Marshfield Steel Company. The Development Corporation has a lease with Marshfield Steel calling for certain rental payments, and under the terms of the lease and contract to build, Stockton had right to come on the premises for inspection purposes. The record clearly shows that there are no common directors or stockholders as between the two, and that the 'In the spring of 1961 the decision was made to move the entire operation to Marshfield. 2 All dates are 1962 unless specifically stated otherwise. 3 Williams testified that four or five of the employees signing authorization cards did so on the company parking lot, while the others were signed up at a local filling station or at his home in Marshfield. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Development Corporation exercised no right, nor did they have the right to hire, fire, discipline, or make any recommendations whatsover concerning labor relations policy.4 Alleged discriminatee Fred Williams testified that in the spring of 1961 , Stockton appeared at the plant, and held a meeting on the premises wherein he attempted to sell stock of the Development Corporation to the employees of Marshfield Steel Company. Williams also stated that he had observed Stockton in the plant building on several occasions, but he knew that Stockton was checking on the construction. Myrl Page testified that he had conversations with Herschel Davis of the Develop- ment Corporation, and that Davis had inquired if Page had heard anythnig about the Union, and also informed Page that he was afraid Marshfield Steel might pull the plant out if the Union was successful. Page admitted that at the times of his conversations, Davis gave no indication that any officer of Marshfield Steel Com- pany had requested Davis to talk to Page, and had the impression that Davis was talking on his own. Page testified, "I felt he [Davis] was worried about the situation in general and was trying to help out." Edwards Towers testified that on May 1 he and Fred Williams had asked the Development Corporation's president, Stockton, what he thought about the Union, and had then been informed by Stockton that if the Union was successful, employees would "run" over management 5 Everette Chandler testified that on May 7 he was working at the plant and that Stockton had sent for him, and then had inquired if he had signed a. union authori- zation card. Donald Stockley testified that on about May 4 Stockton called him as a friend, and told Stockley that he had lots of money invested in the Development Corpora- tion, and would like to warn Stockley about the Union. Stockton then also informed Stockley that he knew all employees who had signed union cards, and that if Stockley wanted to keep his job to let Marshfield Steel Company know that he had signed a union card. Stockley then admitted that Stockton had made no reference to the effect that Marshfield Steel Company had asked him to contact Stockley, and further admitted that Stockton had informed him that he was contacting Stockley on his own. Marshfield Steel Company Manager McDonald credibly testified that he had never requested Davis, Stockton, or any of the other members of the Development Corporation to act on his behalf on matters relating to union activities in the plant. McDonald further testified that he had no knowledge of the interrogations made by Stockton or Davis up until the company lawyer investigated the case, but admitted that employee Stewart had asked him what interest Stockton had in the union effort to organize, and that McDonald then informed Stewart that Stockton had "no business at all," insofar as the Union was concerned 6 McDonald stated that he had no knowledge of the meeting Stockton held with Marshfield Steel Company employees in attempting to sell them stock in the Development Corporation, but that it would have been of no concern to him because ,the Red Cross, the Cancer Society, and many other organizations come into the plant from time to time and hold meetings with employees in soliciting their funds. McDonald further testified that if Stockton was let in the plant to talk to Chandler, as aforestated, it was done without authority, and that the Pinkerton guards at the plant have no authority to let anyone in without an identification card. Earl Hawkins, a Pinkerton guard at the plant, testified that on one occasion Stockton came to the plant and asked to see Chandler. Hawkins stated that he then looked for Night Supervisor Shultz, but could not locate him so he informed Chandler that Stockton wanted to talk to him .7 Hawkins also testified that Marsh- field Steel Company never 'authorized him to let a board member of the Develop- ment Corporation into the plant. 4 Transcript, pages 366-367, and also pages 291-292 5 Williams also testified as to this incident, and stated that Stockton told them, "He was against the Union He [Stockton] had a lot of money tied up, he went by the old book, and when he told an employee to do something, he wanted them to do it" 9 Stockley testified that he had overheard McDonald talking to Stewart as to this in- quiry, and that McDonald had stated that the union matter was not any of Stockton's business . Company witness Cantrell testified that he had asked McDonald If Stockton had any right to talk to employees about the Union, and that McDonald told him that he had no such right, and that whatever Stockton was doing-it was on his own. 7 Hawkins stated that he had orders not to let anyone in the plant other than workers, so he attempted to get permission from Shultz thinking it was an emergency, and when he could not find Supervisor Shultz, took it upon himself to let Stockton in. MARSHFIELD STEEL COMPANY, ETC. 989 The General Counsel argues that the Marshfield Development Corporation had a definite interest in the continuing operation of the Steel Company in Marshfield, and that they had reasons to do their part in stopping anyone who might interfere with the operations. The General Counsel further maintains that the Marshfield Steel Company afforded a parent authority to the Development Corporation to work for ,them and created an agency relationship, and the principal is then bound by the acts of this agent; and that all the relating factors show that Marshfield Steel Company acquiesced in, approved, and assisted the Development Corporation in their interrogation and threats of the Marshfield Steel Company employees. I do not agree with the General Counsel as to the agency relationship, and for the reasons herein set forth, I find otherwise. Agency is a contractual relationship, deriving from the mutual consent of prin- cipal and agent that the agent shall act for the principal. But the principal's con- sent, technically called authorization or ratification, may be manifested by conduct, sometimes even passive acquiescence as well as by words. Authority .to act as agent in a given manner will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority. Also a principal may be responsible for the act of his agent within the scope of the agent's general 'au- thority, or the scope of his employment if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted .8 In light of these general principles of agency, I will now consider the circumstances and facts in- volved in this phase of the case. The record shows that the Marshfield Development Corporation is a group of townspeople who formed this corporation to aid in the development of the city of Marshfield, and that the Development Corporation, after its inception, constructed ,and leased the new building which the Marshfield Steel Company now occupies. This record 'further shows that the officers of the Development Corporation had aright to be on the plant premises for inspection purposes of the building. The credited testimony shows that from time to time Marshfield Steel Company per- mitted various people and organizations in the plant to solicit support for their particular purposes, and because of this common practice I cannot 'attach any special significance to .the efforts of Stockton in attempting to sell stock in the Development Corporation to employees of Marshfield Steel Company, as aforestated. Further- more, this incident occurred prior to the charges here, and in no way involved union matters. On one visit to the plant, Stockton talked to employee Chandler about the Union. However, there is no testimony that any supervisor knew of his visit, and it was further established that Stockton was permitted into the plant by the guard who was acting on his own, and without company authority to do so. Myrl Page and Donald Stockley testified as to union conversations with Develop- ment Corporation's officers Stockton and Davis. Page admitted in his testimony that Davis gave no indication that the Steel Company had requested these contacts, and Page then openly admitted that Davis was ,talking to him on his own behalf. Stockley admitted that in his union conversation with Stockton, he was informed by Stockton that the contact was at his own instigation. There is no reliable testimony that Marshfield Steel Company had any knowledge whatsoever as to these conversations until the investigative stage of the case, and all of these incidents took place away from the plant premises. The record reveals that two employees did inquire of McDonald, works manager of Marshfield Steel Company, what interests and rights Stockton had in talking to employees about ,the Union. McDonald immediately and with unequivocal cer- tainty then informed these employees that the union matter was none of Stockton's business, and ,that it was Stockton's own doing. It is my belief that the sum total of the foregoing evidence, even viewed in the light most favorable to the General Counsel's position, fails to establish the existence of any agency relationship. The record is barren of any evidence that Marshfield Steel Company aided, abetted, assisted, or cooperated with the Marshfield Develop- ment Corporation. It is noted also that at no time did the Steel Company knowingly allow the Development Corporation the use of company time or property for the antiunion arguments, that the initiative for the conversations in question were either instigated by Stockton or Davis on their own behalf, and the employees involved fully understood this to be true. As to the incident involving the testimony of 8International Longshoremen's and Warehousemen' s Union, O.I.O. (Sunset Line and Twine Company), 79 NLRB 1487, 1507, 1508. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Towers and Williams, as aforestated, it is noted that they themselves made this contact with Stockton with no invitation to do so, and without any knowledge whatsoever on the part of Marshfield Steel Company. In addition to the above, this record establishes that at no time did Marshfield Steel Company ever ratify the conduct and statements of Stockton or Davis, and upon the few occasions when inquiries were directed to Manager McDonald as to their status, he then and there specifically disavowed any and all relationships as to the matter in question here. Certainly there was no passive acquiescence on the part of Marshfield Steel Company, and there is no testimony whatsoever that the Steel Company ever empowered the Development Corporation to act for it in the general area under consideration here. In my opinion the only relationship which existed between the Steel Company and the Development Corporation was that of landlord and tenant, with a natural and understandable interest by the landlord that his tenant continue to do business in the building specifically constructed for his specialized operations. In support of his position the General Counsel cited the cases of Waynline, Inc., 81 NLRB 511, and Mid-South Manufacturing Company, Inc., 120 NLRB 230. The facts here clearly distinguish the instant case from those cited by the General Counsel. In the Waynline case, the "Business Men's Committee," with the knowledge and ap- proval of the therein respondent's supervisors, questioned employees about the union and urged them to abandon their activities. The Board held that under these circum- stances the respondent had a responsibility to disavow the actions of the committee, and by its silence acquiesced in the interrogations of its employees. In the instant case the Steel Company, through its manager, McDonald, specifically disavowed the interrogations of Stockton, and in other incidents the employees freely admitted that Stockton and Davis were talking on their own behalf. Also in the Wayline case the respondent's assistant superintendent went with two employees to see the committee, and the employees were paid for their time so spent. In the instant case there is nothing even remotely similar to these circumstances. In the Mid-South Manufac- turing Company case, the respondent therein actually requested businessmen to help them to keep the union out, and also a supervisor of the respondent told the business- men to "go ahead." This type of company direction and control is completely lack- ing in the instant proceeding. In view of the above I find that the testimony of the General Counsel's witnesses and his position, fails to establish the existence of an agency relationship,9 and it will be recommended that the complaint be dismissed as to Marshfield Development Cor- poration. Accordingly, I need make no finding as to whether the alleged interroga- tions and threats of Stockton and Davis were coercive, or whether these officers of the Marshfield Development Corporation had engaged in coercive conduct. C. Alleged 8(a) (1) violations of Marshfield Steel Company; findings and conclusions Roger Murphy and Fred Williams credibly testified that on May 14, Company Supervisor Price informed them that he had been told by President Hutchens that if the Union came in the plant would be moved back to Springfield. This testimony was corroborated by Union Representative King. Former employee Henry Thomas credibly testified that on April 30 he was told by the Respondent's manager, McDonald, that he was proud of Murphy in telling employees that the Company did not need a union; that McDonald then asked Thomas if he knew of anyone that had signed a union card; 10 that on this occasion McDonald stated if the Union went in the plant would be closed down; that he knew Fred Williams was handing out authorization cards; and that McDonald then also told Murphy that if he testified before the Board, McDonald would deny having made such statements to him. Thomas further testified that during the evening on April 30 he visited McDonald at his home, and then told McDonald that he had lied to him as to the signing of union cards, and that he himself (Thomas) had signed one. McDonald then informed Thomas that he would not fire him, but that he had his name on a list to be fired, and for Thomas to inform his friends not to expect too many more checks from the Company.1L Alvis Rost credibly testified that he in- 9 Livingston Shirt Corporation, et al., 107 NLRB 400, 403. '°Thomas replied in the negative 31 McDonald testified that he informed Thomas not to pay any attention to rumors, that he also informed Thomas that the plant would operate-union or no union-denied the statement attributed to him that he knew who was handing out union cards. McDonald admitted that Thomas came to his home in the evening and informed McDonald that he MARSHFIELD STEEL COMPANY, ETC. 991 formed Manager McDonald of the fact that he had signed a union card , and upon his inquiry was told by McDonald that the plant could close if the Union was suc- cessful, and testified that McDonald then asked Rost if he knew of other employees who had signed union cards. McDonald admitted that he had a conversation with Rost, and when union cards were mentioned McDonald then asked Rost if he had signed one. McDonald then told Rost that the signing of a card would not "bind" him to the Union and to go back to work. McDonald stated that he also informed Rost that the plant would not shut down. Bill Miles credibly testified that on or about May 9 he had a conversation with Foreman McKinney. Referring to the Union he asked McKinney what he thought was going to happen. McKinney an- swered that he did not know for sure, and Miles then asked him if he thought there would be any more employees fired over it. In answer to this last question McKinney stated, "No, not until the Union started raising another stink, that is why the last guys were fired." Miles also testified that later McKinney told him that if the plant goes union the Company probably would close the doors.12 On the Monday after June 8, the date the election had been scheduled, Foreman Estes told Miles "That it wouldn't have mattered if the Union had voted and it carried and it went through, that Mr. Hutchens would close the doors." Estes admitted talking with employees about the Union prior to the election, and telling them that he did not think the Union would do them any good, and could not understand why the employees wanted a union.13 I have credited the aforestated testimony on the part of witnesses for the General Counsel, on the basis of my observations and demeanor of the witnesses, and in several instances on the admissions of company supervisors that certain conversa- tions, or statements concerning the Union, were made to the employees. Moreover, it is well settled by the Board and courts that in determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated, or tends to, interfere with the free exercise of the rights guar- anteed by the Act. If the setting, the conditions, the methods or other probative con- text can be appraised, in reasonable probability, as having the effect of restraining or coercing the employees in the exercise of such rights, then this activity on the part of the employer is violative of this section of the Act. N.L.R.B. v. Protein Blenders, Inc., 215 F. 2d 749. 750 (C.A. 8). This is especially true in the insecure organiza- tional period, as here, where the employer can make some seemingly innocent ques- tion or remarks suggest his displeasure with employees who support the union. In respect to the credited testimony of Henry Thomas, as aforestated , it is noted that he made a return trip to inform Manager McDonald that he himself had signed a union authorization card. Considering his prior conversation with McDonald on this date, it appears highly unlikely to me that Thomas would have told McDonald that he did not know of any employee signing a union card unless McDonald had made the inquiry, and the return visit of Thomas to McDonald's home on the same evening to correct his prior answer seems to be further substantiation of the incidents as related by Thomas. 14 In my opinion the denials of the Respondent's supervisors on statements attributed to them by Murphy, Williams, and Miles were not convinc- ing Whether, in the final analysis, it would have been economically feasible, or even possible to move or close the plant because of the large investment and the long- term building lease in Marshfield, is not for my specific determination. It is sufficient here to find that such threats were made. The surrounding circumstances in this case, which are singly and in combination unfair labor practices, and upon which it is found Respondent violated Section 8(a)(1) are: (1) The threat by Supervisor Price to Murphy and Williams that if had lied about signing a card, that be told Thomas he was not going to fire anyone for signing a card, denied having any list of those 10 he fired , and did not state that em- ployees were not to expect too many more checks 12 McKinney denied the statements attributed to him by Miles but testified that he may have stated that the plant could be moved if the Union came in. 13 The Company put considerable emphasis on a talk or talks made by Manager McDonald to employees on or about June 8, 1962. In these talks McDonald told all the employees that they could vote either for or against the Union and that the plant would still be in operation regardless It is noted, however, that these talks were all given a month after all 8(a) (1) violations had been committed, and therefore do not reflect a true picture of the situation as it existed earlier. 14It is also noted in McDonald's testimony that he did not make any "bones" of what he thought about a union, and his advice to employees to think very carefully before they did something they might be sorry for later on. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union was successful the plant would be moved; (2) the interrogation by Man- ager McDonald of Thomas and Rost in ascertainment of which employees had signed union cards; (3) McDonald's threat to Thomas and Rost that the plant would be closed if the Union came in; (4) Supervisor McKinney's threat to Miles that the plant would close if the Union won; (5) Foreman Estes' threat to Miles that the plant would close if the Union was successful; (6) and threats by McDonald and Estes to discharge union adherents if their efforts continued or resumed. The testi- money that I have credited and attributed to the company supervisors goes beyond the permissible sanctions of the Act, and under these circumstances, conditions, and methods, coupled with the insecure organizational period as here, such conduct on the part of the Respondent has violated the free exercise of the employees' rights as guaranteed by the Act. N L.R.B. v. Gate City Cotton Mills, 167 F. 2d 647 (C.A. 5); Graber Manufacturing Company, Inc., 111 NLRB 167. D. The discharges; findings and conclusions Manager McDonald stated that he had an indication of union activity about March 15.15 His next recollection was when one or more of the employees themselves spoke to him about it, asking what McDonald thought of the Union since these employees had been offered union authorization cards to sign. The record estab- lishes that alleged discriminatee Miles was to be a union observer at the election on June 8, and admittedly McDonald had knowledge of this fact and had a conversation with Miles about it. There is credited testimony by Thomas that on April 30 Manager McDonald in- formed him that he knew who was "running" the union efforts to organize the plant, and that he knew Fred Williams was handing out authorization cards.16 Donald Stockley credibly testified that he told McDonald he had signed a card, and that McDonald then told him, "I know you had." While this incident happened on May 15 and Stockley was then told to go back to his duties, nevertheless, this testimony in my opinion shows that Manager McDonald had a very comprehensive knowledge of the employees active for the Union. The record here further establishes that constant rumors about the union efforts circulated almost daily throughout the plant, that various supervisors, as aforestated, admittedly discussed the Union with various employees, and that small groups of employees would become friendly, and in several respects limit their associations to each other while at the plant. The Company's union animus and knowledge is illustrated lucidly by the aforementioned 8(a)(1) conduct, and also the Company further shows its animus and knowledge by the letters it sent to the employees.17 It was also established that the alleged discharged discriminatees discussed the Union in the plant, and had at least some of the authorization cards signed in the plant. Furthermore, the Board has repeatedly held that direct knowledge of an employees' concerted or union activities is a sine qua non for finding that he has been discharged because of such activities. There is well-established Board and court precedent that such knowledge may be inferred from the record as a whole. Wiese Plow Weld- ing Co., Inc., 123 NLRB 616; The Radio Officers' Union of the Commercial Teleg- raphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17; and Pyne Moulding Corporation, 110 NLRB 1700. From the record as a whole in this proceeding and on the basis of the specific instances given above, it is readily inferable and reasonably presumed that the Marshfield Steel Company had prior knowledge of the union activities among its employees and the alleged discriminatees involved herein, and in accordance therewith I so find. 1. As to Williams, Page, and Towers The Company contends that alleged discriminatees Williams, Page and Towers were all discharged because they were caught washing up in the plant washroom prior to quitting time on the afternoon of April 30, and after previous warnings had been issued.18 Manager McDonald testified that on April 30 Supervisor Hughes 15 McDonald testified that he heard about the Union from a general conversation at a local cafe. Is Thomas testified that in this conversation with McDonald-he was also told by " McDonald that he was going to clean out a "nest of some sort 17 Respondent's Exhibits Nos. 19 and 20 1s Concerning the union activity of these three individuals, the record shows that Williams started getting union cards signed up in April, and was successful in getting about 30 employees to sign. Page started talking with other employees about the Union in January 1961, and told other employees that he would sign a card whenever they MARSHFIELD STEEL COMPANY, ETC. 993 informed him that Williams, Page, Towers, and Evans were in the washroom prior to quitting time, and that they were chronic offenders in this respect. McDonald stated that when Williams, Page, and Towers were brought into his office on the next morning, May 1,19 he informed them that they had been guilty of leaving their ma- chines before quitting time, and that they had been warned previously about this. They were then told to check in their company property and pick up their personal belongings. McDonald stated there was a tendency of the employees to take "small advantages" of getting into the washroom so that they could then punch the clock when the whistle blew. He further stated that these discriminatees had been in- volved in like incidents when the plant operations were in the old building, and that the Company had posted notices on the bulletin board and had verbally warned sev- eral employees about such practices.20 McDonald further testified that some em- ployees are permitted to quit early in order to clean up their machines, but that this time does not include "personal" cleanup time. McDonald stated that these three alleged discriminatees were usually involved when these washroom incidents came up, and that after notices were posted such infractions were considerably re- duced.21 Foreman Hughes testified that he had been involved in a prior washroom "episode" with the discriminatees in the fall of 1961, as aforestated, after which he talked with them about the incident and also posted a notice on the same, that the notice helped this situation for about a month, but "quite a few times" he would have to "run" employees out of the washroom, and that this problem increased be- fore the move was made into the new building.22 Hughes admitted that no other employees had been discharged for this reason. Larry Evans stated that he, Towers, and Williams were in the washroom on April 30, and that there could have been other employees there who were unnoticed because of the lockers. Evans testified that it was not an everyday occurrence for Williams and Towers to be in the washroom early, and that it had happened before but that they were not the only employees so involved. Williams testified that he was not in the washroom prior to quitting time, but that it was a common practice in the plant, and that "everyone" washed up about 5 minutes before the whistle. Williams denied having received any prior warnings from super- visors over such incidents, but admitted seeing two notices on the bulletin board in this respect. Williams further admitted that on a few occasions, he, like other em- ployees, would leave their machines prior to quitting time and wash up. Page stated that he had received no prior warnings as to quitting early and wash- ing up 23 Page also testified that each and every day there were employees in the washroom 5 minutes before quitting time, and stated that on the night before these discharges there were 25 or 30 employees in the washroom cleaning up including Supervisor Reuter, and that this practice was a common everyday occurrence. Page admitted the washroom "deer hunting" incident in November 1961, as aforesaid, and that the Company had posted two notices advising the employees not to quit their shifts early. Towers admitted that on April 30 he was in the washroom 2 or 3 minutes prior to quitting time, testified that there were several other employees also, but stated that he had never been warned about such practices. Towers further admitted that he knew of the notices that had been placed on the bulletin board in attempts by the Company to stop such incidents. wanted him to, and then did so on April 27 Towers talked about the Union with em- ployees at the plant on several occasions prior to his discharge, and signed two union cards-one on April 15 which was not turned in , and signed another one after his dis- charge. All three of these alleged discriminatees were discharged on May 1. It further appears to me that the 'Company was mainly interested in discharging the leaders of the union movement and those who associated with them, but the employees who merely signed a card, and then confessed of just following , were forgiven. "Evans was using the urinal in the washroom at the time Hughes walked in the rest- room, and Evans was not discharged and is not involved in this proceeding as an alleged discriminatee. 20 McDonald also related a washroom incident in the fall of 1960, when Ted Hutchens caught employees discussing deer hunting, and Supervisor Hughes then made a memo on the same followed with a posted notice 2 The testimony given by Superintendent Reuter as Ito this incident follows in substance that given by Manager McDonald. 22Foreman Hughes reprimanded Towers on March 19, recorded in a written memo to McDonald in respect to Towers ' washing up prior to quitting time. 23 Page testified that all employees having "rags" had to turn them in at the end of their shift, so these men would quit early for this purpose. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alvis Rost stated that on a few occasions he himself had washed up before the whistle blew, and that he also knew of the notices on the bulletin board. Everette Chandler stated that in the new building employees do not go to the washroom until the whistle, but that in the old building it was a common practice for employees to wash up before quitting time 24 Daniel Mathis stated about "everyone" would go to the washroom early, and then return to their machine. Bill Miles testified that dur- ing his shifts he had seen employees in the washroom 5 minutes before quitting time. It is well-established law by both the Board and the courts that the existence of a justifying ground for dismissal of an employee is no defense if it is a pretext and not the moving cause. N.L.R.B. v. Solo Cup Company, 237 F. 2d 521 (C.A. 8); Plastic Molding Company, Inc., 110 NLRB 2137. As the court of appeals in N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883 (C.A. 1), stated: Although the discharge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances reason- ably indicate that the union activity weighed more heavily in the decision to fire him than did the dissatification with his performance. In applying the above principles to the evidence and testimony here, it is found that Williams, Page, and Towers were discriminatorily discharged. The credible evidence shows that washing up by employees a few minutes prior to quitting time was a common practice at the plant. Foreman Hughes admitted that there had been other violators of this company rule, and further admitted that no other employees had ever been discharged for this reason.25 The record adequately reflects that this matter of leaving work stations before the official quitting time has always been a constant and continuing problem as is true with all manu- facturing plants, and Manager McDonald admitted the same in his testimony It is obvious here that these infractions reached considerable proportions while the Com- pany was operating in the old building and very little was done to correct the situation. The same habits were then carried over into the new building, and the Company then attempted to make some enforcements of its rule, but various circumstances permitted certain exceptions, and the habit of cleaning up a few minutes before the whistle never became of any serious or real consequences until the advent of the Union and the identity of those responsible for it. Prior to union activities the only action taken for violations were the posting of notices or a reprimand. Manager McDonald him- self best typified the conduct as "small advantages" of employees in getting washed up so they can be at the clock when the whistle blows. It should also be noted in Fore- man Hughes' testimony that the only time he had been these three discriminatees in the washroom prior to quitting time after the move to the new building was on April 30, the day before their discharge. The Company went into considerable detail about the incident that happened in the fall of 1961, as aforestated. On this occasion Mr. Hutchens supposedly saw Williams, Page, Jacobson, Price, and Evans in the washroom prior to quitting time. Williams denied that he had been present, and the Respondent's own witness, Jacob- son, could not remember that Williams was present, and Foreman Hughes did not name Towers as a participant in this particular incident. In my final analysis here it appears clear to me by a preponderance of substantial evidence, that the compelling and motivating reasons for the discharges were union activity rather than the reason set forth by the Company. Based on the sequence of events, my observations and demeanor of the witnesses, and for the reasons as given herein. it is accordingly found that the Company has terminated the employ- ment of Williams, Page, and Towers in violation of Section 8(a) (3) of the Act. 2. As to Murphy This record shows that Murphy was one of the original instigators of union or- ganizational attempts at the Company. Murphy talked to employees about the Union, had employees sign union authorization cards, and on the basis and for the reasons previously set forth herein, I have found that the Company had prior knowl- edge of Murphy's union activities. Murphy was also discharged on May 1. The Company contends that Murphy was discharged because of excessive absenteeism and for loitering in the restroom. 24 It appears from the record that at least a considerable number of employees occupied the new building around March 1, 1962. zs In making my findings here I have given full recognition to the two notices posted on the bulletin board , as aforestated , and also the company booklet which was issued to employees and contained a rule against leaving work before quitting time. MARSHFIELD STEEL COMPANY, ETC. 995 Manager McDonald stated that when the plant was moved into the new building he had requested the records on absenteeism of all the employees. McDonald testi- fied that with one exception Murphy had the worst record for leaving in the middle of a shift, and had missed all or part of 21 days in the 11/2 years he had worked.26 McDonald further stated that he received a memo from Foreman Shultz, dated April 16, stating that Murphy was away from his work four times and on one of the trips was gone 40 minutes 27 McDonald testified that he did not object to employees having two jobs if the other job did not interfere with work at the company plant. McDonald admitted that he knew Murphy worked at another job. In essence the testimony given by Foremen Shultz, Hughes, and Reuter as to Murphy, followed the same pattern and events as outlined in the testimony by Manager McDonald. Murphy testified that he worked at a local station from 11:30 a in. to 3.30 p.m., and then clocked in at the plant for his night shift. Murphy admitted that he "clocked out" at the plant on occasions when he was sick, that this happened with some fre- quency, but stated that he then did not go to work at the gas station. Murphy denied that Foreman Shultz had spoken to him about taking excessive time in the restroom, that no one had said anything to him about having two jobs, and Murphy did not recall Foreman Shultz talking to him on April 16 about his absenteeism. The record is clear here that the Respondent had no overall objections to its em- ployees working at part-time jobs, and many of the employees were so working with full knowledge of the Company. Furthermore, there is no reliable or credited testi- mony that Murphy did not perform in a satisfactory manner when he was actually working at his job in the plant. The timecards show that Murphy put in approxi- mately 42 weeks at 40 hours each, during 3 of those weeks he worked in excess of 40 hours. Many of the other weeks during his employment of a year and one-half, Murphy put in between 35 and 39 hours. Granted that the testimony of Murphy and the timecards show that on occasions he was absent from work, yet, the Company makes no adequate explanation as to its reasons in delaying corrective action so long, and no showing that these absences seriously impaiied his otherwise satisfactory per- formance 28 I do not credit the testimony of Shultz that on one occasion Murphy spent 40 minutes in the restroom. Murphy credibly stated that he would spend from 5 to 10 minutes in the restroom when it was necessary for him to use the facility. From the above it appears clear to me that the reasons assigned by the Company weie of no serious consequences up until Murphy's union activities, and his identification with these efforts. In accordance with the Respondent' s union animus, the sequences of events, their timing in relation to the other discharges, my observations and de- meanor of the witnesses, and upon the basis and for the reasons stated here, I also find that Roger Murphy was discriminatonly discharged by the Company on May 1, 1962. 3. As to Bill Miles Foreman Arnall testified that on June 22, he saw Miles limping and inquired as to his trouble, and was then informed by Miles that he had injured his hip before, that it troubled him about once a year, and that the "jig" work at the plant had ag- gravated it for 3 or 4 days. Foreman Arnall then had Miles see the nurse at the desk. McDonald testified that he had observed Miles talking to the nurse, and that Miles told him that he had been working on "sliders" and wrenched his back. McDonald then learned from Miles that he had worked in Illinois some 5 years prior and had sustained a back injury there, and then informed Miles that he would have to see the company doctor, but Miles told him he would go to his own doctor. McDonald then stated that he informed Miles that he could go to his own doctor but first would have to see the company doctor because of this injury sustained in the plant. The plant nurse then called for an appointment with Dr. Lowe, the company doctor, for 3 p.m, and Miles agreed to go. McDonald stated that he then pulled Miles' personnel folder, and found that there was no indications on his application 26The exhibits show that on February 15, 1962, Foreman Shultz had written a memo to Foreman Hughes stating that Murphy had called in on February 14 saying he was sick, but Hughes had seen him that same night working at a local gas station Shultz stated in the memo that he then talked to Murphy about holding down two jobs, and also mentioned in the memo the excessive time Murphy was spending in the plant restroom. 21McDonald made a note on this memo requesting a further check on Murphy and, if his record was as bad as indicated , that he be fired. 2 It is noted that altogether Murphy was absent about 3 weeks out of an employment period of approximately 11/2 years 681-492-63-vol. 140-64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form or examination slips of any previous injury. McDonald testified that Miles understood he could not go back to work until he had visited the company doctor. McDonald further stated that on Monday, June 25, Miles was ready to go to work, and McDonald then asked about the doctor's report, and Miles informed him that he did not go to the company doctor. Manager McDonald then told Miles that he was fired because he had refused to obey a direct order by not going to a company doctor, and had also falsified his employment. Miles testified that when McDonald talked with him on June 22 he asked if he could see his doctor, and that McDonald told him he could, but that the expense involved would be his own. Miles admitted that he had sustained a prior accident when working in Illinois, but stated that it was not a permanent injury and he had no pain afterward. Miles also testified that when he went to work for the Company he was given a physical examination by Dr. Lowe and nothing was found wrong with him. Elizabeth Severson, the receptionist in Dr. Lowe's office, testified that when new employees are examined they are specifically asked about previous illnesses, and in this case the word "none" appeared on Miles' physical examination card. Doctor Lowe testified that when a prospective employee indicates a prior injury to a back or hip then he does a more extensive examination. General Counsel's witness Thomas testified that at one time he had sustained a hip injury while working for the Company and received permission to see his own doctor, and further that no one informed him that he had to get a release from a company doctor before returning to work. Former employee Kenneth Pitman testi- fied for the General Counsel that he had hurt his back while working at the plant, and that he received permission to see his own doctor, and then returned to work without a release from a company doctor. The record here clearly shows that on June 22 Miles was specifically told by McDonald to see a company doctor and Miles admitted the same under cross- examination, and even a 3 o'clock appointment was made for him to see Dr. Lowe, as aforestated. Miles did not keep the appointment and refused to carry out McDonald's instructions to him. Such suspicious circumstances as here surrounding an injury would prompt any prudent employer to request the employee to submit to an examination by a company doctor. The Company had an unquestionable right under existing and pertinent statutes to require Miles to take the examination 29 The record is also clear that when McDonald talked with Miles after his injury on June 22 at the plant, he learned from him of a prior injury when Miles was employed in Illinois, and McDonald then reviewed Miles' application form.30 In so checking McDonald discovered that Miles had failed to disclose his prior injury. The dis- charge of Miles may well have been justified in itself by his false application for employment.31 2'Section 287. 20, Missouri Revised Statutes 1959, provides: After an employee has received an injury he shall from time to time thereafter during disability submit to reasonable medical examination at the request of the employer, his insurer, the commission of any of its commissioners, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. The employee may have his own physician present, and if the employee refuses to submit to such examination, or in any way obstructs the same, his right compensation shall be forfeited during such period unless in the opinion of the commission the circumstances justify the refusal or obstruction. 30 The employment application of Miles was introduced into the record Respondent's Exhibit No. 9. On the face of this exhibit Miles answered the question "List and Describe any present or past injury or sickness (include any occupational injury or illness)" by stating: "None." On direct examination, Miles attempted to leave the impression that the injury sustained in Illinois was trivial in nature. He said, "It happened one Friday afternoon," and "I went back to work on the following Monday " Further, he said he suffered no ill effects from this injury with no pain from it afterward. Miles' signed statement, however, given at an earlier date when he was seeking workmen's compensa- tion, said he "had his back throwed out of place once," referring to the Illinois injury (See Respondent's Exhibit No 8.) Further, Miles admitted in a signed statement given to McDonald after the discharge that the Illinois injury required him to spend "7 months in the hospital." (See Respondent's Exhibit No 13 ) 21 Miles likewise failed to include a long list of arrests and convictions on his employ- ment application. (Respondent's Exhibit No 9 ) His omissions included an arrest and conviction for burglary and larceny (Respondent's Exhibit No 10) ; furnishing liquor to a minor and disturbing the peace (Respondent's Exhibit No. 11). Miles admitted he had MARSHFIELD STEEL COMPANY, ETC. 997 In support of the position by the General Counsel he contends that the testimony of Thomas and Pitman shows that the Respondent did not require a company doctor's examination or release after injuries to employees. In the case of Thomas the injury was to his lip and was not a back or hip injury. Furthermore, Thomas admitted that Foreman Maples had informed him at the time that the Company might object to Thomas seeing his own doctor. Pitman admitted that when he was injured at the plant he had inquired of Foreman Hughes as to who the company doctor was, and when he was so informed decided to see his own doctor. It appears to me that even from the testimony of these two witnesses for the General Counsel, there are definite indications of the Respondent's policy in having injured employees examined by a company doctor. However, in neither incident were there other surrounding circum- stances of previous injuries as in the case of Miles, nor was Manager McDonald himself directly involved in the Thomas and Pitman situations. It is noted that in conjunction with employees consulting the company doctor, depending upon the individual circumstances in each case, the Respondent never prohibited any employees from calling on their own doctor if they undertook the expense of doing so, or if it was a minor injury. It is noted also that the discharge of Miles occurred im- mediately after the employee had demonstrated his insubordination, and the falsifi- cation of his employment application came to light. It has been well established that the right to hire and fire for sound business rea- sons is a management prerogative notwithstanding union membership, and so long as the action is not based upon a discriminatory motive it is not violative of the Act. While the circumstances herein might raise a suspicion that the discharge was dis- criminatory, it is well established law by both the courts and the Board, that mere suspicion or surmise cannot be considered as evidence to support a finding of unfair labor practices. I, therefore, find and conclude, that the General Counsel has failed to prove by the required preponderance of the evidence that the Company discriminatorily dis- charged Miles in violation of Section 8(a) (3) of the Act. I shall therefore recom- mend that the complaint be dismissed in this respect. E. As to the alleged layoffs; findings and conclusions The Respondent contends that Price, Sherrell , Mathis, Whittaker, and Watterson were laid off because of economic considerations. Withthe exception of Mathis the General Counsel did not call any of the alleged laid-off discrimmatees to the witness stand Mathis testified that on May 2 he asked McDonald why he was being laid off and was then told that the Company had too many welders 32 Mathis also testified that on May 2 he had noticed himself three new welders in the plant, that he did not know who they were, but that somebody had informed him that the new men were from Springfield, that he knew the plant operations at Springfield were being trans- ferred to Marshfield , and that during this transfer the foremen would be sent to Marshfield. Mathis admitted in his testimony that shortly before the layoffs several welders at the plant were painting and sweeping floors, and that he knew the Com- pany was having a hard time getting enough work for the welders. Manager McDonald credibly testified that when the transfers of company opera- tions were contemplated from Springfield to Marshfield , employees and foremen were then contacted to ascertain those who would accept transfers, and lists were compiled accordingly 33 McDonald stated that the transfers , from the lists com- pleted months before, were then made about the same time as the layoffs in question here. McDonald further testified that shortly before the layoffs , he discussed with President Hutchens the matter of dropoffs in orders of about 15 percent a month, and that the plant inventory was steadily climbing.34 McDonald also stated that dur- been "arrested on numerous other occasions by the Sheriff's office of Webster County on various charges." He denied he committed burglary and larceny , but admitted he pleaded guilty to the charge . The most revealing statement made by Miles was in answer to the question as to why he did not put his arrests on the application form, when he replied: "I couldn't have put it all on there." Miles also admitted that had he put his arrest record on the application blank the employer probably would not have hired him 82 Mathis worked as a welder in the plant. He also stated that his only union activity was the signing of a union authorization card in April. 23 Respondent's Exhibits Nos. 16 and 17. sa Hutchens testified that the inventory figure, as shown by IBM records machines, showed that on January 1, 1962 , the value was $457 ,566 99 , and on May 1, 1962, had climbed to $470,336 95 , and continued to climb in June, but declined in July . The sales picture showed April 1962 was 13 percent behind March , May was 14 percent behind 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing March and April he consolidated the shifts and eliminated the night shift, and as a result the Company had a number of excessive employees in the welding crews. McDonald further stated that the men transferred from Springfield filled a gap in his supervisory and quality control, and that the plant had a need for closer inspection methods. McDonald testified that his foreman made the selections for the layoffs, with the exception of Price, and that their determinations were based on skill, pro- ductivity, and job attitude.35 The company manager went on to testify that these alleged discriminatees were specifically told that they would be eligible for rehire.36 Foreman Arnall testified that he recommended that four out of the five employees involved here be 1^ud off because they were not doing their jobs properly, and because of their general attitude. Foreman Estes testified that he recommended that Mathis be laid off because he would not take orders and resented authority from supervisors. In the final analysis it appears to me that the General Counsel has failed to prove by the required preponderance of the evidence that the Respondent discriminatorily laid off the employees in question here, and in accordance therewith, I so find. The record shows that the Company had the necessity of trimming the work force because the Company was in the process of transferring some old, experienced, first- class welders from Springfield into the Marshfield operation. The decision as to these men transferring to Marshfield was made, however, long before any union activity was ever started at Marshfield. In fact, the record shows six Springfield welders were selected in the fall of 1961 and a commitment had been made to them to transfer them long before any union activity began in Marshfield. It should also be noted that the men transferred from Springfield were highly specialized men. Foreman Arnall described them as "the very best-counted as senior welders." 37 The trans- ferred men did not start filling in and doing the same kind of work as those who were laid off. They filled in as supervisors, quality control, and were put into the welding line at various spots where there was a need for closer inspection of produc- tion work. Mathis admitted that work for regular welders was getting slack prior to the layoffs, and that some welders were having to paint and do other types of work. The credible testimony also shows that inventories were climbing and that sales were dropping during the period in question. Furthermore, it is significant that the selections for layoffs were left up to the foremen with the exception of Price, and made on the basis of their job attitude and work performance record. The credited testimony of Foremen Arnall and Estes is illustrative of this fact, and stands undisputed in this record36 In accordance with the above, it will be recommended that the complaint be dis- missed as to the alleged discriminatory layoffs.39 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a April, and June was 19 percent behind May. The testimony of President L. G. Hutchens corroborated McDonald's statements In these respects. ac McDonald stated that he suggested that Price be laid off as he had a poor attitude The record shows that Watterson and Sherrell were subsequently rehired by the Company The record also shows that the Company had layoffs In previous years, and that the Respondent did not follow a seniority policy, but as here, based their determina- tions on skills and attitudes. $'+ Transcript, pages 339, 428. Sanders and Bunch were two of the men transferred to Marshfield from Springfield In April, and were aircromatic welders. The record Is also undisputed that when the plant operation was located in Spring- field, Hutchens and Son (the predecessor company) never followed a policy of strict seniority in effecting layoffs. Witnesses Arnall, McDonald, and President Lewis Gene Hutchens credibly testified this was the Company's policy. Witness Hutchens testified his policy had been to call in all the department heads and tell them the number to cut off and discuss the abilities of each individual and try to pick the men that were best to keep Hutchens testified, "We follow no seniority, we leave it up to the people that work with them everyday. We feel they know more about It than we do." The Board has repeatedly held that there Is no discrimination in a layoff where the evidence shows there is no seniority followed as a matter of policy and the better qualified men are retained. 3D It Is noted that there is absolutely no testimony in this record as to the participation of these five employees In union activity, except that Mathis signed a union card In April and admittedly this was his sole union activity. MARSHFIELD STEEL COMPANY, ETC. 999 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 It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer employees Murphy, Williams, Page, and Towers immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to se- niority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Marshfield Steel Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act and admits to membership employees of Respondent. 3. By discriminating in regard to the hire or tenure of employment of Murphy, Williams, Page, and Towers, thereby discouraging membership in the above Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By engaging the conduct set forth in section III, C, supra, the Respondent has engaged in and is engaging in unfair labor practice within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Marshfield Steel Company, Marshfield, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, or in any other labor organization, by discharging or refusing to reinstate employees, or in any other manner discriminating against them in regard of their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with moving the plant if the Union is successful, and threatening discharge of union adherents. (c) Interrogating employees concerning their interests in, and intentions with respect to joining, the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8 (a) (1) of the Act. (d) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and allsuch activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Murphy, Williams, Page, and Towers immediate and full reinstatement to their former or a substantially equivalent position, without prejudice to seniority 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, in the manner set forth in the section above entitled "The Remedy." (b) 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 right to reinstatement under the terms of the Recommended Order. (c) Post at its plant in Marshfield, Missouri, copies of the attached notice marked "Appendix." 40 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith.41 It is recommended that the allegations of the complaint with respect to the discriminatory discharge of Bill Miles be dismissed, and it is recommended that the allegations of the complaint as to the alleged discriminatory layoffs of Price, Sherrell, Mathis, Whittaker, and Watterson be dismissed. It is also recommended that the complaint be dismissed as to Marshfield Development Corporation. It is further recommended that unless within 20 days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the Board issue an order requiring the Respondent to take the aforesaid action. a In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the wards "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 41 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 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 Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, or any other labor organization, by discharging or refusing to reinstate any of our employees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate or threaten employees concerning their interests in, and intentions with respect to, joining the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion viola- tive of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. WE WILL offer to Murphy, Williams, Page, and Towers immediate and full reinstatement to their former or a substantially equivalent position, without prejudice to seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. QUE ENTERPRISES, INC. 1001 All our employees are free to become, remain, or refrain from becoming or remaining members of United Steelworkers of America, or any other labor organization. MARSHFIELD STEEL COMPANY, 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 applica- tion 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, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6 , Missouri, Telephone No. Baltimore 1-7000 , Extension 731, if they have any question concerning this notice or compliance with its provisions. Que Enterprises, Inc. and Gilbert S. Medina, Otto G. Laube, Robert W. Anderson, R. T. Bogue. Cases Nos. 928-CA -808-1, 28-CA-808-92, 28-CA-808-3, and 28-CA-808-4. February 1, 1963 DECISION AND ORDER On September 21, 1962, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as -set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases,' and finds merit in certain of the Respondent's exceptions. The Trial Examiner found, as alleged in the complaint, that the Respondent on the afternoon of March 30, 1962, unlawfully dis- charged five employees because they had engaged in protected con- certed activities. The sole extent of such activities by the discharged 'The Respondent requested oral argument. As the record, Including the exceptions and briefs, adequately sets forth the issues and positions of the parties, the request is hereby denied. 140 NLRB No. 93.