Galis Electric & Machine Co.

'222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, I hereby notify my employees that: I WILL NOT discourage membership of any of my employees in Montana Carpenters District Council, or in any other labor organization, by laying off, discharging, denying employment to, or reducing the seniority status of, any individual, or in any other manner discriminating against any individual in re- gard to his hire, tenure of employment, or any term or condition of employment, except as authorized in Section 8(a) (3) of the said Act. I WILL NOT in any other like or related manner interfere with , restrain, or coerce employees in the exercise of their right to self-organization ; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing ; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection ; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a conditions of em- ployment, as authorized in Section 8(a)(3) of the said Act. I WILL reimburse Harry A. Hill for any loss of pay he may have suffered by reason of the fact that I discriminated against him by laying him off. LYMAN H. CLARIDGE, INDIVIDUALLY AND DOING BUSINESS AS CLARIDGE LOGGING CO., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting and must not be altered, defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, Logan Bldg., 500 Union Street, Seattle, Washington, 98101 , Telephone No. Mutual 2-3300, Extension 553. Galis Electric & Machine Company and United Steelworkers of America, AFL-CIO. Case No. 6-CA-1560. April 14, 1963 DECISION AND ORDER On January 30, 1963, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, rand 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 entire record in this case, including the Intermediate Report and the excep- 142 NLRB No. 30. GALIS ELECTRIC & MACHINE COMPANY 223 tions and briefs,' and hereby adopts the findings,2 conclusions, and recommendations 3 of the Trial Examiner, with the modifications noted herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications : (1) The notice appended to the Intermediate Report is amended by inserting the word "other" after the fifth word in the fourth in- dented paragraph which shall read : "WE WILL NOT in any other manner . . . . " (2) The paragraph set out below shall be substituted for the note in the notice concerning reinstatement rights of employees serving in the Armed Forces : NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 1 The Respondent contends , in its exceptions to the Intermediate 'Report, that the Trial Examiner improperly credited the testimony of the alleged discriminatees and discredited the testimony of the witnesses for the Respondent. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C.A. 3). 2In view of our affirmance of the Trial Examiner 's 8(a) (3 ) and (1 ) findings we find it unnecessary to pass upon his 8 (a) (4) finding with respect to Schuman and Akers, as such a finding would not affect the scope of our Order and remedy herein. Accordingly, we deny the General Counsel's exception to the Trial Examiner's failure to include the 8(a)(4) finding in his conclusions of law. 8 The record clearly establishes that the Respondent has evinced a studied intent to thwart the rights of employees in freely selecting their collective-bargaining representa- tives. We therefore find no merit in the Respondent's exception to the broad cease-and- desist order recommended by the Trial Examiner . See North Texas Producers Association, 131 NLRB 146. For the reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716 , Member Leedom would not award interest on backpay in this proceeding. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on July 19, and September 10, 1962, respectively, by United Steelworkers of America, AFL-CIO, hereinafter called the Steelworkers or the Union, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel l and the Board respectively, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued his com- plaint dated September 17, 1962, against Galis Electric & Machine Company; herein called the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (4) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge, amended charge, complaint, and notice of hearing thereon were duly served upon the Union and Respondent. 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at Morgantown, West Virginia, on October 23 , 24, and 25, 1962, before Trial Examiner Thomas S. Wilson . All parties appeared at the hearing, were represented by counsel or representative , and were afforded full opportunity to be heard , to produce, examine and cross-examine wit- nesses, to introduce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both . Oral argument was waived . Briefs were received from Respondent and General Counsel on November 30, 1962. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Galis Electric & Machine Company is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of West Virginia. At all times material herein, Respondent has maintained its prin- cipal office in Morgantown, West Virginia, and operates plants in Morgantown and Fairmont, West Virginia, herein respectively called the Morgantown plant and the Fairmont plant. Respondent is engaged in the manufacture , repair, and sale of coal mine and other equipment. During the past 12-month period Respondent received directly from outside the State of West Virginia , goods and materials valued in ex- cess of $50,000. During the past 12-month period, Respondent manufactured, sold, and shipped products and provided services directly outside the State of West Virginia valued in excess of $50,000. The complaint alleged, the answer admitted, and the Trial Examiner finds that Respondent is engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED United Steelworkers of America, AFL-CIO, and United Mine Workers, District 50, are labor organizations admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The facts Prior to March 1961 , Respondent was a one-plant concern making and repairing coal mining equipment . Its sole plant with its 30-odd employees was located at Morgantown, West Virginia. At that time Respondent's employees were represented by District 50 under a contract which by its terms was to expire during the year 1961 . District 50's shop steward at that time was Donald DeVall , then employed by Respondent as a machinist first class. On or about March 1, 1961 , Respondent bought the plant and equipment of the Fairmont Machine Company at Fairmont, West Virginia. The employees of that plant had never been represented by a union. For some months after the purchase the Fairmont plant apparently stood idle while Respondent officials contemplated what use should be made thereof. Finally at some undetermined date in 1961, Respondent reopened the Fairmont plant apparently for manufacturing , as dis- tinguished from repair purposes. Slowly some of the Morgantown equipment-and employees-were transferred to Fairmont. Also sometime in the month of March the Steelworkers began a campaign to organize Respondent's employees at both Morgantown and Fairmont. Donald DeVall was one of the first of Respondent 's employees to be approached by the Steelworkers and became one of the three most active Steelworkers supporters in trying to organize the employees? On May 11, 1961, Steelworkers filed two representation petitions covering the Respondent's Morgantown and Fairmont operations individually. Pursuant to a Board Order and Direction of Election dated September 1, 1961, elections were held at both Morgantown and Fairmont on September 29, 1961. At the Morgantown election Donald DeVall acted as the Steelworkers ' observer while Paul Sisler, machinist third class, acted in that capacity on behalf of District 50, UMW. a The other two leaders in that movement ultimately left Respondent 's employ voluntarily during 1961. GALIS ELECTRIC & MACHINE COMPANY 225 Steelworkers filed objections to both elections based upon alleged illegal assistance given UMW by Respondent. The Steelworkers' objections were based in large measure on the following evi- dence which all occurred at or about the time of the September 29, 1961, election: (1) Respondent's owner, Alex Galis, told employee Joe Akers that- He [Galis] had done a lot for me, and that he would continue to go along with me, as long as I stuck with him. That he expected me to stay with him, that I owed him a favor, and stay with him and vote for District No. 50, and support District No. 50 . That if the Steelworkers did get in and win the election that he would not give them a contract, that he would move to out of State, or he would move to Fairmont. (2) Earl Hebden, then assistant to the executive vice president and who at that time was working under the personal direction of Galis, said to Akers that- I [Akers] didn't owe him [Hebden] anything, but he thought that I owed Alex Galis favors in return, . . . that I had been paling [sic] around with Don DeVall and that was the wrong company for me to keep . Well, I [Hebden] think you want to stay with Mr. Galis and work for District 50 and support them, . but if we have any more trouble out of you, I, myself, will come up from Fairmont and fire you. (3) On or about September 19, 1961, Galis told employee James Hawley- Jim, I hear you have been campaigning for the Steelworkers on company time. If I catch you at this, I will fire you, and I won't hesitate a minute to do it .. . When you get into the ring with a prizefighter , you have got to be prepared for any eventuality When you get into something like this, you can get hurt, not physically, but there are other ways you can get hurt . . You know I wanted District 50, . . . your father, when I hired him and he went to the Fairmont plant, he went right up there and went to work for the Steelworkers . When he done this, I had no alternative but to let him go . . . . But since you are no longer loyal to this company, we have to cut your wages and they will stay cut? (4) On the day before the September 29 elections Galis had a second conver- sation with Hawley in which Galis said Jim, I want to give this to you personally. I want you to read this and give it a lot of serious thought. You know, I can't tolerate the Steelworkers and I can't convince fellows like you . . . I will tell you one thing; if you want to lose your money, you just bet that I won't move this whole outfit to Bluefield if the Steelworkers win this election. (5) About August 1961, Galis told employee Eugene Forquer that he had heard that Forquer was going to vote for the Steelworkers, that he was "surprised" that Forquer was going to vote that way because he had been an employee for such a long time and, "well, let's see who gets in and maybe if the Steelworkers get in, they can look after your job later." A little later Galis asked Forquer how many and which employees had attended a Steelworker meeting. Galis particularly wanted to know if Jim Hawley had been present. Galis offered to bet that after the election Jim Hawley would not be working for Respondent. On a later occasion just before the election Galis suggested that, if District 50 won the election, he would see if he could return Forquer to his old job from which he had been transferred during the organizing campaign. (6) Just prior to the September 29 elections Galis spoke to the Fairmont employees during which he told them that He [Galis] wanted us to know that he could not operate under the Steelworkers Union and that if they got in, that he would have to bulldoze the [Fairmont] plant over the hill, . that Compton [Manufacturing Company] at Clarks- burg had had the Steelworkers Union and that they were no longer in business, and that he could not operate under the Steelworkers Union. Galis also told the assembled Fairmont employees that He [Galin] had had past experience with District 50 at the Morgantown Plant, and if we could get that union voted in up there (Fairmont] at the election, 8 James Hawley had suffered a 25-cent per hour decrease in his wages after the Steel- workers' campaign began. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he would be able to get more work from the mines, and when work slacked down in the shop, he could transfer his men from the shop out on assembly work and construction in the minefields and give us all more steadier work; and if the Steelworkers win the election, that he could not meet with their demands, then we would have to shut the place totally down. (7) Just prior to the election Earl Hebden took occasion to tell employee Leonard Reeves "We are having an election here in a few days . . . you know, we can't operate without District 50 . . . I understand that you are a friend and neighbor of Joe Kendricks [Steelworker organizer] . . . and I am working you under protest now because you live next door to him." (8) About the same time Galis had employee Wayne Schuman brought to his office where he told Schuman Well, . I guess you know the election is coming up. I did you a favor when I hired you so you could learn a trade, and I think that you owe me a favor in return . . We have operated under District 50 up until this time without any labor problems and I can't see why we can't continue to do so . . . . He [Galis] could not see how he could possibly give the Steelworkers a con- tract . . . . Well, if the Steelworkers get in, I [Galis] could not give them a contract, and that we knew that work was awfully hard' to get at that time, and things were pretty rough in this area, and it would put an awful lot of guys out of work if they did get in and they could not give them a contract. It would make it awfully hard on several of the guys; it would put several of the guys out of work . . And if everything went fine at the election, the way he was hoping it would go, that I [Schuman] would get a machine and I would be given a raise. (9) Shortly before the election Assistant Foreman Wilcox asked employee Charles Stiles "if there was anything that he could say or do ... about the way I [Stiles] felt about District 50." That same evening Hedben came to Stiles' machine and told him, "Well, as you know, you will be going to Fairmont pretty soon." Hebden returned a few minutes later after conversing with Wilcox and Paul Sisler and said to Stiles "Huh, no District 50 button!" 4 (10) During the organizing campaign Hebden told Hugh DeVall, brother of Donald DeVall and an active Steelworker adherent, that Hugh DeVall "Was going to be a short timer there" and that "If [Hugh DeVall] did anymore union work; that [he] wouldn't be there long." (11) Assistant Foreman Don Knotts asked employee Tracy Danser if he had signed with the Steelworkers to which Danser answered that that was none of Knotts' business. As noted the September 29, 1961, election was inconclusive with objections thereto having been filed by the Steelworkers. On February 27 and March 28 and 29, 1962, the hearing on these objections was held at which much of the above evidence was produced. Akers and Schuman, among the alleged discriminatees, testified while Don DeVall and his brother Hugh were subpenaed and present in the hearing room but did not testify. Many, if not all, of the statements attributed to Galis were denied by him at the hearing on the objections. In recommending that the election be set aside, the hearing officer discredited Galis. The Board adopted the hearing officer's recommendations. At the present hearing all the testimony regarding Galis remains undenied on the record. Of course, due to Section 10(b) of the Act, this undenied and credited testimony in this record cannot be found to constitute unfair labor practices because it oc- curred more than 6 months prior to the filing of the charge. On the other hand this evidence does prove beyond a preadventure of a doubt that Respondent was 4 Respondent objected at the hearing and in its brief that neither Wilcox nor Don Knotts were supervisory employees. The evidence, however, showed that these two individuals supervised the work of the various employees on the afternoon and evening shifts, that they alternated shifts every 2 weeks, unlike the ordinary employee, that they used independent judgment in assigning the various jobs to individual machinists according to ability. They transferred men from shift to shift. They made recommendations and were consulted in regard to promotions. The ordinary employee approached them for pay increases. One UlFW grievance was settled upon the admission of Galls that Wilcox was an assistant foreman and, therefore, not in the bargaining unit. Accordingly, the Trial Examiner must find that Wilcox and Knotts were each supervisory employees within the meaning of the Act. GALIS ELECTRIC & MACHINE COMPANY 227 violently opposed to the Steelworkers as the bargaining agent for its employees and had threatened reprisals in the form of loss of jobs or closing of the plants in the event that the employees voted for the Steelworkers as well as promises of more and better jobs if District 50 won the election Furthermore, it also proves that the Respondent knew or suspected that all of the alleged discriminatees in the present hearing were supporters of and active on behalf of the disfavored Steelworkers. The Trial Examiner so finds. 1. The discharges a. H. DeVall, Akers, Schuman, Stiles, and Danser On April 13 Respondent announced through Assistant Foremen Don Knotts and Earl Hebden to the 20 employees remaining in the gear shop in Morgantown that the gear shop would be closed at the end of the second shift that day, that the employees would be discharged at the end of their shift but that, if they wanted employment at Fairmont, they could apply for work at Fairmont the next morning, April 14, as new applicants for employment. Actually 4 of these 20 employees continued working at the Morgantown plant. So on the morning of April 14 all but one of the remaining employees 5 from the Morgantown gear shop applied to Hebden at Fairmont for jobs. Don DeVall, the No. 1 man on Respondent's seniority roster at Fairmont and a machinist first class, was the first man to be interviewed by Hebden. After telling Don DeVall "Well, we got a pretty good bunch of boys up here. We don't want any union trouble," and then practically repeating this statement with the request that DeVall "cooperate," Hebden offered DeVall a job on the second or afternoon shift. DeVall inquired whether seniority did not mean anything in relation to the offer of the afternoon shift, Hebden answered "We don't have any seniority up here." DeVall then accepted work on the afternoon shift.6 When Akers appeared for his interview, Hebden said "Joe, I will make it short and sweet with you. I told you before that if I had any trouble out of you con- cerning the election, that I would fire you" and that he "would try it this way." Akers was not given work. When Charley Stiles came in for his interview, Hebden's first question was "Where was you at last night?" Stiles told him that he had been at a bar with Don DeVall where he had also seen Hebden. Hebden then stated "Stiles, we haven't got any- thing for you at this time . . . If we get a machine open, we will get in touch with you." Stiles then countered by saying that ability did not have anything to do with working for Respondent and that, "if they [Respondent] could think and control your thoughts, then you were their boy." Hebden shrugged. Stiles has never heard from Hebden since.7 As of April 14 Hebden refused jobs to eight of the Morgantown employees includ- ing Hugh DeVall, Schuman, Akers, Stiles and, of course, Danser who had not ap- plied that day but did so on April 16. Within a few days after April 14 Hebden did give employment to three of these eight leaving only those named above without employment. At the hearing he ex- plained that he gave this employment to the three because of their "interest" in se- curing employment by reason of the fact that they either approached him individu- ally again or had somebody speak to Hebden on their behalf so that, because of this "show of interest" in securing employment, Hebden reemployed them. Employee Tracy Danser, who had missed his ride to Fairmont on April 14, at- tempted to see Hebden about employment on the morning of April 16 but was told by the secretary that Hebden was "too busy" to see Danser. This incident was re- peated again when Danser attempted to apply on April 18 Subsequently on April 18 Danser succeeded in talking to Hebden by telephone when Hebden's sole comment was to dismiss Danser's request on the grounds that he had not appeared on April 14. Apparently these subsequent attempts by Danser did not indicate to Hebden any "interest" in securing employment on the part of Danser. Thus Danser's employment ceased. 5 Employee Danser missed his ride to Fairmont that morning and so he did not apply until April 16 a This interview and Hebden's version thereof will be discussed at greater length in the next section of this report. 7 As in the case of other of the employee witnesses, Hebden could not "recall" saying that he would get in touch with them because, as he put it, "this wouldn't be a usual thing with me." 712-548-64-vol. 142-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus the transfer of the gear shop to Fairmont on April 14, 1962, resulted in the elimination, with the exception of Donald DeVall, of only five employees, each of whom the Respondent knew or suspected was active on behalf of or sympathetic with the Steelworkers. 2. The discharge of Donald DeVall As noted heretofore Hebden on April 14 actually did accept the known leader of the Steelworkers, Donald DeVall, as a probationary employee at Fairmont after ad- monishing him that Respondent had "a pretty good bunch of boys up here. We don't want any union trouble." 8 On April 24, 1962, Hebden received an order from Respondent's Bluefield plant for a certain bearing sleeve. Respondent had the master vellum of that part in its files. Hebden had two prints made from that master vellum. He then took both prints to Fairmont production manager, Raymond Larsok, with orders to have one bearing sleeve manufactured. Larsok in turn placed one of the prints in his produc- tion file and turned over the other print to Foreman Hamrick. Because of the complications of the piece to be made. Hamrick selected Donald DeVall to do the work thereon and gave DeVall the print and the timecards in connection therewith. 8In his testimony Hebden admitted having told DeVall that Respondent had "a good group of people up there and that we hadn't had any difficulty with them" and asked DeVall "to cooperate." Hebden's testimony is that he requested this "cooperation" be- cause of the confusion over moving existing then at the Fairmont plant. Later Hebden explained that he requested DeVall's cooperation in an effort to prevent " personal ani- mosities" from arising. And lastly Hebden suggested that he had heard that DeVall had threatened to "beat him up" and that his request was in regard to this alleged situation. Hebden denied that he had said anything in regard to the Union. The following excerpts from Hebden's testimony chaiacterized his testimony throughout: Q. (By Mr. TOMASKY. ) Was Mr. DeVall's union activity, any factor or considera- tion at all, on his discharge at this time on April 25? On your part? A. I wasn't aware of any union activity on his part. TRIAL EXAMINER : I think you testified that you had no knowledge that Mr. DeVall was engaged in any union activity, is that accurate? WITNESS : I would stipulate that as far as his employment at the Fairmont plant was concerned- TRIAL EXAMINER : You would stipulate what? WITNESS • That I had no knowledge of any of his union activities at the Fairmont plant TRIAL EXAMINER : How about his activities at the Morgantown plant, had you ever heard of that? WITNESS: I was well aware of the fact that he had been an officer in District 50 for one thing I believe he appeared at that time or prior to that time in the hearing or two that we had with the Labor Board TRIAL EXAMINER: And he was representing who at that time, at the time of the hearing? WITNESS : As I recall this was the United Steelworkers. TRIAL EXAMINER He was representing the Steelworkers? WITNESS: Yes, I believe so at that time. TRIAL EXAMINER : Did you hear that he was the observer for the Steelworkers at the election? WITNESS : Yes, I did TRIAL EXAMINER Did you know that Paul Sisler was the observer for the UMW at that same election? WITNESS : Yes, I did. TRIAL EXAMINER • 'So that your answer about lack of knowledge about Mr. DeVall's union activity was limited to his action at the Fairmont plant between April 16 and 25 or whatever the dates were? The WITNESS: Yes, sir. TRIAL EXAMINER: I see. On the other hand Donald DeVall appeared to be answering questions fully and truth- fully and was, indeed, corroborated in large measure by Respondent's witnesses other than Hebden Accordingly the Trial Examiner credits the testimony of Donald DeVall. GALIS ELECTRIC & MACHINE COMPANY 229 During the making of the piece Donald DeVall admittedly called the attention of Assistant Foreman Don Knotts specifically to the fact that some of the figures on the print seemed to have been penciled in. Thereafter when the piece was largely completed at about 11 p.m. that night, DeVall asked Knotts and Assistant Foreman Ferris to check the piece for accuracy. The two assistant foremen "miked" the piece and found it to be 0.001 out of round but otherwise correct according to the print. Ferris then ordered Donald DeVall to emery the piece into round which he did. Thereafter the two assistant foremen again checked the piece including the o.d.-outer dimension-and found it to be correct shortly before quitting time and when there was about 5 or 10 minutes more work to be done on the piece. At or about 8:30 on the morning of April 25 Inspector Robinson was ordered by some person unknown on this record to inspect the piece. He thereupon collected the piece and a print and took them to the inspection table where, with Hebden standing by, he discovered that the outer dimension was 0.008 inch too small. Inspector Robinson then called over to Inspector McGee whose check also disclosed the discrepancy of 0.008 in the o.d. Hebden testified that he also miked the piece. Hebden then took the print to Chief Engineer Taylor "for disposition," i.e., to determine if the error could be corrected or whether the piece had to be scrapped or not. Sometime later that day Taylor informed Hebden that the piece had to be scrapped, a loss estimate by Hebden at $75 or $80. That morning Hebden talked to Foreman Hamrick whom Hebden "chewed-out," as Hebden put it, about the bearing sleeve because he "was wrong." 9 Next, in Hebden's phraseology, "I jumped Don Knotts about the part." Knotts informed Hebden that he and Assistant Foreman Ferris had checked the piece and found it to be correct according to the print except for this 0.001 out of round. Knotts also told Hebden about the penciled dimensions on the print. Hebden then inquired of Knotts if he had checked the piece against the print and finally succeeded in getting the answer that Knotts had accepted the dimension given to him orally by DeVall from the print. Next, according to Hebden's own testimony. I in so many words, accused Don Kotts in being in collusion with Don DeVall in fabricating this story, because Don had also mentioned to me something about pencil marks on the print,'() which I had seen the print in the morning and I knew darn well that there were no pencil marks on it . well, let us say, an explanation of my statement about this. My suspicion of collusion between these two individuals, of course, both of them said something about pencil marks, which I knew were not there, and he [Knotts] further said he had checked the part later, and then said he had not checked it to the print. And I had also seen this part, I knew it was not to the print. Then Hebden checked with Ferris who again told Hebden that both he and Knotts had checked the piece, that the dimensions were correct and that they found it 0.001 out of round. Again Hebden inquired whether Ferris had checked the part to the print. According to Hebden, Ferris admitted that he had not." Shortly before the beginning of the afternoon shift at 4 p.m. that day, Hebden sought to retrieve the print of the piece from Chief Engineer Taylor. According to Hebden, Taylor was unable to find the print.12 The print in question has never since been found. When DeVall reported for work he was called to Hebden's office where a 2 or 21/2 hour conference between Hebden, Larsok, and Donald DeVall followed. During this conference Hebden stated that there were three possible alternatives: (1) to forget the whole matter; (2) to discharge DeVall; or (3) to lay him off so that he could collect his unemployment compensation and not have a black mark on his record. At the conclusion of the conference, DeVall was "permanently laid off." Hebden testified that he selected this alternative largely because DeVall refused 0 Hebden explained this "chewing out" of Hamrick in the following answer: A. Yes. But on the other hand. there wasn't nothing too much I could say to him, he wasn't there at night, although at that time I did consider him as lead foreman in the machine shop and all. I felt it was his responsibility. 10 Hebden has here confused his times because he accused Knotts of "collusion" before Donald DeVall even had reported for work on the afternoon of April 25 and therefore before Hebden had spoken to DeVall about the incident. n Ferris was not called as a witness. Although no longer in Respondent's employ, Ferris was known to be working at a ballistics plant near Morgantown. 12 Taylor was not a witness at the hearing. According to Hebden, Taylor had had an appendectomy "a week" before the bearing. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to admit his "error" by insisting that the piece had been correctly made according to the print as well as the fact that the print had contained pencil marks. That very same day, April 25, machinist Paul Sisler scrapped two pieces of un- known value. He admitted his carelessness . For this Respondent suspended Sisler for a period of 7 days, but recalled him to work 2 days later so that his actual suspension was a period of 2 days. Sisler had been the District 50 observer at the National Labor Relations Board election. Within a few days after the layoff of Donald DeVall, ex-employee William S. Moore, who had been one of the three leaders of the Steelworkers organizing cam- paign at the Morgantown plant and who had been told by Hebden after Moore had voluntarily left Respondent's employ that Moore could come back to work for Respondent "if he promised never to be engaged in union activities again," was informed by Hebden "I said I'd get Donald DeVall and I got him , didn't I?" B. Conclusions 1. Akers, Hugh DeVall , Schuman, Stiles, and Danser Respondent's brief justifies the discharge of Akers, Hugh DeVall, Schuman , Stiles, and Danser as a group on what it refers to as the "compelling economic necessity" for moving the gear shop from Morgantown to Fairmont . No doubt there was a compelling economic necessity for moving all manufacturing operations including the gear shop to Fairmont. But, even assuming that to be true, there was nothing in that move which compelled the "discharge" of the employees who had for varying lengths of time been satisfactory employees at Morgantown , because of the 18- to 20-mile move of the gear shop in which they formerly worked , to Fairmont. In fact, prior to the final move of April 13, this record fails to disclose the discharge of a single Morgantown gear shop operator when his machine was transferred to Fairmont. In other departments which had moved to Fairmont the Morgantown operators transferred to Fairmont along with the machines. Hebden attempted to explain Respondent 's earlier failure to "discharge" the Morgantown operators when their machines were transferred to Fairmont on the ground that Respondent already had operators for those machines at Fairmont at the time of the move on April 13. In the prior move Hebden indicated that the operators went with the machines because Respondent had nobody else to operate those machines . But the record here disclosed that , if Hebden actually had operators available for the gear shop machines on April 13 , he had hired those operators, usually as trainees, between April 9 and April 11, 1962, during which period he hired seven such machinists and trainees . It was these newly hired and untried machinists and trainees whom Hebden was going to have operate the gear shop machines upon their arrival at Fairmont instead of the previously satisfactory and longer employed Morgantown operators. It seems almost axiomatic that no employer would intentionally choose to operate his plant with new and untried employees instead of old, tried, and true employees whose work had proved satisfactory for some period of time-unless he had some compelling reason for wanting to be rid of his seasoned employees. It is, therefore , of interest that Respondent here has leveled charges of incom- petence against only two of the five discharged; Akers and Schuman. Respondent had no complaints against the other three dischargees : Hugh DeVall , Stiles, and Danser. Thus the latter three must be considered to have been competent , satis- factory employees. The charges Respondent chose to level against Akers and Schuman were so old as to be stale because Hebden had to go a long period in the past in his efforts to justify calling them unsatisfactory. These charges , if true, would have justified the dismissal of the two men as of the time of their occurrence . But Galis himself at the time of the occurrence had found these identical charges to be insufficient to warrant the discharge of the two men. Therefore , as of April 13, 1962, the Trial Examiner must find that all five, including Akers and Schuman , were satisfactory employees. Why then did Hebden discharge the five on April 13, 1962? Hebden's choice of these particular five men to drop from Respondent 's employ makes the reason for their discharge quite clear. Galls was violently anti-Steelworker and pro-District 50. Hebden, an ambitious and fast-rising young man who worked under the personal direction of Galis, had also taken on the identical coloration of his mentor. The five men Hebden chose not to give jobs to were the five men he and Respondent had good reason to know or suspect were active Steelworker sym- pathizers. Consequently it becomes quite clear that this known sympathy for the GALIS ELECTRIC & MACHINE COMPANY 231 Steelworkers was the underlying reason Hebden and Respondent were not only willing, but indeed anxious, to replace even though with untried workmen. Consequently the Trial Examiner must, and hereby does, find that the Respondent discharged Joseph Akers, Hugh DeVall, Tracy Danser, Wayne Schuman, and Charles Stiles on April 13, 1962, because of their known sympathy and activities on behalf of the United Steelworkers of America in violation of Section 8(a)(3) of the Act. Further it must be noted that when Hebden tried to discharge Akers and Schuman allegedly for incompetence-"goofing off," in Hebden's words-Galin refused to permit their discharge. This, however, was prior to the time these two employees testified on behalf of the Steelworkers at the objections hearing. However within a few weeks after that testimony on behalf of the Steelworkers, Galis had convinced himself that these two employees deserved to be discharged-purportedly for the very same causes that he had earlier found insufficient. Thus it is obvious that the decision to discharge Akers and Schuman was largely influenced by the fact that they each had testified for the Steelworkers and contrary to Respondent's desires at the hearing on the objections. Consequently the Trial Examiner must and does find that Respondent discharged Joseph Akers and Wayne Schuman on April 13 because of the fact that they had given testimony in a hearing before the Board in violation of Section 8(a) (4) of the Act. 2. Donald DeVall Respondent's brief points with pride to the fact that Donald DeVall, the known leader of the Steelworkers' campaign, was given work by Hebden on April 14 and, therefore, could not have been discriminated against by Respondent. This conten- tion is true so far as it goes. Hebden would have been even more obvious about his discriminatory selection of employees than he actually was if he had not rehired Donald DeVall on April 13 because Donald DeVall not only was the No. 1 man on Respondent's seniority roll but was also the well-recognized leader of the Steel- workers' campaign. But, although he denies it, Hebden did warn Donald DeVall when "rehiring" DeVall against engaging in any union activity at Fairmont and im- pressed upon DeVall that he was being rehired as a new probationary employee "to see what kind of work he was doing" and, strangely, asked DeVall "to cooperate." 13 But, despite "rehiring" Donald DeVall on April 14, Hebden succeeded in "getting," as Hebden was later to express it, Donald DeVall 10 days thereafter under circum- stances which leave little, if any, doubt as to the real reason Hebden discharged DeVall.14 Ostensibly Hebden discharged Donald DeVall either for having made an 0.008 inch error on the bearing sleeve DeVall fabricated on April 24 or else because in Hebden's estimation DeVall obstinately refused to acknowledge that he had made an "error." In his efforts to prove that the work done by Donald DeVall was an "error," Hebden found it necessary, according to his own testimony, to "chew out" Foreman Hamrick because Hamrick "was wrong" even though acknowledging that Hamrick was not the foreman on duty at night when the work was performed but because Hebden then considered Hamrick to be the "lead foreman." Hebden then "jumped" Knotts and "accused Don Knotts of being in collusion with Don DeVall in fabricat- ing" exactly the same facts which Donald DeVall reported subsequently that: (1) There had been penciled changes on the print; (2) at DeVall's request he and Assist- ant Foreman Ferris had miked the piece just prior to completion; and (3) they had each found it to be correct except that it was 0.001 inch out of round which he had corrected by emerying on orders of Ferris. Hebden further had words with Ferris until he was able to secure an admission from Ferris, according to the evidence of Hebden, that Ferris had accepted some- body else's word for the dimensions in the print, an admission he also secured from KnottS.15 Thus was Hebden able to handle the human element regarding this "error." The sockdolager turned out to be the print itself. During Hebden's angry investigation 18 An earlier footnote indicated Hebden's many explanations as to what he meant to convey by this word. 14 Hebden preferred to refer to this discharge as a "permanent layoff." Although this terminology may have had some technical effect upon unemployment compensation, the result as far as the employment status of Donald DeVall with Respondent was identical. 1S Knotts so testified at the hearing but this testimony by Knotts is hardly consistent with his other testimony that he had seen penciled marks on the print. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the bearing sleeve incident as described above, this vital piece of evidence sud- denly turned up missing by 4 p.m. that afternoon and has never since been seen, according to Respondent's evidence. This loss Hebden blamed on Chief Engineer Taylor whose nonappearance as a witness was excused by Hebden on the ground that Taylor had had an appendectomy "last week." Thus Hebden handled the docu- mentary evidence, Thus the facts prove that Knotts had noted the penciled changes on the print, that Knotts and Ferris had checked the piece individually and each had found it to be correct-and that the print from which Donald DeVall had worked and Knotts and Ferris had checked, Respondent suddenly lost for good. Under these circumstances it is hardly any wonder that Donald DeVall refused to confess "error" at Hebden's demand. In addition to the other evidence indicating the possibility of a frameup against DeVall, the uncontradicted evidence disclosed that Donald DeVall's discharge was the first in Respondent's history where an employee was discharged for having caused scrap. In this regard Hebden was unfortunate in the fact that on the same day, April 24, when Donald DeVall allegedly caused $75 to $80 worth of scrap, Paul Sisler, who had been District 50's election observer, carelessly scrapped two pieces of a value unknown on this record. Whereas Respondent "permanently laid off" the Steelworkers' leader for his alleged error, Respondent only suspended the District 50 observer for a period of 2 days. Hebden attempted to distinguish these two cases on the grounds that Sister, unlike Donald DeVall, confessed his error. There is, of course, another distinction: Sisler had been the election observer for District 50 whereas Donald DeVall had acted in that same capacity for the Steelworkers at the consent-election meeting and was the acknowledged leader of the Steelworkers' cam- paign and, in addition, had been warned 10 days before against engaging in any Steelworkers' activities at Fairmont. It is therefore quite obvious that Hebden "rehired" Donald DeVall on April 14 in order to try to disguise the discriminatory nature of the discharges of the five other suspected or known Steelworker supporters that same day and then 10 days later Hebden either framed Donald DeVall or used the bearing sleeve episode as a pre- text for completing the elimination of Steelworker followers during the move to Fairmont. Hebden knew, of course, that there would be another election at Fair- mont and was still determined to prevent the Steelworkers from becoming the bar- gaining agent of the Fairmont employees. Hebden himself confirmed this conclusion when after the discharge of DeVall, he bragged to a former Steelworker leader at Fairmont and an ex-employee: "I told you I'd get Donald DeVall and I did." Accordingly the Trial Examiner is convinced and, therefore, finds that Respondent discharged Donald DeVall on April 25, 1962, because of his known sympathy and activity on behalf of the United Steelworkers of America in violation of Section 8(a)(3) of the Act. N. 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, 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 It having been found that Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated in regard to the hire and tenure of employment of Joseph Akers, Hugh DeVall, Wayne Schuman, Charles Stiles, and Tracy Danser by discharging each of them on April 13, 1962, and re- fusing each of them employment on April 14 or 16, 1962, and by discharging Donald DeVall on April 25, 1962, the Trial Examiner will recommend that Respondent make each of them whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of his reinstatement less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 with interest GALIS ELECTRIC & MACHINE COMPANY 233 thereon at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Because of the type of unfair labor practices engaged in by Respondent, the Trial Examiner senses an attitude of opposition to the purposes of the Act in general, and hence the Trial Examiner deems it necessary to order that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging and refusing employment to Joseph Akers, Hugh DeVall, Wayne Schuman, Charles Stiles, and Tracy Danser on April 13 and 14, 1962, and by dis- charging Donald DeVall on April 25, 1962, because of their sympathies for, and activities on behalf of, the Steelworkers, thereby discriminating in regard to their hire and tenure of employment and discouraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning 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 this case, the Trial Examiner recommends that Galis Electric & Machine Company, Morgantown and Fairmont, West Virginia, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or in any other labor organization, by discriminatorily dis- charging or refusing to employ its employees or by discriminaitng in any other manner in regard to their hire or tenure of employment or any term or condition of employ- ment. (b) 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 United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment , as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Trial Examiner finds will ef- fectuate the policies of the Act: (a) Offer to Joseph Akers, Hugh DeVall, Wayne Schuman, Charles Stiles, Tracy Danser, and Donald DeVall immediate reinstatement to his previous , or substantially equivalent, position and make each of them whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in this Intermediate Report under the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for ex- amination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plants in Morgantown and Fairmont, West Virginia, copies of the attached notice marked "Appendix A." is Copies of said notice to be furnished by 19 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by the United States Court of Appeals, the words, "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order," 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for the Sixth Region, shall , upon being duly signed by Re- spondent's representative, be posted by it immediately upon receipt thereof and 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 material. (d) Notify the Regional Director for the Sixth Region , in writing within 20 days of the date of the receipt of this Intermediate Report what steps have been taken to comply with the foregoing Recommended Order.17 The Trial Examiner further recommends that, unless within 20 days from the date of the receipt of this Intermediate Report, Respondent has notified said Regional Director that it will comply with the foregoing Recommended Order, the Board issue an order requiring Respondent to take the aforesaid action. 17 In the event that this Recommended Order Is adopted by the Board this provision shall be modified to read : "Notify the Regional Director for the Sixth Region In writing within 10 days from the date of the receipt of this order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT discourage membership in or activities on behalf of United Steelworkers of America , AFL-CIO, or in any other labor organization, by discriminatorily discharging, permanently laying off or refusing employment to any of our employees , or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL offer reinstatement to their same, or substantially equivalent , employ- ment to each of the following named employees and make each of them whole for any loss of pay he may have suffered by reason of the discrimination prac- ticed against him: Joseph Akers, Hugh DeVall , Wayne Schuman, Charles Stiles, Tracy Danser, and Donald DeVall. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist United Steelworkers of America , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended. All our employees are free to become, or remain , or to refrain from becoming or remaining, members of the above -named labor organization. GALIS ELECTRIC & MACHINE 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 ap- plication 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, 2107 Clark Building, 701-717 Liberty Avenue, Pittsburgh, Pennsylvania, 15222, Telephone No. 471-2977, if they have any question concerning this notice or compliance with its provisions.