Nachman Corp.

NACHMAN CORPORATION 335 violation of Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Consolidated Ventilation and Duct Co., Inc., in writing, that we withdraw our objections (in violation of Section 8(b) (2) of the Act) to Joseph A. Cinanni's employment. WE WILL jointly and severally with Consolidated Ventilation and Duct Co., Inc., make whole Joseph A. Cinanni for any loss of pay suffered because of our causing Consolidated Ventilation and Duct Co., Inc., to discriminate against him. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. LOCAL UNION No. 28, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Nachman Corporation and Charles D. Strawser, Betty Strawser, Charles D. Strawser, Helen Allen. Cases Nos. 13-CA-5211, 13-CA-5211-2, 13-CA-5211-3, and 13-CA-5211-4. September 3, 1963 DECISION AND ORDER On April 18, 1963, Trial Examiner Henry S. Salim issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 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 Intermedi- ate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended the dismissal of these allegations of the complaint. Thereafter, the Gen- eral Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers 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 In- 144 NLRB No. 34. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termediate Report, the exceptions and briefs,' and the entire record in the cases, and hereby adopts the findings,2 conclusions, and recom- mendations 3 of the Trial Examiner.4 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following additions and modifications. (1) Add the following paragraph to the Recommended Order : 1. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Inter- national Union, Allied Industrial Workers of America, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organ- ' The Respondent, in a motion filed with the Board , requests the Board to strike certain portions of the General Counsel's brief (1) referring to another Board proceeding in which the Respondent is involved , and (2 ) alleging for the first time that the Respondent violated Section 8 ( a) (1) by promulgating and enforcing an invalid no-solicitation rule. As the Board has not considered or relied on either matter in reaching its determination herein, the Respondent has not been prejudiced. Accordingly, the motion is denied 2 The Trial Examiner, in his Intermediate Report, inaccurately states that the General Counsel failed to question employee Poll regarding Plant Manager Farina's alleged threat to "get rid" of Strawser and his wife . The record shows that the Trial Examiner sustained the Respondent's objection when the General Counsel asked Poll about the matter. How- ever, as Poll was not present when Farina allegedly uttered the threat, we hereby affirm the Trial Examiner's ruling sustaining the objection. 3 We agree with the Trial Examiner's conclusion that the Respondent did not violate Section 8 ( a) (3) and ( 1) of the Act in discharging employee Strawser . Uncontroverted evidence established that Strawser, a known union leader, left work 20 minutes before the end of his shift without notifying his foreman or punching out. We note in this con- nection that the record does not establish that Leadman Hough is a supervisor within the meaning of the Act. Consequently Strawser, contrary to the implication in the dissent, did not relieve himself of the responsibility to punch out and notify his foreman of his decision to leave work, merely by giving Hough his timecard and requesting Hough to punch out for him and notify the foreman that he had left. Moreover, the record fails to show that the Respondent treated Strawser in a disparate manner when it discharged him for this breach of plant discipline. Under the circumstances , therefore, and while the matter is not wholly free from doubt, we find that the General Counsel has failed to estab- lish by a preponderance of the evidence that the discharge of Strawser was discriminatory. The Trial Examiner recommended dismissal of the allegation that Respondent violated Section 8 ( a) (3) of the Act by discharging Helen Allen. As no exceptions were filed thereto, the Board adopts the Trial Examiner's recommendation pro forma. In adopting the Trial Examiner's conclusion that the Respondent violated Section 8(a) (1), we do not rely on his finding that Supervisor Takorski 's request of Burton that she ascertain what occurred at a Board-conducted hearing by asking employee Patterson, was a violation of the Act. 4 As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act , we shall issue a broad Order en- joining the Respondent from infringing in any manner upon the rights guaranteed in Sec- tion 7 of the Act. Interest on backpay will be computed in the manner set forth in 1818 Plumbing & Heating Co., 138 NLRB 716. NACHMAN CORPORATION 337 ization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (2) Add the following as the last paragraph of the Recommended Order: IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges other violations of Section 8 (a) (3) of the Act not specifically found herein. The notice is hereby amended as follows : (1) Delete the fifth indented paragraph thereof, and add the following : WE WILL NOT discourage membership in International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization of our employees, by discharging or by laying off any of our employees or by discriminating in any other man- ner in regard to their hire and tenure of employment or any term or condition of employment. (2) Delete the seventh indented paragraph thereof, and add the following : WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist In- ternational Union, Allied Industrial Workers of America, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activies for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and 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 in Sec- tion 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (3) In the Note immediately below the signature line, between the words "Act" and "after," insert the following : "and the Universal Military Training and Service Act of 1948, as amended,". MEMBER BROWN, dissenting in part : In agreement with the majority, I reject the Trial Examiner's finding that Strawser quit his job and was discharged for quitting when he reported for work the following day. However, my col- leagues substitute another cause for Strawser's discharge, i.e., breach of plant discipline by leaving work 20 minutes before the end of his 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift without notifying his foreman or punching out. In my opinion, this asserted cause must likewise be rejected as not the real reason. The evidence discloses that after vainly struggling for several hours to get his machine functioning properly and being unable to locate his shift foreman, Strawser notified his leadman, Hough, that in order to alleviate the frustration caused by the malfunctioning machine and to calm down before going home he was leaving early to get some air and a cup of coffee and would be back the next night. He trans- mitted his timecard to Hough stating that he had not punched out and requesting Hough to fill in whatever exit time Hough thought best. In these circumstances, if there was a breach of plant discipline, it was a technical one. For, Strawser did notify his leadman that he was leaving, albeit he failed to so advise his foreman directly, and he did ask Hough to take care of his timecard, although he did not actually punch out himself. When the harsh penalty of discharge is meted out for what appears to be at most a minor breach of discipline, the cogent question arises whether this was the real reason for the action taken. In my view, on the basis of all the relevant facts, the answer is that it was a pretext. Thus, the record contains ample evidence of Respondent's strong union animus. Furthermore, Strawser's role as a leading union adherent was well known to Respondent who attempted to curb it by placing special limitations upon Strawser's union activity. More- over, as contended by the General Counsel, the Trial Examiner's "credibility" findings rejecting evidence adduced to show that Re- spondent was "out to get" Strawser are not true credibility resolu- tions but are predicated upon the Trial Examiner's personal notions of plausibility or what "strains credulity." Finally, Respondent at first claimed that Strawser was not discharged ; that he had quit. It was only after the General Counsel presented evidence that Strawser reported to work the next day and was told by Plant Manager Farina that he was fired, that Respondent changed its position to a claim of discharge for cause, namely, leaving the job without permission or company knowledge. This shifting position of Respondent is fur- ther evidence of the pretextual nature of the discharge. When viewed in this posture, it is readily apparent and I am persuaded that the real motive for Strawser's discharge was his union activity. Accordingly, I would find that the General Counsel has established that Respondent thereby violated Section 8(a) (3) and (1) of the Act. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on October 17 and 29, 1962, by Charles D Strawser , on behalf of himself, and James A. Norris, Ronald M. Edwards , and Robert P. Irwin; by a charge filed on October 24, 1962, by Betty Strawser, and by a charge filed on October 29, 1962, by Helen L. Allen, against Nachman Corporation , herein called both the NACHMAN CORPORATION 339 Respondent and the Company, the Regional Director, acting for the General Counsel, issued a complaint on December 17, 1962. The complaint alleges the commission of unfair labor practices by the Respondent Employer within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 135, as amended, herein called the Act. Copies of the complaint and notice were served upon the parties. Pursuant to notice, a hearing was held in Danville, Illinois, before Trial Examiner Henry S. Salim on February 5, 6, 7, and 8, 1963. All parties were represented by counsel and were afforded full opportunity to participate in the hearing, to introduce relevant evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. The parties filed briefs on March 25, 1963, which have been fully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, maintains a place of business at Milford, Illinois, a town of about 1,500 inhabitants, where it employs approximately 200 people. It is engaged in the manufacture , sale, and distribution of metal springs for the bedding and furniture industries. Respondent, during the calendar year 1961, a representative period, in the course and conduct of its business operations, pur- chased, transferred, and delivered to its Milford plant wire, coils, machine parts, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said Milford plant directly from States of the United States other than the State of Illinois . Respondent admits and it is found that Respondent is engaged in commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial Workers of America, AFL-CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act, admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent Company opened a new plant in August 1960 in Milford , Illinois, and a year later, October 15, 1961 , it opened an additional plant across the street. It appears there has been a considerable turnover in employees as 940 employees in all have been hired from August 1960 to October 1962, and of these 240 employees quit, were discharged, or otherwise terminated for the period from May to October 1962. There were 206 employees as of the time of the hearing on February 5, 1962. The Union initiated an organizational campaign in June 1962 to recruit members from among the employees of the Respondent. Beginning on June 23 , the Union held approximately 10 meetings in an effort to organize Respondent 's employees. Respondent acknowledges it was aware of union activity as early as June 23, 1962. However, based on the testimony delineated in later sections of this report, it is found that Respondent was aware of the Union 's organizational activity much earlier as Supervisor Gary Allen testified he had heard the Union was about to organize Respondent's plant "about two months before July of 1962" and that about a week later he notified Bill Young, a company official , of this fact. On July 2, 1962, the Union filed a petition with the Board alleging that a substan- tial number of employees desired to be represented for purposes of collective bar- gaining by the Union . On August 2, 1962, a hearing was held in Chicago on the petition in which the United Auto Workers, AFL-CIO, intervened . There was a general layoff of employees throughout the plant on August 7, 1962, due to pro- duction difficulties . The organizational campaign which began in June and the filing of the representation petition on July 2, culminated in a Board -conducted election on September 14, 1962. The results of the election were as follows : votes for the International Union, Allied Industrial Workers of America, AFL-CIO, the Union herein, 59; United Auto Workers, 3; votes cast against the participating unions, 75; 727-083-64-vol. 144-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 13 challenged votes. The Regional Director, by a decision dated December 19, 1962, set aside the election and ordered a new election to be held on February 14, 1963, which is subsequent to the date when the hearing in this proceeding concluded.' A month after the September 14 election, the first charge was filed on October 17, and a complaint issued on December 17, 1962, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(3) by terminating the employ- ment of six employees for their union activities, and also violated Section 8(a)(1) by surveillance, interrogation, threats, promises of benefits, "blacklisting" employees, and urging them to present grievances to the Respondent in order to repudiate the Union in an effort to dissuade them from union activities. Respondent denies all these allegations and affirmatively asserts with respect to the six employees termi- nated that this resulted for the following reasons: for cause; refusal of a laid-off employee to accept reemployment; because of a reduction in force necessitated by economic conditions; and, in one instance, by an alleged discriminatee quitting. Resolutions of Credibility and Fact This is a case where the General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent. Nevertheless, after observing the witnesses, analyzing the record and inferences to be drawn therefrom, and rec- onciling where possible the conflicting evidence, the Trial Examiner concludes that the testimony of the General Counsel's witnesses is reliable (with the exception of Strawser, discussed infra), because it is consistent with certain undisputed and demonstrable facts in this case. This conclusion is based also on observation of the witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. The resolutions of credibility made herein apply also to the testimony of Ronald Edwards, James Norris, and Robert Irwin with respect to their versions of what occurred when they left the Respondent's employ. The details of these termina- tions are discussed in later sections of this report. However, it is not meant to imply that the trier of these facts accepts as credible everything that was said by all the General Counsel's witnesses. It suffices to say, in the words of Judge Learned Hand, that: "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 2 Another practical consideration which cannot be overlooked in resolving the credibility issues in this case, is the fact that some of the General Counsel's witnesses were still in the employ of the Respondent Company at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testifying they must continue in the employment of the Respondent. This prac- tical consideration coupled with the normal workings of human nature has led the trier of these facts to place considerable credence upon the following witnesses' testimony with respect to Respondent's alleged unfair labor practices: Charles Allen, David Lucht, Roscoe Miles, Joyce Burton, Erna Nicklas, and Elsie Brotherton. In crediting some witnesses and discrediting others, given weight to certain evi- dence as against other evidence, drawn inferences from circumstantial and conflict- ing evidence, and come to certain conclusions, the Trial Examiner has necessarily had to detect and appraise various "potent imponderables" permeating the record.3 One of these "potent imponderables" is the demeanor of witnesses. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility." 4 Credibility findings rest to varying degrees upon the evaluation placed by the trier of the facts upon the demeanor of witnesses. This type of evidence which does not appear in the record and is comprised of elusive intangibles and "potent imponderables" which are difficult to capture and to describe by written words, often make it difficult for the trier of the facts to convey or describe the impression which a particular witness makes upon him.5 1 Nachman Corporation, Case No. 13-RC-8756. 2 N L R B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474. 3lnternational Association of Machinists, Tool and Die Makers Lodge No 35 (Serric1 Corp ) v N.L.R B., 311 U.S. 72, 79. 4 Hadley Manufacturing Corporation, 108 NLRB 1641, 1643; Roxboro Cotton 311118, 97 NLRB 1359, 1368. 5 N.L.R B v James Thompson & Co, Inc, 208 F. 2d 743 (C.A. 2). NACHMAN CORPORATION 341 Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice. . . . nothing is more difficult than to disentangle the motives of another's conduct-motives fre- quently unknown even to the actor himself. But for that very reason those parts of the evidence which are lost in print become especially pregnant.. " 6 As the Board stated in Roadway Express, Inc., 108 NLRB 874, 875: "Credibility findings may rest entirely upon evidence through observation which words do not, and could not, either preserve or describe." [Emphasis supplied.] By this discussion of the evaluation placed upon the demeanor of the witnesses in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in determining credibility. This was only one factor. Concomitant consideration was given equally to the surrounding circum- stances, and the consistency or inconsistency of individual witnesses' testimony with uncontraverted evidence and demonstrable facts in determining which version should be credited. Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross-examination. As has been suc- cinctly stated: "A would-be deceiver weaves a tangled web and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie." 7 Respondent's counsel places emphasis on the disparity and incorrectness of various dates testified to by the General Counsel's witnesses. However, unconscious and unintentional inconsistencies creep into a record, for witnesses testify from memory as to events and conversations that may have taken place long before they have to relate them. The normal and reasonable frailties of the human memory cannot be ignored. The weakness and strength of memory, its reliability in certain par- ticulars and under certain conditions, and the effect of the various factors acting upon it must all be considered. In spite of every effort to be honest, the perceiving, recording, processing, reliving, and relating of the events one observes and of the events in which one participates are perhaps, unconsciously, selectively colored. Sources of error are ubiquitous so that it might well be that a relatively minor role is played by those testimonial misstatements which are the result of deliberate deceit or palpable falsehoods. Tolerance and understanding is, therefore, of partic- ular importance in relation to the eliciting and evaluation of testimony, since testimony rests upon one of man's most fallible instruments-his memory. The confidence in the reliability of memory is so general that the suspicion of memory illusions evidently plays a small role even in the mind of the cross-examining lawyer who often is dominated by the idea that a false statement is the product of intentional falsehood. The mental life-perception and memory, attention and thought, feeling and will play too important a role in hearing procedures to reject the truisms of human nature in the eternal strivings to ascertain the truth. Furthermore, in later sections of this report, the Respondent's alleged discrimina- tory discharges of certain named employees are also considered. The discussion and findings made above with respect to the resolutions of credibility of the witnesses apply not only to the alleged violations of Section 8(a) (1) of the Act, but also to that part of the complaint which alleges Respondent violated Section 8(a)(3) of the Act. Respondent's counsel in his brief states: "The General Counsel has the burden of proving [what occurred], and it is not sufficient if the proof be based on sus- picion or surmise. . . The evidence must do more than create a suspicion of the existence of the facts to be proved. Higher standards than this are required in order for such evidence to attain the stature of `substantial' evidence." In deciding this case, I have been acutely aware of the foregoing observation, because in the type of issues disputed in this proceeding, where the witnesses of the General Counsel and Respondent are in sharp conflict and diametrically opposed in their respective ver- sions as to what actually occurred, the process of hearing can produce only a belief concerning what the facts are, rather than a disclosure of the facts themselves. The trier of the facts must, therefore, be content to have a belief concerning the facts, rather than knowledge of them. e N L R.B. v. Universal Camera Corporation, 190 F. 2d 429, 430, 431 (C.A. 2). ° Santa Clara Lemon Association, 112 NLRB 93 , 104, enfd. sub nom. Carpinteria Lemon Association v. N.L.R B., 240 F. 2d 554 (C.A. 9). 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discussion with respect to the alleged violations of Section 8(a) (1) In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1),8 the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to inter- fere with the free exercise of the rights guaranteed employees by the Act.9 Then too, on the issue of whether the Respondent violated Section 8(a)(1) of the Act, it is not required that each item of the Respondent Company's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as whole.1° It might be well to mention therefore, that in determining whether Respondent violated Section 8 (a)( I), consideration has been given also to Respondent's discriminatory discharge of three employees, all of which is discussed in detail in later sections of this report. Charles Allen, who is presently employed by the Respondent Company, testified that sometime during July 1962, Robert Mann, an admitted supervisor, told him while he was at work that he knew Allen had attended a union meeting. When Allen acknowledged that he had, Mann then interrogated him as to who was at the meeting and what transpired. When Allen answered these questions, Mann asked Allen, "How deep was [he] in it" and Allen replied that he had given Irwin, an alleged discriminatee, union authorization cards. David Lucht, who is presently employed by the Respondent, testified that in the early part of July 1962, Kersting, vice president of the Company, asked Lucht, dur- ing working hours, ". . . if [he] knew anything about the union, what it was about and everything." Kersting, according to Lucht, asked him if he would report back to him on all that occurred at union meetings. Lucht expressed qualms about at- tending union meetings, telling Kersting he feared he might be discharged. Lucht also testified, ". . I was scared then just like about everybody else." Lucht de- clined to attend union meetings and went on to explain to Kersting, "I mean going to the meetings and stuff because I heard that they had people watching the place where they had the meetings." Lucht also testified that Kersting said that ". . . he could close down [the plant] and haul the stuff out in a few days with the truck." When Lucht went to vote at the Board-conducted election on September 14, which was held in the plant, Kersting saw him walking in and said, "You know what to do there " After the election, Lucht testified Kersting "promised me a foreman's job and a wage increase and stuff." Roscoe Miles, who is now employed by the Company, testified that his foreman, Day Supervisor James Clarke,ii asked him the day before the Board-conducted elec- tion if he was going to vote for the Union. When Miles replied he did not know, Clarke said to him that he hoped he did not because if the Union were defeated, the employees would probably receive a pay raise. Joyce Burton, who presently works for the Company, testified that on June 23, 1962, she accompanied another employee, Helen Allen, who is an alleged dis- criminatee in this case, when Helen Allen told her foreman, Gary Allen, a supervisor, that she had signed a union card, whereupon Supervisor Allen asked Burton if she had signed a union card also. When she said she had, Supervisor Allen, according to Burton, said: "I ought to fire both of you right on the spot for even signing them." During this same conversation, it was mentioned that there was to be a union meet- ing the next day, whereupon Supervisor Allen advised them to have the Union return 8 The above-referred-to section reads as follows : UNFAIR LABOR PRACTICES SEC 8 (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ; [RIGHTS OF EMPLOYEES [SEC 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3).l N.L R B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C A. 7). 10 N L R B. v. Popeil Brothers, Inc, 216 F. 2d 66, 68 (C A. 7). ii'Clarke is admitted by Respondent to be a supervisor within the meaning of Section 2(11) of the Act. NACHMAN CORPORATION 343 the authorization cards they had signed. Allen also asked them to report back to him on what occurred at the meeting. If they did this, Burton testified, Allen promised to "hold" their jobs for them. On cross-examination, Burton in relating this conversa- tion, said that Allen told her "to go to the Union meetings and get the information and bring it back to Norbert [Takorski], a company official, and we would keep our jobs." Burton attended the union meeting on Saturday, June 23, and the following Mon- day, Norbert Takorski, day supervisor, called her to his office. He asked her how many people attended the meeting and what occurred. She attended another union meeting about a month later. The following day Takorski again called Burton to his office and asked her the names of those who had attended the union meeting. On August 2, 1962, Takorski called Burton to his office during working hours and told her that Carroll Patterson and Charles Strawser were attending a Board hearing in Chicago with respect to the Union's representation petition. Takorski, according to Burton, asked her "to talk to Carroll [Patterson] and get any information from her I could and tell him about it." On or about September 10, 1962, 4 days before the election, Burton testified that Supervisor Allen came to her machine and said: "Joyce, you know you don't have to be for the union. If you aren't going to think of your own job, think of the fact you are jeopardizing everyone else, that if the union comes in, we are going to close the plant." On cross-examination, Burton testified that Allen said, "Nachman [president of the Company] would shut the plant down." Erna Nicklas, who is presently employed by the Company, testified that Bill Young, an admitted supervisor, came to her machine in the plant sometime in June and asked her how she "felt" about the Union. He told her, and this is uncontradicted, that "he thought it would be best if the union wouldn't get in right now, because the plant was too new and ought to give it a little more time to adjust itself." Shortly thereafter, about July 2, Nachman, president of the Company, called Nicklas to his office and asked her if she had attended the union meeting which was held on June 30 at the Legion Hall in Milford. Elsie Brotherton, now working for the Company, and who was a union observer at the election, testified that on July 2, 1962, 2 days after a union meeting, Nachman called her to his office and inquired if she had attended a union meeting, who was present, and what was discussed. When she told him it was none of his business, Nachman asked her if she had received a pay raise and when she replied in the nega- tive, he said, "Well, you look on this week's check and you will have your raise." Brotherton received a pay increase in her next check. Patricia Poll, who is presently employed by Respondent, testified that around June 27 she had a conversation with David Clifton, an admitted supervisor. She told Clifton she was perturbed as she felt she was being watched by management because they thought she was a union proponent. Poll further testified that Clifton stated her fears were well-founded because "they thought we were passing out union cards during working hours." Poll also testified that Gary Allen, a super- visor, a day or two before the election, came over to where she was working at her machine and asked her what she thought of the Union. Conclusions The question of organization by the employees ... is the exclusive business and concern of the employees. It is the mandate of the statute that the employer shall not intrude himself into the picture. The slightest interference, intimida- tion or coercion by the employer of the employees in the rights guaranteed to the employees by the statute constitute an unfair labor practice in viola- tion of Section 8(a) (1) of the Act.12 [Emphasis supplied.] The Board has held consistently that interrogation is a violation of Section 8(a) (1), particularly where, as in the instant case, it occurs in a context of threats. The rationale behind this conclusion is the recognition that questions may dissuade employees from supporting a union. Questioning also may extract information which may be used for subsequent reprisals. Even if the employer does not use the information to discriminate against union adherents, questions may be used to induce fear of retaliation. Especially in the insecure organizational period, the employer can make a seemingly innocent question suggest his displeasure with em- ployees who support the Union.13 Such questions may convey an imagined threat 12 N L.R.B. v. William Davies Co., Inc., 185 F. 2d 179, 181 (CA 7). 13 Syracuse Color Press, Inc, 103 NLRB 377, enfd. 209 F. 2d 569 (CA 2) ; Blue Flash Express, Inc, 109 NLRB 591, 593-595 ; Linn Hills Company, 116 NLRB 96, 99; Keco Industries, Inc, 118 NLRB 317, 329; N.L R B. v. T. A. MeGahey, Sr.; et al., d/b/a 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of reprisal, even if the employer intends neither the threat nor the reprisal because the employee is fearfully aware that the employer can reinforce his interrogation with retaliation through the exercise of his economic power. Therefore, in deter- mining whether an employer's conduct amounts to interference, restraint, or coercion under Section 8(a)(1) and within the meaning of Section 7 of the Act , the test is not the employer's intent or motive, but whether, under all the circumstances, the conduct is reasonably calculated or tends to produce a coercive effect and restrains or interferes with the free exercise of the employee 's rights guaranteed by the Act.14 Respondent's conduct in this case constitutes a familiar pattern which has been recognized by the Board and the courts as interference, restraint, and coercion proscribed by the Act.15 It is found therefore , contrary to Respondent's categorical denials, that Respondent Company by its supervisors , as detailed above, violated Section 8 (a) (1) when: (1) Mann interrogated Charles Allen about his union activities and as to what oc- curred at the union meeting. (2) Kersting interrogated Lucht with respect to union activities ; asked him to attend union meetings and to report to Kersting what happened ; and threatened to close the plant if the employees selected the Union. (3) Supervisor Clarke inquired how Miles intended to vote in the election and told Miles that if the Union were defeated , the employees would probably receive a pay raise. (4) Supervisor Gary Allen asked employee Joyce Burton if she had signed a union authorization card and when she told him she had, his threat that "[he] ought to fire [her]"; Allen advised Burton and Helen Allen to rescind the union authorization cards they had signed ; and Allen solicited these two employees to attend union meetings and to report what transpired , promising , if they did, to "hold" their jobs for them. (5) Supervisor Takorski interrogated Burton with respect to who attended union meetings and what occurred ; and asked her to elicit from Carroll Patterson, an em- ployee, what occurred at a Board hearing in Chicago on August 2, and to report to him what Patterson told her. (6) Supervisor Gary Allen told Burton that if she voted for the Union she would be jeopardizing the jobs of her fellow employees and threatened that if the Union were successful, the plant would be closed. (7) Supervisor Bill Young interrogated Nicklas with respect to her union sentiments. (8) Nachman, president of the Respondent Company, asked Nicklas if she had attended a union meeting. (9) Nachman interrogated Brotherton as to her attendance at a union meeting and inquired as to who attended and what was discussed ( 10) Gary Allen, a supervisor, asked Patricia Poll what she thought of the Union. (11) Finally, the record is replete with credible testimony that Respondent solicited employees to engage in surveillance of union meetings , including the impression that was given by Fred Nachman , Respondent's president, to Erna Nicklas that her daughters "were seen going" into a union meeting , and Charles Allen's testimony that Hartberg , a clerical employee, was sitting in an auto across the street from where the Union was holding a meeting.is Separate findings as to other instances of alleged specific violations of Section 8 (a) (1) are not made as some are embraced within those found above and others merely would be accumulative adverse findings which do not add to the obliga- tions of the order which independently must issue . The same kind of restraining order will issue whether predicated on one or more violations of the same type so that no good purpose would be served by considering each incident separately with a view of determining whether it constitutes a violation . Inasmuch as ample evidence of conduct violative of Section 8(a)(1) has already been found, and be- Columbus Marble Works, 233 F. 2d 406, 409-410 (CA. 5) See also Stokely Foods Inc v. N L R,.B., 193 F 2d 736, 739 ( C.A. 5) ; N.L R .B. v. W. B. Lipshutz, d/b/a The Monarch Company , 149 F. 2d 141 , 142 (CA. 5). 11 N L R B. v Illinois Tool Works, 153 F. 2d 811 , 814 (C A. 7). See also Graber Manu- facturing Company, Inc., 111 NLRB 167. 15 N L R B. v Bradford Dyeing Association, 310 U S 318 , 338 ; Bausch & Lomb Optical Company v. NLRB , 217 F. 2d 575, 576 (,CA. 2) ; N.L.R B v. Jamestown Sterling Corp, 211 F 2d 725 , 726 (CA. 2). 16 Maxine Nester testified that on the evening of June 30 , when the Union held a meet- ing, Hartberg, while sitting in a car across from the meeting hall, was writing on a pad NACHMAN CORPORATION 345 cause further findings of such additional conduct would be cumulative in nature, it is not deemed necessary to consider the legality of these additional incidents. C. The alleged violations of Section 8(a) (3) 17 Preface It should be noted at the outset of this discussion of the alleged discriminatory discharges of Edwards, Norris, and Irwin that these three employees spearheaded the initial union organizational campaign at the Respondent's Milford plant. The record reveals, as specified above, that the personal contacts of suspected instigators were under searching and strictest scrutiny as well as frequent supervisory inter- rogations. Solicited surveillance schemes were proposed and proffered in a context of the only factory in a town of 1,500, some of whose inhabitants were antagonis- tically aroused by the advent of the Union. In the light of such circumstances, par- ticularly, the determined, implacable, and evident union enmity displayed, it is not unreasonable to conclude that the Respondent Company was aware of Edwards', Norris', and Irwin's union activities at the time of their terminations and it is so found.i$ Also there is direct evidence of such knowledge, as found in later sections of this report. Then too, "the unexplained coincidence of time" with respect to their terminations "was really no coincidence at all, but rather a part of a deliberate effort by the management to scotch the lawful measures of the[se three] employees before they had progressed too far toward fruition." 19 Furthermore, the uncon- vincing character of the reasons given for the terminations of Edwards, Norris, and Irwin is reason for finding discriminatory motivation.20 It is found, therefore, that Respondent engaged in conduct constituting unlawful discrimination in viola- tion of Section 8 (a) (3) of the Act, as amplified below, in discouraging Edwards, Norris, and Irwin from supporting the Union and from engaging in concerted activities for mutual aid and protection. 1. Ronald Edwards Ronald Edwards worked for the Respondent Company from February 12 to June 19, 1962, on the night shift. In the 4 months of his employment, he was promoted to leadman and his hourly wage rate was successively increased from $1.30 to $1.55 which was what he was earning at the time he left the Company's employ. On June 18, 1962, Edwards and Robert Irwin, another alleged discriminatee, met with James Brummett at a pool hall in Milford Brummett was chief steward for the Allied Industrial Workers Union, the Union herein, at another plant in a neighboring town. Brummett gave Irwin union authorization cards and Irwin turned over 30 of these cards to Edwards. When Edwards reported for work on the night shift on June 19, he solicited his fellow employees to sign union cards, of whom 22 did. The following evening, June 20, when Edwards reported for work, he saw that his timecard was not in the rack. When he inquired of the office girl as to where his card was, she referred him to Kersting, vice president of the Company, who, in turn, referred him to Supervisor Takorski. The latter asked Edwards to follow him and they went to the part of the plant where spring outfits were stored. Takorski pointed out certain defective springs which he accused Edwards of having inspected and approved the night before. Prior to this incident, Edwards testified, his work had never been criticized and at no time during this conversation did Takorski state the defective springs had been inspected by Edwards. It was testified by Edwards that ". . . there was no way I could identify [the defective springs], if they was mine or whose they was. [Takorski] just said this was poor quality and it just had to be stopped." 17 Section 8(a) (3) reads as follows: Sec 8 (a) It shall be an unfair labor practice for an employer- s s s s * m a (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . 8 Byrds Manufacturing Corp , 140 NLRB 147. 11 N I R B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C A 2) 20 Pacemaker Corporation, 120 NLRB 987, 991; United Fireworks Mfg Co, 118 NLRB 883 885. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Takorski showed Edwards the defective springs, they returned to Kersting's office who asked Edwards "what [he] thought about it." Edwards testified that "as far as I can remember, I didn't have nothing to express about bad units because I didn't know whether they was mine, or whose they was." 21 Kersting then told Edwards that he was being discharged for improperly inspecting and approving sub- standard springs which, as a leadman, was one of Edwards' duties to check the quality of the springs produced by the spinners. General Counsel's Exhibit No. 7, which is Edwards' "Separation Notice," states he was discharged "for poor quality." On the reverse side, the details are explained including a statement that this par- ticular order entailed a loss of $1,200. Donald Estes who was employed by the Company from December 5, 1961, until December 3, 1962, as leadman, assistant foreman, and foreman,22 testified that when he was a leadman he trained Edwards when he began working for the Company. It was Estes who recommended that Edwards should be promoted to a leadman. Edwards, testified Estes, "was as good a lead man as I worked with as far as doing his work and quality." At no time, testified Estes, did management complain to him with respect to the quality of Edwards' work. Estes testified that the night Edwards was fired, Bill Young, an admitted supervisor, asked Estes if he knew any- thing about Edwards "passing out" union cards at the plant. When Estes replied he did not, Young told him "if [he] heard anything to get in contact with him " Later that same night, Estes testified, Young told him "that word was getting around that [Edwards] was the one that was passing out cards." Although Edwards was purportedly discharged for approving defective coils, the operator of the machine who made the defective coils was not discharged. In fact, the coil operator, and Kersting testified he did not know who it was, was not even reprimanded. Kersting also admitted that the operator of the coil machine was equally at fault in producing these alleged defective coils. The above-cited facts, which show the precipitate discharge of a known union adherent by the Respondent in the context of the Respondent's clearly demonstrated hostility to albor organizations and to this particular employee for his union ac- tivities, point strongly to a discharge in violation of the Act. The Trial Examiner is convinced and finds, on the entire record, that the Respondent seized upon the alleged "Stover incident" as a pretext whereby it believed it might insulate itself from its unlawfully motivated discharge of Edwards. Accordingly, it is found that the Respondent by its discharge of Ronald Edwards violated Section 8(a)(3) of the Act. 2. James Norris James Norris was employed by the Company from April 15 to June 22, 1962. On June 19, Norris obtained 15 union authorization cards from Ronald Edwards who was discharged on June 20. The day following the discharge of Edwards, Norris, who took over from Edwards, obtained the signatures of 3 employees and the next day, June 21, he signed up an additional 10 employees. All this was accomplished at the plant on the night shift during "breaks." On June 22, David Clifton, a supervisor, came over to Norris' machine and informed him he was dis- charged because he was away from his machine too often and that the coils he was making were defective. Norris' "Separation Notice" (General Counsel's Exhibit No. 8) states he was discharged for "Bad Quality-Poor attitude toward work." This occurred at approximately 11:45 p.m., less than an hour before the night shift ended at 12:30 a.m. The night he was fired, which was on a Friday, Norris, when he reported for work, told his leadman that his machine was not working properly and the leadman (Rich Faust) told him to do as best he could with it and that it would be repaired on Monday. Gary Allen, who was present when Clifton discharged Norris and who was Norris' immediate supervisor, when cross-examined, was hazy as to the details surrounding Norris' discharge.23 It would appear unbelievable that Allen, who supervised Norris, would not remember the details of such a serious incident regard- ing the discharge of one of his subordinates. 21 Edwards, on cross-examination, testified he was never told that these defective springs were produced on his shift or on the machines under his supervision. However, Kersting testified that this particular order, which he referred to as the "Stover Order," was pro- duced on Edwards' machine. 22 Respondent's answer admits Estes was a "night supervisor until September, 1962 " 23 For Instance, Allen testified he would from time to time find something wrong with Norris' work but no dates were cited or details other than nebulous terms like "quality problems." NACHMAN CORPORATION 347 Joyce Burton, who is presently employed by Respondent, credibly testified that on the day Norris was discharged, she signed a union card at his request. When she heard that same evening Norris had been fired, she and Helen Allen (an alleged discriminatee), spoke to Gary Allen, her supervisor, that same night. When they asked Allen why Norris had been fired, Allen told them Norris had been fired be- cause he had been away from his machine too often and that the quality of the coils he made were substandard. Burton testified that Helen Allen then told Gary Allen 24 that was not true as "she was working on Norris' machine" and the coils he produced were excellent,25 to which Gary Allen replied: "You know that and I know that, but keep your mouth shut." This is found to be an unmistakable ref- erence to Norris being discharged for union activity which is confirmed by Helen Allen's testimony. It should be noted with respect to Respondent's contention that one reason it fired Norris was because of his "attitude" which Supervisors Allen, Ptak, and Kersting characterized as indifferent-this was not related to any specific incidents. Rather, they are broad, subjective • characterizations of Norris' attitude over a period of 2 months and were, therefore, quite impossible to refute and difficult to impugn through cross-examination. For example, there is the cryptic statement of Vice President Kersting that he reprimanded Norris about his "attitude," testifying that Attitude is a funny thing. It's hard to explain . . . . The incidents of complaint which Respondent's witnesses described concerning the quality of Norris' work are remarkable in their triviality, lacking in their spec- ificity, and doubtful in their verity when subjected to the searching glare of inquiry for the reasons hereinafter explicated. It is uncontradicted that prior to the night he was discharged, Norris had never been reprimanded for his attitude or for leaving his machine, nor was his production or the quality of his work criticized, other than during his indoctrination period. In fact, for the 4 weeks prior to his discharge, he had received bonuses far exceeding his assigned production quota. Maxine Nester, who was employed by the Company as a machine operator until August 7, 1962, when she was laid off in a mass reduc- tion in force, testified that for the month or two that she worked with Norris, the "best coils" she assembled were made by Norris. Respondent's claim that Norris was discharged for an unsatisfactory attitude and its assertion that the quality of his work was unsatisfactory was not corroborated by their producing as a witness, Supervisor Clifton, who fired Norris and who allegedly had personal knowledge of the most vital circumstances surrounding Norris' dis- charge. Clifton's absence as a witness at the hearing renders the purported reason for Norris' discharge dubious and also warrants drawing an inference that if Clifton had been produced, his testimony would not have been favorable to the Respondent 26 His absence "not only strengthens the probative force" of Norris' testimony "but of itself is clothed with a certain probative force." 27 It is believed, as alleged by the General Counsel, that Norris was discharged for his activities on behalf of the Union and that the grounds asserted by the Company as justification for his discharge was a pretext used to cloak its true motive. It is clear, and so found, that Norris was an active proponent of the Union and that Respondent had knowledge of his activities. It is also clear that Respondent was actively opposed to this organizational activity as it has already been found, supra, that Respondent's course of action to defeat such organizational efforts among its employees involved violations of Section 8(a)(1) of the Act. It is found, accord- ingly, that the Respondent by discharging Norris violated Section 8(a) (3) of the Act. 3. Robert Irwin Robert Irwin worked for the Company from November 1961 to August 7, 1962, at which time he was informed that he was being laid off due to a reduction in force. His starting hourly wage was $1.25 and 5 weeks later he was earning $1.45. As mentioned above, Irwin, one of the three original union organizers, accom- panied Ronald Edwards on June 18 when union cards were obtained from Brum- mett, a union shop steward at the neighboring Food Machinery Company, and a 21 Helen Allen is a cousin by marriage to Gary Allen 25 The coils produced by Norris were then turned over to the "assemblers" for processing, two of whom were Joyce Burton and Helen Allen 25 Interstate Circuit v. United States, 306 U S. 208, 225, 226; N.L.R B. v. Sam Wallack and Sam K Schwalm, d/b/a Wallack and Schwalm Company, et al., 198 F. 2d 477, 483 (C A. 3) ; Concord Supplies & Equipment Corp., 110 NLRB 1873, 1879 Paudler v. Paudler, 185 F. 2d 901, 903 (CA. 5), cert denied 341 U.S. 920. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of the Allied Industrial Workers, the Union herein. When Irwin received the union cards, he proceeded to sign up 30 to 35 of Respondent's employees, in- cluding almost all of the night-shift employees. On June 21 or 22, a union meeting was held at Irwin's home which was attended by 18 people including 2 union officials. He also attended eight other union meetings. On or about July 5, Irwin's supervisor, Mann, transferred him from the night shift to the day shift. At the time he was notified of the change, Irwin remonstrated with Mann explaining that his wife also worked days and there would be no one at home during the daytime to take care of his children. Mann told him the transfer was temporary and he would be returned to the night shift shortly. When he was transferred to the day shift, he was assigned to a different type of machine than he had been operating on the night shift. His production decreased and Kersting, a company official, reprimanded him, asking the reason for his low production. Irwin explained that he was not familiar with the machine he was then operating which was different than the machine he had operated when he worked nights. He remained on this machine for an additional 2 weeks when he was trans- ferred to the machine he had formerly operated and his production increased to the quota expected of him. A few days after he was assigned to the machine he had formerly operated, Irwin testified that Kersting again reprimanded him for low production. Irwin denied it was low stating that his production was as high as any- one else in the plant and furthermore the quota set for his machine, he claimed, was too high as none of the employees operating this type machine were producing the quantity prescribed.28 In the meantime, however, Irwin continued to ask his supervisor, Mann, to return him to the night shift but to no avail. A week after he commenced working days, Irwin told Mann he had arranged with a night-shift employee to exchange shifts with him. Shortly thereafter, Irwin again told Mann he had arranged to exchange shifts with another employee but on both occasions Mann did not give Irwin a definite answer.29 Sometime in July, Irwin and Supervisor Mann became embroiled in an argument regarding Irwin's production. Irwin accused Mann of singling him out for censure, whereupon Mann said to him: "Since you think you are a big wheel in the union, you can take the union and stick it up your ." This was corroborated by Charles Allen, a fellow employee of Irwin's. Approximately a week later, on August 6, Nachman, president of the Company, in a talk to the employees, notified them that owing to adverse economic and financial reasons, and in order to improve quality, a retraining program would be instituted so that it would be necessary to lay off some of the employees as of August 7, but he assured them that they would all be recalled eventually as soon as conditions warranted. Of the 45 people laid off, Irwin was 1 of the 9 employees on the day shift "laid off" on August 7. The two other employees who operated the same type of machine as Irwin were not laid off. After this layoff, instead of two shifts, there was only one shift until the Company began, a few weeks later, recalling some of the 45 laid-off employees when the plant again returned to two shifts. Irwin has never been recalled. On September 14, 1962, when Irwin went to vote in the Board-conducted repre- sentation election, he was notified for the first time by the Company's election repre- sentative, Hartberg, that he had been discharged and that his right to vote was being challenged as he was no longer an employee of the Respondent. Respondent's defense presents an anomaly in that its answer dated January 5, 1963, avers that Irwin was laid off "in a mass reduction in force" due to economic reasons "and [Irwin] has not yet been recalled to work," the inference being that he would be recalled if and when conditions warrant. Irwin testified that when he asked Mann the reason for his being laid off, he said that due to the layoff throughout the plant, there was not a sufficient number of assemblers to keep the spinners working and it was necessary to lay off Irwin who was a spinner. Mann also said, according to Irwin, that he "would be recalled," and that he "didn't need to worry about the job" as he was "a good spinner." The Company, however, in its testimony at the hearing, which was inconsistent with its answer, attempted to show his production and quality was unsatisfactory. Irwin testified that his supervisors never criticized the quality of his work. In fact, company witnesses in their testimony stressed quality in zs Shortly after this, the quota for this type machine was lowered from 4,400 to 3,900 units 29 It was elicited on cross-examination that the employees considered the day shift prefei- able to the night shift. NACHMAN CORPORATION 349 evaluating an employee. Respondent's Exhibit No. 3, a "Separation Notice," states Irwin was "discharged" for "Low Production and Bad Quality." Moreover, it is uncontradicted that when Irwin went to vote in the Board-conducted election on September 14, he was challenged by the Company on the ground that he had been discharged. Furthermore, Mann, who was Irwin's supervisor, testified, contrary to the reason alleged in Respondent's answer, that he informed Irwin at the time of the August 7 reduction in force that he was discharged. These various con- tradictory reasons indicate that Irwin's severance was discriminatory. Shifting reasons for an employee's termination are indicative of a discriminatory intent.30 Furthermore, with respect to Respondent's knowledge of Irwin's union activities, there is the uncontradicted testimony of Charles Allen, who is presently employed by Respondent, that Supervisor Mann told him during the organizational campaign that he did not want Irwin "to get too carried away by his union activities if it should jeopardize his job as he wanted to help him." Allen also testified that Mann told him the reason Irwin was transferred from the night to the day shift was "because he was talking so much union that people couldn't work," and they wanted to transfer him "so it would be a little quieter." Mann testified that discipline "is much more strict on days [than on the night shift]." It will be recalled that Irwin signed up almost all the employees on the night shift which establishes Re- spondent's motive in transferring this leading union proponent to the day shift. Allen also testified that in the latter part of June, Mann came to his machine and told him that Irwin had telephoned Mann to notify Allen that he should come to a union meeting at Irwin's house after work. Irwin's version of this telephone call is that he telephoned the plant and asked for Allen. The person that answered said, "Just a minute." Shortly thereafter a voice said he was Allen, whereupon Irwin asked him to attend a union meeting at his house that night. After Allen returned to his machine, Mann asked Allen "how deep [he] was in it" and Allen replied that he had given Irwin union authorization cards and also Ronald Edwards, another alleged discriminatee, in order for them to sign up employees. In view of Irwin's activity on behalf of the Union and the knowledge of such activity on Respondent's part, it is found that he was "laid-off" because of his protected activities as an artifice to punish Irwin for his union activity. Inasmuch as the record is devoid of any substantial evidence that any valid reasons played any role in Norris being notified on the day of the election for the first time that he was discharged, the conclusion is inevitable that he was discriminatorily discharged. These circumstances, in conjunction with Norris' vigorous union activities, and Re- spondent's hostility to the unionization of its employees, leads to the conclusion that the real reason for his "layoff" was his union activities, which is confirmed by Respondent notifying him when he went to vote in the Board-conducted election that he was not eligible as he had been discharged. The termination was, therefore, in violation of Section 8(a) (3) of the Act. 4. Helen Allen Helen Allen was employed by the Company from April 1962 until August 7, 1962, as an assembler on the night shift. She signed a union authorization card on June 22, 1962, and attended several union meetings. She also obtained the signa- tures of three or four employees on union authorization cards sometime prior to August 7. The day following her attendance at a union meeting, Gary Allen, her supervisor, asked her if she had gone to the union meeting. She told him she had. A few weeks later she again went to a union meeting and Gary Allen questioned her with respect to what had transpired. On August 6, as the result of a plantwide reduc- tion in force, the Company notified her she was being laid off as of August 7 and that she would be recalled in a few weeks. Of the approximately 21 women on the night shift, about 16 were laid off. The following day Helen Allen asked Gary Allen if she was laid off or fired. He told her "laid off" and that she would be recalled to work in 2 or 3 weeks. A week or so later Supervisor Takorski also told her she would be recalled. Her separation notice states she was laid off because of "work cut-back" and on the reverse side it states, "Called back August 16th to work and refused" signed "Gary Allen." On August 16, 1962, Gary Allen telephoned her and requested that she return to work on the day shift. She reminded him that at the time of the layoff she was working on the night shift and, since she had children to take care of, it was impossible for her to work days. Allen, she testified, told her that he would keep this in mind if there should be an opening on the night shift. When she went to vote in the Board-conducted election on September 14, she was challenged by 31 Thomas W Dant, at aZ , co-partners d/b/a Dent t Russell , Ltd, 92 NLRB 307, 320 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hartberg, the Company's election observer, who informed her that she was no longer employed by the Respondent. Respondent's amended answer avers Allen refused the job offered her on the day shift "and was thereafter terminated." The uncontradicted evidence reveals Helen Allen, along with approximately 45 other employees, was laid off on August 7, 1962, and recalled on August 16, 1962, but that she refused to accept employment on the day shift, whereupon she was terminated. The record fails to establish any dis- criminatory treatment of Allen by Respondent. She chose not to accept Respond- ent's offer of reemployment. Moreover, there is nothing in the record which re- flects upon Respondent's good faith in making its unconditional offer to Allen which she rejected. Accordingly, it is recommended that the allegation of the complaint alleging her unlawful dismissal on August 7, 1962, be dismissed. 5. Charles Strawser Charles Strawser worked for the Company from March 1962, until October 5, 1962. He was a machine operator making the coils that are used in the springs manufactured by the Company. Strawser was an active proponent of the Union and on August 2, 1962, he attended a Board hearing in Chicago as a union repre- sentative with respect to the Union's representation petition. Company officials were present at this hearing. Strawser was also a union observer at the Septem- ber 14 election. The day following the August 2 Board hearing, Strawser had a conversation with Kersting who told Strawser he was surprised to see him at the hearing and he asked him why he had attended the hearing. Kersting also told Strawser at this time that the employees did not need a union and that the Union was "using [him] for their own personal gain." About the same time that there was a general layoff throughout the plant on August 7, Kersting told Strawser, who had not been laid off, that it was company policy not to permit union activity in the plant during work- ing hours. Strawser agreed to comply with this policy. Approximately 5 weeks later, on September 11, Kersting called Strawser into his office and told him he had received information that Strawser had violated their agreement not to engage in union activities during working hours. Strawser denied this, whereupon Kersting again notified him that during working hours he was to remain at his machine and not walk about the plant talking to employees. Strawser also testified that Farina, the manager of the plant (who was present when Kersting and Strawser had their conversation), told him, immediately after this conversation, that the Company would "get rid" of Strawser and his wife, an alleged discriminatee. It strains one's credulity to believe that the manager of a plant, employing as many as 200 employees, and having the executive responsibilities Farina had, and evidently knowledgeable of at least the basic principles of labor relations, would, 4 months after union organizational activities commenced and 3 days before the Board election, be so incredibly naive as to senselessly compromise his company by the admittedly damaging statement that his company would eventu- ally fire Strawser and his wife for their union activities. In fact, Strawser charac- terized Farina's conversation with him as being in the form of an apology for what Kersting, his superior, had told Strawser. This borders on the ludicrous. Furthermore, the General Counsel made a representation on the record that Patricia Poll, a coworker of Strawser, would corroborate Strawser when she later testified with respect to the Farina incident. When Poll later testified, the General Counsel failed to question her regarding this vital episode. On the evening of October 3, 1962, about 9 o'clock, Kellogg, the supervisor of the night shift, transferred Strawser from a machine he was operating to another machine. The record discloses that it was normal practice to transfer operators from one machine to another. Strawser testified that the machine he was transferred to "wasn't working properly." He testified that he was unable to get it to work from 9 p.m. until 12:10 a.m., at which time he gave up, left the machine, washed up, failed to punch his timecard, "hurriedly glanced around for Kellogg," his su- pervisor, and left the plant. It is uncontroverted that between 9 p.m. and midnight, Strawser failed to notify Kellogg, his supervisor, of the fact that he was unable to get his machine to operate properly. In view of the fact that employees were on a bonus system based on a production quota, it strains credulity to believe Strawser would not have notified Kellogg for a period of 3 hours that his machine was not operating properly. When he reported for work the following evening, Kellogg told him, in the presence of Plant Manager Farina, that he had failed to notify him or punch his timecard when he left the plant early the previous evening and that he had "le[ft] coils all around [his] machine." When Strawser denied not having cleaned up NACHMAN CORPORATION 351 around his machine and Kellogg insisted he had not, Farina told Strawser he was fired for leaving the plant before quitting time without notifymg his supervisor. The Respondent alleges Strawser quit when he walked off the job at 12:10 a.m. and that he did so without permission or knowledge of the Company, whereupon he was discharged for cause. Strawser claims he was ordered not to leave his machine "for no reason whatsoever," which is manifestly an exercise in hyperbole. Corroborative of this conclusion is Strawser's own testimony when he inconsistently testified that when he told Kersting, Respondent's vice president, it was necessary to leave his machine at times, that Kerstmg said to him, "This is not a prison." Kersting's reply, "This is not a prison" in the context in which it was made, is an unmistakable recognition by him that he knew at times it would be necessary for Strawser to leave his machine. The testimony shows it was not only necessary but permissible for machine operators to leave their machines to go to the men's room, to obtain extra wire and tools for the machine, and to obtain assistance from su- periors when the machine was not operating properly. Further corroboration of this conclusion is Strawser's own testimony on direct examination when he was asked if he were permitted to leave his machine for the above reasons and he ad- mitted: "I could." Moreover, Strawser's testimony is unbelievable that his supervisors told him that "under no circumstances," including obtaining assistance from his superiors if his machine broke down, was he to leave the machine. Exaggerated testimony of this nature has convinced the trier of these facts that not only is Strawser's version of his discharge not to be credited but it is also found that he never made a real effort to notify his supervisor he was leaving the plant before his shift ended. It is pertinent, in evaluating Strawser's veracity, to note that when Strawser was asked on direct examination whether he had conversed on working time with other em- ployees prior of August 3 that he equivocally answered, "Not that I can recall." When he was asked if he had done so after August 3, he admitted that on one occasion he had discussed the Union on working time with his fellow employee, Faust. He then denied he had been warned by the Company that he was to refrain from union activity during working hours although he had previously testified that Kersting told him not to engage in union activities while working and that he had so promised. Although the General Counsel alleges in his complaint that Respondent had "im- posed upon Strawser more onerous and less desirable conditions of employment" there is not a scintilla of evidence proving this. If it is contended that Respondent's warning Strawser not to leave his machine to engage other employees in conversa- tion regarding the Union is "onerous," it cannot be successfully claimed that this was not a management prerogative and necessary in order to maintain production and discipline, particularly in view of Strawser's agreeing not to engage in union activities during working hours. In fact, the General Counsel so admitted at the hearing, but then contended that the Company "was laying for this employee for two months, harassing him for that period, waiting to find the first mistake he made." The record is devoid of any substantial evidence corroborating this allega- tion Moreover, such a rule prohibiting union activities on working time need not be promulgated in written form as it can be given to individual employees in the form of warnings 31 Also incredible is Strawser's explanation that he attempted to notify Kellogg when he walked off the job. There was no testimony adduced by the General Counsel that Kellogg was absent from the plant at the time or that Strawser made any real effort to notify him.32 On the contrary, the realities of plant operations in- dicate the opposite in the absence of affirmative evidence showing otherwise. Also material is the fact that Strawser's own testimony shows he had sufficient time that night to stop and talk to a fellow employee as he left the plant early so that he had enough time to punch his timecard and notify his supervisor that he was leaving before his shift ended. This was not an oversight, as Strawser admitted he told an employee as he was leaving before his shift ended that "I didn't even punch my time card." In fact, Strawser contradicted himself when he testified that when he was discharged the following day "[Kellogg] accused [him] of not punch- ing out . . .. and that he denied it. Equally inconsistent is his testimony that 31 N L.R B. v. W. T. Grant Go, 315 F. 2d 83 (C A 9), citing N.L R B v Avondale Mills, 357 U.S. 357; Star-Brite Industries, Inc, 127 NLRB 1008, 1011. 33 The General Counsel's statement in his brief that Strawser "as he left the machine, attempted to find" Kellogg is an equivocal assertion, and not substantiated by "desig- nattion] by precise citation of page and line the portions of the record relied upon." Board's Rules and Regulations, Series 8, as amended, Section 102.40(a). 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he was discharged Kellogg asked him to sign a "small slip of paper which I glanced at, it had something to do with discharge or quitting . . ." and he refused to sign it. When he was asked what it said, he contradicted himself again by testify- ing that he did not read it. Then too, the General Counsel's version of what transpired that night and his theory that the facts disclose Strawser did not quit but was discriminatorily dis- charged, is based, in great measure, on certain alleged actions and statements of one Hough, an employee, whom he failed to call as a witness. Moreover, on cross-examination, Strawser's answers to questions were equivocal and evasive and he tended to fence with counsel and in some instances, as delineated above, his testimony was manifestly incredible. For instance, when Respondent's counsel, on cross-examination, showed that if Strawser had requested permission to go home, it would have been necessary for him to have asked the night supervi- sor, Kellogg, Strawser incredibly testified that he would have asked Leadman Hough for permission to leave early, who it is uncontradicted had no supervisory status. Strawser's testimony that after his discharge he asked Farina, the plant manager, to reinstate him and was told by Farina that if he did "they would fire both of us ." is likewise incredible. In N.L.R.B. v. Jamestown Veneer & Plywood Corporation, 194 F. 2d 192 (C.A. 2), the court held that four employees who walked off the job before the end of the shift quit their employment without cause and, therefore, the employer was justified in its refusal to reinstate them. The court said at page 194: "Quitting the job without cause is ground for refusal to reinstate the quitters," citing N.L.R.B. v. Scullin Steel Company, 161 F. 2d 143, 150, 151 (C.A. 8). There is no substantial evidence that any acts of the Respondent contributed to Strawser's ultimate decision to leave his machine before the end of the shift. His reason for leaving early, on the evidence adduced in this case by the General Counsel, fails to show it was attributable to or precipitated by any acts of the Respondent. On the contrary, it appears from the record that the tension of being unable to repair his machine was responsible for his ultimate decision to leave work before quitting time. To summarize, the evidence reveals that Strawser quit when he voluntarily left his machine before the end of the shift without either notifying his immediate supervisor or punching out on the timeclock. Thereupon, he was discharged for cause when he reported for work the following day, the cause being that he quit his job. The General Counsel has not established by a preponderance of the evidence that the Respondent terminated the employment of Strawser because of his union activity. Accordingly, it is found there was no violation of the Act and it is recommended that the allegation of the complaint alleging that Charles Strawser was terminated because he engaged in union activities be dismissed. 6. Betty Strawser Betty Strawser, who is alleged to have been discriminatorily discharged by Re- spondent on October 16, 1962, did not testify.33 Respondent's answer avers she was discharged for cause. The only testimony in the entire record with respect to Betty Strawser is an alleged statement by Plant Manager Farina to her husband Charles that he and his wife would eventually be fired. This alleged threat which' Strawser testified to is not credited for the reason explicated at page 350, supra. It is recommended, therefore, that the allegation of the complaint with respect to Betty Strawser's discriminatory discharge be dismissed. IV. THE REMEDY Having found that the Respondent is engaging in and has engaged in certain unfair labor practices, it shall be recommended that it and its successors cease and desist from engaging in such conduct in the future and that it shall take certain affirmative action designed to dissipate the effects of its unfair labor practices and thus effectuate the policies of the Act. It has been found that Respondent discriminated in regard to the hire and tenure of employment of Ronald Edwards, James Norris, and Robert Irwin by discharging them because of their union activities. It will be recommended that they be rein- 33The General Counsel stated: "In view of the length of the testimony so far in General Counsel's case, we feel that the testimony of the final 8(a)(3), Mrs. Strawser, would be duplication, and much of it Is in the record, and we do not choose to call her as a witness." NACHMAN CORPORATION 353 stated to their former or substantially equivalent positions. It is also recommended that Respondent make Ronald Edwards, James Norris, and Robert Irwin whole for any loss of pay they may have suffered because of discrimination against them by payment to them of a sum of money equal to what they would normally have earned as wages during the period from their discriminatory discharge to the date of offer of reinstatement, together with interest thereon, less their net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven- Up Bottling Company of Miami, Inc., 344 U.S. 344. CONCLUSIONS OF LAW 1. The business operations of Respondent constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Ronald Edwards, James Norris, and Robert Irwin, Respondent discouraged membership in International Union, Allied Industrial Workers of America, AFL-CIO, and com- mitted unfair labor practices within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondent, Nachman Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively or otherwise unlawfully interrogating employees 34 concerning their membership in, or activities on behalf of, International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization of its employees, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (b) Threatening employees that Respondent will close down its Milford plant, lay off its Milford plant employees, or take other economic reprisals should the Union be successful in organizing the Milford plant. (c) Threatening its employees with discharge or other economic reprisals should they become or remain members of the Union, give assistance or support to it, or otherwise engage in self-organizational or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (d) Promising employees benefits in order to induce them to vote against the Union or to induce them not to engage in other concerted activities. (e) Soliciting their employees to relinquish their membership in, adherence to, or activities on behalf of the Union. (f) Keeping under surveillance the meetings and activities of the Union or other concerted union activities of its employees or giving the employees the impression that Respondent kept under surveillance the activities of suspected union adherents. (g) Discouraging membership in International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization of its employees, by dis- charging or by laying off any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Ronald Edwards, James Norris, and Robert Irwin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner provided in the section of this report entitled "The Remedy." (b) Make whole Ronald Edwards, James Norris, and Robert Irwin for any loss of pay they may have suffered by reason of the discrimination in the manner pro- vided for in the section of this report entitled "The Remedy." 34 N L B B. v. Nashua Manufacturing Corporation of Texas, 218 F. 2d 886, 887 (C.A. 5), enfg 108 NLRB 837. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board and 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 and determine the amounts of backpay due Ronald Edwards, James Norris, and Robert Irwin under the terms of this Recommended Order. (d) Post immediately in its offices in Milford, Illinois, copies of the attached notice marked "Appendix." 35 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Re- spondent's authorized representatives, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.36 It is further recommended that unless on or before 20 days from the receipt of this Intermediate Report and Recommended Order, Respondent notifies said Regional Director, in writing, that it will comply with the above Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. ac 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 a decree of a 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 Deci- sion and Order." ^o 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 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, we hereby notify our employees that: WE WILL NOT threaten our employees with discharge or other economic reprisals, or that we will close down the Milford plant if they select International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization, as their bargaining representative. WE WILL NOT question our employees concerning their membership in, and union activities on behalf of International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization of our employees, in a manner in violation of Section 8 (a) (1). WE WILL NOT promise our employees benefits if they vote against the Union or solicit them to give up their membership in the Union. WE WILL NOT keep under surveillance union meetings or give the impression we are keeping under surveillance the activities of suspected union adherents. WE WILL NOT discourage membership in International Union, Allied Indus- trial Workers of America, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to their hire and tenure of employment or any term or condition of employment. WE WILL offer to Ronald Edwards, James Norris, and Robert Irwin immediate and full reinstatement to their former or substantially equivalent positions, with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the discrimination in the manner and to the extent recommended in the Intermediate Report. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in their choice of bargaining representatives, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations , or to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and CRAIG-BOTETOURT ELECTRIC COOPERATIVE 355 to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. NACHMAN CORPORATION, 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, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Craig-Botetourt Electric Cooperative and International Brother- hood of Electrical Workers, AFL-CIO. Case No. 5-CA-2330. September 3, 1963 DECISION AND ORDER On May 8, 1963, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 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 Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report, and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members 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 In- termediate Report and the entire record in the case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : The complaint alleged, and the Trial Examiner found, that the Re- spondent violated Section 8 (a) (3) and (1) of the Act by (1) the dis- criminatory layoff on June 19, 1962, of its "line" crew, and (2) the discriminatory layoff on December 7, 1962, of employee Donald Cald- well. We agree with the Trial Examiner that these layoffs were for discriminatory reasons and that by this conduct the Respondent violated Section 8 (a) (3) and (1) of the Act. 144 NLRB No. 33. 727-083-64-vol. 144-24