Flushing Manufacturing Service

FLUSHING MANUFACTURING SERVICE 785 the union a period of at least 1 year of actual bargaining from the date of a settlement agreement. Contrary to the Union we do not believe that the equities of the present case warrant the application of the policy enunciated in Mar- Jac Poultry. Where as here, there was over 9 months prior to the plant shutdown and over 5 months subsequent to the settlement agree- ment, a total of over 14 months, during which the Union had oppor- tunity to negotiate a contract, the purpose of the Board's certification year rule has been fulfilled. Upon consideration of all the circum- stances of this case, including the facts that the lapse in negotiations was occasioned solely by the Employer's cessation of operations for a period of about 4 months, that the settlement of unfair labor practices related to the Employer's refusal to bargain as to such cessation, and that the Union had the benefit of more than a year under its certifica- tion in which to negotiate, we are persuaded that the Union had a reasonable period of time subsequent to the settlement agreement in which to conclude a contract with the Employer. Accordingly, as no impediment exists to an immediate election and the Union is claiming to represent the employees in the certified unit, we find that a question affecting commerce exists concerning the repre- sentation of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find, in accordance with the stipulation of the parties at the hearing, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All production and maintenance employees, including leadmen, em- ployed by the Employer at its plant near Walnut Ridge, Arkansas, but excluding all other employees, including office clerical employees, chief inspector and production control employees, professional em- ployees, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER JENKINS took no part in the consideration of the above De- cision and Direction of Election. Flushing Manufacturing Service and Edsel 0. Hartz. Case No. 7-CA-4086. September 05, 1963 DECISION AND ORDER On June 26, 1963, Trial Examiner Sidney Sherman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 144 NLRB No. 76. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' i We hereby amend the Notice to All Employees by adding, in the last sentence above the signature line, "Employees of" preceding "Flushing Manufacturing Service," and by changing, in the sentence immediately below the signature line, "the date hereof" to "the date of posting." The following shall be added immediately below the signature line in the Appendix attached to the Intermediate Report: NOTE-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT The charge herein was served upon the Respondent on February 1, 1963, and the complaint issued on March 6. The case was heard before Trial Examiner Sidney Sherman on April 16 and 17, at Flint, Michigan. The sole issue litigated was whether the discharge of Hartz violated Section 8(a)(3) and (1) of the Act. After the hearing, a brief was filed by the Respondent. Upon the entire record,' and my observation of the witnesses, I adopt the follow- ing findings and conclusions: I. THE BUSINESS OF RESPONDENT Flushing Manufacturing Service, herein called the Respondent, is a Michigan corporation, and is engaged, at its plant in Flushing, Michigan, in the manufacture of tools, dies, machine parts, and related products. It annually supplies products valued in excess of $50,000 to General Motors, which annually ships from its Michigan plants to out-of-State points products valued in excess of $1,000,000. It is found that Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 'The transcript of testimony taken herein is hereby ordered corrected as follows, 1. Page 71, line 18, change "civilian" to "stranger". 2 Page 90, line 15, change "whole" to "rule". 3 Page 172, line 23, Insert "because you" after "you". 4. Page 351, line 8, change "setting" to "starting". 5 Page 376, line 9, change "Fischer" to "Daniel". 6. Page 394, line 13, insert "The Witness" after "Yes". 7. Page 425, line 11, change "and no" to "of a" FLUSHING MANUFACTURING SERVICE 787 II. THE LABOR ORGANIZATION INVOLVED "Employees of Flushing Manufacturing Service," herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent discharged Hartz on or about Decem- ber 7, 1962, because of his concerted activities and membership in, and activities on behalf of, the Union. The answer admits Hartz' discharge but denies that it was for the reasons alleged. A. Sequence of events Respondent has since 1958 had contractual relations with the Union as the repre- sentative of its employees . The latest such contract covered the period from March 1, 1962, to March 1, 1963. This contract (as well as prior contracts), pro- vided for the election by the employees of three of their number to serve as a "shop committee" for a term of 1 year, whose duties were to negotiate contracts and grievances . During the term of the foregoing contract Hartz served as chair- man of the shop committee , the other members being Hendrick and Fitch. Hartz had also been chairman from 1958 to 1960. In article VIII of the contract the Respondent agreed "to grant use of shop as meeting place the second Monday of each month at 7:30 p.m. unless there are conflicting reasons." Respondent's plant operates on a day shift from 7 a.m. to 3:30 p.m. and a night shift from 3:30 p .m. to midnight. Accordingly, the effect of the foregoing provision is to permit union meetings to be held during working time on the appointed date. Hartz was hired on December 7, 1951 , and from that date until his discharge on December 7, 1962, was employed as a tool-and-die maker. On October 2, 1962,2 he suffered an injury to his foot and was absent on sick leave until December 4. In the evening of December 3, the day before he returned to work, he presided over a meeting of the Union held in the shop area during the night shift . The meeting had been called by the other two members of the shop committee, Hendrick and Fitch, but Hartz was responsible for inviting to the meeting Van Messel, an in- surance agent, who addressed the employees on the subject of an "insurance" pro- gram, specifically a plan for retirement benefits or pensions . Among the matters discussed was a pension plan financed in part by the Respondent . There was evidence, which will be considered in more detail later, that in a private discussion with Van Messel after the close of the meeting, Hartz indicated that, if he was un- able to induce the Respondent to contribute to the cost of an employee pension plan, he might enlist the aid of an "outside union" to deal with Respondent con- cerning that subject. The following evening, Van Messel met with Respondent's president, Landon, disclosed to him some of the events of the preceding evening, and discussed the matter of an employee retirement plan. Meanwhile , on the morning of December 4, Hartz had returned to work and was assigned several jobs, including an item for the Chevrolet Division of General Motors. At the close of work on December 6 this job, which had not yet been started by Hartz, was assigned to another employee. At quitting time on Decem- ber 7, Hartz was summoned into Landon 's office, and in the presence of Fitch and Hendrick was advised of his discharge and of the reasons therefor , which included the allegation that he had called a union meeting at the plant on December 3, not- withstanding that this was not an authorized meeting night under article VIII of the Union's contract (see above), and that he had invited a nonemployee (Van Messel ) to the meeting without permission, in contravention of Respondent's al- leged policy against admission of nonemployees to the working area of the plant. In addition, Landon mentioned an "accumulation" of other derelictions on the part of Hartz, mostly matters of longstanding . Other details of this discharge interview will be considered later. Hartz has not since then been rehired by Respondent. B. Discussion The General Counsel contends inter alia, that Hartz' discharge was motivated by his militant collective-bargaining program, as allegedly disclosed by Van Messel to Landon on December 4, rather than by the various reasons assigned in the dis- z All the events hereinafter related occurred In 1962 unless otherwise stated. 727-083-64-vol . 144-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge interview. Respondent denies that Hartz' bargaining program affected his discharge, insisting that it was prompted only by the reasons given to Hartz on December 7. It becomes necessary to consider, first, exactly what occurred at the meeting of December 3 and at the subsequent meeting between Van Messel and Landon. It is not disputed that at the December 3 meeting discussion centered about a retirement plan, including one financed in part by Respondent. Van Messel testified that, after the close of that meeting, Hartz confided to him Hartz' plan (1) to obtain a 20- or 25-cent wage increase, (2) to obtain an employee pension plan supported in part by employer contributions, and (3) if necessary, to enlist the aid of an outside union in support of the latter objective. Hartz testified that at the December 3 meeting he referred to an "outside union." Fitch testified that during the meeting Hartz indicated to Van Messel that he pro- posed to ask for a wage increase of 20 or 25 cents per hour, but denied that he heard any reference at the meeting to an outside union. Hendrick testified that at the meeting, he did not hear any reference to an outside union. It is clear from the foregoing that there is nothing in the testimony of Fitch or Hendrick inconsistent with Van Messel's recital that after the close of the general meeting he had a private conversation with Hartz, in the course of which Hartz disclosed his intention to seek a wage increase and a contributory pension plan, and, if necessary, to enlist the aid of an outside union in support of the latter objective. While Hartz' own testimony on this point is rather meager, it tends to corroborate Van Messel. Van Messel, moreover, had no discernible interest in aiding Hartz' cause in this proceeding, and I was, in fact, convinced by his demeanor and the tenor of his testimony 3 that he was a wholly disinterested and impartial witness. Accord- ingly, I credit his testimony as to Hartz' disclosures to him at the union meeting. In any event, what actually happened at the union meeting is less significant for present purposes than what Van Messel reported to Landon about the meeting. For, even if Van Messel's report was inaccurate as to Hartz' bargaining program, any discharge of Hartz because of Landon's anticipation, albeit erroneous, that he would make certain bargaining demands or call in an outside union would still be unlawful. Concerning his meeting with Landon on December 4, Van Messel testified un- equivocally that he told Landon about Hartz' interest in a wage increase and about his plan to press for a contributory pension plan, and, if necessary, to enlist the aid of an outside union in support of his program. According to Landon, Van Messel told him that after the general meeting, Van Messel and Hartz "had a couple of beers and discussed other shop problems or union problems," and Landon admitted that Van Messel told him of the employees' desire for a wage increase and did not specifically deny that he learned from Van Messel of Hartz' interest in a contributory pension plan,4 but Landon did not "recall" Van Messel's saying that Hartz ,was going to "call in a union." I find therefor , absent any direct contradiction by Landon, that he learned from Van Messel on December 4 of Hartz' intention to seek higher wages and a contributory pension plan. As to the "outside union" issue, in view of my favorable impression of Van Messel, and the rather equivocal nature of Landon's denial, I credit Van Messel and find that he also told Landon of Hartz' plan to solicit the aid of an outside union, in support of his program. Moreover, Landon did not contradict Van Messel's testimony, and I find, that Landon stated that, in view of its financial condition, the Respondent could not afford to share the cost of a pension plan, but would accept a "payroll deduction" plan (which did not involve any employer contribution). It is appropriate to consider next what occurred at the discharge interview on December 7. It appears from a synthesis of the testimony of those present that Landon listed as his reasons for discharging Hartz ( 1) the calling of a union meet- ing on a date not authorized by the contract ; (2) inviting a nonemployee to attend; (3) his failure to complete a "rush" job given him on December 4; (4) his failure to accept overtime work; (5) his frequent tardiness; (6) his derogatory remarks to 8 Van Messel showed no reluctance to give testimony favorable to the Respondent-such as Landon's perturbation over the holding of an unauthorized meeting and Van Messel's attendance thereat. 4 The burden of Landon's testimony on this point was that Van Messel told Landon that he had attempted to persuade the employees to substitute a demand for retirement benefits for a wage demand. He was not asked specifically whether Van Messel mentioned his dis- cussion with Hartz about wages and retirement , and Landon's testimony is silent in that regard FLUSHING MANUFACTURING SERVICE 789 Landon concerning other employees; (7) his frequent complaints about the inade- quacy of the tools supplied him; (8) his failure to return from sick leave on Decem- ber 3 as he had promised to do; and (9) his difficult relations with other employees. The bulk of the testimony at the hearing revolved about the validity of the fore- going reasons assigned for Hartz' discharge. Of these reasons, there were three, each of which was characterized by Landon at various points in his testimony, either expressly or by implication, as the "last straw" or the precipitating cause of the dis- charge. These will first be considered. 1. The "unauthorized" meeting It is clear that under the contract the proper date for a union meeting was Decem- ber 10 and not December 3. It is also clear, however, that Hendrick and Fitch, and not Hartz, were responsible for the selection of December 3 as the date for the union meeting. It is undisputed, moreover, that, at the discharge interview, after Landon assigned the calling of a union meeting on an unauthorized date as a reason for Hartz' discharge, Hendrick and Fitch acknowledged that it was they, and not Hartz who had called the meeting. Moreover, at the hearing, Hendrick, albeit with some reluctance, attested to the veracity of a statement in his pretrial affidavit that in the afternoon of December 3 he (1) entered Landon's office and obtained from Landon certain records, which, according to Hendrick's testimony, were always ob- tained from Landon in advance of union meetings and on no other occasion, and (2) told Landon of the impending meeting. Landon admitted that the records were obtained by Hendrick but denied that he inferred therefrom that there would be a union meeting or that Hendrick told him of such a meeting. I credit Hendrick, as it was manifest from his demeanor and the general tenor of his testimony, that, al- though he was Hartz' associate on the shop committee, he was not favorably disposed toward him.5 At any rate, it was apparent that their relations were not of such a nature as to predispose Hendrick to deviate from the truth to aid Hartz. I find therefore that Landon not only had reason to know (from Hendrick's request for the records to be used at the meeting), but also was expressly told by Hendrick, that there would be a union meeting on December 3, and that Landon voiced no objection to such meeting. In view of his apparent acquiescence in the holding of a meeting on December 3, it is puzzling that he should become so exercised about it as to have told Hartz on December 7, according to his own testimony, that "this unauthorized meeting was the straw that broke the camel's back." Even more puzzling is the ensuing colloquy in the record: Question: Was, the unauthorized part the fact that it was called on the wrong Monday? Mr. LANDON: Right. Question: In other words, if it had been called on the second Monday, you wouldn't have considered it unauthorized? Mr. LANDON: I wouldn't have considered it unauthorized if they had called it the second Monday, or if they had asked for any authorization. Question: Did Mr. Hendrick or Mr. Fitch remark that they were the ones who called the meeting? Mr. LANDON: I think they said that, yes. Question: Did that affect your feeling about the meeting and about Mr. Hartz? Mr. LANDON: It didn't affect my feelings about Mr. Hartz because I had stated that this was the straw that broke the camel's back. It was just the last straw. Question: But they just told you that that straw was not his fault, hadn't they? Did you still regard it as- Mr. LANDON: He was the man who called the third party into this thing. Question: Which was the straw that broke the camel's back. The third party or the date of the meeting? Mr. LANDON: The third party. It is thus evident, that after unequivocally identifying the unauthorized meeting date as the precipitating cause of Hartz' discharge, Landon promptly shifted his posi- tion, when confronted with the absurdity of such a position in the light of the admis- 6 He was at the time of the hearing still in Respondent's employ, and, although he testi- fied for the General Counsel, he also testified voluntarily for Respondent In the presenta- tion of its defense. As Respondent's witness, he stated that he felt that Hartz was ill- disposed toward him. Moreover, even as a witness for the General Counsel, he showed no reluctance to give testimony adverse to Hartz. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions of Hendrick and Fitch that it was they who selected the meeting date, and took the new tack that it was the fact that Hartz invited an ousider or "third party" to the meeting which precipitated his discharge. In the same vein, when pressed at a later point in the hearing to explain why he did not take any offense at Fitch or Hendrick for calling the "unauthorized" meeting, he answered that the "meeting was not that important" and that the "important thing" was "who called the third party into it." 6 2. Van Messel's presence at the meeting It is not disputed that Hartz was responsible for Van Messel's attendance at the union meeting, that there was an "Employees Only" sign over the entrance to the shop, or that at the discharge interview Landon cited Van Messel's attendance as a reason for Hartz' discharge; and, at the hearing, Landon, as already noted, cited this factor as the one which precipitated the decision to discharge Hartz (after retract- ing his claim that it was an entirely different consideration-the date of the union meeting-which triggered the discharge). However, Landon admitted that, in allud- ing to this matter in the discharge interview, he told Hartz that he was not being dis- charged because he brought Van Messel to the meeting, but because Hartz "didn't have the courtesy to ask us or to inform us what was going on," and that he went on to explain to Hartz that he was concerned about Respondent's legal responsibility for any injuries that might be suffered by nonemployees on its premises, and for that reason required that any visitors be cleared by management. It was not clear from the foregoing whether Landon meant that, if Hartz had shown him the "courtesy" of giving him advance notice of Van Messel's visit, Landon would have approved it, or that Landon would not have approved such a visit under any circumstances because of the risk or tort liability involved. That the latter was intended is suggested by Landon's subsequent testimony that he had in the past objected to employees bring- ing outsiders into the "shop" (i.e., the working area of the plant) because of the risk of tort liability. When asked whether any outsiders had in fact been brought into the shop before, Landon answered that an employee "might bring his brother in or somebody like that." However, he admitted that he had never before discharged any employee for such conduct, but that this was what caused him to discharge Hartz. When asked to explain this apparent disparate treatment, Landon answered that Van Messel, unlike the brother of an employee, was a "total stranger" to Landon. Yet, if Landon's objection to Van Messel's visit was due solely to the risk of tort liability, it is not clear why a visit by a relative of an employee or by someone else who was not a "total stranger" would be less objectionable from that standpoint. 3. The "rush" job So far we have considered two events, each of which was characterized by Landon as the one which precipitated Hartz' discharge. Considerable evidence was adduced -concerning still another incident which occurred after the foregoing events, and which, therefore, would logically seem to be entitled to be regarded as the "last straw"-namely, Hartz' alleged failure to complete by December 6 a "rush" job assigned to him on December 4. Respondent's brief, at one point 7 cites this incident as the "final act of disobedience," which, in conjunction with Hartz' prior misconduct, resulted in his discharge, and, as we shall see, it appears from Landon's testimony that, in a conversation with his partner, Middleton, this incident was apparently the only reason assigned for the discharge. However, nowhere else in his testimony does Landon suggest that this incident was .the immediate cause of discharge, assign- ing that role, successively, as had been seen, to (1) the calling of the meeting and (2) the admission of Van Messel to the shop. Apart from the foregoing circum- stances, the validity of this reason is impeached by the evasive nature of the testimony of Respondent's witnesses relative thereto. According to Landon, on December 4, he received a call from the Chevrolet Division of General Motors about the progress of work on some parts being fabricated by Respondent for Chevrolet, he promised delivery the next day, and spoke about the matter to Duke, who assigned the job to Hartz. Landon testified 9 Respondent's brief, at one point, takes the same position, recognizing the untenability of any reliance on the calling of the meeting. However, elsewhere, the brief argues that it was still another Incident-the failure of Hartz to complete a "rush" job assigned him on December 4-which precipitated his discharge. This contention is discussed below. 7 See footnote 6, supra. FLUSHING MANUFACTURING SERVICE 791 further that in the morning of December 6, after receiving another call from Chevrolet, he learned from Duke, Hartz' supervisor, that Hartz had not started the job, whereupon he ordered it reassigned to an employee on the night shift. When asked whether Duke had told him that Hartz had orders to expedite the job, Landon, after twice avoiding a direct answer, finally answered in the affirmative. Duke's testimony is also marked by evasiveness on the same point, as well as on the subject of what instructions he actually gave Hartz. Thus, when first asked what conversation he had with Hartz on December 4 regarding the Chevrolet job, Duke answered that he could not relate "any direct conversation" with Hartz on that date, but could only describe "the normal procedure" that he followed when he assigned a job. However, when the same question was repeated, Duke promptly answered that he told Hartz the job had to be completed "right away" and that he should start it as soon as he had finished working on a piece of steel that was at the time in his machine. Duke added that, although he thereafter observed that Hartz had not started on the job, he did not bring the matter to his attention, partly because he thought that Hartz would attend to it without any further reminder, and partly because Hartz was a difficult person to get along with and Duke wanted to avoid any arguments; and that on December 6, Duke, in response to an inquiry by Landon, reported that the job was not done. When asked whether he told Landon what instructions he had given Hartz about expediting the work, Duke answered: When the-when this-can I have just a minute? My office sets right here and Mr. Hartz' machine is right outside the office and Mr. Landon called me in and told me about the job and I went and got the job and took it right over there. It was only about a few minutes. Mr. Landon knew I had given the job to Mr. Hartz and he never said- At this point, the General Counsel interposed an objection, whereupon the follow- ing occurred: TRIAL EXAMINER: Well the question is did you tell Mr. Landon that you had told Mr. Hartz to get started on this job right away? DUKE: Yes, sir, yes, sir. It is apparent from the foregoing that it took Duke considerable effort to frame an answer to a question which he could have answered, and finally did answer, with a simple affirmative. As already noted, Landon had similar difficulty in answering the identical question. Under cross-examination Duke admitted he could not recall any other instance when Hartz had disregarded a job assignment. When asked whether the job on which Hartz was actually working on December 4 was a "priority job," Duke at first answered (1) that he knew it wasn't because (2) he had assigned the job himself, but promptly qualified (2) and retracted (1), admitting that he did not know whether any priority had been assigned to the particular job on which Hartz was employed on December 4, when the Chevrolet job was given him. In view of the foregoing evasion, confusion, and self-contradiction, I can place no reliance on Duke's testimony. Hartz denied that Duke told him to expedite the Chevrolet job, insisting that Duke merely assigned it to him as "another job." According to Landon, it was about noon on December 6, that he reached the decision to discharge Hartz, and he announced this decision to his partner, Middle- ton, in the following terms: I said "Bill, here's another example of trying to get a job done and we can't get it done." I said, "here's a job for Chevrolet that was assigned to Ed Hartz on Tuesday," and I said, "I'm going to call Mr. Hartz in at the close of the working day and discharge him." 8 If one credits this, it would seem that it was Hartz' failure to complete the Chevrolet job, rather than the other reasons previously assigned by Landon, that triggered his discharge. However, Middleton gave a different version, testifying that on December 6, Landon declared that the bringing of a "third party" into the plant was "the straw that broke the camel's back," and mentioned an "accumulation" of other derelictions on the part of Hartz. While, according to Middleton, Landon also made some reference to a "rush job from Chevrolet," it does not appear from Middleton's testimony in what context such reference was made or whether it was 8Landen explained that Hartz was not in fact discharged that day (December 6), be- cause he had to absent himself from the plant that afternoon. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cited as part of the "accumulation" of reasons for discharging Hartz. Clearly, however, it was not the Chevrolet job, according to Middleton, but the Van Messel incident which was the gravamen of Landon' s complaint. It may be appropriate at this point to review and evaluate the various incidents which were successively referred to by Landon as the immediate cause of Hartz' discharge. (1) The calling of the December 3 meeting: In view of Landon's ultimate repudia- tion of this reason at the hearing, not to mention the evidence cited above as to Landon's advance knowledge of the union meeting, and his admission that he was told on December 7 that Hartz had not called the meeting, it is clear that this incident did not trigger Hartz' discharge. The mere fact that Landon cited this reason at the discharge interview and reiterated it at the hearing reflects seriously on his candor and good faith. (2) Van Messel's attendance at the union meeting. The validity of this reason is negated by (1) the fact that it was advanced by Landon at the hearing only after he was forced to abandon his reliance on (1), above, as well as by Landon's failure, as noted above, to explain plausibly why he treated intrusion by Van Messel, but not by others, as a ground for discharge. (3) The "Chevrolet-job" incident: While chronologically speaking, this incident, which allegedly came to Landon's attention immediately before he decided to dis- charge Hartz, would seem to be logically entitled to be considered the decisive factor in Hartz' discharge and Respondent's brief at one point takes that position, any finding to that effect is precluded by Landon's own insistance at the hearing on assigning that role alternatively to (1) and (2), above, and by Middleton's contradic- tion of Landon's version of their December 6 conversation, insofar as it implied that Hartz' discharge was triggered by the Chevrolet job incident. Moreover, on the basis of demeanor considerations and, in view of the patent unreliability of Duke's testi- mony, and the evasiveness of Duke and Landon, as noted above, I credit Hartz against Duke and find that he did not in fact tell Hartz to expedite the Chevrolet job, and reject the testimony of Duke and Landon that Duke reported to Landon that such an instruction had in fact been given. In sum, in view of Landon's vacillation as to the immediate cause of Hartz's discharge, and the implausibility or insubstantiality of the various reasons assigned, I am convinced that none of them was in fact the one that moved Landon to dis- charge Hartz. In view of this finding, it may not be thought necessary to consider in detail the other shortcomings of Hartz cited at the hearing by Respondent's witnesses, which were for the most part 9 matters of longstanding and would presumably not in them- selves have caused Landon to discharge Hartz on December 7, as none of them was cited by Landon as the immediate cause of the discharge. It may be appropriate, however, to consider these "secondary" reasons insofar as they shed light on Respond- ent's true motivation. Landon testified on direct that one of Hartz' deficiencies was his reluctance to work overtime, and that in the course of a year Hartz worked about 200 hours less over- time than any other employee. Landon subsequently admitted that Hartz worked substantially more hours than a number of other employees, but explained that his foregoing comparison of Hartz' hours with those of other employees was meant to apply only to other employees in the same classification as Hartz (tool-and-die makers) to whom, according to Landon, more overtime work was available than was true in the case of other classifications. However, even as to the tool-and-die makers, records introduced in evidence showing the hours worked by them disclosed that during the year ending September 27, 1962, Hartz worked 2,258 hours, despite having taken a 3-week vacation, 10 or an average of 46 hours a week for the 49 weeks that he worked; that during such period he worked 74 hours more than Weaver, 18 hours more than Forsythe, only 38 hours less than Ladd, only 62 hours less than Laxton, who took only 1 week's vacation during that period, and only 94 hours less than McConnell, 9 The only exception was Hartz' alleged failure to notify Landon that lie would not re- turn from sick leave on December 3, as he had originally promised , but would , in fact, return on December 4. While this was a matter of fairly recent vintage, it is nowhere suggested that this was what decided Landon to dispense with Hartz' services "See Respondent's Exhibit No. 1(d), and specifically the notation thereon that Hartz took a vacation from August 11 through September 4. Under the contract, paid vacations varied from 1 week to 3 weeks, depending on seniority. FLUSHING MANUFACTURING SERVICE 793 who also did not take more than 1 week's vacation.ii Thus, not only did Hartz ac- tually work more hours than two of the other nine tool-and-die makers, but he, like Laxton and McConnell, worked 51 weeks instead of 49, and during the additional 2 weeks worked at his average rate of 46 hours, he would have worked more hours than Laxton and only 2 hours less than McConnell. Thus, only 5 of the 10 tool-and- die makers would have worked substantially more hours than Hartz (including Ladd, who worked only 38 hours more than Hartz). When confronted with these records, Landon again modified his position, explaining that he excluded Forsythe; Weaver and Ladd from his comparison because of various health or family problems which allegedly limited their availability for overtime work. He acknowledged, however, that his estimate of 200 hours less overtime for Hartz was excessive and that a figure of 80 to 100 hours was more realistic. How- ever, even if Forsythe, Ladd and Weaver are excluded, and the vacation factor is ignored, the actual figure is only 62 hours, based on a comparision of Hartz with Laxton. In connection with this issue of refusal of overtime work by Hartz, Landon alleged further that during the summer months Hartz would take leave every other Saturday, although there was work available on those days, and would report for work late on Mondays about six or seven times during the course of a summer. However, accord- ing to Respondent's own exhibit, Hartz took off only two Saturdays during the summer of 1962 and during that period was late for work only three times (none of those oc- casions being on a Monday). In attempting to justify his charge that Hartz did not cooperate with other employees, Landon cited instances when other employees, in reporting to Landon on the status of a part assigned to them for fabrication, explained that they were waiting for Hartz to complete a milling operation on the part. However Landon failed to elucidate why he considered this to demonstrate lack of cooperation. Any implication that Hartz deliberately shirked his work was negated by Landon's ad- mission that Hartz was not unduly slow, and by Duke's description of Hartz as an "average worker." Subsequently (in explaining his charge that Hartz kept the shop "in a turmoil"), Landon took the opposite tack, that it was not Hartz who was uncooperative, but that it was the other employees who refused to work with Hartz. However, he promptly retracted this, as follows: No. I don't mean to say they'd rather not work with him, except that they couldn't accomplish what they had to accomplish. Q. Why not? A. Well, I can't tell you that. I can't tell you that. Duke referred to "a certain amount of tension" between Hartz and other em- ployees, which he implied affected their working relations, and that this was mani- fested on about six occasions during the past year in the form of employee complaints about Hartz, but he was unable to recall any specific instance involving any em- ployee other than Hendrick. Hendrick's testimony is silent about any such incident.12 With regard to Hartz' alleged disparagement of others, the only specific instances cited were his criticism of the quality of the work of another employee (Weaver), his reference to Hendrick as a "hillbilly," and his comments, that, by the time a job came to him, "all the hay" had been removed, meaning that the easy part of the job had been done by someone else leaving the more difficult part for him.13 Hartz' testi- mony that such a remark was commonly made by others in the plant is substantially corroborated by Fitch and is not contradicted by any other witness. Hendrick, ad- mitted that he had not known of Hartz' reference to him as a "hillbilly" prior to the instant proceeding, so that he obviously could not have taken offense thereat, and Duke admitted that, despite Hartz' disparagement, Weaver had never voiced to Duke any objection to working with Hartz. Moreover, Duke, was at a loss to explain, "Both Laxton and McConnell worked every week of the year, but had 2 consecutive short weeks in the summer, which presumably reflect absence on vacation during part of each such week. "Hendrick did cite, however, one occasion when Hartz refused to work on an item for which Hendrick was waiting, from which be inferred that Hartz bore him some ill will. 13 Hartz admitted the criticism of Weaver and the "hay" remark and that he might have called Hendrick a "hillbilly." 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and no other witness offered to explain, why, despite the alleged tension and an- tagonism between him and the other employees, Hartz had three times in 4 years been elected by them to the highest position in the Union.14 To summarize, it is evident from the foregoing not only that the reasons cited as the immediate cause of Hartz' discharge fail to withstand analysis, but also that some of the other derelictions with which Hartz was taxed were either grossly exaggerated or not substantiated at all. As to those derelictions which appear to have had some substance, such as the fact that Hartz did not notify Landon of his decision to return to work on December 4, rather than December 3,15 it is in effect conceded, as already noted, that these matters alone would not have brought about his discharge. I con- clude, therefore, that the true reason for Hartz' discharge is not to be found in the foregoing testimony of Respondent's witnesses The question remains whether such discharge was, as alleged by the General Counsel, on account of Hartz' concerted activities. At the outset it may be in order to deal with the contention apparently advanced by the General Counsel at the hearing that, even if the true reason for Hartz' dis- charge was, as Landon alternatively asserted, (1) Hartz' supposed calling of a union meeting on a date not authorized by the contract, or (2) Hartz' invitation of an "outsider" to attend such meeting, such discharge must be found unlawful, as both the foregoing acts constituted protected concerted activities. While it is true that, in calling a union meeting or inviting someone to address that meeting on the matter of a contributory employee pension plan, Hartz would be engaging in concerted ac- tivities, it seems arguable that under the peculiar circumstances of this case, Re- spondent would nevertheless be justified in discharging him therefor. As to the calling of the meeting, the argument would be that, since the Respondent might law- fully have forbidden any union meeting on its premises during working time, it was entitled to (and did) limit the time at which such meetings might be held, and, had the discharge in fact been due to Landon's honest belief that Hartz had violated such limitation, it would be necessary to find, according to this argument that the dis- charge was privileged. As to the introduction of Van Messel to the plant, the argu- ment would be similarly, that, as it might lawfully have forbidden all union activities in the plant during working hours, the Respondent was entitled to insist that any meetings held comply with any existing plant rule against admission of nonemployees to the plant, and, had Respondent in fact discharged Hartz because of his re- sponsibility for the breach of such a rule, it would be appropriate to find, under this view, that the discharge was privileged. I do not deem it necessary, however, to resolve the foregoing issues, since, for reasons already set forth, I have found that Hartz was not discharged for calling the meeting on the wrong date or for inviting a nonemployee to attend (or for any of the other misconduct alleged by Respondent) and find, for reasons discussed below, that the discharge was for other aspects of Hartz's concerted activities, which clearly were protected. We turn now to the General Counsel's principal contention that Hartz was in fact discharged because of Van Messel's report to Landon on December 4, that Hartz was preparing to press for higher wages and a contributory pension plan in the im- pending negotiations for a new contract, and, if necessary, to enlist the aid of an outside union. That Landon was concerned about the pension plan proposal is evi- denced by the following circumstances: 1. Van Messel testified without contradiction, and I find, that on December 4 Landon told him that the state of Respondent's finances was such that it could not afford to share the cost of an employee pension plan. 14 To offset the inference favorable to Hartz that might be drawn from this circum- stance, Respondent offered to prove that on December 13, after Landon had explained to them his reasons for discharging Hartz, which were the same reasons given by Landon at the discharge interview, the employees had indicated their approval of the discharge in a vote taken in Landon's absence. I rejected this offer However, even assuming that such approval was given under the circumstances alleged, it would be idle to speculate to what extent such action was influenced by Landon's numerous charges against Hartz which did not bear on his relations with fellow employees Thus, if the employees were swayed by Landon's claim that the immediate cause of the discharge was the breach of a plant rule against admitting nonemployees, their vote would obviously not reflect any endorsement of his critidism of Hartz' attitude to other employees, or of any of his other actions. Landon testified that about a week after 'his discharge Hartz Importuned Landon to re- hire him, promising to be "as good as he had been bad " Hartz unequivocally denied using such an expression, and I credit him on the basis of demeanor, as well as the untrust- worthiness of much of Landon's other testimony. 15 See footnote 9, supra. FLUSHING MANUFACTURING SERVICE 795 2. Landon admitted that in the discharge interview he upbraided Hartz because he had not consulted Landon before launching any inquiries into the matter of a pension plan. Thus, Landon stated: Yes, I told him at that time that I thought that he could have extended the courtesy, if he wanted to . . . if he wanted to call in an insurance man, because I said, I have papers where I have contacted people and I did have them in evidence. I have letters and I had plans previous to the time . . . . I told him that I had made inquiries of our present insurance company ask- ing them to extend their plan to include some sort of a savings to have an insurance plan in the shop. Q. And you say for that reason he ought not to have consulted anyone else about insurance . . . A. No, no, I have no objection to him consulting anybody about insur- ance . Q. A11 right, then in what connection did you bring up this matter of insur- ance . . . A. I just told him that I had been working on this and he didn't even extend the courtesy to me to let me know he was going to bring an insurance man in. It is clear from the foregoing that the gravamen of Landon's criticism at this point of Hartz' inviting Van Messel to the union meeting was not that Hartz was thereby breaching a plant rule but that, he had not first afforded Landon an opportunity to give Hartz the benefit of his own investigation of pension plans. Here, then, is a candid avowal that Landon was exercised over the subject matter of the union meet- ing, even if only because he was not first consulted with regard thereto.is As it has been found that Landon was opposed to a contributory pension plan because of Respondent's financial plight, it is understandable that he should be disturbed by the fact that Hartz had taken the initiative in investigating the matter of pensions, and stimulating employee interest therein, without affording Landon an opportunity to indicate his views thereon, and it is also understandable that Landon would be even more disturbed when he learned from Van Messel that Hartz had determined to press for a contributory plan (as well as a substantial wage increase), even to the point of calling in an "outside" union to support his demand. The view that it was the foregoing circumstances which prompted Hartz' discharge is reinforced by (1) the timing of the discharge, which was admittedly intended to be effected on December 6,17 at the end of the workweek in which Landon learned of the events of December 3,18 (2) Landon's inability at the hearing to identify, e While Landon did not expressly assign Hartz' aforementioned failure to consult him about a pension plan as a reason for the discharge, it is inferable from the fact that he mentioned the matter to Hartz, in the midst of a catalog of such reasons, that Landon so considered it If, then, Landon's testimony is to be treated as an admission that a factor in Hartz' discharge was the manner in which he conducted his investigation of pension plans (clearly, a protected, concerted activity), this would be tantamount to an admission that the discharge was due, at least in part, to a reason proscribed by the Act However, in view of my findings below I do not deem it necessary to rely on this ground 17 As already noted, the discharge action was admittedly delayed until December 7 be- cause of Hartz' fortuitous absence from the plant in the afternoon of December 6. 1e As to this matter of the timing of the discharge in relation to Van Messel's disclosure to Landon of Hartz' program, there is testimony by Van Messel that Landon on Decem- ber 4 professed to be already aware of some, at least, of Hartz' proposed collective- bargaining demands, and that Landon mentioned that the matter of an outside union had been "brought up before " If, then, Van Messel's report merely confirmed matters of which Landon was already aware, such report would seem to lose much of its significance as the immediate cause of Hartz' discharge Landon's own testimony is silent on this point Moreover, it does not appear from Van Messel's testimony that Landon professed any prior knowledge of the demand for a contributory retirement plan, as distinguished from a wage increase or other benefits, and Landon's indication that the "outside union" issue was not new may have had reference to the fact that about 5 years earlier an "outside" union had filed an unsuccessful petition for an election among the Respondent's employees In any event, even if Van Messel's testimony is taken to establish that Landon was already aware of Hartz' interest in an outside union and in a contributory pension plan, there is nothing in such testimony to suggest that Landon already knew that Hartz planned to seek the aid of such a union in support of such a plan. There is, thus, nothing in Van Messel's testi- mony militating against a finding that it was not until December 4 that Landon learned that Hartz felt so strongly about a contributory pension plan that he would not hesitate to bring in an outside union to help him to achieve it. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with any reasonable degree of consistency, that aspect of Hartz' conduct which moved him to discharge Hartz at that particular time, and (3), as pointed out above, Landon's exaggerations and improvisations as to certain alleged secondary reasons for Hartz' discharge.19 Where an employer, as here, gives shifting reasons for a discharge, as well as reasons that are demonstrably false, it is difficult to avoid the conclusion that he is withholding the true reason, and that the true reason is one proscribed in the Act 2e Accordingly, it is found that Respondent discharged Hartz because of his militant collective-bargaining program, including his plan to seek the aid of an "outside"- i.e. affiliated-union 21 in support thereof, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 191 do not rely, however, on Hartz' testimony that one of the reasons assigned by Landon on December 7 for his discharge was 'that his "union activities" kept the shop in a "constant turmoil " Landon, Hendrick, and Fitch denied that any such reference was made by Landon to Hartz' "union activities." However, as noted above, Landon did admit that he taxed Hartz with keeping the shop in a turmoil, and, while explaining that 'he had reference only to the reluctance of other employees to work with Hartz, he promptly re- tracted this explanation, retreating into a confused answer. While this circumstance casts suspicion on Landon's denial that his "shop-in-a-turmoil" remark had any reference to Hartz' union activities, I am, nevertheless, reluctant to believe that, in the midst of a lengthy recital of the reasons for Hartz' discharge, which, as I have found, were pretextual and designed to cloak the true reasons therefor, Landon would blurt out such an obviously incriminating reason as "union activities " While it is conceivable that in the heat of the moment Landon's discretion may have deserted him, I prefer to give him the benefit of the doubt on that score. Accordingly, I find that Landon, as he admitted, alleged, as one of the "accumulation" of reasons for the discharge, that Hartz kept the shop In a turmoil and that such reason, like the others discussed above, was pretextual, but that Landon did not expressly allude in that connection to Hartz' union activities Hartz understandably may have inferred that this equivocal remark had reference to such activi- ties, in view of his prominent role in the Union (and, in attempting to recall the exact words used by Landon, his memory may well have been influenced by such interpretation). However, in the absence of any evidence that Hartz' union activities had in past years been so extensive as to keep the employees in a state of agitation or unrest, I do not feel that such an interpretation of Landon 's remark is warranted, and regard Landon's failure to offer a plausible explanation of the remark as merely another proof of his willingness to resort to baseless or exaggerated charges to justify his action in discharging Hartz 20 In support of its contention that the immediate cause of Hartz' discharge was Van Messel's unauthorized admission to the working area, Respondent points to testimony by Van Messel that on December 4 Landon expressed surprise and perturbation over the fact that Van Messel had attended the union meeting, and there is Middleton's testimony, re- lated above, that in their December 6 conversation Landon described the Van Messel inci- dent as the "last straw " However, Van Messel's testimony Indicates at one point, at least, that Landon's displeasure stemmed from the fact that the meeting Van Messel attended was held on the "wrong" night, which circumstance is no longer claimed by Respondent to have 'caused the discharge. Middleton's testimony is marred by vagueness In any event, Landon's testimony and demeanor at the hearing, where he was subject to cross-examina- tion, are clearly entitled to more weight, in appraising his veracity on the issue of what finally moved him to discharge Hartz, than are self-serving statements made by him on other occasions, as reported by other witnesses, even though their testimony was not ob- jected to on hearsay grounds and is credited. Moreover, in order to accept Respondent's thesis, one would have to believe that, although his decision to terminate Hartz was precip- itated by a lawful reason, Landon was so ill advised as gratuitously to assign, at the hear- ing, false reasons for such discharge (as well as the true reason) I am unwilling to believe that Landon would so stultify himself A respondent's shifting explanations for discharge are more likely to be due to the absence of any lawful reason than to a compulsion to elaborate upon the truth. 21 Needless to say, Respondent could hardly have welcomed the prospect of having to deal with an affiliated union , drawing support from an international parent body, instead of the Employee Association, which had no resources outside those of the employees, themselves. FLUSHING MANUFACTURING SERVICE V. THE REMEDY 797 It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that it be directed to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that Respondent make Hartz whole for any loss of earnings he may have suffered by reason of the discrimination against him by pay- ment to him of a sum of money equal to that which he normally would have earned, absent any discrimination, from December 7, 1962, less his net earnings (Crossett Lumber Co., 8 NLRB 440, 497-498) during said period. Such net backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to backpay, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. As the Respondent's unfair labor practices found herein go to the heart of the Act, it will be recommended that the order contain a broad injunction against any form of restraint or coercion by the Respondent. Upon the basis of the above findings of fact, and upon the entire record, I adopt the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edsel O. Hartz because of his concerted activities on behalf of the Union, the Respondent violated Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce 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, it is recom- mended that Flushing Manufacturing Service, Flushing, Michigan, its officers, agents, successors, and assigns, shall be required to: 1. Cease and desist from: (a) Discouraging concerted activities on behalf of Employees of Flushing Manu- facturing Service, or any other labor organization, by discriminating against em- ployees in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, joint, or assist the above- named Union, or any other labor organization, 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, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer to Edsel O. Hartz, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole the said employee, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suf- fered by reason of the Respondent's discrimination against him. (c) Preserve, and, upon request, make available to the Board, or its agents, for examination or copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its plant in Flushing, Michigan, copies of the attached notice, marked "Appendix." 22 Copies of said notice, to be furnished by the Regional Director for ^ In the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order is 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 Decision and Order " 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region in writing within 20 days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.23 28 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discriminate against our employees because of their concerted activities on behalf of Employees of Flushing Manufacturing Service or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Employees of Flushing Manufacturing Service or any other labor organi- zation, 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, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. WE WILL offer Edsel O. Hartz immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of pay suffered by reason of the discrimination against him. All our employees are free to become, remain, or refrain from becoming or remaining, members of Employees of Flushing Manufacturing Service or any other labor organization. FLUSHING MANUFACTURING SERVICE, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Tel. No. 963-9330 if they have any question concerning this notice or compliance with its provisions. Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO [Planet Corporation] and Wilbur Baxter. Case No. 7-CB-702. September 25, 1963 DECISION AND ORDER On November 25, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in the unfair labor prac- 144 NLRB No. 78.