Saginaw Furniture Shops, Inc.

SAGINAW FURNITURE SHOPS, INC. 587 Machinists, AFL-CIO, are entitled to perform the work of wiring and repairing the ceramic hot-form die used in the fabrication of metal parts for aircraft and missiles. ' 2. Local Union No. 1, International Brotherhood of Electrical Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the Employer to assign the above work to maintenance electricians. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local Union No. 1, International Brotherhood of Electrical Workers, AFL-CIO, shall notify the Regional Director for the Fourteenth Region, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to maintenance electricians rather than to tool-and-die makers. Saginaw Furniture Shops, Inc. and District 50, United Mine Workers of America, Ind. and Jerome Wiezycki. Cases Nos. 7-CA-4169, 7-CA-4209, 7-CA-4227, 7-CA-4227(0), and 7-CA- 42297(4). April 2, 1964 DECISION AND ORDER On November 15, 1963, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommeding that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a sup- porting brief. - 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 Trial Examiner's Decision, the Respondent's exceptions and, brief, and the entire record in these cases, and hereby adopts the Trial Examiner's findings,' conclusions,2 and 'recommendations. 'The Respondent has excepted to the credibility findings made by the Trial Examiner. It is the Board's established policy, however, not to overrule a Trial Examiner's resolu- tions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3). 2 The Trial Examiner found , and we agree . that the Respondent discriminatorily dis- charged employees Ecker, Nieman , Burnell , and Wiezycki in violation of Section 8(a) (3) 146 NLRB No. 78. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its order the "Recommended Order" I of the -Trial Examiner. and (1) of the Act In reference to Ecker and Nieman ,-the Trial Examiner relied in part upon his finding that other employees, whose record showed more Incidents of absenteeism, tardiness, and "leaving work early," were not discharged. As there is no evidence, how- ever, that the Respondent considered "leaving work early" a cause for discharge, and the absentee records do not establish discrimination against Ecker and Nieman when this factor is excluded from consideration, we do not rely upon these records. We also do not adopt the Trial Examiner's finding that the Respondent's failure to per- mit dischargee Burnell to complete his probationary period of employment is evidence of discrimination. We nevertheless agree with the Trial Examiner' s conclusions that the Respondent discriminatorily discharged Ecker, Nieman, Burnell, and Wiezycki In violation of Section 8(a) (3) and (1) of the Act as these conclusions are clearly supported by the record as a whole. 3 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Saginaw Furniture Shops, Inc., its officers, agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This consolidated proceeding, with the General Counsel and the Respondent repre- sented by counsel, was heard before Trial Examiner Alba B. Martin in Saginaw, Michigan, on September 10 through 13, 1963, on complaint of the General Counsel and answer of Saginaw Furniture Shops, Inc., Respondent herein.' The issues litigated were whether Respondent unlawfully discharged four named employees, Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki, in February, March, April, and June, 1963; whether at various times since October 5, 1962, Re- spondent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act, has rendered unlawful aid and assistance to Saginaw Woodworkers Federation, Local 1, a labor organiza- tion; and whether Respondent has threatened to discharge employees because of their adherence to District 50 and has by various other acts interfered with, restrained, and coerced employees in the rights guaranteed in Section 7, thereby violating Sec- tion 8(a)(1) of the Act. After the hearing the General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation with a plant and place of business in Saginaw, Michigan, the only facility involved herein (called the Saginaw plant), is engaged in the manufacture, sale, and distribution of television cabinets and other furniture and related products. During the calendar year 1962, a representative period, Respond- ent purchased and caused to be transported and delivered to the plant, goods and materials valued in excess of $1 million, of which goods and materials valued in excess of $500,000 were transported and delivered to the plant directly from points located outside the State of Michigan. During the same period Respondent manu- factured, sold, and distributed in and from the plant, products valued in excess of $1 million, of which products valued in excess of $500,000 were shipped from the plant directly to points outside of Michigan. Respondent is, and has been at all' times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 'The charge in Case No. 7-CA-4169 was filed by District 50, United Mine Workers of America-Region 63, on April 4, 1963; the charge in Case No. 7-CA-4209 was filed April 30, 1963; the charge in Case No. 7-CA-4227 was filed on May 30. 1963; the charge in Case No. 7-CA-4227(2) was filed on June 14, 1963: and the charge in Case No. f-CA-4227( 4) was filed by Jerome Wiezycki on June 27, 1963. SAGINAW FURNITURE SHOPS, INC. U. THE LABOR ORGANIZATIONS INVOLVED 589, District 50, United Mine Workers of America, Ind., herein called District 50, is a labor organization within the meaning of Section 2 (5) of the Act. Saginaw Woodworkers Federation, Local 1, Ind., herein called Local 1, is a labor- organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Labor relations history For a number of years prior to November 1961, Local 1 was the bargaining repre- sentative for the employees in the plant. In November 1961, District 50 was cer- tified by the Board. District 50 and Respondent entered into a 1-year contract from, March 13, 1962, to March 13, 1963. Local 1 filed a petition on December 28, 1962 (Case No. 7-R'C-5599). At the time of the hearing herein the hearing in the representation case was scheduled for September 26, 1963. The events herein began- midway of the District 50 contract, in the fall of 1962. B. Interference, restraint, and coercion; aid and assistance to Local 1 k Three of the General Counsel's employee witnesses, Jerome Wiezycki, Jack Beach, and Clarence Nieman, testified in substance that in the fall of 1962, when to Per- sonnel Director Stalker's knowledge each of them was heavily in debt and in dire financial straits, Stalker requested each of them to assist him in getting District 50• out of the plant and getting Local 1 back into it. Stalker admitted his knowledge of- their financial plight, but denied that any initiative for action concerning the unions. came from him. Nieman credibly testified in substance that after he and his wife had discussed. their financial problems with Stalker and the latter had helped Nieman get a 5-cent an hour raise, in November 1962, Stalker asked him how he felt about Local 1 and District 50, and added that District 50 would not get another contract with the Com- pany and that Local 1 would get back in. Shortly thereafter Stalker asked him to= pass out Local 1 cards and try to get employees to sign them and also to try to get_ his wife to sign one. Stalker stated that if Nieman would help him get Local 1 in Stalker would reimburse him for all dues money Nieman had paid to District 50. A few days later Stalker asked Nieman if he wanted to change his mind about passing out cards and told him he wanted him to meet Jerome Wiezycki, a stockroom em- ployee, who was helping Stalker "throw out" District 50 and get Local 1 in. In, one of the several conversations Nieman had with Stalker the latter promised the former a better job at more money and a job on the "committee" if Local 1 got back in. Nieman did not take the bait. Stalker testified that when employee Jack Beach first went to work for Respondent (in August 1962) he was badly in need of money, he was wearing "rags" and said' that his family was starving. Beach credibly testified that 11/z or 2 weeks after he started to work, he was called into Stalker's office, and after asking him questions about his family, Stalker said that he wanted to get District 50 out of the shop and' another union in. Then Stalker asked Beach to talk to the employees in the plant- and see how they felt about unions. Employee Wiezycki started working for Respondent in October 1962. In his hiring interview with Stalker, according to Wiezycki's credited testimony, Stalker told- him he knew Wiezycki and his wife (who worked in the plant) were having money troubles, and asked him how he felt about unions in the shop. Wiezycki replied` that he did not want to have anything to do with unions because his wife had told him the plant was having union trouble and that if he stated he was in favor of a union he probably would not be hired-so he did not want to have anything to do with a union. The above evidence of Nieman, Beach, and Wiezycki, if credited, shows that it was Stalker, rather than any of these employees, who took the initiative to get each of these employees active in the plant on behalf of Local 1 and against District 50. At the time each was, in view of his financial difficulties, particularly beholden to the Company for the job and wages and to Stalker for his assistance in helping him to plan to meet his obligations; and therefore apt to be particularly responsive to Stalker's request for assistance in union matters. Nothing in the record suggested that at or- near the beginning of their employment Wiezycki or Beach held any convictions on- union matters which would have impelled them to follow the course they pursued. 590 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD Wiezycki and Beach became very active on behalf of Local 1. At times each were in Stalker's office daily, sometimes more than once a day. Sometimes they telephoned Stalker at his home. They testified, as will be seen below, in substance that they were in Stalker's office pursuant to his summons or to report to him some- thing they had done for him in behalf of Local 1 and against District 50. In his testimony Stalker acknowledged their frequent almost daily visits to his office , stated that while there they told him and bragged to him about their activiies on behalf of Local 1 , but in substance denied that they were getting any instructions from him or making any reports to him . He could think of no other employees who were in his office as frequently as these two. He testified that they kept returning even though on occasion he "chased" them out. In substance, he testified he could not keep them out of his office-which is inconceivable had he wanted to. It is likewise impossible to believe that the personnel director of a plant of 325 employees would permit 2 employees to have daily contact with him unless it was with his permission and unless he gained something therefrom . Separately considered , and upon the entire record considered as a whole, Stalker's explanations as to why these two em- ployees, Wiezycki and Beach , were in his office so much more often than other employees and what they said in there at those times, were completely unbelievable and incredible. Because of this testimony, and because his demeanor as a witness convinced me that he was not telling the truth and knew he was not, Stalker did not impress me as a credible witness. Upon the above evidence and findings, and upon the entire record as a whole, I believe and find that the initiative to get Nieman , Wiezycki, and Beach actively engaged on behalf of Local 1 at the expense of District 50 came from Personnel Director Stalker. By Stalker's interrogating them concerning their union senti- ments and making promises of benefits to Nieman for doing so, and by requesting these three employees to become active in the plant on behalf of one union as against the other union, Respondent interfered with , restrained, and coerced em- ployees in the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(I)• Of paramount importance to the resolution of the issues in this proceeding is the question of the credibility as a witness of one of the Charging Parties, General Counsel's witness Wiezycki. He testified in great detail to a close , long-running relationship with Stalker in which the latter directed the former's union activities and Wiezycki carried out Stalker's will as virtually his errand boy . Stalker denied, or had a different explanation for, most of Wiezycki 's testimony. Each was some- what supported by corroborative witnesses . By his demeanor as a witness Wiezycki impressed me as a person who had really lived through the events and conversations he was describing and who was doing his level best at all times during his 287 pages of testimony in over a day on the witness stand , to tell the truth. I find it un- reasonable to believe that he fabricated or was capable of fabricating such an enormous story. His memory was faulty as to dates and he partially repudiated an earlier affidavit given a Board agent while he was under the influence, as he testified, of Stalker. He answered fully and without equivocation the questions put to him, and his manner was direct and frank . Upon his demeanor, and upon care- ful consideration of the entire record in the case, I believe and find that Wiezycki was a credible witness and I credit the essence of his testimony. Wiezycki was a natural to be an errand boy for Stalker for reasons other than his financial vulnerability. He was tall (6 feet, 3 inches ) and large (at the time of the hearing he weighed 340 pounds) and, as was obvious by his demeanor on the witness stand, jolly. Respondent's brief referred to "his engaging personality, sense of humor and imposing physical appearance" as "natural resources ." Wiezycki credibly testified that in his hiring interview Stalker told him that if he kept his nose clean and went along with the Company he would go places with the Company. He was assigned to the stockroom , which was located on the first floor of the plant near Stalker's office, where his duties brought him into contact with many employees and took him all around the plant including the outside areas. According to Wiezycki's credited testimony, about 2 weeks after he commenced work, Stalker left word for Wiezycki to come to his office, and when he came asked him if he was getting around and meeting the people in the shop and if he was getting the feel of the employees concerning unions. Wiezycki replied that he was getting around but that he did not know much about what was going on because Stalker had told him to keep his nose clean . Stalker asked him to get around and feel out the people, see what they talked about , how they thought about the unions. Wiezycki replied that he would . Thereafter in his many contacts with Stalker he informed the latter as to all he learned about the union activities of the employees. By Stalker's asking employee Wiezycki to inform upon the union sympathies of other employees, Respondent interfered with, restrained, and coerced employees SAGINAW FURNITURE SHOPS, INC. , 591 in the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(1). When Local 1 cards were being passed among the employees in November and December 1962 Stalker asked Wiezycki what the sentiment was among the em- ployees. Wiezycki replied that he had .talked with all but about 50 of the em- ployees in the plant (which employed about 325) and that they seemed to be confused and afraid to support either union. Stalker gave Wiezycki a batch of Local 1 cards and asked him to get them signed and then to return them to him on the quiet. Wiezycki obtained a few signatures, including his wife 's, as directed by Stalker, and returned signed and unsigned cards to Stalker . When one employee, Ronald Thomas, expressed fear about signing , Wiezycki suggested that Thomas go see Stalker. He did that and returned and signed the card. By interrogating Wiezycki as related in this paragraph, and by requesting him to get Local 1 cards signed, Respondent through Stalker gave aid and assistance to one union over an- other nand interfered with, restrained, and eoerced employees in the rights guaranteed in Section 7, thereby further violating Section 8 (a) (I). One line on the cards called for the name of the person by whom the card was presented to the signer . Wiezycki testified that when he asked Stalker whose name to write on that line Stalker replied to sign the name of Margaret Kabobel, an employee. Wiezycki testified he signed Kabobel's name. Although Stalker denied this testimony, Respondent did not call Kabobel to testify that she signed her own name on the cards and it was not claimed that she was unavailable as, a witness. Upon the entire record Wiezycki's testimony is credited. This testimony shows Stalker's underhanded tactics in union matters. Another example of Stalker's underhanded approach was his proposal to Wiezycki in November 1962 that the latter try to get Don Stack , an employee and president of the District 50 local in the plant , to smoke a cigarette with Wiezycki in the men's room contrary to the Company's rules. Stalker said that if they were caught smok- ing both would get fired and then Wiezycki would be rehired the next day and given a truckdriving job which Stalker knew Wiezycki very much wanted and which Stalker had encouraged him to hope for. Stalker said to Wiezycki that the only person holding District 50 together in the plant was Stack , and that if he could get rid of him half their troubles would be over. 'Stalker told Wiezycki to make it "rough" for Stack, and Wiezycki did so. - By suggesting that Wiezycki try to trap Stack into a rule violation in order to discharge him to discourage activity in District 50, and by suggesting he make it rough on Stack, Respondent through Stalker further interfered with , restrained, and coerced employees in the rights guaranteed in Section 7, thereby further violating Section8 (a)(1). - While Local 1's cards were being circulated in November and December 1962 Stalker told Wiezycki to spread the rumor around Saginaw that if in substance District 50 remained the bargaining agent it would cost the Company a lot of money and the Gaines Brothers (officers in the corporation) would not stand for that, that instead they would lock up the plant. Stalker said that he was going to have a piece of equipment packaged and,crated and placed right outside where everybody could see it and bearing a Kentucky address. Stalker said that Wiezycki should stand by that piece of machinery and when people came by he should tell them "there goes -the first piece." Wiezycki never saw any piece of machinery crated and. thusly addressed . From time to time Stalker gave him other rumors to spread in the plant-such as that the officials of District 50 were a bunch of drunks and were sitting in bars all the time, that the officials of District 50 were sitting with the Gaines Brothers having dinner and that they were not going to do anything for the employees but only hurt them, and that the shop was going to be moved or locked up. Wiezycki testified, "I be- lieved him at first, I believed everything he said." By Stalker's instructing Wiezycki to spread these rumors Respondent further violated Section 8 (a)( I) of the Act. In one of his early meetings with Stalker the latter mentioned the names of a number of people who were helping Local 1 and the names of a number of people who were opposed to it. Among the latter were Clarence Nieman , his wife, and Ioline Ecker, and a number of officers of the local of District 50. From time to time Stalker would tell Wiezycki to contact a_ certain person who worked at a certain place, sometimes naming him, and find out how that employee felt about the unions . Wiezycki .would report back as directed . He reported that Clarence Nieman was strictly for District 50. Stalker replied that "we know he is real strong, we will get him out of the way the first change [chance] we get." By Stalker's directing Wiezycki to learn and report back the union sympathies of employees as related in this paragraph , Respondent further violated Section 8 (a) (1) of the Act. 744-670-65-vol. 146--39 '592 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD ' - At least -twice Stalker, told Wiezycki to spy upon or arrange for the spying upon and to inform upon specific District 50 meetings. In November 1962 Stalker in- structed Wiezycki to get together with employee Jack Beach and go together to an upcoming District 50 meeting and learn what they talked about. Stalker expressed particular interest -in learning everything that- was said at the meeting about one Linda Rohn, whom Stalker characterized as a good friend of Nieman's and Ecker's. Stalker added that he had to bust up this organization, that the sanding department (where- Nieman -and Ecker worked) and the cabinet department were the "hottest spot- in the plant." Wiezycki attended this meeting and took notes until the presi- dent observed that there was somebody present who was not 'a member • and Wiezycki got up and left rather than cause an incident or a fight. The following day he reported to Stalker everything he had learned at that meeting, including those who were present, insofar as he could identify them, and what was talked about. Later, in April 1963, Stalker asked Wiezycki to find somebody who could be trusted to learn what went on at a District 50 meeting at the YMCA. Unable to find anybody else, Wiezycki sat in his automobile near the entrance to the YMCA on the night of the meeting, April 25, 1963, and made a list of those who went in, including Nieman and his wife. The following day he turned the list over to Stalker and explained anything that needed explaining-as in those cases where Wiezycki did not know the names of specific employees but could explain on what machine in what department they worked. By Stalker's instructing or. suggesting that Wiezycki obtain information about these union meetings and report this information to him, Respondent further violated Section 8(a) (1) of the Act. According to the credited testimony of Wiezycki, in January Stalker told him he had a "real hot spot" in the finishing department and wanted to put Wiezycki up there for awhile; that if Wiezycki "did the job up there you have done downstairs we are going to win this thing all the way, meaning we are going to win this thing for" Local 1. By telling Wiezycki in essence that he was being transferred to another department in order to do a "job" up there for one union over another, Respondent through Stalker further interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed in Section 7, thereby further violating Section 8 (a) (1). At a time when the Regional Office was investigating a complaint case filed against the Company,2 in early February 1963, according to the credited testimony of Wiezycki, Stalker handed Wiezycki what Stalker characterized as Wiezycki's "case history," telling him that a Board agent would be coming over and that. Wiezycki should tell him only what was in this typed document, that Wiezycki should remem- ber everything in the document and relate it and nothing else; and after learning its contents Wiezycki should tear up the document. Stalker also gave him a "case history" to deliver to Jack Beach, which Wiezycki delivered. Stalker told him he was giving "statements" to a number of people to make to the Board agent, and that the Board "will probably send us some poster to put up, and it will tell all the charges, and we will admit to it and sign it, and A. J. Gaines [president of Respond- ent] will have to sign it, and we will give the people freedom to talk about any union they want, and we will . . . have the Board on our side right from the start." Wiezycki testified that when the board agent came over and was in Stalker's office, Stalker called Wiezycki into the office and in the agent's presence told Wiezycki to give the Board agent full cooperation and tell him everything he wanted to know. Wiezycki and the agent then went to the Board agent's car'and Wiezycki told him only what Stalker had directed him to say in his "case history." The affidavit he-signed for the Board agent stated, principally, that Stalker had threat- ened Wiezycki with discharge because of his activity on behalf of Local 1. The record herein belied the accuracy, of any such assertion. Wiezycki testified that much of the affidavit was not true. The 'charge in Case No. 7-CA-4062 (of which I take official' notice) alleged, inter alia, that Stalker had threatened Wiezycki and another employee with dis- charge for talking on behalf of Local 1. Respondent posted one of the Board's customary notices, dated April 4, 1963, stating, inter alia, in customary -notice language, that Respondent would not threaten to discharge employees because of their activity on behalf of Local 1. 2I take official notice that on January 10, 1963, Local 1 filed a charge and on Febru. ary 14, 1963, filed an amendment to the charge, in Case No. 7-CA-4062. SAGINAW FURNITURE SHOPS, INC. 593 Under Section 7 of the Act employees have the right to engage in or refrain from engaging in union activities. When an employee learns that his employer, in oppos- ing a union, will go so far as to compel him to commit perjury, the employee cannot feel free himself to engage in or refrain from engaging in union activities. Further, Section 7 includes the right of all employees not to have fellow employees pressured into making false affidavits relating to Board proceedings designed to vindicate employee rights. Cf. N.L.R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C.A. 5), enfg. 106 NLRB 295; N.L.R.B. v. Better Monkey Grip Company, 243 F. 2d 836 (C.A. 5), enfg. 115 NLRB 1170, cert. denied 353 U.S. 864. For these reasons I find that by directing Wiezycki to testify falsely before the Board agent Respondent interfered with, restrained, and coerced employees in the rights guaran- teed in Section 7, Respondent thereby further violating Section 8(a)(1). The testimony of employee Jack Beach, if believed, showed Beach, as was Wiezycki, to be intimately associated with Stalker in the latter's efforts to supplant District 50 with Local 1. Beach's testimony paralleled Wiezycki's in the types of statements attributed to Stalker. If, as I have found above, Wiezycki's testimony was basically true, then I believe Beach's testimony was basically true also. Beach's memory was not as good as Wiezycki's and he, as did Wiezycki, repudiated much of his first affidavit given while he was under the sway of Stalker. Nevertheless by his demeanor on the witness stand he impressed me as having really lived through the statements and acts he was describing and as making an honest effort to describe these events to the best of his ability. For these reasons I find he was a credible witness and I credit his testimony as follows: Beach testified that during the fall of 1962 he had nearly daily contact with Stalker concerning union matters; that Stalker told him to tell the employees what benefits, higher wages, they would get if Local 1 came back in. When, once, Beach reported that most of the workers thought Local 1 was "all for the shop-that it wasn't for the people-the working people," Stalker replied, "Well, just promise them things and try to get District 50 out." Stalker added, "Before we will let them back in . . . we will just lock the doors. We can't allow them in another year." Stalker told Beach in substance that if Beach would help him in those matters, Beach would get a higher paying job. By this interference, this threat to lock the doors, and this promise of economic benefit to Beach, Respondent further violated Section 8(a) (1) of the Act. Stalker told Beach that the officers of the local of District 50, naming them, and Clarence Nieman, were nothing but troublemakers and that he had to get rid of them. Stalker said Nieman was for District 50 and he could not have that in the plant. By these threats Respondent violated Section 8 (a)( I) of the Act. When Beach had been in the plant about 2 months and had been serving Stalker in union matters as directed, Stalker told him that he did not allow anybody to doublecross him, and that if anybody did he would be sorry for it. Beach cited this statement as one reason he gave a partially false affidavit to a Board agent. Stalker asked Beach to attend all District 50 meetings and report to him what happened at them. By this request Respondent further violated Section 8(a)(1). In March 1963, Stalker asked Beach to get signatures of those who were for Local 1 and those who were for District 50. This request was a further violation of Section 8(a) (1). Sometime after March 13, 1963, Stalker wrote out and handed to Beach the following language on a yellow slip which is in evidence: We the undersigned demand District "50" United Mine Workers of America return our $3.50 dues for the month of March. We the undersigned are not represented by District "50" only up to March 13, 1963, and feel District "50" was not entitled to these dues. To be remembered at this point is that District 50's contract terminated on March 13, 1963. Stalker told Beach to copy this language onto a blank piece of paper Stalker also gave Beach and to have employees sign it. At Beach's request Wiezycki typed this language onto the blank paper, and both of them solicited signatures on it. Stalker testified that he wrote this language out at Beach's request. Upon the entire record considered as a whole, I believe and find that Stalker took the initiative and that in either case by this action Respondent further violated Section 8 (a) (1). About October 12, 1962, according to the credited testimony of employee Kathleen Nieman, wife of Clarence Nieman, Personnel Director Stalker told her that the plant was in "such a mess" because of the interunion contest, and asked her what ,594 DECISIONS OF NiTIONAL LABOR RELATIONS BOARD ",the people," what her husband, and what she thought of District 50. Stalker saldl that he had been hired for only 1 year 3 "because the shop was going to pack up, and move down South, that it wasn't going to last any more than a year.. .. By interrogating this witness as lie did and by threatening that the plant would! move, Respondent through Stalker violated Section 8(a)(1). In this or another conversation about the same time Respondent further violated Section 8 (a)(1) by' Stalker's interrogation of Mrs. Nieman as to whether she had seen any Local 1 -cards being passed around. About the same time Stalker aslted Mrs. Nieman what union Clarence, her husband, was for, and when she replied she did not know, Stalker said he knew Clarence "was pushing for the Mine Workers, and if he didn't stop it that he was going to have to let him go."' This interrogation and this threat were further violations of Section 8(a) (1). On or about April 16, 1963, Clarence Nieman gave testimony to a Board agent. The following morning Stalker called Wiezyckr into his office,, told Barn, that Nieman ,had given a statement against the Company to a Board agent, told Wiezycki to watch Nieman and see everything he did, and added that "we. have to- Hie that man the first time he steps out of line, I want to know exactly what he does" Stalker also told Wiezycki to contact Nieman and ask him "how, everything went last night." Wiezycki carried out the instructions. By instructing, Wiezycki to spy upon and inform upon Nieman, to contact Nieman and ask him: how everything went last night, and by threatening to discharge Nieman because he gave a statement "against the Company" to a Board agent and impliedly, because he, was, in favor of District 50, Respondent further violated Section, 8 (a1) (1) of the Act. After employee-dischargee Robert Burnell was, hired in late January 1963, Stalker told Wiezycki he had hired another new man for the, sanding department and he wanted Wiezycki to talk to him about the unions, andmake sure he went along with Local 1, concluding that if he did not Stalker wanted to know about it. Wiezycki asked Burnell which union he was going to vote for and Burnell: replied for District 50, which information Wiezycki passed on to Stalker. By instructing Wiezycki to interfere into and report upon Burnell's union sentiments, Respondent further vio- lated Section 8(a)( I) of the Act. In late October 1962, according to the credited testimony of employee-dischargee Joline Ecker, her foreman, Harold Szott, told her that he did not think District 50 would be in the plant after this year. Ecker replied that she thought "they would and that we needed them to get things straightened out and give the people a chance, and he said I had to be careful [whom] I was talking to about the unions and what I had said that it could cost me my job...." In Ecker's pretrial statement this last phrase was, "it might look bad for me." Although Szott denied ever discussing unions with Ecker or warning her not to talk about District 50, upon the entire record considered as a whole I credit Ecker's testimony and find that whichever phrase Szott used-"cost me my job" or "look bad"-his remark amounted to an implied' threat of adverse economic consequences, Respondent thereby further violating Section 8 (a) (1) of the Act. Wiezycki credibly testified that he had a number of conversations with Foreman, Harold Szott about unions. When Wiezycki started to wear District 50 buttons, in, the middle of May 1963, Szott asked him whose 'side he was on, observing that now he was on District 50's side and before he was on Local 1's side. Although Szott denied this, by his demeanor Szott did not impress me as a credible witness on matters. concerning his knowledge and statements about union activities of employees. On, the entire record, I find this conversation occurred and that by this interrogation Re- spondent further violated Section 8(a)( 0. At the time of a District 50 meeting on May 23, Szott asked Wiezycki who was running for what offices in District 50, Respondent by this interrogation further violating Section 8(a) (1). Wiezycki told Szott that he, himself was running for two offices: sergeant-at-arms and steward for the sanding department. At an undesignated time, but presumably while Wiezycki was in the machine sanding department under Szott within or after the Section 10(b) period (the 6 months prior to the filing of the original charge), a new employee spoke his mind about unions in the presence of Foreman Szott, saying, "Yes, I'm for any union that 8 Stalker began working for Respondent on August 8, 1962 As he himself was newly employed by Respondent, as he exercised much power for one newly employed, and as be took such an unneutral, one-sided stand as between the two unions, it is inconceivable on this record that he was acting on his own and was not executing company policy. No such claim was advanced by Respondent. On the entire record, I find that in all viola- tions herein found to have been committed by him Stalker was executing company policy for which Respondent is responsible. SAGINAW FURNITURE SHOPS, INC. 595, will help the people ... District 50 sounds like you are doing a good job." Szott warned, "You had better watch the way you talk around here. You can get your- self fired that way." By this implied threat Respondent further violated Sec tion 8 (a)(1). C. The discharges The reasons for four discharges were litigated: of Joline Ecker on February 27,. Robert Burnell on March 14, Clarence Nieman on April 26, and Jerome Wiezycki on June 21-all in 1963. As Respondent contended that Ecker and Nieman were discharged pursuant to a new program for dealing with tardiness and absenteeism, their cases are discussed together. 1. Ecker and Nieman Joline Ecker and Clarence Nieman both ran machines in the machine sanding department under Foreman Harold Szott. All were old employees; Szott having been foreman for 10 years, Ecker having been in the department 5 years, and Nieman nearly 3 years when Ecker was discharged February 27 and Nieman was discharged April 26, 1963. Both did satisfactory work. Both wore District 50 buttons in the plant on their work clothes. Nieman attended all District 50 meetings. Beyond any doubt Stalker and Szott, who participated in the discussions leading to their layoff, knew, as has been seen from evidence given above, that both these employees were adherents of District 50. Respondent's intentions toward them were well documented. When Stalker had asked him to pass out Local 1 cards and made promises as inducements, Nieman, despite his financial difficulties, evidently did not agree to help Stalker and did not do so. As has been seen above Nieman thereafter was in Stalker's mind as a District 50 man and was slated to be eliminated. Several times Stalker mentioned Nieman to Wiezycki as a candidate for discharge because of his District 50 connection. In a conversation with Beach, Stalker referred to Nieman as a troublemaker and added that Nieman was for District 50 and said he was going to get rid of him. Stalker had threatened Mrs. Nieman that if her husband did not stop "pushing" for District 50 he would be discharged. In April, Stalker had put Wiezycki to spying upon and informing upon Nieman. Nieman was discharged the morning after he attended a District 50 meeting, which fact Wiezycki reported to Stalker. AS has been seen above Szott had warned Ecker about speaking up for District 50 L1 is ,us presence: In late December 1962, or early January 1963, Ecker stood right up to Stalker and Szott in the assertion of what she deemed to be employee rights under the Dis- trict 50 contract. All the "blowers," which sucked the fine wood dust away from the sanding machines and the operators of them, suddenly ceased operating. Re- spondent announced that the employees could go home or could continue operating the machines without the blowers, but were not to stand around and do nothing. To Szott and then to Szott and Stalker together, Ecker asserted vigorously that the em- ployees were entitled to 4 hours' pay. The District 50 committeemen who par- ticipated in the discussion at Ecker's request did not know the answer, and Don Stack, the president of the local of District 50, said he would talk to District 50's representative. Stalker did not allow the 4 hours' pay and said the employees were to work or go home. Prior to this incident, according to the credited testimony of Ecker, Stalker would always speak to her and pass the time of day when he would pass her and Szott used to discuss his problems with her. After this neither of them ever stopped to talk with her. One day in late January or early February, according to the credited testimony of Wiezycki, Stalker told Wiezycki that he was going to have to get rid of employees who were aiding District 50, that one way he could do this was to issue them warning notices for tardiness and absenteeism, that he had to give them at least two warning notices and the third time he could get rid of them. He said "he was going to use this as a means to get rid of the people for District 50." Stalker mentioned the names of a number of employees he said were going to get a written warning in- cluding Ecker and Nieman. In fact Ecker was the first to be given a written warn- ing in her department and the first discharged for tardiness or absenteeism. According to the credited testimony of Jack Beach, about the same time Stalker told Beach that he "could fill that place up with new people so he could ring the vote and get the Woodworkers [Local 1] in. He said, `I have got to get all of these old people out and new people in so they will know how to vote."' When Beach 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him how he could do this Stalker replied, "All I have to do is put `unsatisfactory work' down on their work record, or just for being late--either one," and that he would send registered letters through the mail saying that they were fired. By threatening, as set forth in the above two paragraphs, to use pretexts to be rid of District 50 supporters, Respondent further violated Section 8 (a)( 1 ) of the Act. All of the above evidence came into the record in the General Counsel's case-in-chief. Thereafter, in Respondent's case-in-chief, Respondent proved that Re- spondent's figures showed in January 1963 a great drop in production per labor dollar; or, stated conversely, a great increase in cost of production per dollar ex- pended for labor. After study Respondent concluded that a principal cause for this drop was tardiness and absenteeism and that one of the worst offenders in these respects was Szott's machine sanding department. Respondent's president held a foremen's meeting about the middle of January and Respondent decided to tighten up on tardiness and absenteeism. This was Respondent's first major effort in some years to reduce or eliminate tardiness and absenteeism. A new plan not clearly spelled out in the record, was announced to foremen, which provided for warnings to offenders and at least one written notification before disciplinary action was to be taken . Undoubtedly the foremen notified employees to get to work on time and not be absent without a good reason. The production figures per dollar of labor costs returned to about normal by February 10 and remained there. Respondent's president put Stalker in charge of enforcing the new program. The basic question in this part of the case is whether Stalker did so -fairly and nondiscrimi- natorily or whether he used this new program as'a pretext for unloading some Dis- trict 50 adherents as he told Wiezycki and Beach he would do (as set forth above). Study of the daily absentee record cards put in evidence reveals that indeed he did not do so fairly and nondiscriminatorily and that he did use the new program as a pretext for such purpose. Stalker testified that for giving written warnings and disciplinary action under the new program, only an employee's tardy or absentee conduct after February 1, 1963, was considered . The cards disclosed that Ecker was given a written warning February 8 after two tardinesses in February (2 minutes, February 1, 12 minutes, February 4) and 1 day's absence because of illness, an excused absence. She was given her written warning the day after her excused absence because of illness. She was discharged after five more incidents of tardiness (2 minutes late twice, 3 minutes once, 6 minutes once, and 1 hour, 57 minutes once because of two flat tires). Clarence Nieman was given a written warning on February 20 after being tardy twice in February-after being i minute late February 6 and 3 minutes late Febru- ary 20. He was discharged after three more tardinesses : 5 minutes late February 25, 27 minutes late February 27 because of transportation difficulties, and 57 minutes late April 26. In addition Nieman left work early once, on April 9. Among those not discharged despite tardiness and absentee records comparable to or worse than Ecker's and Nieman's were Joseph Humpert, William Peterson, and Nora I. Stringer. Joseph Humpert received a written warning notice June 7 after he had been tardy five times since February 1 and in addition had left work early four times, once without any noted reason. After receiving his written notice he was late four times (one was excused because of illness ), and in addition left work once because of illness in his family. He was not discharged. William Peterson received a written warning after four tardinesses, three of which were tardinesses for over 11 hours, the other for 24 minutes. Thereafter prior to, the hearing he left work early twice and was tardy (3 minutes) once but was not discharged. Nora I. Stringer received a written warning April 17 after being late or leaving work early since February 1 some six times. Since then she has come late .or left . early at least four times, but has not been discharged. Stalker testified that only the employees' record in February counted unless the employees had a.particularly bad record in January and it continued . To be noted in this connection is that Ecker was tardy 4 times in January and absent 9 days (7 because of illnes in her family and 1 because of her own illness , both excused reasons), Nieman 9 times, Humpert 14 times, Peterson 11 times, Groover 3 times (plus 3 days' illness), Stringer 3 times. From the above it appears that in passing judgment upon her case Stalker counted- against Ecker her 8 days in January of illness or illness in her family, which were excused reasons for absence. Otherwise Ecker was discharged after 5 incidents in January and 8 in February ; 13 in all. Nieman was discharged after 9 incidents in SAGINAW FURNITURE SHOPS, INC. - . T • 59T January and 7 in February; 16 in all.. By contrast Humpert was not discharged -despite his 14 incidents in January and 13 in.February; 27 in all. By contrast Peterson was not discharged despite his 11 incidents in January and 7 in' February; 18 in all. By contrast Stringer was not discharged despite her 3 incidents in January- and 10 in February; 13 in all. - Upon the above analysis of the absentee cards and the entire record 'considered as .a whole, I conclude that tardiness and absenteeism was but a pretext , and that Respondent really discharged Nieman and Ecker to be rid of two District 50 adherents for th'e purpose of discouraging further membership, sympathy, and .activity in District 50-Respondent thereby violating Section 8(a)(3) and (1) of the Act. - 2. Robert Burnell Burnell worked for Respondent for only about 61/ weeks, from January 28 until March 14, 1963. He is 20 years old. He worked in the machine sanding depart- ment under Foreman Szott. During his last 41/a weeks he wore two 'union badges, -one for District 50 and one for Umted Mine Workers. As has been seen above at Stalker's request Wiezycki inquired of Burnell how he was going to vote and ireported back to Stalker that Burnell was going to vote for District 50. Stalker ,replied that "he would look into it." The day before Burnell's discharge Jack Beach went up to Burnell and had a conversation with him about which union he was for. Beach testified in substance that Burnell said he had signed up for District 50. Burnell testified he told Beach it was none of his business. As both testified Burnell was wearing a District 50 button, and as by then Beach must have 'been identified in the plant as a Local 1 man, it is clear that Beach- understood Burnell was for District 50. Beach testified-that he reported his conversation with Burnell to Stalker. When Wiezycki noticed that Burnell no longer reported for work, after his dis- charge, Wiezycki' asked Stalker what happened, to Burnell. Stalker replied, -"We took care of Bob like we will take care of some of the other people that are trying to organize District 50 in our plant. " By this statement including the threat, Re- spondent further violated Section 8 (a) (1). In substance Respondent contended that Burnell was discharged because he was not a satisfactory worker, that he was slow and clumsy. During his few weeks of employment he was assigned to work on several machines-which was not unusual in that department. Respondent's employee-witness Dorothy Knezek, who `worked - across from (Burnell) at times," credibly testified with insight, "I know that he tried hard. 'Sometimes I think he was trying too hard." She testified, "It seems like whenever he piled the stock it fell. ..." Once she straightened up some 'work . for him. Respondent's employee-witness William Peterson testified as to Burnell's diffi- culties early in his employment in piling material correctly onto the trucks. Wiezycki credibly testified that several weeks after Burnell's discharge, one Satur- day when Wiezycki was working, Szott assigned him to the balloon sander, which- sanded legs, saying that he really missed Burnell; that, in substance , the balloon ,sander was always behind because there were-four legs to every piece of furniture and so he had to get them out four times as fast; that he wished he had Burnell 'back; and that Burnell and the man who was working with him on the balloon sander were two of the best men he ever had-presumably on the balloon sander. Wiezycki credibly testified also that Burnell was faster on the balloonf sander than he was. Burnell was hired by Stalker, who testified he told Burnell at that time "that he had a 60-day probationary period which would- be up to the foreman to decide whether or not he would continue in employment. If his work was satisfactory he would continue. If not, he would be discharged." This seems to say that Stalker told Burnell that he had 60 days in which to prove himself. Despite this Respondent kept him only 32 ' or 33 working days and then discharged him. Respondent's 'testimony, including Knezek's testimony that Burnell tried hard, possibly too hard, considered in the light of the entire record, fails of conviction that Respondent gave Burnell the full opportunity it indicated intention to give him when it hired him. As Burnell was discharged during the period Stalker was seeking pretexts for getting rid of District 50' adherents , as Stalker knew from both Wiezycki and Beach that Burnell was for District 50, as Stalker in essence admitted to Wiezycki after the - discharge that Burnell was one of those eliminated because of his sympathy for District 50, and upon the entire record considered as a whole, I conclude and -find that Respondent discharged Burnell to discourage further employee sympathy for, and activity and membership in, District 50, . Respondent -thereby violating Section 8(ay(3) and (1) of the Act. 598 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Jerome Wiezycki Wiezycki worked for Respondent from October 10, 1962, until June 21, 1963, a period of over 8 months. He served in several departments, the transfers being arranged by Stalker and the foremen of the departments involved. According to Respondent's testimony at least two foremen, Henning and Szott, complained to Stalker about Wiezycki's frequent absences from his post of duty. To be off on union matters for Stalker was consistent with Wiezycki's credited testimony above. There is no evidence the foremen knew what Wiezycki was doing for Stalker. Stalker testified also as to other complaints made about Wiezycki by the foremen to Stalker. Insofar as this testimony and the reasons for his transfer from depart- ment to department were relevant, they showed that whatever Wiezycki's short- comings Stalker always found another job for him and there was always a place for him during the period that he was doing Stalker's bidding on union affairs. Once during this period Stalker arranged to keep Wiezycki when he was vulnerable to layoff by transferring him temporarily out of the department having the layoff. To be noted is that he was never given a written warning for any alleged shortcomings and that he was always protected by Stalker when foremen complained about him. During this period, Stalker knew that Wiezycki was ambitious to get ahead in the Company, and Stalker encouraged this ambition. In late November and after that when Wiezycki thought he had a chance to become a truckdriver for the Company and indicated to Stalker that he very much wanted to do that, Stalker encouraged him. An outstanding example of protection of -Wiezycki occurred on May 13, 1963, when Respondent was considering who was responsible for damaging the drum sanding machine the day before. Respondent at first blamed Wiezycki and gave him a written warning and a 1-week layoff. Then in a few hours Superintendent Glass, having talked with the foreman and Stalker, and expressing doubt as to whether Wiezycki or Carl Lock was responsible for the damage, canceled the layoff and gave Wiezycki another assignment immediately. Lock was a brother of Stalker's wife; he was Stalker's brother-in-law. The record is silent as to any warn- ing or discipline dealt to Lock, and as to any consideration being given to dis- charging either of them even though the out-of-pocket cost for repairing the drum sander was over $1,500, not counting loss of production. Superintendent Glass evidently never concluded which one, Wiezycki or Lock, was responsible for the accident. Had the Company intended to discharge Wiezycki over the drum sander incident, it would have done so then and there. The fact that Superintendent Glass called him back and withdrew the layoff and thereafter let the matter drop, even though it was a costly accident to the Company, is proof that the Company did not conclude that Wiezycki was responsible for the accident. Yet, on June 20, in reciting to Wiezycki his alleged faults Stalker included damaging the drum sander. For some time prior to this accident Wiezycki had been growing in revulsion over the shoddy things he was doing for Stalker; over the hurtful disservice he was render- ing his fellow workers. This accident and its aftermath completely altered his relationship to Stalker. He signed up with District 50, started wearing District 50 buttons, ceased reporting to Stalker, and gave a second affidavit to the Board's Regional Office partially repudiating the earlier one Stalker had virtually dictated for him. This change of attitude by Wiezycki necessarily came to the attention of Stalker and necessarily in Stalker's mind placed Wiezycki in the role of an adherent of District 50, which Stalker was seeking to eliminate. Stalker, through Wiezycki and Beach, had obviously kept himself well informed as to what the employees were thinking concerning the two unions, and was obviously aware that the change of allegiance by Wiezycki, who theretofore had been so openly promoting for Local 1, would be costly to Stalker's desire to eliminate District 50. Further, as has been seen above, in the middle and last of May, Foreman Szott questioned Wiezycki concerning his change of allegiance and concerning ' who was running for offices in District 50; and Szott learned that Wiezycki was running for two offices in District 50. -By this shift of allegiance Wiezycki obviously made himself vulnerable to retaliation by Stalker. Stalker's opportunity to retaliate came when Respondent's president, visiting the plant from his Chicago office, happened on June 20 to see Wiezycki several times apparently not working, and looking directly at the president and laughing. Upon inquiry, Respondent's president learned Wiezycki's identity and was also told by Stalker or Foreman Szott that Wiezycki was the one who had damaged the drum sander. Thereupon the president directed that Wiezycki be transferred to another job. - There is no evidence that this order was discriminatorily motivated. To be noted is that he did not direct that Wiezycki be discharged or that he be given a SAGINAW FURNITURE SHOPS, INC . 599 last warning. I find on the entire record that these ideas were Stalker's. Stalker found a job for Wiezycki in the veneer department and arranged with its foreman to have Wiezycki report to work there the following day. Stalker testified this was the only job then available. Wiezycki had previously asked to work in that depart- ment, once while his wife worked there for a few days. In informing Wiezycki of his transfer, Stalker also gave Wiezycki a verbal last warning and he did so in the presence of Wiezycki's old foreman, Szott, and also his new foreman, Gilroy Gosler. In their presence Stalker read from a type- written paper a list of things Wiezycki had done wrong during the course of his employment-including doing sloppy work , being careless, talking to people around his work area, damaging the drum sander, lacking responsibility toward his superiors, and spending too much time on his break periods. To be noted is that several of these alleged shortcomings had obviously been nurtured by the mission Wiezycki was constantly performing for Stalker over a period of months-shortcomings such as talking, too long break periods, and lack of responsibility toward supervisors. Stalker testified that Wiezycki "never said a thing all through the meeting . He just sat there and grinned ...:. It must have been as clear to Wiezycki at that time as it is to me now upon careful study of the record that Stalker was laying the trap to penalize Wiezycki for conduct Stalker, himself, had in part caused. By the following morning Wiezycki was not grinning. The following morning, Friday, June 21, Wiezycki reported for work in the veneer department, which was in the basement . It was hot and stuffy, a wet, damp hotness. His actions that day reveal that he was obviously upset at his transfer and his suddenly finding himself in this stuffy hot room. The foreman moved the hot pressman onto the cold press and assigned Wiezycki to the hot press. His job was to push the pans out of the hot press with a steel rod capped with brass. Very shortly after he started he told the old hot pressman, who was teaching him the operation, that he did not like the job and that he would not last very long on it. After he had been on the job about an hour, Wiezycki asked and received from the foreman a pass to go to first paid. Wiezycki credibly testified that he felt sick and dizzy and that his heart was beating too fast, and that in substance 'he told the nurse this . Instead of attempting to minister to his needs or even to learn what they were, the nurse (whose first-aid room was right across from Stalker's office and who kept various records for Stalker including the atttendance and absentee records) went immediately to Stalker's office and reported to Stalker that, accord- ing to Stalker, Wiezycki "claimed he couldn't work downstairs." Stalker had Wiezycki sent in where he was confronted by Stalker and the foreman of the veneer room. Wiezycki told them, according to Wiezycki's credited testimony, that he felt sick and dizzy. Stalker told him he was not sick and that he had refused to work. Wiezycki said that he had not refused to work, that he was sick and had come up to see the nurse, not Stalker. The foreman and Stalker both testified that Wiezycki asked Gosler to feel his heart beat. Yet Stalker incredibly testified that Wiezycki did not say anything about being sick but stated only that he could not work down there in the veneer room. Wiezycki complained it was hot in the veneer room and at Stalker's request the foreman left and returned with the report that the thermometer where Wiezycki was working indicated the temperature was 76 degrees. The interview ended by Stalker's saying he would make an appoint- ment for Wiezycki with a doctor. Wiezycki agreed with this idea. It is incon- ceivable to me that Stalker would have decided to refer Wiezycki to a doctor if the matter of Wiezycki's state of health had not been a subject of the discussion and if Stalker had not had a real doubt about this state of health. To be noted is that though Stalker testified that several times Wiezycki said, "I can't work down there," Stalker did not testify that Wiezycki said, "I will not work down there " Upon the above evidence and the entire record considered as a whole, I believe and find that Wiezycki did not refuse to do the work in the veneer room and that Stalker seized upon the incident as an opportunity to get rid of Wiezycki on the pretext of refusal to work, insubordination. While Foreman Gosler was out getting the temperature reading Wiezycki asked 'Stalker how it felt to have someone do something contrary to the way Stalker wanted it done around there. Wiezycki also told Stalker he had a lot of surprises coming in the next few months and that Wiezycki hoped Stalker got what he deserved. In view of Wiezycki's past intimate relationship with Stalker I do not find that the ex- pression of these sentiments by Wiezycki amounted to insubordination. After he left the plant that Friday, June 21, Wiezycki was examined by his own doctor, who wanted to admit him to a hospital. When Wiezycki tried to be admitted -the following day, June 22, as an employee of Respondent under the Company's 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hospitalization plan, he was turned away on the ground that Stalker had informed the hospital that he was no longer employed by the :Company and was therefore no longer covered by, the insurance plan. In his June 21 exit interview Stalker told Wiezycki to punch out and to call back later that morning to learn the hour of his appointment with the company doctor. Wiezycki did- not call back until that afternoon, when Stalker was out. When •Wiezycki reached Stalker by telephone later that day Stalker told him that he had not called back as he was supposed to and that Stalker would write him when his- appointment with the Company's doctor was to be. When Wiezycki asked what has status was Stalker replied that he was fired. I conclude and find that Wiezycki was discharged on June 21. On Saturday, Stalker sent Wiezycki a letter telling him he had an appointment with the Company's doctor Monday, June 24, at 2:15 p.m. Wiezycki did not receive this until after the appointed time. He promptly called Stalker who made an im- mediate appointment with the doctor and Wiezycki was examined by the doctor the following day. Immediately, after being examined by the doctor, Wiezycki tele- phoned Stalker and asked him again what his status was. Stalker replied that as- far as he was concerned Wiezycki was fired; that he had refused to work; that Stalker was going to write the Company's lawyers in Chicago. Stalker's Saturday letter stated that the company doctor, Dr. Markey, " can see- no reason why working on this job would be likely to cause you physical injury Unless 'it is found that your refusal to perform the veneer room work assigned to you was justified on the basis of your physical condition as you claim, your refusal to work on that job, taken together with your abusive and threatening conduct towards me thereafter on that same morning, is the last straw, and you may consider yourself discharged as of June 24, 1963." The report of Dr. Markey, dated June 26 and addressed to Stalker, after stating- the results of his examination, concluded: _ After examining this patient and talking to him, - it is my opinion he is physically qualified to do the job that was asked. In fact; to some extent, I feel it might help his weight problem. On the same date Dr. Markey sent a letter to Respondent's attorney in Chicago- -stating: • Please be advised that I examined Mr. Wiezycki 6/26/63 at the request of Saginaw Furniture Shops, Inc. After physical examination and interview, it is , my opinion this man is capable of doing the job assigned to him even though he has some elevation in blood pressure and has a marked problem of overweight,, My opinion is not only based on the fact of the physical 'examination and, the age of this man (26) but also because I, personally, have toured the plant and have an idea of what the job consists of. _ Hoping this is the desired information, I am Wiezycki's attempt to report "sick" to the, nurse which was rapidly converted by Stalker into a "refusal to work," occurred on Friday, early in the morning. Not until Tuesday, June 25, the fourth.day after Friday, was Wiezycki examined by the Company's doctor. Dr. Markey's report was silent as to any temporary indisposi- tion that may or might have beset Wiezycki on the previous Friday morning. It ap- peared to assume that if he was able to perform the work on Tuesday he was also, able to perform it the previous Friday morning. In short, it completely ignored the situation as Wiezycki had claimed it to be Friday morning and as I find it to have been; namely, that at that hour Wiezycki was physically and emotionally and psy- chologically indisposed. On July 1, 1963, Stalker wrote Wiezycki: ... Dr. Markey states that based upon his ... examination of you and his' knowledge of the Veneer room job to which you were recently assigned, you were and are capable of performing said job without in any way jeopardizing- your health. - Predicated upon said report your discharge from this Company as of June 24, 1963, will be permitted to stand. It is inconceivable on this record that had Stalker had this veneer room incident- involving Wiezycki to pass upon when Wiezycki was following Stalker's bidding in, union affairs, that Stalker would have interpreted Wiezycki's attitude that morning- as -refusal-to work. Rather he would have borne with Wiezycki, would have tried' to help him, would have given him time off to recover, and possibly would have tried SAGINAW FURNITURE SHOPS, INC. 601 to find him another assignment. Upon the entire record considered as a whole, I find that Stalker interpreted Wiezycki's behavior as a refusal to work and discharged him for this alleged refusal in reprisal against Wiezycki because -Wiezycki had changed allegiance from Local 1 to District 50, because Stalker was aware this switch would be costly to Stalker's efforts to oust District 50 and get Local 1 back in, and in order to discourage further membership in and activity on behalf of Dis- trict 50; Respondent thereby further violating Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take. certain af- firmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki because of their actual or suspected union activities, and not having offered them reinstatement, I recommend that Respondent offer to these four employees immediate and full reinstatement to their former or substan- tially equivalent positions,4 without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge (February 27, 1963, in the case of Ecker; March 14, 1963, in the case of Burnell; April 26, 1963, in the case of Nieman; and June 21, 1963, in the case of Wiezycki), the date of the discrimination against him to the date when, pursuant to the Recom- mended Order herein, Respondent shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said back- pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of Respond- ent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make-available to the Board, on request, payroll and other records in order to facilitate the checking of the amount of backpay due. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices proscribed by the Act and the danger of their commis- sion in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order therefore to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and there- by minimize industrial strife which burdens and obstructs commerce and thus ef- fectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Sec- tion 7 of the Act. AThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. During the period Wiezycki was executing Stalker 's instructions concern- ing union matters he worked in the. stock department. In the finishing department,.on several machines in the machine sanding department ; he passed a physical test prescribed by the Motor Carrier Safety Regulations of the Interstate Commerce Commission to be- come a truckdriver for the 'Company and Stalker encouraged him to hope that he would become such . After this period he was assigned to making belts in the machine sanding department. As Stalker was an incredible witness on most other matters I do not credit his testimony that at the time Wiezycki was transferred to the veneer room that was the only job open in a plant employing 325 employees, even though 'there is no testimony as to what other jobs may have been then available. In view of Wiezycki's employment his- tory, and as he worked in the veneer room an hour or less, I find on the, entire record that his "former or substantially equivalent position" consists of any work in the plant the is capable of performing in any department , Including the stock department , finishing department, machine sanding department, truckdriving, shipping department, and veneer room, but not confined to those departments. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Saginaw Furniture Shops, Inc., of Saginaw, Michigan , is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. •2. District 50, United Mine Workers of America , Ind., is a labor organization within the meaning of Section 2(5) of the Act. Saginaw Woodworkers Federation, Local 1 , Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. By directing employees to spy and inform upon the union meetings, member- ship, sympathy, and activities of other employees; by interrogating employees con- cerning their and other employees' union membership, sympathy, and activities; in causing and directing employees to assist one union over another in the plant; by di- recting an employee to try to trap the employee president of a local of District 50 into a rule violation in order to have a pretext to discharge him; by instructing em- ployees to spread the rumor around Saginaw that if District 50 remained the bar- gaining agent Respondent would lock up or move the plant ; by instructing employees to spread other rumors in the plant; by informing an employee he was being trans- ferred to another department to assist one union over another ; by directing an em- ployee to testify falsely before a Board agent; by promises of benefit in return for assisting Respondent to oust one union and get another union in; by threatening to discharge employees in favor of District 50; by directing employees to assist Local. I by getting Local 1 cards signed ; by composing language for a petition to retrieve dues paid to District 50; and by other acts; Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Joline Ecker, Robert Burnell , Clarence Nieman, and Jerome Wiezycki , thereby discourag- ing membership in District 50, United Mine Workers of America , Ind., thereby encouraging membership in Saginaw Woodworkers Federation , Local 1, Ind., Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and ( 1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case considered as a whole, I recommend that the Respondent, Saginaw Furniture Shops, Inc., Saginaw, Michigan, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in District 50, United Mine Workers of America, Ind., or encouraging membership in Saginaw Woodworkers Federation, Local 1, Ind.. or discouraging or encouraging membership in any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) Directing employees to spy and inform upon the union meetings , member- ship, sympathy, and activities of other employees ; interrogating employees concern- ing their and other employees' union membership, sympathy, and activities ; causing and directing employees to assist one union over another in the plant ; directing an employee to .try to trap the employee president of a union into a rule violation in order to have a pretext to discharge him; instructing employees to spread rumors around the plant and Saginaw that the Company would lock up or move the plant if District 50 remained the bargaining agent; informing employees they are being ,transferred to other departments to assist one union over another ; directing em- ployees to testify falsely before Board agents; making promises of benefit to em- ployees in return for employees' assisting Respondent to oust one union and get another union in; threatening to discharge employees in favor of District 50; direct- ing employees to assist Local 1 by getting Local 1 cards signed ; and composing language for a petition to retrieve dues paid to District 50. ' (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, Ind., or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring , SAGINAW FURNITURE SHOPS, INC. 603 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 Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer reinstatement to Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki in accordance with the recommendations set forth in the section entitled "The Remedy." (b) Make whole Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendation set forth in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki, under the terms of this Recommended Order. (d) Post at its plant in Saginaw, Michigan, copies of the attached notice marked' "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Board's Seventh Region (Detroit, Michigan), shall, after being signed by the representative of , Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to all employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.6 6 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 Decision and Order." e In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Uegional 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 direct employees to spy and inform upon the union meetings, membership, sympathy, or activities of other employees. WE WILL NOT unlawfully interrogate employees concerning their and other employees' union membership, sympathy, and activities. WE WILL NOT cause and direct employees to assist one union over another union in the plant. WE WILL NOT direct an employee to try to trap the president of a local of District 50 into a rule violation in order to have a pretext to discharge him. WE WILL NOT instruct employees to spread rumors around Saginaw and in the plant that if District 50 i emains the bargaining agent Respondent will lock up or move the plant. WE WILL NOT inform employees they are being transferred to another depart- ment to assist one union over another. WE WILL NOT direct employees to testify falsely before agents of the National Labor Relations Board. I WE WILL NOT promise benefits to employees in return for their assisting us to oust District 5,0 from the plant and get another union in. WE WILL NOT threaten to discharge employees who are in favor of District 50. WE WILL NOT direct employees to assist any labor organization by getting that labor organization's cards signed. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT compose language for a petition for employees to get back dues paid to District 50. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor or- ganizations, to join District 50, United Mine Workers of America, Ind., or any Other labor organization, to bargain collectively through representatives of their own choosing, and 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, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer to Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, in accordance with the Recommended Order of the Trial Examiner's Decision. WE WILL make whole Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki for any loss of pay suffered by them by reason of the dis- crimination practiced against them, in accordance with the Recommended Order of the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of Dis- trict 50, United Mine Workers of America, Ind. SAGINAW FURNITURE SHOPS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees, Joline Ecker, Robert Burnell, Clarence Nieman, and Jerome Wiezycki, if any of them are presently serv- ing in the Armed Forces of the United States, of their 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. This notice must remain posted for 60 cons@cutive 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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3230, if they have any questions concerning this notice or if they have information that its provisions are being violated. Fleetwood Trailer Company of Idaho, Inc. and United Steel- workers of America, AFL-CIO. Case No. 19-CA-1729. A pril 2, 1964 SUPPLEMENTAL DECISION AND ORDER I On December 20, 1963, Trial Examiner William E. Spencer issued his attached Decision, on remand, in the above-entitled proceeding. The Trial Examiner found that it would not effectuate the policies of the Act to order reinstatement of employee Linvel D. Moffis, or back- pay for the period on and after March 27, 1959.2 Thereafter, the I The Board's original Decision and Order is reported at 126 NLRB 631. 2 In accordance with the apparent intent of the Court's decision remanding the case to the Board. Respondent was served with a notice of hearing and backpay specification to which it duly filed answer. 146 NLRB No. 76.