Consolidated Welding & Engineering Co.

CONSOLIDATED WELDING & ENGINEERING COMPANY 739 since, in such case, the original voluntary execution of the clause was entirely lawful.4 Because the clause herein was lawfully entered into, neither the statutory language nor its policy requires the conclusion that a reaffirmation of such clause is unlawful under Section 8 (e) and 8(b) (4) (A).5 We accordingly find that, by picketing to enforce the disputed clause, the Respondents violated Section 8(b) (4) (i) and (ii) (B) but did not also violate subsection (A) thereof. ORDER IT IS HEREBY ORDERED that the Decision and Order in this case be, and it hereby is, amended in the following manner : (1) Delete Conclusion of Law No. 3 and renumber the other con- clusions of law accordingly. (2) Add at the end of Conclusions of Law the following paragraph : 5. The Respondents have not committed unfair labor practices under Section 8 (b) (4) (i) and (ii) (A) of the Act. (3) Delete the following language from paragraph 1 of the Order: (1) to force or require K. J. Swisher to enter into, enforce, abide by, or reaffirm, any agreement which is prohibited by Section 8(e) or (2). (4) Delete the following language from the notice in the paragraph beginning with "WE WILL NOT" : (1) to force or require said K. J. Swisher to enter into any agreement which is prohibited by Section 8(e), or to force or require said K. J. Swisher to enforce, abide by, or reaffirm such agreement, or (2). ' See also the language of the Court of Appeals for the District of Columbia which, in enforcing the Board 's order in Hiilbro, said : "To seek to give it [the hot-cargo clause] life is-in substance to seek to have it agreed to, which is no different in substance from seeking to have it entered into." Thus, the court's opinion also proceeded from the fact that the original entering into was unlawful This reasoning is therefore inapplicable where, as here, the parties lawfully agreed to the clause in the first place. 6lnternational Union of Operating Enganeers, Local No. 12, AFL-CIO ( B. R. Schedell Contractor, Inc.), 145 NLRB 351. Consolidated Welding & Engineering Company and Inter- national Union, United Automobile, Aerospace, and Agricul- tural Implement Workers of America, AFL-CIO. Case No. 13-CA-5386. April 10, 1964 DECISION AND- ORDER On August 12, 1963, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding 146 NLRB No. 92. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent had engaged in and was engaging -in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,' the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following addition. Respondent excepts to various findings of the Trial Examiner on the ground that he credited testimony of employees Whittaker and Edward White rather than the contrary testimony of Foreman Talaber. It is the Board's well-established policy to attach great weight to a Trial Examiner's credibility findings to the extent that they are based on demeanor evidence.2 This policy is rooted in the fact that the Trial Examiner, but not the Board, has the opportunity of observing witnesses as they testify. In his report, the Trial Exam- iner stated that his findings of fact are based on the entire record in the case; including his observation of the witnesses, and that he has "in some instances credited in part and rejected in part- testimony of some witnesses." While, in the circumstances of this case, it might have been better practice for him to have explained in each instance of conflict, rather than by means of such blanket resolution, why he credited one witness over another, we find no prejudicial error in his mode of treatment. It is apparent from his report that he did consider the various factors urged by Respondent as to why White and Whittaker should not be credited, including White's "vacillation on cross examination" at one point and the "poor impression" Whit- taker made on the witness stand. He nevertheless found that they testified credibly. While these findings indicate that he placed little reliance on Whittaker's demeanor while testifying, the fact remains that his failure to credit Talaber is based in part on his observation of both Talaber and Edward White. As the preponderance of the evidence does not convince us that he erred in failing to credit Talaber, and in crediting Edward White and Whittaker, we accept his credi- bility resolutions. 1 Respondent's request for permission for oral argument before the Board 1s denied as, in our opinion , the entire record, including the Intermediate Report, the exceptions, and briefs, adequately present the issues and the positions of the parties. 2 Standard Dry Watt Products, Inc., 91 NLRB 544, 545. CONSOLIDATED WELDING & ENGINEERING COMPANY 741 We adopt the Trial Examiner's findings that by the interrogations and statements of Foreman Talaber, Respondent violated Section 8(a) (1), and that Edward White was discharged because of his union activities in violation of Section 8(a) (3). These findings are based upon the credible testimony and upon permissible inferences drawn therefrom, and in our judgment are supported by the pre- ponderance of the evidence. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order with the amendment noted below 2i s The Recommended Order is hereby changed by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Consolidated Welding & Engineering Company, Its officers, agents, successors, and assigns, shall: INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case is before Trial Examiner James V. Constantine of the National Labor Relations Board upon an unfair labor practice complaint, issued on March 27, 1963, by the General Counsel of the Board , through the Regional Director for the Thirteenth Region (Chicago, Illinois ), against Consolidated Welding & Engineering Company. The complaint is based on a charge, filed on January 24, 1963, alleging violations of Section 8(a) (1) of the National Labor Relations Act. In substance the complaint alleges the commission of unfair labor practices, in violation of Section 8(a) (1) and (3 ) of the Act, which affect commerce as defined by Section 2(6) and (7) of said Act. Respondent has answered denying any wrongdoing under the Act. Pursuant to due notice, a hearing on the complaint was held at Chicago, Illinois, on May 21 and 22, 1963. All parties were represented at and participated in the hearing and had full opportunity to introduce evidence , examine and cross-examine witnesses , submit briefs , and offer oral argument . At the close of the hearing Re- spondent moved to dismiss, which motion was denied, and both Respondent and the General Counsel orally summed up. Briefs have been received from the Respondent and the General Counsel. Upon the entire record in the case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, is engaged at Chicago, Illinois, in the business of metal welding , fabricating, and manufacturing . During the year 1962 it pur- chased goods and materials valued in excess of $50,000 directly from points out- side the State of Illinois, and sold and shipped goods and materials valued in excess of $50,000 directly to States other than the State of Illinois . I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over the pending proceeding. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO, herein called the Union or UAW, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Many of the factual issues were vigorously and ably contested. Where dispute exists as to the facts, it has been resolved in accordance with my evaluation of the 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credibility of the witnesses and reasonable inferences drawn from the evidence. In determining credibility I have in some instances credited in part and rejected in part the testimony of some witnesses, but in general I have not set out evidence in connection with the appraisal of the testimony of witnesses . All evidence re- ceived at the hearing has been considered, and none has been overlooked , in arriving at the ensuing findings of fact and conclusions of law. Cf. Trumbull Asphalt Co. of Delaware V. N.L.R.B., 314 F. 2d 382, 383 (C.A. 7). A. The discharge of Edward P. White White was hired by Respondent as a welder in April 1959. Although at that time he was 19 years of age, having been born on April 6, 1940, he described his age as being 21, giving a birth date of May 6, 1938, on his application for employment. This falsification corresponded to that given to about three other employers for whom White had previously worked.' ° About August 1962, the UAW began organizing Respondent's plant by passing out leaflets and "cards" to employees. White, who received a card, filled it out and mailed it in to the UAW. Sometime thereafter the UAW mailed White an invitation to attend an organizational meeting scheduled for a Saturday in the first or second week in December 1962, at Wodniak's on Blue Island. White and many other employees of Respondent attended this meeting. On the Monday following this meeting White discussed the meeting with employees Whittaker and Farrell. At the time White was working on a stainless steel "sonar dome" which Respondent was manufacturing under a defense contract. Later that day or the following day (Tuesday), Foreman Talaber, whom I find to be an agent and supervisor under Section 2(11) of the Act,2 had a conversation with White. Talaber said that he knew from talking to Whittaker and Farrell that they had been at the UAW meeting the previous Saturday but did not learn that White also was present until Respondent's Vice President Verlin Leach told him that. Continuing, Talaber stated that Leach reported Whittaker, Farrell, White, and a colored employee were present at the meeting. When White denied that the "colored fellow" was there, Talaber replied that Leach "said he saw him there or saw a picture of him .. . because it looked just like him." White attended a second UAW organizational meeting at Wodniak's on the second Saturday of 1963. On the following Wednesday, January 16,3 Foreman Talaber spoke to White about 8:30 a.m. This time Talaber asked White "why we were fooling around with this union" and reminded White that the employees enjoyed a "good deal by working at Consolidated." White replied that he was "trying to fight for" higher wages and better insurance from the Company. After the two argued the merits and defects of Respondent's insurance benefits, Talaber wanted to know why White "was fooling around with" employees Whittaker and Hightower because, said Talaber, "they are both on their way out." About 10 a.m. of the same day Talaber again put this same question to White and also again asked White why he was "fooling around with the Union." White reiterated that he "didn't like the insurance and the pay." At this point Talaber received a telephone call, following which he told White to report to Personnel Director Johnsen's office. As soon as White entered the office. Johnsen asked to see White's draft registra- tion card because the "Draft Board" had written to Respondent inquiring if White was still working there. This inquiry, however, is dated June 11, 1962, and reads as follow: ARMED FORCES INDUCTION STATION 615 West Van Buren Street Chicago 7, Illinois 11 Jun 62 CHRMS-I EMPLOYMENT OFFICE CONSOLIDATED WELDING & ENGR. 2450 So. Ashland Ave. Chicago, 111. DEAR SIR: I am writing you with reference to Mr WHITE, Edward Patrick who was in your employ from April 1959 to present. 1 About August 1958, White had filled out another application for employment at Re- spondent's plant in which he stated that he was born on April 6, 1940. 9 Talaber testified that, among other things, he Is empowered to recommend hiring, firing, and Increases in pay. s After some vacillation on cross-examination , which I find does not affect White's credibility, he fixed the date of these conversations as January 16. CONSOLIDATED WELDING & ENGINEERING COMPANY 743 I would appreciate an evaluation from you regarding to character, efficiency and personal conduct of Mr. White while in your employ. This information is being requested in connection with Mr. White's induction in the Armed Forces, and your cooperation and assistance will be greated appreciated. A self-addressed envelope which requires no postage is enclosed for your convenience. Sincerely yours, (S) E. J. Burrow, E. J. BURROW, CAPT, ARTY White complied with Johnsen's request by showing his draft card to Johnsen. When Johnsen asked if April 6, 1940, was White's correct birth date, White replied that it was. Thereupon Johnsen showed White the foregoing written inquiry and the Company's reply thereto, dated June 18, 1962, reading as follows: Jul 18, 1962. ARMED FORCES INDUCTION STATION, 615 West Van Buren Street, Chicago 7, Illinois Attention: Capt. E. 1. Burrow GENTLEMEN: This will acknowledge receipt of your inquiry dated June 11 relative to our employee, Mr. Edward P. White. Kindly be advised that this subject has been steadily employed by us since March 30, 1959, in the capacity of a Welder. During the tenure of his employment we have found Mr. White to be a most capable and reliable employee with character and personal conduct above reproach. Trusting this will supply you with the necessary information, we remain, Very truly yours, CONSOLIDATED WELDING AND ENGINEERING COMPANY, [Initialed] T. W. J. THEODORE W. JOHNSEN, Personnel and Safety Director. TWJ/cm Johnsen then thanked White and the latter returned to his work. When Talaber professed not to know the reason for White's visit to Johnsen, White told him. Then Talaber said that if White ever decided to join the Army he should inform Talaber so that Talaber could fire him. Later, about 1:30 p.m. on January 16, 1963, Talaber directed White to revisit Johnsen. As White entered the personnel office Johnsen told him that White was fired for falsifying his age on his application form. In a few moments White collected his tool checks at his bench and turned them over to Johnsen. Then Johnsen expressed regret that he had to discharge White but insisted that Vice President Leach had demanded this action because company policy required it. While White was employed by Respondent he correctly gave his age on his birthday in 1960 as 20 and on his birthday in 1961 as 21 to a group at the plant, including Foreman Talaber. During his employment White was granted eight merit increases, so that when he received the last one his wages were $2.70 an hour, which was top pay for a welder. At the time of his discharge White was working on Government missile carriers and had been since October 1962. After his discharge White sought employment with Danley Machine Specialties, Inc. Upon inquiring of Respondent by Danley as to the "ability" and "efficiency" of White and the "reason for [his] leaving," Respondent replied that White's ability and efficiency were "good," that he was "terminated," and that he would not be reemployed. On January 17, 1963, White registered for unemployment compensation benefits. The employee at the agency who interviewed White asked him why he was fired. White replied, "Because I falsified my application." 4 ' Respondent argues that this constitutes an admission by White that he was discharged for cause. I do not find that this amounts to an admission . Rather, I find that White merely repeated what had been conveyed to him by his employer as the reason for his discharge, and that he did not thereby admit the truth of the employer's assertion. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White's brother, John, also is employed by Respondent , and has been beginning about August 1, 1960, as a general factory worker. Although John signed a UAW card and mailed it in sometime in September 1962, he did not attend any UAW meetings. On January 16, 1963, Personnel Director Johnsen had John report to his office. Johnsen asked for the number on John's draft card so that it could be noted on John's "application." But John did not have his card with him. The next day John brought his card to Johnsen and gave the number thereon to Johnsen. The latter in turn wrote it on John 's employment application form . John then returned to work. Later in the day of January 17, John was again called to Johnsen's office, at which time he was asked for his birth date. John displayed his draft card showing a birth date of June 15, 1941. Johnsen then called John's attention to a variance therefrom on the employment application form where the date filled in by John was June 15, 1940. John explained that the earlier date was "a mistake," and that he immediately notified Leo Letz (Respondent's assistant personnel manager at the time) of the mistake ,5 and offered the correct date as he handed the completed form to Letz, that Letz said it would not matter because the birth date was not important, and that "it would look better on the insurance ." Johnsen responded that such falsification was a very serious matter and that he would "check it out." About January 18, 1963, Johnsen again invited John to his office, informing John that the matter had been discussed by Johnsen with Letz and "they were taking the case under advisement." John has not since heard from Respondent. Respondent contends, and adduced testimony, that White was discharged because he falsified his age on his written employment application, and that such mis- representation is "one of the most serious offenses that a man can commit in our employ" because, as testified by Vice President Leach, "integrity [is] an essential consideration with respect to the type of people" Respondent employs. Leach also testified that Respondent's policy is to discharge those who misstate their age. Leach explained that integrity is very important because, since Respondent is engaged principally on defense contracts in connection with ships and submarines, "the lives of people on these ships are usually at stake if this equipment [manufactured by Respondent] is not working . . . it is impossible for us to see every weld that goes into a product of this kind . . . . Therefore, this type of item gets very important that the man performing it performs it as he is instructed and follows the procedures and the drawings " Since it is impossible "to put an inspector with each worker," Leach testified, "we have to depend upon his integrity in everything he is doing." In this connection, Respondent's evidence further shows that on January 16, 1963, it was about to enter into performance of two new Government defense contracts, and that, in preparing for production thereunder, the personnel department was directed by Leach to screen employees to ascertain "the men that can be moved into the new contract," that an important factor is "continuity of employment," that potential draftees are vulnerable to being withdrawn from employment, and that, therefore, occasion arose to inquire into White's draft status. However, Leach also testified that one of the contracts was obtained about a year previously, that by at least August 1962 Respondent was working on the prototype involved there- under. and that it knew in August 1962 that it was "going to have the work." Re- spondent's evidence also shows that White was performing work on one of these contracts since October 1962. Respondent also contends, and offered evidence to show, that it has a policy "to refrain from hiring" persons under 20 because it was requested, but not demanded, by the Company with which it carries workmen's compensation insurance. Respondent further contends, and offered evidence thereon, that in screening employees for these new contracts White's file was encountered, that examination of such file made it evident that he was subject to induction in the Armed Forces, that as a result Personnel Director Johnsen communicated with the induction station and White's local draft board.6 and that thereafter Johnsen called White to his office and requested to see his draft card. 5 John used June 15, 1940, as his birth date in written application forms submitted to a prior employer. O Defendant also contends that it learned in the talk with the draft board that a dis- crepancy existed between White's actual birth date and that given on his employment application, but the credible evidence fails to sustain this argument. CONSOLIDATED WELDING & ENGINEERING COMPANY 745 Concluding Findings as to the Discharge of White Although Respondent strenuously insists that White was discharged because he falsified his age on his application for employment,? I reject this explanation and find that he was not fired for this reason. I am not bound to accept the ground put forward by Respondent. N.L.R.B. v. Texas Bolt Company, 313 F. 2d 761, 763 (C.A. 5). This of course does no more than erase a defense; but rejection of a defense is insufficient in itself to establish a discriminatory motive for the discharge.8 The burden of proof that White was illegally discharged still remains on the General Counsel, and be must sustain this segment of the complaint by more than a showing that the defense has failed. "At all times, the burden of proving discrimination is that of the General Counsel." Rubin Bros., Footwear, Inc., et al., 99 NLRB 610, 611. Moreover, the fact that White was a union member and engaged in union activity does not ipso facto insulate him against discharge for cause. An employer's conduct is not unlawful merely because it results in the termination of a union adherent. Pioneer Photo Engraving, Inc., 142 NLRB 1099. On the other hand I find that the real reason for White's discharge is his union membership and activity, and that the asserted reason of falsification is a pretext seized upon to conceal Respondent's discriminatory motivations These findings are based on the entire record and the following factors, all of which I find as facts: 1. Respondent was aware of, and its "records show" (see p. 119 of the transcript), union activity at its plant at least by October 29, 1962. In fact Vice President Leach and Personnel Director Johnsen discussed this union activity among themselves. 2. Respondent's Vice President Leach and Foreman Talaber knew that White was a member of UAW and engaged in union activity. 3. Although Respondent stresses integrity as an essential ingredient in defense work, nothing in the record compels or even suggests the conclusion that White failed to meet Respondent's tests of integrity. I deduce from the testimony that by integrity Respondent means either (a) competence in performing a job, or (b) loyalty 10 to the United States by not covering up or palming off defective work,ll or both. But I find that White was quite competent, for he not only was retained for about 4 years and received eight merit increases (having reached the highest pay for a welder) during that time, but Respondent also twice 12 categorically referred to him as an able and fit employee. Nor does the evidence show disloyalty to the United States defense effort.13 Accordingly, I find that Respondent's defense of lack of integrity by White is not well taken. I further find that if White did lack integrity, Respondent overlooked or condoned it on and after June 18, 1962, when it wrote to the Armed Forces induction station. 4 Respondent also insists that such falsification constitutes statutory cause for a dis- charge under Section 10(c) of the Act, and cites numerous authorities to that effect. While I recognize the validity of this argument it nevprthelesq does not become operative in view of the findings herein that White was not discharged for this reason. 8 Citation of authority is hardly necessary for the proposition that failure to establish a defense does not per 8e establish the cause of action defended against. In fact, "it is unnecessary for an employer to justify the discharge of an employee so long as the dis- charge is not for union activity." N.L.R B. v. Texas Bolt Company, 313 F. 2d 761, 763 (C.A 5). 8 Clodnmiro Isolino doing business under the trade name and style of Ravens Sportswear, 142 NLRB 1299 - 30 Respondent has insisted that the lives of the members of the Armed Forces using its equipment depended upon a proper execution of the work involved n Thus Respondent's testimony disclosed that the Company could not assign an inspector to each production employee. 22 In June 1962, Respondent notified the Armed Forces induction station that White was "a most capable and reliable employee"; and in February 1963, Respondent wrote Danley Machine that White's ability and efficiency were "good " 13 In fact Respondent wrote to the Armed Forces induction station in June 1962, 3 years after White became an employee, that White's "character and personal conduct [are] above reproach." While Respondent may not have known of the falsified application at this time, it could have easily ascertained White's age and thus discovered the falsifica- tion before writing to the Armed Forces induction station. Indeed Respondent claims it took this course of ascertaining his age in January 1963, when it screened White's record preparatory to assigning him to the new defense contracts. Hence, I find that the June 1962 letter to the Armed Forces induction station is deserving of great weight on the issue of integrity. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent's asserted policy against hiring persons under 21, except as trainees, has not been established, so that I find on the record before me no such policy existed. Not only did Respondent hire White's brother John, knowing John to be under 20, but it also hired a colored boy at age 19 . This conclusion is not weakened by the fact that John confessed a "mistake" as to his age given on his application; the fact is that John was hired at age 19, when Respondent knew that John was 19. More- over, I credit John's testimony that Assistant Personnel Manager Letz told John that Respondent did not consider age too important. Finally, on this branch of the case, I find that Respondent generally sought to hire persons 20 or over solely because its workmen's compensation insurance carrier desired this, and that no independent inflexible policy of Respondent materially contributed to or coincided with the desire to accommodate the insurance company. 5. If, as Respondent contends, prior to performing defense contracts it screened employees by calling the Armed Forces induction center, then it would be reasonable to assume that (a) this practice was followed in the past as part of the regular course of business, and (b) such procedure was resorted to in January 1963, when White's record was screened. But no evidence is in the record that employees had been screened in the past 14 or that anyone other than White was screened in January 1963. Even White's brother John was not screened in January 1963 by calling the draft board, although Respondent had knowledge that John was subject to the draft. 6. White was not immediately discharged for falsification. Nor was he im- mediately asked for his correct age on June 16. In fact, after it was brought to light that White's birth date on his application did not tally with that on his draft card, nothing was done about it until several hours later. During that time the matter was discussed by Johnsen and Leach without giving White an opportunity to defend himself, contrary to the procedure whereby White's brother was allowed to explain his misstatement. Yet if this falsity was important, White would immediately at least have been told that a company policy regarding falsity existed and that his infraction thereof warranted his discharge; but nothing was said to that effect at the time. 7. The timing and manner of White's discharge are relevant "in assessing the legal- ity of Respondent's conduct." Arkansas-Louisiana Gas Company, 142 NLRB 1083. As to timing, I find that White was discharged (a) 2 days after Respondent learned that he had again attended a UAW meeting and again was warned by Foreman Talaber not to fool around with the UAW, and (b) on the same day that White reiterated his distaste for Respondent's insurance program and dissatisfaction with wages, and notified Foreman Talaber that he, White, expected the UAW to seek an improvement thereon. As to manner, it is significant that (a) White was not told on January 16, 1963, that he had been screened and that in such process his true age was discovered; but, rather, he was abruptly asked to display his draft card because the draft board had inquired about him; (b) the fact is that the draft board did not at any time so inquire but rather, the Armed Forces induction station had inquired and such inquiry was received in June 1962; (c) White's foreman did not even know why White was called to the front office on January 16, 1963, and (d) White's fore- man was not consulted by the front office as to whether White lacked integrity or whether he had any information bearing upon White's integrity. 8. Respondent displayed a union animus, which proximately and substantially 15 prompted White's discharge. Nor is it a defense, as Respondent urges, that such animus did not taint White's discharge because other employees engaging in union activity were not also discriminated against. Clodomiro Isolino doing business under the trade name and style of Ravena Sportswear, 142 NLRB 1299. 14 If this actually had been done, then it is difficult to understand why White's correct age was not at that time discovered since, as Respondent contends, an employee' s age is checked as a step in the screening. Moreover, It Is manifest that if Respondent screened employees in the past by calling the Armed Forces induction center to ascertain an em- ployee's age, it would have learned that this was the wrong place for such information and that the proper agency having such information was the draft board. Yet Personnel Director Johnsen testified that In screening White's record he, Johnsen, first telephoned the Armed Forces induction station, that they referred him to the draft board, and that he then called that board for White's draft status. (See p. 142 of transcript ) 16 The existence of a lawful ground (i.e., falsification) for discharge doe`s not destroy this conclusion, for the discriminatory motive need not be the only reason accounting for the discharge. It is sufficient that a union activity be a substantial reason behind the dis- charge. N.L.R.B. v. C. J Camp, Inc., et al. d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113 (C.A. 5). CONSOLIDATED WELDING & ENGINEERING COMPANY 747 9. White was assigned to work on one of the new defense contracts in October 1962, without being screened . While it is true that Respondent's evidence discloses that only prototypes under this contract were being manufactured then and produc- tion was not scheduled to start until January 1963 , it is nevertheless also true that if integrity was as important as Respondent asserts, White would have been screened in October 1962, prior to being assigned to work on prototypes . I place some reliance upon the fact that White was assigned to the identical job in October 1962, without being screened, as the job for which he was supposedly screened in January 1963. B. Interference, restraint, and coercion Employee Bernard Whittaker , who had signed a UAW card, attended the UAW meetings in Blue Island . During a conversation on the Monday following a UAW meeting in early December 1962, Foreman Talaber asked Whittaker for the names of those who attended . Whittaker mentioned some names but not that of Edward White. In this talk Talaber told Whittaker that Vice President Leach knew everyone who had attended UAW meetings , that Leach had a list thereof, and that the names of Whittaker, Hall, and Ed White were on that list . Continuing, Talaber remarked that "this would be a good place to work if you guys wouldn't monkey around with this U.A.W. or any other union." On another occasion Talaber told Whittaker that "the only way you can square yourself with the company is to drop out of the Union and quit going to these union meetings." Following a UAW meeting held in the second week of December 1962 , Talaber told Whittaker that he heard that Whittaker had been made "assistant chairman of the union," to which Whittaker replied that he was not the only one who had been so honored . Talaber then observed that "these other guys" had dropped out the UAW and suggested that Whittaker do likewise "because you know what it means if things go slow, out the door you will go . we don't stand for any union in this factory at all." 16 Talaber also complained that "this place was a good place to work before you guys started monkeying around with the Union " and could not understand "why you guys go [to UAW meetings] because the company knows who was there and who wasn't." Concluding Findings as to Interference, Restraint, and Coercion Foreman Talaber's asking of Whittaker for the names of those attending a UAW organizational meeting , and Talaber's inquiries of Edward White as to why White was fooling around with the UAW, constitute interrogation about the union activities. Such interrogation I find is coercive since no necessity therefor in connection with a lawful objective is shown . Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399. In addition, I find the following utterances to amount to interference , restraint, and coercion as contemplated by Section 8(a) (1) of the Act: 1. Talaber's statements to Edward White and Whittaker that he and Vice President Leach knew who attended a UAW meeting in December 1962. 2. Talaber's warning Edward White not to fool around with the UAW. 3. Talaber's statements to Whittaker that (a) the Company would be a good place to work if the employees did not monkey around with a union , (b) Whittaker could square himself with the Company by dropping out of the UAW and not attending UAW meetings, (c) Whittaker would not be laid off in slack times if he did not belong to a union , and (d ) Respondent does not stand for any union at all in the factory. I find that all other statements made by Talaber to employees are protected by Section 8 (c) of the Act and, accordingly, are not forbidden by Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent found to be unfair labor practices in section III, above, occurring in connection with the operation of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 11 Whittaker also testified credibly that Talaber told him Vice President Leach knew the identity of all attending the UAW meetings and that Talaber "seemed to know" who was there also. Although Whittaker made a poor impression on the stand , I do not dis- credit him. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in specified unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The Recommended Order will require Respondent to offer Edward P. White full and immediate rein- statement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed by him, and to make him whole for any loss of earnings suffered. Such loss, if any, shall be compensated for by payment of a sum of money equal to that which White normally would have earned from the date of the discrimination against him to the date of Respondent's offer of reinstatement or actual reinstatement, as the case may be, less net earnings during the intervening period . The backpay , if any, shall be computed in accordance with the formula described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon ascertained in the manner designated in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent retain and make available to the Board or its agents , upon reasonable request, all pertinent records and data necessary to calculate the amount of backpay due. Upon the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aerospace, and Agricultural Imple- ment Workers of America, AFL-CIO, is a labor organization comprehended by Section 2(5) of the Act. 2. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2 ( 6) and (7) of the Act. 3. By (a ) coercively interrogating its employees concerning their and other employees' union membership , activities , and sympathies; (b) stating it knew which employees attended a UAW meeting ; (c) telling employees not to fool or monkey around with the UAW; (d) urging employees to withdraw their membership in and not attend meetings of UAW; ( e) warning employees it would not stand for a union; and (f) threatening to prefer nonunion employees when layoffs were neces- sitated by slack times , Respondent has engaged in and is engaging in conduct pro- scribed by Section 8(a) (1) of the Act. 4. By discriminating in regard to the tenure of employment of Edward P. White, thereby discouraging membership in a labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and, derivatively , Section 8 ( a)(1) of the Act. 5. The above-described unfair labor practices are unfair labor practices affecting commerce within the contemplation of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case , it is recommended that Respondent , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the UAW, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Coercively interrogating its employees concerning their or other employees' union membership , activities , and sympathies, or stating to employees it knows which employees attend union meetings. (c) Telling employees not to fool or monkey around with the UAW, or any other labor organization ; urging employees to withdraw their membership in and not to attend meetings of said UAW, or any other labor organization. (d) Warning employees it would not stand for a union and threatening to dis- criminate against union employees when layoffs are required by economic conditions. (e) In any like or related manner interfering with , restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organiza- tions, to join or assist UAW 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 and all such activities , except to the extent that such right may be affected by any agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. CONSOLIDATED WELDING & ENGINEERING COMPANY 749 2. Take the following action designed to effectuate the policies of the Act: (a) Offer Edward P. White immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered, with interest at the rate of 6 percent, by reason of Respondent's discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at it plant at Chicago , Illinois, copies of the attached notice marked "Appendix." 17 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by a duly authorized representative of Respondent , be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.ts It is further recommended that the complaint be dismissed in all other respects. It is finally recommended that unless Respondent shall within the prescribed period notify the said Regional Director that it will comply, the Board issue an order requiring Respondent to take the aforesaid action. 17 If this Recommended Order Is adopted by the hoard , 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 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." is If this Recommended Order Is 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT interrogate coercively our employees concerning their or other employees' union membership, activities, or sympathies ; nor will we state to employees that we know which employees attend union meetings. WE WILL NOT tell our employees not to fool around or monkey around with International Union, United Automobile, Aerospace, and Agricultural Imple- ment Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT urge our employees to withdraw their membership in, or to refrain from attending meetings of, the above-named UAW or any other labor organization. WE WILL NOT warn our employees that we will not stand for a union in the plant, and will not threaten to discriminatorily lay off union members when business is slack. WE WILL NOT discourage membership in the above-named UAW, or in any other labor organization, by discharging any of our employees because of their union activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition, of employment, as authorized in Section 8(a) (3) of the Act. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Edward P . White immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed , and we will make him whole for any loss of pay, plus interest at the rate of 6 percent per annum , which he may have suffered by reason of the discrimination against him. All our employees are free to become or remain , or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. CONSOLIDATED WELDING & ENGINEERING COMPANY, Employer. Dated---- --------------- By------------------------------------------- (Representative ) ( Title) 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 applica- tion 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 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Carlton Forge Works and International Brotherhood of Boiler- .makers, Iron Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO, Petitioner. Case No. 21-1RC-8665. April 10, 1964 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on November 27, 1963, under the direction and supervision of the Regional Director for the Twenty- first Region among the employees in the unit described below. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 70 eligible voters, 69 cast ballots, of which 26 were for, and 39 against, the Petitioner 'and 4 were chal- lenged. The challenges were insufficient in number to affect the re- sults. The Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and thereafter issued and served upon the parties the attached Report on Objections, in which he recommended that the objections be overruled and a certification of results of election issued. The Petitioner filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section .8 (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]. 146 NLRB No. 9'4.