Metals Engineering Corp.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metals Engineering Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO.' Case No. 10-CA-5378. August 3, 1964 DECISION AND ORDER On March 31, 1964, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Trial Examiner's Decision and the Respond- ent filed a brief in support of its exceptions. - Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Ex- aminer's Decision, the exceptions and brief, and the entire record in this case, and finds merit in certain exceptions of the Respondent and the General Counsel. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. We find merit in the General Counsel's assertion that the Trial Examiner was in error in disregarding-certain statements'allegedly violative of Section 8 (a) (1). Supervisor Harmon's statement to em- ployee Smith that he thought "the Austin Company would close the plant down and we would all be looking for a job" was intended to in- dicate, as the record shows, what would happen there if the union orga- nizational campaign were successful. What the Austin Company's relationship with Respondent was in fact is not decisive in determining the illegality of the statement. The positive assertion coming from a supervisor who had been employed by both Austin and Respondent 1 attained a certain authoritativeness and under the circumstances was coercive. We also agree that the statement by Supervisor Bowman to employee Luster, during lunch on ,June 18, 1963, that the plant would be closed if the Union were successful, did not constitute merely an expression of opinion as to the economic consequences of such suc- cess. Commingled as it was with other statements and interrogations 1 While the record does not reflect the relationship , if any, between the Austin Company and Respondent, Harmon's testimony was that he had at one time been employed by the Austin Company. 148 NLRB No. 14. METALS ENGINEERING CORPORATION 89 which the Trial Examiner found, and we have agreed, were violative of Section 8(a) (1), it formed part of a pattern. In such a setting it was clearly a threat of dire consequences in the event the. union organi- zational campaign should succeed. We conclude, therefore, that the above statements of Harmon and Bowman were violative of Section 8(a) (1). 2. Luster, an apprentice machinist, was active in organizational activity for the Union. During the lunch period, on June 18, Luster and another employee were engaged in conversation by Bowman. During the conversation Luster pulled from his pocket ,a memo from Vice President Benko to Luster's supervisor, Bradley, dated June 9,a and as he testified, inquired, "How would you like to be cursed like this in u memo every day?"' After lunch Bowman informed. Vice Presi- dent Benko that Luster was passing the memo around and that this was bad for morale and affecting production. Benko called in Brad- ley, Luster's supervisor, to ask if he was aware of Luster's action and directed Bradley to get the memo back. Luster refused to return it to Bradley saying he needed it for a later date when it would serve a better purpose. On being told of Luster's refusal, Benko told Bradley to bring Luster to the office. At first Luster refused to report to Benko because he did not "care to have any discussion with him [Benko] at this time," but agreed when told it was an order from Benko. Benko told Luster that he had been informed that Luster was showing the memo around and making derogatory remarks and that he wished the memo returned. Despite several requests Luster refused stating, "I think this will' do me better some place else." Finally, Luster refused again to surrender the memo despite Benko's warning that a continued refusal would result in discharge. There was no discussion or mention of union activities during this exchange. We agree with the Trial Examiner that the memo was innocuous but we cannot conclude from the record that the issue of its return was manufactured by Respondent to provide a pretext for the discharge of Luster for union activities. It was Luster, and not Respondent, who by his deliberate actions turned the memo into a major incident and a challenge to management's authority. As a result he created a situation where Respondent either had to discipline him or in effect acquiesce in his insubordination and concede Luster was free to use the memo for whatever disruptive purposes he wished. To find that 3 This was before Luster had engaged in any union activity The memo read, "The trailer storage area looks like hell . See that J . V. [Luster] cleans up and straightens up every day he is in there." 3 Luster's interpretation of the memo in question appears greatly exaggerated There was no evidence offered of other memos or written directions which would substantiate or discredit the accuracy of Luster's allegation. In fact, Luster testified that when he was given memos with directions he usually threw them away or stuffed them in his pockets. This one was retained at the suggestion of Union Organizer Richards who told him to "keep it in your pocket, hang onto it." 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent created the incident as a pretext for discharge ignores the fact that Luster had many opportunities to remove any such pretext by simply returning the memo. These facts do not reflect an employer intent to discharge for a pretextual reason. Against this clear and persistent evidence of insubordination there is only the evidence that Luster was involved in a union organizing campaign, about which he had been interrogated, to support a finding that his discharge was unlawfully motivated.4 We conclude that fact standing alone does not provide the preponderance of evidence neces- sary to support a conclusion that Luster was discharged for his union activities.' We will not indulge in such an inference where, as here, there is clear and direct evidence of insubordination and the dischargee was forewarned of the consequences of continued insubordination.6 His union activity did not confer immunity from discipline.' For the reasons stated we find that Luster's discharge was not violative of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Metals Engineering Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their union membership, activities, or desires in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. (b) Restraining or coercing its employees from joining the Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, by threatening the curtailment of work or the closing of its plant in the event of union organization of the plant. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage Although there was no direct evidence offered that Benko or Vice President Ramsey were aware of Luster's union activity, and Benko and Ramsey flatly denied any knowl- edge that Luster was involved in the union campaign, the Trial Examiner found that Supervisor Bowman in reporting the memo incident which precipitated Luster' s discharge, must have apprised Benko of Luster' s union role. Bowman testified to the contrary In view of our findings, we conclude that whether or not Benko had this knowledge is not determinative of the legality of Luster' s discharge. s Burlington Industries, Inc., et al., 144 NLRB 272; Roadway Empress, Inc, 145 NLRB 513. 6 Gale Products, Div. of Outboard Marine Corp, 142 NLRB 1246. 7 Clearwater Finishing Company, 108 NLRB 268; A. J. Sackett and, Sons Co., 139 NLRB 1272. METALS ENGINEERING CORPORATION 91 in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Post at its plant in Greeneville, Tennessee, copies of the attached notice marked, "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by the Company's representative, be posted by the Company immedi- ately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify said Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the portion of-the complaint alleging a violation of Section 8 (a) (3) of the Act be, and it hereby is, dismissed. 8 In the event that this Order is enforced by a decree - of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our employees concerning their membership, activities, or desires in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees that work will be curtailed or the plant will be closed if the above-mentioned Union or any other labor organization represents them. 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, join, or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 92, DECISIONS OF NATIONAL' LABOR RELATIONS BOARD All of our employees are free to become, remain, or to refrain from becoming, or remaining members of International Union of Elec- trical, Radio and Machine Workers, AFL-CIO, or any other labor organization. METALS ENGINEERING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 57th Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on June 21,• 1963, by International Union of Electrical, Radio and Machine Workers, AFL-CIO, hereinafter referred to as the Union, the General Counsel for the National Labor Relation Board, hereinafter referred to as the Board, issued a complaint on July 22, 1963 , against Metals Engineering Corporation, here- inafter referred to as the Respondent or the Company , alleging that the Respondent engaged in conduct violative of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice, a hearing was subsequently held on the complaint , as amended without objection at the hearing, in Greeneville , Tennessee, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross -examine witnesses, to introduce evidence pertinent to the issues , and to engage in argument. Timely briefs were subsequently filed by the General Counsel and the Respondent , the latter filing, in addition, proposed findings of fact and conclusions of law.' Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial , reliable evidence "con- sidered along with the consistency and inherent probability of testimony" ( Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent , a Tennessee corporation maintaining its office and principal place of business at Greeneville , Tennessee, is engaged in the manufacture , sale, and distribution of pressed metal parts and related items. During the past calendar year the Respondent sold and shipped in interstate commerce products valued in excess of $50,000 directly to customers located outside the State of Tennessee . The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio and Machine Workers , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 'The Respondent's proposed findings of fact and conclusions of law , as recited in Its brief, are granted only insofar as such findings and conclusions are consistent with those reached and set forth herein. METALS' ENGINEERING CORPORATION 93 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues 1. Whether, during the third week in June 1963, the Respondent , through several of its supervisors, interrogated and threatened its employees in violation of Section 8(a)(1) of the Act. 2. Whether, in discharging James V. Luster on June 18, 1963, the Respondent was discriminatorily motivated within the proscriptions of Section 8 (a) (3) of the Act. B. The facts - 1. 'Alleged Section 8(a)(1) conduct Record testimony discloses that, following initial union organizational activity among the Respondent's employees on Wednesday and Thursday , June 12 and 13, 1963,2 several of the Respondent's supervisors engaged in conversations with certain employees pertaining to union activity.3 Thus, employee Alton Banner testified that a few days before James Luster was discharged, which would place it on or about June 14, in a conversation at the tool crib, Supervisor Hugh Bowman told him that he wanted to talk to him about the Union, and that Bowman said that "he wanted to find out who was the head of it so that he could discourage them." When Banner asked Bowman his reason for wanting to discourage them, Bowman replied that it would make his job harder if we had a union due to the fact that if he had to reprimand an employee. that the Union would file a grievance against him ." Bowman denied any knowledge, of this conversation or having made this statement to Banner.4 _1 Alford Hall, a machinist who, with James Luster , had taken the lead in contacting the Union, testified that on June 17, Supervisor Joe Seaton asked him in his work area whether he knew that a union petition had been filed, and added that he (Seaton) had some inside information on it. Without making reply to Seaton 's question, "Hall asked Seaton what he meant, to which .Seaton replied that "if the Union went in, the Austin Company would close' the plant down." Seaton, confronted with Hall's testimony, testified that, although he did not recall having a conversation with Hall on June 17, he had at some time ventured his opinion , -possibly to Hall, that "Metals Engineering couldn't afford a union at this time," but that he did not state that the Austin Company would shut down Metals - Engineering. On cross- examination, in reply. to a question by counsel , for the General Counsel as to whether Seaton stated what the results would be, Seaton testified that "I think I stated that due to the added operations to the Company towards keeping a record of everybody when they were hired , how many days, how many hours they worked and stuff of that nature , and the extra ,load it would put on the supervision, I just didn't feel like the Company could afford it." 5 On June 18, according to the testimony of Hall ,' Hubert Bradley, his immediate supervisor, approached him at his work station and told him that he understood that someone had been passing out union cards and asked him whether he knew anything about it. Hall, who had in fact been one of the two employees identified on the record as having solicited employee signatures during the preceding week, replied, "I might know but I'm sure not going to tell anyone." • Bradley was not questioned on this matter, and, accordingly, Hall's testimony, stands unrefuted. James Luster, the alleged discriminatee , testified that approximately an hour be- fore his discharge on June 18 , which would place'it immediately prior to the lunch period, Bradley, while the two were engaged in work, told -'him that "some people will sell you out. And you trust people too much. From here "on out, you're on your own." Bradley, while not confronted with Luster 's specific testimony on 2 Unless otherwise specified , all dates refer to the year 1963. 3 The supervisory personnel allegedly involved are Hugh Bowman , plating supervisor; Hubert Bradley, toolroom supervisor ; Arthur Harmon, maintenance supervisor ; and 'Joe Seaton, quality control supervisor, each of whom I find to be a supervisor within the meaning of the Act. * Contrary to my impression of Bowman , whose testimony I credit only to the extent that it may be corroborated by credited testimony or stands unrefuted , Banner appeared entirely honest and forthright on the witness stand, prompting and to credit his testimony -generally. • ' 5 Based upon my observation of both witnesses while testifying, I find that the conversa- tion, the only one involving the Union attributed to Seaton, took place on or about June 17, and that Seaton's version more closely reflects the true facts. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this point, testified that, in talking with Luster on this occasion, he made specific reference to Luster's fine progress in his work as an apprentice machinist, closing, however, with the admonition that "you should keep your nose clean." 6 Employee Don Smith testified that, during the morning of June 19, Supervisor Arthur Harmon, an uncle by marriage, asked him in the welding department how he felt about the Union, to which Smith answered that he did not know, that "we would find out when we all turned out." Harmon then stated, "Well, sir, I will tell you this. The foremen and supervisors had a meeting the other night and if this Union comes in, we'll all be without a job and Austin will shut the doors." Harmon's credited 'Version is that this conversation occurred in the maintenance shop, and that, in telling Smith that "I thought the Austin Company would close the plant down and we would all be looking for a job," Harmon did not ask about the Union nor make any reference to a foreman's meeting? On the morning following a June 20 union meeting, Bowman approached Banner in the welding department and asked him what was done at the union hall the night before, to which Banner replied that he could not talk about it then, but that he would discuss it with him at any other time. Bowman, in leaving, stated to Banner that he did not think that he could .8 Smith testified that, on Sunday after Luster's discharge, which would have been January 23, Bowman asked him in the welding department how he felt about the Union, and, when Smith replied that he did not know, Bowman said, "Well, I want to ask you this question and I guess you'll just give me the answer J. V. did." Smith testified further that, "He asked me did I sign a card and I didn't tell him. And he said, `Well, I tell you, the Company is too small for a union. This would make our jobs harder.' " 9 Conclusions I conclude and find that, in addition to other conduct on June 18, hereinafter treated in connection with Luster's discharge, the Respondent, through its Supervisor Hugh Bowman on or about June 14, 20, and 23, and through its Supervisor Hubert Bradley on June 18, as above set forth, interrogated its employees concerning their union membership, activities, and desires, and that such conduct interfered with, restrained, and coerced employees in the exercise of their Section 7 rights within the meaning of Section 8(a)(1) of the Act. 2. The discharge of James V. Luster James Luster, the alleged discriminatee, was first employed by the Respondent in the early part of 1960 and worked as an apprentice machinist in the tool-and-die machinist department until his discharge on June 18, 1963. On this date, accord- ing to the testimony of Luster, Foreman Bowman approached him about 11:30 a.m. in the welding department, and, in the presence of employee Alton Banner, asked Luster, "Who here is for the Union," to which Luster answered, "I protest talking to you about union matters and company matters or whatever you want to talk about." Luster testified further that, after he asked Banner to take notice that he was protesting talking on company time, Bowman, in departing, said "it would take a stupid man to vote for or talk for the Union," that "we didn't know what we are doing," and that "the plant would close down." Luster's testimony in this regard was fully corroborated by Banner, who added that Bowman further stated that the plant would have to close its doors because "they couldn't work under union conditions; it would be too stiff for them." Bowman's denial of having engaged in this conversation and making any of the statements attributed to him by Luster and Banner is not credited. G As no reference was made, under either version , to the Union, coupled with the fact that there is no direct evidence that Bradley knew of Luster's union activity at this time, I find that neither version warrants an inferential finding of unlawful conduct on the part of Bradley. 7 Based upon his demeanor on the witness stand , I credit Harmon's testimony as to this incident. However, as there is no evidence of any corporate relationship between the Austin Company and the Respondent, and in fact no evidence of any kind as to the exist- ence of an "Austin Company," I am not prepared to draw, and therefore do not find, what otherwise might constitute a warranted inference of an unlawful threat. 8 Bowman admitted engaging in the above June 21 conversation as testified to by Banner. 9 Although there is no explanation as to how Smith happened to be in the welding de- partment on a Sunday, Bowman was not questioned about this conversation and, there- fore, Smith's testimony stands unrefuted. METALS ENGINEERING CORPORATION 95 Later, during the lunch period, Luster and another employee were engaged in conversation at a table in the lunch area when Foreman Bowman, who had been sitting about two tables away, approached their table. Luster's version of what took place is not materially different from that of Bowman. Luster testified that, as he was in the process of asking the new employee, whose name he could not recall, if he wanted to sign a union card, Bowman walked up, saying, "You don't know what you're talking about, J. V.?" Whereupon Luster took a memorandum from his pocket, showed it to Bowman, and said, "How would you like to be cursed like this in a memo every day?" 10 When Bowman replied that he ,was "chewed up" like that every day, Luster said, "Employees at Magnovox has [sic] got a union . . . they are making real good wages," and "the union is a good thing for employees if it is worked right." Bowman then answered that the Union down there at Magnavox was nothing but a bunch of dictators and Communists. Bowman's version of this incident differs slightly. Bowman testified that, upon walking up to the table where Luster and another identified employee, Allen Ander- son, were seated, Luster commenced the conversation by stating that Anderson was "a big dog" in the Union and had union cards, and asking Bowman to sign a union card." Upon telling Luster that he could not sign one because he was a supervisor, Luster "pulled the memo out of his pocket" and asked Bowman how many times had he received a memo such as this. Bowman replied that it was not uncommon and, therefore, he should not think anything of it. Bowman testified that Luster then "said something about the Union," and he replied that, in his opinion, the Union was nothing but "a small form of communism." Allen Anderson, who testified that it was he who was seated with Luster on this occasion, corroborated in general the testimony of Bowman and confirmed the fact that Luster was the one who initiated the Union in the conversation and that Bowman stated that, in his opinion, the Union was communistic. While not fully convinced of the com- plete veracity of any of the three principals involved in this incident, to the extent that a factual question exists, I credit the testimony of Bowman and Anderson.12 Luster testified that after lunch Bowman approached him in the welding depart- ment and, in Banner's presence, said, "You all don't know what you have done." Bowman continued, "The Company could not operate under a union . it just couldn't stand the pressure that the Union could put on it." Bowman denied having any conversation with Luster after lunch. Banner testified that Bowman did talk with Luster after lunch, but that all he could recall of the conversation was that Luster protested talking with Bowman about the Union on company time. I credit Luster's testimony as to this incident. Immediately thereafter, Bowman reported to Benko that "Mr. Luster was passing around the memo which was bad for-well, you might say, morale and was inter- rupting production." 13 Benko then called Bradley, Luster's supervisor, into his office and asked him whether he was aware that Luster was showing the memo to employees in the lunchroom. Bradley, who had just prior thereto been informed of the matter by Bowman, so indicated to Benko, who, in turn, told Bradley he wanted the memo returned, that "it's not very good having a memo floating around like that actually with this particular word in it." Bradley, following Benko's instructions, then went to "This memo , dated June 9, addressed to Toolroom Supervisor Hubert Bradley from Company Vice President John Benko, states, "The trailer storage area looks like hell. See that J. V. cleans up and straightens up every day he is in there." Luster, apparently referred to as J. V. on occasion, had been the recipient of this memo on June 10 when Bradley, his supervisor , handed it to him in the trailer assembly area. "Bowman's version is somewhat confusing herein that, on cross-examination, Bowman testified that, just prior to asking him to sign a card, Luster had asked Anderson to sign a card "Luster, who could not remember whether or not Allen Anderson was present, testified that a Ralph Humbard, a Vina Smith, and a new employee whose name he could not re- call, were present. Unless by chance, Doyal Humbard, who testified for the General Counsel but not on this point, is the same person as Ralph Humbard, none of the three named by Liister- was called upon to testify On the other hand, Alford Hall, who apparently entered the lunchroom toward the end of the conversation, testified that, although he saw Luster showing Bowman a piece of paper, and that they were speaking in tones louder than usual, he did not hear any of the conversation. Another employee witness, Ralph Chapel, although admitting that he did not hear all of the conversation, testified that he saw Luster showing a piece of paper to Bowman, and heard Bowman say that "the Union wasn't nothing but a bunch of communist[s]." 'a Bowman admitted on cross-examination , however, that he did not see Luster show the memo to other employees and did not know whether or not Luster had done so. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luster and' asked to have the memo back.' Luster -refused, saying that he needed it for a later date when "it will serve a more useful purpose." When Bradley apprised Benko of Luster's refusal to accede to his wishes,Benko asked Bradley to bring Luster to his office. Upon being informed that Benko wanted to- see him, Luster, although-reluctant to comply because he did not "care to have any discussion with him at this time on company time," agreed to see •Benko when Bradley indicated that it was an order from Benko. Luster and Bradley then proceeded to Benko's office. Once in the office, Benko, in the presence of Ramsey and Bradley, twice asked Luster to return the memo, apprising him that to refuse would result in his discharge for insubordination. Upon Luster's absolute refusal to comply with the order, Benko fired him. Conclusions i The General Counsel contends that the Respondent discharged Luster because of his union activities. The Respondent, in denying the discriminatory allegations, asserts that Luster was terminated for his insubordination in refusing to obey the instructions of his supervisors to return- the memo in question. It is axiomatic under Board law that an employer may discharge an employee for any reason other than one connected with union activities without contravening the Act. It.is also well-established that where in fact there exist two reasons for causing an employee's termination, if one of them is unlawful, the discharge violates Section 8(a)(3) of the Act. An application of these principles to the instant case provides the real issue for determination. These is no question but that Luster, in refusing-outright to obey the instructions of his superiors,-was insubordinate, which fact, standing by itself and without evidence of an unlawful reason, would constitute valid grounds for the Respondent's effectuating his discharge. On the other hand, if the -Respondent, either in requesting the return of the memo or in acting upon Luster's refusal to comply, were in fact motivated by a-desire-to`rid itself of a union adherent, the valid insulation provided by the insubordinate act is lost to the Respondent. Thus, the issue to be resolved is whether the Respondent created or in any way seized upon the memo incident for the purpose of discharging Luster because of his union activities or affiliation. Pertinent thereto is the fact that on June 11, 1 week before his discharge, Luster, with another employee, made an initial contact with' a representative of the Union and obtained a number of union authorization cards. During- the course of the fol- lowing 2 days, Luster, and a few other employees, quietly during lunchtime, breaks, and in the evening, proceeded to secure fellow employee signatures on the cards, which were returned to the union representative the evening of June 13.14 In one instance on this day, however, according to the credited testimony of Allen Anderson, Luster called Anderson back into the trailer assembly area during working hours where Luster, before asking him to sign a union card, apprised Anderson that the other employees were reluctant to approach him because "they know you are a company man." Anderson, in leaving, told Luster that he would think about signing a card. Shortly thereafter, Anderson called Vice President William Ramsey, apprised him that there was some union activity taking place, and told Ramsey that he would like to talk to him about it in private: Subsequently, pursuant to Ramsey's suggestion, Anderson reported to Ramsey in the front office and, in the presence of two other vice presidents, John Benko and William Richardson, stated that there was talk of the Union going around and informed them that he had been asked by someone to sign a ,union card. Benko then asked Anderson who had approached him. Anderson testified, as did Benko and Ramsey,15 that he refused to give any names because he did not want to get involved. Ramsey asked Anderson if he would like to volunteer additional information, particularly as to how many employees were involved or who they were, to which Anderson allegedly replied that he was afraid to get involved.16 1' Although pamphlets were distributed by nonemployees outside the plant on the after- noon of June 14, the first open union activity to occur, there is no evidence that Luster in fact engaged in open activity on behalf of the Union until a couple of days after his discharge, at which time he did so by passing out union handbills outside the plant. 15 Richardson was not in the United States at the time of the hearing and , therefore, was net available to testify. 19 Notwithstanding the testimonial assertions to the contrary of the three principals, under these particular circumstances , and in light of the later developments surrounding Luster, including the fact that Anderson, by his own admission, reflected an antiunion attitude, it is, difficult to accept as true the proposition that Anderson did not, when asked by .a top company official, convey the name of Luster as the employee , who had approached him concerning the Union. METALS ENGINEERING CORPORATION 97 Moving to the events of June 18, as above 'related, Bowman's three antiunion con- versations with Luster; all within a couple. of hours of Luster's discharge, coupled with his direct knowledge of Luster's active support of the Union,17 renders it difficult to believe that Bowman, in apprising Benko of the memo incident, did not convey to Benko his knowledge of Luster's union advocacy. As to the act of insubordination, relied upon by the Respondent as justifying the discharge action, and the motive of the Respondent in terminating Luster for refusing to turn over the memo, the facts reveal that from June 10, when'the memo was first handed to, and pocketed by, Luster, until the lunchroom incident immediately prior to his discharge on June 18, as far as the Respondent was concerned, the memo in itself was absolutely of no moment and, in fact, forgotten. Thus, as admitted by the Respondent, it was Luster's lunchroom conduct on June . 18 with respect to the memo that prompted Benko, after having been informed by Bowman, to request the memo's return. In my-opinion, neither the content of the memo, innocuous in itself, nor the use made of it by Luster, was such as to warrant the Respondent in making a discharge issue of the matter. - Contrary to what Bowman and Benko testified that the former told Benko about the incident,' there-is.no evidence, including the testimony of Bowman, that Luster was showing the memo to employees or that Luster's action with-the memo was in any way adversely affecting employee morale or interrupting production. The undisputed fact is that Luster, at some point in the lunchroom conversation, pulled the memo from his pocket and showed it to Bowman. Under these circumstances, and the fact that neither Benko nor Bowman was at all convincing in his testimony as to the importance they allegedly attached to Luster's handling' of what they in effect admitted was an otherwise innocuous memo, I am persuaded, and find, that, in immediately reporting to Benko the whole matter; Bowman apprised Benko of Luster's union activity,18 as well as the memo incident, and that Benko, in requesting Luster to return the, paper, as well as in discharging him for not complying, was unlawfully motivated by Luster's expressed sentiments and activity on behalf of the Union.19 Accordingly, while Luster engaged, in an act of insubordination, I find that such act- was a direct, and perhaps foreseeable, result of an unlawfully motivated request or instruction on the part of the Respondent, and, as such, may not be seized upon by the Respondent to justify an otherwise unlawful act. Under all of the circumstances, I find that the discharge of James V. Luster on June 18, 1963, constitutes a violation of Section .8(a) (3) and. (1) of the Act. I further find Bowman's interrogation of Luster before lunchtime on June 18 to constitute interference within the prohibitions of Section '8 (a) (1) 'of the Act .?O IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to 'effectuate the policies of the Act. It having been found that the Repsondent unlawfully discharged James V. Luster on June 18, 1963, and, thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent offer the above-named individual immediate and full reinstatement to his former or substantially equivalent position, without prej- 17 In addition to asking Bowman to sign a union authorization card, Bowman testified that Luster had asked employee Anderson to sign a card during lunchtime. >e Benko's testimony to the effect that he was unaware of Luster's union activity until after the latter's discharge is not credited. "That Benko himself was interested in learning,the identity of union adherents among his employees is apparent from his own testimony concerning his inquiry of Anderson a week earlier on June 13 2^ I find further, however, that the additional statements made by Bowman to Luster on this date concerning the closing of the plant to constitute expressions of opinion as to the economic consequences of union success in the plant and as such to be protected by Section 8 (c) of the Act. 760-577-65-vol. 148-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD udice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by making payment to him of the sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of rein- statement,21 less net earnings during said periods to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.22 In this regard it is further recommended that the Respondent preserve and, upon request , make available to the Board or its agents, for examina- tion and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay. In view of the fact that the unfair labor practices committed are of the nature which strikes at the root of employee rights safeguarded by the Act, it is further recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Metals Engineering Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers , AFL-CIO, is a labor organization within the . meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, Respondent has en- gaged in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By discriminating in regard to the hire and tenure of employment of James V. Luster, thereby discouraging membership in and activity on behalf of the above- named labor organization, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] n See A.P.W. Products Co., Inc., 137 NLRB 25. 22 See Reserve Supply Corporation of L.I., Inc. v. N.L.R. B., 317 F. 2d 785 (C.A. 2). C. J. Glasgow Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case No. 13-CA-5200. August 3, 1964 DECISION AND ORDER On May 20, 1963, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent and 148 NLRB No. 13.