Caldwell Mfg. Co., Inc.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activity on behalf of, Retail Clerks Union Local No. 455, AFL-CIO, or any other labor organization, by discriminating against our employees in regard to their hire or tenure of em- ployment, or any term or condition of employment. WE WILL NOT unlawfully interrogate our employees with respect to their interest in, or activities on behalf of , said Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named Union or any other labor organi- zation , to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all such activities. WE WILL offer Opal Davis reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privi- leges, and we will make her whole for any loss of pay suffered as a result of our discrimination against her. All our employees are free to become or remain members of Retail Clerks Union Local No. 455, AFL-CIO, or any other labor organization, or to refrain therefrom except to the extent such right may be affected by an agreement authorized by Sec- tion 8(a)(3) of the National Labor Relations Act of 1947, as amended. THE GREAT ATLANTIC AND PACIFIC TEA CO., INC. 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 her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing 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, 6617 Fed- eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. 8-0611, Ex- tension 4271, if they have any question concerning this notice or compliance with its provisions. Caldwell Mfg. Co., Inc. and Garyl L. Bartlett. Case No. 17-CA.- f353. October 26, 1964 DECISION AND ORDER On July 20, 1964, Trial Examiner Sidney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. Ile also found that Respondent had not engaged in other un- fair labor practices alleged in the complaint and recommended dis- 149 NLRB No. 20. CALDWELL MFG. CO., INC. 113 missal of those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Decision and supporting briefs. 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-mem- ber 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 Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the exception noted below.2 ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Recommended Order of the Trial Examiner, and orders that Respondent, Caldwell Mfg. Co., Inc., Kearney, Nebraska, its officers, agents, successors, and assigns, take the action set forth in the Trial Examiner's Recom- mended Order, with the following addition : Add the following as it new paragraph 2(b), the present paragraph 2(b) and those subsequent being consecutively relettered: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 1 We are persuaded, as was the Trial Examiner, that the motivating reason for Bartlett's discharge was his union activities. We need not, however , and do not decide whether other alleged reasons entered into Respondent's determination to rid itself of this union adherent since, on this record, we regard such reasons as mere pretexts. 3 In view of the fact that the actions of James Caldwell would merely present cumulative evidence of Section 8(a) (1) violations if he were found to have been held out by the Respondent as part of management , we find it unnecessary to pass on his status , and there- fore do not adopt any part of the Trial Examiner 's discussion of that issue , nor his find- ings or conclusion with respect thereto. TRIAL EXAMINER'S DECISION On December 20, 1963 , Garyl L. Bartlett, Minden, Nebraska, filed charges against Caldwell Mfg. Co., Inc., Kearney, Nebraska, herein called the Respondent . Amend- ed charges were filed on February 7, 1964. On February 10, 1964, the General Counsel ' issued a complaint alleging that since late June 1963 , the Respondent, by certain specified conduct , has interfered with, restrained , and coerced its employees, that during late June and early July 1963 the Respondent deprived Bartlett of free movement within the plant and restricted him to the welding area, and that on or about November 29, 1963, the Respondent discharged Bartlett and since then has failed and refused to reinstate him, and that the Respondent's acts toward Bartlett were engaged in because of Bartlett 's interest in, adherence to, and activities on be- 1 The term "General Counsel " as used herein refers to the General Counsel of the Na- tional Labor Relations Board and his representatives at the hearing. 770-076-65-vol. 149-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD half of United Brotherhood of Carpenters and Joiners of America, Local Union 1430, affiliated with the AFL-CIO, herein called the Union. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The Respondent filed an answer denying the commission of any unfair labor practices. Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr., on March 17 and 18, 1964, in Kearney, Nebraska. All parties were represented and participated fully in the hearing. After the close of the hearing, the General Coun- sel and the Respondent filed briefs which have been duly considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standard; 2 and that the Union is, and at all material times has been, a labor organization within the mean- ing of the Act. A. The Union's campaign On June 19, 1963, the Union filed with the Board a petition in Case No. 17-RC- 4196, seeking to represent certain employees of the Respondent for the purposes of collective bargaining. Pursuant to a stipulation for certification upon consent elec- tion entered into by the pai ties and approved by the Regional Director,' an election was conducted among the affected employees on July 9.4 Seventeen ballots were cast for the Union and 17 ballots against. On July 31 the Regional Director issued a certification of results of election. So far as the record shows, no union has ever represented any of the Respondent's employees for the purposes of collective bar- gaining. B. Interference, restraint, and coercion 1. By Robert E. Caldwell a. Contentions of the parties The complaint alleges, the answer admits, and I find that, at all material times, Robert E. Caldwell was president of the Respondent, and its agent. The complaint further alleges, and the answer denies, that on or about June 20 Caldwell threatened employees with reprisals if they selected the Union as their bargaining representative and suggested the formation of an independent labor organization among the employees. b. Facts On June 20, the day after the Union's representation petition was filed, the Re- spondent's employees were assembled in the plant and addressed by Robert E. Cald- well, president of the Respondent. The meeting started during a break period and continued into working hours. Almost all of the Respondent's approximately 40 employees were present, as were also several management representatives. Caldwell read a portion of the Nebraska right-to-work law, and also part of a pamphlet published by the National Labor Relations Board, to the effect that the employees had a right of election and the right to join a union if they desired, with which management was not to interfere. He stated that he had belonged to a few unions, that the plant was not big enough to have a union, and that if the Union were voted in, the plant "would have to go down to a 40-hour week." He further said that he did not have to continue giving the employees certain benefits, such as overtime pay, breaks, bonuses, and vacation pay. He also asserted that if the em- ployees voted the Union in and "asked for too much he would close the doors." 2 The Respondent is, and at all material times has been, a Nebraska corporation with its principal place of business and plant at Kearney, Nebraska, where it Is engaged in the manufacture of grain storage equipment The Respondent annually sells goods valued at more than $50,000 directly to customers outside the State of Nebraska, and annually pur- chases materials valued at more than $50,000 directly from sources outside the State. 3 The term Regional Director as used herein refers to the Director of Region 17 of the National Labor Relations Board 4 All dates hereafter refer to the year 1963, unless otherwise noted. CALDWELL MFG. CO., INC. 115 Finally Caldwell suggested that if the employees wanted a labor organization it would be better to foim a committee among themselves for this purpose rather than to "bring in outsiders." Sometime between the filing of the petition on June 19 and the election on July 9, Caldwell summoned to his office Donald Trembly, then a draftsman in the Re- spondent's engineering department. Caldwell inquired if Trembly had been ap- proached concerning the Union. Trembly replied that he had. Caldwell asked the name of the peison who had contacted Trembly. Trembly demurred. Caldwell stated that he had belonged to a union and thought he understood the Union. Ac- cording to Trembly's undenied ° testimony, which I credit, Caldwell then: ... gave examples of what might happen if the union came into our plant and possibly the hours would be kept to 40 hours; the bonuses would possibly be cut out, and . . . he used Ed Reese as an example . . . and because the union might come in to the plant he might be sent home because of lack of work. c. Conclusions In my opinion the evidence detailed above amply supports a finding that on June 20 in a speech to the assembled employees, and between June 19 and July 9 in an interview with Trembly, Caldwell implicitly warned that, if the employees chose to be represented by the Union, benefits would be withdrawn and hours would be cut in retaliation. Such threats of reprisal clearly violated Section 8(a)(1) of the Act. Nor do I feel that the coeicive and intimidatory effects of these specific warn- ings were neutralized by Caldwell's generalization which was uttered at the June 20 meeting (but not during the interview with Trembly) that the employees had a right to vote and join a union.' Let us turn now to the contention that Caldwell at the June 20 meeting violated the Act by soliciting the employees to form "an independent labor organization" as a substitute for bargaining through the Union. It may well be that, had it stood alone, this suggestion might not have been violative of the Act, but instead might have constituted an exercise of flee speech protected by Section 8(c) of the Act.' However, this issue need not be decided. For here the iemark was not uttered in a vacuum, but rather was made in the very same speech in which Caldwell threatened reprisals if the Union were chosen by employees as their bargaining agent. Under these circumstances and in such a context, the suggestion was clearly coercive in nature and therefoie violated Section 8(a)(1) of the Act. 2. By James L. Caldwell a. Contentions of the parties The complaint alleges that James L. Caldwell was, at all material times, a sales- man in the Respondent's employ and an officer, representative, agent, supervisor and/or acted on behalf and with the approval of the Respondent. It is further alleged that he engaged in certain specified conduct violative of Section 8(a)(1) of the Act. The answer alleges that James L. Caldwell "worked as a salesman, credit- man, and performed services in the packaging and shipping of products [and] serv- G These findings of fact are based upon a synthesis of the testimony of Caldwell, Donzel van Dyke, then welding forerun, Bob Carson then warehouse supervisor; and the follow- ing rank-and-file employees' Garyl L. Bartlett, Alfred Garrilts, Douglas Peterson, Roger Akin, and Teary W I lesinger 0 Although Caldwell testified, lie did not mention this incident. 7Haynes Stellite Company, Division of Union Carbide Corporation, 136 NLRB 95, foot- note 10 I am aware Ihal enforcement of this case was denied sub nom. Union Carbide Corp. v. N L.R B., 310 F 2d 844 (C A. 6). However, as a Trial Examiner I am bound to follow established Board precedent which neither the Board nor the Supreme Court has reversed. Novak Logginq Company, 119 NLRB 1573; and Scherrer and Davisson Logging Compann, 1119 NLRB 1587 8 The Board has, at least twice, declined to pass upon this issue where it found that Sec- tion 8(a) (1) of the Act had been otherwise violated, on the ground that the scope of the Order could not be affected. Ford Radio d Mica Corporation, 115 NLRB 1046, 1048, en- forcement denied and remanded 258 I' 2d 457 (CA. 2), Supplemental Order, 122 NLRB 34; and Leonard Refineries, Inc., 147 NLRB 488, footnote 4. But compare Alberto Culver Company, 136 NLRB 1432, 1433; Kelly Brothers Nurseries, Inc., 145 NLRB 285; and S.N.C. Manufacturing Co., Inc., 147 NLRB 809. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ices in plant maintenance" and denies that he "was ever an officer, representative, agent, or supervisor of the Respondent or acting on behalf and with the approval of the Respondent." b. Facts James L. Caldwell is Robert E. Caldwell's son. During the crucial period-May through November 1963-James L. Caldwell performed numerous functions for the Respondent. He was a salesman; he cleaned, painted, and hauled equipment;, he drove a truck; he worked on the collection of overdue accounts receivable; and "pretty generally filled in whenever there was a need." From time to time he made use of an office designated "Sales Manager" and another designated "Purchasing Agent."' He sometimes wore sports clothes in the factory and at other times working clothes. He was hourly paid, receiving wages of $1.925 per hour. On one occasion prior to the election, James L. Caldwell told employee Roger Akin "that if the Union came in the shop would go to 40 hours a week or it could close." Moreover during the summer of 1963 Rex Montgomery, foreman of the sheet metal department, told Akin and another employee that James L. Caldwell "was the new sales manager ." On the other hand, both Robert E. Caldwell and James L. Caldwell denied that the latter had authority of any kind over any em- ployees. And there is testimony that some new employees, when hired, were told by Robert E. Caldwell that James L. Caldwell had no authority over the employees.'0 c. Conclusions The guidelines for determining whether one person is acting as the agent of an- other are set forth in Section 2(13) of the Act, added by the Taft-Hartley Act in 1947. It is well settled that Congress, in enacting this subsection, "intended to do no more than to restore the applicability of common law agency principles of re- sponsibility, which preclude imputation of the acts of one person to another except when the one is acting as agent for the other." " Bearing these precepts in mind, what does the General Counsel rely upon to show agency? He stresses the fact that James L. Caldwell from time to time was permitted to use an office. In my opinion, this proves very little so far as apparent authority goes. The evidence also shows that Montgomery described James L. Caldwell as "sales manager"; 12 however, James L Caldwell was not alleged in the complaint as holding such a position. In any event, the weight to be properly accorded such evidence is more than offset by the testimony that newly hired employees were informed of James L. Caldwell's lack of authority. Furthermore both James L. Caldwell and his father denied that he possessed any authority over employees. The record contains no direct proof that James L. Caldwell possessed authority to issue any orders to any employee, or that any employee considered him as a "boss." On the contrary, Bob Carson, a witness for the General Counsel, testified: Q. To your knowledge was he a part of management at any time you were there [April 1 to November 29] where he bossed any of the employees? A. No, sir [Emphasis supplied.] Finally, none of the conduct of which James L. Caldwell is accused was shown to have occurred in the presence, or with the knowledge, of any member of management. 9The Respondent has had no sales manager since 1962, and its'purchasing-agent died in 1963. A new purchasing agent was hired in 1964 "There was testimony as to statements of James L. Caldwell to others regarding the extent of his authority. Absent other evidence that it was within his authority to make such statements, they cannot be used to prove his agency. L. B. Woods, et at., d/b/a Breckenridge Gasoline Company, 127 NLRB 1462, footnote 4. 11 International Ladies' Garment Workers Union, AFL (B V D. Company, Inc) v N L.R B., 237 F. 2d 545, 551 (C A.DIC.). The General Counsel's brief cites Champs Linen Service Company, 140 NLRB 1207, enfd 324 F. 2d 28, 30 (C.A. 10), as standing for the proposition that "strict rules of respondeat superior do not apply and specify [sic] agency need not be shown " But the court in Champa relied upon and quoted from International Association of Machinists, Tool and Die Makers Lodge No. 35 (Serriek Corp.) v. NL.R.B., 311 U S 72, 80. This was decided by the United States Supreme Court in 1940, before the 'Taft-Hartley amendments were adopted. In view of the provisions of Section 2(13), added to the Act in 1947, the precedent value of JAM would seem to be questionable. 12 For this purpose it will be assumed, without deciding, that Montgomery was then a supervisor and agent of the Respondent acting within the scope of his authority, as the General Counsel contends. CALDWELL MFG. CO., INC. 117 The General Counsel nonetheless relies upon two other factors as tending to show agency-the close family relationship between James L. Caldwell and the Respond- ent's president, and the similarity of statements made by the two men. To sup- port the proposition that such factors are indicative of the existence of a principal- agent relationship , the General Counsel cities Continental Motors, Inc." But in that and a similar case the Board relied heavily upon the fact that the Respondent constituted a small family enterprise." Here, Robert E. Caldwell owns only 55 per- cent of the stock ; no other member of his family is shown to have had a financial interest in the Respondent, and he testified that "it's common knowledge in the plant and [sic] I and my son have never seen eye to eye." As the Respondent here is not a family enterprise and as there is here evidence that the purported agent did not necessarily follow the thinking of his relative, I consider Continental distinguish- able from the instant case on its facts. I conclude that the General Counsel has failed to establish that James L. Caldwell was, at any material time , an agent or supervisor of the Respondent . It follows that the Respondent is not answerable for his conduct." C. Union animus The conduct of Robert E. Caldwell described above indicates that the Respond- ent harbored antipathy toward the Union. Indeed, with commendable candor, the Respondent's brief states: "The record is clear that Robert Caldwell was very much opposed to the formation of a union in Respondent's plant." I am therefore con- vinced, and find, that on June 20, and for some time after, the Respondent exhibited hostility against the Union . This conclusion is not related critically , but merely as a statement of fact . The Respondent had, of course , a legal right to show antago- nism toward the Union, so long as it took no action proscribed by the Act 1" But, as the United States Court of Appeals for the Fifth Circuit has said : "antinunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive. ' Let us bear this in mind in con- sidering the remaining issues in this case. D. Discrimination against Bartlett 1. Restriction to the welding area a. Contentions of the parties The complaint alleges, the answer admits, and I find that , at all material times, John Ehernberger was plant superintendent of the Respondent , and its agent. The complaint further alleges, and the answer denies, that during late June and early July 1963 Ehernberger "deprived Bartlett of free movement within the plant and restricted him to the welding area" because of "Barlett's interest in, adherence to, and activities on behalf of, the Union ." At the hearing Ehernberger admitted that, 2 or 3 weeks before the election, he directed Donzel Van Dyke, then the welding foreman, to "keep him [Bartlett] in the welding room ." It therefore appears that there is no dispute as to the fact that Bartlett was restricted to the welding depart- ment for a period of time before the election." The only dispute seems to be as to 13145 NLRB 1075. 14 In Continental the purported agent was related to all three corporate officers. In Fsore Brothers Oil Co, Inc, 137 NLRB 191 , enfd. 317 F. 2d 710 (C.A. 2 ), the purported agent was related to all three officers and stockholders 15 The General Counsel Introduced Into evidence a letter written by employee Roger Akin to the Board's Regional Office after Akin had talked to James L. 'Caldwell. As this con- tains the correct address of the Regional Office and the correct case number , which Akin testified was given to him by James L. Caldwell, the General Counsel contends that It tends to show "James Caldwell's access to company records ." I cannot agree. There were many sources other than company records from which such information could have been obtained. Indeed, James L. Caldwell testified that he had been given this data by Terry Liesinger. 1" N L.R.B v. T. A . MoGahey, Sr., et al., d/b/a Columbus Marble Works, 233 F. 2d 406, 409 (C.A. 5). 17 N.L R.B. v. Dan River Mills, Incorporated, Alabama Division, 274 F. 2d 381, 384 (C.A. 5). 1" Ehernberger denied that he used the word "restricted " when talking to Van Dyke. I deem it unnecessary to determine the exact words used . It Is enough to find, as Is appar- ently conceded , that the gist of Ehernberger 's direction to Van Dyke was that Bartlett should be confined to the welding department. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reason for the restriction. The Respondent contends that the directive was is- sued in a legitimate attempt to maintain efficiency and plant discipline. The Gen- eral Counsel, on the other hand, maintains that such asserted reason is a mere pre- text and that the true reason was discriminatory, that is, an illegal attempt to curb Bartlett's piounion activities. b. Facts Garyl L. (Speed) Bartlett, the Charging Party, first began to work for the Re- spondent in June 1961. He was classified as a welder and was assigned to the welding department. After his first 3 weeks of employment, his immediate superior was Donzel Van Dyke, the Respondent's welding foreman. Two or three months after his original hire, Bartlett's wages were raised from $1.50 to $1.60 per hour. Approximately 6 months later they were increased to $1.75 per hour. About a year later, Bartlctt's wages were raised for the third time to $1.85 per hour; and finally in April or May 1963 they reached $2 per hour. When the Union began its campaign to organize the employees in May or June, Bartlett was active on its behalf. In June and early July he distributed union cards to some of his fellow employees and tried to persuade them to vote for the Union. These activities sometimes took place at the employees' homes and sometimes in the plant during lunchtime or break periods. In addition, Bartlett served as the Union's obseiver at the election.19 About 3 weeks before the election, Caldwell summoned Bartlett to his office. After stating that he knew that Bartlett was "one of the main people pushing this union," he inquired what benefit Bartlett thought he was going to achieve for the employees . Bartlett replied that he thought maybe they could improve their se- curity and their wages. Caldwell asked if Bartlett had ever belonged to a union before. When Baitlett answered that he had belonged to a union in California, Caldwell said- "Why in the hell don't you go back to California?" Bartlett re- sponded that he "didn't caie for it out in California." The conversation ended with Caldwell's assertion that "he knew his future course of action, what he was going to do." 20 The natuie of Bartlett's work required him to perform the majority of his welding in the welding department. But on occasion (about 4 hours per week) it was necessary for him to do welding elsewhere in the plant. Sometimes, also it became necessary for a welder to go to the toolroom or warehouse to obtain needed tools or material, or to help obtain them, especially if the object in question was too heavy for one man to carry. Approximately 2 weeks before the election Ehernberger directed Van Dyke to restrict Bartlett to the welding room, adding "something to the effect about if he wanted to be in the Union we would let him weld like he was in the Union." n Van Dyke then told Bartlett that he had been restricted to the welding room and that if he needed tools or parts from the toolroom or anything else from outside the welding department, to inform Van Dyke, who would then obtain them for him. Bartlett asked , "Is this an order from you or management?" Van Dyke replied: "The management." " On the next day, Ehernberger brought a work order to Van Dyke and remarked that "it looked like we had plenty of work" to keep Bartlett busy the entire day.2M1 Thereafter, Ehernberger, Bob Carson, the warehouse super- visor, and some employees were gathered around Ehernberger's desk during a break. Someone asked where Bartlett was. Ehernberger replied that "he had been restricted to the welding room." Later, in Bartlett's presence , Carson asked Van Dyke about the matter. Van Dyke answered that "he had orders he was to con- fine `Speed' [Bartlett] to the welding room and he wasn't to go outside at any time. He was doing too much union talking." [Emphasis supplied.] On July 9, the morning of the election, Van Dyke said to Bartlett : "They told me again to tell you you are restricted, that the same thing applies, if you want some tools you inform 10 This fact is alleged in the complaint and admitted in the answer 20 The findings of fact regarding this conversation are based upon Bartlett's undenied testimony. Although Caldwell testified, lie did not mention this incident 21 The findings of fact regarding this conversation are based upon Van Dyke's version of what Ehernberger said. Eheenberger denied using the word "restrict" but admitted direct- ing Van Dylce "to keep a lot of work piled up on him and keep him in the welding room " 22 The findings of fact regarding this conversation are based upon a synthesis of the testimony of Van Dyke and Bartlett. 23 The findings of fact regarding this conversation are based upon a synthesis of the testimony of Van Dyke and Ehernberger. CALDWELL MFG. CO., INC. 119 me and I will get them for you." Bartlett responded: "This looks like discrimina- tion against me." So far as the record reveals, nothing further has been said on this subject by anyone at the Respondent's plant. c. Conclusions The Respondent's union animus, the fact that the Respondent knew Bartlett to be a leader of the prounion movement, and the timing of the restriction soon after the Union filed its petition, when considered together, form a basis for concluding prima facie that the restriction was discriminatory. The Respondent, however, contends that the restriction was necessary because Bartlett "often left his station," "did a lot of running around during production hours prior to the election," and "violated plant rules by not staying in his area and by not following regular supply proce- dure." To substantiate this contention, the Respondent showed that established procedure at its plant requii ed the presence of someone from inventory control whenever tools, equipment, or materials were checked out. Further, on one occa- sion a few days before the election, employees weie gathering in little meetings during production hours. Ehernberger asked the employees to stop this visiting and return to work. In addition, Caldwell, Ehernberger, and Douglas Peterson, the Respondent's shectmetal foreman, testified that Bartlett roamed around the plant unnecessarily and was seen several times before the election in the tool checkout area and the warehouse, unaccompanied by any inventory control personnel. On the other hand, Van Dyke denied any knowledge that Bartlett moved around the plant outside the welding department for reasons other than production. The Respondent had, of course, a legitimate concern in enforcing proper inven- tory control methods and in inhibiting unnecessary visiting or gatherings during working hours which tended to impede production. But this fact is not enough to overcome the strong prima facie case made out by the General Counsel that Bart- lett's restriction was motivated, in part at least, by the Respondent's desire to isolate this union adherent from other employees and thereby reduce the effectiveness of his prounion campaign . That this was a factor which strongly motivated Ehern- berger to restrict Bartlett to the welding department is made clear when we con- sider the sequence of events. Shortly after the petition was filed, Caldwell called Bartlett to his office, exhibited antagonism toward the Union and Bartlett, and stated that "he knew his future course of action." A little later Ehernberger told Van Dyke to restrict Bartlett, adding "if he wanted to be in the Union we will let him weld like he was in the Union." Not much later Van Dyke stated to Carson, in explaining the restriction, that Bartlett "was doing too much union talking." On the day of the Board election the restriction order was repeated to Bartlett. But once the election was over, the directive was never mentioned again. Moreover, it is not without significance that Bartlett was confined not only during working hours, but during break periods as well." Surely, the Respondent's interest in production did not legitimately extend into the activities of its employees during break periods. Finally, it should he noted that Bartlett alone, among all the Respondent's em- ployees, was singled out for special treatment. These factors clearly disclose that the Respondent's major concern was not to stimulate production, but rather to cut down the effectiveness and frequency of Bartlett's communication of prounion senti- ments to his fellow employees. I accordingly conclude that the restriction was im- posed, in part at least, for illegal and discriminatory reasons. It therefore violated Section 8 (a) (1) and (3) of the Act. 2. Discharge a. Contentions of the parties The complaint alleges that on or about November 29 Caldwell discharged Bart- lett, and since then has failed and refused to reinstate him, because of Bartlett's interest in, adherence to, and activities on behalf of the Union. The answer denies these allegations, and alleges that "Bartlett was discharged with other former em- ployees at the time of a general reduction in the number of employees in the plant, and that he was discharged for cause and for business reasons entirely disassociated from any activity for or on behalf of the Union." `* This appears from the fact that it was during a break period, when Bartlett's absence was noted, that hhernberger announced Bartlett's restriction; also Van Dyke Informed Carson that Bartlett was not allowed to go outside at any time. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Facts On November 29 a meeting was held in Caldwell 's office. In addition to Cald- well, those present were Bartlett, Van Dyke, Carson, employees Lonnie Linder and Edward Reese, and another employee not identified on the record. According to Bartlett, Robert Caldwell said he had made a decision , he had some help with his de- cision, and that since he . . . in a couple of cases wasn 't getting the required work and in a couple of cases wasn't getting the cooperation and that since he didn't see any chance for advancement for us, he thought the company would be better off and we would be better off if we would be discharged... . Caldwell described the interview as follows: I told them that due to the fact that I had been unable to earn their considera- tion, either personal or otherwise, I didn't see how we could develop a pro- gram of any benefit to either one and that this was the final paycheck and as far as I was concerned there was no prejudice. Since that date, no other welder has been hired by the Respondent to replace Bartlett. On February 5, 1964, sometime after the filing of the instant charge, Bartlett went to the Respondent's plant and personally applied to Ehernberger and Caldwell for reinstatement to his former job. This was vehemently refused. c. Conclusions To support its contention that the six discharges, of which Bartlett's was one, constituted "a general reduction in the number of employees in the plant" based upon economic considerations, the Respondent points to its payroll figures , as fol- lows: June 1963 ............ $18,404 November 1963 ...... $17,367 July 1963 ............ 17,112 December 1963 ....... 15,171 August 1963 .......... 22,012 January 1964 ......... 18,531 September 1963 ....... 22,751 February 1964 ........ 14,969 October 1963 ......... 26,713 There was also testimony that when the payroll rises production increases, and vice versa. Caldwell testified under cross-examination that business "normally starts to taper off about that time [November 29] under normal conditions ." Ehernberger testified that work orders "were drastically reduced right after the first of Novem- ber," and that "at this time of year the work was slowing down and we were com- ing up to some required terminations of company personnel anyway." The Gen- eral Counsel, however, asserts that "the falsity and incongruity of this reason [economic necessity] is patent," pointing out that in September or October the Respondent had hired a new welder, who is still in its employ. Despite this fact, and the failure of the record to show whether there had been similar seasonal reductions in force in prior years, I cannot say that the General Counsel has made out a prima facie case that economic necessity was a "fabrication" merely to enable the Respondent to rid itself of Bartlett, nor would the record support a finding that the Respondent deliberately cut deeper than it otherwise would have cut, simply in order to reach Bartlett . This was a management judgment. As the United States Court of Appeals for the Fifth Circuit has said : "Management is for management. Neither Board nor court can second-guess it or give it gentle guidance by over-the- shoulder supervision ." ' I conclude that the General Counsel has failed to estab- lish that the Respondent's decision to discharge six individuals on November 29 was discriminatorily motivated Next, let us examine the reasons why Bartlett was selected as one of those to be discharged in the reduction in force. The record reveals that the choice of indi- viduals was a joint decision of Ehernberger and Caldwell, arrived at approximately a week before the discharges were actually effectuated . The General Counsel's contention that Bartlett was chosen for discriminatory reasons is supported by a number of factors. Despite the . Respondent's attempts to show otherwise, the 21N.L.R.B. v.-T. A. McGahey, Sr., et al., d/ b/a Columbus Marble Works , 233 F. 2d 406,413 (C.A. 5). 21 Compare Tennessee Packers, Inc., Frosty Morn Division , 143 NLRB, 494 ( the layoffs of Halt, Black, and Lane). CALDWELL MFG. CO., INC. 121 conclusion is warranted that Bartlett had been a satisfactory employee for 2i years,'4 and had received a number of wage increases . The record shows that Bart- lett's work had been criticized by management only about three times, the last such event having taken place early in 1963.' As previously noted, the Respondent harbored union animus, and knew Bartlett to be one of the spearheads of the union movement. Indeed, as related above, in crucial preelection period he was singled out and discriminatorily restricted to the welding room in order to deter his pro- union activities . But this is not all. During the Union's campaign, Caldwell re- marked to an unidentified person "that Bartlett was a troublemaker and he didn't want him in his office." ' And 2 or 3 months before Bartlett 's discharge, in a con- versation concerning the Union , Van Dyke remarked to Bartlett , ". . . something to the effect that he was surprised that Robert Caldwell hadn't fired me [Bartlett] as soon as the Union lost the election, he was surprised I [Bartlett] was still there.s90 Finally, it must be recalled that, about 3 weeks before the election , in an interview about the Union, Caldwell had asked Bartlett : "Why in the hell don't you go back to California?" and had added that he (Caldwell ) "knew his future course of ac- tion." When all these factors are considered together , it is evident that the Gen- eral Counsel has made out a strong prima facie case that the selection of Bartlett for discharge on November 29 was dictated by the Respondent 's desire to rid itself of one of the Union's chief supporters. By way of defense against this prima facie case, Ehernberger denied that Bart- lett's known interest in the Union was a factor in selecting Bartlett for discharge. He testified that the only considerations were, A lack of ability to progress with the company in reference to new ideas, new processes, new production. Also another reason would be with regard to the constant complaining and griping . He did not want to stay in the welding room or stay assigned to his area as he was requested to do. While the first asserted reason is couched in somewhat vague language, it no doubt refers to the fact that the Respondent had two automatic welding machines which could be utilized for certain jobs. For the work on which they could be used, these machines were faster than manual welding and produced a cleaner end- product. For these reasons Ehernberger was anxious for the automatic welders to be used . In this he seems to have experienced some resistance from Van Dyke, who was apparently partial to manual welding. Bartlett likewise appears to have been reluctant to use the automatic welding machines and complained about them." This difference of opinion regarding work processes may have been one of the considerations which led to the decision to discharge Bartlett and Van Dyke. As to the remaining reasons given by Ehernberger as explanation for Bartlett's discharge, a number of witnesses testified that Bartlett was a constant and chronic complainer. But it is doubtful in my opinion if this fact weighed very heavily in the decision to discharge Bartlett . With regard to Ehernberger 's complaint that Bartlett "did not want to stay in the welding room or stay assigned to his area as he was requested to do," it has already been found above that Ehernberger's main concern about Bartlett's supposed "wandering" outside the welding department was not to help efficiency but instead to interdict Bartlett's prounion activities. I am persuaded that the Respondent's defenses have not overcome the General Counsel's strong prima facie case . At most, the Respondent has proved only that "Van Dyke described him as "fairly fast" and as a better-than-average welder. Cald- well admitted that Bartlett was an average welder. Ehernberger admitted that he had stated that Bartlett was a good welder , explaining that by this he meant that Bartlett was "an average welder and able to handle the average type of welding , it does not include automatic welding " 28 These were faulty welding on a bale elevator in February 1963 , faulty welding on tongues for trailer frames in late February or early March 1963, and breaking the shaft of a circle cutter "in the fore part of '63." 28 This finding of fact is based upon the testimony of Donald Trembly, who overheard the remark . Although Caldwell testified, he did not deny this. 30 This finding of fact is based upon Bartlett's undenied testimony . Although Van Dyke testified, he did not mention this incident. 3' I consider as a distortion of the facts Ehernberger 's testimony on direct examination that Bartlett "primarily declined to use" and "fail[ed] to use" automatic welders. To the extent that this leaves time impression that Bartlett refused to use these machines when ordered to so, it is erroneous . More accurately-as Ehernberger admitted on cross- examination-although Bartlett may have grumbled, he "never refused to use any machine or any particular process." 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some legitimate considerations might have entered into the decision. But the proof that illegal motivation was at the root of the matter remains. I accordingly con- clude that the Respondent discharged Bartlett on November 29, 1963, in part, at least, because of Bartlett's known aid and assistance to the Union. Such conduct violated Section 8(a)(1) and (3) of the Act. THE REMEDY It will be recommended that the Respondent cease and desist from the unfair labor practices which it has committed. As the violations of the Act found to have taken place are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future is to be anticipated from the Respondent's past conduct. It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent offer Garyl L. Bartlett immediate and full reinstatement to his former or a substantially equivalent posi- tion, without prejudice to any seniority or other rights and privileges previously en- joyed. In addition, it will be recommended that the Respondent make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to that which he normally would have earned from the date of his discharge to the date of his reinstatement, less his net earnings during the said period. The backpay provided for herein shall be computed on a quarterly basis, in the manner established by the Board, with interest at the rate of 6 percent per annum It is further recommended that the Respond- ent make available to the Board, upon request, all records needed to facilitate the calculation of the amount of backpay due hereunder, and post appropriate notices. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Caldwell Mfg Co, Inc, is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Local 1430, affili- ated with the AFI- CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily restricting Garyl L. Bartlett to a specified area of its plant, and by discriminating in regard to his tenure of employment, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, and by other conduct interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to establish that James L. Caldwell was, at any material time, a supervisor or agent of the Respondent within the meaning of Section 2(11) or (13) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby recommend that the Respondent, Caldwell Mfg. Co., Inc., Kearney, Nebraska, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization by restricting its em- ployees to any specified area of its plant, or discriminating against them in regard to their tenure of employment or any other terms or conditions of their employment. (b) Threatening its employees with reprisal should they choose any labor or- ganization as their collective-bargaining representative. (c) Coercing or attempting to coerce its employees , as a substitute for bargain- ing through any other labor organization, to form an employee committee for the purpose of bargaining with management. CALDWELL MFG. CO., INC. 123 (d) In any other manner interfering with, restraining, or coercing its employees in th exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Garyl L. Bartlett immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by reason of the 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 compute the amount of backpay due hereunder. (c) Promptly upon receipt from the Regional Director for Region 17 of copies of the attached notice marked "Appendix," " cause such copies to be signed by its representative and posted in conspicuous places at its plant in Kearney, Nebraska, including all places where notices to employees are customarily posted. (d) Maintain such posting for 60 consecutive days, during which reasonable steps shall be taken to prevent such notices from being altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the re- ceipt of this Decision," what steps it has taken to comply herewith. It is further recommended that the complaint herein be dismissed insofar as it alleges that the Respondent is answerable for the conduct of James L. Caldwell. 32 If this Recommended Order should be adopted by the Board, the words "the Recom- mended Order of a Trial Examiner" shall be stricken from the notice, and the words "a Decision and Order" shall be substituted therefor If the Board's Order should be en- forced by a decree of ii United States Court of Appeals, the words "Decision and" shall be stricken from the notice, and the words "Decree of the United States Court of Appeals, Enforcing an" shall be substituted therefor. 33 If this Itecouunended Order should be adopted by the Board, the words "20 days from the receipt of this Decision" shall be stricken, and the words "10 days from the date of this Order" shall be substituted therefor. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to conduct our labor relations in compliance with the National Labor Relations Act, you are notified that: WE WILL NOT discourage membership in any union by restricting our em- ployees to any certain area of our plant, discharging them, or discriminating against them in regard to any other working conditions. WE WILL NOT threaten our employees with reprisal if they should choose any union to represent them as their collective-bargaining agent. WE WILL NOT coerce or try to coerce our employees, as a substitute for bargaining through any other union, to form an employee committee to bar- gain with management. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, 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. WE WILL offer Garyl L. Bartlett immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. Our employees are free to become, remain, or refrain from becoming or remain- ing members of any union. CALDWELL MFG. CO., INC., Employer. Dated- ------------------ By---------------------------------- --- (Representative ) (Title) itle) 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-If the above-named employee is currently serving in the Armed Forces of the United States we will notify him of his right to full reinstatement after dis- ,charge from the Armed Forces, upon application in accordance with the Selective Service Act and the Universal Military Training Service Act of 1948 , as amended. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Regional Office , 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731. Mangel Stores Corporation and Shopper's Fair of Columbiana, Inc. and Amalgamated Clothing Workers of America, AFL -CIO. Case No. 25-CA-1856. October 26, 1964 DECISION AND ORDER On July 10, 1964, Trial Examiner Phil W. Saunders issued his De- cision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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 [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 en- tire record in this case, including the Trial Examiner's Decision, the exceptions, and the briefs, and hereby adopts the Trial Examiner's findings,' conclusions,2 and recommendations. ' We find, in agreement with the Trial Examiner, that the Respondents violated Section 8(a) (1) of the Act by, inter elia, promising economic benefits to Harden. Although the evidence in support of this finding is not spelled out in the Trial Examiner 's Decision, the record shows that General Manager Greenfield asked Harden , on November 23, 1963, whether he remembered what they had talked about 2 days before ; when Harden asked if Greenfield meant the conversation about Harden 's proving himself, working up to depart- ment head , assistant manager, and then to Greenfield' s position, Greenfield replied, "Yes, you can either take the company or the Union." 2 In affirming the Trial Examiner's finding that Harden was discriminatorily discharged, we find, as did the Trial Examiner, that the Respondents' contention that Harden was discharged pursuant to a no-solicitation rule validly promulgated and enforced is without merit. Even assuming the existence of such a rule , the Trial Examiner found, and we agree, that Harden did not violate it, as he engaged in solicitation only on nonworking time in nonselling areas of the store. 149 NLRB No. 19.