Frederick Steel Co.

FREDERICK STEEL COMPANY 5 The Employer purchases water-softening devices within the Stag from Culligan, Inc. It is apparent that the water-softening device is not delivered to the Employer in the same form as when it enters the State. The several items consisting of a tank, valves, fittings, and rubber caps, which come to Culligan, Inc., from outside the State, do not represent all the components of the water-softening device. To them is added another component, a plastic jacket, which is manufac- tured by Culligan, Inc., within the State and which serves to provide insulation and appearance to the device. All these parts are then as- sembled by Culligan, Inc., into a serviceable unit which constitutes the product delivered to the Employer. In the light of the foregoing, al- though the Board is here concerned with a less complicated product than the automobile involved in the Kenneth Chevrolet case, the fact remains, that, in both instances, the product was materially altered through the assembly within the State of the components coming from outside the State so as to render it usable and salable within the State. I would, therefore, contrary to my colleagues, find that the Kenneth Chevrolet case is controlling here. Accordingly, as the flow in commerce was stopped when components of the water-softening device entered the State, I would find that the water-softening de- vices purchased by the Employer were not indirect inflow and that the petition should be dismissed for lack of jurisdiction. Frederick Steel Company and Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. CaRe No. 9-CA-2979. October P20,1964 DECISION AND ORDER On June 1, 1964, Trial Examiner Rosanna Blake issued her De- cision 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 cer- tain affirmative action, as set forth in the attached Decision. There- after, the Respondent filed exceptions and a supporting brief, - Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [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 149 NLRB No. 1. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Frederick Steel Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' 1 In adopting the Trial Examiner 's determination that dischargee Kaylor is not a super- visor, the Board finds it unnecess a ry to rely upon The G,eat Western Sugar Company, 137 NLRB 551 , and the Trial Examiner 's remarks with respect thereto. 2 The Board includes as part of its order the "Armed Forces" provision now appearing in the notice attached to the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on October 2, 1963, by Truck Drivers, Chauffeurs and Help- ers Local Union No. 100, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, herein called the Union , the General Counsel, acting through the Acting Regional Director for Region 9, issued a complaint on November 13, 1963, alleging that Frederick Steel Company, herein referred to as the Respondent or the Company, had engaged in conduct which violated Section 8(a)(1) and ( 3) of the Act. In its answer, Respondent admitted certain allegations of the complaint, such as the commerce allegations , but denied having committed any unfair labor practices. Thereafter, pursuant to due notice, a hearing was held before Trial Examiner Rosanna A. Blake in Cincinnati , Ohio, on January 13, 1964. All parties were rep- resented and were afforded full opportunity to present evidence , to examine and cross-examine witnesses , to argue orally, and to file briefs. The parties waived oral argument. Thereafter, counsel for the General Counsel and counsel for the Re- spondent filed briefs. Having considered the entire record , the briefs, and from my observation of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FACTS; THE LABOR ORGANIZATION INVOLVED Frederick Steel Company, an Ohio corporation, is engaged at its Cincinnati plant in the warehousing of steel . During the year prior to the issuance of the complaint, a representative period , the Company had a direct outflow in interstate commerce of goods and products valued in excess of $50,000, which were shipped directly from its place of business to points outside the State of Ohio. Upon the foregoing undisputed facts, I find , as Respondent admits, that it is and has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union is a labor organization within the meaning of Section 2 (5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The basic issues to be decided are whether Respondent engaged in acts of inter- ference, restraint, and coercion and discharged three employees because of their union activity.' There are substantial conflicts in the evidence and the findings of fact and I For the reasons set forth infra, I conclude that dischargee Edward Kaylor was an employee and not a supervisor as contended by Respondent. FREDERICK STEEL COMPANY conclusions depend upon which group of witnesses is credited, i.e., those called by the General Counsel or those called by Respondent. As the facts set forth below indicate, I have credited generally the witnesses for the General Counsel and have discredited Respondent's witnesses except in those cases in which they made admissions against interest. My discrediting of the testimony of Respondent's witnesses is due in part to the fact that their attitude and demeanor on the stand and their manner while testifying convinced me that they were not testifying truthfully about what happened, when it happened, or why it happened. Still another reason is that, as noted infra, the testimony of Respondent's main witness, Carroll Sears, was frequently evasive and at times self-contradictory. A final reason is Respondent's failure to produce corroborating evidence of some of its claims although, if its assertions were true, such evidence was clearly in its possession. The demeanor of the witnesses for the General Counsel, on the other hand, caused me to believe that they were testifying truthfully. Furthermore, their testimony does not appear exaggerated, it is corroborated in part by that of Respondent's witness Sears, and was in no case refuted by objective evidence. B. Respondent's statements with respect to the Union and its discharge of three union members Sometime in August 1963, a number of Respondent's employees became interested in obtaining union representation and on the afternoon of August 22, employee Ralph East called Local 100 and a meeting was scheduled for 5:30 p.m. on Friday, August 23. Six of the eight employees, including Edward Kaylor, Ralph East, and Donald Cooper, attended the meeting and signed cards. About 11 a.m. on August 23, employee Donald Cooper saw Supervisor Carroll Sears talking on the telephone and immediately thereafter -heard Sears say, "I know what they are trying to do. They are try' ing to get a union in here." 2 At noon the -same day, Sears told a group of employees that Company President Abe Byer was going to give all the employees a raise but "it looked like he's waited too late " One of the men present, Edward Kaylor, commented, "Yes, he has. About three years too late for me." 3 About 9 a.m., on August 24, Sears remarked to Kaylor, "I know what you guys are trying to do . . You're trying to get the union." Although Kaylor denied that he knew anything about the Union, he told Sears, "If they do, I'd vote for it." Sears also told Kaylor that the Union had called President Byer but Kaylor expressed the opinion that the Union would not have done that .4 August 24 was a Saturday and the employees quit work at noon. While several of them were changing their clothes, Sears called on the telephone to say that he wanted to see Kaylor and East in the office. A few minutes later, Sears came for the two men and on the way to the office told them that the Company "was going to get old blood out and new blood in," that it was cutting the payroll, and that President Byer had directed him to get rid of the highest paid man which was Kaylor.5 Later in the office, Kaylor told Sears, ",I know what it's for; it's on account of the union." Sears made no reply.6 Cooper was not at work that day and was discharged on Mon- day, August 26, by Sears who told him they were cutting the payroll and were letting Cooper go because he was one of the youngest men? 2 The above finding is based on the credited testimony of Cooper. The complaint alleges and Respondent's answer admits that Sears is a supervisor within the meaning of Sec- tion 2(11) of the Act. s The above findings are based on the credited testimony of Kaylor, Cooper, and Hardwick. 4 The above findings are based primarily on the credited testimony of Kaylor. I also credit the testimony of East that he overheard Sears tell Kaylor that he knew the em- ployees were trying to get the Union and reject Respondent's contention that East's testi- mony was based on a later conversation between himself and Kaylor. If Crawford had In fact called Byer on the morning of August 24, I am sure that he would have so testified which he did not 5 Sears testified that "the highest paid man was mentioned. Something, I forget who said it, or how it was said, but the highest paid man was mentioned. That I do know. Right." I Sears testified that Kaylor asked If the discharges were "on account of the union?" and he replied, "What union?" 7 The findings In the above paragraph are based on the credited testimony of Kaylor, East, and Cooper. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly before noon on Saturday, Sears told employee Hardwick that he was going to discharge two men but gave no reason. Hardwick asked if he was one of the two and Sears said, "No." That afternoon, Sears called Hardwick at home and asked, "You boys are trying to get a union in there, ain't you?" When Hardwick replied, "Well, I guess so," Sears asked, "How do you feel about it?" Hardwick answered that he had to "go along with the boys" and then asked why the men were dis- charged. According to Sears, Kaylor was discharged because he was absent from work too much, East because he had not been employed "long," and Cooper because he "couldn't live up to his job." a The Board conducted an election at Respondent's plant a few days before the hearing. After East had voted, he stayed on the premises talking to a union rep- resentative and President Byer came out and asked if he had voted. When East said he had, Byer told him to "get [his] off of [Byer's] property." C. Respondent's contentions with respect to the discharges 1. Respondent's denial that it knew about the union activity Respondent's initial contention is that it did not learn of the union activity until after the decision had been made to discharge Kaylor, East, and Cooper. However, the credited testimony of the employees discloses that Sears knew that the em- ployees were "trying to get a union" even before the union meeting was held. 2. Respondent's testimony concerning the reasons for the discharges According to Respondent's witnesses, about 11 a.m. on August 24, President Byer spoke to Warehouse Superintendent Sears about "complaints" from the Com- pany's sales force concerning deliveries and told Sears that some changes would have to be made.1e Sears testified that he told Byer that the trouble was that he did not have "qualified" men whereupon Byer told him to "get rid of some of them. Let's get some new blood in. Let's get someone that can help you." Sears testified that he told Byer that Kaylor was absent too much, that Cooper was slow and incompetent, and that East had damaged a truck a few days before.ii East testified that on Friday, August 23, he was driving a truck loaded with 9 tons of steel and the brakes failed. He was unable to stop the truck but managed to slow it down by getting it in low gear. He was "right in the middle" of the street, the parking lanes were full he was sure the truck would be "tagged" if he left it, and it would have cost 10 or $15 to have the truck towed in even if he had been able to leave it to go call a wrecker. Under these circumstances, he drove it in low gear about 5 miles an hour the 10 to 15 blocks to the plant. East testified without denial that he had never been given instructions about what to do if such a situation arose.ia According to Sears, the truck, a 1948 model, was in good condition having been reconditioned 2 or 3 months earlier after not having been driven for "a few years." 13 8 The above findings are based on the credited testimony of Hardwick. Sears testified that he called Hardwick in part to find out "what [he] thought of what I did." When Sears was asked whether he questioned Hardwick about the Union, his answers were evasive and he first testified that the "word ' union' 11 was not mentioned until after August 24. However, almost immediately thereafter he admitted that "the word was men- tioned [in the conversation with Hardwick] after I got home from work on August 24th." Sears also admitted that he had never called Hardwick before with respect to discharge. 8 The above findings are based on the credited testimony of East. 18 Respondent's witnesses did not name either the salesmen or the customers who had made the complaints and even more significantly did not state when the complaints had been received. The salesmen were not called as witnesses. 11 Although Byer testified that Sears told him that "some of the men in the warehouse are not doing the right thing by me," he did not testify concerning the nature of Sears' criticisms of the men. 12 There is no basis in the record for the statement in Respondent's brief that East "re- fused" to follow a "directive" to notify the Company if a major equipment problem arose. 11 When Sears was first asked the "state of repair of the truck," he answered, "what do you mean by that?" Sears testimony that the truck had been reconditioned is not credited, in part because of the Company's failure to produce any records indicating that any work had been done on the truck. FREDERICK STEEL COMPANY 9 Sears also testified that East's action in driving the truck after the brakes failed "tore the wheel up" and that it cost the Company $100 or more to have it repaired. He also testified that the Company should have the bill but it was never produced. On cross-examination, Sears was asked the following questions and gave the fol- lowing answers: Q. And you told [East] about this when you fired him? You said, "Now I'm letting you go because you tore up the truck?" A. I don't think I brought that out at the moment I laid him off. Q. As a matter of fact, you told him you were letting him go because he was the youngest man, or something like that , to cut the payroll? A. No. No. I don't think that was the way it was mentioned. I men- tioned it in some manner, as-to be honest with you I don't remember the exact words. Q. Well, did you tell him it was for tearing up the truck? A. I told him it was one of the incidents. Q. Oh, you did tell him? I thought you said you didn't tell him that. A. Well, it was more or less a conversation for about two or three minutes and I don't remember what all I did tell him, but I'm almost positive that that was one of the things I did tell him. I also told him he was the youngest man there, which was true. Q. And you were cutting the payroll? A. That I'm not sure of. Q. Well, could you have said that? A. I wouldn't have said I was cutting the payroll; that wouldn't be the way I was putting it. I would put it in some other manner . The same reason I told Donald Cooper that the reason I let him off, I didn't come out and tell him he was strictly no good for nothing, if that's what you have reference to. In view of the foregoing testimony, I find that Sears did not mention the truck incident when he discharged East and that, instead, he told East that the payroll was being cut and East was selected for discharge because he was one of the youngest men 14 Cooper had been employed by Respondent for about a year and I credit his testimony that there had been no complaints about his work. In July 1963 he wanted to buy a house and applied for a loan to be guaranteed by the Veterans Administration. He was given a request for verification of employment to be filled in by his employer which he showed to Sears who told him that the book- keeper, Hoenemeyer, would have the information. Cooper took the form to Hoenemeyer who later returned it-filled in and bearing Hoenemeyer 's signature. One of the questions asked was "Probability of continued employment ..." and the word "good" had been written in the space provided.is In a conversation with Sears about the same time , Cooper commented that he wanted to get "established" to which Sears replied that he did not know "how it will be 20 years from now." When Cooper asked, "How are my chances now?" Sears said, "They're good." 10 Cooper was hired as a ahearman and Sears admitted that he could shear steel but asserted that he was too slow and was generally incompetent. However, he cited only one example of Cooper's slowness and the incident to which he referred occurred the previous October. 17 Although the record indicates that Cooper was 'A East was hired in May 1968. It is undisputed that Respondent hired two new em- ployees the week of August 26 and began employing "spot " or part-time men more fre- quently than in the past. 36 Although Respondent raised the question of whether the bookkeeper had authority to state what Cooper's job prospects were, it did not deny that Hoenemeyer had, such author- ity and did not claim that Hoenemeyer did not in fact know what Cooper 's job prospects were in July 1963 . That Hoenemeyer had some personnel functions is disclosed by the fact that he interviewed Cooper when the latter first applied for a job. 16 The findings with respect to Cooper's loan application and his conversation with Sears are based on Cooper's undenied and credited testimony. 17I credit Cooper's testimony that the only time^he did a job for Hoenemeyer was 8 weeks after he was hired and I discredit Sears ' testimony that Cooper did the job for Hoenemeyer only a few weeks before Cooper's discharge. Hoenemeyer was not a witness. I also discredit Sears' testimony that in early August he suggested to Cooper that he look, for another job because he would never get "established" at Frederick Steel. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somewhat slow, I credit his testimony that he never took an "abnormal length of time" to do a job and that he was "careful to lay out his work" because he "love[d] the quality of work" and "hate[d] to see truck loads of steel go out and come back." In any. event, I am convinced and find that Cooper's job prospects were "good" before he joined the other employees in trying to get a union and that he was not discharged because he was slow or incompetent. See also Sears' testimony, set forth supra, which indicates that he did not tell Cooper that he was being discharged because of his poor work record. Kaylor had worked for Respondent for 7 or 8 years and its records show that throughout the entire period be had frequently been absent for several days at a time. Its records also show that he was absent several days during each of the last 3 weeks before his discharge.18 That Kaylor's recent absences were not suf- ficiently unusual to impress themselves on Sears' mind is revealed by his admission that he could not recall whether Kaylor had been absent "recently." He then added, "Yeah, he had been off recently. Just how much, I'm not sure." Sears testified that he told President Byer that: If [Kaylor] was to work everyday then it would be much easier on me and I could, maybe wouldn't have had complaints, maybe I would have corrected them whatever they were. Maybe I had too much work at the time or some- thing. I'm not sure. [Emphasis supplied.] It is probably true that Sears had on occasion complained to Kaylor about his absences but I do not believe that he had "warned" Kaylor that he would be dis- charged if his attendance did not improve.19 Sears had tolerated Kaylor's absences for years and the reason is plain. i e., that Kaylor was, as Sears admitted, a very good workman. In other words, Kaylor was sufficiently valuable when he was present that Respondent was willing to retain him despite his habit of being absent more or less frequently. Moreover, the credited testimony of Kaylor and East shows that Sears did not refer to Kaylor's recent absences when he discharged Kaylor. 3. The supervisory question As stated supra, Kaylor had been employed by Respondent for 7 or 8 years at the time of his discharge. His rate of pay was $1.85 an hour, 15 cents an hour more than that received by any man in the shop other than Supervisor Sears. He was hired originally as a truckdriver but did "everything" around the shop including running the burner and the crane and weighing and filling orders. Kaylor testified that he, along with Sears, had a key to the plant and that he substituted for Sears when the latter was on vacation or went to the doctor or was late getting to the plant because of snow. He further testified that Sears told him that at such times he could fire the employees if he wanted to but that when Sears was present he had "no right to fire nobody." It is also clear from his testimony that Kaylor "directed" the men when Sears was absent and did so at times when Sears was present. Sears, on the other hand, testified: I used Ed Kaylor more nor less as a foreman under me. I would give him orders, for example, to fill and be would fill them and take the men and instruct them. When I was on vacation he would do the same thing. Occasionally he would call me at home if something came up, or if I had to be out for something . .. . He was a good man, he was a good leader. I could give him orders; we have an outside department more or less. We don't work out there all the time, maybe on the average of an hour a day, two or-three men. He would take men, go out. get beams, load my truck and give me the tickets back. In most cases, I would fill them out, give them to the driver and that was it.20 18 Employee Hardwick testified that Kaylor's work record was no worse than that of some of the other employees . Respondent presented no evidence concerning the attend- ance records of-the other employees and did not contend that Kaylor's record was the worst or even one of the worst. 1e Although Sears testified that he had warned Taylor , he did not state when he had done so. 20 Sears also testified that Respondent's attorney asked him if Kaylor was "more or less a supervisor under me, and I stated yes." At another point, Sears testified that Kaylor' "was used as a leader more or less for the men, and so was I . . . I would work the orders, Ed and I together." - FREDERICK STEEL COMPANY 11 According to Sears, when he went on vacation , he told the men that Kaylor "was the boss, he had the right to fire [the] men if they didn't work for him as he seen fit during the time that I was off . Any other time, if he had complaints, he would come to me and present them ... " 21 Sears then went on to say that Kaylor had complained about Cooper but it is clear that Sears took no action based on Kaylor's complaints.22 Sears' testimony convinces me that when Sears was present, Kaylor was nothing more than a leadman who carried out Sears ' instructions and whose job amounted to nothing more than "keep [ing] all hands busy ." In other words, "the discretion given [Kaylor] appears to be routine in the natural sense of that word ." Precision Fabrica- tors v. N.L.R.B., 204 F. 2d 567, 568, 569 (C.A. 2). In Sears' absence, Kaylor's responsibilities were certainly greater than they were when Sears was present and in theory at least he had the authority to discharge. Sears' absences , except for his vacation , were clearly limited to a few hours now and then when he had to go to the doctor or was late getting to work because of snow.23 Moreover, Sears' testimony that Kaylor called him at home "if anything came up," indicates that Kaylor's authority even during Sears' absences was limited to handling routine matters and carrying out Sears' orders. Thus, unlike the control operators whose status was an issue in Ohio Power,24 Kaylor did not "engage regularly" in the "basic act of supervision ." At most, he substituted "sporadically" for a supervisor and the Board has held that such substitution does not make an employee a super- visor. Webb Fuel Company , 135 NLRB 309, 310-312. Cf. United States Gypsum Company, 114 NLRB 523, 526, 527; Archer Mills, Inc., 115 NLRB 674, 676; Sears, Roebuck & Company, 112 NLRB 559, 562. As the Board pointed out in The Great Western Sugar Company , 137 NLRB 551, 552-553 , to hold that employees who spend the "bulk" of their working time as rank- and-file employees are not entitled to the benefits of the Act would deny them the right to ,bargain collectively for the terms and conditions of employment which govern their basic relationship with their employer. In the instant case , it is clear that there was no change in Kaylor's rate of pay, hours, or other benefits during the infrequent and brief periods when he substituted for Supervisor Sears. It is also clear that he was not acting as a supervisor at the time he was discharged and there is no evidence that he had substituted for Sears anytime recently. On the basis of the facts and for the reasons set forth above, I conclude that Kaylor was not a supervisor within the meaning of Section 2 ( 11) of the Act 25 D. Analysis and conclusions On August 22, employee East called the Union and arranged for a meeting after work on August 23. Six of the Company's eight employees attended the meeting and signed cards. Respondent learned , even before the meeting , that the employees were trying to get a union in the plant and on the day after the meeting decided to discharge Kaylor, East, and Cooper, three of the six men who had attended the meeting the night before and signed cards . Before the discharges, the Union represented six of the Company's eight employees, a clear majority: after the discharges, the Union rep- resented only three of seven employees , a clear minority.2e ' Employee Hardwick was given a key to the plant after Naylor was discharged and testified that he did not know whether or not Naylor had authority to hire or fire. He agreed that Naylor "directed the work" but added. "He wasn't no boss that I--know of." 92 Sears testified that Naylor had complained about Cooper and then added: I don't remember the exact date. I don't remember when -it happened., I don't even remember the incident. I don't remember what it was, but Ed came to me once and mentioned some relations to Cooper not being a good employee. Sears later estimated that the Naylor report came "within thirty days or two weeks of the time of the layoff." m Although the record does not indicate clearly how much vacation Sears took, it sug- gests that it was only a week. 54 Ohio Power Company v. N.L.R.B., 176 F. 2d 385, 387 (C.A. 6), cert. denied 338 U.S. 899. se Naylor testified that he was "quite sure" that he began substituting for Sears prior to an election conducted by the Board about 5 years earlier and that he voted in the election. Sears likewise testified that Naylor's duties had been the same throughout most if not all of his employment. 2$ As set forth supra, two new employees were hired the week of August 26. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The decision to discharge Kaylor, East, and Cooper was made shortly before noon on August 24 and Respondent's own testimony shows that until that time there had been no discussion about discharging anyone. According to Respondent, however, on the morning after the union meeting, President Byer reported "complaints" from un- disclosed salesmen and when Sears attributed the difficulties to Kaylor and Cooper, at least, Byer told him to get rid of the "old blood" and get in "new blood." Although coincidences do happen, I am unable to conclude that the -decision to discharge the three men was wholly unrelated to their union activity.27 If the complaints had been serious or if they had just been received, I am sure that Respondent's witnesses would have named names and dates instead of testifying only in generalities. I am even more certain that Respondent's failure to produce the bill for the repairs on the truck allegedly damaged seriously by East was due to the fact that Sears' testimony concerning the damage was greatly exaggerated. In assessing the explanation for the discharges given by Respondent's witnesses at the hearing, it is also significant that Sears at first admitted that he did not mention the truck incident at the time he discharged East and I have found that he did not tell Kaylor that he was being discharged for absenteeism or Cooper that he was being discharged because he was incompetent. On the contrary, Sears told the men that the Company was cutting the payroll and that Kaylor was selected because he was the highest paid man and Cooper and East because they were relatively new employees. It is therefore apparent that the reasons given by Respondent's witnesses for the dis- charges were afterthoughts put forward after the event in an effort to justify the Company's action. Cf. N.L.R.B. v. Sawyer Downtown Motors, Inc., 213 F. 2d 514, 516 (C.A. 7). Moreover, Kaylor's absences were nothing new but had occurred so frequently over the years that Respondent must have come to expect and accept them as a necessary evil. As one court pointed out long ago in a similar case, the "dif- ficulties" inherent in Kaylor's case "only became seriously unsupportable to his employer" when he joined with the others in trying to get a union in the plant. Agwilines, Inc. v. N.L.R.B., 87 F. 2d 146, 154 (C.A. 5). As for Cooper's alleged incompetence, his job prospects were stated to be "good" in July before he had engaged in any union activity. Then on August 24, after he and other employees had attended a union meeting and signed cards, Respondent discharged him al- legedly because his work had always been unsatisfactory. In addition, when Kaylor told Sears he knew that he and the others were being discharged "on account of the Union," Sears did not deny it. And finally, when President Byer told East, shortly before the hearing, to "get [his] off the premises," Byer disclosed his hostility not only toward East but to the employees' efforts to obtain union representation of which the Board-conducted election was an integral part. The timing of the discharges (Angwell Curtain Company, Inc., v. N.L R.B , 192 F. 2d 899, 903 (C.A. 7) ), Respondent's hostility toward the Union (Hendrix Manu- facturing Company, Inc. v. N.L.R.B., 321 F. 2d 100, 103-104 (C.A. 5)), the de- meanor of its witnesses while testifying (N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408) and the failure of Respondent's explana- tions to stand up under scrutiny (N.L.R.B. v Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5)), convince me and I find that whatever the shortcomings of the employees may have been,' none of them would have been discharged but for his part in the effort to obtain union representation . Needless to say, the fact that Respondent may have had grounds for discharging the three men does not 'mean that the trier of fact must conclude that they were or would have been discharged for those reasons. It is well settled, of course, that "If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the Na- tional Labor Relations Act." N.L.R.B. v. Jamestown Sterling Corp., 211 T. 2d 725, 726 (C.A. 2). See also N.L.R.B. v. Hudson Pulp & Paper Corporation, et al., 273 F. 2d 660, 666 (C.A. 5): >`i.L.R R. v. C & J Camp, Inc., et al. d/b/a Kibler- Camp Phosphate Enterprise, 216 F. 2d 113, 115 (C.A. 5). For the foregoing reasons, I conclude that a preponderance of the evidence establishes that the motivating cause for the discharge of Kaylor, East, and Cooper was their participation in the employees' efforts to obtain union representation and their discharge violated Section 8(a) (3) and (1) of the Act. 27 As the court said in Angwell Curtain Company, Inc v. N L R.B., 192 F -2d 899, 903 (C.A. 7), "It stretches credulity too far to believe that there was only a coincidental con- nection between [ the employees ] enthusiastic solicitation on behalf of the Union on Mon- day, Tuesday , and Wednesday and the abrupt termination of [their ] employment on Thursday when there was plenty of work . . . . FREDERICK STEEL COMPANY 13 Sears' comment to Kaylor on the morning of August 24 that he knew that the employees were trying to obtain union representation was designed to and did cause Kaylor to disclose his attitude toward the Union just as did Sears' direct question of Hardwick that afternoon. Furthermore, Sears' statement that President Byer was going to give a wage increase but it "looks like he 's waited too late" could reasonably be interpreted by the employees as meaning that there would be no wage increase because they had started a union campaign, there being no evidence of any other event which could have caused Sears to conclude that it was now "too late." Cf. Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F. 2d 100, 103-104 (C.A. 5). Having interrogated its employees concerning their union sympathies, both immediately before and after the discharge of three union mem- bers, and having during the same period told the employees that a proposed wage increase would not now be forthcoming, I find that Respondent interfered with, restrained, and coerced its employees within the meaning of Section 8 (a)(1) of the Act III. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recom- mend the customary cease-and-desist order and the affirmative relief which is con- ventionally ordered in cases of this nature. Any backpay found to be due Kaylor, East, and Cooper shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Since discrimination against employees because of union activity goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), and demonstrates such opposition to the policies of the Act that it is reasonable to assume that the Employer will, under similar circumstances in the future, interfere with its employees' rights under the Act, I shall include in my Recommended Order a provision directing Respondent not to interfere with, restrain, or coerce its employees in any manner in the exercise of their statutory rights. Since it is clear that Respondent's conduct was not based on the identity of the Union involved but resulted from its opposition to all union activity among its employees, my Recommended Order will prohibit interference with the em- ployees' right to engage in activity on behalf of the Union or any other labor organization. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union sympathies and by telling them that a proposed wage increase would not be forthcoming, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. Edward Kaylor was an employee and not a supervisor within the meaning of Section 2 (11) of the Act. 5. By discharging employees Kaylor, East, and Cooper because of their union activity, Respondent has engaged in an unfair labor practice within the meaning of Section 8 (a) (3) and (1) of the Act. 6. The unfair labor practices set forth in paragraphs 3 and 5, above, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not threaten its employees with discharge because of their union activity. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Frederick Steel Company , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sympathies and telling them that wage increases or other benefits will not be forthcoming because of em- ployee efforts to obtain union representation. (b) Discouraging membership in Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees because of their union membership or activity. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist Local Union No. 100, or any other labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action: (a) Offer Edward Kaylor, Ralph East, and Donald Cooper immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under this Recommended Order. (c) Post in its plant copies of the attached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Director for the Region 9, shall, after being signed by Respondent's representative, be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.29 It is further recommended that the complaint be dismissed in all other respects. 28In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 29 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT question employees concerning their union sympathies and will not tell employees that wage increases or other benefits will be withheld because of their efforts to obtain union representation. WE WILL NOT discourage membership in Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chaf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. 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 Truck Drivers, Chauffeurs and Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Edward Kaylor, Ralph East, and Donald Cooper immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses they may have suffered as a result of our discrimination against them. PARIS MANUFACTURING COMPANY 15 All our employees are free to become , remain, or to refrain from becoming or remaining members of the above-named or any other labor organization except to the extent that such a right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act. FREDERICK STEEL COMPANY, Employer. Dated------------------- BY------------------- (Representative ) (Title) ------------------------ NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they have any question concerning this notice or compliance with its provisions. Paris Manufacturing Company and United Furniture Workers of America, AFL-CIO. Case No. 1-CA-4342. October 20, 1964 DECISION AND ORDER On March 25, 1964, Trial Examiner Eugene E. Dixon 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 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. There- after, the General Counsel and the Respondent filed exceptions to the Decision with supporting briefs. 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions, with the following modifications.' ' We find it unnecessary to pass upon the Trial Examiner 's .5(a) (1) finding . based on the notice posted by the Respondent on September 16, 1963, warning its employees against attending a special union meeting scheduled during working hours off the Employer's premises. The Trial Examiner inadvertently omitted the customary paragraph entitled "The Remedy" from his Decision. Accordingly, we shall incorporate herein the following remedial language : "Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, the Board will order that it cease and desist therefrom, and take certain affirmative action in order to effectuate the policies of the Act." 149 NLRB No. 8.