Webb Manufacturing, Inc.

WEBB MANUFACTURING, INC. 827 meet with us and negotiate for or represent the employees in the above bargaining unit as their exclusive bargaining representative. WE WILL. NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Congress in Section 7 of the National Labor Relations Act, as amended, by refusing or failing to recog- nize, meet, or bargain collectively in good faith with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405, as the exclusive bargaining representative of our employees in the above unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. TENNESSEE PACKERS, INC. FROSTY MORN DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. Webb Manufacturing, Inc. and Larry A. Cline and William E. Montgomery and United Steelworkers of America , AFL-CIO. Cases Nos. 8-CA-3600, 8-CA-3600-3, and 8-CA-3605. August 31, 1965 DECISION AND ORDER On June 8, 1965, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Brown and Zagoria]. 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, the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. 154 NLRB No. 63. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modi- fied herein, and orders that the Respondent, Webb Manufacturing, Inc., Conneaut, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : 1. Immediately after the word "by" in paragraph 1(a) of the Recommended Order and in the first indented paragraph of the notice, insert the words "discharging employees or otherwise." 2. Add the following as paragraph 2(b) of the Recommended Order and reletter consecutively the subsequent paragraphs : "(b) Notify Larry Cline and William Montgomery, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 3. Delete the seventh indented paragraph of the notice. 4. Delete the paragraph in the notice immediately following the last indented paragraph, and substitute the following paragraph : "All our employees are free to become or remain, or refrain from becoming or remaining members of United Steelworkers of America, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner, Alba B. Martin in Conneaut , Ohio, on December 9 and 10, 1964, on complaint' of the General Counsel and answer of Webb Manufacturing, Inc., Respondent herein. The issues litigated were whether Respondent violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. At the hearing Respondent presented oral argument. The General Counsel filed a brief which has been considered. At the conclusion of all evidence decision was reserved on Respondent 's motion to dismiss the complaint. This motion is hereby disposed of in accordance with the conclusions and recom- mendations below. 1 The charge in Case No . 8-CA-3600 was filed August 18 and served upon Respondent August 21 , 1964. The charge in Case No . 8-CA-3600-3 was filed September 3 and served upon Respondent September 10. The charge in Case No . 8-CA-3605 was filed August 25 and served upon Respondent August 26. All events herein occurred in 1964. WEBB MANUFACTURING, INC. 829 Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation with its offices and principal place of business in Conneaut, Ohio, where it is engaged in the manufacture and sale of wooden window frames and grills. In the course and conduct of its business Respondent annually ships and transports in interstate commerce products valued in excess of $50,000 from its place of business in Conneaut, Ohio, directly to States of the United States other than the State of Ohio. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent's plant is run principally by a father and son team, Howard Webb, president and owner of the corporation, and his son, Dale Webb, vice president of the corporation and plant manager of the plant. Dale is 25 years old. At the time of the events herein a number of its approximately 45 employees were 19 or 20 years old or in their early twenties. The status of Leon Brundage, age 36, Frank Hicks, and Robert Murray, age 46, as supervisors under the Act, is in dispute. II. THE LABOR ORGANIZATION INVOLVED The United Steelworkers of America, AFL-CIO, herein called the Steelworkers, the Steelworkers Union, and the Union , is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The supervisory status of Robert Murray, Leon Brundage, and Frank Hicks In August 1964, Murray, Brundage, and Hicks were known to the employees as supervisors over their respective departments, Murray over the cutting and dado department, Brundage over the railing department, and Hicks over the chipping department. They took their orders from and were directly under Vice President and Plant Manager Dale Webb. If they did not have supervisory authority, then Dale Webb was the only supervisor over the approximately 45 employees Respond- ent had in August 1964. It was unlikely that the plant manager had no supervisors between him and the employees. Murray discharged Larry Cline August 6 and signed the discharge slip as "super- visor." 2 In May, Hicks expressed to Vice President Webb dissatisfaction with the work of an employee and the employee was soon transferred out of Hicks' depart- ment. It thus appears that Hicks had authority effectively to recommend the trans- fer of employees. Each of these three men responsibly directed the work of the employees in his department, told them what order or job to do next, and which were rush orders. On rush orders they pressed employees for greater speed. These three men transferred employees from one machine to another and instructed new employees. Murray adjusted a grievance of an employee. Employees were told to take their grievances to them. Once evening in July, all three attended a "super- visors' meeting" to increase production, to try to figure out short cuts, to try to eliminate mistakes between departments. Murray and Hicks having visited the Board's Regional Office in Cleveland where they were shown the language of Section 2(11) of the Act, they concluded that they were supervisors and because of their supervisory status resigned their positions as leaders of the shop committee. Upon the above testimony, most of which was undisputed, and the entire record, I conclude and find that at the times material herein, Murray, Brundage, and Hicks had authority, in the interest of Respondent, responsibly to direct employees, to assign employees, to discharge employees, to hear and adjust grievances, and effec- tively to recommend the transfer of employees; and that the exercise of such authority was not of a merely routine or clerical nature but required the use of independent judgment. It follows and I find that Murray, Brundage, and Hicks were supervisors within the, meaning of Section 2(11) of the Act. 2 Although Plant Manager Dale Webb also signed the discharge letter and actually made the decision to discharge Cline , Murray executed the discharge and the reasons Murray gave Cline were the same ones Dale Webb gave Cline a few minutes later. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Self-organization of the employees and Respondent's reaction thereto In late July three of Respondent's young employees, David Helberg, William Montgomery, and Larry Cline, undertook to persuade Respondent's employees to join the Steelworkers. Helheig obtained Steelworkers cards and these three employees solicited employee sign.qt,,res on the cards at employees' homes, outside the plant, and in the plant parkin;; lot during employees' lunch hours and after work. An organizational meeting for the Steelworkers was planned to be held during the evening of August 6 in the Moose hall in Conneaut. Early August 6, just before the beginning of work, Vice President Dale Webb approached employee Duane Bogart in the plant and asked him if he had heard about the meeting to be held that night. Bogart replied in the negative. According to the undenied and credited testimony of Bogart, Vice President Webb required him to go to the meeting "if invited" and to report to Vice President Webb afterward what happened at Cie meeting. Vice President Webb testified that on August 6 about 2 p.m. he learned in a telephone call from a friend who did not work for Respondent that it was the Steel- workers Union which was trying to organize the plant. In substance, Vice President Webb testified that this was the first he had known the identity of the Union involved. After the conclusion of his day's work that day, August 6, Bogart went to Vice President Webb's desk in the plant and, according to the credited testimony of Bogart, told Webb that he was "going for sure" to the meeting. They arranged that afterward Bogart would telephone Webb. Vice President Webb told Bogart that Larry Cline was no longer working for the Company (Cline had been discharged a few minutes before). In substance Webb asked Bogart the identity of the employees who were behind the union movement and from a list of names singled out several names, including Cline and Montgomery, whom he suspected. Bogart refused to reveal any names. On the witness stand Vice President Dale Webb first admitted and later denied that at this time he had a list of those he suspected of promoting a union. In his pretrial affidavit given to a Board agent he admitted that by his own set of marks on lists of employees on his desk "I use these lists for keeping track of the employees and their attitude and deciding who works where, when and on what." He testified here that his symbols on the list stand for employees who come in at different times, regular employees, those he has to "regulate their jobs more than others," but that he had no symbol for those suspected of attempted unionization. As in his affidavit Dale Webb admitted keeping track of employees' attitude, and as in testifying here he admitted suspecting, on August 6, that Cline and Montgomery, and others, were engaging in organizational activities; and as Duane Bogart by his demeanor as a witness impressed me that he was trying, in his difficult position, to tell the truth; I find on the entire record that, as substantially testified by Bogart, Vice President Webb asked him the identity of those who were promoting for the Union and let Bogart know that he suspected Cline and Montgomery among others. By Webb asking Bogart if he had heard about a meeting, referring to a union meeting, to be held that evening; by asking him to go to the meeting and report back what occurred; and by asking him the identity of employees who were promoting for the Union; Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(1). After the meeting that evening Bogart telephoned Vice President Webb and they arranged to meet at President Howard Webb's boat at the Conneaut Yacht Club. They met at the boat in the dark and Bogart told Vice President Webb "some of the things they were going to bargain for" and they talked about those things. C. The shop committee and its transformation into an independent labor organization to compete with the Steelworkers Prior to the employee efforts to bring the Steelworkers into the plant, the so-called shop committee, which came into existence several years before, had been an orga- nization established to regulate gift and flower giving to sick and injured employees and to plan parties and picnics for the employees. For some years Respondent had been deducting a dollar a month from the wages of all employees, old and young, and including office girls, which it turned over to the shop committee. The older employees gave permission for this deduction but the younger employees never did. All employees were considered "members" of the shop committee although some of them never signed up for it. The shop committee paid half of the cost of the several employee functions each year and Respondent paid the other half. WEBB MANUFACTURING, INC. 831 For some time prior to August 1964, the shop committee had been administered by the three supervisors, Hicks, Murray, and Brundage. Hicks was chairman and Murray Brundage were the two "committeemen." Within a few days of the August 6 meeting of the Steelworkers, Supervisors Hicks, Murray, and Brundage began to convert the shop committee into a collective-bar- gaining labor organization to compete with and curb the Steelworkers. Supervisor Brundage asked at least two young men in the shop to help make the conversion, and told at least one of them, Terry Lame, that the committee to plan the conversion would consist of three older fellows and three younger ones. The three older ones were Hicks, Murray, and Brundage. Hicks and Murray held several meetings at the latter's house attended also by the three younger employees for the purpose of dis- cussing and planning the conversion. On August 11, during working hours, Hicks and Murray left the plant and went to the Board's Regional Office in Cleveland, Ohio, to seek information about con- verting the shop committee into an independent labor organization. Although they were away from the plant 6 hours including the lunch period during their shift and were punched out or marked out during that period, they were each credited on their timecards with 8 hours for that day's work even though they were punched in or marked in only some 3 to 4 hours each. Murray testified in substance that they were told at the Regional Office that if there was a possibility they were supervisors they should resign from the shop committee. They read Section 2(11) of the Act and concluded that some of their duties coincided with some of the provisions of that sec- tion. Murray testified that they were also advised to get a lawyer, and that they would need cards signed by at least 30 of the employees in connection with a petition for an election. Upon their return to Conneaut, Hicks and Murray asked Supervisor Brundage to have cards prepared for the shop committee. Brundage had collective-bargaining cards printed using the same basic language as on the Steelworkers cards. Brundage testified that he told the printer to bill Frank Hicks for the job and that Hicks paid for it. Biundage testified that he himself passed out 10 or 15 of these shop committee cards to employees on company time and some of them were passed back to him signed. Brundage also asked employee Duane Bogart to pass out some cards and Bogart did so during working time. So did employee Richard Murphy. Bogart credibly testified that he passed these cards out right in front of Plant Manager Dale Webb and that Webb saw him doing it. Although Webb substantially denied this testimony, by his demeanor and certain parts of his testimony Dale Webb did not impress me as a credible witness and I do not credit his denial. Employee William Montgomery credibly testified that these shop committee cards were being passed out during working hours for 2 days. Employee Terry Laine, who impressed me as an honest and credible witness, testified that he had a desk which was adjacent to Dale Webb's desk and that he signed one of the shop committee cards at his desk while Webb was sitting at his desk. Credited also is Laine's further testimony concerning the shop committee cards that he and Plant Manager Webb "discussed very generally the cards and about who signed them. We checked off the list of the employees who had signed them and who had not signed them." Upon the basis of the testimony credited in this paragraph, and the entire record, I conclude that Vice President and Plant Manager Dale Webb knew that the shop committee cards were being distrib- uted in the plant and signed by the employees on company time. Somewhat later but still in August, Chairman Hicks called a special evening meet- ing of the shop committee in the plant lunchroom where all shop committee meetings were held. The meeting was announced by a typed notice on the company bulletin board. About 35 or 40 of the plant's 45 employees were present, all on their own time. At this meeting Hicks, Murray, and Brundage resigned their top posts on the shop committee, Hicks giving as the reason his belief that they were supervisors, that their action was in the best interest of the employees, and that their action "would keep the Shop Committee from being bogged down " This action evidently also removed them as members of the conversion committee. Then Supervisor Murray nominated employee Terry Laine as the new chairman of the shop committee and Lame was elected The latter credibly testified without contradiction that prior to the meeting "apparently the whole plant knew that Hicks was going to resign," and Dale Webb suggested that "I take the chairman, hip if I had a chance to." Supervisor Brundage continued on the shop committee's finance committee and his signature on checks continued to be one of the two signatures necessary for the bank of honor shop committee checks. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also at this meeting a negotiating committee was elected consisting of Terry Laine, chairman, and five other employees . Three of these committeemen, Laine, Barker, and Murphy, were the same three employees who had earlier served on the conversion committee with Hicks, Murray, and Brundage ; and three other employees were added: Kesati, Rivers, and Fails. This negotiating committee sought and was immediately granted an interview with President Howard Webb . Both Webbs were present. In the interview the commit- tee sought recognition of the shop committee as an independent union, a minimum wage of $2 per hour, and paid holidays. President Howard Webb replied in substance that he could do nothing at that time because his hands were tied. He added that "In order to get that (the Shop Committee) through 100 percent of his men would have to stand behind him." From the above it is seen and I find that to compete with and curb the efforts of certain employees to persuade the employees to join the Steelworkers Union, Respond- ent through its supervisors organized a committee to convert the shop committee into a collective-bargaining labor organization . Respondent determined how many employees should serve on this committee and selected the employees to serve on it. Respondent itself participated in the activities of this conversion committee through its supervisors. Supervisors sought advise from the Board 's Regional Office in con- verting the shop committee into a labor organization . Supervisors had the shop committee's collective -bargaining cards printed and distributed , and Respondent's vice president knew that they were being distributed on company time. At this stage the three supervisors resigned because they thought they were supervisors within the meaning of the Act, and one of them nominated the new chairman , who had previ- ously been urged to take the job by Vice President Webb. One supervisor, Brundage, continued on the shop committee's finance committee . Three employee-members of the shop committee's negotiating committee were the same employees who, upon appointment by supervisors , had served on the conversion committee . This com- mittee sought and had a meeting with President Webb for the purpose of gaining recognition and of dealing with Respondent concerning wages, rates of pay, and paid holidays. Thus Respondent not only furnished the original impetus for the shop committee and for its conversion into a collective -bargaining labor organization , but prescribed the nature, structure, and function of it as a labor organization . Respondent deter- mined to form a labor organization to compete with the Steelworkers; that that labor organization should be achieved by converting the shop committee; and who should serve on a committee to figure out what to do to accomplish the conversion. In addition to the above elements of Respondent's domination of the shop commit- tee in its formation as a labor organization , Respondent furnished the shop committee with a meeting room at no charge, Respondent allowed it to post notices on com- pany bulletin boards, and the shop committee's secretarial and banking bookkeeping was done by one of the Company's secretaries in the company office. Also Respond- ent checks off dues for the shop committee without permission from at least the newer employees. Also the shop committee had no provision for membership among the group of employees it sought to represent for collective -bargaining purposes. Upon the above evidence and the entire record considered as a whole, I find that in and since August 1964 Respondent has dominated and interfered with the forma- tion and administration of the shop committee as a labor organization within the meaning of the Act, Respondent thereby violating Section 8 (a) (2) and (1) of the Act. D. The discharge of Larry Cline Larry Cline, aged 20, worked for Respondent Company from June until December 1963, when he was laid off for lack of work. He was recalled June 5, 1964, and worked until his dischargeAugust 6, 1964. Cline was one of the three employees who undertook to persuade the other employees to sign up for the Steelworkers Cline credibly testified that he visited about 10 employees at their homes and talked to 3 or 4 employees on the plant park- ing lot after work, asking them to sign Steelworkers' cards. Cline was discharged August 6 just after the 3:30 quitting time. As has been seen above, this was shortly after Vice President Dale Webb, who made the decision to discharge Cline, had learned that it was the Steelworkers Union that was trying to organize the plant and was holding the meeting that night. As has been seen, Dale Webb had early that morning asked Duane Bogart to attend the meeting and inform on it. WEBB MANUFACTURING, INC. 833 That there was some connection between the union meeting set for that evening and the discharge of Cline is suggested by the fact that when Bogart reported to Webb shortly after Cline was discharged, Webb suspected Cline and others (included Wil- liam Montgomery) were organizing for the Steelworkers and he volunteered that Cline was no longer working for the Company. If Cline's union activities and the impact of his discharge upon the union meeting scheduled for that night were not uppermost in Webb's mind when he decided to discharge Cline that day no reason appears why he volunteered to Bogart that Cline was no longer employed. In his affidavit Webb stated, with reference to Cline, that "I had no knowledge of his union activity at the time of this dicharge." The record here established, how- ever, from Webb's own testimony that at 2 p.m. on August 6, Webb learned it was the Steelworkers Union which was organizing his employees, and that same afternoon Webb had a symbol opposite Cline's name on his list of employees as being one of the employee organizers for the Steelworkers. It follows that if Webb had no knowl- edge at least he had strong suspicion. Although Dale Webb made the decision to discharge Cline, Robert Murray did the discharging. According to Cline's uncontradicted and credited testimony, Murray told him he was being discharged "because of talking too much and going to the restroom too much." Murray handed him a discharge letter on the Company's letterhead dated August 6, signed by Murray as supervisor and Dale Webb as plant manager, and reading as follows: Mr. Larry A. Cline: AS OF THIS DATE, YOU ARE NO LONGER AN EMPLOYEE OF WEBB MFG. INC. FOR THE FOLLOWING REASONS: INSUBORDINATION: You were rehired with the understanding that your work and deportment would have to be satisfactory. Your attitude has been very uncoop- erative when asked to work overtime. DEPORTMENT You have been doing excessive talking while on the job. Respondent discharged Cline without any warning, although Respondent has a system of warning employees with written warning notices. Respondent's posi- tion, through witness Dale Webb, was that when Cline was recalled to work on June 5, 2 months before his discharge, Webb told him that his work during his prior employment with Respondent had been unsatisfactory and that this time his work and deportment would have to be satisfactory or he would be dis- charged. Respondent contended in substance that this was a warning to Cline. Cline credibly denied that when he was reemployed Dale Webb told him his work during his earlier period of employment had been unsatisfactory. If Respondent ever told Cline that, the logical time would appear to have been when he was laid off in December, not when he was taken back the following June. The fact that Respondent took the initiative to recall Cline in June and that it reemployed him belie that Respondent considered Cline an unsatisfactory employee during his earlier 6-month period of employment. I do not find, as substantially contended by Dale Webb, that Cline was reemployed under a cloud or that he returned on probation or under a warning. In his testimony Dale Webb assigned as the reason for Cline's discharge the alleged facts that Webb sensed a slowdown in production and excessive talking throughout the plant. In his pretrial affidavit Webb said, "Production in general was down ' and I knew there was something screwy going on in the plant." In his affidavit Webb added that Cline "seemed like the obvious one to go." Respondent's reaction to the self-organization of the employee, as seen above, strongly suggests that the "something screwy going on in the plant" from Webb's point of view, was the self-organization of his employees, and that Webb selected Cline for discharge as an object lesson for those who were promoting the Union. At the hearing Respondent offered no proof of a drop in production just prior to Cline's discharge other than the oral testimony of Dale Webb. If Respondent's records of plant production actually showed a lessening of production during this period presumably Respondent would have produced those records at the hearing As Webb was not a credible witness, I do not credit Respondent's economic defense that there was a slowdown in production. In any case it was not shown that Respondent believed' that discharging one employee would cure the alleged drop in production or that Cline was anymore responsible for the alleged slowdown than all the rest of the employees. 206-446-66-vol. 151 54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for the alleged talking in the plant, a certain amount of talking usually accompanies any self-organizational efforts by employees. There was no rule against talking in the plant and no credible proof that Cline talked any more than other employees. Terry Laine, a credible witness and fellow employee of Cline, testified that Dale Webb told him there was extra talking in the plant because of the union activities, and Webb mentioned the names of several employees, including Cline and Montgomery. These were the same employees whom Webb had marked on his list as promoting the Union. There was no proof that Cline talked any more than other employees. Laine evaluated Cline as a "good worker." A reluctant witness, Brewster, testified that he had never seen Cline leaving his work station to talk to others (contrary to Dale Webb's testimony). Employee Helberg, a credible witness, testified that Cline talked less than other employees Helberg could see from his work station; that Cline did not talk any more than other employees. In discharging him Supervisor Murray gave Cline as one of the reasons for the ac- tion that Cline wene to the restroom too often. At the hearing Respondent's defense did not cite this as a reason. Respondent's witnesses did not mention this reason. In its discharge letter to Cline Respondent cited as a reason for the action Cline's alleged uncooperative attitude when asked to work overtime. This alleged reason was not given in Respondent's defense at the hearing. Respondent's witnesses did not mention this reason. As in the midst of the organizing campaign Dale Webb ordered the discharge of Cline, admittedly suspecting him of union activities, on the same day Webb was violating the Act by seeking and finding an informer to report what hap- pened at the Steelworkers' meeting; as the entire record showed that, through the dominated shop committee and other actions found herein. Respondent was unlawfully seeking to defeat the self-organizational movement of its employees; and in view of the shifting and unconvincing nature of Respondent's defense, I find on the entire record that Respondent discriminatorily discharged Cline on August 6, 1964, because of his union sympathies and activities and in order to discourage memebership in and activity on behalf of the Union, Respondent thereby violating Section 8(a)(3) and (1) of the Act. E. The discharge of William Montgomery William Montgomery, aged 19, worked for Respondent from June 1963 until August 31, 1964, when he was discharged. His work took him to all departments in the plant. He was one of the three principal employees who signed up employees in the Steelworkers. Montgomery credibly testified that he signed up about 8 employees in his car in the Company's parking lot during lunch hours, that he talked to employees also in their homes, and that in all about 10 or 12 employees signed Steelworkers' cards in his presence. As has been seen above, the record, established that Vice President Dale Webb suspected Montgomery of organizing for the Steelworkers and had Mont- gomery tabbed as such on his list of employees. On August 31, 1964, Vice President Dale Webb handed Montgomery a letter saying he was discharged "for conducting union activities on company time, and for throwing sticks at Richard Murphy creating dangerous and hazardous situa- tions." 3 The letter was signed by President Howard Webb and Vice President Dale Webb. The "union activities on company time" related to the following incident. The day before the gathering in the hotel in Conneaut referred to below, President Webb stepped up to three employees, including Montgomery, who were talking in the plant and asked them what was going on. Montgomery replied that "we are planning a meeting." Later at President Webb's request, another of the three employees told him it was a meeting arranged for the following night at the hotel. The record did not show that anything was said about its being a union meeting, but the Webbs must have learned or suspected it was a union meeting a To get Murphy's attention while Murphy was working at his saw, on Monday and Tuesday, August 24 and 25, Montgomery threw a few small pieces of wood at Murphy's table. Murphy did not complain to Montgomery but complained to President Webb. Webb did not caution Montgomery, but let this alleged "dangerous situation" go unremedied for the rest of that week. The following Monday, August 31, in the dismissal letter, he cited this incident as a reason for the discharge. On the entire record I find that this was but a pretext and not the real reason for the discharge. WEBB MANUFACTURING, INC. 835 before writing this language in the discharge letter. The record suggested that they learned this the following day as they engaged in surveillance of the meet- ing, as is seen below, or from informers. Respondent admittedly had no rule against solicitations for unions or other causes in the plant. A few weeks before discharging Montgomery "for conduct- ing union activities on company time" Respondent had, through its Supervisor Brundage and an employee, and to the knowledge of Vice President Dale Webb as has been found above, distributed shop committee cards in the plan for 2 days and had had them signed on company time; and Vice President Webb had then discussed who had signed them with employee Laine and had checked off those who had signed and had not signed . Thus it appears, and I find, that Respondent was not concerned about union activities on company time as such but about Steelworkers activities on company time. It follows further, and I find, that Montgomery was discharged for conducting Steelworkers activities on company time but others who conducted shop committee activities on com- pany time were not discharged for it . This disparate promulgation and enforce- ment of a no-solicitation or no-distribution rule and this discriminatory treat- ment of Montgomery because of his Steelworkers activities was obviously de- signed, as the entire record revealed, to discourage further membership in, sympathy for, and activity on behalf of, the Steelworkers, Respondent thereby further violating Section 8(a)(3) and (1) of the Act. F. Surveillance and creating impression of surveillance The day after President Webb learned there was to be a meeting the next night at the local hotel, President Webb, Vice President Webb, and Supervisors Murray and Brundage, individually, drove slowly by the hotel and looked in as the employees were sitting in the lobby next to the sidewalk in full view of the street through high picture windows covering the front of the lobby. A Board agent was interviewing employees one at a time in a room in the hotel, and those who waited, including employees Montgomery, Cline, Helberg, Murphy, and Rivers, sat in the lobby. A union official was present. The company officials drove by one at a time over a period of 20 minutes or more. The two Webbs were going in opposite directions. The hotel was on Conneaut's busiest street on the direct access route between two and the Company's plant. However, the plant finished its day's work at 3:30 p.m. and this meeting or gathering occurred at night. The testimony concerning the four officials' driving by and looking in was undenied and unexplained by the defense. As has been seen above President Webb learned the previous day that the meeting was to be held and where, and he had been curious enough to learn this information by interrogating employees. As has been seen above he learned or suspected it was a union meeting and cited Montgomery's "planning" it in the plant as a pretext for discharging him.4 In a conversation with employee Rivers some days later President Webb told Rivers that he knew Rivers was at the hotel, that he heard about every meeting, that he knew what was going on, and that he had a man who knew when meetings were held. Upon the above evidence and the entire record considered as a whole, I believe and find that Respondent's four officials drove by the hotel on this occasion to discover the identities of the employees there present with the union official, Respondent thereby keeping this gathering under surveillance in further violation of Section 8 (a) (1) of the Act. Further, President Webb's statement to employee Rivers a few days later that he knew Rivers had been at the hotel on that occasion, that Webb had a man who knew when union meetings were held and that he heard about every meeting and knew what was going on, reasonably created in employee minds an impression of surveillance by Respondent of employee union activities, Respondent thereby further interfering with, restraining, and coercing employees in the exercise of the rights guaranteed under Section 7 of the Act, Respondent thereby further violating Section 8(a)(I). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, * On the entire record I believe and find that Montgomery was mistaken in remember- ing this gathering at the hotel as having occurred after his discharge. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimate , and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Larry Cline and William Montgomery because of their actual or suspected union activities, and not having offered them reinstatement, I recommend that Respondent offer to Cline and Montgomery imme- diate and full reinstatement to their former or substantially equivalent positions,5 without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to that which he nor- mally would have earned as wages from the date of his discharge (August 6, 1964, in the case of Cline and on August 31, 1964, in the case of Montgomery) the date of the discrimination against him, to the date when, pursuant to the Recommended Order herein, Respondent shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make available to the Board on request payroll and other records in order to facilitate the checking of the amount of backpay due. Respondent having dominated and interfered with the formation and administra- tion of the shop committee as a labor organization, I recommend that Respondent withdraw all recognition from the shop committee as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, and completely disestablish the shop committee as such representative. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices proscribed by the Act and the danger of their com- mission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the Order is coextensive with the threat. In order therefore to make more effective the inter- dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac- tices, and thereby minimize industrial strike which burdens and obstructs commerce and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Webb Manufacturing, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning union meetings and the identity of employees promoting for the Union: by asking an employee to spy upon a union meeting and report to Respondent what occurred there; by keeping a gathering of employees with a union official under surveillance; by creating the impression of surveillance by Respondent of employee union activities; and by other acts, Respond- ent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1). 4. By dominating and interfering with the formation and administration of the shop committee as a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Larry Cline and William Montgomery, thereby discouraging membership in, sympathy for, IThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. WEBB MANUFACTURING, INC. 837 and activity on behalf of, United Steelworkers of America, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case considered as a whole, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommended that the Respondent, Webb Manufacturing, Inc., of Conneaut, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization of its employees, by discrimination in regard to the hire and tenure of their employment or any term or condition of their employment. (b) Dominating or interfering with the formation and administration of the shop committee as a labor organization, or any other labor organization, of its employees. (c) Recognizing the shop committee, or any successors thereto, as the representa- tive of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment. (d) Interrogating employees concerning union meetings and the identity of employees promoting for the Union. (e) Asking employees to spy upon union meetings and report to Respondent what occurred at them. (f) Keeping gatherings of employees with union officials under surveillance. (g) Creating the impression of surveillance by Respondent of employee union activities. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3), as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer reinstatement to Larry Cline and William Montgomery in accordance with the recommendations set forth in the section entitled "The Remedy." (b) Make whole Larry Cline and William Montgomery for any loss in pay they may have suffered by reason of Respondent's discrimination against them in accord- ance with the recommendations set forth in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of Larry Cline and William Montgomery under the terms of this Recommended Order. (d) Withdraw and withhold all recognition from the shop committee as the rep- resentative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, and completely disestablish said shop committee as such representative. (e) Post at its plant in Conneaut, Ohio, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 8 (Cleveland, Ohio), shall, after being signed by the Respondent's represent- ative, be posted by the Respondent immediately upon receipt thereof, and be main- s In the event that this Recommended Order shall 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and order". 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for Region 8 in writing, within 10 days from the date of this Decision, what steps the Respondent has taken to comply herewith? 7In 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 Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discriminating against our employees in any manner in regard to their hire and tenure of employment, or any term or condition of employment. WE WILL NOT dominate or interfere with the formation or administration of the shop committee as a labor organization, or any other labor organization of our employees. WE WILL NOT recognize the shop committee, or any successor thereto, as the representative of any of our employees for the purpose of dealing with us con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. WE HEREBY disestablish the shop committee as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the foregoing purposes. WE WILL NOT interrogate employees concerning union meetings and the iden- tity of employees promoting for any union. WE WILL NOT request any employee to spy upon a union meeting and report to Respondent what occurred there. WE WILL NOT spy upon a gathering of employees with a union official. WE WILL NOT create the impression that we are spying upon the union activi- ties of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Larry Cline and William Montgomery immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Larry Cline and William Montgomery for any loss of pay suffered by them by reason of the discrimination practiced against them in accordance with the recommendation of the Trial Examiner' s Decision. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WEBB MANUFACTURING, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) ETS-HOKIN CORPORATION, ETC. 839 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 aplication 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main 1-4465. Ets-Hokin Corporation and R. D. Neill, d/b/a Rose Construction Ets-Hokin Corporation and Local Union No. 428, International Union of Operating Engineers, AFL-CIO Local Union No. 769, International Brotherhood of Electrical Workers, AFL-CIO (Ets-Hokin Corporation ) and R. D. Neill, d/b/a Rose Construction International Brotherhood of Electrical Workers, AFL-CIO (Ets- Hokin Corporation ) and R. D. Neill, d/b/a Rose Construction Local Union No. 769, International Brotherhood of Electrical Workers, AFL-CIO (Ets-Hokin Corporation) and Local Union No. 428, International Union of Operating Engineers, AFL- CIO Local Union No. 769, International Brotherhood of Electrical Workers, AFL-CIO and International Brotherhood of Electri- cal Workers, AFL-CIO and R. D. Neill, d/b/a Rose Construc- tion and Ets-Hokin Corporation , Party to the Contract. Cases Nos. 28--CA-939, 28-CA-945, 28-CB-f62, 28-CC-137, 28-CB-263, 28-CC-138, 28-CB-264, 98-CC-139, and 28-CE-3. August 31, 1965 DECISION AND ORDER On February 4, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Re- spondents had engaged in certain unfair labor practices alleged in the complaint and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondents filed exceptions to the Trial Examiner's Decision and briefs in support thereof. The Respondents also filed supplemental briefs in support of their posi- tions. The General Counsel filed an answering brief and a supple- mental memorandum in support of the Trial Examiner's Decision. The Respondents also requested oral argument. The request is denied as the record, including the exceptions and briefs, adequately present the issues and the positions of the parties. 154 NLRB No. 52.