T. J. Fleming Co.

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence that any employee was required to join the Reform Mine Workers (Garrison) as alleged in paragraph 6(c). Again to the contrary, the only "new" employee who testified, Don Williams, testified that no one asked him to join the Reform Mine Workers between September and November. The evidence to support paragraph 6 is not minimal, it is nonexistent. Paragraph 8 alleges that Carl Skeens and Don Williams were discharged because of their activities on behalf of and sympathy for UMW. Neither, as a matter of fact, was discharged. Williams, as he admitted, was bumped from his job on November 6 in accord with the seniority provisions of the bargaining agreement. He was rehired January 14 and would have been rehired before that date if he had been at home when he was sent for by Wiseman. Skeens was told by Wiseman when he was laid off that it would be for a few days or a week and indignantly told Wiseman that he did not want to work for Garrison again. Under this circumstance I cannot find that Respondent was under any obligation to offer him reemployment unless his union activity was the cause of his discharge. The General Counsel presumably relies, and again I must make an assumption of his theory, on the fact that Skeens and Williams signed cards with UMW on November 5 and were laid off on the following day to establish an inference of discriminatory motive. The timing does create suspicion, of course, but I do not think that post hoc ergo propier hoc rationale is sufficient in itself to substitute for proof. I find no other factor to support a finding of discrimination Respondent, through Bullock, had indicated an indifference toward union designation by the employees on July 21, and there was no evidence of any change in Respondent's attitude after that date. Respondent, if it knew of the signing of cards by the two Skeens and Williams on the previous day, would also have known that they were the only three to sign and the majority of the employees had rejected the UMW. Thus there was no threat of representation by the UMW and no action was called for to thwart such a move. This does not, of course, preclude the possibility that Respondent took such action precipitately and without deliberation of its necessity. But this requires overlooking the testimony, which I credit, that both lay- offs were occasioned by factors which were not discriminatory and both were intended to be of temporary duration. In the absence of other unfair labor practices and of any display of hostility toward the UMW (the UMW representatives were given permission to talk to the employees on company property) the timing of the layoffs does not establish that the motive was discriminatory. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. Local 50, Reform Mine Workers Union, Logan, West Virginia; Local 50, Reform Mine Workers Union, Garrison, West Virginia, District 17, United Mine Workers, are labor organizations within the meaning of the Act 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. T. J. Fleming Company and District Lodge 71, International Association of Machinists, AFL-CIO. Case No. 17-CA-2556. August 30,1965 DECISION AND ORDER On June 8,1965, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending 154 NLRB No. 70. T. J. FLEMING COMPANY 801 that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal as to them. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. Respondent filed limited cross-exceptions on a procedural issue, a brief in support thereof, and an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Jenkins and Zagorial. 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, cross-exceptions, and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and, recommendations of the Trial Examiner.' 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, and orders that Respondent, T. J. Fleming Company, Kansas City,, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's findr ings as to violations of Section 8(a) (1) of the Act Respondent renews its motion to strike certain pleadings relative to the alleged dis- criminatory discharge of employee Ramirez on the ground that the preparation, of its defense was hampered by alleged instructions from Counsel for the General Counsel to, Ramirez not to talk to Respondent 's counsel . In view of our affirmance of the Trial Examiner's Decision which found that Ramirez was not discriminatorily discharged, the, motion to strike such pleadings is now moot, and we find it unnecessary to consider or pass on the merits of such motion We note, in any event, that we have permitted' defense counsel to interrogate employees, whether alleged discriininatees or prospective, witnesses, about matters relevant to the complaint when proper safeguards are observed, See Johnnie's Poultry Co , 146 NLRB 770, 774-776. 9 The telephone number for Region 17, appearing at the bottom of the Appendix at, tached to the Trial Examiner's Decision, is amended to read: Telephone No. 221-2732; TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding arises upon the complaint of the General Counsel issued Decem ber 2, 1964,' upon a charge filed October 27, by District Lodge 71, International' Association of Machinists, AFL-CIO, herein called the Union. The complaint alleges that T. J. Fleming Company, herein called Respondent or the Company, violated Section 8(a)(1) of the Act by interrogating employees concerning unjoj 1 Unless otherwise indicated , all dates herein are in 1964. 206-446-66-vol. 154-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, and violated Section 8(a)(3) of the Act by discharging Refuglo Ramirez and Benjamin L. Muro. Respondent's answer to the complaint denies the com- mission of any unfair labor practices.2 All parties were represented at the hearing which was conducted on February 15, 1965, before Trial Examiner W. Edwin Youngblood in Kansas City, Missouri. Briefs have been received from the General Counsel and the Respondent.3 Upon the entire record,4 including my evaluation of the witnesses based on the evidence 5 and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Missouri corporation, is engaged in the sale and repair of railroad equipment at its office and plant at Kansas City, Kansas. Respondent annually purchases materials valued in excess of $50,000 directly from outside the State of Kansas, and annually sells goods and renders services valued in excess of $50,000 directly to customers outside the State of Kansas. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The interrogations On August 19, the Union filed a petition for certification as bargaining repre- sentative of the employees of Respondent. On the morning of August 20 (following receipt of this petition by Respondent) former employees Leo Arzola and Joe Ramirez along with employee John Florez were called down to the office by T. J. Fleming, Respondent 's president .6 After they were seated in his office , Fleming said, "Somebody here turned us in to the Union," and that he wanted to find out "who it was" Fleming asked each employee there if he was the one and each employee denied that he was. Fleming also said that if any of the employees present had a gripe they ought to leave. Fleming stated that somebody had to start the Union. Joe Ramirez asked, "Why us, you have 14 men working for you." Fleming replied that he had called everybody in and everybody had denied it and that he had never had a union and he did not want one. 2 On February 8, 1965, Respondent filed a motion to strike pleadings insofar as Gen- eral Counsel 's pleadings refer to the alleged discriminatory discharge of Refugio Ramirez. The basis of the motion was the alleged inability of Respondent to interview Ramirez in preparation of its defense because of instructions to Ramirez from General Counsel. General Counsel filed a statement in opposition to Respondent ' s motion to strike I denied Respondent's motion at the opening of the hearing At the conclusion of General Coun- sel's case -in-chief, and after Ramirez had testified , I inquired of Respondent's attorney if he was ready to proceed with his defense or if he would like some time for preparation, and was informed that Respondent was ready to proceed In its brief , Respondent re- newed the motion. I adhere to the ruling made at the hearing. 3 Respondent attached to Its brief copies of a determination of the Kansas State De- partment of Labor relative to the unemployment compensation claim of Refugio Ramirez which was issued after the hearing closed This document was not received in evidence and Is not therefore part of the record in this case. Accordingly , I have given no con- sideration to it in evaluating the merits of this case *I received a stipulation to correct the transcript forwarded by the General Counsel, and the transcript is ordered corrected in accordance with the stipulation with the following additions. 6(a). Page 11 , line 19-change "Trial Examiner" to "Mr. Bruckner" 16(a). Page 126, line 10-change "I believe that is what he said " to "Just tell us what you said." The document marked as Respondent 's Exhibit No 6 in the exhibit file is actually part of Respondent's Exhibit No. 8. Respondent's Exhibit No. 6 was withdrawn at the hear- ing and therefore not received in evidence It is hereby ordered that the document marked Respondent's Exhibit No 6 be changed to read Respondent's Exhibit No. 8. 6 The parties stipulated that the Regional Director had found that Joe Ramirez was a supervisor. T. J. FLEMING COMPANY 803 Fleming called Refugio Ramirez in the same morning and asked him if he knew anything about the Union. Ramirez replied that he knew nothing about it. Flem- ing then advised Ramirez that the Union was trying to get in, that he did not know who was trying to bring it in, but he would find out who was trying to bring it in Benjamin Muro was also called into Fleming's office on the morning of August 20 and asked if he was the one who was trying to bring a union in. Muro replied, "No" and Fleming said, "Somebody is" and Muro went back to work.? On the afternoon of August 20, Arzola was called down to talk to Fleming's sons, Tom and Joe Fleming. Both Tom and Joe Fleming are admittedly agents and/or supervisors of Respondent. Joe Fleming said that he wanted to talk about "this union business," and said that the Union was not any good, the Company was too small and "We don't need no union . . Joe Fleming asked Arzola if he knew anybody who had a gripe and when Arzola replied that he did not, Joe Fleming asked him if he had a gripe. Arzola replied in the negative adding that he had not been there "too long." 8 Sometime during the same afternoon, Refugio Ramirez was called into the office. Joe and Tom Fleming and Ramirez were the only ones present. Tom Fleming asked Ramirez if he was satisfied working for him and Ramirez replied that he was. Tom Fleming then said that the Union was going to cut their wages if it got in, and also said that if any employee had any "gripe" to come in and they would iron it out.9 On the afternoon of August 20 about 1 p.m., Tom and Joe Fleming called Muro into the office and asked him if he "had any gripe or complaints or anything like that, that we could straighten them out, that we didn't have to bring no union in." Muro replied that he had no complaints.10 Joe Ramirez was talked to in Fleming's office by Tom and Joe Fleming right after lunch on August 20. Tom Fleming asked him if he knew anything about the Union or who had started it, and also told him that they were going to fight the Union and had turned everything over to their attorneys. After being asked three times by General Counsel if anything else was said, Joe Ramirez testified that Tom Fleming then said, "Anyway, we are going to try to eliminate the votes before the voting." Tom Fleming testified that on the day the Company received the petition, he and his brother contacted the lawyer who handled all their general legal work about the petition. They asked the lawyer if it would be all right to talk to the men about the petition, and were informed that it was all right. Shortly after lunch, Tom and his brother began calling the men in one by one. Neither Tom Fleming nor his brother Joe denied the testimony of Arzola, Muro, and the two Ramirezes except on one point. Tom and Joe Fleming both specifically denied that Tom Fleming told Joe Ramirez that he was going to try to eliminate votes. It is signifi- cant that none of the three other employees who were interviewed that afternoon and who testified as witnesses for General Counsel testified as Joe Ramirez did in this regard. I was impressed with Tom Fleming's candor insofar as these inter- views were concerned. Accordingly, I reject Joe Ramirez' testimony on this point and credit Tom Fleming's denial. It is clear from the foregoing that promptly after receipt of the Union's petition Respondent, acting through President T. J. Fleming and his sons Tom and Joe Fleming, commenced interrogating its employees in the office in an effort to ascer- tain the identity of the Union's adherents. Thus, T. J. Fleming advised employees of the Union's appearance on the scene and stated that he wanted to find out who brought the Union in. Likewise, the inquiries of Joe and Tom Fleming as to which employee had "gripes" were designed to learn the identity of union adherents appar- ently on the not-unlikely theory that it would be the employees who had gripes who wanted the Union to come in. Moreover, Tom Fleming's purpose in conduct- ing the interviews is made even clearer because in the interview, with Joe Ramirez, Tom Fleming squarely asked Ramirez if he knew anything about the Union or who had started it. Such widespread interrogations seeking to learn the identity of the employees who started the Union and other union adherents conducted in this locus of authority clearly tend to coerce and restrain employees in the exercise of 7 The foregoing findings are based on the credited and virtually undisputed testimony -of Arzola , Joe Ramirez , Refugio Ramirez , and Muro According to Fleming the essence of these conversations was "what grievance did they have that we couldn't correct ourselves." 8 The foregoing is based on the credited testimony of Arzola 0 The foregoing is based on the credited testimony of Refugio Ramirez. 10 The foregoing is based on the credited testimony of Muro. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rights guaranteed by Section 7 of the Act.11 Respondent contends, however,, that any coercive effects of the interviews were nullified or dissipated by Tom Fleming's speech delivered some 3 or 4 days later to employees (Respondent's Exhibit No. 4). This contention must be rejected because it is clear that the speech, did not specifically refer to the widespread interrogations described above of Tom, Joe, and T. J. Fleming, and thus did not specifically repudiate the prior unlawful conduct.12 Accordingly, I find and conclude that Respondent violated Section 8(a)(1) of the Act by the conduct of T. J. Fleming and his sons, Tom and Joe, Fleming, as set forth above. B. The alleged discriminatory discharges 1. The discharge of Refugio Ramirez Ramirez worked for Respondent on three separate occasions. The first period of employment began in October 1963 and ended in June 1964 when, according- to Ramirez' testimony, he quit. Ramirez was reemployed in August. On August 21, Ramirez signed a union card. As set forth above, T. J. Fleming called Ramirez and other employees in on August 20 and interrogated them about the Union, and Joe and Tom Fleming also questioned him and other employees on August 20. On September 9 Ramirez was fired in T. J. Fleming's office. T. J. Fleming, Tom and Joe Fleming, and a man from Westinghouse Air Brake were present in the office.13 Ramirez testified that he walked in the office, and T. J. Fleming asked him if he was supporting his children, and when he replied in the negative, T. J. Fleming said that was all he wanted to know, adding, "You are an undesirable character. We don't want men like you around here." T. J. Fleming then told Ramirez to go change his clothes while he made out Ramirez' check Ramirez stated that his parents are taking care of his child by his first marriage, and he himself contributes money to the- support of the child. Ramirez testified that he has two children by his second wife and that he supported them for a while until his second wife remarried and asked him to stop. Joe Ramirez credibly testified that the day after his brother Refugio was fired he- had a conversation with T. J. Fleming in his office. Fleming said that he had heard that Joe had been talking about him in connection with his discharge of Refugio. Joe Ramirez then explained to Fleming why Refugio had not been supporting his family. On the afternoon of December 7, Ramirez received a letter signed by Joe Flem- ing offering reinstatement to Respondent's employ effective the morning of December 7. Ramirez then went to the plant and waited for awhile to talk to T. J. Fleming until Tom suggested that he come back the next morning. The next morning Ramirez talked to T. J. Fleming in his office and showed him the letter. T. J. Fleming looked at the letter and then according to Ramirez asked Ramirez what he was doing there, told him he was not wanted there, and suggested he go somewhere else and look for a job. T. J. Fleming also told Ramirez that he and his brother were nothing but troublemakers and if he were Ramirez he would just walk out of there. Then T. J. Fleming said that he was going to put Ramirez back to work but if he did any other thing wrong, he was going to "bounce" him, out and "make it stick this time." T. J. Fleming called in an employee named Ernie Sanchez and told Sanchez that he was going to give orders to Ramirez through him. Ramirez further testified that he cut his hand off the job and when he went to work showed his hand to Tony Sanchez, his boss, and asked if he could go later on to see if he could get it stitched. Later on Ramirez was given permission to go to the doctor. The doctor gave him a shot, cleaned the wound, and told him that he could not go to work. Ramirez went on sick leave on January 4, 1965. That night- he called Tony Sanchez at home and informed him of the situation. Ramirez also took to Sanchez a certificate signed by the doctor showing that he would be able to return to work on January 7, 1965. On the following Wednesday Ramirez returned to the doctor. According to Ramirez, he reported to Tony Sanchez every time he went to the doctor by going to Sanchez' home. Ramirez testified that the third time he went _ to Sanchez' house, Sanchez told him that Fleming had said that he should not try to go back as long as the wound was open. Ramirez could not recall the last time he talked to Sanchez about his inability to work. Ramirez made quite a few visits to the doctor, in fact he went every day. His last day of employment was January 4,. 11 Cf Producers, Inc, 129 NLRB 1161 , 1164. The Interrogations of Joe Ramirez, how-- ever, are not violative of the Act because of his status as a supervisor. '2A. P. Green Fire Brick Co., 140 NLRB 1067, 1072, enfd . 326 F. 2d 910 (C.A. 8). u One Respondent's principal contracts is with Westinghouse. T. J. FLEMING COMPANY 805 1965. As set forth above, Ramirez went on sick leave then and was discharged on January 21 , 1965, when he returned to work. According to Ramirez when he walked in the door on January 21, 1965, Tom Fleming said to him, "Rufus, I am sorry we will have to let you go." Tom Fleming said that he would mail Ramirez' check. We turn now to the testimony of witnesses for Respondent with respect to Ramirez -discharge . T. J. Fleming testified that Ramirez was gone from work for 3 to 4 work- days in June . When Ramirez came in on about July 3, T. J. Fleming asked him where he had been , and Ramirez replied that he had been "detained" in Birmington, Missouri, for a period of 72 hours . T. J. Fleming further testified that Ramirez said that when he ,was "temporarily let out of this incarceration or what ever it was" he was immediately picked up and "put back" for another 72 hours. Also Ramirez said he was not allowed to use the telephone or get in touch with the Company . T. J. Fleming testified that he tried to check out Ramirez' story by calling the sheriff. The sheriff told him that Birmington was in another county and to check at Birmington which he did and was informed that Birmington had no chief of police or marshal and he was referred to Liberty, Missouri . When he called the sheriff 's office at Liberty he was informed that they had no record of "anybody such as Rufus being in jail or being detained in any other manner." Tom Fleming testified that he was present when his father talked with Ramirez. T. J. Fleming told Ramirez that he had tried to check out the story Ramirez had given him concerning his absence and had been unable to find any substantiating evidence. T. J. Fleming further said that he could not tolerate men being off for that period of time and he just did not feel that Ramirez was trustworthy . T. J. Flem- ing then offered Ramirez the choice of quitting or being fired and Ramirez chose to quit. Tom Fleming further testified that Ramirez was reemployed on August 18, and -that he was present when this happened . T. J. Fleming told Ramirez that he was going to get another chance , and he would have to keep his nose clean . Ramirez was also told that if he did a satisfactory job everybody would get along fine. Tom Fleming testified that he was in a position to observe Ramirez' work both before and after July, and before July it was very good, but after his return in August Ramirez' -work was unsatisfactory . After his return in August, Ramirez was assigned to work ,on railroad cutout cocks ( angle cocks ), which was work he had done before. Tom Fleming testified that Ramirez' production on this job was approximately one-third that of another man with less experience . About the first week in September, Don 'Scherer, who is employed by Westinghouse , came out to the plant and said that Westinghouse was dissatisfied with Respondent's production. Scherer said that Respondent's production did not "live up to the standards ..." agreed upon under the contract. Tom Fleming also testified that after his return in August, Ramirez came to work in such a condition that he could not work satisfactorily because of his activities the night before. Tom Fleming testified that Ramirez had boasted . about his activities the previous night. Tom Fleming further testified that he was present at the meeting with Ramirez when Ramirez was discharged on September 9. Also present were T. J. Fleming, Joe Fleming, and John Morris from Westinghouse . T. J. Fleming "presented" Ramirez with his production record, and told him that it was not satisfactory adding that it was unsatisfactory "in comparison to the other men " Tom Fleming testified that Ramirez' production was 8 units compared to 17 to 22 units for the other men. Tom Fleming further testified that Ramirez ' production before his termination in July was in the "22 category." Several reports had been received from men in the shop that Ramirez had been bragging about not supporting his family . Tom Fleming testified that T. J. Fleming also asked Ramirez if he was supporting his family to which Ramirez replied in the negative . T. J. Fleming admitted that he had heard before Ramirez' reemployment in August that Ramirez was boasting about not con- tributing to the support of his family . T. J. Fleming testified, however, that the rea- son he brought it up in this conversation was because it was "being made such a public joke around the place " Ramirez did not offer any defense respecting his work record . Tom Fleming testified that a day or two before this conversation he heard an employee tell T. J . Fleming that Ramirez "stated he was going to lay down on the job." According to Tom Fleming , T. L. Fleming confronted Ramirez with this statement and told him what they had heard . Ramirez offered no defense to this. At the conclusion of the meeting , Ramirez was discharged John Morris, district sales manager for Westinghouse , testified that he was present on the day Ramirez was discharged on September 9. According to Morris, Ramirez was asked if he supported his family and admitted that he did not. Ramirez was then ,confronted with his performance record and acknowledged it was not up to par. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T. J. Fleming had a book on his desk and he pulled it on to his lap and said to Ramirez, "Now I want to talk to you about your performance record. You were turning out 17 and you are now doing 9." T. J. Fleming also testified briefly about the discharge conversation of September 9. According to T. J. Fleming, he called Ramirez down to his office and said, "I understood that you are bragging to the rest of them back there that you are spending your money promiscuously and you have a wife and family to support and you are evading that." T. J. Fleming testified Ramirez made no answer to this. Then T. J. Fleming started comparing the production records and stated that a culmination of these things led to Ramirez' discharge. Joe Fleming testified briefly about the discharge conversation of September 9. Joe Fleming testified that Ramirez was confronted with his work record and about bragging about not supporting his family. Joe Fleming further testified that Ramirez' production was compared to that of Salvatore Abita during this conversation. Tony Sanchez testified that he worked with Ramirez at various times. Sanchez was a leadman for Respondent and testified that the repair units had not built up as they should so he started checking to see where the trouble was. Since Ramirez was working on that particular item, Sanchez started checking Ramirez' production. Sanchez testified that no one suggested that he do this. Sanchez checked the produc- tion of other employees also. Sanchez testified that he checked Ramirez' production between August 18 and September 9 and found his production below par. Sanchez stated that he kept written records at various times on Ramirez' production. Ramirez' production was about 50 percent of that of the other man.14 Ramirez was rehired in December upon advice of Respondent's attorney to elim- inate the possibility of any backpay. T. J. Fleming testified that he talked with Ramirez when he came back to work in December. He told Ramirez that he would have to toe the line or be discharged and that this time he would make it stick. According to Tom Fleming's testimony, Ramirez' work record was very good after he came back in December. Tom Fleming testified that Ramirez came to work on January 4, 1965, with a cut on his hand. Tom Fleming told Tony Sanchez to release Ramirez to go to the doctor. The next day Sanchez gave Tom Fleming a slip of paper from the doctor (Respondent's Exhibit No. 2) reflecting that Ramirez would be off work from January 4 until 7, 1965. The next day Sanchez told Tom Fleming that Ramirez had contacted him and told him that it would take longer to treat Ramirez' hand, and that it would be awhile before Ramirez came back to work but he would be in to see T. J. Fleming on Saturday. Ramirez did not come in on Satur- day, in fact they did not hear from him again for 21/2 weeks. Ramirez came in on January 21, 1965, and Tom Fleming told him that they were going to have to let him go because he had been gone too long without giving them any information as to his whereabouts or intentions. Ramirez replied that he had talked to Sanchez at various times and had given messages to Sanchez' children. Tom Fleming testified that the messages were never relayed because they never did hear them. In an effort to rebut the testimony of Respondent's witnesses Ramirez was recalled as a witness. Ramirez denied stating to anyone that he was going to "lay down on the job," and further denied that anyone said anything to him on the day of his September discharge to this effect or accused him of having made such a statement, or that it was even mentioned during the conversation. Ramirez also denied seeing any work records on that occasion. Ramirez testified that he worked on air- brake valves after his reemployment in August, and stated that Salvatore Abita did not work in that area. On cross-examination, however, Ramirez admitted that although he worked on airbrake valves after being reemployed in August, he was transferred to angle cock valves after that. I was not impressed with Ramirez' testimony, particularly his failure to make any reference to production being mentioned in the September discharge conversation. Moreover, Ramirez' exnlanatinn about why the rerords of the nnemnlovment com- pensation commission reflected that he was laid off for lack of work after his Septem- ber discharge was not convincing.15 On the other hand, I am persuaded that Ramirez' production was a major factor in this conversation as reflected in the testimony of T. J. Fleming. Joe and Tom Fleming, and Morris. Under the circumstances, I do not consider Ramirez' testimony as reliable as that of Respondent's witnesses, and where it is at variance with their testimony it is not credited. "As set forth above the other man was identified as being Salvatore Abita. u Respondent introduced into evidence Ramirez' Board affidavit in an effort to dis- credit his testimony by showing that according to the affidavit Ramirez made a state- ment which in his testimony he attributed to Fleming. As I do not believe the affidavit establishes this point, I attach no significance to it in evaluating the credibility of Ramirez. T. J. FLEMING COMPANY 807 Thus the evidence for the General Counsel shows that Ramirez signed a union card in August, that Respondent made a determined effort in August to determine who started the Union, and specifically interrogated Ramirez and other employees as to their knowledge of the Union, and that Respondent made statements that it was going to "fight" the Union. Further the evidence shows that T. J. Fleming knew when he reemployed Ramirez in August that he was bragging about not supporting his family. In addition, there is no evidence that Ramirez was warned about his produc- tion and nonsupport of his family after his reemployment in August and prior to the discharge conversation on September 9. Finally the evidence shows that Ramirez was discharged a few days after a Board hearing on the Union's petition for certifica- tion as bargaining representative of Respondent's employees. On the other hand, the evidence shows that Ramirez quit on the threat of being discharged for excessive absenteeism in July which was before the union activity started. When reemployed in August, Ramirez was expressly warned to "keep his nose clean." Thereafter his production dropped, management heard reports which he did not deny later that he said he was going to "lay down on the job," and manage- ment also heard reports that he was bragging about not supporting his family which he also did not deny. Although T. J. Fleming had heard such reports prior to the August reemployment of Ramirez, it was after this time that the nonsupport point became, as T. J. Fleming put it, "such a public joke." Moreover, I am unable to attach the significance General Counsel desires to the fact that Ramirez received no warning about his low production or the nonsupport of his family prior to the discharge conversation because of the circumstances in connection with his prior separation from Respondent's employ and the specific warning he received when reemployed in August. I am persuaded that even if Respondent knew of Ramirez' very minimal union activity consisting of signing a union card, that this played no part in the decision to discharge him. Accordingly, I find and conclude that Gen- eral Counsel has failed to establish by a preponderance of the evidence that Ramirez was discharged in violation of the Act,is and I shall recommend the dismissal of this allegation. 2. The discharge of Benjamin L. Muro Muro was employed in April and worked mostly on boilers. Muro signed a union card on August 13. As set forth above, Muro was asked on August 20 if he was the one who was trying to bring a union in, and Muro replied in the negative. Muro testified that about September 1 he was called in by T. J. Fleming who asked why he had not paid an ambulance bill. According to Muro, 2 weeks before this he had "passed out" on the job and had been taken to the hospital in an ambulance. Muro told T. J. Fleming that his wife had told him not to pay the bill. T. J. Fleming then instructed Muro to bring the bill in the following morning. The next morning Muro informed T. J. Fleming that his wife had thrown the bill away. T. J. Fleming then told Muro that he "better be careful because [he] was walking on thin ice." The bill was paid by T. J. Fleming. On September 23 about 3 p.m. Muro was called into T. J. Fleming's office. In addition to T. J. Fleming, Tom Fleming, and Joe Gallardo, Muro's supervisor, were present. T. J. Fleming handed Muro a document to read captioned "Order To Employer To Pay To The Trustee." This document constituted an order to the employer to deduct from Muro's pay a sum of money weekly and pay it to a named individual as trustee. Apparently T J. Fleming then asked Muro if he was going to have his wages garnisheed and he answered in the affirmative. T. J. Fleming then told Muro that he did not have the facilities or time to make separate checks, and he would have to let Muro go. Muro told T. J. Fleming that if he would give him a chance to straighten it out, he probably could. T. J. Fleming said that Muro "had to go and that [is] all." Muro then went back to work to finish the day out, and T. J. Fleming came to talk to him and asked Muro what the reason was that he got into "this kind of predicament." Muro told T. J. Fleming that his wife had been sick and he had not worked for 3 months.17 Muro further testified that just before he left the plant, he talked with Tom Fleming who had his check. According to Muro, he asked Tom Fleming what the reason was that he was going to be fired and if the reason was because of "this damn union." 1O In view of this finding, I do not reach the question of whether Ramirez was validly reinstated by Respondent in December Nor do I consider it necessary to decide whether Ramirez' low production could have been or was caused by a broken finger 17 Muro had entered into the wage earner arrangement which led to the "Order" referred to above prior to his employment by Respondent. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Toni Fleming replied, "well, I don't know, Ben, more or less. I hate to lose you, you are a good working man." Muro then left. About the second week in December, Muro received a letter from Respondent offering him reinstatement effective December 14.18 Muro went to the plant and talked with T. J. Fleming. No one else was present. T. J. Fleming asked Muro how he was getting along on his new job and Muro replied "fine." T. J. Fleming asked Muro how much he was making a week and Muro informed him about $96 a week. Then, according to Muro, T. J. Fleming "said about Joe Ramirez, he apologized to [Muro ] because he thought [Muro] was the one that caused the Union, but he had found out that Joe was the one that brought the Union in, that his attorneys had found out that Joe brought the Union in." Muro also testified that T. J. Fleming told him on this same day that John Florez (another employee) was in "the same predicament" Muro was in with respect to garnishments by Respondent. Muro also admitted that T. J. Fleming told him he could come back to work for the Company if he wanted to do so. Muro further testified that there was no published rule concerning garnishments or wage earner plans as the basis for discharge. On cross-examination, Muro was asked when he fainted on the job and testified that he "would say June or July, something like that." (It will be recalled that on ,direct examination Muro testified he "passed out" about 2 weeks before September 1.) Muro was then asked if he thought it might have been in April and he replied "no, no." Muro was then asked if it might have been on April 17 and he replied that he did not remember. Muro then reaffirmed his testimony on direct examination that the Company received notice about the ambulance bill about 2 weeks after he fainted. Muro was then asked if he thought it would be 5 months after he fell that the Company got this notice and he replied that he did not think so. Muro was then asked if T. J. Fleming told him when he was called in about the ambulance bill that the Company could not tolerate garnishments, and he replied that he did not remember. After Muro's attention was directed to his Board affidavit, he admitted that T. J. Fleming did tell him that he did not like garnishments on any of his employ- ees Muro also admitted that he understood as a result of this meeting that T. J. Fleming would not tolerate garnishments. Muro was then asked how long it was after his conversation with T. J. Fleming about the bill that the Company received notice of the wage earner's plan, and he answered "about 3 or 4 months." Muro testified again that it was about 3 months between the Company's receipt of the ambulance bill and receipt of notice with respect to the wage earner plan, and stated that he did not think it was a matter of a week or 10 days. We turn now to the estimony of Respondent's witnesses concerning Muro's dis- ^charge. Tom Fleming testified that Muro "passed out" at work and was taken to the hospital in April in an ambulance. Muro was advised that the insurance company would take care of any bills. Tom Fleming identified a letter from a collection agency dated September 10 (Respondent's Exhibit No. 5) as the notice Respondent received seeking payment for the ambulance service. Tom Fleming was shown a statement from the ambulance service at the hearing which reflected that April 17 was the date Muro was taken to the hospital. Tom Fleming testified that he was present when T. J. Fleming called Muro in about the bill. According to Tom Fleming, T. J. Fleming asked Muro why he had not brought the bill in in the first place to be paid, and told Muro that he would not tolerate anything like that Tom Fleming testified that T J. Fleming was very angry. T. J. Fleming testified that he was "particularly irritated" by the letter from the collection agency. Tom Fleming further testified that about 2 weeks later Respondent received a notice concerning the voluntary bankruptcy procedure that Muro was taking. According to Tom Fleming, T. J. Fleming then called Muro into the office and reminded him that he had warned him, and told Muro that he would give him about a week to get it straightened out. Tom Fleming further testified that T. J. Fleming told Muro that he would then talk to Muro about getting his job back if he wanted to come back. According to T. J. Fleming, the final reason for Muro's discharge was the garnishment about which he had previously warned Muro. Tom Fleming testified that Muro said that he might as well pick up his check, and was then discharged. According to Tom Fleming, Muro did not get the matter cleared up nor did he return in a week or so. Tony Gallardo testified that he was present when Muro was discharged. Accord- ing to Gallardo, T. J. Fleming asked Muro if he was able to take care of his bills because he did not want to be involved with "that bankruptcy deal," and he told Muro he would give him a "certain amount" of time to do it in. Muro replied that he just would not be able to do it. 8 Respondent's Exhibit No. 8. T. J. FLEMING COMPANY 809 , Tom Fleming testified that he talked with Muro as Muro started to leave the plant. on the day of his discharge and told him that he was sorry "it had to happen under those circumstances," and Muro replied that he was thinking about quitting anyway- because of the Union. Tom Fleming specifically denied that Muro was discharged' because of the Union or that he told Muro that he was discharged because of the Union. Tom Fleming testified further that Muro was later offered reinstatement by Respondent in order to stop the running of any possible backpay. Tom Fleming testified that Respondent had another case of an employee discharged because of a voluntary bankruptcy petition in early December 1964. Tom Fleming was present when employee John Florez was called into the office and told that Respondent could not put up with this. Florez replied that he was familiar with Muro's case and knew that the Company would not tolerate this type of proceeding. Florez was given the same offer as Muro. Florez was discharged, got the matter cleared up in a few days, and then returned to work T. J. Fleming testified that he talked with Muro after he was offered reinstatement and came to the office. According to T. J. Fleming, Muro stated that he had a much better job paying "quite a bit" more money with a "far better Company" with good prospects for continued employment. Muro asked T. J. Fleming for advice, and T. J. Fleming stated that he told Muro that he would keep the job if he was making more money adding that he would seem to be better off where he was and ought to stay there. T. J. Fleming also told Muro that if they did run out of work later on where he was and he wanted to come back he would be considered. As to any apology, T. J. Fleming stated that he "might have apologized to [Muro] as a gentleman, but as far as the Union, no." 19 T. J. Fleming specifically denied that the Union was even mentioned during this conversation. It is apparent that if Muro's version of the dates these events happened is accepted only about 2 weeks elapsed between the time he fainted and when T. J. Fleming called him in with respect to the ambulance bill. Also if his testimony is accepted, there was a lengthy period of 3 to 4 months between his conversation with T. J. Fleming about the ambulance bill, during which he was warned that the Company could not tolerate garnishments and told him that he was walking on "thin ice," and the discharge conversation. Thus, it is obvious that if Muro's versions were accented his case would look much better. The evidence establishes, however, that Muro fainted and the ambulance was called on April 17, the conversation between T. J. Fleming and Muro about the ambulance bill was in early September and Muro's discharge occurred on September 23. Therefore Muro's testimony as to dates is flagrantly erroneous. Moreover, Muro's reluctant and contradictory testimony was very unimpressive. Also it will be recalled that Muro at first testified that he did not remember that he had been warned about garnishments prior to the discharge con- versation, and only after his attention was directed to his Board affidavit did he remember that he had been warned. I am persuaded that Muro's testimony, where it is at variance with that of T. J. Fleming, Tom Fleming, and Gallardo, whose testimony was mutually consistent and candidly given, cannot be credited. Thus the evidence supporting a violation insofar as Muro is concerned may be briefly stated as follows: On August 13 Muro signed a union card, on August 19 the Union filed its petition, on August 20 T. J. Fleming interrogated Muro and other employees about union activities, and on September 15 the Regional Director issued his decision directing an election, and Respondent's responsible officials also made statements to the effect that Respondent was going to "fight" the Union. There is no direct evidence that Respondent knew Muro had signed a union card. Assuming, however, that Respondent knew that he had done so, I do not believe that General Counsel has established by a preponderance of evidence that Muro was discharged in violation of the Act. It is clear that Muro failed to pay the ambulance bill after it was received, and failed to notify Respondent that he had received the bill. Like- wise, it is clear that T. J. Fleming was "particularly irritated" when he received a "dunning" letter about the bill from the collection agency and that he told Muro that he did not like "these garnishments" on any of his employees. T. J. Fleming then warned Muro about such matters saying he was walking on "thin ice." A short time later T. J. Fleming received a notice that Respondent was ordered to deduct money from Muro's pay and pay it to a trustee. T. J. Fleming then called Muro in, reminded him of the prior warning, and discharged Muro giving him the opportunity however, to straighten the matter out and come back to work. A similar situation 19 The reference to apologizing as a "gentleman" is not clarified anywhere in the record. However, in view of T. J. Fleming's denial that the Union was mentioned in this con- versation, the reference to an apology is immaterial. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involving another employee also occurred. I cannot find that the reasons advanced by Respondent for Muro's discharge under these circumstances were mere pretexts. Accordingly, I find and conclude that the General Counsel has failed to establish by a preponderance of evidence that Respondent discharged Muro in violation of the Act, and I shall recommend the dismissal of this allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities found to be unfair labor practices in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY In view of my findings that the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under the Act, I shall recommend that it cease and desist therefrom and post an appropriate notice. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. 4. Respondent has not violated Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, T. J. Fleming Company, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business in Kansas City, Kansas, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Respondent's representa- tive, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt ,of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.2i It is further recommended that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(3) of the Act. 211f this Recommended Order should be adopted by the Board, the words "as ordered by" shall be substituted for "as recommended by a Trial Examiner of" 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 of" shall be substituted for "as oidered by". n 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." HUTTIG SASH AND DOOR COMPANY, INCORPORATED APPENDIX 811 NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of the rights guaranteed them in the National Labor Relations Act, as amended. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference , restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice or not to engage in any union activities. All our employees are free to become or remain members of District Lodge 71, International Association of Machinists , AFL-CIO, or any other union, and they are also free to refrain from joining any union. T. J. FLEMING, 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, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 2733. Huttig Sash and Door Company, Incorporated and Carpenters District Council of St. Louis and Vicinity. Case No. 14-CA- 3564. August 31, 1965 DECISION AND ORDER On June 14, 1965, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and Charging Party ,filed exceptions to the Decision, and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case 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. 154 NLRB No. 67.