Aeronca Manufacturing Co.

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bargaining posture of the Company regarding (1) substitution of a new com- pany in the wage survey (paragraph 14(b) and (c)), (2) alleged insistence that the Union "relinquish the right to strike while not according the Union the oppor- tunity to arbitrate effectively the administration of the proposed provisions" of the new contract (paragraph 14(f)), (3) proposals for "procedures for arbitration which denied the Union any effective means of arbitration" (paragraph 14(g)), (4) "proposals for restricting time off for Union officials for handling Union affairs" (paragraph 14(h)), (5) the request that the Union "obtain and submit newly executed dues checkoff card or cards signifying Union adherence" (paragraph 14(k)), and (6) the alleged refusal "to incorporate agreed upon working condi- tions in any written collective bargaining agreements" (paragraph 14(1) ). The facts bearing upon these allegations have been set forth at substantial length in the summary of the bargaining negotiations. I find that the Company's proposals on these matters were not unlawful per se and, further, that its tactics regarding them were not violative of the Act. To conclude, I find that the parties had reached a bargaining impasse in August 1962, prior to the Section 10(b) cutoff date, primarily over the two key issues of the scope of arbitration and the prerogatives of management As summarized in the preceding sections dealing with the proposals made in bargaining, the parties early in their negotiations, prior to the expiration of the contract as extended on August 3, 1962, were seriously at odds on these two issues. By the end of the August 23, 1962, session, the impasse was evident. Nonetheless, bargaining con- tinued, with the Company and also the Union making modifications in certain areas in an effort to reach agreement. As we have seen, the Company modified its position on the details of arbitration and closely related subjects, and also acceded to the Union's demands in substantial part in economic matters. The Union, however, adopted an intransigent position on management responsibilities and arbitration, and repeatedly iefused to make any meaningful effort to resolve these major differences by proposing workable alternatives. Finally, it seems fair to say that beginning in the summer of 1963 the Union shifted its efforts from the bargaining table to an attempt to augment its bargaining strength by affiliating with the Teamsters. When this move was defeated by a membership vote of 554 to 400 on June 16, 1964, shoitly after the hearing began, the Union adopted a more conciliatory attitude with the result that the bargaining impasse was eventually broken and a new con- tract executed on September 28, 1964. In view of all the foregoing, it will be recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Procter & Gamble Manufacturing Company 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 Section 2(5) of the Act. 3. The Procter & Gamble Manufacturing Company has not engaged in unfair labor practices within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entice record in the case, it is recommended that the complaint herein be dis- missed in its entirety. Aeronca Manufacturing Company and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO. Cases 31-C21-158 and 188. August 9,1966 DECISION AND ORDER On May 17, 1966, Trial Examiner Herbert Silverman issued his Decision in the above-entitled proceeding, finding that the Respond- 160 NLRB No. 35. AERONCA MANUFACTURING COMPANY, 427 ent had engaged in and was engaging in certain urifai',. 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. Thereafter, the Respondent filed, exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members 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 Respondent's exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner.'. [The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. Modify paragraph 1(d) by deleting the period at the end thereof and adding : "in P. manner constituting interference, restraint, and coercion within the meaning of the Act." [2. Modify the third paragraph of the appended notice by deleting the period at the end thereof and adding : "in' a manner constituting interference, restraint, and coercion within the meaning of the Act." [3. The address and telephone number for Region 31; appearing at the bottom of the notice is amended to read : 215 'vVest Seventh Street, Los Angeles, California 90014, T6lephone-688-5850.] CHAIAIAN MOCULLOCH, dissenting in part: In light of the Trial Examiner's findings that the foremen' s reports before Cooper when he decided to discharge Hanke were substan- tially accurate summaries of Hanke's conduct on the day of his dis- charge, I am not persuaded that the assigned reasons for Hanke's discharge were pretextual, and would therefore. dismiss the Section 8 (a) (3) allegation of the complaint. 1 We agree with the findings of the Trial Examiner that certain remarks made by Cooper, the Respondent's quality assurance manager, to the effect that there would prob- ably be a strike if the Union won and that a strike would ruin the Respondent, were violative of the Act, in view of other clearly coercive remarks made by Cooper , and in the light of similar coercive remarks by other representatives of the Respondent TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed in Case 31-CA-158 on August 26, 1965, and a charge and an amended charge filed in Case 31-CA-188, on September 29 and November 3, 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1965, respectively, there was duly issued on January 12, 1966 , an order consoli- dating the above-numbered cases and a consolidated complaint in said cases which alleges that the Respondent, Aeronca Manufacturing Company (herein also called the Company) has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The complaint, as amended during the hearing, in substance, alleges that the Respondent on August 19, 1965, discriminatorily discharged Robert Hanke and, by reason of said discharge and other conduct set forth in the complaint, has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) thereof. Respondent duly filed an answer to the complaint which generally denies that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held before Trial Examiner Herbert Silberman in Los Angeles, California, on March 2 and 3, 1966. Thereafter, briefs were duly filed by the parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent , a Maryland corporation , is engaged in the manufacture of aircraft components at its plant located in Torrance , California. During the past year, in the course and conduct of its business operations , the Respondent manufac- tured, sold, and shipped from its Torrance, California, plant, products valued in excess of $50,000 directly to customers located outside the State of California. 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 International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO (herein called the Union) is a labor organi- zation within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background This case is a sequel to the Union's drive, which began in the late spring of 1965, to organize the Company's employees. The stimulus for the Union's effort was a telephone call, made in May 1965, to International Representative John L. Keck by Robert Hanke, an inspector employed by the Respondent, who informed Keck of his interest "in getting a union in the plant ." The organizational campaign was begun on June 2, 1965, with the distribution of authorization cards at the plant gates. Thereafter, from time to time, other distributions of union literature were made within the plant by employees . In addition, meetings on behalf of the Union were held outside the plant and also within the plant during employees' free time. According to Keck, Hanke was one of the two key employees in the Union's organizational drive. (Jake Parkinson was the other key employee.) Hanke assumed responsibility for bringing union literature into the plant and passing it out and for calling meetings when there was important information to be given to the union supporters . Also, Hanke collected most of the authorization cards executed by employees. On July 7, 1965, a letter, signed by 24 employees, includ- ing Hanke, was mailed to the Respondent advising that the signatories were "in the process of organizing for the purpose of UAW union representation and col- lective bargaining." While the Company admits that it knew Hanke was an active participant in the Union's organizational campaign, it denies that it knew Hanke was one of the two employee leaders in such effort. Pursuant to a stipulation for certification upon consent election entered into in Case 31-RC-53, a Board-conducted election was held among the production and maintenance employees at the Respondent's Los Angeles and Torrance, California, plants on September 9, 1965. Timely objections to the election were duly filed and the election has been set aside and a new election has been directed . While the AERONCA MANUFACTURING COMPANY 429 record in this case does not purport to explore the extent of Respondent's resist- ance to the Union's drive, the evidence of unlawful conduct, discussed below, reveals an attitude of hostility on the part of the Company to the organization of its employees.' B. Interference, restraint, and coercion, Considerable testimony, for the most part undisputed, was adduced which dis- closes strong opposition on the part of various managerial and supervisory employ- ees to the Union's organizational drive. While some of the incidents, although con- stituting disparagements of the Union, do not exceed the bounds of permissible expression of "views, argument or opinion," there were many other instances where supervisors directly or by innuendo threatened employees with reprisals should the Union become their bargaining representative, or where supervisors unlawfully interrogated employees concerning their union activities. General Counsel contends that "the number of supervisors involved-nine-and the similarity of their ap- proach reveal a pattern of systematic intimidation in accordance with definite instructions." Contrary to General Counsel, I find no evidence that the supervisors who engaged in the complained-of conduct were acting under instructions. How- ever, the general similarity and the extensive scope of their unlawful activities suggest that the supervisors were pursuing a common program and making a joint effort to check the Union in its organizational drive. I find that the Respondent has violated Section 8(a)(1) of the Act by reason of the following described conduct on part of its agents employed at the Com- pany's Torrance plant, all of whom except Pat Lupin were supervisors: 1. Al Mulford, foreman of the shipping and receiving department: 2 a. Within 2 weeks prior to the election Mulford called the employees of the shipping and receiving department to a meeting in his office during which the Union and related subjects were the principal topics of discussion. The meeting lasted almost 2 hours. Mulford expressed his opposition to the Union and made some severely disparaging remarks about the Union. In addition, among other things said by Mulford, according to the undisputed testimony of Richard Dosen- bach, was that "after the Union came up, errors would cease-you know, they would be reduced more or less, and work would increase or they would find other 'Also revealing Respondent's hostility toward the Union are incidents in which super- visory personnel were quick to disparage the Union; As an example, shortly before the election, Wayne Cooper, manager of quality assurance, after'conducting a group of people (presumably representatives of a'potential customer) through the plant, remarked to employee Richard Dosenbach, "You guys with your (union] badges and your [union] decals on your tool boxes have cost us a contract. They took one look and walked out " 2 Employee Danny Powell and Richard Dosenbach testified about an incident, which occurred in early July 1965, where a driver for Harvey Aluminum Company (employees of Harvey Aluminum were then engaged in a strike which was being widely publicized in the area), who was being followed by several men in a car, sought assistance from Mul- ford in order to leave the plant. According to their testimony, Mulford remarked to them, How do you like your union now" . Well, how would you like to walk on the bread line for six months? (Powell testified that he understood Mulford's remark to mean, How would I like to be on strike for six months"" Dosenbach testified that Mulford said to him that "if [the Company's employees] had a union, and we went on strike, that I would be sent home, because there would be no work for me." Dosenbach explained that the remark "made sense to me, because if they were on strike, there is no incoming material, and there would be no work for me.") I do not find Mulford's remark made in the circumstances described to be anything more than an impulsive reaction-reflecting, however, his hostility to the Union-to the situation with which he had to deal and in the context was little more than a forceful reminder to the employees that the selection of the Union might ultimately result In a protracted strike. This is unlike the case where an employer implies to his employees that strikes are inevitable if they select a bargaining representative. In such cases if the context of the statement suggests that the employer may take action to precipitate such strikes the Board usually finds the utterances unlawful See Bernardin, Inc., 153 NLRB 931 ; Herman Wilson Lumber Company, 149 NLRB 673, 677-678, enforce- ment denied, 355 F.2d 426 (C.A. 8). Here, however, Mulford's statement is not fairly susceptible to such construction. 430 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD people who could do these things `for us." 3 A similar threat was repeated to Dosenbach about 2 days later when Mulford told him "that if I didn't cease to make these mistakes' after the Union come in, that they possibly would find some- body to replace me . Mr. Peter Gudekunst was head of finance, and he would insist on fewer mistakes after the Union came in." In the same vein, Ronald Lupin testified that Mulford said to him that "if the Union did get in, the initial cost to install a Union with stewards having to be paid for time off would be a cost to the Company, which would initially make them in return to have to cut down on material conservation, and they would not be able to goof off, or if they were caught goofing off, they would have to be just replaced." These threats that the Company in counteraction to the organization of its employees would increase their workload and would treat their mistakes or inattentiveness less leni- ently were unlawfully coercive. b. In early August 1965, according to Jonathan Elber, "Mr. Mulford approached me and . said, . `I thought you hired in here that you didn't want a Union, and now I understand that you do, and I'd like to know why."' There was further discussion between the two during which Mulford argued that the Union was not needed in the plant and that the union protagonists in the plant were "a lot of pea brains." 4 Finally Mulford said, "'Were I running the Company,' that he will get rid of all the trouble makers, and in this specific case of my own department, all they had to do if the Union got in was subcontract work-get rid of all the regu- lar people in the shipping and receiving department and hire winos from San Pedro, like they used to do, except that they used to do it in Los Angeles, to do the work .. " Mulford's questioning Elber about his supposed change of sentiments regarding the Union in context of a discussion during which Mulford made insult- ing remarks about the union organizers among the employees and expressed his personal wish to "get rid of all the trouble makers" if the Union got in constituted unlawful restraint and, coercion. It served to apprise Elber that his continued sup- port of the Union might result in the loss of his job in the event the Union should succeed in organizing the plant. c. I also find Mulford's query of Richard Dosenbach as to whether he wished to wear a company badge constituted unlawful interrogation. Although Dosenbach testified that he viewed the question as a form of joke, nevertheless it unlawfully interfered with employees' statutory rights because Dosenbach was compelled to indicate to Mulford his position regarding the Union. See, Blue Flash Express, Inc., 109 NLRB 591. 2. Ben Elrich, plant supervisor: a. Jose Quintana testified that in July 1965 he received a 5-year pin from Elrich in the latter's office at which time Elrich told Quintana that if the Union came in the Company would reduce a number of employees in the labor grade A classification to the lower B classification .5 This statement, constituting an une- quivocal threat as to the consequences of a union victory at the election, is a patent violation of the Act. 8I do not find that the remark attributed to Mulford by Ronald Lupin that "the cost [of dealing with a union] would put the Company at a disadvantage as far as contracts [referring to customer orders] were concerned" was unlawful. Also, the remark made to Jonathan Michael Elber at the meeting by leadman Sam Arthur that "if the Union did get in, that a lot of dead wood [referring to Elber] would be eliminated from Aerouca" was not unlawful because Arthur is not a supervisor and Mulford did not endorse Arthur's statement but cut off discussion of the matter with the comment, "Let's not get personal- ities into this." Contrary to General Counsel, I do not find that the circumstances (to the extent that they are described in the record) under which the remark was made were such that, in the absence of a disavowal by Mulford, the employees might reasonably have in- ferred that Mulford had adopted Arthur's statement. 4 ,Ronald Lupin and Raymond Locke testified that Mulford made similar disparaging comments to them about the union organizers referring to such persons as "donkeys" or "pea heads." While such comments are disparaging of the union adherents they are not unlawfully coercive. 5 Although not entirely clear from Quintana 's further testimony, Elrich explained that the reason such reduction In grade would be made Is that the price the Company receives for its product Is fixed by contract and therefore to accommodate itself to any increase in wages which might result from union negotiations the Company would have to downgrade some of its employees. AERONCA MANUFACTURING COMPANY 431 b. Similarly, during a meeting of the fabrication departmeni employees, held -a few days before the, September 9' election, at which Foreman Gene Harris and Plant Supervisor Elrich spoke about the Union, the latter pointing to Richard Kabashi, a seasonal worker, asserted that if the Union got in seasonal employees would not be able to keep their jobs. The unlawful character of the foregoing statement is readily apparent. 3. Wayne Cooper, manager, quality assurance: a. William J. Leinenbach testified that about July 15, 1965, following a discus- sion with Cooper in the latter's office about various business matters, Cooper asserted to him that if the Union were to get in the Company might lose the busi- ness that it does with Northrop, Boeing, and Douglas and that Leinenbach should bear this in mind every time he- speaks in favor of the Union. As no evidence was adduced at the hearing to support this statement or to show any basis for Cooper's belief in its truth, the prediction that union representation would result in the loss of substantial customers of the Respondent was unlawfully coercive because it implied that the consequence to the employees of a successful self-organizational effort would be a reduction in their working time and gross earnings International Union of Electrical, Radio and Machine Workers [Westinghouse Electric] v. N.L.R B., 289 F 2d 757, 763 (C.A.D C.); Harold Miller, Herbert Charles and Milton Charles, Co-Partners, d/b/a Miller Charles Co., 146 NLRB 405, enfd. 341 F.2d 870 (C.A. 2); Brownwood Manufacturing Company, 149 NLRB 921. b. Manuel Ibarra testified that in July 1965.Cooper approached him and point- ing to the organizer's badge which he was wearing said, "You are wrong trying for the Union . . . [I]f the union got in, that they'd probably have a strike, and I'd be out the gate looking in." Cooper added, according to Ibarra, that "if I didn't like it there, why didn't I go somewhere else-to Lockheed, or Douglas." State- ments such as this which imply that strikes are inevitable if the employees select a union as their representative and which implant in the employees a fear that a union victory will be followed by loss of jobs or earnings tend to restrain and coerce the employees in the exercise of their statutory rights and accordingly violate the Act. Bernardin, Inc., 153 NLRB 939; Haynes Stellite Company, Division of Union Carbide Corporation, 136 NLRB 95, reversed 310 F.2d 844 (C.A. 6). c. Similarly coercive was Cooper's statement to Robert Hanke made on July 17, 1965, that "if there were a strike there at the plant, the company would be ruined" because it would lose its subcontracts from Norair, Boeing, and McDonald. 4. Harvey Taylor, foreman ,of the fabrication department: a. Toward the close of the August 1965 Taylor spoke with Donald Batty,6 a leadman on the Boeing cord line, about the Union. According to Batty, Taylor began the conversation with the remark, "I understand that your name is on the organizer list." Taylor then continued, "I thought you had better sense than to put your name on the organizer's list . what's the matter, Don? Why don't you go out there and take that name off?" Batty responded by describing to Taylor the benefits he hoped to obtain from union representation. Taylor inquired whether these things could ' be accomplished without a union and added that there was a new regime at the plant and why don't the employees give them a chance and see what they would do. Taylor then mentioned "that possibly contracts are given and taken in labor disputes like this, and if there is some dispute, the Union isn't going to do us any ' good . . . possibly it may hurt us contract-wise." Foreman Taylor's urging Batty to discontinue his organizational activities was a blatant interference with employees' statutory rights and such request, particularly in the context of Taylor's prediction that the Union will not do the employees any good, constituted unlawful restraint and coercion. b. Carl Duben testified about an incident that occurred approximately a week before the September 9 election when he had occasion to be in Taylor's office. After a discussion about some personal matters was completed, Taylor raised the subject of the Union. Taylor said that for quite a few years the Company had been operating at a loss and now that new management had taken over the Company was beginning to make a profit but if the Union should get in they wouldn't be able to continue making a profit. Taylor added that McDonald Aircraft had been waiting for an opportunity to cancel their contract with Aeronca and "this might just give them a chance that they had been waiting for." He concluded with the 6 Batty had been president of the employees' club the preceding year 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD observation that "if the Union did get in, that the plant might close." Such threat that the plant might close in the context of the entire conversation was without question coercive? 5. Gene Harris, foreman: a. In late July 1965 Harris approached Raymond Locke and began a conversa- tion about the Union. During the discussion Harris said to Locke, "We're not going to give you anything. You are going to have to strike in order to get it." This remark, suggesting that the Company would not bargain in good faith with the employees' duly designated representative and that such representative would not be effective except by resort to strike, has a tendency to restrain and coerce employees in the exercise of their guaranteed self-organizational rights because it seeks to impress upon them the futility of their activities. 6. Ted Lavazerri, foreman: a. Robert Hanke testified that in early July, Lavazerri began a conversation with him about the Union by asking what Hanke expected to get out of the Union. Donald Batty testified that in late August 1965 Lavazerri questioned him as to why he wanted to assist the Union. These interrogations, when considered in the context of the other acts of interference with, and restraint and coercion upon, em- ployees' organizational rights on the part of Respondent's supervisors, tend to restrain employees by forcing the employees not only to defeat their views regarding the Union but to iterate to their employer their position. In light of the various threats made to employees by Respondent's supervisors a natural and normal tendency of the questioning by Lavazerri would be to place employees in fear that they may be subject to reprisals of some nature because of their union activities and sympathies. 7. Patrick Lupin, parts coordinator: Respondent denies that any unlawful conduct on the part of Lupin can be attrib- uted to it. While I agree with Respondent that Lupin, at the times relevant to this case, was not a supervisor within the definition of the Act, nevertheless, I find that Lupin occupied such position that the employees regarded him as an agent and a spokesman for the Company. Prior to June 1960 Lupin had been a super- visor and as a supervisor was given and wore in the plant a red badge (nonsuper- visory employees normally did not wear such red badges) on which the word "supervisor" was inscribed. In June 1960 Lupin was transferred to the position of master scheduler and in January 1961 to parts coordinator. These transfers did not represent demotions for Lupin, but to the contrary his employment record shows that there was no reduction in his pay by reason of these changes and that he received substantial increases thereafter. After Lupin's transfer in June 1960 and during all times relevant hereto he continued to wear the red badge with the word "supervisor" inscribed. Various employees who were questioned about Lupin's status indicated by their testimony that they viewed Lupin as a responsible repre- sentative of the Company. In these circumstances, particularly as there is no evi- dence that the employees were informed following Lupin's transfer in 1960 that he was no longer a supervisor, I find that the Respondent permitted Lupin to main- tain the appearance of a supervisor, that the employees viewed him to be a repre- sentative of management, and that he had at least apparent authority to speak for management. Accordingly, Lupin's conduct described below is attributable to Respondent. Valley Forge Flag Company, 152 NLRB 1550. a. In June 1965 a group of employees approached Lupin to give him the names of additional employees who had volunteered to assist the Union in its organiza- tional drive. According to Joseph Contessa, Lupin responded by telling the employ- ees, "Drop dead. That means (the) ten of you, before the Union comes in, you guys will all be out of the door." I find this threat to discharge the employees who were active on behalf of the Union a violation of Section 8(a)(1). 8. Michelle Connors, personnel manager: a. Donald Batty testified that about September 1, 1965 , Connors questioned him as to why he was assisting the Union's organizational effort and, referring to the fact that she and Batty had worked closely together during the period Batty was the president of the employees' club, expressed her dissappointment at his actions. Such interrogation, in the light of Respondent's hostility toward the Union 7 I do not find that the testimony of Danny Pow ell concerning a discussion he had with Lynn Thorpe about August 1, 1965, and the testimony of Gary Sinarly concerning a meet- ing in Lynn Thorpe's office in the latter part of July and a later second meeting in Thorpe's office establish any violations of the Act. AERONCA MANUFACTURING COMPANY 433 and its other unlawful conduct, described above, carried with it an implication that continued union activity on his part might be met with reprisals by the Com- pany and therefore had a tendency to restrain and coerce employees in violation of Section 8(a)(1). C. The discharge of Robert Hanke Robert Hanke, who had been employed by the Company as a processing inspec- tor in the quality assurance department for approximately 31/2 years and who was one of the two employee leaders in the union movement at the plant, was discharged on August 19, 1965. During his employment by the Company Hanke's work had been regarded as good and, prior to the date of his discharge, he had never been reprimanded. General Counsel contends that Hanke was discharged in reprisal for his union activities while Respondent asserts that Hanke was dis- charged for cause. The decision to discharge Hanke was made by Wayne Cooper, manager of quality assurance. His action was prompted by complaints about Hanke that he had received from Foremen Robert Citrowski, Earl Harris, and Arthur Tremaine.8 About 9.30 a.m. on August 19, Citrowski complained to Cooper about an alterca- tion the latter had had with Hanke that morning and recommended that Hanke should be reprimanded. Cooper told Citrowski that if the latter felt the incident was serious he should prepare a written report. Later the same morning Citrowski submitted the following statement to Cooper, which I find is a substantially accu- rate summary of the event: When questioned about an 850SA #1 tank section that had a tag written on it and the tag was not with the part and the part had been setting in the area for nine days Robert Hanke stated he did not know and could care less where the f- thing was He then said sarcastically do you want me to call Wayne Cooper? Maybe he knows. I said yes if you have to we are behind schedule (16) tanks and we need the section badly. He said: I could care less on what you need I'm no dog flunky around this place. He then said why don't you look at the stamp number to see who wrote the tag? Then he picked up the work order and said no. (47) wrote the tag and I said how can you tell all there is is a blotch. He said I know everything that goes on around here. He then grabbed the work order pushed me and went to the phone. I then said you are acting insubordinately. He then said management does not know what in the hell they are doing around here. I then said there is now a full time supervisor out here to help out. He said why doesn't he do some f- work. I said he is not supposed to do the work only see that it gets done. He then walked out of the dept. R. C. Citrowski 9 8 Cooper testified that during the 11 years he was manager of quality assurance, except in the case of Hanke, he had not personally discharged any employee although he had approved discharge decisions made by others. Cooper's further testimony suggests that his personal intervention in Hanke's case was required because William Lafferty, Hanke's supervisor, was on vacation on. August 19, 1965, so that Cooper was then without super- visory assistance in the quality assurance department. 0In his review of the incident at the hearing Citrowski exaggerated the seriousness of the alleged assault by testifying that Hanke deliberately "put his shoulder into me, knocked me against the table" so that the upper half of Citrowski's body was thrown back onto the table. This testimony is not only inconsistent with the report Citrowski gave to Cooper but also with a statement he made to Personnel Manager Connors. The latter testified that Citrowski told her merely that he had been pushed by Hanke and if it had not been for the table he would have fallen. Hanke, on the other hand, minimized the incident. According to Hanke, during the encounter with Citrowski, he did not raise his voice, he did not use any profanity (although he testified that he said with reference to the missing tag that "this isn't my responsibility, to play dog and chase these tags down"), and he did not push Citrowski (although he testified that when he turned around Citrowski bumped into him). I find that at the time in question there was an altercation between Hanke and Citrowski during which Hanke nudged Citrowski sufficiently hard as to throw the latter partially off balance. However, despite their dispute, Hanke made a genuine effort to locate the missing tag so that, although his behavior toward Citrowski was dis- respectful, he was not derelict in the performance of his duties. 257-551-G7-vol. 160-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Very soon after his conversation with Citrowski, Cooper received a complaint about Hanke from Gene Harris and about 2 or 3.liours later he received a simi- lar complaint about Hanke from Arthur Tremaine. In each instance Cooper requested that a written report should be submitted to him. The reports which were given to Cooper during the same day by Harris and Tremaine and which I find are substantially accurate summaries of the respective incidents described, are as follows: Approximately 9:00 a.m. 19 August 1965 After the discussion between R. Citrowski and R. Hanke Mr. Hanke came to me to talk to me and set me straight, as he put it. He started telling me that he feels that he has been harassed since he is a union man. I informed him that as far as I was concerned the union does not enter the picture as long as he does his work. Then he informed me that he had a book on the Company and he could shut them down. (S) E. E. Harris E. E. HARRIS, Foreman 9:45 A.M. 19 August 1965 At approximately 9:45 A.M. after an argument with Bob Citrowski, Bob Hanke came to me. During the ensuing conversation he stated that it was not his responsibility to take care of all the paper work on all parts in this area. He then stated that he told Gene Harris and Bob Citrowski where he stood and if they were trying to badger him into quitting he would never leave. He also stated that he had his job secured here whether anyone knew it or not. He also stated that he had a book with enough information to blow the lid off Aeronca. (S) Art Tremaine ART TREMAINE, Foreman 10 According to Cooper, after reviewing the statements he received from the three foremen he concluded that Hanke had been insubordinate toward Citrowski. With respect to the statements from Harris and Tremaine, Cooper testified, "I had a very, strong feeling and in particular about the reference to an employee of mine who was maintaining a record of well, say, the irregularities without , reporting these to me and telling other supervisors in the plant that he had information that would, well, blow the roof off the company." Cooper thereupon decided to ter- minate Hanke. Cooper did not confront Hanke with, or ask Hanke to explain, the accusations which had been made against him. Between 1:30 and 2 p.m. Cooper "Harris' version of the incident as related at the hearing is substantially similar to his statement except that Harris did not testify that Hanke "informed me that he had a book on the company and he could shut them down," but testified that Hanke told him that the latter "had enough information on the company to blow the lid." Tremaine's testimony con- cerning the incident corresponds closely with his statement. Although in response to questions asked him by General Counsel on redirect examina- tion Hanke testified that in a conversation with Tremaine he might have referred to a book which he carried and he does not know whether or not he said anything to Tremaine to the effect that he had enough in a book to blow the lid off the Company' (during earlier cross-examination he denied having made such statement), he denied that he made any such statement to Harris. I do not credit these denials by Hanke. While 1 am of the opinion that Hanke was not an untruthful witness in the sense that he deliberately fabricated his testimony, he, nevertheless, permitted his partisanship to the Union and interest in this case to color his testimony so that I find his testimony was less credible than the testimony of Harris and Tremalne who impressed me as being reliable witnesses. Furthermore, both before and soon after his conversations with Harris and Tremaine, Hanke made state- ments to other persons similar in nature to the statements described by Harris and Tremalne. Thus, William Leinenbach testified that before be left the plant on August 19, 1965, after he became aware of Hanke's discharge, lie told Foreman Gene Harris that Hanke had enough on the Company to blow the lid off the Company. According to Leinen- bach, he based his remarks upon discussions with Hanke about the Company's operations from which he understood that Hanke was in possession of considerable damaging informa- tion about the Company. Cooper testified without contradiction that when he notified Hanke that the latter was being discharged Hanke said that he had a book with informa- tion in it that would blow the roof off Aeronca and that he was going to give the book to the National Labor Relations Board. AERONCA MANUFACTURING COMPANY 435 advised Personnel Director Michelle Connors of his decision to terminate Hanke and requested her approval of the action. In support of his request Cooper sub- mitted to Connors the statements he had received from the three foremen and a request for personnel action written on a standard company form which contains the following explanatory remarks: Insubordination to foreman & threatening the Co in presence of foremen. Presently note of proper attitude [sic] to coordinate as necessary with supervision. According to Cooper's further testimony, he had no discussion with Connors about his decision. However, in Cooper's presence, Connors placed a telephone call to Mr. Lindsey, a company officer, at Respondent's headquarters in Middletown, Ohio. After the conversation between Connors and Lindsey was concluded Connors approved Hanke's termination. Prior to the end of the shift at 3:30 p.m. Cooper informed Hanke that he was terminated "for insubordination and for his state- ments and actions towards other supervisors, and that it might be impossible to continue working for Aeronca effectively." li Personnel Director Michelle Connors' testimony concerning the discharge of Hanke in part is inconsistent with the testimony of Cooper. According to Cooper, Connors approved Hanke's discharge merely upon reading the statements and request for personnel action which he submitted to her. Connors, on the other hand, testified that it is her practice to investigate proposed discharges and that she does not automatically accept termination recommendations of supervisors. She further testified that she conducted an investigation of the circumstances which gave rise to Hanke's discharge and in that connection she spoke with Citrowski, Tremaine, and Harris. She also explained that it is not her practice to speak with the discharged employee unless an interview is specifically requested by the employee, but that it is the Company's policy for the supervisor to speak with the employee. I find that on August 19, 1965, the day Hanke was discharged, he behaved offensively toward Foreman Citrowski (rather than insubordinately as his con- duct was characterized by Cooper) and that he made the so-called threats against the Company of which he was accused by Foremen Harris and Tremaine. These findings, however, do not necessarily determine in Respondent's favor the issue of whether Hanke's discharge violated the Act because the question to be decided is not limited to whether Hanke had engaged in misconduct which furnished jus- tifiable grounds for his discharge. "[A]n Employer may discharge for no cause, or an unfounded cause so long as it was not in the least precipitated by antiunion discrimination." The General Tire of Miami Beach, Inc. v. N.L.R.B., 332 F.2d 58, 60 (C.A. 5). On the other hand "the mere existence of valid grounds for a dis- charge is no defense to a charge that the discharge was unlawful, unless the dis- charge was predicated solely on those grounds, and not by a desire to discourage union activity." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7). "[I]t goes without saying that the Act is violated if discrimination is the real motive for a discharge, and it is no defense that at the same time there was a justifiable ground for a discharge." Wonder State Manufacturing Company v. N.L.R.B., 331 F.2d, 737, 738 (C.A. 6). The Company contends that union considerations did not enter into its decision to discharge Hanke. In support of its position it now argues that if "the com- pany was antiunion motivated, more than one union organizer out of -40 or 50 would have been eliminated." This argument is of little weight. "[I]t is established that a discriminatory motive, otherwise established, is not disproved by an employ- er's proof that it did not weed out all union adherents." Nachman Corp. v. N.R.L.B., 337 F.2d 421, 424 (C.A. 7). Discouragement of organizational activi- ties may be effected by making "an example" of only one employee.ii ll Hanke testified that about 3 p.m on August 19, 1965, Cooper informed him that he was being discharged for "being a disturbing influence." When Hanke pressed Cooper for a more specific reason for the discharge Cooper replied, "For being insubordinate and un- cooperative." Although Hanke denied that Cooper specifically informed him that a reason for his discharge was that he had threatened the Company, I do not consider the variance between the testimony of Cooper and Hanke as to what was said during this last con- versation of any material significance. 22 See N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F.2d 163, 175 (C.A. 7). 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There are circumstances here which persuasively reveal that Hanke's miscon- duct was not the motivating reason for his discharge. Hanke's employment was peremptorily terminated on August 19, 1965. In so doing there were significant departures from the Company's usual procedures, Connors testified that "[o]ur policy has always been to have the supervisor talk to the employee." However, no supervisor spoke with Hanke before he was notified of his discharge. Connors further testified that the personnel office always investigates discharge recommen- dations before approving such actions. In this case, if Cooper's testimony is accepted, no such investigation was made; or if Connors' testimony is accepted then the investigation was superficial, because no attempt was made to ascertain from Hanke whether there were mitigating circumstances or even to determine independently whether the accusations against him were true. Furthermore, dur- ing the 11• years that Cooper has been manager of quality assurance he never personally discharged any employee, yet in this instance he not only made the decision to discharge Hanke, but assembled the evidence against Hanke and per- sonally led Hanke through the termination procedure by accompanying Hanke while the latter checked out his tools, by conducting Hanke to the personnel office, and by escorting Hanke to the plant gate. There was nothing in the nature of the misconduct of which Hanke was accused that warranted such extraordinary action on the part of Cooper. When Cooper first heard the complaint about Hanke from Citrowski he did not treat the matter as one requiring immediate action because his instruction to Citrowski was merely that if Citrowski thought the incident was serious he should submit a writ- ten report. Furthermore, Citrowski recommended only that Hanke should be repri- manded. Insofar as suggesting the need for immediate disciplinary action the complaints Cooper received from Harris and Tremaine were even less compelling. The threats which Hanke conveyed to these foremen were vague and uncertain. Furthermore, they were made in response to his dispute with Citrowski and were tied to Hanke's assertion that he believed he was being harassed because of his union activities and that he believed that "they were trying to badger him into quitting." In context of the events preceding his remarks to Harris and Tremaine, the statements were of an aggressively defensive nature but were not reasonably susceptible to an interpretation that Hanke planned to take immediate action which would be detrimental to the Company. Hanke was not a marginal employee whose services were of dubious value to the Company so that the Respondent might view almost any misconduct on his part as a ground for immediate dismissal. The gen- eral remarks approved by Cooper on the rating reports given to Hanke during the period of more than 3 years that he worked for the Company show that Cooper regarded him as a very good, if not an outstanding, employee. Thus the rating reports, bearing the dates indicated and Cooper's signatures of approval, contain the following general remarks: 5/7/62-Bob is always pleasant, eager to learn new jobs and very reliable. Pay increase suggested. 9/3/62-Bob's work is very satisfactory. 1/7/63-Bob applies himself to various assignments very well and always does a good job. 5/6/63-Bob is very enthusiastic about his work and always does a good job. 9/2/64-Bob always does an excellent job and readily accepts a variety of assignments. 1/6/64-Bob continues to do an excellent job. 5/4/64-Bob does a very good job on all assignments. 9/7/64-Bob is doing a very good job. 1/4/65-No comments. 5/3/65-Bob is doing a very good job, very satisfactory output. Cooper made no attempt at the hearing to explain why he summarily discharged an employee whom he considered so well. As "direct evidence of a purpose to violate the statute is rarely obtainable," 13 whether a contributing reason for Hanke's discharge was Respondent's desire to discourage membership in any labor organization must be gleaned from all the 13 Hartsell Mills Company v. N.L.R.B., 111 F.2d 291, 293 (C.A. 4). AERONCA MANUFACTURING COMPANY 437 relevant circumstances. After 3l/2 years of satisfactory employment Hanke was abruptly discharged by Cooper (who in the preceding 11 years had not personally discharged any employee) the first time Henke engaged in any misconduct, despite the fact that Cooper theretofore had subscribed to highly laudatory comments, about Hanke's work and attitude in the plant. Furthermore, Hanke's discharge in such summary manner was a departure from the Company's usual termination practices. Respondent's haste in removing Hanke from the plant when related to the fact that a representation election was scheduled to be conducted in approx- imately 3 weeks and that Hanke was known to the Company as an organizer for the Union and was suspected by Cooper to be one of the Union's leaders in the plant,14 and when viewed in the light of Respondent's extensive unlawful anti- union conduct leads to the conclusion that a substantial motivating reason for Hanke's discharge was his union activities. Such discharge therefore violates Sec- tion 8(a)(3) of the Act and also constitutes interference with, and restraint and coer- cion of, employees in the exercise of the rights guaranteed in Section 7 in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Having found that the Respondent unlawfully discharged Robert Hanke on August 19, 1965, I shall recommend that the Respondent offer him immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of Respondent's offer of reinstatement less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 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. By discriminating in regard to the hire and tenure of employment of Robert Hanke to discourage membership in the Union, Respondent has .engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 14 Hanke testified, without contradiction, that on July 17, 1965, Cooper spoke with him privately Cooper said "that he was approaching me as a member of the organizers, to see if I could exercise some control or restraint upon the other organizers or the organizing committee." Hanke replied that he was not a leader and that the organizers were operat- ing independently. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent has not engaged in any unfair labor practices by reason of the conduct alleged in the complaint to have been in violation of the Act except inso- far as such conduct has been found hereinabove to have violated Section 8(a)(1) or (3) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law , and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recom- mend that Aeronca Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that if the employees select or designate Inter- national Union, United Automobile, Aerospace & Agricultural Implement Work- ers of America, UAW, AFL-CIO, or any other labor organization , as their collective- bargaining representative that: they might suffer loss of employment; they might suffer loss of wages by reason of strikes or the subcontracting of work ; they might suffer demotions or other downgrading in their job classifications ; the Respondent might close its plant; or the Respondent would not bargain collectively in good faith with the employees' designated representative. (b) Discouraging membership in the aforesaid Union, or any other labor orga- nization, by discharging any employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employ- ment of any of its employees. (c) Coercively interrogating its employees regarding their union membership, activities, sentiments, sympathies, or their reasons for supporting any labor organization. (d) Urging employees to discontinue their self-organizational efforts or other union activities. (e) In any other manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to form labor organizations , to join or assist the above-named Union, or any other labor organization, to bargain col- lectively through representatives • of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action , which is deemed necessary to effectu- ate the policies of the Act: (a) Offer to Robert Hanke immediate and full reinstatement to his former or to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered by reason of Respondent 's discrimination against him. (b) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a deter- mination of the amount of backpay due to said employee. (c) Notify Robert Hanke if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (d) Post at its place of business in Torrance , California, copies of the attached notice marked "Appendix." is Copies of said notice, to be furnished by the Regional Director for Region 31 of the Board, after being duly signed by an authorized representative of the Respondent, shall be posted upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter , in con- spicuous 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. 16 In the event that this Recommended Order is 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." AERONCA MANUFACTURING COMPANY 439 , (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to •comply herewith.16 19 In the event that this Recommended Order Is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees that if they select or designate Inter- national Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, as their collective bargaining representative that: they might suffer loss of employment; they might suffer loss of wages by reason of strikes or the subcontracting of work; they might suffer demotions or other downgrading in their job classifications; the Company might close its plant; or the Company would not bargain collectively in good faith with their designated representative. WE WILL NOT interrogate our employees regarding their union member- ship or activities or union sentiments or sympathies or reasons for support- ing any labor organization. WE WILL NOT urge any of our employees to discontinue their self- organizational efforts or other union activities. WE WILL NOT discourage membership in International Union, United Auto- mobile, Aerospace & Agricultural Implements Workers of America, UAW, AFL-CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating against any of our employ- ees in regard to their hire, their tenure of employment, or any term or con- dition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations,' to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Robert Hanke full reinstatement to his former or to a sub- stantially equivalent position without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge. AERONCA MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Notify Robert Hanke if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 17th Floor, U.S. Post Office and Courthouse, 312 North Spring Street, Los Angeles, California 90012, Telephone 688-5801.