Rodney Metals, Inc.

RODNEY METALS, INC. 1419 Rodney Metals, Inc. and Local 899, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO. Case 1-CA-5253. September 28, 1966 DECISIONS AND ORDER On June 22, 1966, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. Thereafter, the Respondent filed exceptions to the Deci- sion and a supporting brief, and the Charging Party filed an answer- ing 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 this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifications. 1. The Trial Examiner found, and we agree, that Respondent dis- charged employee Philip Beauregard in order to discourage union membership and activity in violation of Section 8(a) (3) and (1) of the Act, rather than for cause. In addition to the reasons set forth by the Trial Examiner for finding Respondent's explanation of the dis- charge incredible, we note the following. Beauregard's shift had been engaged in an operation which required prepared steel and when the supply of steel was exhausted, it became necessary to change to the processing of aluminum. Respond- ent contends that Beauregard's failure to turn on an aluminum tank in sufficient time to have it ready for the succeeding shift necessitated a change from processing of aluminum to working on steel, thereby causing a loss of 3 hours of production time and of several gallons of paint. This is advanced as the primary reason for Beauregard's discharge. However, it is undisputed that it takes approximately one-half hour, after the tank valve is turned on, to bring the aluminum tank to proper temperature. Respondent's Foreman Monteiga admitted in 160 NLRB No. 107. 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his testimony that Beauregard turned on the tank between 10 and 15• minutes before his shift ended. It is also undisputed that the proper paint had already been prepared for the aluminum run. Thus, going ahead with the aluminum job could not possibly have caused more, than 15 to 20 minutes delay. Furthermore, the very reason why the tank was required in order to process aluminum was the lack of pre- pared steel needed to continue a previous operation. Yet, Respondent would have us believe that because the aluminum tank was not ready at the start of the succeeding shift, it switched to a steel job, requir- ing different paint. And, when the steel job had been completed, the aluminum job was again prepared, again requiring a change of paint. All this, Respondent claims, caused the loss of production time and paint, as described above. We find it incredible that Respondent, faced with a choice of either waiting 20 minutes before starting the aluminum run or switching to steel with a resultant loss of 3 hours' production and a waste of materials, chose the latter course. Significant too is the fact that Auf- frey, general foreman on Beauregard's shift, upon whose testimony Respondent's story is based, gave confused testimony and became less and less sure as to just what did occur. Thus, although contending that there was an actual loss of time and materials, Auffrey stated, in answer to a question as to what he had told Beauregard at the time, of the discharge, that : "I believe that I said that in view of the omis- sion of the aluminum set up it could cost the Company considerable in production time and also fouled up our normal production sched- ule." [Emphasis supplied.] Under these circumstances, we are persuaded that no such loss in fact occurred. We conclude, rather, that Respondent seized upon Beauregard's delay in starting the aluminum tank as a pretext to rid itself of one of the most active union adherents in the plant. 2. The Trial Examiner found, and we agree, that Respondent laid off employee Moura, and has since refused to recall him, in violation of Section 8 (a) (3) and (1) of the Act. In this connection, the record clearly reveals the many job openings in Respondent's plant for which Moura was qualified. Under vigorous cross-examination, Respondent's Vice President Morse admitted that most of these jobs carried approximately the same rate of pay which Moura had received as a boxmaker. Yet, no job was offered to Moura despite the fact that he had asked for work? However, we find the Trial Examiner's recommended remedy, that Respondent be ordered to resume its box and skid making operation, and offer employee Moura full reinstatement to his former position, is 1 When told of his layoff, Mourn replied : "You mean to tell me you haven't got anything for me?" RODNEY METALS, INC. 1421 inappropriate. Compliance might burden Respondent with huge expense, unnecessary to effectuate the policies of the Act.2 Rather, we will order the Respondent to offer Moura reinstatement to a substan- tially equivalent position for which he qualifies. In the event that the Respondent resumes its box and skid making operation, Respondent shall offer Moura full reinstatement to his former position. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete the period at the end of paragraph 1(e) of the Trial Examiner's Recommended Order and the end of the fourth indented -paragraph of the Appendix, and add the following: [except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. [2. Delete the period at the end of the first indented paragraph of the Appendix, and add the following : [by discharging, laying off, refusing to reinstate, or in any other manner discriminating against employees in regard to hire or ten- ure of employment, or any term or condition of employment. [3. Delete the period at the end of the third indented paragraph of the Appendix, and add the following : [or give the impression that such surveillance is being engaged in. [4. Insert the following as the second indented paragraph of the -Appendix : [WE WILL NOT interrogate you as to your union activities in a manner violative of Section 8(a) (1) of the Act.] 2 Accord, Square Bending & Ruling Go , Inc., 146 NLRB 206, 222; Bonnie Lass Knitting _M,tls, Inc, 126 NLRB 1396, 1398. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon an original and an amended charge, filed respectively on December 2 and 27, 1965, by the above-named labor organization , the General Counsel of the National Labor Relations Board on January 14, 1966 , issued his complaint and notice of hearing in the above-entitled matter . Thereafter the above-named Respondent employer filed an answer to the complaint . The complaint alleges and the answer denies that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . Pursuant to notice, a hearing was held in New Bedford, Massachusetts, on April 13 and 14 , 1966, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs 1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been received from General Counsel I and the Charging Party. On May 19, 1966, a letter was received from counsel for the Respondent stating that no brief would be filed. Said letter is hereby made a part of the record. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the conclusion of the hearing, is made by the following find- ings, conclusions, and recommendations. Upon the record thus made, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Rodney Metals, Inc., is a New York corporation, with principal office and place of business in New Bedford, Massachusetts, where it is engaged in the fabrication, sale, and distribution of fabricated metal and related products. During the year preceding issuance of the complaint, it purchased, transferred, and delivered to its plant steel, aluminum, and other materials valued at more than $50,000, directly from States of the United States other than the Commonwealth of Massachusetts. During the same period it sold and shipped directly to other States products valued at more than $50,000. The complaint alleges, the answer admits, and it is here found that the Respond- ent is engaged in commerce within the meaning of the Act. IT. THE LABOR ORGANIZATION INVOLVED Local 899, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, is a labor organization admit- ting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues All of the events relevant to issues raised by General Counsel's complaint occurred during an organization campaign conducted by Local 899 among the Respond- ent's employees in the summer and fall of 1965. Earlier organizing efforts among these employees had been unsuccessful. I Accompanying General Counsel's brief was a "motion to correct transcript," an 18-page document containing, according to my first and only count, 507 proposed changes seeking for the most part mere alterations in spelling, or the transposition of a letter in a single word One recommended correction is to capitalize a lower-case "y." To me the difference in substantive meaning between "you" and "You" Is hardly discernible. It would be im- politic to comment upon General Counsel's attention to minor typographical details But a motion received should not be lightly and without deliberate consideration ruled upon. To do so in this case would be to compound confusion and inaccuracy. I am confident that General Counsel did not really intend to have the word "quahs," as it appears in the transcript at line 12, page 163, corrected to "quack " "Quash," of course, was the word actually used Nor would the collection of letters "rpoff," appearing at line 24, page 196, acquire much more relevancy in the context if changed to "proff," as the motion urges. "Proof" was the word used There is no doubt but that "tat hoisr of lfit," appearing at line 11, page 276, is more intelligible if altered to "that hoist or left," yet full accuracy suggests that the last woad in the phrase should be "lift" General 'Counsel would have "occurance," at line 13, page 339, changed to "occurance." Neither spelling of the word "occurrence" has been found by me in any dictionary available to me In like fashion, to change "allrlcht," at line 24, page 361, to "allright" would offend the shades of Webster or H L. Mencken, or contemporary experts like Bergen and Cornelia Evans (In the first place, the motion misquotes the transcript. The official transcript shows the spelling there to be "allriht," not "allri(ht") So far as search reveals, there is no such word as "allright." "Alright" is theoretically permissible, and is used, but because the quotation is from my own ruling, 3 prefer the more conservative use of two words: "all right." The motion also asks that "testitied," at line 11, page 429, become "testiefied." General Counsel does not say why He meant, it seems almost certain : "testified." No objections to the motion have been received from other counsel Fatigue may have preNented such riling. In any event, except as the proposed corrections are, it is hoped, made somewhat more accurate in this ruling, the motion is granted and is hereby made a part of the record RODNEY METALS , INC. 1423 Chief issues include: (1) the alleged unlawful employment terminations of employees Philip Beauregard and Antone Moura, on September 4 and Novem- ber 19, respectively; (2) alleged unlawful interrogation and threats of reprisals by responsible supervisors; and (3) alleged unlawful surveillance of union meetings and announcement of such surveillance to employees by Vice President Benjamin Gaffin.2 B. Interference, restraint, and coercion Observation of the witnesses involved and review of their recorded testimony convince me that the preponderance of credible evidence fully sustains General Counsel's allegations as to points (2) and (3) noted immediately above. As to interrogation and threats, the credible testimony of employee Lopes estab- lishes and it is found that: (1) During the latter part of August or early September his foreman, Manuel Monteiga, called him into his office and asked "I hear you are kind of strong for the Union." Lopes replied that he had his "beliefs" about it. The foreman then declared that he was "disappointed" in him, and warned him that he had "better" keep his mouth "quiet," for they had a "loud mouth on the first shift and if he continues to keep it up they will eventually let him go." In the context of his reference to the Union, Lopes reasonably understood the foreman to refer to employee Moura who was, in fact, the union leader on that shift and who was discharged a few weeks later, under circumstances described below. (As a witness, Monteiga admitted the occurrence of this incident, although his version, which I do not credit, differs from that of the employee. He said he did tell Lopes he was "disappointed" in him, and admitted that he accused him of being "just as bad as the guy from the first shift.") As to the surveillance and Gaffin's declaration of such activity to employees, the credible testimony of former employee Richard Hammond and of the Respondent's former industrial and public relations manager, Ernest Brisson,3 is the basis for the following findings: (1) While still employed at the plant Hammond went to the local union hall to attend a meeting early in October.4 He got there early, before others arrived, and left the premises, returning later. By this time, however, the meeting was in progress and doors were closed. So Hammond came down the stairs again and left. The next day Vice President Gaffin met him in the plant, and told him he had been seen at the meeting hall. Gaffin further claimed knowledge that he had been the first to arrive and the first to leave, and that he was aware he had sent in his card. He asked why. The employee replied, in effect, that he was dissatisfied because he had not received a promised promotion. (2) Also the next day, apparently, or later the same day, Gaffin came into the office where Brisson was talking with General Foreman Auffrey. The vice president had with him a list of license plate numbers which he said he had noted from cars near the union hall. Gaffin asked Brisson what kind of a car Dunham, the Local's president, drove as well as that driven by a certain International representative. 2 For reasons fully set forth in the record I sustained the Respondent's objection to the belated motion at the opening of the hearing to amend the complaint to include the allega- tion of point (3) above General Counsel appealed the ruling to the Board. After the close of the hearing a Board oider reversing the ruling was received and is hereby made a part of the record The complaint is therefore amended in accordance with General Counsel's motion appearing on page 6 of the official transcript Evidence concerning this issue was adduced by all parties during the hearing. No request to adduce additional evidence has been received from any party. 3 Brisson , subpenaed by General Counsel, was a most reluctant witness At the time of the hearing serving as the chiet administrative assistant to a U.S Congressman, Brisson had previously declined to provide information to a Board agent investigating the charges in this case, although by then he had left the Respondent's managerial staff. Despite stienuous efforts by counsel for the Respondent to besmirch Brisson's integrity and repu- tation, during cioss-examination, his testimony was unshaken and his demeanor convinc- ing. Other testimony by this indi%idual relates to the discharge of employee Moura, and will be referred to below He voluntarily quit October 27. He placed the date as the last of September. A union official, however, fixed the date of the first union meeting as October 4 1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the same meeting of officials Gaffin mentioned the names of two or three indi- viduals seen by him to go into the hall, including that of Hammond.5 I conclude and find that by the interrogation , threats of reprisals, surveillance, and announcement of such surveillance , as described above, the Respondent inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. C. The discharges 1. Philip Beauregard Employee Beauregard was summarily fired on September 4, 1965. The record makes it plain that management believed him to be an active union adherent. Counsel for the Respondent himself established this point when, on cross- examination, he obtained an affirmative answer to the question : "And it is true that when you were hired (in 1964) you told him (General Foreman Patnaude) that you had been a shop steward2" 6 And it is undisputed that the employee's then foreman, Everett Alcrim, a few weeks before the discharge had queried him about the Union and asked him for a leaflet.? And in fact Beauregard was active in the summer organizing campaign. He solicited signatures to union cards and obtained from a shop bulletin board lists of employees for transmittal to the Union. One such list, discarded at the end of the week, was thus removed a few days before September 4. Despite the denial of General Foreman Auffrey, who fired the employee, that he had actually seen him take these sheets, I am convinced, and find, that the foreman was aware that he had done so, at the time of the discharge. According to the credible testimony of employee Lopes, still working at the plant, Beauregard's foreman at the time of discharge, Monteiga, told him after the dismissal that Auffrey had taken the action because he had seen the employee take lists-"to give to the Union." (I must accord more weight to Monteiga 's declaration than might be warranted under other circumstances, since according to Auffrey the determination to discharge Beauregard "was a combined decision of Mr. Monteiga his immediate foreman and myself." Monteiga's denial that he told Lopes why Beauregard was fired is not credited.) The employee was called into Auffrey's office on September 4 and, without being questioned, was told that he was fired. He asked it the foreman was "kidding." Auffrey said he was not. Beauregard asked for some reason. Auffrey fingered a number of papers, said he had "charges" against him, and (1) declared that 4 hours' production had been lost the night before because the employee had failed to turn on an "aluminum tank" on his shift, and (2) said he had not made a "tank .check," as required, during his shift on September 2. Beauregard readily admitted that he had not made the "tank check," explaining that he had to spend some 4 hours on an unusual "general cleanup job." He further declared that he had not falsified his "day sheet" to show the check made because he did not "operate that way." The tank check accusation is so inconsequential as to cast doubt at once upon any merit the other point might have as a plausible reason for firing the employee. No claim is made that any damage was caused or production lost, or that the employ- 5 For reasons set forth fully below I can believe no part of Gaffin's testimony which is not supported by more credible evidence . Furthermore , his claim that Hammond spoke first to him and volunteered the information of going to the union hall is implausible on its face. He admitted that he did take down license plate numbers near the plant but said he did so because Auffrey had previously complained of "vandalism " and damage to cars and because "vandalism" was his responsibility. He failed to explain , however, any incident that night of "vandalism " or "damage" which might reasonably have caused him to make note of employees ' license plates. O Apparently co-counsel for the Respondent forgot his associate's tactical accomplish- ment in establishing that Patnaude had hired the applicant despite knowledge of previous union activity, Beauregard on direct having credibly testified that the foreman had told him that Rodney was not "union," that a union had previously tried but had failed to "get into the plant," and asked if he had had anything to do "with any union " For co-counsel put Patnaude on the stand and obtained a flat "No" in response to the leading question : "At the time you hired Mr. Beauregard was there any discussion whatever con- cerning unions in or out of the shop or any connection at all"" Patnaude 's denial is not .credited. 7 As a witness, Alcrim merely said he did not recall this conversation. RODNEY METALS, INC. 1425 ee's explanation of the unusual cleanup job was other than he stated. Despite Auffrey's obviously strained effort to color the "tank check situation" by answering his counsel: "I believe that I said that we had been through similar instances before (and) that this was part of the reason for the need to discharge the man at that time," Monteiga, the employee's foreman, readily admitted that he could recall no occasion before this when Beauregard had failed to make the tank checks. He further admitted that he was not aware that the form had not been marked by the employee on this one occasion until Auffrey called it to his attention much later. Auffrey admitted that he did not check such reports daily. Before appraising the "aluminum tank" issue as claimed as a reason for the discharge, it may be well to consider Beauregard's job and responsibilities. At the time of his discharge this employee was, and for the preceding 2 months bad been, the "indirect man" on one of the plant's two "paint lines," where metal coils, either of steel or aluminum, are processed. In this position he not only trained new employees, but was required to know each of six different `operations"- three on each of the two lines. Before being promoted to "indirect man" he had served in the other jobs. In his final position, which in many plants would corre- spond to that of a leadman, in addition to making the "tank checks," his responsi- bilities included those of bringing coils for processing by his shift, taking care of scrap, and filling in for other men in the crew when he gave them their breaks. In September he was working on the second shift, under Monteiga. Everett Ancrim was foreman of the third shift, where Beauregard had -worked before his promo- tion, and Patnaude had charge of the first shift. Over Monteiga was Auffrey, gen- eral foreman, who discharged the employee. When a change was to be made from steel to aluminum, in processing, it was the indirect man's job, as part of the preparation procedure, to turn a certain valve or valves to heat the so-called "aluminum tank." According to Beauregard's credible testimony, undisputed, it takes about half an hour to bring this tank to proper temperature after the valve is turned. I have found it difficult to detect clear and simple meaning in Auffrey's con- fused testimony regarding this incident which he claims was a cause of the dis- charge. Much of such testimony was elicited by his counsel only after the latter admitted having exhausted his "recollection" and by referring to a memorandum which he claimed was made after the event. The nub of his claim appears to be that Beauregard somehow and seriously neglected his duties, and thereby caused loss of production on the succeeding shift, by failing to turn the valve in time on the aluminum tank during his own, the second shift. Monteiga, the second shift foreman, corroborated the employee as to the time when the valve was turned, when he testified that the latter reported to him, at about 11:15 or 11.20 p.m. (the shift ending at 11:30) that the tank was not ready. The foreman said that he could not recall that the employee gave him any reason. But he did not say that he asked for any reason, or in any other fashion indicated that Beauregard had been remiss in his duties. This fact lends support to Beauregard's testimony to the effect that only about half an hour is required to bring the temperature up to the proper degree. Thus it would seem, from the accounts of both the employee and his fore- man, that no more than 15 or 20 minutes delay should have occurred on the succeeding shift. Yet Auffrey, in his response to leading questions and by reference to the self- serving document, would have it believed that because the aluminum tank was not ready, the third shift had to run steel, and not only lost "3 hours of production," but "several gallons of paint." I find no credible explanation in the record for the situations thus described by Auffrey. Had all this delay and loss actually occurred on the third shift, and had been caused by some dereliction on the part of the second shift "indirect man," it seems reasonable that the third shift foreman, Ancrim, would not only have been aware of it but also would have been asked to testify about it. Auffrey, general foreman of the second shift, could have known, if anything, only what was reported to him by others. Ancrim was not queried about the matter at all. Nor were any records of any sort brought forward to support the so-called "memorandum." Beauregard not only readily admitted that he did not turn on the valve in ques- tion until shortly before the end of his shift, but he also gave a clear and undis- puted explanation. It is uncontradicted, by oral or documentary evidence, that when the employee assumed his responsibilities on the second shift that day, he was informed by his 2Z7-551-67-vol. 160-91 1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposite number on the first shift that there were some 18 or 19 thousand feet of steel to be run on the order then in process , and that he noted from the "master sheet" that the next order called for about 35 thousand feet, also of steel. Enough steel already was at the machines to complete the first order, which ordinarily would have-taken 3 or 4 hours to process. He then brought to the machines some 13 thousand additional feet, as a start on the second scheduled order. After per- forming other tasks, he went to the other paint line, to take care of a complete clean up job, about a 4-hour task. When he returned to his own line, shortly before the end of his shift, he found that no more steel than the 13 thousand feet he had previously brought had been "slit" or prepared for processing on the line- despite the fact that the "master sheet" showed that 35 thousand feet were ready. It was at this point that Beauregard, realizing that aluminum would have to be the next run, turned on the proper tank. As a witness Auffrey admitted that he did not know what the master sheet called for, and that he made no check of it. Monteiga, the employee's own foreman, was not questioned about this document. Beauregard's explanation for the slight delay is not only plausible, but unrefuted. The plausible explanation was plainly as available to management, at the time of the incident, as it was at the hearing in this case, and its failure to seek such explanation supports the conviction that the Respondent seized upon it, not because it was at all serious, but simply because it might serve as a pretext for ridding the plant of a known union leader . In short, I find no merit in the Respondent 's claim of legal "cause" for the dismissal.8 On the contrary, I conclude and find that the Respondent discharged Beauregard to discourage union membership and activity,9 and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. 2. Antone Moura Antone Moura was effectively discharged by the Respondent on November 19, 1965, a sudden climax to 8 years of satisfactory service as the chief box and skid maker in the shipping department. That he was in reality discharged, and not simply laid off due to lack of work, as the Respondent claims, is shown by the fact that since November and up to a date shortly before the hearing in this case more than 20 new and wholly inexperienced employees were hired at the plant without a single offer to Moura of any one of the jobs available and thus filled. As in the case of Beauregard, credible evidence makes it plain not only that his participation was extremely active and vocal in the union organizing campaign, but also that he was known by management to be so engaged. As noted above, it was to Moura that Foreman Monteiga referred as a "loud mouth," when warning employee Lopes. As a witness for the Respondent his own foreman, Raphael, admitted asking him if he had signed a union card and merely said he did not recall asking him, as Moura had testified, what went on at a union meeting. Fur- thermore, according to the credible testimony of Brisson, formerly a management official, in mid-October Plant Manager Morse asked him how they could get rid of Moura, declaring that he had become a "problem" because of his union talk and probably was responsible for signing up half the department employees. Upon orders admittedly given by Morse to Foreman Raphael the same morning, Moura was suddenly dismissed on November 18 by this foreman. Raphael bluntly told him that they were going to "disband the box department," according to his own testimony, and that he was laid off "until further notice." Moura was given neither advance notice customary in industries at all concerned with amiable employee relations, nor any termination pay, despite his 8 years of continuous and uninterrupted service. In view of Morse's efforts to obtain from Brisson some excuse for firing so active a union adherent, not long before November 19, and in order to overcome 8 That Beauregard had received two minor written criticisms, from another foreman and long before-his promotion to a responsible position, I consider wholly irrelevant to the -Respondent's contention. Auffrey admitted that discharge after three written warnings was not automatic. O Additional support for this conclusion appears below, in the,section covering the dis- charge of aloura It is there found that Plant Manager Morse asked Brisson, the industrial relations manager, to suggest some "way," or pretext, to rid the plant of another union leader. RODNEY METALS, INC. 1427 General Counsel's strong prima facie case, it would appear logical to expect the Respondent to come forward with substantial and credible evidence to support a plausible motive for so sudden an action of termination. On the contrary, however, and although the Respondent adduced a great amount of oral testimony from several management officials, its evidence is so confused and contradictory that I can believe no part of it . Only two alternative conclusions seem warranted : ( 1) the testifying individuals were without firsthand knowledge of the subject matter, or (2) they were purposely attempting to color if not falsify the record. It is the Respondent's contention that Moura was not discharged but only "laid off," because the boxmaking operation was discontinued. It is its further contention that he was not given some other job because he was physically unable to fill any other position . The latter claim may be disposed of quickly ; it is absurd on its face. No competent evidence supports it. It rests insecurely upon the mere statement that 8 years earlier, when hired, Moura was said by the company doctor to have a "hernia." The doctor was not called as a witness, and so far as direct evidence is concerned, either another employee or another hernia may have been involved. Moura testified credibly that he had never heard of it until the doctor said so, and that it had never bothered him before or since. His daily work for 8 full years was making and hoisting both light and heavy boxes, as well as the lumber to make them, and he never lost time because of any "hernia ," or anything else. It is clear, and is found, that this claim of the Respondent is without merit. If management witnesses are to be credited even in small part , concerning their complicated efforts to make up their minds to, and then have, packing boxes and skids made outside the plant, instead of by Moura, then it is indeed a marvel and a wonder that the Respondent is able to function as a going enterprise . Such wit- nesses would have it believed that it took various top officials from the first of 1965 to November 19 to analyze possibilities , get bids, compare costs, consider, decide, and finally give an order to the only concern , or its subsidiary, which apparently either was asked to submit a bid or actually did so , in part. I find such testimony most difficult to believe . According to Morse, by Novem- ber 19 they had "placed orders" to have boxes made outside "and they were being made." On the preceding day of the hearing , however, Gaffin had testified-from records, he said-that not until "the first part of December or the latter part of November we started contracting to make boxes outside." No records were brought forward or offered in evidence . And Morse conceded that boxes continued being made at the plant for some time after Moura was terminated. In his comprehensive brief General Counsel properly and accurately cites a number of similar contradictions in the testimony of officials , especially as to self- contradictions on the part of Gaffin. On the first day of the hearing he declared that he had no part in the decision leading to discontinuance of the box operation. The next day he declared he did participate in the decision which , "he would say," took place early in November . He testified at one point that a "cost analysis" was made in April. A few minutes later he said it was made in November. In short, I credit no part of the testimony of the Respondent's witnesses regard- ing the "discontinuance" of the box operation . I am convinced , and find, that the chief, if not the only, reasons for the move was to provide the semblance of a legitimate reason for an illegal objective : ridding the plant of its most vocal union adherent. Since the evidence appears conclusive that the operation was halted , not for economic reasons, but to provide a pretext for the unlawful discharge , it will be recommended , as General Counsel urges, that the Respondent resume such opera- tions, and reinstate Moura to perform it. It is further concluded and found that by the discharge of Moura for the pur- pose of discouraging union membership and activity the Respondent interfered with , restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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. 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Local 899, International Union, United Automobile , Aerospace and Agricul- tural Implement Workers of America, UAW, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating against employees Beauregard and Moura , as described herein, to discourage membership in and activity on behalf of the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer employee Beauregard immedi- ate and full reinstatement to his former or substantially equivalent position. It will also be recommended, for reasons set forth above, that the Respondent resume its box and skid making operation, and offer employee Moura immediate and full reinstatement to his former position. Offers to both employees shall be made without prejudice to their seniority or other rights and privileges. It will further be recommended that the Respondent make said employees whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of offer of reinstate- ment, less net earnings during said period, and in a manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the serious and extended nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, I recommend that the Respondent, Rodney Metals, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on behalf of Local 899, Interna- tional Union, United Automobile, Aerospace and Agriculture Implement Workers of America, UAW, AFL-CIO, or in any other labor organization, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees as to their union activities in a manner violative of Section 8(a)(1) of the Act. (c) Threatening employees with reprisals to discourage union membership and activity. (d) Engaging in surveillance of union meeting places, or giving employees the impression that such surveillance is being engaged in. (e) In any other manner interfering with, restraining , or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer employees Beauregard and Moura immediate and full reinstatement, and make them whole for any loss of pay suffered by reason of the unlawful dis- RODNEY, METALS, INC. 1429 crimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to determine the amounts of backpay due. (c) Notify the said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its plant in New Bedford, Massachusetts, copies of the attached notice marked "Appendix." 10 Copies of such notice, to be furnished by the Regional Director for Region 1 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 conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith." 10 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 " 11 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully discourage you from being members of Local 899, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFI-CIO, or any other union. WE WILL NOT threaten you with reprisals to discourage you from joining any union. WE WILL NOT engage in surveillance of union meeting places. WE WILL NOT violate any of the rights you have under the National Labor Relations Act, to join a union of your own choice or not to engage in any union activities. WE WILL offer reinstatement to Philip Beauregard and Antone Moura, and give them backpay. RODNEY METALS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3353.