Atlantic Metal Products, Inc.

ATLANTIC METAL PRODUCTS, INC. 919 requested unit is neither such an independent administrative subdi- vision nor such a functionally and geographically distinctive group 13 as to warrant separate representation upon such a basis. Accordingly,' we shall dismiss the petition. [The Board dismissed the petition.] 19 Arkansas-Mtissoluri Power Company, 152 NLRB 1600. Atlantic Metal Products, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 22-CA-2603. November 10, 1966 DECISION AND ORDER On May 9, 1966, Trial Examiner Thomas A. Ricci issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, both the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, with supporting briefs, and the Respondent filed an answering brief to the General Counsel's exceptions. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its pow- ers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and, except as noted infra,l finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and finds merit in the exceptions filed by the Respondent. Accordingly, the Board adopts the Trial Examiner's findings only to the extent consistent with this Decision, and does not adopt his conclusions and recommendations. The complaint alleged that the Respondent had violated Section 8 (a) (3) of the Act by discharging four employees-Mair, Pugh, and Lamberti-in order to discourage union activity. The four employees had been the chief participants, along with a fifth employee (Wisse) whose employment was not terminated, in a union organizing cam- paign, which had begun in October 1965. In the several months prior 1 See footnote 3, infra. 161 NLRB No. 82. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the discharges, the employees had collected some 120 names and addresses from the 180-odd employees in the plant and had distrib- uted perhaps 50 union membership cards. On December 20, 1965, the Respondent discharged the four, together with another employee (Jones) not here alleged to be a discriminatee. The General Counsel attempted to prove that the four employees had functioned as an organizing committee, and that this activity caused them to be dis- charged by the Respondent. In defense, the Respondent presented evi- dence tending to show that it was unaware of the proselytizing efforts of the four, and that it discharged them, for, variously, inefficiency and incompetence, pursuant to a managerial plan to terminate unpro- ductive employees prior to the award of the Christmas bonus. The Trail Examiner found that the four employees had suffered unlawful discrimination by the Respondent. In our view, the evidence is legally insufficient to support such a finding, for the reasons dis- cussed below. The only item of any substance in the array of proofs designed to show Respondent's knowledge of the activities of the four was the testimony by employee Roth that Foreman Holzheimer told him in November 1965 of his understanding that Roth was "implicated in this Union." When Roth replied that Holzheimer was "crazy," the latter said, "Well, that's what I told Bob Bladis," Bladis being the works manager and vice president. While this somewhat ambiguous evidence could support a finding of company knowledge of Roth's union affiliation, it does not support similar findings as to Mair, Pugh,, and Lamberti. And since the facts of the case, and the theories advanced by both General Counsel and Respondent, argue cogently for uniform treatment of the four in reaching our, findings as to the lawfulness of their discharges, there appears to be no legitimate ana- lytical basis for isolating Roth for individual disposition. The rest of the evidentiary matters offered to prove company knowledge do not contribute significantly to that end. While there was considerable solicitation activity in the plant, it was apparently conducted in a manner calculated to avoid publicity, and the size of the plant-some 180 employees-attenuates any inference of knowledge which might otherwise' be drawn from such activity.2 The testimony by Hartman, a minor supervisor, that he had heard of "union organizing activi- ties" through the "grapevine" is unspecific and remote, as is the fact that the plant superintendent received a union membership card through the mails sometime in November. The only other evidence generally adverse to the Respondent on the question of company knowledge of union activity seems favorable to 2 Consequently , we disagree with the inference of the Trial Examiner that the organiza- tional activities of the four employees "necessarily brought them to the attention of the high company officers as the particular leaders of the whole movement " ATLANTIC METAL PRODUCTS, INC. 921 Respondent on the issue of the motive for the discharge. Employee Wisse testified that one Graziano, alleged by General Counsel to be a foreman, approached Wisse in November, told him of having heard that Wisse was active for the Union, and tried to dissuade Wisse from his union adherence. Wisse had, in fact, been soliciting names and addresses and distributing cards for the Union ; he was not, however, discharged along with the four employees in issue here. The Trial Examiner disregarded all of Wisse's testimony for the reasons given in footnote 1 of his Decision, but we find that he was in error in doing so.3 Wisse's testimony is direct evidence that one of Respondent's supervisors knew that Wisse was active for the Union. Thus, Wisse's continued employment tends to indicate that the discharges were not effected for the purpose of destroying the union movement in the plant. In sum then, our examination of the record in this case per- suades us that the General Counsel did not offer substantial evidence that Respondent had knowledge of the protected activities of the dis- charged employees.4 The record before us is nearly devoid of expressions of animosity against the Union by Respondent's officials and supervisors. There are only Foreman Graziano's discussion of the "pros and cons" of unionism with Wisse, from which Wisse drew the impression that Graziano "didn't particularly care" for the Union; Foreman Holz- heimer's statement to Roth that he understood that Roth was "impli- cated" in the Union, and that this involvement had been the subject of discussion with the vice president; and, more remotely, employee Pochopin's testimony that Foreman Hartman had said, after the dis- charges, "four guys got fired because they were b s-ing around. but there's talk going around the plant they were fired because of union piobleli-is." These incidents are the cniy record evidence of open hostility to the Union on Respondent's part, in spite of the acknowl- edged fact that the Respondent's officials became aware of the Union's interest in the plant at least by November. 3 After testifying on behalf of the General Counsel, Wlsse was later called by Respond- ent to offer support for Respondent's assertion that employee Lamberti had been an unruly worker . Wisse refused to testify further, stating that he had been threatened by Lamberti Respondent sought permission to question Wisse about the purported intimidation, but the Trial Examiner refused to allow , any such examination Respondent then moved to strike the earlier testimony given by Lamberti, on the theory that, having obstructed Wisse's testimony , Lamberti could not be credited. In his Decision , the Trial Examiner treats the motion as if it had been aimed at Wisse's testimony , and states that he is "ignoring" Wisse's testimony. Respondent takes vigorous exception here to this misinter- pretation, and seeks consideration of Wisse's testimony, which it believes favorable to Respondent's case We agree that Wisse's testimony was erroneously " ignored" and should be considered, and have done so in reaching our Decision We see no need to determine the propriety of the Trial Examiner 's refusal to allow questions about the Wisse-Lamberti encounter , in view of our conclusion that the complaint should be dismissed i The Trial Examiner also relied on the "unconvincing character of the asserted grounds of discharge for cause" in finding that Respondent had knowledge of the protected activities of the discharged employees . In light of our differing appraisal of the asserted grounds of discharge , discussed infra, such reliance is inappropriate in this case. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner appears to arrive at his finding that the four discharges were violative of the Act primarily because he finds "unconvincing" the reasons proffered by Respondent as the motivat- ing factors behind the discharges. While such an inference of unlaw- ful intent may be drawn in proper cases, we do not think that the rea- sons advanced by the Respondent for having discharged the four in this case are so unpersuasive as to, themselves, add significant record support for the Trial Examiner's finding that the discharges were discriminatorily motivated. Our own review of the record leads us to believe that the Respond- ent's reasons for discharging the four employees were more convinc- ingly presented than the Trial Examiner's Decision would indicate and were, at any rate, not nearly so lacking in plausibility as to war- rant the inference which General Counsel would have us draw. Since our disagreement with the Trial Examiner on this facet of this case is largely a matter of emphasis 5 and differing inferences from the facts, we find it unnecessary to restate the evidence detailed in the Trial Examiner's Decision, but we do consider it appropriate to state the points at which we find that the Trial Examiner's recital of evi- dence does not, in our view, fully reflect the record evidence. 1. Respondent's explanation of the discharges involved here was that the discharges were made on December 20 pursuant to a decision to weed out "deadwood" prior to the award of the Christmas bonus, which was to be distributed on a new "automatic basis. The Trial Examiner points out that the four employees could, consistently with past practice, simply be passed over for bonuses. The Trial Exam- iner's comment appears to miss the point Respondent makes, for under its new system Respondent was not going to exercise discretion as to whether each employee warranted a bonus but rather would award each employee a bonus pursuant to a formula. Thus, Respondent, con- sistent with its new plan, could not have passed the employees over for bonuses. 2. In evaluating the evidence in support of Respondent's position that employee Lamberti talked to fellow employees to the point of 5 As we have noted , we fully agree with the Trial Examiner that a finding of discrimina- tory motivation for a discharge may find substantial support in an employer's asserted reason for the discharge when that reason is pretextual in nature . To adopt a recent state- ment of this principle by the Court of Appeals for the Ninth Circuit in Shattuck Dean Mining Corporation v. N.L.R .B., 360 F.2d 1018 , 1020, enfg . 151 NLRB 1328: If [the Trial Examiner ] finds that the stated motive for a discharge is false, he cer- tainly can infer that there is another motive . More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case , the surrounding facts tend to reinforce that inference. The Trial Examiner's Decision at several points, however , appears to treat the issue of whether Respondent has carried the burden of its "affirmative defense " so as to support a finding that the discharges were for cause . There is of course no such issue in this case, for the question was at all times whether the record evidence preponderates in support of the allegation that the discharges were discriminatorily motivated. ATLANTIC METAL PRODUCTS, INC. 923 interfering with production, the Trial Examiner fails to mention tes- timony of employee Bij as and Superintendent Hauer to this effect. 3. Foreman Meyers did not admit, contrary to the Trial Examiner's statement, that he never warned Lamberti that he would be dis- charged; in fact, he testified that he did so warn Lamberti. Nor does the record support the statement that Meyers recommended Lam- berti's discharge on December 20 "out of, a clear sky," as Hauer on December 17 requested department heads to submit such recommenda- tions, and it seems a reasonable inference that Meyers' recommenda- tion was in response to this request. 4. The Trial Examiner "particularly" relies on foreman "Zimmer- man's statement that he had not for so long a time complained of Mair . . ." in rejecting Respondent's evidence tending to show that Mair was discharged for "incompetency." We view this reliance as misplaced in light of Zimmerman's testimony that he complained to Hauer about Mair "a couple of weeks or so" before Mair's discharge. 5. The Trial Examiner characterizes Mair's inspection work as follows : Slow he may have been, but as to quality he was perhaps too good, even to the extent of having to be told not to look too closely. This approach, in our opinion, tends to constitute an evaluation of Mair's competency by standards other than those of Respondent. It is totally irrelevant whether we or the Trial Examiner approve of a perfectionism on Mair's part that prevented him from inspecting production in the manner directed by Respondent. 6. The Trial Examiner summarizes Foreman Holzheimer's testi- mony as to Pugh's performance as being that "Pugh was less qualified than others," but that such views "as to relative work serve little to explain the discharge, without -warning, from the foreman who also said `all men make mistakes."' Holzheimer's statement as to "mis- takes" was : All men make mistakes, but not as costly as [Pugh's], and I warned [Pugh] about those mistakes. 7. The Trial Examiner refers to Foreman Bijas' testimony that Roth's work had been rejected "two or five times." Bijas testified that almost all of Roth's work was rejected "two to five times" before it was acceptable. For the reasons accounted above, then, we conclude that the Gen- eral Counsel has failed to prove that the discharges of Mair, Pugh, Roth, and Lamberti were motivated by antiunion considerations. We shall therefore order the Section 8(a) (3) allegations dismissed. The complaint also alleged that Respondent's foremen, on two occasions, 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uttered threatening statements in violation of Section 8(a) (1). The Trial Examiner failed to make findings as to these counts of the com- plaint, and, in light of our disposition of the rest of this case, we see no need to make findings on them. [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH, dissenting : On December 20, 1965, in the third month of an extensive union organizing effort at Respondent's plant, Respondent decided, now asserts, to rid itself of the "deadwood" in its plant before Christmas bonus time, and therefore selected for discharge five employees. Of the 5 union organizers among Respondent's work force of some 180 employees, 4 were included in the group of 5 employees selected for discharge. These four employees had worked for Respondent for peri- ods ranging from 9 months to 5 years; three of them had received discretionary wage increases not long before their discharges. The fifth employee selected for discharge had been working for Respond- ent for 2 weeks. The mathematical probability that Respondent, upon the basis of pure chance, would hit upon 4 of the 5 union organizers in its employ when selecting 5 of its 180 employees to discharge as "deadwood" is one out of 1,701,500.1 Contrary to my colleagues, I would include from this fact along with other circumstances in this record that the selection of the 4 union organizers was related to their protected activities. It is true that there is no direct evidence to establish that Respond- ent possessed knowledge of the union activities of all four employees alleged to be the object of discrimination. This is not a necessarily determinative factor, however. The principle that knowledge of union activities, no less than discriminatory motivation, may be, and often of necessity must be, based upon reasonable inference drawn from cir- cumstantial evidence, is one firmly rooted in Board and judicial prece- dent.7 Here the Trial Examiner found that a foreman had, in Novem- ber 1965, questioned one of the four, employee Roth, about his being "implicated" in the Union, and had revealed that Roth's suspected involvement had been the subject of discussion with the vice president of the firm. In the context of this case, such a finding satisfies me that Respondent was not only aware of, but, of equal importance, was also acutely concerned about, the union activities of at .least one of its employees. I doubt that such a keen interest in the matter would have flagged short of attempting to ascertain the identity of the rest 6 Uspensky, Introduction to Mathematical Probability (McGraw-11111, 1937), chapter 1. 7 See, e g, v L B B. v. Link-Belt Company, 311 U S. 584, 602; F. W Woolwot th Com- pany v. N.L B B , 121 F 2d 658, 660 (C A. 2) , Wiese Plow Welding Co., Inc, 123 NLRB 616, 618, and cases cited therein. ATLANTIC METAL PRODUCTS, INC. 925 of the employees so engaged. The widespread in-plant organizational activities conducted by the discharged group indicates that such an attempt would be fruitful. I agree that certain of the judgmental testimony offered by Respondenit's witnesses to support its contention that the employees were fired for reasons of incompetency and inefficiency is, in isolation, not implausible. I cannot, however, divorce such testimony from other telling facts in the record which, by their irreconcilability with Respondent's stated position, strongly suggest that Respondent dis- charged the employees for a reason it now wishes to conceal. I can- not believe that Respondent would rationally have awarded wage raises to employees during the very period when, if Respondent's account is to be believed, their work was being severely criticized, or their discharge urged, by their foremen. And, while Respondent con- tends that it had not earlier terminated these erring employees (an inspector, two punch-press operators, and a crate maker) because the labor shortage in the area had made their replacement impossible, the same labor market had permitted the discharge of 30 or 40 other employees, and the hiring of more than 100 new employees, during the year preceding December 20, 1965. It seems odd that suddenly, on that date, Respondent should no longer have felt constrained to retain these "undesirable" employees by the labor shortage which, it says, had previously influenced its judgment. And it is interesting to note that Lamberti, the cratemaker, whose foreman supposedly had been requesting his discharge for months, only to be told that there was no way to replace him, was immediately replaced by an employee who had already been in Respondent's employ for 3 or 4 weeks. I find sufficient evidence in this case to support inferences of both knowledge and discriminatory motivation, in the foreman's statement to Roth about his being "implicated" in the Union and the disclosure that this had merited discussion with Respondent's vice president; in the dubious validity of the reasons proffered by Respondent for the discharges in view of the considerations noted above and cthers set out in the Trial Examiner's Decision; and in the statistically startling overlap between the group of employees purged as "deadwood" and the group of employees engaged in organizing their fellows. I would affirm the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above-entitled proceeding was held on March 15 through 18, 1966, before Trial Examiner Thomas A. Ricci at Newark, New Jersey, on com- plaint of the General Counsel against Atlantic Metal Products, Inc., herein called the Respondent or the Company. The issue litigated is whether the Respondent vio- lated Section 8(a)(3) and ( 1) of the Act in the discharge of four employees on December 20, 1965 . The Respondent and the General Counsel filed briefs after the close of the bearing. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Atlantic Metal Products, Inc., a New Jersey corporation, maintains its principal office and plant in Springfield, New Jersey, where it is engaged in the manufacture, sale, and distribution of custom-built sheet metal products. During the 12-month period immediately preceding issuance of the complaint, a representative period, the Respondent manufactured, sold, and distributed from its plant products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped in interstate commerce directly to States other than the State of New Jersey. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. 1. THE LABOR ORGANIZATION INVOLVED International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue of the case The Respondent discharged four employees at the end of the shift on Decem- ber 20, 1965, two from the punch press department, one in inspection, and one a cratemaker in shipping. They had worked for the Company for varying periods, between 9 months and 5 years. These four were the prime actors in attempting to establish the Union as collective-bargaining agent in the plant during the 2 immedi- ately preceding months, and the complaint alleges their discharge was motivated by an intent to put a stop to the self-organizational activities. The company agents denied any illegal motivation, and indeed any knowledge of union activities by these particular men. Affirmatively the Respondent asserts they were released because of incompetence and violation of company working rules. Two of the men, Enereco Lamberti and Warren Mair, are said to have revealed their incapacity, or willful disregard of rules of conduct, from the very inception of and throughout their employment; the others, William Roth and Anthony Pugh, were concededly good workmen and well behaved until the last month or two, when their perform- ance is said to have deteriorated. The errors of judgment or workmanship, and the forms of misconduct, now advanced as cause for discharge, are of great variety. The first question of fact to be decided is whether it has been proved manage- ment knew that union activities were going on in the plant before the discharges, and that these four persons were active participants. The second is whether it can be found, considering the record in its entirety, that such activities were in fact the reason, or at least one reason among others, why the Company discharged them at that time. In response to the contentions advanced by the General Counsel that the close timing between the discharges and the employees' union activities proves a casual relationship between the two events, the Company asserts that the December 20 date was occasioned solely by a change in its Christmas bonus system. As both the organizational activities of the four employees and the Company's asserted immediately provoking cause for discharge marked all the men with a common denominator, from either point of view, the ultimate question of the legality of all four discharges emerges as a single one, the weakness or strength of the inference arising with respect to any one of them bearing a direct relationship to each of the other three. B. Union activity; company knowledge In late September or early October Pugh and Roth, with two other employees, one no longer with the Company and another identified only as Domenick, met with International Representative Paul Bonassi to discuss a program for organizing the plant. Bonassi told them the system would have to be for employees to obtain the names and home addresses of the employees and the Union would then mail campaign literature to their homes. Warren Mair had planned on accompanying Pugh and Roth to meet Bonassi but was unable to do so. The three of these, how- ever, proceeded to speak to employees throughout the plant and, using slips of paper of all kinds, wrote their names and addresses for forwarding to the Union. ATLANTIC METAL PRODUCTS, INC. 927 Lamberti heard of all this and joined with them to do likewise. During the follow- ing month, and continuing into December, by their combined efforts they succeeded in obtaining about 110 or 120 such addresses. Each said he was careful not to solicit during working hours. They spoke to the employees during the lunch hour, coffeebreaks, before and after work all over the plant; in some instances they also visited people at home. The employees have lunch at tables in their very depart- ments, draw coffee from a machine in the plant during coffeebreaks, and move from one room to the other if they wish to eat with their friends. As the addresses were received on slips of paper, the Union also mailed membership cards; these men also distributed such cards and solicited signatures to them inside the plant. Pugh obtained from 45 to 50 names and addresses, and distributed about 40 membership cards, of which 35 or so were returned to him signed. Roth forwarded about 20 names and addresses to the Union, and distributed 4 union cards among the employees. Lamberti • successfully solicited 35 addresses and also distributed some cards. And Mair obtained 12 names and addresses and 2 membership cards signed, 1 in the plant and another in an employee's home. These were the principal actors in the union campaign in the plant. The only other employees mentioned in the entire record as having taken an active interest are William Wisse, who obtained about 10 addresses and delivered them to Mair for forwarding to the Union, and Theodore Bijas, who sent a single card in.' Whether inadvertently or otherwise, the Union also sent its literature and a membership card to the home of William Hauer, the _ plant superintendent. He showed it to Robert Bladis, the vice president of, the-Company; when he saw it, sometime in November, Bladis said, according to Hauer:,"Well, I see they're trying something again." , , . . - Each of the four men who testified to the work performance of the 'four employ- ees discharged in December, as well 'as President Bladis and Plant Superintendent Hauer, who also said he alone selected the,four for discharge and made the deci- sion to act, denied categorically that they had knowledge, before the subsequent unfair labor practice charges were filed, that any one of these men engaged in union activities of any kind or were disposed favorably toward a union. They also denied there were any discussions of the Union among management personnel. Clearly the Respondent knew there was a- movement afoot to win the employees into membership in the Union, for the plant superintendent had direct knowledge. Henry Hartman, who works in the gate, department, said he knew of the union activity through the "grapevine." Hartman works during the afternoon and through 11 p.m. He is alone in charge of between 15 to 20 men then, with Department Foreman Corrigan always leaving the plant at 6 p.m. Hartman said he "takes over" at that time, assigns work to the men, is responsible when they must take time off, takes care of the timecards, writes the requisitions, and closes the plant for the night. During the fall of 1965 his hourly rate was $3.25, while the rank-and-file workmen averaged only about $2. A company witness, former Foreman Bijas, testified Hart- man used to "delegate the work," and "any problems that came up he would have to correct them." I find Hartman was a supervisor; if one supervisor learned things through the "grapevine," in all likelihood others did too. One day Ray Holzheimer, foreman of the punch press department, told Roth: "I understand you are implicated in this union." When Roth denied, the foreman said: "Well, that's what I told Bob Bladis [works manager and vice-president]." This was Roth's credited testimony, which the foreman denied. For reasons which will appear below in discussing Holzheimer's testimony on other matters-during which he spoke evasively, inconsistently, changeably and very unpersuasively-I do not credit him. In a plant of this size-with 170 total employment before Christmas of 1965- it is reasonable to infer that the very widespread and continuous activities of these 4 men in obtaining names and addresses from as many as 120 persons written on separate pieces of paper, and soliciting signatures to a great many authorization 1 Wisse testified as a witness called by the General Counsel in support of the complaint, and spoke of conversations with persons alleged to have been supervisors at the time The purpose of his testimony was to strengthen the allegation that the Company knew of and was opposed to the Union He was called later by the Respondent as its own witness, and refused to testify further As Wisse was comprehensively cross-examined on his testi. mony when first called, I denied the Respondent's motion to strike all his testimony from the record. I think, however, that in fairness to all parties, and in the interests of justice, what testimony he did give ought not be used for any purpose I have therefore ignored it completely and vliat findings are made here in no sense rest on his statements. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards in the very working areas frequented by the many supervisors , necessarily brought them to the attention of the high company officers as the particular leaders of the whole movement .2 When to this fact is added the most unconvincing char- acter of the asserted grounds of discharge for cause-including, among other revealing considerations , direct raises given three of the men shortly before the discharges now said to have been compelled by longstanding incompetence-the inference of direct knowledge becomes all the more persuasive . I find, on the total record, that when, without warning, it discharged these men on December 20, 1965, both Hauer, the plant superintendent, and President Bladis knew what they had been doing to further the self-organizational campaign. C. The affirmative defense in general Robert Bladis testified that shortly before Christmas he decided he did not wish to give any bonus to employees who were "not deserving," and that therefore on the morning of December 17 he told Plant Superintendent Hauer that "we had some deadwood in the plant and if there is anybody not deserving of a bonus, to get rid of him now." He made clear he did not decide who , indeed if anyone at all, should be discharged. He conceded candidly he had no personal knowledge of the quality of the workmen individually . Hauer said that he then spoke, during the day, to various foremen to ascertain whether there was any deadwood , and that, based on what they told him , or recommended , plus what recollection he may have had of earlier reports concerning particular employees, he decided-and he alone has authority to act-to release five men, the four named in the complaint and a man named Jones. His position is that union activities had no part in his decision and that it was entirely a matter of removing from the payroll undesirable employees. Every foreman who testified said without equivocation that he had no authority to discharge employees , but only to pass on recommendations. To prove that the employees here involved were in fact selected because of their poor performance, the Respondnt offered much testimony relating to their work while in the plant. In fact the great preponderance of the evidence , virtually all oral testimony, deals with their conduct to the minutest detail . Much of what the company supervisors said is couched in general descriptive language, statements of relative ability among employees or comparative difficulty of assignments , and con- clusions or opinion . All of this adds little of probative value or definitive informa- tion. Other testimony, although in part contradicted by the employees , does set out concrete facts and events. In appraising the merits of the defense assertion of dis- charge for cause, however, not all of this evidence , however presented, bears a true relationship to the basic question of motivation . The focal point of inquiry is what thinking must be attributed to the plant superintendent personally , for he alone made the decision, and any events of the past , particularly the very remote inci- dents, of which he was not even aware on December 20, cannot truly be said to have a bearing upon his purposes then. For example, there is disputed testimony on whether Mair made a mistake which resulted in the loss 2,000 pieces on one job. Hauer testified he only learned of this when checking Mair's record after the charges were filed. Further, well over a month before his discharge Roth returned to the parking lot one night with a friend to repair his car and drive it home . His friend was curious to see what machine Roth operated and the two entered while the night crew worked so he could see it. There is a tremendous amount of testimony, by a number of witnesses, con- cerning the incident and on the question of whether or not Roth that night violated a company rule against disclosing Respondent's engineering secrets But entirely apart from this matter, Hauer said clearly that by 4 p.m. on December 20 he had already decided to discharge Roth because of the quality of his work, and that only later, in consequence of a fortuitous remark by another foreman, did he learn of the friend entering the plant at all. The fact that the unrelated foreman never thought the incident worthy of mention, and that there is no clear, direct evidence of such a regulation , lends credence to Roth's testimony that he did speak to a foreman about it that very night and even the next day, only to he told "to forget it," that it was not of moment or "did not matter." The question here is why did Hauer decide to discharge Roth at all that day, before even hearing, if he ever did, of the incident of the friend . His real purpose here is in dispute. The rest appears more as an afterthought, and in reality detracts ftom the true issue of the case. 2 Quest-Shon Mark Brassiere Co , Inc, 185 F 2d 285 (C A 2) ATLANTIC METAL PRODUCTS, INC. 929 The evidence in totality strongly suggests a studied effort to recall and to bring to light each and every error or failing of these men over the entire period of their employment and to draw a persuasive picture of undesirable employees. There is danger that such a record may divert the reader from the real issue, which is not whether the men deserved discharge, a question never properly put to an outsider, for no employer need convince a stranger of his discharge prerogatives. Rather, the issue is whether in the plant superintendent's mind the foremen's reports about these men, to the extent that Hauer knew of them, were his true reason for acting, instead of the union animus alleged in the complaint. For this reason the evidence concerning the work and conduct of these four employees must be considered together with other intimately related facts, such as like workmanship or behavior by others, the extended periods during which, although they are said to have been unsatisfactory employees, the Company did nothing about it, the character of the testimony by supervisors, the raises in pay three of the four men were given on request during the periods under examination, and indeed only shortly before the discharges, and the reasons advanced at the hearing to explain the sudden, unannounced action against all four in the middle of a work pay week. For reasons that will appear as the discussion of all this evidence unfolds, I do not believe the Respondent has proved the affirmative assertion which it undertook to establish, that the men were in fact released because they were "deadwood" in the opinion of the plant superintendent. Enereco Lamberti Lamberti was hired on March 22, 1965, as a driller; after a few weeks he found the work difficult and asked for another assignment . He was placed in shipping, where he remained, making crates for the Company's products; he worked in team with other men. As stated formally on the record by Respondent's counsel, Lam- berti was discharged "because of his insistence on talking ... he would stop people during the course of his work . physically accost them on their way to the men's room . . . wasn't allowing them to attend to theirs [duty]." The principal witness to Lamberti's talking habit was Martin Meyers, the shipping foreman. he said he used to find Lamberti talking to other men and therefore had to speak to him about this "quite frequently," that he reported the fact to Hauer "quite often," and that this began "four or five weeks after he [Lamberti] had started." In his 9 months Lamberti, and others who worked with him, were moved from place to place to do their work. Each move brought Lamberti closer to the fore- man's desk. Meyers said he moved Lamberti in order to be able to keep an eye on him better because of his talking habit. The second location as near the men's room, and here, according to Meyers, there was greater occasion for Lamberti to chat with people passing by. By October Lamberti found himself 40 feet (15 feet according to Meyers) from the foreman's desk. Pressed for a more exact statement of the man's misconduct, Meyers then said "occasionally he would stop them-talk to them . . . he was, let's say, engaged in conversation with the men." Asked just how often he did tell Lamberti to stop talking to others, the foreman then said "it was always a topic of conversation" between the two. With respect to the last location where Lamberti worked, close to the foreman, and for the period October through December 20, Meyers stated that he talked to the man "on several occasions, two or three." Finally, Meyers also admitted he had not had reason to mention the subject to Lamberti for a week before the discharge. Lamberti recalled that on occasion the foreman had told a group of men "to get going," although not speaking to him personally, and his testimony that he had never been warned of discharge for any reason was admitted by the foreman himself. It seemed clear, at the hearing, Meyers was greatly exaggerating Lam- berti's love of talking, a characteristic quite noticeable when the employee testi- fied. Other foremen described him more mildly. Hartman said "he used to kid around a lot with the other fellows," and Corrigan recalled "he talked a lot and kibbitzed around . . he used to kid around with all of the people that came into the department." Lamberti said that only a few days before December 20 Meyers called him a "good worker," and "any time he needed people to work overtime he can never depend on nobody but me." He was used very much for overtime duties; in November he worked for three weeks from 7 am. to 11 p.m, virtually a complete double sl ift. Meyers admitted having praised him on occasion. And, most significant of all, only 4 weeks before the discharge he was given a 10-cent- per-hour raise, going from $1.85 to $1.95, at his own request, with foreman Meyers speaking to the superintendent in support of Lamberti's request. 264-18 Q-67-vo1 1 G 1-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With these as the pertinent facts, I cannot believe that in the opinion of manage- ment Lamberti was so undesirable an employee as to merit summary discharge with no advance notice. Repeatedly throughout his testimony Meyers was evasive, vague and indirect. He said that on the morning of December 20, before any talk of cleaning "deadwood" out of the plant, and out of a clear sky, he jotted a note to Hauer requesting Lamberti's discharge , and just handed it to the plant superintendent. Why he should do this, on that particular day, to a man whose name he had just recently recommended for a raise , and whose work performance, under his very eyes , had given him no concern whatever for at least a week, he made no effort to explain . I do not credit Meyers. ,Warren Mair Mair worked for 14 months as an inspector . of parts, from November 2, 1964, to December 1965; he was senior man among the three regular inspectors when discharged . From the start to July 1965 Theodore Bijas was chief inspector in charge of the department ; from then to the end of the year Charles Zimmerman was foreman over the inspectors. Mair testified, and Zimmerman admitted, that he was never warned he would be released for any reason . At the hearing com- pany counsel stated the reason for Mair's release was "incompetence of the most gross kind." Testifying after all other witnesses for the Respondent , Plant Super- intendent Hauer added an additional reason was "the time that he consumed in his work." Here the supporting evidence , of discharge for cause was given by Bijas and Zimmerman , the successive foremen , and by Hauer, who spoke of having received complaints from these two. Each of the foremen spoke equivocally of Mair's competence in general terms, that he made "too many mistakes ," "there were certain jobs that he was all right on, but there were jobs you couldn't give him everything- .. ..'He spent a lot of time on jobs," he could not read "all complicated blueprints," only those that "were only slightly complicated." More concretely the Respondent placed into evidence four written "discrepancy reports," all dated between January 24, 1965, and March 3 of that year, each showing, according to the then Foreman Bijas, errors in inspection chargeable to Mair. There is no other written evidence of mistakes by the man. Zimmerman, the later supervisor, ' testified he is impatient with making written reports of any kind , that he does not believe in such methods. The implication suggested by his testimony is that no inference adverse to the asserted defense of gross incompetence is to be - drawn from the fact that no definitive evidence of error is available for the last 9 months of Mair's employ- ment. But it is not quite true that the Company has no written records of inspec- tion error leading to rejection of products since July, when Zimmerman became foreman, for both he and Plant Superintendent Hauer indirectly conceded the contrary. Zimmerman testified that while he makes no paper record himself: "If I am called on it or I think it should be put down and reported , then I might go in and tell him about it." And Hauer said only that reports were "cut down to a minimum." As the supervisors' supporting testimony proceeded, it began to appear that Mair's fault was not in doing the wrong thing, or approving after inspection what should have been rejected , but rather in having been overly cautious not to make a mistake at all, or to examine the products with more attention than management thought necessary . Bijas said that at times Mair asked too often whether what he was doing was correct, only to be told more than once that it was. He also described one incident, as an example of Mair's incompetence, when Mair had rejected a part as incorrectly made, and then had to be overruled by the foreman because there was nothing wrong with it. According to Foreman Zimmerman, "he asked me a lot of questions . . . he would ask me some of the questions three or four times." It does appear that one or two of the old February or March dis- crepancy reports do prove Mair was at fault in certain rejections , either himself admitting the fact or the foreman properly insisting his opinion governed. More currently there is testimony of another incident also said to prove Mair's incompetence . Some time in November the foreman was on vacation and an inspector named Sutphen was given what seems to have been an equivocal position among the inspectors ; he said it was "assumed" by all he "acted" as foreman, but Mair contradicted him. In any event , it seems that Mair was inspecting final production of a job involving many pieces and doing it "100 percent," with a certain gauge Zimmerman had fashioned especially for this job . Sutphen told him he should dispense with such careful "100 percent" inspection and move the work faster; Mair disagreed and Sutphen told the superintendent , Hauer, about it. ATLANTIC METAL PRODUCTS, INC . 931 Hauer agreed with Sutphen. It is not clear that Mair was not following instruc- tions, for Zimmerman admitted at the hearing that he had told Mair "when the job was started" to use the specially made gauge "100 percent." He then added there was a "procedure" that if, after a "certain amount," no rejections are found, it is then "taken for granted that they are running smooth" and inspection becomes more superficial. The gravest error charged to Mair by the superintendent-one he said repre- sented "a tremendous amount of money"-dealt with a certain job for Xerox, when 2,000 pieces were rejected by the customer because of incorrect inspection. He did not know when this had happened, and the only other reference to the incident is by Bijas, who recalled that it happened while he was foreman, during the first half of the year. Of greater significance now is Hauer's testimony that he never learned of this error at all until long after he had discharged Mair. There is no question but that Mair did make some mistakes in his work and that as an inspector of the kind of products made in this plant he was conser- vative and therefore woiked more slowly, at times, than others may have done. To characterize this kind of evidence as proof of "gross incompetence," however, seems strained. Zimmerman, at one point in his testimony, said he recommended Mair's discharge "several times"; elsewhere he said it was a matter of his being in Hauer's office and "he would ask me how my men were doing, and I would tell him, so-and-so is doing all right, and he told me about Mair. I said, `Mair isn't doing any better."' Mair was paid 25 cents per hour more than the other two regular inspectors, and when he once asked for a raise he was refused. Zimmer- man also said that no one spoke to him about discharging the men on Decem- ber 20, that the last time he had said anything to Hauer was "a couple of weeks or so before that." Asked what had been his reaction on learning of the discharge from Mair that day, the foreman testified: "I said, `I'm as surprised as you are,' because I tell you why I was surprised. Because I didn't know when it was going to happen and I thought ... Against all this, but particularly Zimmerman's statement that he had not for so long a time complained of Mair, the plant superintendent's story that on Decem- ber 20 he set out to search for "deadwood" by canvassing the foremen, and that in consequence Mair's poor performance provoked the discharge, becomes very un- persuasive. Slow he may have been, but as to quality he was perhaps too good, even to the extent of having to be told not to look too closely. Certainly in the light of the evidence of its own witnesses, the Respondent's flat assertion that Mair was dis- charged for "gross incompetence" is an extreme exaggeration . I cannot find, affirm- atively, as the Respondent requests, that he was discharged because of his worth as an employee. Anthony Pugh Pugh was also hired in November 1964; he worked in the punch press depart- ment as a setup man and operator. He started at $2.25 per hour and received a 10-cent raise in February. In August or September he asked his foreman, Holz- heimer, for a further increase and the foreman agreed he deserved it and would see what he could do; in consequence Pugh's pay was again raised to $2.45. With the Respondent refusing to admit, as alleged in the complaint, that Holzheimer is a supervisor within the meaning of the Act, Pugh, as the first witness called, started by describing Holzheimer's duties and authority as foreman. He then said he had never been criticized for the quality of his work or for his personal conduct, or ever warned of discharge, and that close to 5 p.m. on December 20, Holzheimer told him he was "very sorry," but that "the old man said your work was not up to par" and he was therefore discharged. On the third day of the hearing the Respondent called Holzheimer as its chief witness to testify to the alleged incompetence and poor conduct of both Pugh and William Roth, the fourth employee named in the complaint. Ignoring its earlier rejection of the complaint allegation of the man's management agency position, the Company presented him as boss over the punch press department. He finished his testimony as a discredited witness. The burden of his complaint regarding Pugh was twofold; too much time going and coming from the coffee machine and reading newspapers instead of working, and mistakes in the machine resulting in grievous loss to the Company. As to the second fault, apart from generalities of incom- petence and error, Holzheimer spoke at length about a particular job in which Pugh misunderstood an instruction with the result that 1,000 pieces had to be scrapped. He explained clearly and directly that this had happened "around Novem- ber, probably October." There then followed extended questioning for details, and 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with evasions and half admissions from Holzheimer, his direct story as effectively weakened. In rebuttal, Pugh denied he had made any mistakes or that Holzheimer had ever confronted him with such a charge. In the end the Respondent recalled Holzheimer to the stand, only to ask him once again when had this 1,000 piece mistake happened. Now, completely at odds with his earlier testimony, he answered: "about a week or two before the discharge." The fact that the Company had ignored the 1,000 piece error, even assuming it ever occurred, was by this time, of course, a serious weakness in the asserted defense of discharge for cause, and the foreman's altered testimony on so vital a point, would serve to avoid the embarrass- ment. Whether he lied the first or second time is of no moment, for either way his credibility was seriously impaired. In denying he had ever produced so great a number of incorrect pieces on his machine, Pugh testified such errors were impossible because of a fixed rule that the first piece must always be inspected and approved before a job could be run, and all later products automatically were patterned after the first test piece. And the record is replete with references to first place inspections. Asked whether it is true that at the time there was such a rule in his department, Holzheimer again and again evaded a direct answer. At one point he said "If we have a new part being produced it has to be inspected-to see that the die is made properly to the blue- print." He then added he did not "think" this had been done on the job in question because it had been run once before. Again later: "The first piece has to be checked before it goes ito inspection ." At one point he said "this time it wasn't given to me." Again later he conceded it was a "practice" of the plant "if I get around there fast enough." On direct by company counsel: Q. Do you always have this first piece inspection that you discussed before? A. Yes, can't run a job unless it's inspected. Q. Is that with respect to just new work or all work? A. All work. There are jobs which are standard which does not need inspec- tion. We have standard tools that keeps repeating every week, every month, and every 2 weeks. The only time the inspector has is if there's an E. C. change in the book. Q. In those cases there is no first job inspection? A. Yes. Q. If a man has done a particular job more than once do you have a first piece inspection on that job? A. Yes. We have a procedure for the first piece inspection. If its a new die we have it stamped. From then we're on our own, so we don't have to have it inspected the second time. With such vacillating and unclear statements by the foreman himself on whether Pugh was really at fault on the one job primarily said to reveal his incompetence, and considering Holzheimer's readiness to alter his testimony when otherwise neces- sary, I cannot find that in fact Pugh was as poor a workman as the Respondent now asserts. What Holzheimer's total story amounts to is that Pugh was less quali- fied than others, perhaps below average if measured against the punch press operator group. Such expressions as to relative work serve little to explain the discharge without warning, from the foreman who also said "all men make mistakes." The other weakness in Pugh, of which there is much testimony, is the matter of drinking coffee during working hours. There is a coffee machine in the shop and employees regularly are permitted to go for a cup when they wish. Holzheimer said it has long been a rule that employees may not leave their place for coffee during the first 45 minutes after the start of work, be it in the morning or after the coffee breaks or lunch hour. He then added there is another rule prohibiting employees from bringing more than one cup at a time from the machine either for themselves or for others at work. According to Holzheimer he had to speak to Pugh "three or four times . . in November . . . as far as the coffee break is concerned," because Pugh had vio- lated those rules. He added that on occasion Pugh carried three cups of coffee at a time for people working on machines near him, and even gave some as gifts. He testified he told Plant Superintendent Hauer "more than once" in December he wanted to discharge Pugh but that Hauer would not agree. Although Pugh denied there were any limitations upon the coffee privilege, I think it probable some reasonable restraints there must have been. There is also indication, however, from Holzheimer's own testimony, that others besides Pugh went for coffee too often. ". . . every time we had a meeting I used to bring it ATLANTIC METAL PRODUCTS, INC. 933 out on the floor and tell the boys." He told the men about the coffee rules "many times." And when Holzheimer reappeared to testify after Pugh, he did not deny the employee's statement that he brought coffee from the machine for Holzheimer "many a time that he asked me while I was going to get it for him." On the total record, the foreman's assertion that Pugh's conduct changed in November is very poorly proved by probative evidence. William Roth Roth worked in the punch press department for 5 years; Holzheimer, his foreman for all this period, testified he had always been "a very good worker," that he had patted him on the back "a couple of times," but that in the fall of 1965 "his attitude seemed to have changed considerably . . . he started to do down grade . . . very poor . . . he used to make an awful lot of mistakes ." First the foreman said he had to start warning Roth "the first part of December"; with continued questioning he extended the time backward "over a period of a month, or two months it was going on." Then he added it had also happened in October. Asked for specific state- ment of what Roth had done wrong, the best Holzheimer could say was Roth "had a habit of walking around the plant and stay too long in the men's room." He also said Roth used to read the newspaper too much. As to exactly what mistakes Roth had made he could recall none at all "offhand." The foreman then added he told Plant Superintendent Hauer of this and recommended discharge orally. There is also the testimony of Bijas, the earlier inspection foreman, who said he inspected Roth's work and "it was below average," it had been rejected by him or other inspectors "two or five times." Company counsel stated on the record Roth was discharged for his "constant talking to other employees during working hours, away from his place of work." There is no denial that Roth was never warned of possible discharge. He received a 10-cent-per-hour raise in February 1965 and another like increase in August. He asked for still another raise in November, Holzheimer recommended to Plant Superintendent Hauer that it be granted, and Roth said he first saw it in his pay, 15 cents this time, 2 weeks before his discharge on December 20. At one point the foreman said the raise was granted in November, but no record was produced to contradict Roth's direct statement he received it for the first time in December. I cannot say exactly how much talking Roth did during the day in the plant, or how his habits in this respect compared with those of other punch-press operators, for the record as a whole shows quite clearly that talk generally went on and did not necessarily impede production . In view of the vague generalities of the fore- man's testimony , however, and particularly the raise given the man so shortly before the discharge , I am not persuaded by Holzheimer's testimony that Roth either neglected his work exceedingly or made "a lot of mistakes." I do not credit Holzheimer on this record ; but even assuming he spoke truthfully that his favor- able recommendation was made in November, it is impossible to ignore the direct action by the Respondent in rewarding the man with more money at the very time when Roth is now said to have deteriorated after 5 years of adequate performance. Plant Superintendent Hauer made very clear that it was solely on the grounds of the evidence set out here that on the afternoon of December 20 he decided with finality to discharge Roth . As the record makes - it impossible to believe that the man's work was in fact Hauer's reason, the question remains what really was his motive that moment . Considering the many factors that are relevant to that ques- tion, including all that is set out thus far in this report and others discussed below, I can only conclude that his sole purpose was to curb the union activities of Roth and the three other men named in the complaint. At the hearing, Hauer said that there was another reason, one which first came to his attention after his final decision had been made. In conversation with Fore- man Hilton about another group of employees , Hilton chanced to mention, accord- ing to Hauer, that the month before Roth _ had returned to the plant one evening with a friend , who was not an employee. This was the time Roth's automobile had given him trouble and he came back with help to get it started, and brought his friend inside to show the machine he worked on. Hauer, corroborated by Vice President Bladis, testified that it has always been an absolute rule that bringing any unauthorized person into the plant is "cause for immediate discharge." Roth was not told of this alleged offense when discharged ; he was given no opportunity to explain or apologize . Hauer said he did not extend this courtesy to a 5-year man because the final decision had already been made anyway on the grounds his 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was not "up to par." What all this amounts to is a suggestion by the Respond- ent that regardless of what the record may otherwise prove to have been Hauer's motive toward Roth before the conversation with Hilton, the Board should concern itself only with whether or not the man deserved dismissal at that time for what had happened one night long before . I am satisfied this is a complete afterthought, a belated argument that is unpersuasive both because the union animus was already established and because it cannot be said, on this record , that the Company really believed the incident of such importance as to warrant discharge or discipline at all. There has never been a written rule against bringing friends into the working areas, and various employees who testified said they never heard of it . With over 100 employees, and over a 3-year history at this present location, no such incident ever arose. Doors leading to the work area from the front office and from the ship- ping and delivery platform bear the legend "no admittance into plant without authorization"; the employee entrance to the plant from their parking lot says nothing. All employees are required to sign an agreement whereby "improvements or inventions" resulting from their work become the property of the Company. That document also includes the following statement : "I shall make no disclosure to or discuss with anyone outside the Company the confidential information, trade secrets and know-how relating to the products , methods, machinery and tools em- ployed by the Company in its business ." The Respondent argues that a necessary implication from this language is an absolute proscription upon employees not to bring outsiders into the plant under any circumstances at risk of immediate dis- charge. The incident occurred in the beginning of November. Roth testified that when he entered the plant that night he first asked Bijas, who used to be chief inspector, was it all right, and Bijas said he did not know; Roth then asked Hartman, the night foreman. According to Roth, Hartman answered "go ahead, it's okay, but don't tell anybody I told you it was all right." There was no one working in the department, Roth showed his friend the machine he operated , and in a mattter of minutes both left. Bijas recalled Roth asking him, and that he replied he could say nothing. Hartman testified Roth did speak to him, that there was a person not an employee accompanying him, but that he did not recall Roth asking anything. And Hilton, a regular foreman and only recently over Roth's group, also saw Roth and his friend , for it was he who is said to have spoken to the plant superintendent about the incident 2 months later. To read the waiver of invention rights and promise not to reveal company engi- neering , designs as ,also constituting a direct instruction against permitting anyone inside the plant, even under the innocuous circumstances of that evening, requires a straining of words. Certainly the foremen never understood it that way, for regardless of what they may have said to Roth that night , none of them deemed the incident worthy of comment , much less something to be reported to superiors. Hartman said he had authority to ask strangers to leave but he ignored Roth's friend ; I must believe he said it was "okay." Hilton did not testify , and Hauer's .statement that Hilton told him, after the discharge, that he had started toward the superintendent's office several times to report Roth but had always turned back because Hauer was busy, appears now as a weak attempt indeed to cure a fatal defect in the entire assertion of misconduct . In the light of the foreman's indiffer- ence, I do not think the fact Roth asked a supervisor whether there was anything improper in showing his machine , while standing idle, to a friend , proves the exist- ence of a -fixed rule dictating summary discharge . With the Respondent's agents- both Hauer and Foreman Holzheimer-saying nothing about the event to Roth at the moment he was so suddenly released , and in view of the picture of the case as a whole, it seems much more likely that this entire business of the visit by the friend, like the 1 ,000 wrong pieces charged to Pugh , was ,revived out of the past in search, after the charges were filed, for whatever might make the four employees sent home on December 20 appear in poor light. The evidence in its entirety falls far short of proving either that there was such a rule or that this incident was a reason for discharging Roth. Analysis and Conclusion The very positive assertions , so insubstantially supported by probative evidence, that these men had been undesirable employees , two from the time of their initial hire and two for at least several months , made necessary a rational explanation of why the Respondent chose the particular day of December 20 to move against them. ATLANTIC METAL PRODUCTS, INC. 935 One foreman after another testified he had urged discharge upon Plant Superin- tendent Hauer; the men received raises instead. Absent a very persuasive reason for the sudden reversal of attitude by management, the entire affirmative defense of dis- charge for cause loses virtually all conviction. Hauer said he did nothing about all the complaints he received from foremen because there was a tight labor market in 1965, and it was too difficult to replace the men. He also said the purpose of the various late raises was to stimulate these men to greater effort, what he called "an incentive" aimed at correcting their faults. But Pugh, in September, Lamberti late in November, and Roth in the very month of December, were not told of such a purpose; none was warned he would be released if he did not change his ways. In each instance the Company agreed with their requests for raises. An employer forced by circumstances to increase the wage rates in desperate measure to create a competent work force would at the very least extract a promise of improvement from the employees. The claim now that the overall need of employees made it inadvisable to dis- charge people, is no more convincing. Hauer did not hesitate to discharge, as he said he did, 30 to 40 employees during 1965. And he replaced all of them; in fact, whereas total employment was 90 to 120 before Christmas 1964, it had mounted to between 175 and 185 by December 1965. This means the Company hired approximately 110 employees during the year. These figures, offered by the Respondent's own witnesses, prove, not that these four men were retained against the Company's desire, but instead that until some other provoking cause arose, they had been perfectly acceptable workmen. Lamberti's foreman, Meyers, agreed at the hearing with the superintendent's assertion that the reason this man was not dis- missed earlier was only because of the difficulty in hiring another crate maker. But Meyer also admitted that "a month . . . or 3 weeks" before December 20, a Mike Della Donna was hired, "and we put him in as a replacement for Mr. Lamberti." A correlative explanation for having picked December 20 as the discharge date was given by Robert Bladis, the vice president. He related how the Company had grown over 20 years to the point where he and his two brothers and father, who together run the business, are no longer personally acquainted with most of the employees, and therefore unable to judge their individual worth. The Company has always given Christmas bonuses, and Bladis said that over the years, and including the 1964 holiday season, he and his family had "evaluated each man as an individ- ual," and as a matter of discretion, "would sit down and discuss it and say, well, Joe, he's doing a good job, he put a little extra effort in, and we'll give him so much, and so on." In the summer of 1965, according to Bladis, in consequence of the improved financial position and higher profits of the Company, he decided to be more gen- erous to the employees, by increasing both vacation privileges and Christmas bonus. The new vacation benefits were put into effect in July and August. He decided to set bonuses according to a formula instead of the individual evaluation system of the past, giving half a week's pay for each year of service, with a 2-week maximum, the individual's rate of pay becoming a factor in his bonus. Bladis went on to say that with this change in mind, on December 17, he told the plant superintendent -"that we had some deadwood in the plant and if there's anybody not deserving of it bonus, to get rid of him now." He made clear he told no one of the new bonus system until December 23, when the usual letters went to the employees. He did not even tell Hauer, but only told him, on Friday,the 17th, there "would be a sub- stantial package." Somewhat in contradiction the plant superintendent testified that on that Friday "He told me at this time that ,the Company had basically changed its policy as far as bonus was concerned . ... ,Revision of the bonus system-from individual evaluation to an across-the-board formula-appears as a perfectly reasonable thing to do. Why Bladis, who said he decided to do this back in the summer, should not have mentioned it to anyone before this time, not even to the superintendent on the 17th, is more difficult to understand, as is, also the fact he chose the very Friday before Christmas. This was a harsh thing to do, especially to Roth with 5 years of tenure; only the year before Bladis had given a bonus to Warren Mair, less than 2 months with the Company. Had the four men been released that evening, the end of the payroll week, there might be a superficial plausibility in the asserted decision. But Hauer did not act until the next Monday, at the end of the shift. His explanation, for what again appears as a further suspicious circumstance, was that it took him time to prepare the "papers." But the men are not paid on Friday night for the workweek ending 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that day, else that money would have been ready in any event. On Monday, the 20th, they were paid both for the work of the previous week and whatever hours they had put in Saturday, the 18th, and Monday. If, for whatever reason, Hauer wished to dismiss them with money in their, hands, it would have been simpler to do so on Friday, as the payroll week was ending. And his interwoven explanation that it took time to convass the foremen before deciding whom to discharge, if anyone at all, conflicts directly with that of Foreman Meyers, who said he had only that morning, before any inquiry by Hauer, handed him a written request for Lam- berti's discharge. Why did Hauer wait until Monday night to release Lamberti, if the men were not in some fashion tied together in his mind by another common denominator? I am convinced the scratch note written by Meyers and allegedly given Hauer on the morning of the 17th is a predated document. All of this, added to the patent weakness appearing in the evidence intended to prove that the men were long "grossly" incompetent or undesirable to the extent that Hauer knew the facts at all at that moment, detracts greatly from the company witnesses' story tieing the new bonus system to the discharges. - And finally, disparate treatment of employees-giving more to some and less, perhaps nothing, to others-on earlier Christmases had never bothered Robert Bladis before, not for 19 years. This time, if he is to be believed, he felt the necessity to discharge people if they deserved no bonus. Like any employer he had the right to do this, whether or not, in isolation, the decision might appear reason- able to the Labor Board, or to any stranger. He could, however, more consistent with his past practice, have simply passed them over, perhaps as a true warning to improve their alleged neglect of duty. In the circumstances of this case, and con- sidering all the related facts set out above, as well as other refinements of record pertinent but not sufficiently substantial to bear reporting here, I do not believe his testimony that his sole purpose that day was to send home "deadwood," or the testimony of Hauer that he selected and discharged these four men solely because Bladis told him to get rid of "undeserving" employees. The simultaneous discharge of Jones, only 2 weeks an employee, is of little meaning, for he would in no event have "deserved" a bonus under the new system. And there is also the testimony of employee Pochopin, who said that only a few hours after the four men were released Night Foreman Hartman told him: "Four guys got fired because they were bullshitting around, but there's talk going around the plant they were fired because of union problems." Hartman did not contradict this testimony, which I credit; Hartman said only that "a couple of days later" he heard the discharged were "due to union activities." On the record in its entirety I find that by discharging Warren Mair, Enereco Lamberti, Anthony Pugh, and William Roth, on December 20, 1965, the Respond- ent violated Section 8(a)(3) and (1) of the Act.3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in con- nection with the operations of the Respondent set out 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 obstructing com- merce, and the free flow of commerce. V. THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate its effect. The Respondent hav- ing illegally discharged Enereco Lamberti, Warren Mair, Anthony Pugh, and William Roth, it must be ordered to reinstate them to their former or equivalent positions. The Respondent must also be ordered to make these employees whole for any loss of earnings they may have suffered in consequence of the illegal dis- crimination against them in their employment. Backpay shall be computed in accordance with the formula prescribed by,the Board of F. W. Woolworth Com- pany, 90 NLRB 289, and the assessment of interest shall be computed in the man- ner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall there- 3 Cf Wiese Plow Welding Co, 123 NLRB 616 CONE BROTHERS CONTRACTING CO. 937 fore recommend that the Respondent be ordered to cease and desist from in any manner infringing on the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2 of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Enereco Lamberti, Warren Mair, Anthony Pugh, and William Roth the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Cone Brothers Contracting Company and Local 925, Interna- tional Union of Operating Engineers , AFL-CIO Tampa Sand & Material Company and Teamsters, Chauffeurs, Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Cone Brothers Contracting Company, Tampa Sand & Material Company, and Florida Prestressed Concrete Co., Inc. and Local 925, International Union of Operating Engineers, AFL- CIO Cone Brothers Contracting Company and John P. Siers Cone Brothers Contracting Company and/or Tampa Sand & Material Company, and/or Florida Prestressed Concrete Co., Inc. and Robert Alvarez. Cases 1?-CA-1493, 1477, 1492, 1674, 1687, and 1767. November 10, 1966 SECOND SUPPLEMENTAL DECISION AND ORDER On April 20, 1966, the National Labor Relations Board issued its Supplemental Decision and Order in this case, adopting, with modi- fications not relevant here, the Trial Examiner's Decision in backpay proceeding.' Subsequently, the General Counsel filed a motion for reconsideration of the backpay award therein to Woodrow Wilson. The General Counsel's backpay specifications, consistent with the Board's Order, had alleged that Respondent Tampa Sand's backpay liability for discriminatees Woodrow Wilson, Otho Mathis, and Wyman Davis began on May 26, 1960, the date of their unlawful dis- charge.2 The Trial Examiner, while computing the backpay of Mathis and Davis from that date, computed Wilson's backpay from June 12, 1158 NLRB 186. 2135 NLRB 108. 161 NLRB No. 85.