Steves Sash & Door Co.

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steves Sash & Door Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 23-CA-2258. May 9,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 24, 1967, Trial Examiner Josephine H. Klein issued her Decision 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 Decision. She also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the General Counsel, the Charging Party,' and the Respondent filed exceptions to the Trial Examiner's Decision with supporting briefs, and Respondent filed an answering 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. 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 proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Steves Sash & Door Company, San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i The Charging Party subsequently withdrew its exceptions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN , Trial Examiner: Upon a charge filed on December 15, 1965, and amended on January 24, 1966, a complaint was issued on May 25, 1966.1 The complaint alleged that since on or about July 1, Sieves Sash & Door Company, has: (1) violated Section 8(a)(1) on numerous occasions between December 1 and January 26; (2) violated Section 8(a)(3) by discharge of nine employees2 between December 13 and January 14; and (3) violated Section 8(a)(5) by unilaterally granting wage increases and changes in job classifications on September 12 and 13, posting new plant rules on September 13 and granting wage increases on April 1. At the close of his case, the General Counsel amended the complaint to add an allegation of unilateral wage decreases on December 13. In its answer to the complaint, Respondent admitted the jurisdictional facts; the alleged discharges;3 the representative status of International Union of Electrical, Radio and Machine Workers, AFL-CIO, the certified Union; and the Union's bargaining request, as alleged. In answer to the allegation that Respondent had violated Section 8(a)(5) by posting new plant rules on September 13, Respondent pleaded: ... Respondent alleges that the rules referred to were approved by the Union in connection with the settlement of Case No. 23-CA-2161 on March 8, 1966, with the written approval of the Board attorney and of the Regional Director, having expressly agreed that any contention that such rules were improperly issued was released and waived. Respondent denied the commission of any unfair labor practices.4 The case came on for hearing before Trial Examiner Josephine H. Klein at San Antonio, Texas, on September 8, 1966. At the outset of the hearing Respondent moved to dismiss the complaint in its entirety as barred by the settlement on March 8, 1966, approved by the Regional Director on March 14, in Case 23-CA-2161. Reserving judgment, the Trial Examiner denied the motion without prejudice to its renewal at the end of the hearing. The case then proceeded and was heard on September 8, 9, and 10, 1966. The General Counsel and Respondent were represented by counsel and the Charging Party, the Union, was represented by its International representative. All parties were given an opportunity to present evidence and to examine and cross- examine witnesses. All parties waived oral argument. A brief has been received from Respondent and a memorandum from the General Counsel. Upon the entire record, observation of the witnesses , and consideration of the Respondent's brief and the General Counsel's memorandum, the Trial Examiner makes the following: I Unless otherwise stated, all dates in July through December are in 1965; all those in January through June are in 1966 2 At the hearing, on motion of the General Counsel, the allegations as to two were dismissed, one of the dismissals being without prejudice Evidence was received as to the remaining seven 9 Respondent alleged that one of the dischargees, Elida Cantu, had been merely laid off and had thereafter been recalled This fact was established at the hearing. Simultaneously Respondent filed a motion to dismiss and for more definite statement That motion was referred to the Trial Examiner for action at the hearing The motion was not renewed at the hearing The complaint was sufficiently specific to enable Respondent to prepare its defense and the allegations of the complaint were fully litigated at the hearing The preheanng motion is accordingly denied. 164 NLRB No. 76 STEVES SASH & DOOR CO. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTIONAL FINDINGS Respondent , a Texas corporation with its principal office and place of business in San Antonio, Texas, is engaged in the business of manufacturing doors, door frames, windows, window frames, and related products. During the past year, a representative period , Respondent, in the course and conduct of its business operations, purchased , transferred , and had delivered to its San Antonio plant directly from points outside the State of Texas goods and materials valued in excess of $50,000. The complaint alleges, the Respondent admits, and the Trial Examiner finds that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. It. MOTION TO DISMISS At the outset of the hearing, Respondent moved to dismiss the complaint in its entirety as barred by the settlement on March 8 of a prior case, Case 23-CA-2161. Attached to the motion to dismiss were copies of: (1) the complaint in Case 23-CA-2161; (2) three typewritten versions of a motion to amend the complaint which had been made by the General Counsel at the hearing in that case; (3) a settlement agreement executed by the parties on March 85 and approved by the Regional Director on March 14, to which were attached copies of: (a) Respondent 's rules dated March 8, (b) a separate agreement by Respondent and the Union to address a specified joint letter to all of Respondent's employees, and (c) a notice to all employees , to be posted by Respondent pursuant to the settlement agreement ; and (4) a copy of the notice furnished by the Regional Office and posted by Respondent pursuant to the settlement agreement. In support of the motion to dismiss, Respondent contended , primarily, that the matters alleged in the present complaint had actually been the subject of the settlement agreement in Case 23-CA-2161, and, secondarily and alternatively , that Board precedent prevented litigation of any conduct antedating the prior settlement. In opposing the motion to dismiss , the General Counsel expressly disclaimed any contention that Respondent had violated the settlement agreement. The Regional Director had not set aside the settlement agreement and no such action is now sought.6 The General Counsel stated that he was not trying to relitigate any matter which had been settled in Case 23-CA-2161. He requested that the Trial ' The settlement agreement bears the date March 8, 1965 This is an obvious clerical or typographical error, the correct date being March 8, 1966 0 On November 28, 1966, the Regional Director moved, pursuant to the settlement agreement, to dismiss the complaint in Case 23-CA-2161, stating that Respondent had fully complied therewith. The motion to dismiss was granted by order of Trial Examiner Herbert Silberman on December 5, 1966 ' As is discussed below, at the conclusion of his case, the General Counsel moved to dismiss one allegation , apparently because he recognized that it had been remedied or settled in the prior proceeding " And the Union took no active part in the litigation " Respondent also sought to introduce oral testimony 469 Examiner deny Respondent's motion to dismiss in its entirety, receive all evidence relevant to the present complaint, and then , in the Decision , dismiss any allegations which the Trial Examiner might find were actually covered by the settlement in the prior proceeding.' The General Counsel offered in evidence the transcript of the hearing in the prior proceeding. Respondent thereafter also offered that transcript in evidence. The Trial Examiner , however, rejected it. On reconsideration, the Trial Examiner concluded that the exclusion of the prior transcript was in error and here reverses her ruling. Since the transcript was offered in evidence by both Respondent and the General Counsel8 and is available as a rejected exhibit , the Trial Examiner believes that it may now be received without reopening the record for further proceedings. It has been considered in the formulation of the present decision, although it is not crucial and its absence would not affect the result.9 At the outset, the Trial Examiner feels constrained to observe that decision on the motion to dismiss has been rendered difficult by procedural irregularities , lack of precision , and ambiguity at virtually all stages of the two proceedings. Further, the General Counsel's failure to discuss the motion in his posthearing memorandum leaves the Trial Examiner without any indication of his legal theory or analysis of Board precedents.10 A. Factual Summary The Trial Examiner believes that, before embarking on the detailed analysis necessary to unravel the procedural snarl here presented , it will be helpful to describe the case broadly as it is presented by the General Counsel. Although the complaint contains several specific allegations of unfair labor practices under Section 8(a)(1), (3), and (5), in the prefatory Statement of the Case in his memorandum, counsel says: This case is concerned with the discharge of seven employees between the dates of December 13, 1965, and January 14, 1966. The fact that the discharges referred to above were in violation of Section 8(a)(3) of the Act is supported by, and in part connected with, certain unilateral changes in classifications of Respondent's employees and unilateral wage increases which were given to employees to get the employees out of the bargaining unit. In broad outline, the relevant facts proved at the hearing are as follows: 1. The group leaders (Section 8(a)(5)) The Union won an election on July 1 and was certified on September 16, after Respondent's objections to the election were dismissed . Case 23-RC-2414. ii concerning the prior case When the Trial Examiner refused to receive such testimony , Respondent's counsel made an offer of proof While the Trial Examiner now concludes that oral testimony was admissible , the evidence described in Respondent's offer of proof, if admitted, would not affect the present decision in any manner Accordingly, it is deemed unnecessary to reopen the record for the receipt of any further testimony 10 So far as appears, Respondent had not given the General Counsel any advance notice of the motion to dismiss Thus, the General Counsel could not present a fully considered position, with authority, at the hearing 11 The Board denied review of the Regional Director's decision on October 18 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime around the beginning of September, Marshall Steves, Respondent's president and dominant figure, revised the table of organization for Respondent's San Antonio warehouse department. The reorganization called for five new positions as "group leaders," bringing the total number of group leaders up to seven.12 After authorizing Edward "Ado" Steves, vice president and manager, and Robert Josserand, plant superintendent, to fill the new group leader positions, preferably from within the organization, Marshall Steves left on a European trip. On or about September 12, "Ado" and Josserand named the following employees to the positions, Ojeda, Robert Carrillo, Carreon, Medina, and Resendez. Three of these employees (Robert Carrillo, Medina, and Carreon) had been receiving $1.35 per hour and were raised to $1.45. Since Ojeda and Resendez were already receiving $1.45 per hour, they did not get raises. All five were given white shirts in place of blue shirts they had been wearing previously. All five, along with John Grew and Roy Perez, who had already been group leaders for a considerable period of time , continued openly to engage in union activities without objection or comment by their superiors Marshall Steves returned from Europe around the middle of November. On or about November 29 he called all the group leaders into his office and informed them that they were "supervisors" under the Act and therefore were outside the bargaining unit , had to "stand with management," and could not engage in union activities. The group leaders asked for and were granted a few days to consider the matter They then all informed Marshall Steves that they wanted to stay with the Union in preference to remaining in their group leader positions However, shortly thereafter. Grew (who had been a group leader since 1963) and Resendez reconsidered and accepted the "supervisory" positions with the nonunion condition imposed by Respondent The remaining five" went back to their blue shirts and the wages of R. Carrillo. Medina. and Carreon were reduced to the $1 35 per hour they had been receiving before their promotions. Management thereupon tried to persuade many of the Company's employees to take the "supervisory" positions thus made vacant. Marshall Steves indicated that he would close the plant if he could not get "adequate supervision." He further stated that, if necessary, he would fill the positions from outside the Company, with concurrent discharge of an equivalent number of present employees. Steves testified that management spoke with "literally everybody that we thought had any background at all," urging them to take the "supervisory" positions. IL The revised table of organization dated September 16, which apparently was posted on Respondent 's bulletin board , shows the following group leaders in the warehouse department. Lionel Oleda, John Grew, Robert Carrillo, Roy Perez, and Raymundo Carreon working under Aluminum Foreman Joe Carrillo , who, in turn worked under Superintendent Robert Josserand, and Robert Medina and Raoul Resendez working directly under Josserand The record is somewhat unclear as to the number of newly created positions In its brief, Respondent speaks of the promotion of six employees to group leader positions in September, but the record contains specific evidence as to only five There is reference to "Roy Perez" and "Roy Pettis" as group leaders but it is not entirely clear whether these names refer to different people or to the same person It is clear, however, that John Grew and Roy Pettis ( and/or Roy Perez) had been group leaders for a considerable period of time before September 1965 Although the precise number is not crucial, the Trial Examiner For a while, sales personnel was brought in "as watchers."' 4 The record does not disclose the precise outcome of the attempt to fill the positions. However, there is evidence that at least some of the positions were filled from within the organization. 2. Alleged discriminatory discharges (Section 8(a)(3)) The complaint alleged nine discriminatory discharges between December 13 and January 14 in violation of Section 8(a)(3). In the course of the hearing , two of these allegations were dismissed (one without prejudice) on motion of the General Counsel . The remaining seven were fully litigated . These allegations are discussed below (section III , infra) 3. Alleged interference (Section 8(a)(1)) Of the six subparagraphs of the complaint alleging violation of Section 8(a)(1) as such, four refer to events involved in the group leader situation (supra, section II, A, 1). Of the two remaining , one was totally unsupported by evidence and is not referred to in the General Counsel's memorandum.'' In his memorandum, the General Counsel does not press any request for unfair labor practice findings or a remedial order based on the alleged 8(a)(1) violations : he refers to them only as showing Respondent' s "union animus" as part of his argument on the 8(a)(3) portion of the case. With this broad outline of the major issues litigated, the Trial Examiner will now turn to an analysis of the procedural background in order to decide Respondent's motion to dismiss the complaint as barred by the settlement of Case 23-CA-2161. B. Procedural History The Union won an election on July 1 and was certified on September 16. 111 On September 20, the Union filed its charge in Case 23-CA-2161. That charge alleged that on or about August 8, Respondent violated Section 8(a)(1) by invoking stricter rules and regulations against employees because of membership in and activities on behalf of the Union.17 The complaint and notice of hearing in Case 23-CA-2161, issued on December 15, alleged violations of Section 8(a)(1) on August 1 and 17 and September 4 and 28. Essentially, the allegations all involved reprimands and threats of layoffs made to employees because of their finds that five employees were given group leader positions in Respondent's San Antonio warehouse division in the middle of September 1965 Marshall Sieves testified that Respondent overall had 4 "white shirts" on September 1 and 30 on September 30, 1965. 11 Including Roy Perez , who apparently had been a group leader for a considerable period of time. 14 "Watchers" was Sieves' word , employee Ojeda used the word "spy " 15 This allegation was the only one which alleged facts after the settlement of March 8 in Case 23-CA-2161 16 The Board 's record in the representation proceeding (Case 23-RC-2414), of which the Trial Examiner takes official notice, shows that the tally was 86 votes for and 57 against the Union, with 22 challenged ballots 1' The charge in Case 23-CA-2161 was not introduced in the present iproceedi ng The Trial Examiner has taken official notice of it STEVES SASH & DOOR COMPANY union membership or activity. One of the employees, Rodolfa R. Benitez, was alleged to have been laid off for 2 days in August because of his union activities The hearing was scheduled for March 8, 1966. On December 15, the same day that the complaint was issued in Case 23-CA-2161, the Union filed a new charge, Case 23-CA-2258. The charge in Case 23-CA-2258 alleged two discriminatory discharges (Willis E. Miller and Elida Cantu) on December 13, and failure to bargain "on or about November 3rd and November 29th." The nature of the failure to bargain was not specified. An amended charge, filed on January 24, added allegations of seven additional discharges between December 14 and January 14. Case 23-CA-2161 came on for hearing before Trial Examiner Herbert Silberman on March 8. At the outset of the hearing, the General Counsel moved to amend the complaint. While the three typewritten versions of the motion to amend, which are attached to Respondent's present motion to dismiss, reflect some confusion as to the dates of the additional violations alleged, the following general summary of the proposed amendments is believed accurate.'' First, the proposed amendment added four allegations of 8(a)(1) violations, including "Company Rule 13-invalid no distribution rule." Next, it added a conclusion that conduct originally alleged as violative of Section 8(a)(1) violated Section 8(a)(3) as well. Then it added 8(a)(5) allegations. After reciting the Union's certification and bargaining request, the proposed amendment continued as follows: Since April 6, 1965, and continuing to date, Respondent did refuse and continues to refuse to bargain collectively with the Union as the exclusive collective bargaining representative of all the employees in the Unit in that Respondent unilaterally and without bargaining with or notification to the Union, made changes affecting the wages and working conditions of employees in the Unit, (a) when on or about August 17, 1965, and continuing to date, it issued written reprimands to employees in the Unit, (b) when on or about September 12, 1965 it granted wage increases to several of its employees in the Unit, (c) when on or about September 13, 1965, it made certain changes in the job classifications of its employees in the Unit, (d) when on or about September 13, 1965 it posted new plant rules covering the employees in the Unit, (e) when sometime in August 1965, it removed a time clock and a bulletin board from the work area of the employees in the Unit. Respondent objected to the General Counsel's motion to amend the complaint. A discussion ensued between Trial Examiner Silberman and Renato J. Della Rocca, Esq.," counsel for the General Counsel. At the General Counsel's request, the hearing was suspended before the Trial Examiner ruled on the motion to amend the complaint. The parties thereupon reached an informal settlement and the case was postponed indefinitely. The motion to amend the complaint, therefore, was never formally granted or denied. The terms of settlement were as follows: Respondent agreed to post for 60 days a "Notice to All i" The proposed amendment appears to be accurately shown in Resp Exh 2, which reproduces the complaint as modified by the amendment which the General Counsel proposed at the hearing on March 8 471 Employees, attached hereto and made a part hereof." The agreed notice read as follows: WE WILL NOT effect any changes in the wages, hours, or other terms or conditions of employment of the employees in the unit . without bargaining collectively with the [Union] about such proposed changes, except only to the extent that any change in wages, hours, and other terms or conditions of employment conforms with established company practice. The written reprimands heretofore given shall not be considered the "first offense" or "second offense" referred to in the company rules dated March 8, 1966. WE WILL make whole by the payment to him of Twenty Dollars ($20.00) Rodolfa R. Benitez. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization.... The settlement agreement also provided: COMPANY RULES. The company rules bearing the date March 8, 1966, have been promulgated by the company, any contention that they were improperly issued being released and waived, the Charging Party agrees that they shall be the company rules until they are changed in the course of collective bargaining between the Employer and the Charging Party, the union reserving the privilege of negotiating with reference to such rules, it being understood however, that until changes in the rules have been negotiated, such rules shall constitute the company rules. It further provided that, upon Respondent's compliance with the agreement, "the Regional Director will move for the dismissal of the complaint heretofore issued herein." The agreement concluded with a nonadmission clause, as follows: It is understood that this is a compromise of disputed claims and that nothing herein shall be construed as an admission by the Employer that it has violated the law in any way. Attached to the agreement was a copy of the company rules dated March 8, the date of the settlement Additionally, by a separate agreement, not executed by the General Counsel or approved by the Regional Director, the Union and Respondent agreed to address to all employees a joint letter reading as follows: The company and the union are mutually interested in negotiating in collective bargaining agreement. To remove any impediment to reaching a mutually satisfactory collective bargaining agreement, the company and the union on March 8, 1966, entered into a settlement agreement settling the matters involved in NLRB Case No. 23-CA-2161. The settlement agreement included the provision that it was a compromise of disputed claims and that nothing in it should be construed as an admission by the company that it had violated the law in any way. On or about April 5, the Regional Director sent to Respondent's counsel copies of the notice to be posted by Respondent "Pursuant to Settlement Agreement Approved by the Regional Director." The notice so sent was on the Board's printed form generally used in 8(a)(3) cases. The first paragraph was a formal noninterference notice."' The second paragraph was a formal statement i" Counsel for the General Counsel in the present proceeding did not appear in Case 23-CA-2161 20 The name of the Union had not been inserted in the blank space provided therein 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent would offer to reinstate employees with backpay, but there was no provision for reinstatement of anybody. Then there were typed the following paragraphs: The written reprimands heretofore given shall not be considered the "first offense" or "second offense" referred to in the company rules dated March 8, 1966. WE WILL make whole by the payment to him of Twenty Dollars ($20.00) Rodolfa R. Benitez. Finally came the formal printed statement that all the employees were free to become or remain union members, and the Company would not discriminate because of union membership or activity. The posting presumably started on or about April 5. Accordingly, the 60-day posting period expired on or about June 4, 1966.21 The complaint in the present case (Case 23-CA-2258) was filed on May 25. It alleged, as violative of Section 8(a)(1), that "since on or about July 1, 1965," Respondent has interfered with its employees' exercise of Section 7 rights by various acts on December 1, 6, 8, and 15 and January 26. Next it alleged as violative of Section 8(a)(3) the nine discharges set forth in the Union's amended charge. Then (paragraph 15) it proceeded to 8(a)(5) allegations as follows: Commencing on or about July 1, 1965, and all times thereafter Respondent did refuse and continues to refuse to bargain collectively with the Union ... in that Respondent unilaterally and without bargaining with a notification to the Union made changes affecting the wages and working conditions of employees in the unit as follows: (a) On or about September 12, 1965, Respondent granted wage increases to several of its employees in the bargaining unit. (b) On or about September 13, 1965, Respondent changed the job classifications of several of its employees in the bargaining unit. (c) On or about September 13, 1965, Respondent posted new plant rules regulating the employees in the bargaining unit. (d) On or about April 1, 1966, Respondent granted pay increases to several of its employees in the bargaining unit. Subparagraph (d) contains the only reference to any conduct after the settlement in Case 23-CA-2161. However, no evidence was presented to support that allegation. As noted above, the General Counsel expressly disclaims any intention to open or set aside the settlement or any contention that the settlement has been violated. In the absence of supporting evidence, the Trial Examiner will recommend dismissal of the allegation concerning pay increases on April 1. The present case, therefore, involves only conduct antedating the settlement. ti As previously noted, the Regional Director and General Counsel acknowledge Respondent's full compliance with the settlement and, since the hearing in the present case, the complaint in Case 23-CA-2161 has been dismissed on the Regional Director's motion 22 Respondent presents this broad argument , based on Larrance Tank Corporation, 94 NLRB 352, as "secondary" to its "primary" argument that , as a matter of fact, the issues raised by the present complaint were actually settled and disposed of in Case 23-CA-2161 In its motion to dismiss , Respondent raises the additional contention , not further pursued at the hearing or in its brief, that "The Union, under the terms of such settlement agreement , is bound and obligated to withdraw the charge on the basis of which the Complaint in the case at bar issued The union At the hearing, at the end of his case, the General Counsel moved to dismiss paragraph (c) just quoted, i.e., the allegation concerning the posting of new plant rules on September 13. Colloquy in the course of the hearing indicates that this dismissal was motivated by the General Counsel's recognition of the fact that the rules issue had in fact been covered by the settlement agreement of March 8 in Case 23-CA-2161. In place of the withdrawn allegation concerning the posting of rules on September 13, the General Counsel moved to insert an allegation in that "on or about December 13th, 1965, the Respondent changed the wage rate of employees in the bargaining unit." This motion to amend was granted over Respondent's objection. C. Discussion 1. Board precedent As its broadest" position, Respondent contends that the prior settlement, with which it has fully complied, bars litigation of any matters occurring before March 8. For this contention it relies on the line of cases represented by Larrance Tank Corp., supra, as implemented by Peyton Packing Co., Inc., 129 NLRB 1358. In numerous cases, of which Larrance Tank is the most frequently cited, the Board had consistently stated that It is the Board's established practice not to consider as evidence of unfair labor practices conduct of a Respondent antedating a settlement agreement, unless the Respondent has failed to comply with the settlement agreement or has engaged in independent unfair labor practices . [Rice-Stix of Arkansas, Inc., 79 NLRB 1533, 1534] ':' Coupled with the Larrance Tank doctrine, according to Respondent, is the Board's general policy to have all alleged violations litigated in one proceeding whenever practicable. In this connection, Respondent quotes the following statement by the Board in Peyton Packing, supra,1360: Generally speaking, sound administrative practice, as well as fairness to respondents, requires the consolidation of all pending charges into one complaint. The same considerations dictate that, wherever practicable, there be but a single hearing on all outstanding violations of the Act involving the same respondent. To act otherwise results in the unnecessary harassment of respondents. While the Board, the General Counsel, and Regional Directors appear generally to have followed the policy of Peyton Packing, it has never been elevated to a rigid rule of law. It remains within the Agency's discretion whether or in failing to withdraw the charge and in pressing such charge is deliberately and expressly violating the terms of such settlement agreement and is obviously acting in bad faith " This latter contention is clearly without merit, since it is well established that, once a complaint is filed, the General Counsel rather than the Charging Party is in control of the litigation Billings Local 1172 of United Brotherhood of Carpenters (Refinery Engineering Co ), 130 NLRB 307, 308 2i The Larrance Tank doctrine has been overruled "to the extent that [it] bars the use of pre -settlement conduct as background evidence establishing the motive or object of a Respondent in its post -settlement activities " This modification of Larrance Tank is not relevant at this point See discussion infra, section III STEVES SASH & DOOR COMPANY not to consolidate all alleged violations for litigation at one time. N.L.R B. v. Local Joint Executive Board of Hotel and Restaurant Employees (Crown Cafeteria), 301 F.2d 149, 155-156 (C.A. 9): N.L.R.B. v. United Mine Workers of America, District .31 (L. E. Cleghorn), 198 F.2d 389, 390 (C.A. 4), cert. denied 344 U.S. 884; Marts Lane v. N.L.R.B., 186 F.2d 671,675 (C.A. 10), cert. denied 342 U.S. 813; N.L.R.B. v. Tex-O-Kan Flour Mills Company, 122 F.2d 433, 437 (C.A. 5); N.L.R.B. v. Sewell Manufacturing Company, 172 F.2d 459, 460 (C.A. 5). Separate litigation of roughly concurrent alleged violations has been held proper where the violations alleged in the second case "occurred after the complaint issued in the earlier case, were not known to the General Counsel at the time of the earlier hearing, were independent acts, and were not the type of alleged violation commonly known or readily discoverable, even after an exhaustive investigation." Neuhoff Bros., Packers, Inc., 159 NLRB 1710, footnote 1. There is no reason to conclude that the applicability of the Neuhoff principle would depend on whether the first case was determined by settlement or by full adjudication. 24 Similarly, the Board has held that presettlement conduct may be made the subject of litigation where it concerns an issue specifically reserved from the settlement by mutual understanding of the parties. Tompkins Motor Lines, Inc., 142 NLRB 1, set aside on other grounds 337 F.2d 325 (C.A. 6). In Tompkins, a complaint had been filed alleging refusal to give employment to a named employee. When the case was settled, the parties understood that the employee would not be given work as a driver and that if he thereafter felt that the respondent's failure to give him work as a driver was discriminatory, a new charge would have to be filed. In sustaining the Trial Examiner's ruling that the doctrine of Larrance Tank did not preclude subsequent litigation of alleged discriminatory failure to employ the dischargee as a driver, the Board said (142 NLRB at 3): ... in so finding, we rely solely on the fact that the parties clearly exempted from the settlement and reserved for future determination the issue concerning the "grounding" of [the alleged discriminatee].. . In a footnote, the Board said: While it would have been better practice for the General Counsel to have incorporated within the one proceeding all known allegations of violations of the Act, this was not done, and we find it appropriate in the instant case to honor the understanding of the parties. As the Trial Examiner reads them, the Board decisions 2' Cf J Kahn & Co v Clark, 178 F 2d 111, 114 (C A 5) "Where the parties acting in good faith , settle a controversy, the courts will enforce the compromise without regard to what the result might , or would have been , had the parties chosen to litigate rather than settle " L' "The Trial Examiner saw no prejudice to the Respondent in the `lack of precision and certainty' which, he observed, characterized the General Counsel's handling of the case, and therefore reached the merits of the proceeding We do not agree This is not a case such as Tompkins Motor Lines, Inc , where the parties themselves, in settling part of their controversy, clearly exempted from the settlement a specific issue and reserved it for future determination the Charging Party implied-not that it was reserving any issue for future 473 establish the principle that a settlement, if complied with, will be held to bar subsequent litigation of all prior violations (Jackson Manufacturing Company, 129 NLRB 460), except to the extent that they were not known to the General Counsel or readily discoverable by investigation (Neuhoff Bros., supra) or were specifically reserved from the settlement by mutual understanding of the parties (Tompkins Motor Lines, supra; cf. United Dairy Co., 146 NLRB 187,188-189 25). The following is an analysis of the present complaint in the light of the rule just defined. 2. The present complaint a. Alleged violations of Section 8(a)(5) Paragraph 15(a) and (b) of the complaint allege that on September 12 and 13 Respondent granted wage increases to and changed the job classifications of some employees. These allegations refer to the promotion of five employees to group leader positions, a matter clearly covered by the proposed amendment to the complaint in Case 23-CA-2161. Indeed the allegations of paragraph 15(a), (b), and (c) of the present complaint are virtually identical to those in paragraph 14(b), (c), and (d) in Case 23-CA-2161 as the General Counsel had moved to amend. Although the motion to amend was never formally acted on, there can be no doubt that the first paragraph of the notice agreed to and made part of the settlement agreement on March 8 was directed toward the reclassifications and wage increases in September. This obvious inference from the pleadings and the settlement themselves is confirmed by the colloquy between Trial Examiner Silberman and counsel for the General Counsel concerning the proposed amendment to the complaint. While the notices furnished to Respondent by the Regional Director on or about April 5 and then posted by Respondent did not contain the relevant provision, there is no evidence of a novation or mutually agreed upon subsequent modification of the settlement agreement, which, on March 14, the Regional Director had approved as written. Since a complaint is not a condition precedent to a binding settlement (cf. Jackson Manufacturing Company, supra), the Regional Director could not unilaterally limit the effect of the approved settlement to what he might believe had been formally and adequately pleaded in the complaint.26 If the General Counsel were to contend that deletion from the notice of the provision against unilateral change in wages or working conditions reflected an agreement to restrict the scope of the settlement agreement, it would be incumbent upon him to determination-but that it was looking to compliance with the settlement too remedy its controversy with the Respondent In these circumstances the Board's general rule is clearly applicable-not to go behind a settlement agreement unless the Respondent has failed to comply with it or has since engaged in independent unfair labor practices " 26 As previously noted , the allegation in the present complaint of an 8(a)(5) violation by the posting of new company rules on September 13 was dismissed on motion of the General Counsel, in recognition of its having been disposed of in Case 23-CA-2161 That allegation, like those concerning the promotions, had not been included in the original complaint in the prior case but had been injected only in the proposed amendment 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish such fact by evidence.27 But he offered no evidence whatsoever relevant to the settlement other than the transcript of the March 8 hearing . That transcript certainly indicates that the parties clearly had the September promotions in mind. The settlement agreement, therefore, stands as written and clearly covers the portions of the complaint concerned with the September promotions of employees to group leader positions.28 Accordingly, the Trial Examiner here rules that the allegations of paragraph 15(a) and (b) must be dismissed as barred by the settlement in Case 23-CA-2161. At the close of his case, counsel for the General Counsel moved to amend the complaint by adding an allegation that on or about December 6 Respondent violated Section 8(a)(5) by unilaterally reducing the wages of some employees . This allegation referred to Marshall Steves' conduct in maintaining that the group leaders were supervisors and insisting that the persons filling the positions were outside the bargaining unit and forbidden to engage in union activities . Those group leaders who chose union adherence in preference to "supervisory " status were demoted , with a resultant 10-cent -per-hour wage reduction for three of them. Neither the original complaint nor the proposed amendment in Case 23-CA-2161 had alleged these "demotions ." However, the transcript of the hearing in that case indicates that the General Counsel undoubtedly knew about these events. In answer to questioning by the Trial Examiner in that proceeding, counsel for the General Counsel made clear that the vice of the September promotions was not only that they had been made unilaterally, without consultation with the Union , but also that they had involved promotions to "white shirt" positions with no change in the functions of the employees involved. The following colloquy is significant: TRIAL EXAMINER: Well, then , let me understand why the job classification changes on this occasion [in September] are contrary to past practices pursued by the Company. MR. DELLA RoCCA [for General Counsel] : Because they selected certain people , union adherents, who they knew were such , and put them into a group leader situation, in an effort to get them out of the unit.... The undisputed evidence in the present case shows that at the time the five employees were promoted to "group leader" positions in September , nothing was said about their being supervisors . John Grew and Roy Perez had been group leaders for several years, yet they had openly engaged in union activities without objection or comment by Respondent's management . All seven group leaders wore union buttons and continued their union activities 27 Respondent was represented by the same counsel in both proceedings At the present hearing, in response to an inquiry by the Trial Examiner concerning the difference between the agreed notice attached to the settlement agreement and that actually posted, Respondent's counsel said "I don't know what happened, but it was in the settlement agreement, and the Respondent posted the notice which the Board supplied We called attention to the fact and other particulars of this [The regional compliance officer] said to go ahead and post the notice, that it would comply with the settlement agreement , so we posted it for sixty days " In an offer of proof, made when the Trial Examiner ruled out parol evidence concerning the scope of the settlement agreement, Respondent 's counsel said The settlement agreement went into the Houston Regional and adherence until the end of November, when Marshall Steves, after his return from a European trip, informed them that they were "supervisors." Steves testified that neither "Ado" Steves, vice president and manager, nor Josserand, superintendent , had spoke to the group leaders about their union activities during Marshall Steves' absence. Employee Lionel Ojeda, who had become president of the Union on November 2, testified, without contradiction, that at the time of the promotion in September, "Ado" Steves assured him that it would not affect his union activities . Ojeda's testimony was: A. ... I went out here to talk to Edward Steves, the vice president of the company. In the conversation I asked him about my being promoted to group leader, what affect would it have on the union. Q. On your what? A. On my union activities , and he replied, " I don't care whether you are union or not. It's all legal. You can check it with the union," which I did. He testified, as did other employees, that it was not until 'November 29 that the group leaders were given any indication that they were not free to engage in union activities . As he put it, at that time "we didn't quite ,understand how one time we were in the union, and now we thought we were going to be out of it if we continued to wear our white shirts." Thus, when, at the hearing in Case 23-CA-2161, counsel for the General Counsel stated that the September promotions were made "in an effort to get [the employees] out of the unit ," he must have been 'aware of Marshall Steves' actions on November 29 and early in December. The "demotions" in December of the group leaders who refused to renounce union activities were part of what Respondent in its brief refers to as its "effort to promote six employees to supervisory jobs" and its "concern and effort to be sure that employees that [it] considered supervisory employees should not become involved in rank-and-file union activities." The case thus appears to fall directly within the Board's ruling in Jackson Manufacturing Company, supra, 139 NLRB at 461-462, in that "the operative facts which would determine whether the Respondent engaged in unfair labor practices" in December, as alleged in the present complaint, "were the very facts of which the Regional Director was necessarily aware, and which he necessarily had considered and evaluated" when he ,approved the settlement in Case 23-CA-2161. Cf. Corn Products Refining Company, 49 NLRB 1377. As already noted, paragraph 15(d), alleging unilateral wage increases in April, was not supported by any evidence and therefore must be dismissed. Accordingly, the Trial Examiner will recommend dismissal of the complaint to the extent that it alleges violations of Section 8(a)(5) of the Act. Office, and on March 14, 1966, was duly approved by the Regional Director Sometime later, Mr Muller , Frank Muller, the compliance officer in the Regional office, mailed me a set of notices, those which appear as Exhibit D to the settlement agreement I called him and told him that the notices were not verbatim as set forth in the settlement agreement He said that these notices were all right , and if we posted them, it would be considered compliance by the company Counsel for the General Counsel did not dispute these statements 2" See discussion infra concerning Willis E Miller and Elida Cantu STEVES SASH & DOOR COMPANY b. Alleged violations of Section 8(aX3) As noted above, the charge which originally initiated the present proceeding was filed on December 15, the same day that the complaint was issued in Case 23-CA-2161. The original charge in Case 23-CA-2258 alleged two discriminatory discharges on December 13. The amended charge, filed on January 24, added seven more alleged discharges between December 14 and January 14. The amended charge had been served on Respondent and thus was outstanding and known to all the parties on March 8. However, there is not the slightest indication that the parties had it in contemplation when they entered the settlement agreement. The discharges set forth in the charge pending in Case 23-CA-2258 were not incorporated into the amendment to the complaint proposed by the General Counsel in Case 23-CA-2161. The transcript of the March 8 hearing indicates that the parties were concerned only with the complaint as the General Counsel sought to have it amended. Analysis of the settlement agreement itself also leads to the conclusion that the parties did not intend to settle any pending charges other than those covered by the complaint in Case 23-CA-2161 as amplified by the General Counsel's proposed amendment. The agreement recites that it is "in settlement of the above matter"; i.e., Case 23-CA-2161. Further, it provides that, upon Respondent's compliance, "the Regional Director will move for dismissal of the complaint heretofore issued herein." It is reasonable to assume that, had the parties intended to compose all differences between them, they would have provided for the Union's withdrawing any pending charges . But no such provision was included in the settlement agreement . On the contrary, the joint letter which, pursuant to a separate agreement , the Union and Respondent addressed to all employees expressly referred to the agreement as "a settlement agreement settling the matters involved in NLRB Case No. 23-CA-2161." Had the parties thought they were disposing of all possible differences between them, they certainly would have used broader language in their letter to the employees. From the restrictive language used by the parties, the Trial Examiner concludes that the settlement on March 8 was not a complete resolution of all disputes among them29 and that they reserved for possible future litigation the matters embraced within the charge in Case 23-CA-2258, which was then pending. Billings Local 1172 of United Brotherhood of Carpenters (Refinery Engineering Co.), 130 NLRB 307, 308. Accordingly, Respondent's motion to dismiss the complaint will be denied so far as it is directed against paragraphs 9 and 10 , alleging discriminatory discharges. c. Alleged violations of Section 8(a)(1) Paragraph 8 of the complaint contains six subparagraphs alleging interference with employees' Section 7 rights in violation of Section 8(a)(1). In his memorandum the General Counsel refers to some of the allegations of paragraph 8 solely as establishing "union animus," in connection with his argument concerning the 2" This conclusion finds further support in the fact that Respondent's answer to the present complaint pleaded the prior settlement only in connection with one allegation of the complaint Respondent was represented by the same counsel in the two proceedings 475 alleged discriminatory discharges. He does not discuss the 8(a)(1) allegations as such and does not request specific findings of independent violations of Section 8(a)(1). All of the six alleged violations of Section 8(a)(1) occurred before the settlement in Case 23-CA-2161.30 None of them were set forth in the Union's charge or amended charge in Case 23-CA-2258. Thus, it cannot be said that the pendency of that charge establishes an intention to reserve litigation of these allegations . Nor does the record show any other special circumstances warranting a departure from the Larrance Tank rule, which precludes litigation of presettlement misconduct in the absence of any violation of the settlement agreement or subsequent independent unfair labor practices which call for setting the settlement aside. Additionally, as the following brief analysis shows, each of the 8(a)(1) violations is individually dismissable. Subparagraphs 8(a), (b), and (c) of the complaint allege misconduct by Marshall Steves, Respondent's president, between December 1 and 8. The evidence shows that the allegations relate to the group leader positions and Steves' insistence that the employees involved abandon their union activities as a condition of continuing in such positions . Clearly, therefore, these alleged violations arose out of the very facts which, as already held (section II, B, 1, supra), were the subject of the settlement in Case 23-CA-2161. Although they had been treated as violative of Section 8(a)(5) in Case 23-CA-2161, the settlement bars their present relitigatton under Section 8(a)(1). See Peyton Packing Company, supra, 129 NLRB at 1360-61. Subparagraph 8(e) alleges that on December 15 Superintendent Josserand "told employees that other employees had been given economic or other benefits to reject the Union." Employees Ojeda, Medina, and Estrada testified that shortly after Resendez finally accepted a group leader position on or about December 12, they overheard Josserand say to Foreman Joe Carrillo: "Do you know what Joe? We have been buying union people so fast, we don't know what to do with them." Josserand and Joe Carrillo denied this conversation.31 The Trial Examiner credits the testimony of Ojeda, Medina, and Estrada and finds that Josserand made the statement attributed to him. However, Josserand's statement itself would not constitute a violation of the Act; at most it would amount to some evidence of the unlawful nature or motive of Respondent's conduct in offering employees promotions to group leader positions. Paragraph 8(e) of the complaint, therefore, is dismissable because it fails to allege a violation of the Act and because it concerns matters covered by the settlement in Case 23-CA-2161. Subparagraph 8(d) alleges that on December 6 Josserand "threatened employees with discharge or other reprisals if they attended union meetings ." This allegation was supported by the testimony of employees Ojeda and Miller that Josserand had said he would "turn [Ojeda] in" if Josserand heard any more union talk at the plant, even on break or lunchtime. Although Josserand denied making this statement, the Trial Examiner credits the testimony of Ojeda and Miller and finds that the threat was made. However, Ojeda testified that the next day he had a long conference with Marshall Steves concerning various problems and grievances at the plant. When Ojeda "' Four occurred before the complaint was issued in Case 23-CA-2258 and one on the day that complaint was issued " Josserand testified that Ojeda , referring to Resendez, had said to Josserand "1 see you bought another one of my boys " 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reported on Josserand's statement, Steves said that he would talk to Josserand about it. So far as appears, there was no recurrence of Josserand's misconduct nor any subsequent interference with union activities during nonworking time. Thus, if the matter were open for litigation, the Trial Examiner would find that the incident alleged was isolated, insubstantial, and effectively neutralized by Respondent's president. The final allegation of a violation of Section 8(a)(1) is that on January 26 Respondent's manager, "Ado" Steves, "promised employees additional job opportunities or other benefits if they would reject the Union and/or stop giving assistance to the Union." In support of this allegation, employee Robert Velez testified that he was offered an opportunity to go to York, Pennsylvania, for training, on condition that he renounce union activities and adherence. In cross-examining Velez, Respondent's counsel sought to show that Velez had simply been told that the training might eventually lead to a supervisory position and that if he became a supervisor he would then be unable to engage in union activities. Velez' testimony was confused and vacillating. Although he testified that Edward Steves conditioned the opportunity of going to Pennsylvania on his leaving the Union, Velez further stated that he did not fully understand everything that was said. And he did concede that he refused the offer of further training because he was dissatisfied with the fact that he would receive only $1.25 per hour during the training period. The evidence shows that employee Camacho was then offered and accepted the training opportunity, but it does not appear whether he was required to renounce the Union as a condition. On all the evidence, the Trial Examiner would conclude that the General Counsel has failed to establish the allegation of paragraph 8(f) of the complaint by a preponderance of the evidence. D. Conclusion Respondent's motion to dismiss the complaint is denied so far as it refers to the alleged discriminatory discharges set forth in paragraph 9 or 10 of the complaint. In all other respects the motion to dismiss is granted and the complaint is dismissed to that extent. III. THE ALLEGED DISCRIMINATORY DISCHARGES The complaint alleges that Respondent "did discharge and failed and refused, and continues to fail and refuse, to reinstate [ seven32 named] employees ... because said employees joined or assisted the Union or engaged in other Union activity." No direct evidence was adduced to show that any of the discharges were motivated by antiunion feeling on Respondent's part. In his memorandum, the General Counsel constructs his argument on the following statement of the Court of Appeals for the Fifth Circuit in N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 272, 278: ... In the context of respondent's anti-union animus and its knowledge of the Union, the inference drawn by the Board of discriminatory motivation is sustained and is buttressed by the fact that the explanation of the layoffs failed to stand under scrutiny. To bring himself within the quoted holding, the General Counsel argues that: (1) Respondent's "union animus" is shown "by the Settlement Agreement and attending instruments," supplemented by bits of evidence in the record; (2) Respondent's knowledge of the union sympathies of the employees involved is established by their having worn union buttons; and (3) the reasons given by Respondent for the discharges "fail to stand up under scrutiny." The General Counsel is in error in his contention that the settlement of March 8 tends to establish union animus. The settlement agreement contained a nonadmission clause and it is well established such a settlement agreement "may not itself be used to establish anti-union animus." Metal Assemblies, Inc., 156 NLRB 194, footnote 1. Cf. United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Endicott Church Furniture), 125 NLRB 853, 854, footnote 2; Puerto Rico Rayon Mills, Inc., 117 NLRB 1355, 1364-65, footnote 7; Local 92, Iron Workers (Hughes Construction Co), 138 NLRB 428, 429, footnote 2; Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local 327, Teamsters (Greer Stop Nut Co.), 160 NLRB 1919.33 Although the prior settlement agreement itself cannot be held to establish union animus on Respondent's part, the record contains evidence establishing such animus. In Northern California District Council of Hodcarraers (Joseph's Landscaping Service), 154 NLRB 1384, footnote 1, the Board approved "the use of presettlement conduct as background evidence establishing the motive or object of a Respondent in its postsettlement activities." The Trial Examiner believes that the principle so stated is equally pertinent to the present situation and permits recourse to Respondent's entire course of presettlement conduct in evaluating the allegations of presettlement misconduct reserved from the settlement. Cf. Tompkins Motor Lines, supra, 142 NLRB at 3. Thus, while the "group leader" situation cannot be made the basis of a remedial order because of the prior settlement, the facts concerning that situation must be analyzed to the extent that they throw light on the alleged discriminatory discharges. It was in September, shortly after the Union had been certified, that new "group leader" positions were created and five persons were granted such positions in Steves Sash & Door Co., San Antonio warehouse. None of the group leaders were informed at that time that he was considered a "supervisor." John Grew had been a group leader since early in 1963. When he was informed, late in November 1965, that he was considered a "supervisor" and thus could not continue to engage in union activities, he initially renounced the position. However, he later changed his mind and resumed his white shirt. Called as a witness by Respondent, Grew testified that the change from "group leader" to "supervisor" was merely a change in names. Also called as a witness by Respondent, Frank Segovia, who accepted a white shirt in December, testified to similar effect. The testimony of the persons who had been promoted in September was unanimous that their duties and functions had not changed and that they were given no instructions as to what their new duties would be. For example, Lionel Ojeda, who became president of the Union on November 2, 1965, testified that "When u The complaint listed nine , but two allegations were (C.A. 10) " the Board , by entering into the settlement dismissed on the General Counsel 's motion at the hearing agreement , clearly manifested an administrative determination by i i But cf W B. Johnston Grain Co. v N L R B , 365 F 2d 582 it that some remedial action was necessary . " STEVES SASH & DOOR COMPANY [we] had our white shirts, we all attended union meetings." Concerning the actual promotion, Ojeda testified that his foreman, Joe Carrillo, told him about the promotion 2 or 3 weeks before it became effective. His testimony continued: Q. Did anybody explain what your duties would be? A. No, sir, no one did. After I talked to Joe, I went out here to talk to Edward Steves, the vice president of the company. In the conversation I asked him about my being promoted to group leader, what affect would it have on ... my union activities, and he replied, "I don't care whether you are union or not. It's all legal. You can check it with the union," which I did. ... He didn't give me any instructions on what new duties I had or anything else. Q. ... Now, after you received your white shirt, did you experience any difference in your work? A. No, sir, none at all. It continued to be the same thing. Robert Medina, who was informed on September 19 of his promotion, effective September 16, testified as follows: Q. . . . In this conversation, did Mr. Josserand tell you what your duties would be on accepting the white shirt? A. Yes, he did. He told me I would just-he told me what to tell the rest of the employees over there. I was not to give them any orders unless he told me to give them orders. * * * * * A. ... before he gave me this group leader, I had no right to tell anybody what to do, and when he told me that I was promoted, he told me that if he told me to do-to tell the rest of the employees something, I was to do it. * * * * * Q. Did you perform any differently after you got the white shirt? A. No, I didn't. Raymundo Carreon, who was made a "group leader" in September, was the only person in his department, so, as he put it, he had nobody to supervise. Both before and after the promotion he was given occasional help, whom he obviously directed pro tem. His white shirt and 10-cent- per-hour raise were taken away in December when he refused to accept "supervisory" status. Respondent sought to show that it intended to enlarge the patio door department and Carreon then would have employees to supervise. Even if this had been established, it would not warrant Carreon's being considered a supervisor in September when he could not possibly act as such. See American Cable Systems, Inc., 161 NLRB 332. To support its contention that the group leader positions were supervisory and that therefore Respondent acted properly in requiring that they be filled by nonunion personnel, Respondent relies primarily on the testimony of Marshall Steves. He testified that when, after his- return from Europe, he observed that the employees involved were openly engaging in rank-and-file union activities he called them into his office and explained to them that they were "supervisors." He read to them the statutory definition of the term. On direct examination he testified as follows: f4 The record shows that Ruben Perez , one of the alleged discnmmatees , and clearly not a "supervisor " or group leader, 477 A. . . . All of the supervisors that we had [a] little question on, we called them on in, and I read them the Act, and I wanted to be certain that they understood that I was giving them and had given them all of the authority under the Act, that white shirts in our company were supervisors; .... Q. Now, did all of these people who were white-who wore white shirts, that they all have authority to effectively recommend transfers and disciplinary action. A. So they did and do. Q. Do they regularly exercise discretionary authority in the operations of their functions? A. Yes, sir, they do. * * * * * Q. And what did you tell them at that time, at the time you read the statutory definition to them? A. I wanted them to understand thoroughly that I was giving them the full authority, that they were supervisors in every sense, and that I personally gave them that authority. Q. Did you tell them that you wanted them to exercise it? A. Yes, I wanted it exercised. Respondent adduced no chapter and verse to support these generalized conclusions. As has been said, "The employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions." N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235,239 (C.A. 4). The record fails to disclose a single instance in which any of the group leaders exercised any truly supervisory authority. So far as appears, none of them even conducted an employment interview. While group leaders made some reports and recommendations, it is clear that no personnel action was taken without personal investigation and knowledge on the part of top-echelon management. Indeed, Vice President Edward Steves testified that nobody could be discharged without the personal approval of President Marshall Steves. See Elliott-Williams Co., Inc., 149 NLRB 1242,1243. Grew was the only employee who testified as to the nature of any purportedly "supervisory" duties or functions performed. He described himself as "kind of like a working foreman," and proceeded: Well, when I am supervising, I will go by each man and watch to make sure that he is doing his work right, help him out, and especially when we have to bring up parts, I will have to go back and, well, show each man where to get each certain part, when he brings them over I have to check and make certain that he got the right ones, plus I go over at the end of the line where the completed window comes out and I have to check it over and make certain that they are coming out right, and that they are doing the work properly. That is the supervisor's part. Each day he gets from Joe Carrillo, the foreman, a list of the windows to be made. At the end of the day Grew makes out a production report, which he gives to Carrillo, who, in turn, gives it to Edward Steves.34 When not "supervising," Grew, like all the group leaders, works along with and in the same manner as other employees. was also required to make out daily production reports 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edward Steves made it unquestionably clear that the group leaders had no scope for independent discretion or judgment. The nub of his testimony was that he instructed group leaders Grew and Robert Carrillo "that anything that wasn't working properly in their department, to report it through the proper channels of Joe Carrillo and then to" Edward Steves.35 It is unnecessary to review the evidence in further detail. As a whole, it overwhelmingly establishes that group leaders were, at most, leadmen. As said by the Board in United States Gypsum Company, 161 NLRB 601, footnote 4: . The record shows that the employees occupying these positions are engaged essentially in rank-and- file work and it is clear that while they exercise lead authority over other employees of lesser skill and experience , their duties neither entail the exercise of independent judgment nor reflect any other attributes of supervisory status sufficient to warrant their exclusion . Accordingly, we find they are not supervisors and include them in the unit herein. Cf. N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 279 (C.A. 5); Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 798 (C.A. 5); Plastic Workers Union Local 18, Toy Workers v. N.L.R.B., 369 F.2d 226 (C.A. 7); Tele-Trip Company, Inc. v. N.L.R.B., 340 F.2d 575, 578-579 (C.A. 4). Respondent thus clearly acted unlawfully in requiring its employees to renounce the Union as a condition for promotion to what were nonsupervisory positions. Fetzer Television, Inc., 131 NLRB 821, enfd. 295 F.2d 244 (C.A. 6); Cooke & Jones, Inc., 146 NLRB 1664, 1678, affd. 339 F.2d 580 (C.A. 1).36 This evidence clearly establishes Respondent's union animus and provides the background against which the alleged discriminatory discharges are to be evaluated. Willis E. Miller: Miller was hired on September 21. He then signed a statement, as part of his employment application , acknowledging that he was to be a probationary employee for 90 days. Around December 8, Marshall Steves offered Miller one of the group leader positions which had become vacant by 1' Edward Sieves testified that he spoke to Grew and Robert Carrillo on the day when Grew received his white shirt, which he dated as in September 1965 However, Grew had been a group leader, wearing a white shirt, since February 1963 The Trial Examiner discredits Edward Sieves' testimony that "I told John Grew that lie was going to be made a supervisor in the Assembly Department, and that he was going to be in charge of all the assembling and I also told him that he was going to be in charge of hiring anyone that he might want or suggest hiring more men, if he needed more men, more personnel " Ojeda credibly testified that "We were never told that we could fire or hire or recommend " 16 It may be added that Respondent would have been guilty of violating Section 8(a)(5) by making the promotions unilaterally even if it had actually given supervisory status to the employees involved Steere Broadcasting Corporation, 158 NLRB 487, 507 Respondent changed the structure of the job classifications within the appropriate unit by substituting for White's position a supervisor not eligible for inclusion within the appropriate unit after the Union was certified, without notifying, consulting, or bargaining with the Union This constituted a unilateral change in terms or conditions of employment It is concluded and found that Respondent , by changing the composition and structure of lob classifications within the appropriate unit without consulting, notifying, or bargaining with the Union refused to bargain in violation of Section 8(a)(5) and (1) of the Act " Cf Cities Service Oil Company, 158 NLRB 1204 17 In view of this finding, it is unnecessary at this point to examine Respondent 's contention that Miller's discharge was the the renunciation of those group leaders who refused to give up their union activities . When Miller indicated a reluctance to assume "supervisory" status because he wanted to continue his union adherence, he was advised that, because of his low seniority, he would be among the first to be let go in the event of a layoff. On December 13 he was discharged. Had Miller agreed to accept the group leader position, with the unlawful condition that he not engage in union activities , manifestly he would not have been discharged. Accordingly, the Trial Examiner finds and concludes that his discharge was based on his union activities or sympathies and thus constituted an unfair labor practice under Section 8(a)(3) and (1) of the Act.37 Elida Cantu: Elida Cantu worked in the glazing department of Steves Sash and Door Co., San Antonio division. In September, Robert Carrillo was made group leader of that department. However, in December, when he was required to abandon union adherence or activities as a condition to retaining the job , he renounced it, leaving the position vacant. At that point, Respondent gave the group leader job to Tony Hernandez,38 who was then a rank-and-file employee in the cutting and machine department. When Hernandez moved into the glazing department, Respondent decided it had one person too many in that department. Accordingly, it then laid off Elida Cantu, who had the least seniority in the department.39 It thus appears that Cantu's layoff was the result of Respondent's unlawfully requiring that the group leader in the glazing department be a nonunion employee. Accordingly, although there is no evidence that Cantu was selected for layoff because of her union activities or sympathies, the Trial Examiner finds that the particular layoff resulted from unlawful antiunion discrimination and therefore was violative of Section 8(a)(3) and (1).40 Horst Gonzales: Horst Gonzales employed on November 14 as a general worker in Respondent's superior woodwork division. Respondent maintains that Gonzales was fired on January 14, principally on the complaints of his foreman, Robert Perez. Perez testified that Gonzales went to the restroom too often, came to work result of an annual, seasonal slowdown in production If called upon to pass on this issue, the Trial Examiner would find that Respondent had not established its contention in this regard Respondent presented no specific evidence to support general statements by its officials concerning seasonal slowdowns in production Although it maintained that production slowed down every year between November and February, two of the alleged discrimmatees involved in this case were hired in the middle of November and one in December Most of the employees were low paid and presumably the work was not skilled There was ample evidence that employees were transferrable between departments Further , although it was undisputed that Miller's work was entirely satisfactory , he was specifically discharged "permanently," without any suggestion that he would be recalled or even reemployed when the "seasonal " decline in production ended 18 Hernandez had previously been president of the Union He had resigned from the Union and had been succeeded as president by Lionel Oleda on November 2 19 Respondent did not undertake to establish any basis for its adopting "departmental" seniority There was evidence that employees had in the past been transferred between departments i0 Employee Medina testified as follows concerning his conversation with Marshall Sieves "I then asked him if I declined [the group leader position] , would I be discharged He told me that somebody would have to go He would not say it was me, but if he had to hire someone to be supervisors, somebody would have to be replaced." STEVES SASH & DOOR COMPANY 479 late about three times, and several occasions left work early, although Perez stated that Gonzales never left early without securing permission. Perez and Superintendent Elton Varga testified that Gonzales loafed on the job. From the testimony it appears that Gonzales' "deficiencies" were present from the beginning of his employment. The Trial Examiner rejects Respondent's contention that Gonzales was fired because of Perez' complaints. Perez had previously suggested that Gonzales apply for one of the group leader positions which were then available. In this connection, Gonzales' testimony was as follows: Q. ... Did anybody talk to you about the union after you were employed? A. Yes. Q. Would you tell us who, please? A. My foreman, Robert Perez, mentioned it to me after I had been there about a month. We got to be friendly and acquainted with each other pretty good, and he mentioned to me that there was a good chance for you to be a foreman because a lot of other guys are turning in their white shirts. They join the union, and they turn in their white shirts, and now is a good chance for you to become a foreman. I said, well, I will talk to Pat [Ewing, assistant superintendent] about it. And so I told him, well, go ahead. So he went ahead and he asked Pat about-he came back to me, and he told me again, Pat has to talk to Mr. Varga [superintendent], and that's the last I heard about it. Perez in effect corroborated Gonzales' testimony, testifying, on cross-examination, as follows: Q. And you must have thought a little bit of Horst Gonzales as a worker to suggest to him or mention to him the possibility of his being a supervisor, didn't you? A. Well, I just talked to him, I'd just tell him, I didn't know if he even wanted to apply or not. I'd just tell him that there was an opening. . . . I didn't think about nothing, just tell him, that's all. Q. (By Mr. Arter): But Mr. Perez, if you didn't think that possibly he might qualify for the job, you wouldn't have mentioned it to him, would you? A. Well, no, I mentioned it because I think that he might be interested in that job because they need some supervisors in there, so it was up to him if he wants to put an application. I just mention it. It is unlikely that Perez would have spoken to Gonzales about the group leader vacancies if he deemed Gonzales' performance unsatisfactory. Perez did not volunteer any explanation' for his subsequent apparent change of opinion. There was no suggestion that the quality of Gonzales' work had deteriorated between the early part of December and January 12, when Perez made his written recommendation that Gonzales be fired. Indeed Perez testified Gonzales had gone to the restroom four times each morning and four times each afternoon since he started working there, and Perez had warned him about three times. In its brief, Respondent states that "Gonzales came to work late at least two times a week since the date he was employed." The only fact which might explain Perez' change of heart about Gonzales is the fact that Gonzales joined the Union and disclosed his sympathies by wearing a union button. In connection with Gonzales, as with four other alleged discriminatees, Respondent emphasizes his "probation- ary" status, arguing at length that "probationary em- ployees do not share in any of the benefits that are afforded permanent employees." But probationary employees do share the rights afforded by Section 7 of the Act. It is no more legal for an employer to discharge a probationary employee for his union adherence than it is to discriminate against a permanent employee on such grounds. On the evidence concerning Gonzales, the Trial Examiner finds that Respondent discharged Gonzales not because his work was unsatisfactory, as contended, but because of his union sympathies. The discharge was timed to prevent Gonzales' securing such rights of tenure as might accrue at the end of his "probationary" period.41 The Trial Examiner therefore concludes that the discharge of Gonzales was an unfair labor practice under Section 8(a)(3) and (1) of the Act. Armando Arguello, Charles Rios, and Raymond M. Rodriguez The three employees named were employed by Respondent's superior woodwork division: Arguello from November 15 through December 20. Rios from September 21 through December 15: and Rodriguez from December 2 through 18. Respondent adduced evidence that Arguello was a slow worker and loafed on the job. Similarly, Respondent presented evidence that Rios was a slow worker and did not clean up shavings when he was requested to And there was similar evidence to the effect that Rodriguez was a slow worker and loafed on the job It is unnecessary to discuss Respondent's evidence in detail, since the General Counsel produced no evidence which indicates that the discharges were discriminatorily motivated and the reasons ascribed by Respondent were pretextual. Respondent's evidence was largely undisputed and in substantial part was actually corroborated by the employees involved. The General Counsel asks the Trial Examiner to find that the discharges were discriminatory solely on the basis of Respondent's demonstrated "anti-union animus" and its knowledge of the employees' union sympathies gained through their having worn union buttons 42 While there is reason to suspect that Respondent discharged these three employees before the end of their "probationary" periods to prevent acquiring additional "permanent" employees sympathetic to the Union, on the present record, any such conclusion would be sheer conjecture As recently said by the Board in Hoskins Ready-Mix Concrete, Inc, 161 NLRB 1492. "While one violation may raise a suspicion that others occurred, each violation must be proven by `the preponderance of the testimony.' The General Counsel has not met this burden 4' Respondent's application form contains the following statement "I understand that my employment may be terminated by me or the company at any time without advance notice one to the other, should I prove unsatisfactory for any reason or should there be a reduction of force, during my probationary or trial period which shall be ninety (90) days " In addition , persons, including Gonzales, hired for the superior woodwork division , signed another typewritten statement reading "I understand that I am being hired on a trial basis for a period of 90 days If at the end of 90 days my work has proved satisfactory I shall then become a regular employee " It is not clear what "rights" were enjoyed by "regular" employees There was (and is ) no governing collective- bargaining agreement 11 The evidence shows that probably a substantial majority of Respondent's employees wore union buttons 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of proof as to" Arguello, Rios, and Rodriguez. See Atlantic Metal Products, Inc., 161 NLRB 919. The Examiner accordingly will recommend dismissal of the portion of the complaint alleging that they were discharged in violation of Section 8(a)(3) and (1). Ruben Perez: Unlike the other alleged discriminatees, Ruben Perez was a long-time employee of Respondent. Perez had worked for Respondent for about a year commencing around 1960 or 1961. He was then laid off for 9 months, returning sometime in 1963 and then continuing to work for Respondent until the end of 1965. It was while he was on vacation at the end of 1965 that Respondent sent him a registered letter informing him of his discharge. He testified that he "was one of the first to loin" the Union; wore a union button "all the time"; was sergeant at arms of the Union and a shop steward. As a shop steward he negotiated grievances of the employees with the Company, "Especially about the rules and regulations." Respondent adduced evidence that Perez had been discharged for cause. It was established that he had advised other employees to slow down on their work.43 Additionally, Perez had refused to follow directions given him by Grew and Segovia, group leaders with whom he was assigned to work on occasion.44 Perez' testimony was confused and often evasive. It was totally inadequate to cast doubt on the substantial evidence presented by Respondent to establish the existence of cause for Perez' discharge. Nor did the General Counsel present any other evidence tending to show that the grounds for discharge ascribed by Respondent were pretextual. The Trial Examiner accordingly finds that the General Counsel has failed to establish by a preponderance of the evidence that Ruben Perez was discriminatorily discharged in violation of Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By unlawfully discharging Willis E. Miller and Horst Gonzales on December 13, 1965, and January 14, 1966, respectively, and by laying off Elida Cantu on December 13, 1965, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The General Counsel has failed to establish by a preponderance of the evidence that Respondent's discharges of Charles Rios, Raymond Rodriguez, Armando Arguello, and Ruben Perez were violative of the Act. 5. All allegations of the complaint other than these covered by paragraphs 3 and 4, above, must be dismissed as barred by the settlement agreement in Case 23-CA-2161. 6. The unfair labor practices found in paragraph 3, above, are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the, Act, the Trial Examiner will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner will recommend that Respondent be required to offer Willis E. Miller and Horst Gonzales immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. The Trial Examiner will also recommend that Respondent be required to reimburse Willis E. Miller, Horst Gonzales, and Elida Cantu for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by paying to them a sum of money equal to the amount they would normally have earned as wages from the date of their discharge or layoff to the date of Respondent's offer of reinstatement, less their earnings during that period. Backpay shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the Trial Examiner recommends that Respondent, Steves Sash & Door Company, its officers, agents, successors, and assigns, shall: 1 Cease and desist from (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to the tenure of employment or any term or condition of employment. (b) Conduct like or related to the foregoing which interferes with, restrains, and coerces employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Willis Edwin Miller and Horst Gonzales immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Notify any of the above-named employees if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (c) Make whole Willis Edwin Miller, Horst Gonzales, and Elida Cantu for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum equal to the amount he or she would have earned as wages from the date of his discharge 41 Respondent also maintained that Perez had slowed down on meaning of the Act does not mean that Perez was free to disregard his own work The record does not clearly establish this charge directions given by them as group leaders in the course of his and the Trial Examiner makes no finding with respect thereto work The Trial Examiner does not, however, accept the self- 44 The Trial Examiner's prior finding that the group leaders , serving statements in Respondent's evidence apparently designed including Grew and Segovia , were not supervisors within the to identify the group leaders as "supervisors " STEVES SASH & DOOR COMPANY 481 or her layoff to the date of Respondent's offer of reinstatement, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records. timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its plant, copies of the attached notice marked "Appendix."45 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places, at its San Antonio premises, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision. what steps have been taken to comply herewith.46 '' 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 " '" 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 from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Willis Edwin Miller and Horst Gonzales immediate and full reinstatement to their former or substantially equivalent positions. without prejudice to their seniority or other rights and privileges, and make them and Elida Cantu whole for any loss of pay they may have suffered by reason of their discharge or layoff. WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization WE WILL NOT engage in any like or related conduct which interferes with , restrains . or coerces you in the exercise of the rights guaranteed to you in Section 7 STEVES SASH & DOOR COMPANY (Employer) Dated By (Representative) (Title) Note We will notify Willis Edwin Miller and Horst Gonzales 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 provisions. they may communicate directly with the Board's Regional Office. 6617 Federal Office Building, 515 Rusk Avenue. Houston , Texas 77002. Telephone 228-0611.