Stewart & Stevenson Services, Inc.

STEWART & STEVENSON SERVICES Stewart & Stevenson Services, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 23-CA-2198 and 2269 May 18, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 16, 1966, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that 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. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and 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, t the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. 1. The Trial Examiner concluded, and we agree, that the Respondent engaged in widespread violations of Section 8(a)(1) of the Act.2 Contrary to the Trial Examiner, however, we find that the Respondent also interfered with Section 7 rights of its employees on November 4, 1965, when Joe Manning, Respondent's executive vice president and general manager, delivered the fourth in a series of antiunion speeches to employees who had been assembled on company time and property. This was a lengthy talk through which were scattered implied threats to discharge union adherents unless the Union were repudiated and assurances that it would eliminate the Union. Thus, Manning assured the i In section IV of his Decision, the Trial Examiner has transposed the results of the February 24, 1961, election Instead of "94 votes for and 34 votes against with 23 challenged ballots," he election results were 34 votes for the Union, 94 votes against, and 23 ballots challenged ' The Trial Examiner found that Respondent was chargeable with engaging in surveillance because of the evidence that Respondent was well aware of the many union activities in the 741 -employees that "we are not worried about this thing going Union, not the slightest . I assure you that it won't" ; stated that "We would like very much to see those young men and the ones that have done the most to tear everything down , they can straighten the whole thing out if they want to and they won't be fired"; and told the employees to "tell them to go away-go somewhere else where they like that kind of stuff. Go to some company where they have a Union if t iey want to work there . It's perfectly all right with us we don 't have any ball and chain on you, tell them to go peddle their stuff to somebody like that." _ We cannot concur with the Trial Examiner that Manning's assurance that the plant would not "go union" could be considered to be in the nature of a prediction. The entire speech reflected the force of Manning's anger with the Union's propaganda material, in the face of which the employees could only reasonably construe the words as meaning that Manning would see to it that the Union was not successful. This is particularly so in light of the extensive unfair labor practices and coercive conduct, including the unlawful discharge of active union adherents , which the Trial Examiner found occurred both just before and just after this particular speech. Similarly , Manning's telling employees that if they wanted a union they should go to work where there was already a union clearly indicates that persons favoring a union were not desired and would not be retained at the Respondent's plant. This latter statement is but a repetition of Manning's comment in his October 5 speech, which statement the Trial Examiner found violative of Section 8(a)(1), that the employees should "either learn the truth about what your company stands for or go somewhere else where they have a union , if that's what you want." The fact that Manning may have been infuriated by the Union's propaganda does not change the coercive nature of his comments or serve as a valid excuse for such conduct . Accordingly, we find that Manning's November 4 speech was unlawfully coercive and violative of Section 8(a)(1) of the Act.3 2. As more fully set forth by the Trial Examiner, on various dates beginning from approximately October 12 and ending about the first week of November, Manning had a number of meetings or conversations with various employees. The Trial Examiner concluded that in the course thereof Manning made coercive statements in violation of plant However, there is no evidence that Respondent acquired this knowledge by acts of surveillance Accordingly, we do not adopt the Trial Examiner's finding that Respondent violated Section 8(a)(1) by engaging in surveillance I Chairman McCulloch does not agree that this speech was coercive He would find that, when considered in its entirety, the speech was in the allowable area of fair comment protected by Section 8(c) of the Act 164 NLRB No. 100 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section. 8(a)(1) of the Act only when he told Horn and Novak that he would not sign a contract with the Union, tried to get Torres to reconsider and abandon his union activities and to act openly against the organization and enlist others to oppose it, and threatened Torres with discharge if he did not engage in the antiunion acts which Respondent requested. Unlike the Trial Examiner, however, we find that Manning engaged in additional conduct which interfered with the employees' Section 7 rights when he interrogated Torres in the presence of employee Horn about a week after October 5 as to why he wanted a union and stated that a union was not going to come into the plant; interrogated Horn at about that time and near the end of October as to why he wanted a union and why he was against the Company, remarked that the Union could not help the employees, and asked why he was trying to mislead the men; questioned Novak in employee Boudreaux's presence about November 5 whether he really thought a union was needed and why he was on the organizing committee; and asked Torres during the first week of November what he thought about the Union and the Company. Such interrogation of employees concerning union activities and sympathies tends to interfere with, restrain, and coerce employees in their free exercise of a bargaining representative and violates Section 8(a)(1) of the Act.4 3. We find merit in Respondent's exceptions to the Trial Examiner's findings that J. M. Newman was part of management, and that Mario Segura and Milton Gwosdz were supervisors. Newman has no official title, but serves as timekeeper in the cost accounting division. He also keeps a supply of employee application forms. Prospective employees initially apply to him for jobs. Newman assists the applicant in preparing his application form and introduces him to the appropriate plant official who interviews him and determines whether to hire him, at what job, and at what rate of pay. Newman has no authority to hire, fire, establish rates of pay, or assign employees to jobs. Nor does he have any other indicia of managerial or supervisory authority. The fact that as part of his duties Newman acts as an employment interviewer does not constitute him a member of management.' Segura works in the paint shop on the night shift with four other employees. As found by the Trial Examiner, Respondent has a "full-fledged paint shop foreman, Jesse Lopez, who, in the exercise of ' We find it unnecessary to pass upon, and do not adopt, the Trial Examiner's speculation as to whether a threat to discharge an employee for distributing false and misleading information during an organizational campaign would or would not violate Section 8( a)(1) of the Act. ' The Budd Company, Automotive Division , Cary Plant, 136 his duties, frequently extends his workday into the night shift for the purpose of engaging in various administrative functions." The Trial Examiner nevertheless found that Segura "should be regarded as a supervisor ... [because t]he night shift paint shop did not run itself." However, the evidence is that Lopez lays out the work for the members of the night shift, that Segura works alongside other employees on the shift, that to the extent that Segura gives orders to other employees he acts merely as a conduit for Lopez, and that, finally, Segura has no authority to hire, fire, or effectively recommend a change in the status of other employees. We find that the evidence fails to establish that Segura is a supervisor as defined in the Act. Milton Gwosdz, a nonsupervisory employee, is the brother of Foreman Ed Gwosdz. The Trial Examiner found that Milton "should be regarded as a supervisor because, during the time that Ed Gwosdz was on vacation, he substituted for him as foreman. " It has long been held that the sporadic assumption of supervisory duties, e.g., during annual vacation periods of a regular supervisor, is not sufficient to establish supervisory status at other times.6 Accordingly, we find that Milton Gwosdz is not a supervisor. The Trial Examiner found that Milton Gwosdz, while engaged in a group conversation with several employees and with his brother Ed Gwosdz, an admitted supervisor, called attention to the union button worn by employees Gonzales and remarked that the buttons were going to get the employees fired. We have found that Milton Gwosdz was not a supervisor. Nevertheless we find, as did the Trial Examiner, that this remark violated Section 8(a)(1). However, we base this finding not on Milton Gwosdz' alleged supervisory status, but on the fact that the remark was made in the presence of his brother, Foreman Ed Gwosdz, who not only did not repudiate it but said to Gonzales, "I didn't think you would stab me in the back." By his conduct Foreman Ed Gwosdz ratified the threat by his brother and justified the belief that Milton Gwosdz was voicing the position of management. The Trial Examiner found that Respondent had also violated Section 8(a)(1) by Mario Segura's remark to employee Sanchez that Foreman Lopez had told him that employee Reyes had been discharged because he had joined the Union, regardless of whether Foreman Lopez had actually made the statement, because Segura was a supervisor. However, as we have found that Segura NLRB 1153, 1155, fn. 3: American Radiator & Standard Sanitary Corporation (Louisville Works), 119 NLRB 1715,1720. "Frederick Steel Company, 149 ;NLRB 5, 11; Webb Fuel Company, 135 NLRB 309, 310-312: Ohio Power Company v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6), cert. denied 338 C.S. 899. STEWART & STEVENSON SERVICES 743 was not a supervisor, Respondent cannot be held responsible for Segura's remark in the absence of evidence that Respondent had authorized or ratified it. Accordingly, we do not adopt this finding of the Trial Examiner. The Trial Examiner further found that Respondent was responsible for the circulation of an antiunion petition among employees and that by such conduct Respondent violated Section 8(a)(1). He rested this finding on the fact that timeclerk Newman and Plant Guard Schrogum had solicited signatures for the petition, and that management was aware of the document being circulated "and seems to have approved or condoned its circulation and later sought ,solace from it...." We have found above that timeclerk Newman was not a member of management, and there is no evidence that Plant Guard Schrogum was anything but a rank-and-file employee. Accordingly, the conduct of these employees may not be attributed to Respondent unless Respondent authorized or ratified the circulation of the petition.7 There is no evidence that Respondent initiated or was instrumental in the preparation and circulation of, or solicitation of signatures for, the petition. Respondent also categorically denied that the petition was circulated during working hours on plant premises. The only evidence to the contrary is that the document was available for signatures on the coffee cart which brought coffee to the employees about 9:30 in the morning, and that it was posted on the bulletin board which was available to employees for posting of personal notices. The "solace" which Respondent derived from the petition appears to have consisted in its later referral to the petition as evidence that the employees did not want to be represented by the Union. We find that there is insufficient evidence under accepted agency principles to establish Respondent's responsibility for the circulation of the petition." Accordingly, we do not adopt the Trial Examiner's finding of an 8(a)(1) violation based thereon. 4. We adopt the Trial Examiner's finding that Respondent discriminatorily discharged John Morrissey. Respondent contends in its brief to the Board that there is no testimony other than that of Morrissey that he was a union adherent, and no evidence that any management official knew that he was an active proponent of the Union. However, the Trial Examiner credited Morrissey's testimony that he had signed a union card on October 26, and that he had attended two u aion meetings thereafter. Morrissey's signed author cation card is in evidence and corroborates this part of his testimony. Morrissey also testified without contradiction that about a week or two after he started working, Milton Gwosdz asked him what he thought about the Union, and he responded that he thought it was a good idea. Although at the time of his conversation, Milton Gwosdz was not acting in a supervisory capacity, about 2 weeks later he assumed the duties and responsibilities of his brother Ed, as foreman of the department in which Morrissey worked. It was while Milton was acting in this capacity that Morrissey was transferred out of this department, where he had been working at his welding trade, and assigned to an unfamiliar unit under Foreman Brame. Although, in a technical sense, Respondent was not chargeable with the knowledge of Morrissey's prounion attitude gained by Milton Gwosdz in his interrogation of Morrissey since Milton Gwosdz was not then acting in a supervisory capacity, it is unrealistic to assume equal lack of knowledge 2 weeks later when Milton was acting as Morrissey's supervisor, especially since Milton was actively antiunion and the initial step leading to Morrissey's discharge, the transfer out of the fabrication department, occurred during this period. We find, therefore, that Milton Gwosdz' knowledge of Morrissey's prounion attitude during the time that the former was acting as a supervisor is attributable to Respondent, and that before discharging him Respondent was aware that Morrissey was prounion. We also concur in the finding of the Trial Examiner that Morrissey was discharged for discriminatory reasons in violation of Section 8(a)(3). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Stewart & Stevenson Services, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Order, as herein modified: 1. Delete paragraph 1(g) and 1(i) from the Trial Examiner's Recommended Order. 2. Delete the seventh and ninth indented paragraphs of the Appendix. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges any violation of the Act not found by the Board. 7 J P Stevens Company, Expos- n Plant,147 NLRB 1133-34 ' The Little Rod Downtowner,, ., 145 NLRB 1286,1290-91 f P Stevens Co , supia, Poultry Enterprises, Inc v N L R R 216 F 2d 798, 801-802 (C A 5) 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN TOCKER, Trial Examiner: This case was heard before me in Houston, Texas, beginning on March 21, 1966, and concluding on March 31, 1966, upon two complaints served by the General Counsel and on the answer of the Respondent. During the hearing, the complaints were treated as one amended complaint and the answer filed by Respondent was agreed to be responsive to the complaint so amended . In general, it was alleged that the Respondent had violated Sections 8(a)(1) and (3) and 2(6) and (7) of the Labor Management Relations Act of 1947, as amended, in that (a) it had interfered independently with rights guaranteed its employees under Section 7 of the Act by interrogations, threats or intimidations, promises of benefits, and warnings that the employees would not be permitted to organize a union and that Respondent would never execute a contract with the Union; and had sponsored a petition to be signed by employees renouncing their support of the Union-all this for the purpose of interfering with the rights of its employees to form, join, or assist the Union, to bargain collectively through it and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (b) that, for the purpose of discouraging membership in the Union, it had discharged 12 employees at various times following the commencement of the organizing activities because of their participation therein; and (c) by so discharging said employees it further had interfered with their rights under Section 7 of the Act. Respondent admitted the formal and jurisdictional allegations and various allegations as to the supervisory capacity of numerous persons but it denied the allegations as to others so named. It admitted that the 12 employees alleged to have been discharged were discharged. It denied, however, all allegations on the basis of which any findings of violation might be made or any remedial order issued. The Issues There are issues as to whether the 12 employees named in the complaint were discharged because of their union membership or activity or because, variously, of lack of work, incompetence, unsatisfactory performance, or failure to report in when absent from work. There are issues also whether the Respondent, by various officials, wrongfully interrogated employees concerning their union activities, threatened them with reprisals for such activities, promised them rewards or benefits if they ceased such activities , warned them in various ways against engaging in union activities , solicited support against the Union and discouraged organizing efforts by saying it would never enter into a contract with the Union. In the resolution of all issues with respect to which credibility or oral testimony became a factor I have considered the demeanor and conduct of the witnesses, their candor or lack of it, their objectivity, bias, or prejudice, their understanding of the matters concerning which they testified, whether their testimony has been contradicted or sufficiently impeached, whether parts of testimony should be accepted when other parts are rejected, consistency, plausibility and probability, and the effect which leading questions might have had on the answers elicited thereby. The resolution of the issues not found in recorded speeches or notices depends almost entirely on the credibility of witnesses . In this case , as it frequently develops, it can hardly be said that any witness invariably told the whole truth and omitted no material facts; nor can it be said that any witness lied throughout his testimony and testified solely as to facts which never transpired or continually embellished the facts concerning which he testified. The mere fact that in some respects I have accepted testimony given by one witness as to certain matters does not mean that I have accepted similarly all his other testimony or that I would have accepted it had I dealt with it specifically. Further, the mere fact that I have discredited certain testimony given by some particular witness does not mean that I have rejected all other testimony given by him or that I would have rejected it had I dealt with it separately. I have given careful consideration also to oral arguments presented frequently during the course of the hearing by counsel for the respective parties and to the posthearing briefs submitted by counsel for the General Counsel and the Respondent. Now on the basis of the entire record, I hereby make the following: FINDINGS OF FACT 1. THE CORPORATE CAPACITY, THE VOLUME AND NATURE OF RESPONDENT'S BUSINESS, AND JURISDICTION Stewart & Stevenson Services, Inc., is a corporation duly organized and existing under and by virtue of the laws of the State of Texas, having its principal office and place of business at Houston, Texas, where it is engaged in the assembly, fabrication , sale, and service, among other things, of engine-driven pumps and generators. In recent 12-month periods, representative of all times material herein, Respondent in the course and conduct of its business operations purchased goods and materials valued in excess of $50,000, which goods and materials were shipped to it at its Houston, Texas, plant, from points outside the State of Texas. During similar periods, Respondent sold products valued in excess of $50,000, which were shipped from its Houston, Texas, plant, directly to persons in States other than the State of Texas. In 1964, its sales exceeded $22 million in annual dollar value and approximately 250,000 diesel horsepower. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. SUPERVISORY CAPACITY AND AGENCY CONDUCT OF VARIOUS PERSONS INVOLVED HEREIN In its answer and additionally during the hearing, the Respondent made admissions and concessions as to the supervisory capacity of Joe Manning, its executive vice president and general manager, Owen Metcalf, its plant superintendent , John Metcalf, its assistant plant superintendent, Bill McWhirter, its general parts manager, and numerous foremen : Jesse Lopez, W. E. Maddox, Earl Gorhum, Mike Oehrlein, Ed Gwosdz, A. J. Raymond, and Cyril Loy . It continued to maintain at the STEWART & STEVENSON SERVICES 745 close of the hearing that J. M. Newman and Mario Segura were not supervisors within the meaning of the Act. Other persons were mentioned in the complaint but we are not concerned with them. As far as J. M. Newman is concerned, while he has no official title and is employed in the cost accounting division, his duties and functions were such as to persuade me that the conduct in which he engaged was chargeable to the Respondent on an agency basis. He was made known to the employees officially as the timekeeper. Employees were required to report their absences to him. His work was in an office location in the factory but separated from the production employees there. He was the first point of contact when a prospective employee applied for employment or was directed so to apply. If he did not have the actual power to make an ultimate decision as to the employment of an applicant or as to his rate of pay, his functions in connection with the hiring were such as to identify him definitely as a part of management. Assuming also that he had no power to discharge, the nature of his work was such that, on occasion, he had to be consulted before a discharge would be effectuated. I find also that Mario Segura should be regarded as a supervisor within the meaning of the Act. The Respondent ran a night shift which required the operation of its paint shop. It had a full-fledged paint shop foreman, Jesse Lopez, who, in the exercise of his duties, frequently extended his workday into the night shift for the purpose of engaging in various administrative functions. He was concerned, however, primarily with the supervision of the paint shop in the day shift. The night shift paint shop did not run itself. During the times that Lopez was not there its work and operations were under Segura's supervision. While Segura did not have all the responsibility and authority vested in Lopez, certainly he was no mere figurehead during the operation of the night shift paint shop. In some respects, if not all, he was Lopez' alter ego when Lopez was not there. I find that he should be regarded as a supervisor within the meaning of the Act. Finally, the name of Milton Gwosdz, Ed's brother, came up from time to time during the hearing. I find that he should be regarded as a supervisor because, during the time that Ed Gwosdz was on vacation, he substituted for him as foreman of general fabrication in commercial work. He informed an employee, Morrissey, of the latter's transfer out of fabrication to a job under Foreman Brame on refrigeration units. IV. INCIDENTAL AND GENERAL FACTS AND BACKGROUND Respondent does not manufacture diesel engines. It assembles, fabricates, or manufactures almost any type of unit whereby a diesel engine can be utilized. Its products make possible the utilization of the power generated by a diesel engine. It is engaged in both commercial work and in work for various governmental agencies. Its factory has numerous divisions, among them being the sheet metal fabrication department under Foreman Mike Oehrlein for government fabrication and Foreman Ed Gwosdz for commercial fabrication, the parts department under Foreman McWhirter with Foreman Kubena in charge of Government spare parts, the sheet metal department under Foreman Maddox, the electrical department where Foremen Yates and Loy are in charge, an electronics department in charge of Foremen Cloer and Baroski, and a paint department under Foremen Jesse Lopez and Mario Segura. Some of the commercial work which came up during the hearing involved fabrication of refrigeration units, referred to as the reefer job, conversion of certain Greyhound buses from single deck to double deck and junking or destruction of certain metal units. Also, during the hearing we became concerned primarily with certain generator units the subject of a series of contracts or extensions of contracts known as the McClellan Air Force contracts. Military work involved also the Corps of Engineers, the Marine Corps and other governmental agencies, not disclosed. The increase in hostilities in Asia resulted in a large increase of military orders. This resulted in an initially rapid buildup of Respondent's personnel followed by a shakedown period or period of stabilization. An initial contract, dated May 7, 1965, known as McClellan Air Force Job 77400, called for a total of 67 units including 30 kw, 60 kw, and 100 kw diesel generators-35 of the 30 kws, 30 of the 60 kws, and 2 of the 100 kws. Deliveries on these began August 18, 1965, and the last shipment was made October 8. The May 7 contract was modified May 28 by an addition of 78 of the 100 kw sets. All 78 of these had been delivered by December 23, 1965. In July 1965 there was a second add- on calling for 45 of the 100 kws. Delivery on these did not commence until January 5, 1966, and was completed February 4, 1966. There was a third add-on in July 1965, calling for 13 of the 100 kws, 25 of the 60 kws, and 17 of the 30 kws. At the time of the hearing only 21 of these had been delivered. A fourth add-on in August 1965 called for 70 150 kws. At the time of the hearing only 36 had been delivered. A final add-on was made December 10, 1965, for 8 30 kws, 50 of the 100 kws, 63 of the 150 kws. No delivery had been made on these at the time of the hearing. Because of the increase in workload, at a time no more definitely identified as either late August or early September 1965, Owen Metcalf, the plant superintendent, posted a notice to all factory employees increasing the workweek to 10 hours per day on Mondays through Fridays and to 4 hours on Saturday, with the additional note, "We find this necessary for a while in order to keep our commitments up to date." There was a night shift running during much of the time involved. The factory remained on the 54-hour basic workweek for about 60 days and then was cut back to the normal 45 hours, with a 50- hour workweek optional in some departments. For about 4 or 5 months prior to the hearing, the workweek was 45 hours. Thus there was no cut back to 45 hours until sometime in November or December 1965. Seven of the discharges were in October, four in November, and one in December. A word, "cowling," came up frequently during the hearing. Cowling involves the enclosures or covers for units to be delivered under the contracts. Subcontracting of cowling was not new to the Respondent. We are concerned here with arrangements which were initiated in August or early September 1965 with a subcontractor, AmBox, Inc. Material for the cowling was sheared partially, punched by Respondent's employees, and then delivered to AmBox for complete fabrication in accordance with Respondent's plans and specifications. On September 22, 1965, subsequent to oral arrangements and actual delivery to AmBox of prefabricated materials for 73 sets, a purchase order was executed. AmBox was to fabricate 206 sets of cowling, each consisting of a front piece, a center piece, and a rear piece. An additional 133 sets was ordered from AmBox but these were not to be sheared or punched by Respondent. Respondent's 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees fabricated the cowling for only two of the 100 kw generators for the purpose of preparing a pilot model. Under the arrangements with AmBox, AmBox was supposed to have delivered six sets (front, rear, and center panels) per day. There was fairly regular delivery in varying quantities between September 20, 1965, and October 26, 1965, but only one front and six rears were delivered between October 27 and November 18, 1965, the front on November 15 and the six years on November 18. Beginning November 19 there were some deliveries but between that day and until December 28 only 32 fronts, 41 rears, and 65 centers had been delivered The reasons for the interruption in deliveries and the sporadic deliveries when recommenced were that AmBox had moved its plant location and had had difficulty or delays in the setting up of its Welderman Machine. A regular feature of Respondent's overall supervision and control of the utilization of manpower is the preparation and submission to General Manager Manning of manpower reports prepared by the accounting department. A manpower report is concerned with the progress of various jobs or contracts with which the Respondent may be concerned. It shows the progress during a specific week and to date of report of the work done on the jobs or contracts. The ultimate information arrived at in a report purports to compare the actual consumption of man-hours as opposed to the man-hours originally estimated for the particular unit which is the subject of the report. For the week ending September 25, 1965, Manning received a report with a notation from the head of Respondent's accounting department directing his attention to the fact that the McClellan Air Force Contract man-hours seemed "to be getting out of hand." This showed that 194 man-hours per unit had been consumed to date when only about 63 out of a total of 315 units had been delivered, as opposed to the original estimate of from 250 to 300 man-hours per unit had the entire series of contracts been completed and shipped. (The explanation for the range from 250 to 300 units is that three different sized units were involved in this series of contracts.) Manning reasoned that almost three-quarters of the estimated time for this series of contracts had been consumed while substantially less than one-third of the contracts' units had been delivered. His reasoning appears to be vulnerable in that, apart from the actual units which had been delivered, a substantial number not actually delivered were in course of production and some of them probably were almost ready for delivery Nevertheless he explained satisfactorily that, by reason of his knowledge of the actual work being completed in the factory, the man-hours consumed were running substantially in excess of the estimate. I regard as plausible and reasonable his justification for his conclusion that it was the result of cost studies which the Company was required to make in order to support its price quotations for negotiated contracts with Government departments. These took into consideration regular time, overtime, and varying hourly rates paid to employees. He first saw this report on the morning of October 4, 1965, after having returned from a vacation. He became quite incensed about it, spoke to some of his assistants about it, walked through the factory and took particular note of the working habits or conduct of certain employees. This survey by him has a particular relevance to the Respondent's justification for the discharges of employees Ferrovecchio and Haynes on October 5, 1965, and its justification for other discharges to be discussed below. With the receipt of this report there followed a period of adjustment , shakedown, or stabilization of employment which was necessary because of the quick build-up prior thereto. In or shortly after the first week of September 1965, Danny Horn, claimed to be one of the employees discharged in violation of Section 8(a)(3) of the Act, communicated with the Industrial Union Department of the AFL-CIO for the purpose of enlisting its assistance in the organization of a union in Respondent's plant. This resulted in a meeting with the Union's staff representative, Harrison, at the offices of the IUD on September 20, 1965. Danny Horn, Jesse Torres, Lamar Renfro, and another unidentified employee from Respondent's work force were present. A second meeting was held on September 25 at which the three employees already named and Benny Gonzales, Joe Rios, and James Novak also were present. At that meeting it was decided to form an " in-plant organizing committee." A form was typed for the purpose of having employees desirous of being on the committee to sign it. All employees present signed it and Danny Horn, at the close of the meeting, took it with him for the purpose of obtaining additional signatures . The form authorized the Union, IAM, to notify Respondent that persons who had signed it were on the "IAM In-plant Organizing Committee." Having received this form on October 4, 1965, Harrison, as staff representative of the IAM, sent a night letter to Respondent which was received by it on the morning of October 5, 1965. The telegram was as follows: PLEASE BE ADVISED THAT THE PERSONS LISTED BELOW, WHO ARE EMPLOYEES OF YOUR HARRISBURG BLVD PLANT HAVE BEEN SELECTED, AND ARE ACTING AS THE IN-PLANT ORGANIZING COMMITTEE FOR THE INTERNATIONAL ASSOCIATION OF MACHINISTS AFL-CIO, UNDER THE LABOR MANAGEMENT ACT OF 1947 AS AMENDED. THESE EMPLOYEES HAVE CERTAIN RIGHTS, AND PRIVILEGES AS IN-PLANT ORGANIZERS FOR THE UNION. I TRUST THAT THESE RIGHTS WILL NEITHER BE INTERFERED WITH NOR ABRIDGED. D A HORN, J TODARO, B V GONZALES, C FERROVECCHIO, J TORRES, T J CRANE, J M RIOS, B BROWN, J A NOVAK, L BOUDREAUX, L RENFRO, W BANKS, F G VILLANUEVA, A B HAYNES, G PHILLIPS, T TYRA, M BURKE, T W DODSON, E JASO, D FLORES, J FISK This was not the first attempt of IAM to organize Respondent's plant. An effort had been made to organize it in the fall of 1960 but the Union had been rejected by the employees who had voted in a Board-conducted consent election, 94 votes for and 34 votes against, with 23 challenged ballots. This election was held on February 24, 1961, and followed an earlier one held at the end of January 1961 which had been set aside because of improper interference with it by certain of Respondent's salesmen. That campaign culminated in unfair labor practice charges being brought against the Respondent resulting in a Board decision (133 NLRB 1152) finding numerous 8(a)(1) violations and requiring Respondent to offer certain employees reinstatement and to make them whole for any loss of earnings suffered as a result of discrimination against them for union activities. Pursuant to that requirement the Respondent paid four employees a total of $6,322.61 as backpay settlements. The sending and receipt of the October 5, 1965, telegram is the beginning point in time for the alleged violations with which we are concerned. STEWART & STEVENSON SERVICES 747 It is agreed, but without any admission that any of them were discharges in violation, that, of the persons named in the telegram, Horn, Todaro, Gonzales, Ferrovecchio, Crane, Rios, Novak, Boudreaux, Banks, Haynes, Phillips, Tyra, and Jaso are no longer on Respondent's payroll. . No general instructions were given to any supervisors thtat before any personnel action was taken against any of the persons named in the telegram such actions were to be cleared with Manning. This section devoted to "Background" and other facts and circumstances is not complete without reference to certain union conduct not discussed in detail below. The campaign had been most vigorous. For example, in response to a letter written by Manning to the Union on November 15, 1965, complaining about the "filthy implication" of a handbill entitled, "Who's Getting Fluctuated," the Union derisively and sarcastically said, in another handbill, "We apologize," and asserted that it meant only that it had underestimated "far worse" conditions at the plant. In the same handbill it went on and repeated a charge previously made that employees were getting their pockets picked, said they were "being rolled" and that this was the intended implication. In another handbill entitled, "The Pot and the Kettle," the Union actually sought to justify sabotage committed at Respondent's plant by saying, "It is regrettable that these incidents have occurred ... not only the destruction of company property, but the underlying conditions that exist at the plant that motivates a person to commit a vengeful act toward his employer." (Emphasis supplied.) It went on then to accuse Respondent of sabotaging for profit this country's war effort in Viet Nam by saying, "We have also been informed that there exists still another type of sabotage at the plant-no reward has yet been offered for the apprehension of the person or persons committing these other acts. We refer to the use of inferior materials on government units-nuts, bolts, & screws-white wire, dyed to conform with color-nontreated metal used in fabrication, etc. We regret all these incidents, for we do not condone any form of sabotage whether it be for spite, revenge, or profit." A. The Alleged Violations of Section 8(a)(l) of the Act 1 The posttelegram speech On the afternoon of October 5, 1965, the day when the telegram was received, all employees were directed to attend a general meeting at which Manning spoke. He opened the meeting with a remark that he would like to read the telegram "for the benefit of our dedicated and loyal employees." He then read the entire telegram and proceeded to make comments upon it. He stated that the rights and privileges of the in-plant organizers for the Union "will certainly be recognized" but that they would "under no circumstances enjoy any privileges that any other employee of this company does not enjoy." Although some may seek to construe this as a threat that benefits would be taken away or retaliatory action taken, it seems clear to me that it was nothing more than a correct statement of the uniform status of all employees countering the Union's intimation in its telegram that members of the "In-Plant Organizing Committee" had privileges which other employees did not have Manning stressed that the fact that the persons named in the telegram had been so identified did not "put this company on the spot as some might think" and that the Company would continue to be operated in accordance with the six basic principles which always had been followed by it. Manning observed that the Company had the best potential opportunity for a good profit-sharing year that it had had during the past 12 years and all persons ought to strive diligently to protect that potential and not allow themselves to be led astray by persons who had not contributed to Respondent's success or the welfare of its employees. He said that nothing but confusion would result in the event of divided interest and he urged all employees not so to be swayed as the only way to "protect our individual interest and insure continued progress." He approached the end of this address with a remark specifically addressed to those who were active in the organizing activity by warning them not to let their ignorance create confusion and distrust if they were dissatisfied. He added, "Either learn the truth about what your company stands for or go somewhere else where they have a union, if that's what you want." This last remark is alleged in the complaint as a threat of retaliatory action against the organizers and a warning to union representatives that they "cease being employees of Respondent." It does appear to be a clear interference with union organizing activities, a threat to continued employment, and a warning that employees desirous of having a union had better seek employment elsewhere. I find this a violation of Section 8(a)(1) of the Act 2. The October 14 communication On October 14, 1965, the Company mailed to all its employees a communication in which it informed them that it considered "an expression of confidence in the Union or an effort to organize (the Company) by anyone to be a slap at . management and an expression of no confidence in the management." It reminded them of the Company's open-door policy, progress, and basic principles and it argued, "Would you ever stop to think that had there been a union here you with your qualifications might not have gotten a job?" It repeated its open-door policy and invited all employees to talk to management people any time they had a problem, recommendation, or criticism. Except for the union animus sought to be demonstrated the General Counsel does not seem to rely on this as an unfair labor practice but it does have a bearing on some of the events which transpired later. 3. The October 22 communication On October 22, 1965, Respondent distributed another communication to its employees in which it replied generally to numerous handbills and propaganda which had been distributed by the Union. Again, employees were invited to talk to management personnel at any time about anything pertaining to the Company's business or any employee's problem. It sought to reply specifically to a union handbill which inferred that because there was no union in Respondent's plant its rules were inflexible. It specifically denied this and said, "About the only rules we say cannot be broken or tolerated are such rules as `Thou shalt not steal,' and of course we do not permit intentional cheating, drinking of alcohol on our premises, or any other act involving dishonesty or disloyalty " The employees were invited to participate in the making of rules. The permanence of employment in Respondent's plant and the 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concern which the Company had for older or disabled employees were stressed. It attacked alleged falsehoods about the Company's profit-sharing plan pursuant to which employees who had had 3 years of continuing employment were entitled to participate and if offered to explain to any employees interested, through its accounting officials, the operation of the plan. It exhorted employees to take advantage of opportunities offered them at its plant and repeated its invitation to them to discuss with management any matters about which they had suggestions. There is nothing in this communication to employees which appears to me to interfere in any way with rights guaranteed to them under Section 7 of the Act. The emphasis on honesty and on permanence of employment, as well as the repeated invitation to employees to discuss their problems with management and the alleged flexibility of most rules, do, however, have a bearing on matters involved in this proceeding. 4. The November 4 speech Next there is a speech on November 4, 1965. On or about October 27, 1965, the Union had distributed a handbill containing an extract from the Houston Post of August 8, 1965, reporting Respondent's first delivery on its huge Air Force contracts and referring to the fact that some shifts were running double. In this handbill was a cartoon suggesting that Respondent's profit-sharing plan was a fraud on the employees and it reported that an employee who had worked for the Company for 13 years had never received 1 cent in profit-sharing until 1961, the time of the union election. The only distribution he ever got was an amount equal to about 2 weeks' pay after the union drive "got under way" and he had received nothing since. The text referred to Manning's previous remark to the employees that 1965 promised to be one of the best years for profit sharing. It concluded with the words, "for whom, Mr. Manning, for whom?" The cartoon derided the Company as enjoying large profits in gluttonous style held or shared only by it and its stockholders with the employees having on their plates, depicted as wages, mere specks. Another handbill distributed at about the same time purported to quote employees protesting Manning's invitation to discuss their problems with management personnel by jibes at foremen, complaints of neopotism, and suggestions that foremen, shop superintendents, and personnel directors are abused in the same way that employees are. The inside of the handbill was entitled, "Who's Getting Fluctuated?" and reproduced a check stub purporting to be that of an employee being paid on a fluctuating pay scale. The object of this reproduction and the material accompanying it was to charge that the particular employee had lost $80.09 in overtime pay for the 2-week period shown. (The fluctuating pay scale is a legal method of paying employees, familiarly known as the Belo Plan, Walling v. A. H. Belo Corporation, 316 U.S. 624.) The particular paycheck stub shown was not that of an employee on a fluctuating pay scale but actually that of an employee who worked at an hourly rate of $1.50 and who was paid all the overtime to which he was entitled. The fourth page of this handbill depicted Manning dressed as a dude, with a flower in one lapel and the initials, "J. M.," on the other, smoking a long cigar and stealing overtime pay out of the hip pocket of a Stewart & Stevenson employee. The stealing charge was highlighted by the caption above the cartoon entitled, "How's That Again," which quoted from Manning's address of October 22, 1965, in which he had stressed that among the rules breach of which would not be tolerated was the rule, "Thou shalt not steal." These two handbills infuriated Manning and he assembled the employees for the meeting of November 4, 1965, at which he made a speech set forth on 25 pages of legal-sized paper with double-spaced typewriting. The General Counsel has isolated from this speech almost a dozen extracts, relying on them as violations or as background in support of charges of violations of the Act. The portions on which he relies may not, however, be read in isolation without regard to other statements made in the speech, the contents of the handbills and Manning' s state of mind provoked by them. The speech also is entitled to the protection of Section 8(c) of the Act unless it contained a "threat of reprisal or force or promise of benefit." It is not necessary to discuss here all the portions cited by the General Counsel because many of them are merely collateral to the issues. I do not regard as violative in any way that portion of the speech which refers to the pamphlet's reference to profit-sharing, points out its falsity and concludes with the remark referring to the Company's potential for profits and profit sharing in 1965, "It is ridiculous and almost sinful to foul it up for anybody, to foul it up or to do anything that would tend to pull it down. And for people to plant the seeds of doubt and discontent in your minds to try to make you distrust your company and pit you against them certainly has a tendency to pull the profits of this company down. This kind of deceitful thing is wrong, absolutely wrong." This is nothing more than legitimate argument and has in it "no threat of reprisal or force or promise of benefit." Another portion to which the General Counsel alludes is a portion referring to the handbill's reference to the union campaign in "1961." Here the speaker correctly asserted that the union campaign had not been in 1961 but had been in 1960, a year in which "the Company lost over a quarter of a million dollars," its only loss in 28 years. He added that the Union had lost the election at the very beginning of 1961 and that after that the Company made money. He repeated, "But prior to that during the year [1960] they had everything stirred up we lost over a quarter of a million bucks," and went on to add that the profit-sharing check was paid in 1962 for the 1961 profits which were earned following the failure of the Union's 1960 campaign to organize the Respondent's employees. This is not a threat that the union activities would cause the Company to lose money and the employees to lose profit sharing or a promise that without the Union there would be profit sharing. I regard it only as a fair reply to propaganda which the Union had distributed among employees. Next the General Counsel isolates another portion where Manning had gone into the question of what was worrying the Company. He said that the Company was more worried about the employees being misinformed and unhappy than whether the plant was going to be organized. At this juncture, he said, "Your state of mind is of utmost importance and that is why we are talking to you now. That is what worries us about this kind of stuff. We are not a bit worried about this thing going Union, not the slightest. I assure you that it won't. That you can mark down and its recorded right here. The only thing that does concern us is talk and devices, connived to plant the seed of distrust, pit you against your company instead of for it, very definitely has a bearing on your state of mind which is not conducive to the welfare of this company or its employees." This was followed by a reference to the mislabeled paycheck stub and an explanation of the fluctuating pay plan. The STEWART & STEVENSON SERVICES 749 question is are the words , "We are not a bit worried about this thing going Union, not the slightest. I assure you that it won't," words of threat or coercion . In the context of this speech and the union literature which provoked it, it is my belief that they are not coercive or threatening in any way. At most they are an expression of opinion or a prediction that something is not likely to happen. The General Counsel extracts a portion addressed to the Company's reason for having the fluctuating pay scale in some situations . To the extent that he would have me make a finding that the explanation is a threat that employees would be put out of work or laid off if the Company abandoned the fluctuating pay scale, I overrule that contention . If the Respondent did in fact violate any provision of the Fair Labor Standards Act that is a matter for consideration by the Labor Department. On the other hand , I do not regard as a threat of reduction of work hours in the event of organization an argument to the effect that if the Company had to abandon the fluctuating pay scale to the extent that it used it, some persons might lose their jobs. The concluding sentence of this portion of the speech, "When we start cutting it the way other fellows, then we all ought to get concerned ," is not a threat or coercive in any way but rather a commentary on the fact that working hours had been increased and if the time came to reduce them worrying ought to start . This is a simple economic argument . Increasing work hours suggests prosperity-decreasing work hours suggests the contrary. Next , a portion about which there was much testimony and emphasis during the hearing: Now the next paragraph , this employee in 21 weeks and incidentally I think that's all he ever worked here, had one week under 40 hours. Of course not, he came here during a period of time as an extra ... [unable to make this out] . Now is there any questions about that? Is that check figured right ? Where is Danny Horn ? Danny, is that check figured right or wrong? You have got witnesses here you can say what you want to, is it right or wrong? You don't know, you take the 5th . Well its right. This singling out of Horn from all the employees present and the remark , "You don't know, you take the 5th. Well its right," are claimed to be direct threats to Horn, accusing him of having availed himself of the Fifth Amendment to the United States Constitution by refusing to answer whether the check depicted on the union literature was right or wrong and interfering with his rights under Section 7 of the Act. If so, there would be a violation of Section 8(a)(1). Inasmuch as Danny Horn was chairman of the in-plant organizing committee , with his name first on the telegram of October 5, and in view of his express admission that he had distributed the handbill involved, I do not regard this singling out as being threatening or coercive. It will be considered however , in connection with Horn's subsequent discharge, as a possible basis for an inference that he had been discharged because of his union activity. To that extent I believe it is relevant and important . As far as the utilization of the expression, "You take the 5th," is concerned , I do not regard it as accusatory or particularly vindictive . We should not forget that the expression has become almost a household expression and is utilized indiscriminately, frequently jocularly, and without particular care when a person fails to respond to another person 's question. The next portion of the speech is: I haven't got anything against anybody. I'm for everyone of these fellows for you fellows that are here and I'm even for those who might be misguided and mislead, brainwashed and for whatever other reason they try to bite the hand that feeds them . They are not in any trap and I have told a few of them that, they think they are maybe . They can get out of the trap if they want out. They can get out of it . They think they are in a trap because they put out all of this false propaganda , they listen to somebody pay attention to things that were not so. We have all been guilty of that. We all, in a fit of anger or madness or in hate we have even said a few bad things to our wives, but that's all right . We didn't mean it and if we didn't mean it we straightened it out and the same things can be true, can be done in this instance . We of all things, most of you fellows haven 't been with the Company very long. There are a few of you that have but those young fellows try to prejudge this Company on the basis of a bunch of junk that somebody puts out that isn't true , that somebody puts out that has no interest in the Company whatsoever . They are only interested in what they can take out of it. We would like very much to see those young men and the ones that have done the most , the ones that have done the most to tear everything down , they can straighten the whole thing out if they want to and they won't be fired. That is on the record. The particular portions of this quotation , as emphasized during the hearing , are, "They are not in any trap and I have told a few of them that , they think they are maybe. They can get out of the trap if they want out. They can get out of it. They think they are in a trap because they put out all of this false propaganda .... We would like very much to see those young men and the ones that have done the most to tear everything down , they can straighten the whole thing out if they want to and they won 't be fired. That is on the record ." This portion presents a close question whether the employees were being told that they would not be fired if they abandoned the union organizing campaign and that they would be fired if they did not or whether they were told that they would not be fired if they abandoned the distribution of false propaganda. Considering that the propaganda which provoked the speech may have been both false and libelous , it is my belief that this portion should not be regarded as a threat of discharge unless organizational activities were abandoned but rather as a plea to the employees who might have had a part in the distribution of the alleged false and libelous propaganda to abandon that type of tactic. The next portion of the speech attacked is that dealing with the Company's emphasis on service and loyalty and its insistence that its rules not be broken . Manning exhorted the employees not to put up with people who insinuated that the Company departed from its inflexible rules against stealing, cheating , and other acts of dishonesty and indulged in such conduct itself . He asked them to: [T] ell them to go away-go somewhere else where they like that kind of stuff. Go to some company where they have a Union if they want to work there. It's perfectly all right with us we don't have any ball and chain on you, tell them to go peddle their stuff to somebody like that . Defend your company on any kind of issue where someone tends to belittle or downgrade them, after all if you don 't defend your company somebody else is going to and if your 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company isn't defended and somebody doesn't defend it and continue to make it progressive, continue to earn a profit, that some of us have a job then certainly we can progress and do better. Again , considering that Manning was infuriated by the allegedly false and libelous charges made against him personally and against the Company, this should not be regarded as a violation of Section 8(a)(1) of the Act, an interference with union activities , and a threat against persons who want to work for an organized company, but rather as a plea to defend the Company and its officers against false charges and an admonition that persons who wanted to make false charges ought to go to work where there was a union if that was what they wanted. In the same portion of the speech Manning was critical of the Union's warning to employees always to have a witness when they talk to any company officials. He invited them to come alone for any such talks . Inasmuch as it is clear from all the evidence in this case that no employee ever was prevented from having a witness to any conversation with a supervisor if he wanted such a witness, I do not view Manning's argument that witnesses were not necessary as being an interference with protected activities . As a matter of fact, Manning concluded this portion of the speech with a remark, "and I don't hold it against you, you are just misinformed. You can trust us." Finally Manning added, "You can hold me to anything that I have said, if any of you want a transcript of what I have said you can come and hear it. I think it is on that record right there so you won't have to have any witness, its all there." This remark was completely distorted, both by Horn and in union literature , to make it appear that Manning had promised to deliver a copy of the recorded tape to any employee who wished it and that he had broken that promise when he refused Horn's request for a copy. Wherever on the record reference to this appears I regard it only as a distortion . I see nothing wrong in Manning having refused to give Horn the tape. Attendance at the meetings was not compulsory but they were held during company time for which the employees were paid. 5. General summary of Manning's isolated meetings with employees and my appraisal of Manning We come next to a series of meetings with individual employees. There was one which Manning had with Horn and Torres, two which he had with Horn alone, another which he had with Novak and Boudreaux, two which he had with Torres alone, and two which he had with Banks alone-this last to be discussed in the portion concerned with Banks' discharge. All these employees were named in the telegram as being on the in-plant organizing committee. For the purpose of influencing my consideration of the charges, the General Counsel, in his brief, recalls , "Manning's behavior on the witness stand and vicious antiunion hostility." Manning spent a lot of time in the witness chair both as an adverse witness called in connection with the case in chief and in defense. It was quite clear, and nobody sought to hide the fact, that he was opposed strongly to the Union but, except for his obvious and admitted hostility, I cannot agree that at any time during all his testimony he was anything but a well- behaved, respectful witness. Nor do I agree that Manning, as stated by the General Counsel in his brief, "Obviously having been successful in defeating the Union in the earlier 1960 campaign , determined to utilize the same tactics even though numerous violations of the National Labor Relations Act would thereby be committed." There is no doubt that Manning hoped that the Union would not be successful in 1965 but, after carefully observing him throughout the hearing , it is my conclusion that he was too smart not to have learned much from the expensive lesson he and his company had received in the prior unfair labor practice proceeding . To say that he determined to utilize the same tactics even though numerous violations of the National Labor Relations Act would thereby be committed is to sell him short. We can be sure that if he determined to use any tactics to bring about the defeat of the Union it would have been a determination not to use the same tactics which had brought the Company grief before. Moreover, a strong factor to be considered throughout is the clear warning by the Union of its intention to try to build up a case against the Respondent as evidenced by the tone and content of its telegram of October 5 and its enjoinder to employees not to have any conversation with a supervisor without the presence of a witness. Manning admitted that he had meetings in his office with four employees: Horn, Torres, Novak, and Banks He denied that he had called in Boudreaux but said Boudreaux had come at Novak's request to have a witness. He said also that when he had the meeting with Torres and Horn, Horn came as a witness for Torres . These assertions are not denied. a. The Horn-Torres-Manning meeting About a week after the October 5 meeting at which Manning had read the telegram from the Union, Committeeman Torres, with Committeeman Horn as a witness, met with Manning. Superintendent Metcalf was present. According to Horn, Manning asked Torres what his problem was. Torres replied that he wanted more money and security, a pension plan, and things of that nature. Manning rejoined with a demonstration to Torres that he had received a number of wage increases and added that the Company had no complaints about his work. Torres then complained that a new employee had been hired at a rate higher than his. This was not disputed by Manning. He added that Torres had remarked that if there were a union in the plant he would be able to get more money, to which Manning replied that previously Torres had worked for a company which had been organized but he had been paid less there than at Stewart & Stevenson . According to Torres, during this meeting Manning asked them why they condemned the Company and inquired, if they wanted to work for a company in which there was a union, why they did not go to work for such a company. Another remark alleged to have been made by Manning was "that the Union wasn 't coming in." The conversation in the meeting then turned to Horn, Manning asking him what his gripes were . Horn said that he answered in very much the same manner that Torres had answered. When Manning was called in rebuttal of the Torres-Horn versions of the meeting he agreed that he had observed to Torres the probability that Torres had some problem and asked, "What is it." This induced the comparison of wages in the union plant where Torres had been employed before and also the demonstration that Torres had received four or five raises in less than 4 years. Manning testified that he replied to a complaint by Torres that a new man had been hired at a higher rate of pay by STEWART & STEVENSON SERVICES 751 telling him the Company did not intend to have inequities but that it was possible that a new man might be hired for a rush job on a temporary basis at a higher rate than more permanent employees. He said he told Torres that Torres had a regular job and, if he did his job, he would continue to have it. He said he assured both Horn and Torres that, while he could not give them security, they did have steady jobs and that the opportunity to work for Stewart & Stevenson, which provides 52 weeks a year pay for regular employees, was one of the greatest opportunities a person could have. He reminded them also, he testified, of the Company's concern for aged, feeble, and sick employees. He said that his primary objective in bringing these factors into the conversation was to aim them at Horn, who was a comparatively newcomer in the organization. At this meeting Horn raised a question about an alleged restriction against employees buying stock unless they had been with the Company for 3 years, saying that Supervisor Maddox had told him that. Manning assured him that this was wrong and that employees could buy stock in the Company at any time. Manning testified also that the Company's confidential method of grading employees was discussed at this meeting and that he disclosed to both Horn and Torres what their grades were. Manning agreed that the word " union" had come up during the course of this meeting but Respondent's counsel did not pursue it further at this time. In summary, I do not regard the fact that Manning invited Torres, who was a committee member, to make known his problems or gripes as being an interrogation or interference with union activities. While I have concluded from my blending of all the testimony on this meeting that Manning must have made the remark that a union was not going to come into the plant, I am unable to conclude that this prediction was a threat that if the Union did obtain a majority of the employees it would not be recognized. It was more likely an expression of opinion based on the prior effort to organize and Manning's intimate knowledge of the attitudes of the employees. In the context of the highly charged campaign to organize a union in a plant, a prediction or expression of opinion to a member of the Union's in-plant organizing committee that the Union would not succeed is not an interference with any right guaranteed under Section 7 of the Act. I do not credit any of the testimony given to support the claim that Horn or Torres was threatened with discharge because of union activities. b. First Horn-Manning meeting A week or two after this meeting Horn had gone to the parking lot to turn off the lights which he had left burning on his car. Manning happened to come along. They walked back to Horn's station at the shear machine. Horn testified that Manning asked him why he wanted a union and remarked that the Union could not help the employees in any way. Horn testified also that Manning asked him why he was trying to mislead the men, which made him protest that he was not trying to do that but that everybody wanted a union . Here, one of the most controversial remarks claimed to have been repeated by Manning many times comes up. Horn says that during this meeting Manning told him, "[H]e would not sign a contract with anybody." Horn testified also to some remarks about "firing" which appear to be incorrectly transcribed in the transcript. I believe that Horn's testimony was to the effect that Manning had remarked that Horn might be under the impression that he would be discharged before the union activity was completed, with which Horn agreed but that Manning then told him, "Well, I am not. You can have a job as long as you can keep up your work." Horn testified also that Manning had told him that it was possible for h,m to obtain a position with the Company like that held by Bob Mitchell, a successful and highly placed employee. On the basis of Horn's version of this conversation, there was no threat that he would be discharged if he continued his union activities. It could however be found that Manning interfered with organizing activity by his threat never to sign a contract with anybody and that he held out to Horn the possibility of a promotion to a job equivalent to that held by Mitchell if he ceased his union activity. I believe however. for the reasons to be set forth elsewhere, that the alleged threat not to sign a contract with anybody (later more formalized by testimony that Manning had said he would never sign a contract with the Union and a recurring theme during much of the hearing) was not made during this conversation. I discredit Horn in this respect and believe that he was seeking to lay the groundwork for his later testimony that Manning had threatened never to sign a contract with the Union. I discredit also Horn's testimony seeking to imply that he was offered a promotion to a job equivalent to that held by Mitchell if he would give up his union activities. This is ludicrous on its face. Mitchell, although a relatively young man who had started with the Company when he was only 21 or 22 years old as a helper, was at that time the chief mechanical engineer and drew a percentage of the Company's profits. I believe that this was a most casual meeting not sought by Manning and that it had come about only because their paths crossed accidentally and that Manning had joshed Horn with a remark as to how he was getting along with his committee. We should not overlook that Horn's name was first on the Union's telegram to the Company and that he was chairman of the committee. c. Second Horn-Manning meeting After Manning's address to the employees in which he had informed them that if any of them wanted a transcript of what had been said they could "come and hear it," Horn sought out a meeting with Manning after getting permission from his foreman. He requested Manning to furnish him with a copy of the tape for the Wage and Hour Division. Horn said that Manning refused to give it to him saying that he did not want it for the Wage and Hour Division but wanted it for "those people up there (the Union) to twist around and make lies." After this Manning detained Horn. There was a discussion which brought in sports, hunting, and other matters. Horn said that Manning asked him what he had against the Company to which he replied that he had nothing except that the pay scale was not high enough. Horn's testimony reverted also to the alleged remark about not signing a contract with the Union but this time he was not so positive about it. As a matter of fact, he seemed to withdraw his prior testimony about an alleged similar remark during the parking lot meeting. His testimony was, "I think at this meeting was when he said he would not sign a contract with the Union or anybody." He testified flatly that Manning told him he would be fired if he did not stop trying to mislead the men in passing out this union propaganda. He testified also that, after ascertaining Horn's interest in hunting, Manning suggested the possibility of Horn's going to Manning's ranch to hunt at which time possibly Manning could persuade him against the Union. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This meeting was not like the other two meetings. It was held at Horn's initiative for the purpose of obtaining the tape on which Manning's speech had been recorded. Inasmuch as Manning had never promised to deliver the tape to any employee and there was no obligation on Manning's part so to do, I perceive no misconduct in his refusal to accede to Horn's request. Manning's version of the meeting is much more detailed than Horn's. As must be quite apparent, Manning had adopted a discussional approach with the committee members. Manning denied that he had promised Horn a job in the diesel shop but said that the shop came into their conversation because Horn had expressed his dissatisfaction with the work he was doing in the plant. Manning responded with comments about the high position that Mitchell had achieved and that if Horn wanted work in another department there was opportunity for that just as Mitchell had had his first opportunity in the diesel shop. Manning denied that he threatened to discharge Horn because of his union activity. As I have noted before, Manning was far from stupid. I am unable to believe that he would have been so oblivious of the prior unfair labor practices proceeding as to threaten the chairman of the Union's organizing committee with discharge because of his union activities. Manning agreed that there had been talk about hunting and sports during the meeting but this was merely in the form of generalities. Manning was a member of a hunting group which hunted in Colorado. Horn had expressed his interest in hunting and had disclosed that his "real father," whom he had not seen for many years, lived in Colorado. It was during this part of the conversation that Manning offered to provide Horn with leads to facilitate his hunting if he went to Colorado. I do not credit Horn when he says that Manning invited him to go to Manning's Colorado ranch (which Manning did not have) and thereby held out to him a reward if he would cease his union activities. On the other hand Manning admitted that during the conversation the matter of a contract with the Union was discussed. His version of the discussion is that the false charges and other offensive union progaganda had come up and that he had pointed out to Horn that people who want to do business with Stewart & Stevenson do not slander the firm and insult it. Manning admitted that he had said, "I want to tell you something. I would not sign a contract with anybody that came at me in that manner." While I understand that he was irate because of what had been said in the union propaganda, I think that by making the remark which probably was repeated at other times, Manning (and by him the Respondent) did violate Section 8(a)(1) of the Act. This was a clear interference with organizing activities in that it was calculated to dissuade Horn (and others who heard it on other occasions) from further union activities because of their threatened futility-the prospect that even if the Union obtained a majority there would be no contract with it. Regardless of what other remedies the Respondent might have had against the Union because of the Union's alleged false charges (Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53) and the possibility that the Board might give the Company some relief in a case of that nature (Walls Manufacturing Company, 137 NLRB 1317-19), the Act does not relieve an employer, for the reason cited by Manning, from entering into a contract with a union which is the exclusive bargaining agent of its employees once the terms thereof have been agreed in collective bargaining. This was a violation of Section 8(a)(1) of the Act. According to Horn, an additional threat that he would be discharged was made by Manning at this meeting. However, Horn admitted that it was not a threat that he would be discharged for union activities but was related particularly to the distribution of false and misleading information. The Act does not permit or condone the use of false and misleading information and, if an employee were discharged for that reason alone and not because he participated in the distribution of union literature, I hardly think that such a discharge would be regarded as a violation of Section 8(a)(3). That being the case, assuming a threat to discharge for that reason (linked by Horn in his testimony to the alleged threat), it may not be regarded as a violation of Section 8(a)(1) of the Act. d. The Novak-Boudreaux-Manning meeting Novak was a member of the in-plant organizing committee, continually wore the union button on and after October 6, distributed about 15 union cards and spoke to about seven or eight employees on behalf of the Union. On or about November 5, Manning walked up to him and said he would like to have a little chat with him. Novak testified that although Manning tried to talk him out of it, it was finally agreed that Boudreaux would accompany him to the office. Novak says that Manning asked him whether he really thought the factory needed a union and why he was on the in-plant organizing committee. Following Novak's response to this, it is claimed by him that Manning then made the statement, "I will never sign a contract, a union contract." Also, it is claimed that Manning reminded Novak that at his prior place of employment, where there had been a union, he had been paid less money than he was being paid at Respondent's factory and that Manning said he could not comprehend Novak's unhappiness in his present employment. The witness was asked about a statement alleged to have been made by Manning to Boudreaux at this meeting, "You know Boudreaux that I don't lie," but Novak was unable to remember the context in which it was made. Boudreaux's dissatisfaction with the frequency at which he was subjected to layoffs as opposed to the fact that people with less seniority than he had were not laid off also was a subject of discussion. Boudreaux, in substance, repeated what Novak had said about the conversation having to do with grievances and his own dissatisfaction with the treatment he had been receiving in the last 2 or 3 years. He testified that Manning replied to the latter with the observation that he had never been considered a regular employee. Boudreaux confirmed also the comparison made between Novak's prior wages in the organized factory as opposed to his wages in Respondent's employ. Boudreaux's testimony about Manning's alleged remark to him to the effect that Boudreaux knew Manning did not lie is that this remark was made in connection with Manning's threat that he would never sign a union contract. In addition to all that Novak had testified about of what transpired at the meeting Boudreaux says that Manning also told them that they could "get out of the mess anytime" they wished, that they "weren't in any trap," and that they did not have to fear that they would lose their jobs. It was brought out on cross-examination that, at the time Boudreaux initially was interviewed by a Board agent, he had made no mention of the fact that Manning had threatened never to sign a union contract. His explanation for not mentioning it at the initial interview is that he had forgotten all about it and that it STEWART & STEVENSON SERVICES 753 came back to him because he had been continually thinking about the matters which had arisen . This came back to his mind and became the subject of a conversation with Harrison , the Union's staff representative . Harrison suggested that he make a second statement to the Board agent. Also on cross-examination , it was brought out that Manning was quite upset and angry during the whole meeting and that much of the meeting was concerned with the alleged falsities in the union literature . A particular matter discussed had been the falsity of the pamphlet depicting an employee being cheated by means of the fluctuating pay plan. From all this, as I reconstruct the meeting, the probabilities are that , in addition to the inquiries and arguments related to Novak's and Boudreaux's complaints , there was a hot discussion about falsities in union literature , a remark seeking corroboration from Boudreaux that Manning was not a liar and Manning's remark that "he would not sign a contract with a union" that attacked the Company with false propaganda. While Boudreaux was testifying , I indicated my misgivings about his testimony concerning the manner in which he came to give his second statement to the Board agent. Similarly, I was entirely dissatisfied with his evasive answers about conversations with Novak and his contacts with the union office prior to and after the giving of his statements to the Board agent . His initial failure to remember Manning's alleged remark about not signing a contract with the Union does not ring true in view of his admissions that the union officials had alerted him and others to report promptly to it any threats or remarks by supervisors . This last certainly does not jibe with Boudreaux 's first assertion that he had not reported the "no contract" threat to the Union and his later grudging admission that he might have but did not remember. (Definite resolution of the issues related to the contents of this statement and other statements were frustrated by the Union's failure to produce statements taken from employees after I had directed that they be produced. I have serious doubts that , as testified, such statements were discarded.) Manning admitted that during this meeting he had remarked that he would not sign a contract with anybody who made false accusations against the Company. He said that the remark to Boudreaux about his not lying was made in connection with his various refutations of the alleged falsities in the union literature . He testified that in this connection he reminded Novak that he had not been with the Company very long but that Boudieaux knew better and knew he did not lie , pointing at the same time to the pamphlet and saying , "This is a bunch of lies." As I have indicated elsewhere, there is no doubt that Manning, who was the personal target of many charges in the Union's propaganda, was upset emotionally by them and took them very hard. The "I do not lie" remark unquestionably was related to the refutation of the handbills. In summary, as far as this meeting is concerned, I do not regard Manning's efforts to ascertain the causes of dissatisfaction of these committee members as unlawful interrogation or interference . On the other hand, as before, I hold that Manning's threat that he would never sign a contract with the Union, albeit the reason being its allegedly false and slanderous accusations , was a violation of Section 8(a)(1) of the Act. e. The two Torres-Manning meetings There were two meetings between Manning and Torres at which no union associates were present. The first was occasioned shortly after the Torres-Horn-Manning meeting discussed above because Torres had been troubled by a remark Manning had made about his job in the plant . Torres sought out Manning and showed him various letters of recommendation received from other companies testifying to the fact that he was a good employee. During this meeting, according to Torres, Manning told him that he was not in a trap if he wanted to get out of it . On cross-examination , Torres admitted that the remark about the "trap" had been made in relation to Manning's complaint about the cartoon depicting him as a pickpocket. Manning explained the remark as having been made because the conversation had gotten around to Torres' general unhappiness and his fears and he assured Torres that the mere fact that he had been talking in support of the Union and wearing a union button did not mean that he was in a trap resulting from the false accusation against Manning. Because Torres was aware that Manning was opposed to the Union , Manning said he assured him that he was not going to be discharged because he had signed up for it and had worn the button. He testified that he told Torres to do his job , try not to displease the Company , and tailor his performance in a manner to enable him to make more money, move ahead, and progress with the Company . He says he promised Torres that if he did all this he would have no problems and assured him that he was in no trap . Manning's supplement to Torres' testimony is accepted as credible by me because I am convinced that he really tried to reassure Torres, who appeared to be worried about Manning's attitude toward him . This was not a violation of Section 8(a)(1) of the Act. During the first week of November, Torres had a second solo meeting with Manning . Torres had gone to the cigarette machine for some cigarettes and Manning happened to walk by. Manning stopped and asked how he was doing, to which Torres replied that he was "doing good." This was followed , according to Torres, with Manning's asking him what he thought about the Union and the Company and, after receiving Torres' reply that he had not thought about it , Manning suggested that he think about it and let him know . Manning followed this, according to Torres, by telling him that if he wanted to work he should "work for the company, that [he] could work with the company and work with the company against the Union; and if anybody talked to him about the Union, ... tell them [he ] didn't want to hear about it, that the Union wasn't no good." Torres refused to say specifically that Manning had told him to tell people that the Union was no good-he repeated only that Manning had told him that the Union was no good . Throughout most grueling cross -examination and my own interrogation, Torres remained firm and unshaken in his testimony that Manning had made these remarks to him . I am impressed that Torres was telling the truth in this respect. The remarks made by Manning did interfere with Torres' union activities to the extent that he tried to get him to reconsider and abandon them , to act openly against the organization campaign and to enlist others to oppose it. These were violations of Section 8(a)(1) of the Act. Similarly, the remarks implied that if Torres did not 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandon his union activities, work against the Union, and enlist others to oppose it he would be discharged. This was a threat in violation of Section 8(a)(1) of the Act. My crediting Torres on this score is influenced both by the impression he made on me while testifying and the fact that he was still in Respondent's employ at the time that he gave his testimony. B. Other Alleged Violations of Section 8(aXl) of the Act As possible violations of Section 8(a)(1) of the Act, testimony was given during the hearing concerning two postings on the employees' bulletin board-one a letter or declaration by an employee, Dodson, disassociating himself from the Union and the second a letter to Manning from two former employees at the time serving in the Armed Forces. The Dodson declaration was placed on a bulletin board accessible for posting of any notices by employees. There is no reason to charge the Company with any violation resulting from it or its contents. While the letter from the former employees had been addressed to Manning and presumably was posted pursuant to his direction, it contains only argumentative material not transgressing the proviso contained in Section 8(c) of the Act. Torres testified about a group conversation in which Villanueva, a minor supervisor, Foreman Ed Gwosdz, and his brother, Milton, an alternate foreman, were present. Just as an employee, Gonzales, approached, Milton Gwosdz called attention to the button he was wearing and said that the buttons were going to get the employees fired. Ed Gwosdz later turned to Gonzales and said to him, "I didn't think you would stab me in the back." Ed Gwosdz was called to testify about what transpired on this occasion. He denied that he had heard his brother Milton make the remark that the union buttons were going to get the employees fired. He sought to explain the "stab in the back" remark by saying that, if made, it was made because Gonzales had become inefficient and ungrateful to him after he had shown him many kindnesses and done him many favors. I accept the testimony that Milton Gwosdz did make the remark about union buttons and I infer from all the testimony that the "stab in the back" remark was made by Ed Gwosdz as observational comment related to Gonzales' wearing of the union button. The former was an express prediction by a supervisory employee that persons who wore the union button would be discharged and the latter was an interference (in the form of a remonstrance) with Gonzales' rights to engage in union activities. These were violations of Section 8(a)(1) of the Act. Gonzales testified also to a conversation between Foreman Brame and Robert Raymond overheard by him in which Brame pointed him out as being one of the employees who wanted the Union. This was followed by Brame's turning to Gonzales and asking him why he did not go to a company like Hughes Tool if Gonzales wanted to work where there was a union. During this conversation, it is claimed by Gonzales, Brame derided him as to what the union demands might be, asking him whether he wanted his own "whore house or his own barrel house." Foreman Raymond was called to testify on this phase. He denied that the "whore house" remark was made to Gonzales but admitted that Brame had parried with Gonzales about going to a union shop if Gonzales wanted to work in such a shop and he testified also that in response to Gonzales' reply to this, Brame had said that Gonzales, being a Mexican, ought to be glad that Respondent gave him a job. Brame also testified about this conversation. His version is that he told Raymond to "be careful of what you say, that Mexican has got a button on." He claims that he did not intend this to be heard by Gonzales. He denied that the "whore house" remark had been made during this conversation but admitted that there was banter about such houses at other times among the employees. I have concluded from all this that the Respondent is chargeable with engaging in surveillance (as undoubtedly was the case in view of many instances in the record indicating the Company's knowledge of the extent of union activities) and also that Brame, by his remarks, sought to make clear to Gonzales that his union activities were frowned upon by Brame, his foreman at the time. These constituted violations within the meaning of Section 8(a)(1) of the Act. Brame apparently made similar remarks to other employees because Boudreaux, whom I have credited in this respect, testified that Brame told him if a man wanted to work in a union shop he ought to look for a place that was already unionized. This is just cumulative. I have concluded, after putting together Superintendent Metcalf's testimony and that of Boudreaux concerning another incident in which Metcalf is alleged to have interrogated Boudreaux about what his demands were, that Metcalf had 'felt hurt because Boudreaux, who ordinarily stopped to chat with him, passed him by on one occasion and Metcalf went after him for the purpose of making certain that there was no estrangement between them. Under these circumstances, the alleged interrogation, even if as testified by Boudreaux, should be regarded only as conciliatory remarks and not as an endeavor to interfere with Boudreaux's union activity. I believe Metcalf's testimony that Boudreaux exhibited his dissatisfaction and unhappiness and that Metcalf's only effort in this conversation was to try to placate him. There is testimony to the effect that a minor supervisor, Venteciola, was interrogated by Plant Manager Manning as to what he knew about union activity. Venteciola admitted to Manning that he had been passing out union cards and named Thornton and Hardwick as persons to whom he had passed them. Although Venteciola is a minor supervisor, this incident supports my general conclusion that Respondent did engage in surveillance of the union activities of its employees. Employee Fisk testified to a conversation with Manning on the morning following the meeting at which Manning had addressed all the employees following receipt of the Union's telegram listing the in-plant organizing committee. Although Fisk was a committee member, it appears that Manning was not satisfied with the knowledge that Fisk was such a member but went further and asked him what was bothering him and what was going on. This type of probing rises above a mere jocular reference to an employee's overt union activity. It is distinct prying into the activities and an effort to extract information as to what those activities might be. This is interrogation which constitutes an interference with union activities and a violation of Section 8(a)(1) of the Act. Here it appears also that Manning had referred to the fact that Fisk had put his name at the top of the back portion of the communication authorizing the Union to name him as a committee member. At the time when Fisk signed, except for what appeared on the reverse, apparently not known to Fisk, it was just a blank sheet of paper. Manning's alleged comment concerning Fisk's signature on the blank paper was an inquiry whether he STEWART & STEVENSON SERVICES would sign a paper for the overthrow of the United States Government and an assertion that anybody who would put a plug in for the Union was taking a crack at the Company. My general conclusion with respect to this particular portion of the Manning-Fisk conversation is that Fisk really had not been aware that he was authorizing the Union to name him to the Company as a member of the organizing committee and that he blindly had signed a blank sheet of paper which turned out to be, by what appeared on its reverse side , a union authorization . Having come to know Manning, as I came to know him from his long times on the witness stand , it is my conclusion that this was nothing but a display of indignation that Fisk had blindly signed a blank sheet of paper. I am not sufficiently convinced , to the extent that I may make such a finding, that Manning did tell Fisk that anyone who would put a plug in for the Union was taking a crack at the Company. I am unable to find that this incident constituted a violation of Section 8(a)(1) of the Act. Horn testified that Foreman Maddox told him that he would not receive a wage increase because his name was "first on the list." This could mean that he was first on the list for discharge because of union activities or that his had been the first name mentioned on the Union's telegram. I do not believe that Maddox made this remark . It is most unlikely that Maddox, who had been involved actively in the prior unfair labor practice hearing and who had been accepted and credited as a "sincere" witness by the Trial Examiner who heard that case, would have given such an obviously unlawful reason for denying Horn a wage increase . The testimony, on balance, indicates quite persuasively that Horn and Maddox never got along too well together . The timing of Horn's request for an increase suggests to me that he had no real expectation of getting it but made the request either to provoke some 8(a)(1) remark or merely to annoy Maddox . Moreover, if Horn actually had received an increase at that particular time, it is most likely that the increase would have been pointed to as a benefit or reward given for the purpose of inducing him to abandon his union activities-witness the claim that Manning's interest in his liking for hunting and the offer to give him leads was an effort to bribe him to abandon the union activity . I find no violation of Section 8(a)(1) here. Referring to the discharge of Domingo Reyes, Mario Segura is alleged to have told employee Sanchez that Foreman Lopez had told him that Reyes had been discharged because he had joined the Union. This remark attributed to Segura remains uncontradicted on the record . It is not necessary to decide whether in fact Lopez told Segura that Reyes had been discharged because he joined the Union. It is sufficient that Segura, a foreman, made it to Sanchez, an employee. Such a remark by a foreman was calculated to be a warning or reasonably could be understood to be a warning that an employee who joined the Union would be discharged . As such it is a threat in violation of Section 8(a)(1) of the Act. There is also testimony by Domingo Reyes, set forth in greater detail below in the portion related to his discharge, as to questions asked him by Foreman Lopez concerning the effort to organize the Union and I find this to be interrogation constituting interference within the meaning of Section 8(a)(1) of the Act. Thornton testified with a great deal of uncertainty and only after it had been suggested to him in a leading question that McWhirter had given him a lecture about loyalty to the Company and had asked him whether he was 755 a company man. He admitted , however, that nothing was said to him about union organization or about the handing out of union literature . I do not credit the testimony about McWhirter's alleged lecture on loyalty and interrogation whether Thornton was a company man. I believe that the conversation was concerned only with Thornton's alleged unsatisfactory work performance and his failure to look for another job . This was no violation of Section 8(a)(1) of the Act. Finally, we come to an antiunion declaration entitled, "To Whom It May Concern," referred to in the complaint and during the hearing as a "petition ." This was circulated among the Respondent's employees and they were solicited to sign it. Most of the signatures of this document were obtained November 29, 1965, if the date alongside them is to be accepted. One of the pages starts with signatures dated November 29, 1965, followed by five dated November 28. Some are not dated and a relatively few are dated November 30. One is dated November 28 followed by one dated November 30. During his direction examination, as an adverse witness, Plant Manager Manning was asked about the introductory portion of a piece of literature distributed by the Company on or about December 13, 1965. It led off with the statement , "In spite of the apparent disgust of over 95 percent of us here in Houston, we are still being bombarded with union propaganda." He said he adopted that percentage in reliance on the antiunion declaration . He denied knowledge of any particulars as to its circulation or of who had prepared its text. He was able to identify some of the employees instrumental in obtaining signatures . He testified definitely that it had not been circulated during working hours. He knew it was being circulated because Dodson, the employee who withdrew from the Union 's organizing committee, distributed it at , the plant entrance. He admitted that several employees had asked him about circulating it. It is established definitely that timeclerk Newman and Plant Guard Schrogum had solicited signatures . It appears also that the document was available for signing on the coffee cart which brought coffee to the employees at about 9:30 in the morning. In a paper posted by Respondent on the company bulletin boards on November 29 or November 30, it definitely connected itself with it by quoting its heading and saying: This is the heading of a Petition that 280 out of approximately 301 employees of Stewart & Stevenson Services Inc. signed. In the same paper it expressed its appreciation "of this overwhelming expression of confidence in the Company, its management and its policies." The testimony to the effect that the document had been circulated by Newman, Schrogum, and on the coffee cart was given by employee Morrissey . I believe that he told the truth about the manner in which the petition was circulated . (A sidelight on Newman's solicitation of signatures is that only 2 days after he had asked Morrissey whether he had signed the "petition" and Morrissey had said he had not, Morrissey was transferred out of the commercial fabrication department where he had been doing welding and fitting to another department where they were assembling refrigerator units for railroad cars. This does appear to be a consequential transfer to less desirable work , bad performance on which was cited later as one of the reasons for Morrissey's discharge.) In view of the nature of Newman's connection with management and the fact that the Company had placed 298-668 0-69-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him in a position which would have caused any employee to believe that actions undertaken by him were those of management and, further, in view of the fact that management was well aware of the fact that the document was being circulated and seems to have approved or condoned its circulation and later sought solace from it, and still further, in view of the fact that the plant guard was another solicitor for signatures, it is my conclusion that the Respondent must be regarded as having requested and solicited employees to place their signatures on the document and thus solicited their support against the Union and inspired their renunciation thereof. The solicitation of signatures to the document and the Respondent's tacit support thereof, followed by Respondent's ultimate utilization of the document as an argument in and of itself against participation in the organizing activity, are violations of Section 8(a)(1) of the Act. C. The Alleged Violations of Section 8(a)(3) of the Act We come now to the 12 discharges alleged to be violations of Section 8(a)(3) of the Act. In considering whether any of these were in fact violations, even though I do not refer specifically to any of the 8(a)(1) violations heretofore found herein or any of the other background set forth above, I nevertheless took into consideration all such factors. The fact that I do not, when considering a particular employee's discharge, refer to specific testimony relating to him but covered elsewhere in this decision does not mean that I have overlooked it. Moreover, because what I have just said might be regarded as consideration of factors arguable only against the Respondent in the resolution of the issues arising from the discharges, I add that I have not overlooked or disregarded any of the factors which may tend to absolve it from charges of interference with or discouragement of union activity. In discussing the discharges, I shall take them up in the order in which they are mentioned in the complaint, as amended, and without regard to my ultimate conclusion as to their legality. 1. The discharges of Carl Ferrovecchio and Arthur B. Haynes Ferrovecchio had two tours of employment with the Respondent. He was hired originally on April 30, 1965, discharged August 20, but rehired August 23 to be discharged ultimately on October 5. His name was on the Union's telegram as a member of the organizing committee. He admitted that on two occasions, when Plant Manager Manning came through the "hen house" (a wiring operation on which mostly girls or women were employed), Manning had seen him talking to a girl. He admitted also that on the day before Respondent received the union telegram, following a conversation which his foreman had had with Superintendent Metcalf, his foreman told him, "If I was you I would be on the lookout for another job," because Manning had observed him not working. He testified also that when he reported for work on the next day, he asked his foreman whether he had heard anything but was told, "no, but you are on the list." (I ascribe no significance to these words, even if uttered. The list could just as well have been a legitimate layoff list as the list in the Union's telegram.) At lunchtime, in response to another inquiry, his foreman told him that he was going to give him his check that afternoon. These time sequences are not open to question because it was just after his discharge that he was told about the speech to be given by Manning on the afternoon of October 5. He admitted also that on one occasion, he had thrown a lug at a woman in the "hen house" and on another occasion, he had tossed a file in the direction of another woman and the file hit her in the hand. These last two are not claimed by the Respondent to be reasons for his discharge but they are illustrative of his general behavior. Haynes was employed originally by a company affiliated with the Respondent but, on August 19, 1965, he was hired by Respondent. He was terminated October 5, 1965. He testified generally as to the satisfactory nature of his services to which he alluded as semi-skilled, less skilled than they had been at the company's affiliate where he had been employed previously. He signed a union card on October 1, 1965. His name also was among those on the Union's telegram and he started to wear the union button on October 5, the day on which he was discharged with the comment that he had been seen standing around. These two discharges are defended by the Respondent as justified by reason of a decision made October 4, 1965, to discharge the individuals involved because they had been loafing, standing around, talking, or, in substance, not working when they should have been working. Plant Manager Manning had received the work progress report on the McClellan Air Force job on the morning of October 4, 1965. He became agitated because the job was costing too much in terms of manpower utilization. He made a tour of the plant. In the course of this tour he observed Ferrovecchio and Haynes not working. He determined to have them discharged and issued the order accordingly. Foreman Oehrlein confirmed a conversation with Manning on October 4, in which Manning discussed production and ordered him to get rid of any "dead heads." Manning had described Haynes to him in detail and Oehrlein said he agreed promptly that Haynes ought to be discharged because he had been wanting to get rid of him anyway. His complaint had been related to Haynes' visiting habits. According to Oehrlein, at one time he had remarked to Haynes that the only way they would get any work out of him would be to tie him to his unit. While Oehrlein admitted that at the time he discharged Haynes the latter had made a remark that in his opinion he was being discharged because of the Union, he explained his alleged rejoinder thereto as having been that ifthis was so, it was so because Haynes had not been working on his job and, ifit was the Union that was keeping him from working on his job, then it was because of the Union. On cross- examination Oehrlein denied that his criticism of Haynes' work had been attributable to the fact that Haynes had injured his hand. His criticism was related to the time following his recovery. As a matter of fact, according to Oehrlein (and I have referred indirectly to this above), he had wanted to discharge Haynes before his full recovery but timekeeper Newman had told him that he could not do so until a physician had cleared Haynes as fully recovered from his injury. In addition to talking to Oehrlein, Manning had spoken also to Superintendent Metcalf about the necessity for cutting down costs, to which Metcalf had replied that it had been his intention to discharge five people on the next day. Manning then told him that he was to make certain to include at least two people among those discharged, Ferrovecchio and Haynes, because he had seen them "goofing around." Metcalf testified that he instructed Ferrovecchio's foreman to discharge him. STEWART & STEVENSON SERVICES 757 When recalled , on direct in defense , Manning went into greater detail concerning the manner in which he arrived at the decision that Ferrovecchio and Haynes were to be discharged . After his tour of the plant and his observation of the employees , he instructed both Ferrovecchio's immediate foreman and Superintendent Metcalf to discharge Ferrovecchio and he instructed Oehrlein and Metcalf that Haynes was to be discharged. He had observed Ferrovecchio in an area where he was not supposed to be and every time he came by, Ferrovecchio jumped up, went back to his position and sought to make it appear that he had been working. He had observed this on three occasions . He had observed Haynes going into the "hen house," moving around and doing nothing but acting as though he was working when in fact he was not. It was not his practice to discipline an employee directly. This was done through the medium of an employee's supervisor. I am convinced that the decision to discharge Ferrovecchio and Haynes was made without regard to their union activity and without regard to the fact that their names had been included in the telegram sent by the Union to the Company . I am convinced also that the decision to discharge them and the instructions that they be discharged were given by Manning before he had received the Union's telegram . I believe that there was a lack of communication following the instructions to discharge these two employees because I do not believe that the Company would have been as precipitative as it appears to have been in resorting to the overt act of discharging them within hours after receipt of the union telegram on which they were listed as members of the in- plant organizing committee . Recalling my impression of Metcalf on the witness stand , I am of the opinion that, having received the order that Ferrovecchio and Haynes were to be discharged , he gave no further consideration to anything but blind obedience to it . Perhaps, if there had been more consideration , particularly of the inferences which obviously would be sought to be drawn from the fact that these two employees were named in the telegram as being on the in-plant organizing committee , there would have been no such precipitative discharges on that very day. I find no violation of Section 8(a)(3) of the Act in connection with the discharges of Ferrovecchio and Haynes. 2. The discharge of Wiley Lee Banks Wiley Lee Banks had been hired by the Respondent on February 6, 1962. He was discharged October 7, 1965. He was among those listed on the Union 's telegram of October 5, 1965, as a member of the in-plant organizing committee . He had had various jobs during the time that he was employed. These included steaming engines, driving a truck , acting as porter and handyman, and also operating a Hyster forklift. He had been driving a truck during all but his first month of employment but that was not his principal job. He seems to have been a normal type ,of employee and, according to his testimony, he was complimented frequently . I assume there was nothing outstanding about his record. On the other hand , with the exception of a 1 -dollar overcharge on an expense account, to be discussed below , there was nothing in his record to make him an unsatisfactory employee. In addition to permitting his name to be listed as a member of the in- plant organizing committee, he wore a union committee button at work and distributed union authorization cards, two of which were signed. In accordance with the practice in which Plant Manager Manning indulged with designated in-plant union committee members, on or about October 7, 1965, just after noon on that day, he approached Banks, jocularly remarked to him, "How is your little committee?" and pointed to the button . Banks replied that he could not tell him just how the committee was doing and could not talk to him about that . Manning persisted and ask him why he wanted a union in the shop . Banks answered that he did not know about everyone but, as for himself , he wanted more money. Manning then asked him why he had not come directly to him about this to which Banks replied that his foreman had been trying to get more money but was turned down . The conversation continued with Manning saying that that still was no reason why Banks could not come to talk about it . Banks replied that he had not thought it would be right to go over his foreman 's head. The meeting was concluded with Manning saying, "I went to look through your records and I might want to talk to you later on." The next event was the discharge meeting. Banks' foreman, Earl Gorhum , had been instructed to bring him out to the front office. There, in addition to Gorhum, Banks was confronted by Manning and Assistant General Manager Langham. At this meeting, Manning charged Banks with having falsified at least one gasoline receipt and either having falsified or overpaid other gasoline purchases. Except for the one receipt which involved a $1 overcharge to the company, I find that the other items discussed were of doubtful nature , not sufficiently proven or connected and, in any event , errors of calculation of insignificant amount , which in fact might not have been errors but only erroneous statements of gallonage. The overcharge was on a March 30, 1965, gasoline ticket which should have been $2.85 and which had been altered to make it $3.85. Manning then informed Banks that he was discharged both for falsification of disbursement slips and for being "just stupid or plain damn fool" if he had paid the miscalculated amounts shown on the tickets. Banks admits that the March 30 ticket with the $1 overcharge had been brought to his attention by Newman at the time that he submitted it and that when Newman demanded the refund , he paid Newman $1. The incident had been closed by Newman's receipt of this adjustment. The question presented here is extremely close because I believe that Banks did alter the gasoline receipt for the purpose of getting an additional dollar from the Respondent. This alteration was discovered promptly by Newman . Newman got the dollar back from Banks and at that point the offense was condoned . There is, however, no evidence that Manning or any official above Newman was informed of this at the time. Then in October we have this midday conversation between Manning and Banks in which Manning became aware of Banks' unhappiness at not being paid more money. Manning became concerned with Banks unhappiness and promised to examine the records and talk to him again . Manning kept this promise and examined the records . This turned out to be a boomerang. In examining them , Manning discovered the dollar overcharge and also the other charge slips which I am disregarding but upon which he relied . The only substantial difference between Manning 's testimony and that by Banks, is that Manning says that he had commenced an investigation of Banks'record some weeks 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the date of the discharge. This was brought out during his direct examination as an adverse witness. The issue presented here, apart from the inconsistency patent in Manning's testimony to the effect that he had started the investigation of Banks' record several weeks before, is: Was the lower-level condonation of the overcharge by Newman in April 1965 sufficient to wipe Banks' slate clean and render this overcharge unavailable as a reason for discharge in October? I believe it was despite Respondent's consistent emphasis on absolute honesty as an indispensable requirement of its employees. Even though Manning undertook his examination of the records in fulfillment of his promise to Banks with a view possibly to granting him a pay increase, his examination turned up the dollar overcharge and the debatable charge slips. This discovery was seized upon by him as a quick basis for getting rid of a union committee member. It is my conclusion that Manning used the stale and previously forgiven overcharge as a pretext for discharging Banks and that the elimination of one union organizer was the real motive. It is my finding that Banks was discharged because of his union activities. This discharge was in violation of Section 8(a)(3) of the Act. 3. The discharge of George Phillips The record, as far as this employee, George Phillips, is concerned, is far from satisfactory because the case in support of the charge growing out of his discharge was made by a deposition taken before a notary public and not before the Examiner. I had no opportunity to observe him for the purpose of credibility and reliability. Phillips also was listed on the Union's telegram as a member of the in-plant organizing committee. He was hired by the Respondent on September 1, 1965, and discharged October 8, 1965. In his application for employment he claimed 9 years of experience as a punch and drill press operator, a steel shearer, and a spot welder. He was assigned to a department supervised by Foreman Maddox who testified that he had worked on various jobs, all of which involved unskilled work. Phillips had been hired while Maddox was on vacation and Maddox testified that he had been dissatisfied with Phillips' work from the time of his first contacts with him. He testified that he had informed Superintendent Owen Metcalf that Phillips was not qualified but Metcalf remonstrated with him suggesting that Phillips be given more time because, according to his application, he had had 9 years of experience as a spot welder. Among the complaints which Maddox had were that Phillips was forgetful, his work had to be checked regularly, he had to be reminded frequently to get the work done right, he had no skill on a hand punch, doors and mailbox backs on which Phillips had worked were rejected because of defective work. Finally, because lower-paid men were being hired who were doing better work than Phillips was doing, he decided to terminate Phillips and did discharge him. Maddox's testimony is corroborated in several respects by Superintendent Metcalf. When Metcalf hired Phillips on September 1, he assigned him to the sheet metal department at that time under the temporary supervision of Maddox's alternate foreman, Maddox being on vacation. As soon as Maddox returned the latter complained to him that Phillips was not satisfactory on the job. Metcalf confirmed that he pointed out to Maddox that Phillips had represented that he had quite a lot of experience on the shear and press brake and that he suggested that Phillips be given more time. This did not appear to satisfy Maddox at the time. It was not long before Maddox again came to him and complained about Phillips' work. Metcalf then gave Maddox the "go ahead" authority to discharge Phillips. Assistant Superintendent John Metcalf, on cross- examination by the General Counsel, testified that Maddox had complained that Phillips was forgetful. Phillips testified generally to the effect that until the time of his discharge there had been no complaint about his work but the manner in which he gave his testimony supports in some respects the contention by Maddox that he was forgetful. He admitted also that some doors on which he had worked had been rejected because "they were spot welded wrong." He was asked during his deposition to describe the speech made by Manning following the receipt of the union's telegram but his description of that speech leaves much to be desired. Finally we come to an element which is not relied on as the reason for discharge (the reason being the unsatisfactory work heretofore mentioned) but which is relied on for the purpose of demonstrating Phillips' unreliability generally. In his application for employment, as noted before, Phillips had stated that he had had 9 years' prior experience and he named the company for which he claimed to have worked this period of 9 years. During the course of his deposition, when asked how long he had been employed by this company, he testified, "About 9 years," and insisted that he had worked for that company as stated and that he had worked for it under his true name, George Phillips. It was brought out in the hearing by uncontradicted evidence, in fact incontrovertible evidence, that Phillips had worked for that company for only 2 days, August 14 and 15, 1956, and had not worked for it at any other time. Thus, Phillips did not tell the truth either during the course of his deposition or on his application for employment as to the time of his employment with the employer named by him. Furthermore, since he did not tell the truth about that time of employment, obviously he had not acquired the 9 years of experience claimed in his application as a punch and drill press operator, a steel shearer, and a spot welder. Without that experience he very well could have been a most unsatisfactory employee. I credit Maddox and Superintendent Owen Metcalf and, despite the fact that Phillips had been on the in-plant organizing committee, had signed a union card and had tried to get about six or eight other employees to sign the organizing petition, I conclude that he was not discharged because of his union activities but because of his unsatisfactory performance as an employee. There was no violation of Section 8(a)(3) of the Act as far as he is concerned. 4. The discharge of Joe M. Rios Joe Rios started working for Respondent on August 31, 1965. He was discharged about a month and a half later, October 19, 1965. He testified that he had been hired by Superintendent Owen Metcalf and was assigned as a mechanic's helper to John Metcalf's department under the supervision of Foreman Witt. He was not told that the job was a temporary job. He attended a union meeting in September 1965 and signed a union card on September 28. He testified about two meetings. At the first, six people were present, five employees and Union Organizer Harrison. At the second, October 4, he signed the STEWART & STEVENSON SERVICES 759 document which authorized the disclosure of his name to the Respondent as a member of the in-plant organizing committee. He attended the Manning October 5 meeting at which his name was read aloud as one of those who had been designated as in-plant organizers. He wore a union committee button during work hours. He testified about an occasion when, during a gathering of employees, Milton Gwosdz (whom I have found elsewhere to be an alternate supervisor) had singled him out with the remark that he was wearing a union button and that, after pointing to another employee, Benny Gonzales, also wearing the button had said, "If I had one, I would stick it up your ...." Milton Gwosdz also is alleged to have made the remark that he would be glad when they were rid of all the "damn Mexicans." Rios gave the usual testimony about good relations with his supervisor, that there were no warnings, reprimands, or complaints about the way he was doing his work and that on one occasion Foreman Witt had told him he was doing good work. Just before quitting time on October 19, Assistant Superintendent John Metcalf told him he wanted to see him before he stopped working. Shortly after that Metcalf told him, "I am sorry Joe, I have to let you go." In response to Rios' question as to why he was being discharged, Metcalf is alleged to have stated that he did not know the reason. It was brought out on cross-examination that Rios was not a mechanic and the fact that he had had prior experience as a mechanic had been put on his application in error by his sister-in-law who had helped him prepare it. He admitted he was not capable of doing internal mechanical work on engines but that all the other mechanics in that department were able to do the whole job. He admitted that he borrowed tools from various employees. He agreed that Assistant Superintendent John Metcalf frequently came to his department but denied that he had seen Plant Manager Manning there. His pay had been about $81 a week. Respondent's justification for discharging Rios is that he was limited in his capacities, he was not an engine mechanic, he had not equipped himself with the necessary hand tools, and frequently borrowed tools from other employees. The department in which he had been employed required the services of a mechanic. Rios was replaced by a new employee who fully satisfied the requirements of the job. Superintendent Owen Metcalf testified that he hired Rios as a mechanic and that Rios was discharged because he was not able to do the mechanical work for which he had been hired-he was not qualified to get into the internal part of an engine. Rios was discharged on Foreman Witt's recommendation. The latter complained that he was not able to do the work it had been assumed he could do when hired. Foreman Witt testified that Rios had been one of seven people in his department. He was not qualified as a mechanic and was not capable of doing a mechanic's work such as internal engine work, fine tuneup, or troubleshooting. Witt became dissatisfied with Rios about a week or 10 days after he was hired. Rios was retained the remaining few weeks only because of the heavy workload at the time and any help that he was able to give was welcomed. Following the discharge of Rios, a replacement was hired. This replacement had done the same kind of work for several companies for about 15 or 16 years and has all the abilities necessary for doing the work required in Witt's department. The new employee has a complete set of tools. Rios had only a few and had to borrow tools from other mechanics, who complained about the borrowing because it interfered with their efficiency. (It was brought out on cross-examination that even the replacement on occasion borrows tools from other men in the shop and others also sometimes borrow tools.) It is Witt's testimony that when his department arrived at the point where it did not require a helper, since Rios was not capable of doing the internal work and the tuneup work and had insufficient tools, it was decided to discharge him. The General Counsel points to testimony given by Assistant Superintendent John Metcalf to the effect that Rios did pretty good work but reference to the record discloses that this was an appraisal of Rios' ability as a mechanic's helper and not as a mechanic. John Metcalf confirmed that Rios was not competent to do internal work on a diesel engine. He asserted that no full-fledged mechanic is unable to do internal work on diesel engines. While he referred to a conversation with Plant Manager Manning in which Manning had commented about Rios' hesitancy in his work, he said that Manning gave him no instructions concerning Rios. He brought out, however, the recurring theme that Manning had been insistent that "dead heads and dead wood be eliminated." He denied that the termination interview included a remark that he did not know the reason for Rios' discharge. He said that Rios did not ask him why he was being discharged and that all he said to Rios was that he was "sorry" that Rios was being discharged. He confirmed that there had been complaints about Rios to the effect that he had helped himself to other people's tools and he named four different employees who had complained. As fai as Rios is concerned, we have his own admission that he was not a fully qualified mechanic. We have also his admission that he had been hired by the Respondent on the basis of an application in which his prior experience had been listed as "mechanic." Opposed to this we have the testimony of three supervisors who confirm that he was not a qualified mechanic and was unable to do internal work and fine tuneup on a diesel engine. We have, in addition, testimony that he was retained in Witt's department even after his lack of qualifications became apparent because of the need for his services to the extent of his ability. With all this, his total tenure was only a month and a half. We have also Witt's testimony that, when he was finally able to dispense with Rios' inadequate performance, he did so and he has since replaced him with a full-fledged mechanic who is competent to do all the work required in that job category. On the basis of all the testimony, and giving due consideration to the fact that the Respondent was and is aggressively antiunion, did mention Rios in the Manning speech as one of the in-plant organizing committee members, and probably knew of his organizing activity and attendance at the meeting because he wore the committee member's button, and because of the overwhelming opposition to the Union among its employees, I find nevertheless that the General Counsel had not sustained his burden of proof to establish by substantial evidence of probative value that Rios in fact was discharged because of his union activity. Consequently, I am unable to make a finding that he was discharged in violation of Section 8(a)(3) of the Act. 5. The discharge of Domingo H. Reyes Domingo Reyes was a veteran employee of the Respondent, having been hired June 5, 1962. He was 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged October 25, 1965. During the time of his employment he was assigned to the paint department. A very close friendship was generated between him and his supervisor, Jesse Lopez. An employee , Sanchez, testified that Lopez' alternate or night foreman had told him that Lopez had remarked to the night foreman that Reyes had been discharged because he had "signed for the Union." The best that I can make out of Lopez ' testimony is that his reason for discharging Reyes was that Reyes was his good friend ! Reyes had been hired originally at $67.50 a week. He had received increases from time to time so that at the time that he was discharged he was earning $1.82 an hour. He signed a union card on October 12, 1965, but did not talk to other employees about joining the Union. He testified that at one time Lopez asked him whether he knew that there was an effort to organize a union in the plant, to which he replied that he did not but that he admitted to Lopez that he had seen employees wearing union buttons . At another time in his testimony , he said he admitted to Lopez that he had signed a union card. He testified that he was discharged suddenly on October 25, 1965, a little before 5 o 'clock, by Lopez who told him that he was being "let go" because of two letters that he was supposed to have written concerning the Union and that he was creating disturbances in the plant . The record is unclear as to what these two letters were supposed to be except that one was supposed to be for Supervisor Joe Manning and the other for the Union , and that their purpose might have been to get Lopez discharged. It developed however, that prior to the discharge, because of Reyes' friendship with Lopez, some employees had asked him to intervene with Lopez to present certain grievances on their behalf. Reyes agreed to do so and told Lopez that he had been requested to have a meeting with him for that purpose. Lopez confirmed that Reyes had requested a meeting with him to discuss grievances on behalf of some of the employees and that Reyes had stated specifically that it was "not a union meeting." The meeting was arranged for Monday , October 25. In the meantime Lopez undertook to have a talk over the weekend with each of the men who had been working for him and he satisfied all but two. Following Lopez' weekend missionary work with the other employees Reyes informed him that the meeting as planned originally had been called off because the men "chickened out" but that he wanted the meeting for himself, to air certain of his own complaints . These were that the men were working too many hours and that they were not getting advance notice of when nighttime work would be required of them so that they could bring their lunches with them . He complained also that the men were being referred to as "Jesse's slaves" and that they did not like to be whistled to and waved at. Lopez testified also that Reyes complained that he wanted to go back to work on the grinding machine but Lopez objected to this because he felt that Reyes ought to be working on easier work because of his recent illness . Reyes also aired another complaint which proved to be groundless-to the effect that following an eye operation Reyes had been told to take some time off but had not been paid for it. Lopez ascertained that this was not so and that Reyes had been paid for the time involved and this disappointed Lopez because he had hoped to be able to get Reyes a correction of such an injustice. Lopez denied ever asking Reyes whether he had joined the Union and asserted that the only time the Union came up in a conversation between them was when Reyes had asked for the meeting with the express caveat that he did not want the Union . His explanation for discharging Reyes is that he did not want him to get hurt so he fired him. His precise testimony is, "Well , I wasn't very happy with it, and I was sure of him , that he wasn 't satisfied where he was, and he wasn't happy and I figured if he stayed , I don't know about our friendship , but I thought it was pretty good, and I didn 't want to get hurt , I didn't want him to get hurt , so I thought he would be better off somewhere else, and I think that that would help me some if I got rid of him." Assuming, as the General Counsel seems almost to concede, that there was not sufficient evidence of probative value to make a finding that Reyes was discharged because of his activity in behalf of the Union, except for the unsupported Sanchez testimony that Mario Segura had told him that Reyes was fired because he joined the Union, I am convinced by the evidence, particularly by that given by Lopez himself, that Lopez discharged Reyes because he was annoyed or angered by Reyes' intervention with him on behalf of himself and the other employees who had complained about working conditions in the paint shop . It does not seem open to question that some employees were dissatisfied with their working conditions and that they had requested Reyes to intervene on their behalf with Lopez . Lopez himself admits that he went directly to them to iron out those differences and, as a consequence, the Monday, October 25, meeting was not held as originally planned. Lopez admits also that Reyes , even after the other employees had "chickened out," persisted in discussing the grievances personally with him . Lopez referred to Reyes' activities with respect to the grievances by saying to Reyes in the termination meeting, during which they had assured each other of their friendship, "you are dissatisfied here. I won 't be happy with you here no more. I thought we were good friends." Lopez also admitted that he did not like the fact that Reyes "brought out these complaints" of the other employees and that he came to the conclusion that Reyes was dissatisfied in his job because "Reyes was going around talking to the other men, asking about their complaints and wanting to raise these complaints ...." I agree with the General Counsel that there should be a finding and I do find that the Respondent , through Lopez, did discharge Reyes because Reyes had engaged in concerted activities for mutual aid or protection and that to this extent Respondent violated Section 8(a)(1) of the Act. 6. The discharge of Benny V. Gonzales Benny Gonzales was hired by Respondent on May 17, 1965, and discharged October 25, 1965. Although assigned originally to the fabricating department as a mechanic's helper in the assembling of diesel engines, he soon was transferred to welding work under Foreman Ed Gwosdz. He seems to have been a satisfactory employee and apparently adapted himself quickly to different operations . On those occasions when he was required to engage in a new operation , it was a practice of his supervisor to outline, designate , or teach him the mechanics involved and to assist him. Although his first effort might have been slow, once he learned an operation he was able to do the work efficiently and satisfactorily. He learned first about the union organization effort in a conversation with another employee, Jesse Torres, still in STEWART & STEVENSON SERVICES 761 the Company's employ. He attended two organizing meetings, signed a card at the first meeting, and joined the in-plant organizing committee at the second . He engaged in distribution of union literature, spoke to at least 10 or 15 employees about joining the Union, and also wore a union button at work. When Plant Manager Manning held the meeting at which the union's telegram was read , Gonzales was working on an off-shore job. Consequently, he did not attend that meeting. He returned to the plant on Thursday, October 7. That morning, as he approached a little gathering at which both employees and supervisors were present (the same one to which Rios had testified), Milton Gwosdz pointed to the fact that he, as well as others, was wearing a union button and remarked that the buttons were going to get them all fired. He also testified that Milton Gwosdz made the remark that if he had one of those buttons, "he would stick it up ...." At the conclusion of this gathering, when the whistle blew for work to start, Gonzales' foreman, Ed Gwosdz turned to him and said, "I didn't think you would stab me in the back." From that time on Gonzales was subject to hazing of one sort or another. He was not given the same assistance and instruction he had been given before and there was petty faultfinding with him. He became convinced that he was persona non grata. As a consequence he separated himself from the groups with which he had previously associated and had his coffeebreak or ate his lunch only with his friend, Torres. At the end of the week preceding October 25, 1965, he was in a dejected mood and resolved to absent himself from work for a few days. He did not go to work on October 25 and 26 and on October 27 went to the plant to get his paycheck. He did, however, request his nephew, Gilbert Gonzales, to telephone the Company that he would be absent. Gilbert did telephone on Monday morning and he asked for an office employee, Yates, but was told that Yates was tied up. He called again a half hour later and again was unable to talk to Yates. He did, however, request the woman who answered the telephone to inform Yates that Gonzales could not come to work on that day. Again, on the following day, Tuesday, he spoke to timeclerk Newman and informed him that Benny Gonzales was unable to come to work. The excuse he gave Newman was not true but its untruthfulness has no bearing on the issues involved in this proceeding. The Respondent wasted no time on Monday, October 25, the first day of Gonzales' absence, to discharge him. Its explanation for this hasty action is that some inquiries were made but nobody asked was able to say why he was absent. Orders were given for the plant guard to go to Gonzales' locker and remove from it all company property. This is the usual practice when an employee is discharged or leaves the Company's employ. The termination slip shows that Gonzales was terminated October 25, and the reason, "Visits too m.ich, failure to call in when not reporting for work." Torres corroborated Gonzales to the effect that subsequent to the beginning of the organization campaign, Foreman Ed Gwosdz' former attitude of helpfulness changed, he became less helpful and more critical. This change was noticeable in the case of Benny Gonzales. He testified also to the undenied fact that Gonzales' locker had been cleared of company property on Monday, October 25. Supervisor Raymond confirms that Gonzales had been singled out in the gathering mentioned above as an employee of whom the Company was to be wary because he was wearing a union button or badge. He confirms also that Gonzales had been told that if he wanted to work in a union shop, he ought to go to such a shop for a job and that, when he remonstrated that the union shop would not hire Mexicans, he was told he ought to be thankful that Respondent gave him, a Mexican, a job. Foreman Ed Gwosdz testified that he had had to complain to Gonzales about both his work and his wanderings to other parts of the plant. He admitted he saw Gonzales wearing the union button on Thursday, October 7, when he returned to work from the off-shore job. Although Gwosdz admitted that he made the remark, "I didn't think you would stab me in the back," he said he said so because he felt that Benny Gonzales was letting him down after he had done a lot of favors for him. I believe (as found before) that the remark actually was made, that it was made at just about the time that attention had been directed to the fact that Benny was wearing the union button and that it was made because he was wearing that button. Although Gwosdz denied that he treated Benny differently after the button incident that he had before, I credit Gonzales and Torres who testified to the contrary. His explanation for the discharge was that he had checked around with various officials when Gonzales did not appear for work on the morning of October 25, and that nobody had heard from the latter Having previously warned the employees about the importance of reporting in when they could not come to work, the decision was made to discharge Gonzales. Although reference to Gonzales' alleged poor work performance and visiting habits is woven into the discharge, Respondent's primary reason for it is connected directly to the fact that he had been absent from work without reporting on the 25th. During the course of the hearing, Respondent offered a notice posted for factory employees expressing a desire that employees unable to report for work on time telephone timekeeper Newman, who in turn would notify their foreman. In emergency situations , the notice continued , employees were asked to call a foreman, guard, Superintendent Owen Metcalf, or "someone that will be sure that the message arrives ." To the extent that Respondent relies on this notice as justification for the discharge, I conclude that it does not serve that purpose. Respondent was unable to fix the time when it was posted and moreover its wording appears to be more precatory than mandatory. In any event, I credit Gonzales and his nephew that the absence was called in to the Company on Monday morning and again on Tuesday. I am not convinced that Yates should be divorced from other personnel as a person with whom a message about absence ought to be left. Gonzales' nephew tried to but did not speak to him. He did speak to a woman in the office where both Yates and Newman were employed. If he had tried to speak to Newman but had left the message with the same woman there would have been substantial compliance with the posted rule. As far as Foreman Gwosdz' connection with the Gonzales discharge is concerned, his testimony was open to serious question and I discredit the same. For example following his admission that he had made the remark to Gonzales about having been stabbed in the back and his attempted explanation of it as being related to Gonzales' work performance and attitude as distinguished from his union activity , I asked him whether he felt hurt because Gonzales was wearing the union button and he answered, "No, sir, not especially. I didn't know it was a union button ." It is beyond belief 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Gwosdz did not recognize the button as a union button-particularly after all the remarks which had been made about it. On the basis of all the evidence and the other factors mentioned , I am convinced and find that Gwosdz was seeking a situation to which he might point as a reason for discharging Gonzales and that this presented itself when Gonzales was absent from work on October 25. The decision to discharge Gonzales was made without concern or consideration as to what might have been his reason for absence. Absence alone was the decisive factor, this despite the Respondent 's assertion that it was not inflexible in the enforcement of rules. It presented an ostensible reason for discharge when the true reasons were attributable to Gonzales' union activities and Respondent's objective to discourage membership in the Union. This discharge was in violation of Section 8(a)(3) of the Act. 7. The discharge of Jack T. Thornton Jack T. Thornton was in the Respondent's employ for more than 5 years-from August 13, 1960, until November 8, 1965, the date of his discharge. During all that time he worked in the parts department which was concerned with the filling of orders for parts both over the counter and otherwise and involved, in addition, with some recordkeeping. During all the time that he worked there he had received only one increase in pay, on November 12, 1961, from a starting salary of $85 a week to $88. Plant Manager Manning admits that he knew prior to Thornton's termination (which was a forced resignation) that Thornton had signed a union authorization card but disclaimed knowledge of how he came to get this information. It developed later that Venteciola, a minor supervisor in the parts department, had admitted to Manning that he had been passing out union cards and that he had passed one to Thornton. Incidentally, Venteciola, who had been called by the General Counsel, testified that Thornton had told him that he had made several mistakes and that their supervisor, Bill McWhirter, "had gotten on to him" about those mistakes. He testified also that Thornton's request for a pay increase had been denied because he had not proven himself to be a good parts man and had shown no aptitude for learning. Thornton admitted that he had made mistakes while working and that these had been called to his attention by McWhirter. He claimed that on various occasions he had been complimented on his work and that he had never been reprimanded or warned by the Company in writing. This is inconsistent, of course, with his admission about his mistakes and his later admission that he had been threatened with discharge prior to dismissal He sought to link his discharge directly to his union activity by testimony that the day after Venteciola told him of his conversation with Manning and McWhirter about union activity and warned him that he would be called in about it, he was called to McWhirter's office and told he would be discharged unless he resigned. He highlighted, as part of the discharge conversation, an accusation by McWhirter that he had miscoded an invoice. (Miscoding of an invoice is an inscription on an invoice assigning credit for the sale to one sales office when another sales office actually made the sale or was entitled to credit for it. Such a miscoding causes trouble for the Company because it may result in the erroneous payment of a commission to one sales office and the failure to pay it to another.) While admitting that during the terminal conversation McWhirter said nothing to him about union organization or the handing out of union literature, he asserted that he was lectured about loyalty to the Company and asked whether he was loyal and whether he was a company man-to both of which he answered in the affirmative. He admitted that the only increase in wages he received was in 1961, 4 years before his discharge and that when he asked for an increase about a month or 6 weeks before his discharge, McWhirter told him that he was not pleased with his work. He admitted also that McWhirter at that time suggested to him that he ought to look for another job and that if he wanted to do so, he would be permitted to take time off for the purpose. He admitted also that he had discussed with other employees the fact that he was going to leave Respondent's employ. The union card which Thornton signed is dated October 24, only 2 weeks before his discharge, but his own testimony places various conversations about his unsatisfactory work at times prior thereto The first knowledge of his union activity brought home to the Company seems to have been during the week of November 1, 1965, and seems to have been minimal in that it was only to the effect that a card had been "passed" to him. On the basis of Thornton's own testimony, he was as marginal an employee as one could find, actually did make mistakes in coding invoices, and was given clear warning that he risked discharge unless he found other employment on his own On the other hand Thornton's main work was in a department where he was not required to code invoices and he was used on isolated occasions only, mainly Saturdays, on the counter where coding was required. The Company had put up with his marginal work for more than 5 years. Although his supervisor clearly made known his dissatisfaction with him prior to the time that knowledge of his having received a union card came to his attention, he was forced to resign shortly thereafter. The argument therefore could be made that the actual motivation for the discharge, when it finally came, was the fact that Thornton had joined the Union and that its purpose was to discourage membership. I am not, however, persuaded by the evidence viewed in its entirety that this actually was the fact. My conviction is not weakened even though Respondent, after being given the opportunity to produce more evidences of miscoding than it actually did produce, was unable to do so. First, the miscoding alone was not the reason for discharge-the overall poor performance of this employee was, and second, I accept Respondent's explanation that miscodings, once corrected, are difficult to find. Opposed to Thornton's testimony, we have testimony by McWhirter, the general parts manager, whom I credit. In addition to testifying with respect to certain factors which I have mentioned before, McWhirter referred also to the incident which occurred about 4 or 5 weeks before Thornton's discharge. Thornton had requested an increase in pay and McWhirter recited to him various deficiencies as his reason for not giving him the increase. He reminded him that he had made a great number of errors, suggested that he ought to be looking for another job, told him to go ahead and look for another job, and told him also that he would not be "docked" for the time that he took off for that purpose. Although Thornton indicated at the time that he would think it over and might do that, Thornton never did. The practice in McWhirter's department is that employees do receive increases in pay every year or more often but STEWART & STEVENSON SERVICES 763 Thornton, over his 5 years of employment, had received only one $3 increase. McWhirter testified that he had confronted him with at least two or three invoices which had been coded improperly and that Thornton had agreed that they had been so miscoded. McWhirter testified also that Thornton had shipped wrong parts to customers. He said that at the time of the terminal conversation, he had reminded Thornton that he had suggested that Thornton ought to look for another job and told him that the best way to handle the situation was for Thornton merely to resign so that he could give him a recommendation and not mar his record. The discharge actually was precipitated because of the manner in which Thornton reacted to McWhirter's criticism. There was a time during these discharge events that McWhirter had misgivings because he had been told that Thornton had received a union card. However, it was decided after consultation that this was not to be a factor and the discharge was consummated. As in the case of Joe Rios, I am not convinced that the General Counsel has sustained his burden of proof to establish by substantial evidence of probative value that Thornton was discharged because of his union activity or for the purpose of discouraging membership in the Union. On the contrary, I am persuaded, even more than in the case of Rios, that Thornton was a thoroughly unsatisfactory employee and that he was discharged finally because of his belligerence and continued failure to look for other employment as an alternative to discharge. Respondent did not discharge Thornton in violation of Section 8(a)(3) of the Act. 8. The discharge of James Novak James Novak was hired by Respondent on July 13, 1965, and was discharged November 9, 1965. He was among those named on the Union's October 5 telegram as being a member of the in-plant organizing committee. He was an assembly mechanic in Supervisor Owen Metcalf's department. His immediate supervisor at first was Foreman Jim Brame under whom he worked as assembly man and at the time of his discharge he had been working in a division supervised by Foreman Oehrlein. It will be recalled that he was one of the persons with whom Plant Manager Manning had meetings or conferences discussed at length in the independent 8(a)(1) portion of this Decision. I shall not repeat what was said before in this respect. During the week prior to his discharge he had been working in Oehrlein's division installing oil pans, generators, oil filter tops, and air breather units. This work involved one of the Government contracts. The first hint he had that there might be any slackening of work was a remark by Oehrlein on the morning of his discharge to the effect that if the work continued in the manner in which it had been going, "we may all have to go home." At the end of that day Oehrlein discharged him with the remark, "seems like there is a lack of work around the shop." Although, according to the record, Novak's entire period of employment was just short of 4 months, he testified that he had seniority over at least 3 or 4 of the 15 people working in the Oehrlein unit at the time of his discharge. Contrary to his testimony on direct, on cross-examination he admitted that he had been doing odd jobs for about 2 days before he was discharged and that he had heard a rumor that there was a shortage of cowling material. I was not at all impressed by the manner in which he tried to minimize the importance of the cowling shortage. He grudgingly volunteered that there had been cowling work contracted out and it was probably coming in a little slower than before when they were doing their own cowling work. This had slowed up the cowling somewhat. It has been conclusively demonstrated that the subcontractor had stopped all deliveries of cowling beginning with October 27, 1965, and that the only delivery it made before November 18 was one front on November 15. On cross- examination Novak's affirmative testimony that he was senior to at least three or four other employees in the department was laid open to serious doubt. There is an incident in the record where my own doubts as to this witness' veracity prompted me to interrogate him closely. Mike Oehrlein testified concerning Novak's discharge. He brought out that in October 1965 he had about 35 or 40 men working for him but that by November this was cut down to about 20 or 22 and that at the time he gave his testimony he had only 19 or 20 in his department. He testified also that the problem arising from the failure to deliver the cowlings was called to the attention of the men prior to Novak's discharge and he admitted that at the time he discharged Novak he probably told him that he hated to do so. On cross-examination, it was brought out that despite the fact the cowling deliveries were not being made, production still remained a problem. This, however, was countered by him when he pointed out that Plant Manager Manning had been complaining that costs were running very high and that the Company had to get rid of "dead heads." It was brought out also that part of the cutback in Oehrlein's division was attributable to the fact that a crew supervised by Foreman Brame previously had been transferred to his department but had been retransferred out. This accounted in part for the sharp reduction from 35 or 40 to about 20 or 22 men. Although it was brought out also that Oehrlein's department, just prior to Novak's discharge, had been working 9 hours every day of a 5-day week and that his crew was paid on an hourly basis, I cannot say that this refutes the contention that Novak was released because of the failure of cowling deliveries. Cowling was only the last of many operations performed in Oehrlein's department. The photographs in evidence show that while much work could be done in the course of making a unit, it was not complete until three cowling elements, a front, center, and rear, were available for installation. These were the elements not being delivered by the subcontractor. While Oehrlein's testimony about his lack of familiarity with union buttons is not free from doubt, I believe that his overall testimony with respect to the problems with which his department was confronted because of the failure of cowling deliveries is credible. Together with the other evidence of the concern which the Company had with rising costs, it tends to support the position that the true reason for discharging Novak was lack of work for him. Superintendent Owen Metcalf confirms that Novak was discharged for lack of work. He testified about a conversation with Oehrlein concerning the failure of deliveries and the necessity for a reduction in force. A number of people were discussed and Oehrlein told him that Novak was the poorest overall. As Metcalf put it, the cutback was directed against the person who was "least good for the money we are spending." Despite the fact that Novak was on the in-plant organizing committee and that he was a participant in the alleged 8(a)(1) conversations conducted by Plant Manager Manning, I am unable to find that his discharge was attributable to his union activities. It is quite clear to me that there was a period, at the time of Novak's discharge, that Oehrlein's department had to cut down on 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment. I credit the testimony, particularly Owen Metcalf's and also that of Oehrlein, to the extent that Respondent's reason for discharging Novak was that there was insufficient work to justify retaining him on the payroll. Respondent did not discharge Novak in violation of Section 8(a)(3) of the Act. 9. The discharge of David Horn David Horn, usually referred to during the hearing as Danny, was chairman of the in-plant organizing committee. He was the employee who testified at greatest length and about whose discharge there was probably more testimony than that about any other. Despite the volume of testimony concerned with him I find it necessary to devote little time in this Decision to his discharge. His activity in support of the Union was well known to the Respondent. To put it mildly he probably stood out like a sore thumb among the employees. He was hired in September 1963. He started as a welder at $1.65 an hour and worked in numerous capacities on the press brake, the roll, the punch press, the gang punch, welding, spot welding, and drill press but most of his time was spent on the steel shear. He was discharged on November 9, 1965. During the time that he worked for the Company, his work appears to have been generally satisfactory. In fact he devised an improvement to facilitate working on the shear. For this he was commended in writing after a top- level appraisal. He was given an increase of 15 cents an hour with the comment, " He thinks' per Mr. R. Stewart." (R. Stewart (Ross Stewart) appears to be the top executive of all the Stewart & Stevenson companies.) Although Horn's foreman, Maddox, sought to belittle the improvement and testified that the increase was given only on Stewart's insistence, the personnel record shows that he also recommended the increase on the ground that "from this effort I shall be able to turn out some extra work:" The alleged reason for discharging Horn is that because of the decrease in work and the closing down of the night shift it was decided to prefer one Galicia who had been working on the night shift and to lay off Horn so that Galicia could be kept on the job. Although there was some curtailment of work, Respondent always had plenty of work and plenty of backlog. Its overall manpower hour records do not show any significant dropping off beginning or following the time when Horn was discharged. If anything, they show an increase . Considering Horn's versatility, his recognized outstanding performance, the variety of his experience on jobs other than the shear in Respondent's plant and not overlooking the repeated assurances by management (generally to all employees and personally to Horn) that employment at Stewart & Stevenson was steady and not temporary, I am wholly unable to accept Respondent's effort to justify this discharge to make way for Galicia solely on the basis that Galicia was more versatile. Even if I were to credit the claim that Galicia was more versatile than Horn, Horn also was versatile and had demonstrated his outstanding desirability as an employee. This almost, if not actually, precipitated a dispute between Ross Stewart and other management officials. Opposed to Respondent's contention, we have its very real awareness of Horn's activities on behalf of the Union and the persistent and lengthy endeavors of Plant Manager Manning to win him over as a "company man." Despite all Manning's efforts, some of which I have found to be independent 8(a)(1) conduct, Horn was not persuaded and did not abandon his union activity. Viewing all the factors in their entirety, I cannot come to any conclusion other than that Horn was not discharged solely because Galicia was a preferred employee but that he was discharged because of his union activities and for the express purpose of discouraging membership in the Union. This was a violation of Section 8(a)(3) of the Act. 10. The discharge of Louis Ray Boudreaux Louis Ray Boudreaux was hired originally on February 19, 1957, and was employed intermittently prior to his last employment on May 24, 1965. When he was rehired in May 1965, his starting rate was $2.70 an hour but, considering the lapse of 8 years and the changed economic conditions, it can hardly be said, as argued by the General Counsel, that this was a substantial increase in wages from the $2 an hour which he was paid in 1957. He was discharged on November 19, 1965. He was one of the employees whose name had been set forth on the Union's October 5 telegram as a member of the in-plant organizing committee and he wore the union committee button to work. He testified that he talked to more than 30 employees about the Union and passed out more than 25 union authorization cards. His primary trade was carpentry. During some of the time intervals when he was not employed by Respondent, he worked as a contractor and also did subcontract carpentry work for the Respondent. When he was rehired in May 1965 he understood that he was getting a temporary job. He started working in the electric shop and, after about 6 weeks or 2 months, he was transferred to the Government assembly division under Foreman Mike Oehrlein. In Oehrlein's department his work was concerned with cowling on the McClellan Air Force diesel engine generator job. Two days after the Union had sent its telegram , Oehrlein transferred him to Foreman Brame for work involving the breaking down of old Greyhound bus engines which were being reconstructed for double-deck bus purposes. This assignment lasted about a week and a half and he says he was told by Brame that he had done good work and that Brame would like to have him permanently. At the end of a week and a half, he was returned to Oehrlein's department and again engaged in cowling work. During one of the meetings which Manning conducted with the employees, he was reminded by Manning that he was not considered a regular employee. This is consistent with Boudreaux's own testimony as to the nature of his hiring in May. It will be recalled also that at this meeting other alleged 8(a)(1) remarks were made to Boudreaux and it will be recalled as well that on one occasion when Boudreaux had passed Owen Metcalf without greeting him, Metcalf had become hurt and had asked him why he had passed him by in that manner. It was in this conversation that Metcalf is alleged to have asked him what he was trying to do to the Company and whether he wanted a better job. Although Boudreaux was a carpenter by trade, his work under Foreman Oehrlein was to wash down units that had been cowled. At about 3:45 on November 19, according to Boudreaux, Oehrlein presented both him and Tom Sierra, another employee, their checks with the remark that they were being laid off "because of work," that the orders had come from higher up and that he hated to do it. Boudreaux STEWART & STEVENSON SERVICES 765 testified, as others had, that in his opinion there was plenty of work. In fact he said that "on that particular contract we still had about, oh, forty-five or fifty [units] I am sure of." It appears that although Tom Sierra was discharged at the same time that Boudreaux was discharged, he was rehired the following Monday, the reason for his rehiring having been his personal situation. It was brought out clearly that Boudreaux's only real skill was carpentry work and that he knew little about welding or electrical work. He was not a sheetmetal worker and he was not a painter. He admitted that his work in the assembly department was concerned with putting cowling, side panels, doors, top hood, radiator caps, back doors, etc., on the diesel units. At one time, he engaged in cutting hoses and putting fittings on them and at another time he was a helper in connection with putting heaters and various other attachments on the base of the unit. He admitted that his division ran out of center cowling for about 3 or 4 days in the latter part of October and again had run out of cowling before he was laid off, AmBox being behind in its delivery schedules. During the time when cowlings were not being delivered, he and other employees were concerned only with cleaning engines. He remembered an occasion when Mr. Stewart (the top official mentioned above) passed while they were just "standing around." He admitted also that immediately after this incident Superintendent Metcalf complained to him and others with the inquiry whether they did not have enough work to do and the additional remark that the employees would have to be spread out because there were too many of them in one place. He denied that Plant Manager Manning had ever made any remarks about his work except to belittle its nature. I have referred elsewhere to my doubt about Boudreaux's credibility in general but the admissions noted which were drawn from him during cross-examination support Respondent's evidence in opposition to the claim that he was wrongfully discharged. These admissions are even more notable because of his continual hedging and evasive answers during the course of his cross-examination. Foreman Oehrlein was Respondent's main witness in defense of this charge. He testified that at the time when Boudreaux was laid off Respondent had caught up with its production of finished units, no new cowlings were coming in, and Boudreaux and others were being kept busy washing down units which had been finished. They had collected dust which had to be cleaned up before the Government inspector would take them. This lack of cowlings was real. Between October 27 and November 18, only 1 front and 6 rears had been delivered and between that time and the time of the discharge only 19 fronts, 20 rears, and 23 centers had been delivered. Oehrlein terminated both Boudreaux and Sierra on Metcalf's instructions. He admitted that he expressed regret that he had to do so because he "hates to lay anyone off." He added to Boudreaux's version of the termination that he had told him that Stewart, who had caught the men loafing, got after Metcalf for this and that Metcalf then decided on the discharge. He added, which is consistent with Boudreaux's admission of the work situation, that he had told all the men under him that if they did not get some cowling or bases they would all have to go fishing. Although Oehrlein was forced to admit that Boudreaux was not the only one who would stand around and talk when he was supposed to be working and that his department, despite the shortage of cowling, was confronted with the problem of getting as much production as possible, he explained that this involved a general cost problem and that Plant Manager Manning's instructions had been to get rid of "dead heads." Superintendent Owen Metcalf testified as to his part in the Boudreaux discharge. He decided that Boudreaux would have to be discharged for loafing on the job because of complaints made against him by Ross Stewart who went so far as to take him by the arm and actually point to Boudreaux loafing. Metcalf said he promised Stewart he would take care of it. He testified to the effect that, following Stewart's observation, he had come back to the men and told them there were too many on the job and that he would have to let two of them go. (This is at variance with Boudreaux's testimony that his remark was that the men would have to be spread out.) A particular group in which Boudreaux was working consisted of three men. There was sufficient work only for one and one (Mahler) was retained. He explained the fact that Sierra, who had been discharged at the same time that Boudreaux was discharged, was rehired by testifying that the Company recognized Sierra's plea that he was a new man, that he had quit another job to go to work for Stewart & Stevenson and that he had been doing only what the older employees around him were doing. Sierra apparently was able to satisfy Stewart of the justice of his position and he was ordered reinstated by Stewart. Metcalf was brought around to the incident when Boudreaux had passed him without greeting him. He said he asked Boudreaux at that time what was bothering him and Boudreaux complained about the fact that he had been shifted constantly from one job to another and also that he had been laid off on so many prior occasions. Metcalf testified that he explained to Boudreaux at that time that Boudreaux's primary work was carpentry, that he was -hired for carpentry work and that when carpentry was not available, he had to be laid off or transferred. Boudreaux remarked that he just did not want that to happen again and that he had nothing against Metcalf personally. I was impressed with Owen Metcalf's reliability and credibility as a witness upon this phase of the case. It is clear that Boudreaux was a carpenter by trade and that Respondent's main work involved the metal trades. When Respondent required wooden crates or bases, it subcontracted that work. As a matter of fact, during one of Boudreaux's intermittent periods of layoff, he was one of those subcontractors. Boudreaux was hired at the very beginning of Respondent's build-up of personnel in connection with the enlarged Government business. During his last period of hire he was shifted from job to job and never did any skilled work. While Respondent had actual notice of his union activities, I do not credit his testimony seeking to establish discriminatory attitudes against him because of those activities. For more than a month and a half after receipt of the union's telegram advising Respondent that Boudreaux was a member of the in-plant organizing committee Boudreaux was retained on the payroll. There is no doubt that cowlings were not being delivered except in isolated minor quantities for at least three weeks prior to his discharge. The evidence convinces me that Boudreaux was not discharged because of his activities on behalf of the Union or for the purpose of discouraging membership in the Union. I am satisfied and find that he was discharged because there was insufficient work to justify his retention and that he and others had been standing around, not working. However the evidence may be viewed, the General Counsel has not established 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by a preponderance of the evidence that Boudreaux was discharged because of his union activities. I find and conclude that the Respondent did not violate Section 8(a)(3) of the Act when it discharged him. 11. The discharge of John Morrissey John Morrissey was hired October 21, 1965, more than 2 weeks after the Union sent its October 5 telegram to Respondent. He was not disclosed to the Respondent as a member of the in -plant organizing committee. Seven weeks after hiring he was discharged, December 6, 1965. According to the personnel record, he was hired as a temporary employee at $2.25 an hour and transferred from department to department only to be terminated because of "not satisfactory work." Morrissey testified that an employment agency had informed him that Respondent was hiring welders. After applying for the job, he was referred to Foreman Ed Gwosdz for a welding test. Gwosdz cleared him for hiring. He had a background of 17 years of experience doing arc welding, acetylene welding, stainless steel welding, and sub-arc welding; in fact, everything except hell-arc welding. He attended two union meetings after he had signed a union card on October 26, 1965. Foreman Ed Gwosdz' brother, Milton, who subbed for Ed while Ed was on vacation, was aware of Morrissey's interest in the Union. About a week and a half before Morrissey was terminated, timekeeper Newman, referring obviously to the employee "petition" against the Union, asked him whether he had seen and signed it. He told Newman that he had seen it but had not signed it. Following this Newman remarked, "We don't want a union here." He walked away after Morrissey had added that he was not to be included as part of the "we." It was only 2 days after this incident that Morrissey was transferred out of the fabricating department where he had been working at his welding trade and was assigned to a unit under Foreman Brame engaged in the assembling of refrigerator units (reefers) for railroad cars. This work was not basic welding work and required hand tools which Morrissey did not have and for which he had no need in his regular welding work. His lack of tools, his borrowing of tools, and his unfamiliarity with or misuse of some tools resulted in his being criticized by Brame. Brame was sarcastic in his criticism and at one time remarked, "You will never live long enough to get them tightened up with a crescent wrench." Brame discharged him that evening saying that he had no need for a production welder. However, during the time that Morrissey worked at welding, his work had not been criticized. On cross-examination, it was brought out that just prior to Morrissey's transfer to the reefer job under Brame he had been working on the Lester job which required working on a hoist involving overhead welding to make the units air and water tight . This was more difficult than ordinary welding. It was brought out as well that although Brame might have been sarcastic in his criticism of Morrissey he did assist him by procuring the proper tools for him. In substance, Respondent's defense to this charge seems to be that Morrissey's real experience had been in pipeline welding and that his welding ability was not suitable for the work required in its plant. Respondent called Foremen Ed Gwosdz and Brame, Plant Superintendent Owen Metcalf, Assistant Plant Superintendent John Metcalf, and timekeeper Newman in defense of this charge. Although Ed Gwosdz had tested Morrissey for his job as welder and passed him as qualified, he testified that the test was not a real test, thereby seeking to imply that he had not determined fully Morrissey's real qualifications as a welder. He testified that Morrissey had worked on three units made for the E. L. Lester Company and had failed to burn the paint off metal before proceeding with welding. A clean surface is necessary for a good welding job. He testified also that Morrissey had represented to him that a certain welding job had been done correctly and had sworn up and down that he had tested it when, in fact, he had not. Gwosdz then went on his vacation. After his return, he found that Morrissey had been transferred to Foreman Brame's department to work on reefers and the Lester Company called him to complain that the tanks on which Morrissey had worked leaked and had to be rewelded and repainted . He sought to explain the fact that Brame had discharged Morrissey instead of transferring him back to the welding department by saying that Brame had suggested this but he, Gwosdz, told Brame he did not want him because of what had happened with the Lester Company job. He suggested that, since it was Friday, it was as good a day as any to discharge Morrissey. This was done. He testified that no new welders have been hired since Morrissey was discharged . On cross-examination he sought to minimize his approval of Morrissey's hire by saying that he had ascertained only that Morrissey was able to "strike an arc" and that he had informed Newman that he would try him out. A primary weakness in Gwosdz' testimony about the allegedly defective welding of the Lester units is that the best evidence that these had been welded defectively would have been testimony by someone from the Lester Company. No such testimony was produced nor was any explanation given for this omission. In substance, Brame's testimony with respect to Morrissey was concerned with criticism of the tools Morrissey used when working under him. While it appears from Brame's testimony that welding was not the principal trade with which he was concerned, he testified that on numerous occasions he had had occasion to criticize Morrissey's welding and that this criticism always was met with Morrissey's rejoinder that he was primarily a pipeline welder. Morrissey had been assigned to the assembly line. When he was taken off it, he observed, "I don't have any tools and I am a welder." When Owen Metcalf testified in defense he said that Morrissey had been transferred to the reefer job under Brame because his work in Foreman Gwosdz' department had been very poor and that one customer's job had to be done over again Metcalf testified that he took the responsibility for the transfer to the assembly line under Brame because of his opinion that Morrissey might do better work there since it involved routine repetitive work. (Elsewhere in his testimony he gave as the reason for Morrissey's transfer out of Gwosdz' department to Brame's department that Brame needed more men to assist him.) Metcalf continued, shortly after this transfer Brame complained that Morrissey was not even a good helper, could not produce, and had poor eyesight. On being so informed, he told Brame that the Company did not need,Morrissey because of its need to cut costs in any event and instructed him to discharge him. Newman's testimony concerning Morrissey was not directed to Morrissey's work performance but was only for the purpose of clarifying his part in the hiring process. Assistant Plant Superintendent John Metcalf testified that although he found that while Morrissey worked in STEWART & STEVENSON SERVICES 767 Gwosdz' department his work was "definitely unsatisfactory" and that the welding and burning had been done very poorly, he did not mention it to Morrissey. Following Morrissey's transfer to the reefer assembly job, John Metcalf had no further contacts with him. I am thoroughly dissatisfied with the various explanations given by Foremen Gwosdz and Brame and by both Metcalfs. The effort to portray Morrissey as a specialized pipeline welder and not a general welder suitable for Respondent's operations impressed me as being specious. His sudden transfer from an all-around welding job in Ed Gwosdz' department to assembly line work in Brame's department following Newman's unsuccessful effort to get him to sign the antiunion declaration and his affirmative identification of himself as being in favor of the Union indicates very persuasively to me that Morrissey's union activity became the motivating factor in Respondent's relations with him following the -Newman incident. The allegedly defective welding on the Lester job does not impress me at all. If, in fact Morrissey was responsible for that, I believe, on the basis of my general conclusions as to the manner which Respondent handled its personnel matters, that drastic action either by way of a strong reprimand or discharge would have taken place at that time. Nothing like this happened. I have mentioned before the failure to call someone from the Lester Company. While the burden of proof is on the General Counsel to prove that a discharge was violative of Section 8(a)(3) of the Act, unless there has been a complete failure, the question whether that burden of proof has been met must be considered in connection with such explanation if any as the Respondent may give for the discharge. I am convinced by Morrissey's testimony that his troubles with Respondent started when Newman became aware of his union activity and when he refused to participate in the antiunion declaration. The prompt transfer from the all- around welding department under Ed Gwosdz to the assembly work under Brame suggests that it was sparked by the Newman incident. The testimony by Respondent's witnesses concerned directly with the manner in which Morrissey came to be discharged suggests to me only a groping for justification in the hope that a finding in its favor would be made. I am convinced that Morrissey was deliberately transferred out of a department in which he was qualified to work to another department where his work had to be less satisfactory because of its strangeness to him and that his subsequent discharge upon the varying grounds given was only because of his union activity and for the purpose of discouraging membership in the Union. I find that his discharge was in violation of Section 8(a)(3) of the Act. Upon the foregoing factual findings and conclusions, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent, Stewart & Stevenson Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with various forms of retaliation if they engaged in union activities, by threatening them with discharge if they engaged in such activities, by threatening never to sign a contract with the Union for the sole reason that the Union had made allegedly false charges against it, by endeavoring to persuade particular employees to abandon and work against the Union, by criticising or remonstrating with particular employees for their union activities, by engaging in surveillance of employees' union activities, by interrogating employees concerning such activities, and by sponsoring a document expressing employees' opposition to the Union and soliciting signatures thereto, Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 4. By terminating the employment of Domingo Reyes because he had engaged in concerted activities with and on behalf of other employees for their mutual aid or protection, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By discriminating in regard to the hire and tenure of Wiley Lee Banks, Benny V. Gonzales, David A. Horn, and John M. Morrissey, and by terminating their employment at the times heretofore mentioned because of their interest in and their sympathies for the Union with the objective of discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act, and Section 8(a)(1) as well. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 7. Except for the above and for what has been found expressly in section IV of this Decision, Respondent has not engaged in unfair labor practices as alleged in the complaint and such allegations not so found should be dismissed. THE REMEDY Since I have found that the Respondent has engaged in certain unfair labor practices, it should be ordered to cease and desist therefrom and to take certain affirmative action so that the policies of the Act may be effectuated. Although I have found that Domingo Reyes was discharged in violation of Section 8(a)(1) of the Act and that Banks, Gonzales, Horn, and Morrissey were discharged in violation of Section 8(a)(3), the unfair labor practices in both situations may be remedied in the same manner. Respondent should offer all of said persons, Banks, Reyes, Gonzales, Horn, and Morrissey full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered by them or any of them because of such unfair labor practices by payment to each of them of a sum of money equal to the amount which he would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period. Backpay and interest thereon shall be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Also, since I have found that Respondent engaged in various acts and conduct interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them in Section 7 of the Act, it should be ordered to cease and desist therefrom. Also, because the unfair labor practices found are most grave and severe and strike directly at rights intended to be safeguarded by the Act, a broad form cease-and-desist provision is necessary and appropriate. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel requests additional remedial relief including the mailing of a copy of the customary posted notice to each employee, allowing the Union access to Respondent's bulletin boards, allowing the Union an opportunity to address Respondent 's employees on company time and on company facilities , and requiring that the customary notice be read to the employees. All or some of such procedures undoubtedly may be appropriate or properly remedial in particular situations where the need for them is shown. I am of the opinion, however, that except for the last, there is no need for and it would be inappropriate to impose these additional measures in this case. To do so would extend unduly the necessary and appropriate remedy and would be punitive and vindictive. I recognize, however, the desirability that the notice be read aloud because of the large number of Mexican employees in Respondent's employ, because of the probably low degree of literacy, and because the oral speech method of presentation was used by the Respondent during the course of its activities in opposition to the Union. On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I hereby recommend issuance of the following: ORDER Respondent, Stewart & Stevenson Services, Inc., of Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discriminating as to hire, tenure, or any other term or condition of employment of any of its employees. (b) Threatening any employee with any sort of retaliation for engaging in union activities. (c) Threatening any employee with discharge because of membership in or support of any labor organization. (d) Threatening that it will not sign a contract with the said Union incorporating any agreement reached after appropriate collective bargaining with it in the event that it shall be designated or selected by the majority of its employees in an appropriate unit for the purpose of collective bargaining. (e) Seeking to enlist particular employees to engage in activities against any labor organization. (f) Chastising or criticizing employees because of their support of or membership in a labor organization. (g) Engaging in surveillance of its employees as to their support of or attempted organization of any labor organization. (h) Interrogating any employee as to his activities in support of or on behalf of any labor organization. (i) Sponsoring or encouraging the circulation or execution of any declaration on the part of its employees against any union. (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which I find will effecutate the policies of the Act: (a) Offer Wiley Lee Banks, Domingo Reyes, Benny V. Gonzales, David A. Horn , and John M. Morrissey reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make each of them whole for any loss of earnings suffered by reason of its discrimination against him in the manner set forth in the section above entitled, "The Remedy." (c) Notify each of said persons, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) 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 place of business at Houston , Texas, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, 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) Convene, upon company time, by departments and by shifts, all its employees and have a responsible official of the Respondent at departmental supervisor level or higher, read to such employees the contents of the said notice. (g) 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.2 Those allegations set forth in the complaint which have not been expressly found as heretofore set forth in the Decision should be and hereby are dismissed. ' 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 the Regional Director for Region 23, 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 NOT discourage membership in International Association of Machinists and STEWART & STEVENSON SERVICES Aerospace Workers, AFL-CIO, or any other labor organization by discriminating as to the hire, tenure, or any other term or condition of employment of any of our employees. WE WILL NOT threaten any employee with any sort of retaliation for engaging in union activities. WE WILL NOT threaten any employee with discharge because of membership in or support of any labor organization. WE WILL NOT threaten not to sign a contract with the said Union incorporating any agreement reached after appropriate collective bargaining with it in the event that it shall be designated or selected by the majority of employees in an appropriate unit for the purpose of collective bargaining. WE WILL NOT seek to enlist particular employees to engage in activities against any labor organization. WE WILL NOT chastise or criticize employees because of their support of or membership in a labor organization. WE WILL NOT engage in surveillance of our employees as to their support of or attempted organization of any labor organization. WE WILL NOT interrogate any employee as to his activities in support of or on behalf of any labor organization. WE WILL NOT sponsor or encourage the circulation or execution of any declaration on the part of our employees against any union. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of 769 their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. WE WILL offer Wiley Lee Banks, Domingo Reyes, Benny V. Gonzales, David A. Horn , and John M. Morrissey reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. All our employees are free to become or remain, or refrain from becoming or remaining , members of any labor organization. STEWART& STEVENSON SERVICES, INC. (Employer) Dated By (Representative) (Title) Note: We will 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. 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, Extension 4721.