Ross Porta-Plant, Inc.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ross Porta-Plant, Inc. and International Union of Operating Engineers, Local 826, AFL-CIO. Cases 16-CA-2393, 2449, and 2503 June 30,1967 DECISION AND ORDER On September 23, 1966, Trial Examiner James F. Foley 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended that those allegations of the complaint be dismissed. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Respondent also filed a reply brief. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and, for the reasons set forth below, finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has con- sidered the Trial Examiner's Decision, the excep- tions and the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with this Decision and Order. 1. After a hearing before a Hearing Officer in Case 16-RC-3949, in which the only contested issue was the supervisory status of certain depart- ment heads, on July 14, 1965, the Acting Regional Director for Region 16 in a Decision and Direction of Election ruled that the departments heads were employees within the meaning of Section 2(11) of the National Labor Relations Act, as amended, and directed an election in a unit of Respondent's production and maintenance employees including the department heads. The Respondent filed with the Board a request for review of the Acting Regional Director's deter- mination which was granted on August 4,1965. On October 6; 1965, the Board, in a Decision on Review,' found that the record substantially sup- ported the Acting Regional Director's determina- tion that the department heads were employees and affirmed his determination. Since the Union had won the election (45 to 32, with 5 challenged bal- lots), the Regional Director, on October 15, 1965, certified the Union as the collective-bargaining representative of a unit of Respondent's production I Not published in NLRB volumes. 2 130 NLRB 113. 3 365 F 2d 898 (C.A.D C.), remanding 153 NLRB 309 166 NLRB No. 40 and maintenance employees, including the disputed department heads. On October 23, 1965, and several times thereafter, the Union requested the Respondent to recognize it and bargain collectively with respect to the employees in the unit found appropriate. On October 25, 1965, the Union requested that Respondent furnish it a seniority list, wage rates, and job classifications for the employees in the unit. The Respondent refused to recognize and bargain with the Union and to give the requested informa- tion, asserting as its reasons that (1) the majority vote received by the Union in the election was coerced by participation in union activities by the department heads, and (2) the unit is inappropriate in that it included the departments heads, who are supervisors within the meaning of the Act and hence must be excluded from the unit under the provisions of the Act. The Respondent also admittedly interrogated the department heads about their union activities, uni- laterally granted them wage increases, forbade them to attend union meetings, discharged seven for their union activities, and requested that some of them obtain copies of statements that they had given to a Board agent. As a result of charges filed by the Union, the General Counsel issued a consolidated complaint in the unfair labor practice cases here involved, al- leging that Respondent had violated Section 8(a)(1), (3), (4), and (5) of the Act by the foregoing and certain other acts. At the hearing in these cases, Respondent at- tempted to introduce evidence to support its con- tention that the department heads were supervisors. The General Counsel objected on the grounds that the issue of the status of the department heads was resjudicata by reason of the Board's decision in the representation case and could not be relitigated in these unfair labor practice cases. Relying on Leonard Niederriter Company, 2 and N.L.R.B. v. Amalgamated Clothing Workers of America (Sagamore Shirt Co.) 3 the Trial Examiner found that Section 102.67(f) of the Board Rules and Regu- lations which precludes relitigation in a subsequent unfair labor practice case of an issue previously litigated in a representation proceeding was not ap- plicable in a situation, such as presented by these cases, where the issues in the unfair labor practices case proceeding arise from allegations of violation of Section 8(a)(3) and (1) as well as Section 8(a)(5). Hence, the Trial Examiner overruled the General Counsel's objection insofar as the 8(a)(3) and (1) al- legations were concerned and permitted the Respondent to present evidence with respect to the supervisory status of the department heads.4 4 After the Trial Examiner's ruling, the General Counsel also presented evidence to support the contention that the department heads were em- ployees. ROSS PORTA-PLANT, INC. As a result of this evidence, and taking into con- sideration the evidence presented in the representa- tion case,5 the Trial Examiner concluded that the Board was not correct in its determination in the representation case and found on all the evidence that the department heads were supervisors not only on the date they were discharged but likewise had been supervisors on June 15, 1965, a date prior to the hearing in the representation case. Thus, since the Trial Examiner found the department heads to be supervisors, he found that the Respond- ent did not violate Section 8(a)(3) when it discharged them for attending union meetings and did not violate Section 8(a)(1) by interrogating and threatening them with respect to their union activi- ties, granting them wage increases, and requesting that they obtain copies of statements that they had given to a Board agent. However, insofar as the 8(a)(5) allegation was concerned, the Trial Ex- aminer found that he could not "look behind" the Board's certification of the Union and that the Respondent had violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union and by refusing to give the Union certain requested information about the employees in the unit. The General Counsel excepts to the Trial Ex- aminer's rulings and findings on the grounds that (1) relitigation of the status of the department heads should not have been permitted, and (2) even if relitigation were permissible, the record evidence in this case shows that the department heads were employees ,at all pertinent times. We find merit in the General Counsel's second ground. As we do not reach the issue of whether relitigation should have been permitted,6 we do not adopt the reasoning and findings of the Trial Examiner with respect thereto. Consideration of the entire record with respect to the supervisory status of the department heads reveals the following facts: The Respondent, in operation since 1958, manu- factures portable equipment for the making of concrete for heavy construction and portable heavy duty self-contained motor truck and vehicle sales. The Respondent's board of directors, consisting of Ruben Ross and his sons, Robert H. Ross and C. L. Ross, determines all policy matters. Ruben Ross and his sons are also Respondent's officers. Joseph Keith is the production manager; Elmer Wells is the plant superintendent; and E. A. Mc- Bride is the assistant plant superintendent. The parties agree that Keith, Wells, and McBride are su- pervisors. Wells and McBride constantly move throughout the plant observing all areas a number of times daily, and, Keith does so a number of times a week. 5 The transcript of the representation case hearing was introduced into the record in this proceeding 6 Cf Amalgamated Clothing Workers of America (Sagamore Shirt Co.), supra. 7 The employees who head these departments had no particular title 495 The Respondent's operations are divided into 18 departments. Each department is headed by a so-called department head.7 The number of em- ployees in each department in 1965 varied from 2 to 18 depending on the department and the season. One of the admitted supervisors assigns work to the department heads who are required to see to it that the work is performed. The department heads also train new employees, are hourly paid em- ployees who punch timeclocks like other em- ployees, do manual work a substantial portion of the time, and receive no fringe benefits not received by other hourly employees. Of the seven depart- ment heads who testified at the representation case hearing, five received $2.25 per hour. Of the depart- ments represented by these five, one department had an employee receiving this same rate; two had employees receiving $2.10; one had an employee receiving $1.75; and one had an employee receiving $1.50. The other two department heads who testified received $2.10 per hour, with the highest paid employee under one receiving $1.75 and under the other receiving $1.25 per hour. Departments heads do not have the authority to hire, discharge, transfer, grant time off, or grant wage increases. Time-off requests are referred to the admitted supervisors. The Respondent stated that an employee was supposed to request time off through his department head, but the department heads stated that employees did not always follow this procedure. Department heads recommend wage increases, discharges, and transfers of em- ployees. However, not even the three admitted su pervisors have the authority to grant wage in- creases; wage increases are granted only on the unanimous approval of the board of directors. Some department heads testified that they have recom- mended wage increases which were later received by employees, but that they did not consider such increases to be the result of their recommendation since they were granted such a long period after the recommendation was made. With respect to transfers and discharges, Super- visor Wells stated that he usually knows the type of work employees are doing, and "I usually can see when it is not good enough when they recommend this [discharge], then I am aware of it and I have usually pretty well made up my mind what I am going to do just as soon as they recommend on it. "s When not familiar with the work an employee is do- ing, he stated, "I talk it over- we talk it over very lengthy sometimes, I talk it over with the [department head]. I see what the conditions are. I might even talk it over with some of the other [department heads] to see if they can effectively until after the Union commenced organization. The Respondent said it had been too busy to give them a title and besides titles do not mean anything. 8 Representation case transcript, p. 308. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work this man before I would discharge him."9 He testified further that he seeks to try out a man on another job when a department head has recom- mended a discharge. On June 15, 1965, after the Union commenced its organizational activities and after the Respond- ent learned that some of the department heads were taking part in such activities, the Respondent had its attorney speak to the department heads. The Respondent's attorney drew a line on a blackboard and stated that there was a very narrow distinction between leadmen and supervisors and that it was a close question whether they were supervisors. He then informed them that they were assistant foremen and, as such, were supervisors. The Respondent admitted that some of the department heads seemed surprised. The department heads were also told that they had the authority and responsibility to exercise specifically outlined su- pervisory functions. After the meeting, the Re- spondent posted a notice on the bulletin board which listed the department heads as supervisors and the names of the employees under them. All of the department heads, except one, who testified at the representation case hearing also testified in the unfair labor practices hearing. Other department heads also testified. To a great extent their testimony was cumulative in that it dealt with the same matters and was substantially the same as in the representation case hearing. However, new evidence was also presented to cover matters which took place after the close of the representation hearing. Thus, on June 1Q Respondent informed the department heads in writing of their supervisory functions and required them to recommend wage in- creases in writing. Respondent admitted that this was done because the testimony of some depart- ment heads at the June 25 representation case hear- ing indicated that they were not sure of their duties and responsibilities. Some time after the representa- tion case hearing, Respondent also instituted Mon- day morning meetings of the department heads and furnished them manuals containing methods and techniques for directing plant operations and em- ployees. On August 30, Respondent again gave the department heads a written list of their supervisory functions, had them sign such a list, and then granted them a 25-cent-an-hour wage increase. Whether an individual is a supervisor within the Act's definition cannot be determined simply by referring to a job title or by examining a theoretical expression of his responsibilities and duties. As the court stated in N.L.R.B. v. Southern Bleachery & Print Works, Inc.: 10 [T] he employer cannot make a supervisor out Representation case transcript, p 309 10 257 F 2d 235, 239 (C A. 4), cert denied 359 U S 911 See also American Oil Company, 154 NLRB 393, American Finishing Com- pany, 86 NLRB 412 11 American Oil Company, supra, N L R B v Lindsay Newspapers, Inc, 315 F 2d 709 (C A 5) of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the posses- sion and exercise of actual supervisory duties and authority and not the formal title. It is a question of fact in every case as to whether the individual is merely a superior workman or lead man who exercises the control of a skilled worker over less capable employees, or is a su- pervisor who shares the power of management. Further, in circumstances such as presented by this case, where the Employer attempts to "beef-up" the authority and responsibilities of em- ployees after a union organizational campaign begins in the attempt to remove them from the bar- gaining unit, the Board carefully scrutinizes all the surrounding facts and circumstances in determining whether the authority conferred was real or only theoretical. 11 On the facts of these cases, we are convinced that our original determination that the department heads were employees at the time of the representa- tion hearing was correct. We are also convinced that the Respondent's action, in "beefing-up" their authority and responsibility after it became aware of the union's organizational campaign and before the representation hearing, was an attempt on is part to prevent these employees from exercising their Section 7 rights and also was an attempt to concoct an excuse for not recognizing and bargain- ing with the Union. We find that the authority con- ferred on the department heads was not real but theoretical. We note, moreover, that if we were to find the de- partment heads supervisors, it would result in a marked disproportion in the ratio of supervisors to nonsupervisors. Thus, in 1965, the Respondent's employee complement ranged from approximately 56 to 115 employees. In determining the supervisor-employee ratio, two department heads who were excluded from the unit by agreement of the parties and the eight employees under them must be subtracted from the total. Thus, the em- ployee complement for the purpose of determining this ratio would range from 46 to 105. If the remain- ing 16 department heads are supervisors, the em- ployee complement then would range from 30 to 89, and the ratio of supervisors12 to employees would range from 1-1.6 to 1-4.7.13The Trial Examiner states that the Respondent's operations are "com- plex" and "require close supervision at each depart- ment level" and that "if the department heads are not supervisors, the employees are without adequate direct supervision in a high cost operation 12 It was agreed that Keith, Wells, and McBride are supervisors Thus, the total number of supervisors would be 19 13 If the two excluded department heads and the employees under them are included in this computation , the ratio of supervisors to employees would nevertheless be 1-I 8 to 1-5 4 ROSS PORTA-PLANT, INC. 497 a large part of the time." As pointed out by the General Counsel, however, while Respondent's operations may be "high-cost," they cannot be con- sidered "complex" since they basically involve rou- tine welding and assembly work. Further, we be- lieve that the Trial Examiner's findings in this respect are inconsistent with his earlier finding and the record evidence that the department heads work with their hands a substantial part of the time. Since the department heads do manual work along with the other employees, it is most improbable that they also exercise "close supervision" over such em- ployees. It is true that before as well as after June 15, the department heads have had and have exercised authority which the average rank-and-file employee does not possess. This authority derives from their working skill and from their responsibility for the assembly of machinery. However, it is not the type of authority contemplated in the statutory defini- tion, nor is it the authority responsibly to direct others which flows from management and tends to identify or associate an individual with manage- ment. In many industries, there are highly skilled employees whose primary function is physical par- ticipation in the production and operating processes of their employer's plants and who incidentally direct the operations and movements of less skilled employees. Such employees have a close communi- ty of interest with their less skilled coworkers, and the Act grants them the right to be represented by a collective-bargaining agent in dealings with their employer. The Board has consistently included in bargaining units such employees, often craftsmen or persons in comparable positions, whose authori- ty is based upon their working skill and exper- ience.'4 On the basis of the entire record, we are satisfied that the department heads were employees before the Respondent attempted to "beef-up" their authority and responsibility and that the asserted delegation of authority to them after the Union commenced its organizational activity did not result in a genuine change in their status, either in fact or in law. Therefore, as we have found the department heads to be employees,15 and as the Employer ad- mittedly discharged themes for their union activi- ties, we find that such discharges constitute viola- tions of Section 8(a)(3) and (1). We further find that Respondent violated Section 8(a)(1) by interrogat- ing and threatening these department heads about their union activity, by granting them wage in- creases, and by requesting that they obtain for Respondent copies of the statements they had given to a Board agent. 2. The Trial Examiner found that Vice President Robert Ross' request of employee George King to help Respondent by voting "No" in the election was violative of Section 8(a)(1). As this request did not constitute a threat or promise of benefit, we find it was protected by Section 8(c) of the Act and, therefore, not violative of Section 8(a)(1). 3. The Trial Examiner found that Respondent violated both Section 8(a)(1) and (5) by issuance of written rules of conduct, covering both old and new matters, on August 9. The Trial Examiner found also that rule 15 of these rules of conduct con- stituted an independent violation of Section 8(a)(1), since it contained a broad no-solicitation clause which prohibited the distribution of union literature or the collection of union dues in nonworking areas of the plant during the employees' nonworking time without Respondent's permission . We agree that the issuance of written rules and the broad no-so- licitation clause of rule 15 constituted violations of Section 8(a)(1). However, we find it unnecessary to decide whether such issuance was also violative of Section 8(a)(5), since such a finding would be cu- mulative and would in no way affect the remedy or- dered herein. Further, we find that it will effectuate the policies of the Act to order Respondent to rescind that portion of rule 15 which we have found to be unlawful. 4. On June 7, Vice President Robert Ross called a meeting of all employees and stated that he had 14 Southern Bleachery and Print Works, Inc , 1 15 NLRB 787, enfd 257 F 2d 235 (C.A 4), cert denied 359 U S 911 15 Although the Trial Examiner states that his evidentiary findings are based upon demeanor , his only findings that appear specifically to relate to credibility with respect to the supervisory issue are in footnote 17 of the Trial Examiner's Decision as follows Ruben Packer, Billy Ray Weatherman , and Billy Hobbs. on direct ex- amination in this representation proceeding , in effect testified that the work of their departments was largely a do-it-yourself operation in which they as older employees gratuitously offered to help the younger employees to learn the ropes They also testified that in their opinion they did not effectively recommend increases in wages for their men when they asked Wells or McBride to see that increases were granted to certain employees . Packer, Weatherman, and Hobbs had enlisted in the Union 's cause of organizing Respondent 's plant, and because their interest favored the Union' s cause the testimony they gave in response to leading questions by Frazier. the Union's in- ternational representative , is not on all fours with the facts They repudiated this testimony on cross-examination , and in the unfair labor practices proceeding, Long, who did not testify in representa- tion proceeding, gave similar testimony on direct examination in the unfair labor practice proceeding that the others gave on direct in the representation proceeding. He modified this testimony considerably in his cross-examination [Emphasis supplied ] However, the record does not support the findings by the Trial Examiner that Packer, Weatherman , and Hobbs "repudiated" their representation case direct examination on cross-examination and in the unfair labor prac- tices proceeding or that Long "modified" his direct testimony "con- siderably" in his cross-examination While, as might be expected, there are slight differences between their testimony on direct and cross-ex- amination and between the representation case testimony and the unfair labor practices cases testimony , the differences are not substantial enough to support a conclusion that the testimony has been "repudiated" or "modified considerably " A clear preponderance of the relevant evidence indicates that these findings by the Examiner are erroneous, and they are hereby overruled Standard Dry Wall Products, Inc , 91 N LRB 544, enfd. 188 F.2d 362 (C.A 3) 16 The Respondent contends it discharged Department Head Frank Long for cause For the reasons stated by the Trial Examiner, we agree with him that Respondent discharged Frank Long for his union activities 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received word that someone was trying to start a union; that Respondent did not want a union as Respondent could do as much or more for the em- ployees as a union could; that Respondent was going to try to avoid a layoff because it had plenty of work; that if the employees selected a union Respondent would lose all its business "up north" because its higher labor costs would have to be reflected in its prices; that he had heard that someone had passed around a petition to get the union in, and that he would be happy if someone passed around a petition to keep the union out; and that some of the employees were eligible for raises but the Respondent would not be able to give any raises because of the union's organizational activi- ty. After this speech, Vice President C. L. Ross told the employees that he did not believe that "the shop can survive with a union." The Trial Examiner found that the speech and the comment thereafter did not violate Section 8(a)(1) as they "did not threaten employees or promise them benefits, and merely expressed ... opinion about economic conditions over which Respondent had no control that would result from the em- ployees being represented by a union." We dis- agree. In the total context of these cases, especially considering Respondent's avowed hostility to the unionization of its employees and its commission of many serious violations of the Act, we find that this speech constituted both a threat if the employees selected the Union and a promise of benefit if the employees rejected the Union. Therefore, we find that such speech was violative of Section 8(a)(1). working areas of the plant during nonworking time without Respondent's permission." 4. Amend new paragraph 2(e) by changing the semicolon after the word "request" in the 15th line to a period and by deleting all thereafter. 5. Amend the notice attached to the Trial Ex- aminer's Decision marked "Appendix" by: (a) Placing a period after the word "bargaining" in the fifth paragraph and by deleting all thereafter. (b) After the sixth paragraph, add the following as a new paragraph: WE WILL rescind that portion of rule 15 of the Rules of Conduct issued on August 9, 1965, which prohibits the distribution of union literature or the collection of union dues in non- working areas in the plant during nonworking time unless our permisssion is obtained. (c) Amend the present seventh paragraph by ad- ding after the name "Gary W. Carriger" the following names: Frank Long, Fred Bates, Donald J. Cox, Earl H. Dabney, Billy L. Hobbs, Doyle H. Ward, and Billy Ray Weatherman. (d) Amend the present eighth paragraph by plac- ing a period after the word "bargaining" in the 17th line and by deleting all thereafter. (e) Amend the "Note" immediately below the signature line by adding after the name "Gary W. Carriger" the following names: Frank Long, Fred Bates, Donald J. Cox, Earl H. Dabney, Billy L. Hobbs, Doyle H. Ward, and Billy Ray Weatherman. TRIAL EXAMINER'S DECISION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Ross Porta-Plant, Inc., Fort Worth, Texas, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order as herein modified: 1. Amend paragraph 1(e) by putting a period after the word "bargaining" in the fourth line and by striking all thereafter. 2. Amend paragraph 2(a) by adding after the name "Gary W. Carriger" the following names: Frank Long, Fred Bates, Donald J. Cox, Earl H. Dabney, Billy L. Hobbs, Doyle H. Ward, and Billy Ray Weatherman. 3. Add the following as paragraph 2(d) and renumber the present paragraphs 2(d), 2(e), and 2(f) as paragraphs 2(e), 2(f), and 2(g), respectively. "2(d) Rescind that portion of rule 15 of the Rules of Conduct which prohibits the distribution of union literature or the collection of union dues in non- STATEMENT OF THE CASE JAMES F. FOLEY Trial Examiner: These cases, 16-CA-2393, 16-CA-2449, and 16-CA-2503, were brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the Na- tional Labor Relations Act, as amended (61 Stat. 136,73 Stat. 519), herein called the Act, against Respondent Ross Porta-Plant, Inc., herein called Respondent, on a second amended complaint (herein called complaint) is- sued December 15, 1965, by the Regional Director, and an answer filed by Respondent on December 20, 1965. The Charging Party is Local 826, International Union of Operating Engineers, AFL-CIO, herein called the Union.' The complaint contains allegations of numerous viola- tions of Section 8(a)(1), (3) and (5) by Respondent during the period from May 25, 1965, up to and including December 3, 1965. Respondent denied it committed the illegal conduct alleged. At the outset of the hearing, ' The second amended complaint is premised on the followir5 charges filed by the Union: Original and first amended charges in Case 16-CA-2393, filed July 6 and 14, 1965, respectively; original and first amended, second amended, and third amended charges in Case 16-CA-2449,, filed August 27, October 8, October 28 and November 3, 1965, respectively, original, first amended and second amended charges in Case 16-CA-2503, filed on October 28, November 22, 1965, respec- tively. ROSS PORTA-PLANT, INC. 499 described below, General Counsel was given leave to amend the complaint by adding two additional allega- tions. One is the allegation that in violation of Section 8(a)(1) Respondent on or about June 8, 1965, at a meet- ing of employees suggested to them that they circulate an antiunion petition, and on June 8 and 9 by interrogation and orders, sought to force employees to sign an anti- union petition prepared under its instructions. The second is the allegation that Respondent engaged in discrimina- tion violative of Section 8(a)(3) and (1) against rank-and-file employees by shutting down the plant on June 2 and 3, 1965, and depriving the rank-and-file em- ployees of 2 days' employment, pretextually to take a plantwide inventory, but actually in reprisal for em- ployees participation in organizational activity of the Union. Respondent also denied these allegations. General Counsel's motion on the 6th day of the hearing for leave to strike from the complaint paragraphs 7(a) and 9(b) was granted without opposition. These paragraphs alleged that Respondent sent letters to employees' homes in which the employees were threatened with reprisals for union activity. A hearing on the complaint as amended, and the an- swers of Respondent was held before me from January 17 to January 21, 1966, and from January 24 to January 28, 1966, in Brownwood, Texas. General Counsel, Respondent, and Charging Party were represented at the hearing. All parties were afforded an opportunity to offer evidence, make oral argument, and file briefs. General Counsel and Respondent filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a Texas corporation, with principal office and place of business, in Brownwood, Texas, is engaged in the manufacture of heavy duty equipment for the batching of cement, sand, and gravel in the making of concrete, and of replacement parts and subassemblies for this equipment. During the calendar year 1965, Respond- ent manufactured and sold to customers outside the State of Texas, and transported directly to points outside the State of Texas, equipment, parts, and subassemblies valued in excess of $50,000. Respondent at all times material to this proceeding has been engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and jurisdiction of these cases will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Status of Department Heads as Supervisors or Rank-and-File Employees 1. Preliminary discussion Respondent's defense, at least in part, to the allegations of discriminatory discharges of Department Head Frank Long on August 20, 1965, and Department Heads Fred Bates, Donald Cox, Earl Dabney, Billy L. Hobbs, Doyle Ward, and Billy Ray Weatherman on November 3, 1965, is that they were supervisors within the meaning of Sec- tion 2(11) of the Act. Respondent's defense to many of the allegations of violations of Section 8(a)(1) is also that its department heads are supervisors within the meaning of Section 2(11). The Regional Director in a decision and direction of election dated July 14, 1965, Case 16-RC-3949, ruled that the above department heads and Department Head Ruben R. Packer, John B. Croft, G. C. Medcalf, Truman Clyde Adams, Dalton Ferguson, Har- vey Hamlett, Larry Jackson, Reggie Wells, and Joe Cer- venka were rank-and-file employees within the meaning of the Act, and directed an election in a unit of Respond- ent's production and maintenance employees, after a hearing before Hearing Officer T. Lowry Whittaker, a Regional Office attorney, in which the only contested issue was the supervisory or nonsupervisory status of these department heads. The petitioning Union claimed that the department heads had signed union authorization cards, and Respondent gave them supervisory authority to prevent their voting in the election. Respondent requested the Board to review the action of the Regional Director, and the Board by telegraphic order on August 4, 1965, granted the request and stayed the direction of election issued by the Regional Director. However, the election scheduled for 10 to 11:30 a.m. on August 4, 1965, was held and completed before the tele- graphic order reached the Regional Director and the parties. On October 6, 1965, the Board, sitting in review of the Regional Director's decision of July 14, 1965, af- firmed it. On October 15, 1965, the Regional Director certified the Union as the collective-bargaining represent- ative of a unit of Respondent's employees consisting of all production and maintenance employees including draftsmen, shipping and parts employees, and excluding field servicemen, over-the-road drivers, office clerical employees, and all other employees, watchmen , guards, and supervisors, as defined in the Act. In the August 4, 1965, election, 45 of 77 employees voted for the Union, and 32 employees voted against the Union. It is un- disputed that in the latter part of October, 1965, and on many dates thereafter, the Union, pursuant to the certifi- cation, has requested the Respondent to bargain collec- tively with respect to the employees in the unit found ap- propriate, but the Respondent has refused on the ground that the department heads who voted were supervisors, and that if their votes were subtracted from the 45 votes for the Union, it did not obtain a majority of votes in the election, and, therefore, was not the legal collective-bar- gaining representative. The General Counsel contends in this unfair labor practice proceeding with respect to the allegations of violations of 8(a)(1) and (3) as well as alleged violations of Section 8(a)(5) that the issue of the status of the de- partment heads as supervisors or rank-and-file employees is "res judicata," by reason of the Regional Director's decision, and the Board's affirmation of it, and cannot be relitigated. General Counsel raised this contention timely by objection to introduction of any evidence relating to this issue. I overruled this objection, and received evidence insofar as it related to the allegations of viola- tions of Section 8(a)(1) and (3) of the Act, and the defense of Respondent to these allegations. The parties stipulated into evidence the record of the representation proceeding. Also received in evidence was the decision of the Re- gional Director, the Board's order granting the request for review and staying the election, the Board's decision on 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD review, and the Regional Director's certification. Rehear- ing of the evidence in the representation hearing was avoided. Both the General Counsel and Respondent of- fered additional evidence on this issue. I rely on the decision of June 27, 1966, of the United States Court of Appeals for the-District of Columbia in N.L.R.B. v. Sagamore Shirt Company, etc., 367 F.2d 898,62 LRRM 2431, and the Board case of Leonard Niederriter Co., 130 NLRB 113 (1961). Section 102.67(f) of the Board Rules and Regulations precludes relitigation in a sub- sequent related unfair labor practice proceeding of an issue determined in a representation hearing, where there was failure to request review, a denial of a request for review, or the Board affirmed the Regional Director' decision. In the present posture of Board law as ex- pressed in its decisions, it is not clear whether the words in Section 102.67(f), "related subsequent unfair labor practice proceeding," refer only to a proceeding, or part of a proceeding, involving an alleged violation of Section 8(a)(5) related to the prior representation case, or also refer to an unfair labor practice proceeding, or part of a proceeding, insofar as it involves violations of Section 8(a)(1), (3) or other sections of the Act in addition to Sec- tion 8(a)(5).2 It appears to me that Niederriter is the Board law on the matter. It held that its ruling in the prior representation case that employee Schwartz was not a su- pervisor did not "finally and conclusively resolve that is- sue" for the purpose of the case before it involving an al- leged violation of Section 8(a)(3) and (1). There is nothing in Section 102.67(f) of the Board Rules and Regulations, subsequently issued, or elsewhere that indicates the Board has delegated more authority to the Regional Directors than under Niederriter it considered it, itself, had.3 Additional evidence received by me discloses that the matter was not fully litigated in the representation proceeding. There is the question whether this highly contested mixed issue of law and fact involving an in- terpretation of Section 2(11) of the Act could be resolved finally and conclusively in a representation proceeding where the Regional Director decided without evaluation of demeanor testimony as he did not hear the evidence, and where the laws of evidence in courts of law and equi- ty were not controlling (Section 102.66 of the Board Rules and Regulations). See Morgan v. United States 2988 U.S. 468, 480-482; 304 U.S. 1, 19-22. If the issue first arose by way of challenges or objections in connec- tion with an election held by consent, it would have been referred to a trial examiner or a hearing officer for a hear- ing thereon, and for credibility determinations, findings of fact and recommendations . See Jones Packing Com- pany, supra, and Section 102.69 of the Board Rules and Regulations. 2. Evidentiary findings4 Respondent manufactures portable equipment for the making of concrete for heavy construction. It also manu- factures portable heavy duty self-contained motor truck and vehicle scales. - Respondent's concrete making equipment, which sells in a price range from $20,000 to $80,000 per unit, batches cement and aggregates of sand and gravel, and either mixes them or leaves that operation to the truck mixers. Water is added when the mixing begins or when the ag- gregates and cement are poured into the truck mixer. The end product is concrete. Batching is the gathering at one place in separate compartments, and the individual weighing, of the cement and the aggregates of sand and gravel or rock (or both). The quality of the-concrete is de- pendent on the accurate weighing of the components, and the metering of the water so that each of them is present only in the prescribed measure. Respondent manufactures separate units for batching the cement, called silos, and for batching the aggregates. It also manufactures a unit called a Uniplant which batches both the cement and each of the aggregates in separate interlocking weighing systems. The aggregate batching units manufactured by Respondent are complex mechanisms of substantial size. They range from 34 to 75 feet in length, 7 feet 8 inches to 10 feet in width, and weigh from 7,000 to 50,000 pounds. The travel heights range from 12 feet 4 inches to 14 feet, and the discharge heights are slightly less. The silos for batching the cement range to 38 feet in discharge height, and 10 feet in width and length. The travel lengths extend to 42 feet, and travel heights reach 14 feet 6 inches. The basic overall units, called blanks in the initial stage, are fashioned of heavy gauge steel or iron, and angle iron, welded together, and fabricated. Then there are built in or attached the many subassemblies, parts, and wiring which make the equipment functional and automatically opera- tional. The overall units and many of the major subassem- blies and parts are designed, engineered, and built in Respondent's plant. The industry is highly competitive so the finished units must not only be of high quality func- tionally, but also appearancewise. For example, as re- gards appearance, the welds, which take many man hours, must be free of holes, and have smoothness and evenness as well as strength. Y See cases cited in fns. 12, 13, and 14 of the court of appeals decision in Sagamore Shirt, etc., supra, 367 F.2d 898, 900. Also see Heights Fu- neral Home Inc., 159 NLRB 723; Harold Gorlick and Moms Gorlick, etc., 153 NLRB 370; The Standard Products Company, 159 NLRB 159; and Wagner Industrial Products Co , Inc., 162 NLRB 1349. 1 See Shreveport Packing Corporation, 141 NLRB 1255, 1259, and the court of appeals decision in Sagamore Shirt, supra. 4 These evidentiary findings are premised on the evidence, evaluated in context, consisting of documentary evidence received in the unfair labor practice proceeding, oral testimony of the Petitioner Union's witnesses and Company's witnesses in the representation proceeding, and the demeanor and oral testimony of General Counsel's witnesses and Respondent's witnesses in the unfair labor practice proceeding. In resolv- ing conflicts between the testimony in the representation proceeding of petitioner's witnesses when on direct examination and the testimony of these same witnesses in the same proceeding when on cross-examination; and the conflicts between the testimony of petitioner's witnessess in the representation proceeding , on the one hand, and the testimony of Com- pany's Vice President Robert J Ross and Plant Superintendent Elmer N. Wells, who testified for the Company, on the other hand, I have con- sidered the demeanor testimony of these witnesses in the unfair labor practice proceeding, and the record made in the unfair labor practice proceeding. The Petitioner Union's witnesses in the representation proceeding, although the Company's department heads, had signed authorization cards of the Petitioner Union, and had been in communica- tion with William Harvey Frazier, the Union's International representa- tive. The latter appeared on behalf of the Petitioner in the representation proceeding, and asked the questions to which the direct testimony of Peti- tioner's witnesses was the response . The presentation of evidence in the hearing in the representation proceeding was not controlled by the rules of evidence, while the presentation of evidence in the unfair labor practice proceeding was controlled by the rules of evidence. The hearing officer in the representation proceeding did not make credibility determinations, findings of fact, or recommendations , and the Regional Director, not the hearing officer, made the decision. ROSS PORTA-PLANT, INC. 501 As indicated by the heights, widths, and weights of the equipment , Respondent manufactures aggregate hatching units in a number of sizes. Respondent classifies them as its smaller plants; its models 35-4, LP 60-7, and LP 105-7, the larger units ; Uniplant identified as models 160, 200, and 250; and a combination of the largest separate aggregate batching and cement batching units for a central mixing operation , identified as model 600. The batching plants for the cement , called silos , are manufac- tured in different sizes or models having a barrel capacity ranging from 250 to 600 barrels. All the cement and ag- gregate hatching units are manufactured on order, and in some degree custom made to the requirement of the purchaser. Delivery is made 30 to 60 days after the receipt of the order or sales contract . In some instances, delivery is in 90 days. Some functional subassemblies and parts are storage bins; weigh bins; clamshell gates for closing and opening the bins; the conveyor arm, approximating 35 to 40 feet in length , which carries the weighed aggregates to the mixer; the cylindrical flue, or screw , 13 to 14 feet in length , for carrying the weighed cement to the mixer, and spreading it over the aggregate ; water storage tank with pump and meter ; motors and their wiring to provide 9 to 185 horsepower for automatic interlocking operation of the functional subassemblies and parts, and an instrument panel and electronic devices for power control run by a single operator ; and a transportation system for making the units mobile upon being attached to a truck -tractor, consisting of single or tandem axles, single or dual wheels, airbrakes, and kingpin rub plate for a fifth wheel connection. Respondent's motor truck and vehicle scales are complete units of welded steel construction . They are designed for steel decks, but wooden decks may be sub- stituted . They are manufactured in single and in tandem- connecting units. The single unit, in five models or sizes, is suitable for weighing dumptrucks , bobtail trucks, and Department Engineering Purchasing Stockroom , Shipping, and Receiving Automatic Controls Shear and Break Parts Conveyor Roller Conveyor Small Batch Plants 35-4, and LP 60-7 Uniplant Silo Scales No. 1 Finish-up No. 2 Finish-up Electrical Machine Shop Paint Department Heads on June 25,1965 James Isom Barton Keeler John B. Croft other light vehicles , and their loads. The two scale sec- tions connected in tandem, in six models , provide a large platform size to weigh large trucks, trailers, and off- highway vehicles, and their loads. The platform of the sin- gle unit has a capacity that ranges from 10 to 30 tons, and size that ranges from 20 by 10 feet to 30 by 10 feet. The platform capacity of the tandem-connected units ranges from 30 to 70 tons, and the platform size ranges from 40 by 10 feet to 60 by 10 feet. Respondent is relatively new both in the manufacturing business , and in the manufacture of this equipment. It made its first deliveries in 1958. It is housed, on substan- tial acreage , in an office or administration building and two plant buildings . The second plant building was completed in April 1965 . Ruben Ross , and his sons, Robert H. Ross and C. L. Ross, constitute the Board of Directors. The Board of Directors determines all policy matters. Ruben Ross is president , Robert H. Ross is ex- ecutive vice president, and in charge of sales and adminis- tration , and C. L. Ross is vice president in charge of en- gineering , with management authority over plant opera- tions. Ruben and Robert Ross have their offices in the of- fice administration building. C . L. Ross has his office in the plant. Joseph P . Keith , a graduate engineer, is the production manager of the plant . Elmer Wells is the plant superintendent, and E. A. McBride is the assistant plant superintendent. Keith, Wells, and McBride are located in the plant, and have the overall supervisory responsibility for the employees who numbered in 1965 from a low of 55 or 56 employees to a high of 115 employees. Plant operations under Keith, Wells, and McBride are departmentalized in 18 departments . Respondent has operated by departments since its origin in 1958. These departments, the department heads's the approximate highest member of employees assigned to each depart- ment in 1965, and the number on or about June 25, 1965, are shown in the following schedule: Highest number of employees in Number each department on June 25, in 1965 1965 6 5 6 3 6 5 4 3 6 3 13 8 4 2 6 3 8 3 18 10 16 10-12 12 8 8 5 5 4 5 2 2 2 8 6 46 2 Larry J ackson Doyle Ward Ruben Packer Billy Ray Weatherman Fred Bates Reggie Wells Donald Cox Dalton Ferguson Gilbert Medcalf Frank Long Billy Hobbs Earl Dabney Joseph Cervenka Harvey Hamlett Truman Clye Adams Each named department head had been in charge of his respective de- partment since at least May 1964 ', The highest plantwide total number of employees was 115. Some de- partments had their highest numbers on dates different than dates on which other departments had their highest numbers 308-926 0-70-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Each of the above departments perform important tasks in Respondent's operations. The equipment is designed, planned, and drawn on blueprints by the En- gineering Department, headed by James Isom, a graduate engineer, pursuant to company policy conveyed by Vice President C. L. Ross. The plants and their parts and sub- assemblies are high cost items and are made for the com- petitive market. Each plant model, and subassembly and part which Respondent makes are planned, and drawn on blueprints, in detail to avoid deviation at the departmental levels. The Automatic Controls Department, headed by Larry Jackson, builds the electronic devices which con- trol the separate and interlocking operations of the func- tional parts or subassemblies of each complete plant or unit. These controls are built to meet Federal, State, and local government requirement. The Purchasing Department under Barton Keeler han- dles the purchasing of the machinery and equipment to operate the plant, materials, and the subassemblies, and parts not made in Respondent's plant that go into the making of Respondent's end products. This department also handles the taking of annual and quarterly plant in ventories. Until June 30, 1965, there was a Stockroom, Shipping and Receiving Department headed by John B. Croft, which carried an inventory of parts, received deliveries, made shipments, and prepared the completed units and other items scheduled for shipment. It built rubber chutes or shrouds to cover equipment when in transit, put belt lining on pulleys, and packed scales and other pieces of equipment to protect them against damage when in transit. When Croft resigned on June 30, 1965, this department was merged with the Purchasing Depart- ment under the direction of Keeler. The Parts Department, headed by Ruben Packer, builds many of the parts and subassemblies built into the Uniplants, the large and small batch plants, and the silos. The crown tail pulleys and flat head pulleys which this de- partment builds in many sizes, as original equipment as well as replacement equipment, sell in the replacement market in a range from $86 to $400. It makes hook-up bearings, clamshell gates by which the storage and weigh bins are opened and closed, the cylindercal flue or screw which carries the weighed concrete to the mixer, and bogey axles to make the equipment mobile. These items, like the remainder of the parts and subassemblies it makes, are precision made items, and must meet the blueprint specifications to ensure that each of the subas- semblies performs its intended functional operation in a chain of automatic synchronized interlocking operations. Here subassemblies and parts are made on special order. For example, Packer and Calvin Ingram, at the time the latter was laid off, were making, and assisting in the design of, a large bogey axle to make mobile an extra large aggregate batching plant which Respondent had contracted to build. In January 1964, Respondent adopted the policy of training welders, and assigned this task to the Parts Department. The Conveyor Department, headed by Fred Bates, builds the conveyor, an integral and vital part of the ag- gregate batching equipment. It is a metal trough, 30 inches in width, from 35 to 40 feet in length, with a depth running to 41 inches, in which a belt approximately 30 inches wide revolved by rollers automatically powered, carries the aggregates from the weigh bin to the mixer. Like the other subassemblies and parts, it is precision made to ensure its operation in a scynchronized inter- locking chain of operations. The troughing rollers and idlers that revolve the belt in the conveyor, and the idlers which move the elevator buckets and their chains in the silo are made in the Conveyor Roller Department, headed by Billy Ray Weatherman. These items of equip- ment are also precision made in accordance with blueprint specifications. The troughing rolls, comprised of rollers on a round steel belt, made by this department, sell in the replacement market in a range, depending on belt size, from $85 to $180. The idlers it makes, also as- sembled on a round steel belt, sell in the replacement mar- ket in a range, depending on size, from $40 to $62. The Scales Department, headed by Frank Long, builds the separate lever type scales installed in the aggregate batching plant, as well as the scales installed in the silo for weighing the cement. The gauge or dial head unit in the scales is purchased from the Fairbanks-Morse Company. The complete building of Respondent's platform scales, ranging in platform capacity from 10 to 70 tons, and in size from 20 feet by 10 feet to 60 feet by 10 feet, is also done by this department. The gauge or dial head unit is also furnished by Fairbanks-Morse. The Shear and Break Department, headed by Doyle Ward, operates the shear- ing machine that cuts the heavy gauge sheet steel for the sides, tops, and bottoms of all of the batching equipment, and for the platform and other sections of the scales for weighing heavy loads. In this department, lighter steel is cut for subassemblies and parts. This department also operates the break machines that shapes the steel cut with the shearing machine for parts and subassemblies. This department, under its department head, is entrusted with a large shearing machine, two break machines, and a rolling machine. It is expensive equipment. The small batch plants are built in the Small Batch De- partment, headed by Reggie Wells. The 35-4, LP 60-7 Department, headed by Donald Cox, builds the larger ag- gregate hatching models. The Uniplant, a combination of separate aggregate batching equipment and cement batching equipment in its three models is built in the Uniplant Department, headed by Dalton Ferguson. The Silo Department headed by Gilbert Medcalf, builds the silos that batch the cement. These departments cut the lengths that go into the making of the frame and reinforc- ing sections from angle iron, weld them together to form the frame, weld to the frame the sheet steel sheared for the particular unit by the Break and Shear Department, to form the blank or basic unit, builds in the parts and sub- assemblies which are made in Respondent's plant, and perform the fabricating work that readies it for the finish- ing operations of the Finish-Up Crews. The two departments identified as Finish-Up Crew No. I and Finish-Up Crew No. 2, headed by Billy Hobbs and Earl Dabney, respectively, attach to the units motors, air compressors, controls, and other parts and subassem- blies not made in Respondent's plant. Some of these items are elevator buckets and chains, belts, meters, scale heads, protex dispensers, and additive dispensers. The Electrical Department, headed by Joe Cervenka, does the wiring, and works with the Finish-up Departments in in- stalling the automatic controls. The units are then painted by the Paint Department headed by Truman Clyde Adams. Certain attachments are left off until the painting is completed. The Finish-Up Crews then affix these at- tachments. A complete machine shop, headed by Harvey Hamlett, is available to all production departments. This is also a separate department. On August 20, 1965, the position of quality control en- gineer was established by Respondent, and offered to ROSS PORTA-PLANT, INC. 503 Hobbs by Production Manager Keith on instruction from Robert Ross. Hobbs accepted it. The Finish-Up Depart- ment No. 1 which he headed was consolidated with Finish-Up Department No. 2, and Dabney, who headed No. 2 was given charge of this consolidated operation. On August 23, 1965, Keith handed Hobbs a schedule on which was listed his duties as quality control engineer. Under the supervision of Wells and McBride, he had the responsibility of inspecting both products and equipment. He was to inspect the work as it was being done to see if plans, specifications and standards, and the plant work orders, were being followed, assist in checking out scales, automatic equipment, motor rotation, and related items on all hatching equipment, complete a final inspection check list for each product sold and list serial numbers for outside suppliers equipment being used, assist in the tie-down and crating of materials being sent separately with the unit being shipped, make a final checkout at the time the equipment was scheduled to leave the plant, and to see that no Ross product left without quality control clearance. Hobbs was also charged with making a safety inspection of plant equipment. He was to check hoists, electrical equipment, look for oxygen and gas line leaks and air leaks, see that safety guards were present on machinery, prepare safety bulletins, and maintain a safety bulletin board, watch for safety hazards in general, and assist in the evaluation of Respondent's insurance pro- gram. The department heads receive work orders from Production Manager Keith. The heads of the Purchasing Department, Engineering Department, and Automatic Controls Department receive them directly from Keith. The heads of the Parts Department; Shear and Break De- partment; Conveyor Roller Department; Scales Depart- ment; Silo Department; the No. 1 and No. 2 Finish-Up Departments, which were merged on August 20, 1966; the Machine Shop; Electrical Department; and Paint De- partment, receive the work orders indirectly from Keith, through Plant Superintendent Wells. The heads of the Uniplant Department, the 35-4 and LP 60-7 Department, the Small Batch Plant Department, and the Conveyor Department, receive them indirectly from Keith through Assistant Plant Superintendent E. A. McBride. The de- partment heads, who work with their hands along with the rank-and-file employees they direct,7 assign the particular departmental work to be done under a work order to these employees, and schedule its completion to meet the delivery date shown on the work order. Some department heads have set up within their departments particular groups to handle the diversified work their departments do. In the case of parts, subassemblies, scales, and con- trols, they are scheduled for completion by the depart- ment heads of the departments building them so they can be transferred to the departments which build them in or attach them to the plants being built, in time to permit the latter to meet their schedules. The head of the department building a plant- a silo, small batch plant , uniplant, a 35-4, or 60-7 plant,-gears the work under him to a time that will permit the Finish-Up Crews, the Electrical De- partment, and the Paint Department to perform the finishing operations within a time that will permit delivery on the date scheduled in the sales contract. The head of the Machine Shop schedules the work his department does as an auxiliary service to the production depart- ments to permit the particular department for which the work is done to meet its time schedule. The department heads closely direct the work of the employees in their departments by designating the em- ployees who are to handle certain types of work, or assig- ning the work to be done on each work order, and by checking the progress of the work being done. Close direction is necessary to ensure that the equipment manu- factured has the quality required to meet the competition in the industry, and to withstand the heavy pressure on it in its use in construction work , and to see that each of the many functional subassemblies of the overall unit or plant are precision built, and built-in or installed, to perform smoothly its intended interlocking operations. In view of high production costs and the time scheduling, any delay due to faulty work would seriously impair the economic position of Respondent.8 The control or direction of employees by each depart- ment head is geared to the part each department plays in the manufacturing of a plant or its subassemblies or parts. For example, each department head has the authority to request from the plant superintendent or Assistant plant superintendent, or Production Manager Keith, depending on the department involved, the termination as a depart- mental employee any employee who is not contributing to the work of the department. This has been done by de- partment heads who have had employees not doing, in their opinion, satisfactory work. The employee who is not wanted by the department head will be transferred out of the department as soon as practicable, and will be as- signed to another department by Keith, Wells, or McBride, or terminated. Some department heads have not exercised this authority. However, the authority is there for them to exercise. The department heads have the authority to recommend raises for departmental employees, subject to review and approval by Wells and Keith, or by Keith and McBride, or by Keith alone, depending on the department. The recommenda- tions are approved and sent to the Board of Directors, absent some inequity to the employees as a whole, if the employee has spent the minimum time as an employee or at the wage rate he is receiving when the recommendation is made. An unanimous vote by the three directors is necessary for favorable action. The Board maintains what it considers a proper balance between costs and revenue. Labor costs are a substantial cost factor and a change in an employee wage due to a wage increase will affect that balance. If the balance would not be adversely affected by the raise, or a pattern of raises, at the particular time, and there would be no breach of policy by the raise, the Board of Directors will ' The amount of work they do with their hands depends on the extent the employees need personal direction In some instances. the employees do not require the close direction that is needed in other instances In the former case, the department head has more time to work with his hands He is an expert in the work of his department , and his participation in it contributes to the instruction of his crew s As previously found , the units manufactured range in price from $20,000 to $80,000 per unit In 1965, in the months of April, May, June, and July, respectively, 24, 15, 19, 11, and 23 units, respectively, were delivered. The number of units in production can be estimated to average 20 per month for this period . Since only a limited number of units . even in the high production months , are produced , the unit costs are high. Rejec- tion, or reworking, of plants, subassemblies or parts , because of faulty work would entail substantial economic loss not only because of high production costs, but also because the delivery schedule, so vital to the continued in-flow of payments to meet financial obligations , would be seri- ously impeded. Failure to deliver just one plant because of faulty work would substantially reduce gross receipts. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favorably act on the_ department head's recommendation. Each department head trains employees to-do the work of the particular department. As previously found, Ruben Packer, as head of the Parts Department, was also as- signed the task of training welders for all of Respondent's departments.9 Frank Long, as head of the Scales Depart- ment, was assigned the task of training Assistant Plant Superintendent E. A. McBride in making and maintaining of scales, and also had the special assignment of training a Charles Kizer in this work. Kizer was assigned to his department for this training. The Machine Shop, En- gineering Department, Automatic Controls Department, and Scales Department, may accept outside work. Har- vey Hamlett, James Ison, and Larry Jackson, the head of the first three departments, decided independently if their particular departments can accept the work. If the par- ticular department can, the department head will designate the employees to do the outside work. To ac- cept outside work for the Scales Department, Long must be able to assure Wells or Keith that it will not interfere with his department's scheduled production require- ments. If the work may be done, he assigns the employees to do it. The Scales Department is the only one of the four directly involved in the production line. For 3 weeks, starting in May 1965, the Break and Shear Department had a night shift operation under Department Head Doyle Ward. There were two employees in this depart- ment under his supervision. Two or three painters of the Paint Department worked the same night shift as the Shear and Break Department under Ward. Ward was in charge of the painters, as well as the employees in his de- partment, and checked their work. He was in charge of all the employees on this night shift. Overtime is specifically authorized by Plant Superin- tendent Wells or Assistant Plant Superintendent Mc- Bride. However, overtime work depends on the needs of each department for the additional man-hours. Each de- partment head has the responsibility of requesting over- time for his department when it is needed to get the work on parts, subassemblies, or plants being done by the de- partment completed on schedule. The department head will usually work the overtime assignment. He will recommend for overtime the employees working on the particular unit to be completed. The recommendation is followed, unless Keith, Wells, or McBride assigns em- ployees from other departments who are temporarily available because of a drop in the work load of their de- partments. The department heads keep Keith, Wells, and McBride advised of the extent their employees are getting out the work scheduled for their departments, and whether they need additional men or could do with less. Keith, Wells, and McBride, therefore, know of the availability of employees for temporary assignment to other departments, and the departments which need addi- tional help. They then assign the available employees where they are needed. Leaves of absences and timeoffs are specifically authorized by Wells or McBride. The policy is to grant leave or timeoff because of illness, and to grant leave or timeoff for other purposes if the work schedule of the par- ticular department permits. Any excessive amount of leave or timeoff has the attention of Wells, McBride, and Keith, as well as the department head, as' it is contrary to plant policy. The employee requesting leave or timeoff makes the initial request to the department head. If the latter has no objection, he sends the employee to Wells or McBride. In the absence of objection by the department head, the request is granted. If the leave or timeoff will in- terfere with the work schedule of the particular depart- ment, or the employee making the request has had more than a reasonable number of absences or timeoffs, the de- partment head so informs the employee. The latter may still go to Wells or McBride but the department head must inform Wells or McBride of his position. The leave or timeoff will be denied in this situation absent some unusual or extraordinary circumstances. There are in- stances where an employee will bypass the department head, and make the initial request to Wells or McBride for a wage increase, leave of absence, or timeoff. It is not un- common for a few employees to do this in any group of employees. Wells or McBride will talk to him about his request, but will consult the department head before tak- ing action on it. Wells testified that the proper procedure is for the rank-and-file employees to make these requests initially to the department head. The department heads are paid an hourly rate, and not an annual wage. The hourly rate they receive is substan- tially higher than the rate of the rank-and-file employees. In June 1965, two leadmen working under department heads were receiving the same hourly rate as their depart- ment heads.10 The rate for all the department heads was increased by 25 cents on August 30, 1965, to $2.50 per hour. This increase enlarged the margin between the rates for these department heads and leadmen. The Examiner had the opportunity to view the demeanor of the department heads who testified for the General Counsel in the unfair labor practice proceeding. These witnesses were Ruben Packer, John B. Croft, Joe K. Cervenka, Billy Ray Weatherman, Earl Dabney, Frank Long, Doyle Ward, Fred Bates, Donald Cox, Billy Hobbs, and Reggie Wells. This testimony disclosed that these employees were accustomed, and had been ac- customed, to exercising authority. This testimony and their substantive oral testimony disclosed that they knew they had the authority to responsibly direct the men in the performance of the work assigned to the departments which they headed in Respondent's business, and exer- cised it, and had the authority to effectively recommend wage increases, discharges, and transfers, and exercised it. 3. Analysis and concluding findings I find from all the relevant testimony that the heads of the departments listed in the tables under section III, A, 9 Welding is a basic task in all production departments and the Machine Shop Department, as it is a means of Joining precut pieces or sections of steel together to form a plant, part or subassembly, or building-in subas- semblies or parts. However, it is only part of the work of building a part, subassembly or complete plant. In the making of a garment, considerable sewing is done in joining the precut pieces together but, there is much more involved if the garment is to fit and have an attractive appearance. Analogously, in fashioning a part or larger unit, much more than welding is involved if the unit is to conform to the specifications on the blueprint, be a finished product, and be adquate to perform its intended function. It must be fabricated. 11 There were five leadmen on August 30, 1965, under department heads. They were John Newby under Hobbs, Ben Gilbert under Hamlett, Elbert Sledge under Medcalf, Bobby Blackmon under Donald Cox, and William Crim under Ferguson Newby received $2 25 per hour, the same rate Hobbs received, and Sledge received $2 25, which was the rate Med- calf received. The rate for an experienced rank and file employee ranged from $1 75. ROSS PORTA-PLANT, INC. 505 2, supra, and the holders of the position of Quality Con- trol Engineer , held by Billy Hobbs , are supervisors within the meaning of Section 2(11) of the Act. tl The depart- ment heads responsibly direct employees , and effectively recommend wage increases , transfers , and discharges. The quality control engineer responsibly directs em- ployees. Each of them has numerous complex assign- ments to perform in a high cost operation. Such a situa- tion requires close supervision at each department level. Keith who plans the whole production program, in terms of plant operation and coordination of all its factors, that is planning, manpower, equipment and material , could not exercise this type of supervision. Wells and McBride could not exercise adequate direct supervision of the work and conduct of the 70 to 115 employees in two separate plant buildings who perform the many complex operations leading to the completed plants Respondent manufactures .'''-' If the department heads are not super- visors, the employees are without adequate direct super- vision in a high cost operation a large part of the time. There is testmony that Wells and McBride are constantly moving through the plants a number of times daily, and that Keith does so a number of times a week . However, there is undisputed testimony that they do not stop to direct the work of rank-and-file employees , but to consult with department heads from time to time about the many plant operations which they must coordinate if the units are to be completed and delivered as scheduled." In reaching this conclusion , I have considered General Counsel's evidence showing that on June 15, 1965, after 11 James H. Matthews & Company v. N L.R.B., 354 F 2d 432, 434-435, 61 LRRM 2070, 2072-3 (C A. 8), enfg. 149 NLRB 161, 171; N.L R.B. v. Inland Motor Corp of Virginia, 322 F 2d 457, 458-460, (C A. 4), enfg. 138 NLRB 516, 518-519; Crown Aluminum Industrials Corp. v. N.L R B, 352 F.2d 84 (C A. 3), enfg 150 NLRB 58; N.L.R B. v. Hamilton Plastic Molding Co., 312 F.2d 723, 725-727 (C A. 6), enfg. as modified 135 NLRB 371; Jones Packing Company, 159 NLRB 988, Powers Regulator Company, 149 NLRB 1185; Irving Air Chute Co., Inc, 149 NLRB 627, 633-635, enfd 350 F.2d 176 (C.A. 2) In these cases, the ruling that the employees were supervisors favored the unions. Here it favors the employer. There is only one standard. 12 Donald Cox, who headed Respondent's 35-4 and LP 60-7 Depart- ment, testified that his department had space in one of the plant buildings 60 feet in length, on both sides of the aisle, and had hoists 16 feet high on both sides of the aisle. He separated his employees into two crews, and as- signed a crew to each of two plants his department built at the same time He directed one crew, and Bobby Blackmon, his leadman, directed the other crew. The plants his department built ranged in travel length from 53 feet to 54 feet 6 inches, had a travel width from 7 feet 10 inches to 9 feet 10 inches, a travel height of approximately 13 feet 6 inches, and weighed 16,000 pounds and 23,000 pounds. As can be seen from the description of the plants built by other departments, supra, the Uniplant, Silo, Small Batch Plants, Finish-Up No. I and No. 2, Paint, Scales, and Conveyor Departments, must each occupy space in length of 50 feet to 70 feet. It can be assumed that the Break and Shear Department which houses the large shearing machine for cutting large sheets of steel, and two cutting machines and a rolling machine, occupies 50 feet, and the Purchas- ing Department which includes the Stockroom, Shipping and Receiving Department occupies from 50 to 70 feet The employees in the Engineer- ing, Automatic Controls, Parts, Machine Shop and Electrical Depart- ments work at benches or tables. It can be assumed that each of these de- partments occupies a space of 25 feet. The total approximates 700 feet or the equivalent of two city blocks. There is testimony that the original plant building is a large L-shaped building. The second plant building, which was completed in April 1965, to permit expanded operations must also be a building of substantial size. Cervenka, the head of the Electrical Depart- ment, testified that his department was 350 feet across the plant building from Long's Scales' Department 13 James H. Matthews & Co v. N L R.B., 354 F.2d 432, 435 (C.A. 8); Vega et al. v. N.L.R B., 341 F.2d 576, 577 (C.A. 1), affg. 145 NLRB 452, N L R.B. v. Supreme Dyeing and Finishing Corp., 340 F.2d 493, 494 the Union began its organizational activity, Respondent, by its attorney, informed these department heads for the first time they were assistant foremen14 and supervisors, and also informed them they should not engage in union activity, and that they had the authority and responsibility to exercise specifically outlined supervisory duties. How- ever, the department heads exercised the supervisory authority related above before June 15, 1965, and con- tinued to do so after that date, independently of the oral statement to them of their duties, and also independently of the written statement of duties which Respondent's representatives handed to the department heads on June 30 and August 30, 1965, and had them sign." Respondent, apparently on advice of counsel, began "beefing up" the status of the department heads as super- visors within the meaning of the Act by holding meetings of these personnel every Monday morning, furnishing them manuals containing methods and techniques for directing plant operations and employees, raising their wages, and informing them in writing of what their responsibilities were with respect to the direction of em- ployees. As stated above, these department heads exer- cised supervisory authority within the meaning of Section 2(11) of the Act prior to the inauguation of this beefing-up activity by Respondent. 16 It is true that they recom- mended wage increases in writing for the first time after the June 25, 1965, representation hearing'17 upon instruc- tions from Respondent. However, they effectively recommended wage increases orally prior to this date. The Act does not require recommendations to be in writ- (C A. 1), enfg 147 NLRB 1094; N.L.R.B v. Mt. Clemens Metal Products Company, 287 F.2d 790, 791 (C.A. 6), enfg. as modified 126 NLRB 1297, 1298, fn. 4 14 At least Long and Weatherman met that evening with William Har- vey Frazier, the Union's international representative in charge of the or- ganizational activity, and he told them that in his opinion they were lead- men. Vice President C. L. Ross testified that the business grew rapidly in the 8 years of its existence, and the department heads grew with the busi- ness, that time was not taken to give them titles as they did not mean anything, and they may have been referred to as crew chiefs or heads of departments. is I have considered the evidence that Respondent has the same retire- ment plan, an accident insurance plan, and vacation plan, for department heads, as it has for rank-and-file employees While this evidence causes a closer scrutinizing of the department heads' duties in determining whether they are the duties of a supervisor, it does not foreclose a finding they are supervisors. There is nothing in the Act that precludes supervisors from the enjoyment of the above protection that rank-and-file employees enjoy. 16 A leadman may be a supervisor within the meaning of Section 2(11). James H. Matthews & Co v. N.L R.B, supra 11 Vice President C. L Ross testified that Respondent informed the de- partment heads in writing on June 30 and August 30, 1965, of their super- visory responsibilities, and required them to recommend wage increases in writing, in view of their testimony in regard to their duties in the June 25, 1965, hearing. Ruben Packer, Billy Ray Weatherman, and Billy Hobbs, on direct examintion in this representation proceeding, in effect testified that the work of their departments was largely a do-it-yourself operation in which they as older employees gratutiously offered to help the younger employees to learn the ropes. They also testified that in their opinion they did not effectively recommend increases in wages for their men when they asked Wells or McBride to see that increases were granted to certain employees Packer, Weatherman, and Hobbs had enlisted in the Union's cause of organizing Respondent's plant, and because their in- terest favored the Union's cause the testimony they gave in response to leading questions by Frazier, the Union's international representative, is not on all fours with the facts. They repudiated this testimony on cross-ex- amination, and in the unfair labor practice proceeding Long, who did not testify in the representation proceeding, gave similar testimony on direct examination in the unfair labor practice proceeding that the others gave on direct in the representation proceeding He modified this testimony con- siderably in his cross-examination. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing in order to be effective recommendations. The super- visory authorities listed in Section 2(11) of the Act are stated in the disjunctive , and the exercise of one only makes the person exercising it a supervisor , and the amount of time an employee works with his hands is not conclusive for or against the proposition he is a super- visor. The question is; "Does he have any one of the authorities listed in Section 2(11)9" James H. Matthews & Co., supra. It is not necessary that he exercise it. Leonard Niederriter Co., 130 N LRB 113 B. Union A nimus and Alleged 8(a)(1) 1 iolation.s 'H As stated below , Production Manager Keith questioned employee Jack W. Hughes on June 1, 1965, about his interest in representation by a union , and his soliciting signatures on a petition for representation by a union. On June 7, 1965, Vice President Robert Ross held a meeting of employees in which he stated that he had gotten wind that someone was trying to start a union; that they did not want a union as Respondent could do as much or more for them as a union could, that they were going to try to avoid a layoff because they had plenty of plants to build ; that in a sales area of 300 miles around their Brownwood plant they could sell cheaper than their competitors if they stayed nonunion, that if the em- ployees went union they would lose all the business they had up North because the higher labor cost would have to be reflected in their prices ,'" and that they could not af- ford to close down as they had a lot of contracts to fill, and had done a lot of expanding and owed money to the bank . He said that he heard that someone had passed around a petition to get the Union in, and would be happy if someome passed a petition around to keep the Union out, and also said that some of the new men were eligible for a raise, but Respondent would be unable to give any raises because of the union organizational activity. In the course of this speech , he asked if they would not prefer Wells and Keith as supervisors instead of some union representative , and picked up a booklet showing union salaries , and made a reference to a provision in it that presumably disclosed that International Representative Frazier received $50,000 a year, and accompanied the reference with a statement that they would have to con- tribute to this salary . The booklet , however, identified the recepient of the $50 ,000 annual salary to be George Meaney, president of AFL-CIO. A day or so later, Hary Hamlett , head of the Machine Shop Department, asked employee Gary Wayne Carriger to sign a petition against the representation of employees by a union. 11 Employee Glenn C. Strickland testified for the General Counsel that on July 15, 1965, Vice President Robert Ross held another meeting of employees . He talked to them , and then introduced his father , President Ruben Ross, who talked to them . Bob Ross then asked if any- body else had anything to say. Vice President C. L. Ross, who was already standing, said "I don't believe the shop can survive with a union ." C. L. Ross admits he made such a statement , but claimed he made it following the speech of his brother, Vice President Robert Ross, in early June in regard to the economic impact union representation would have on Respondent 's sales. This would be his June 7 speech. Strickland, in an affidavit he gave to a representative of the Regional Office, dated September 8, 1965, stated that the statement of C L. Ross followed the speech of Robert Ross in which he said "they were selling a lot of plants in various areas, but wouldn't be able to sell them if the shop went union." This would be Robert Ross' June 7 speech. At the hear- ing, Strickland testified that he made a mistake when he stated in the affidavit of September 8, that in a speech which preceded C. L. Ross' remarks about the survival of Respondent if a union represented the employees, Robert Ross made reference to the impact of union representation on the sales of Respondent's equipment. He testified he saw this error after he had been inter- viewed a few days before the hearing by Norman W. Eckhardt, counsel for General Counsel, and mentioned the error to Eckhardt. Eckhardt crossed out the reference in Strickland's affidavit to Robert Ross' speech regarding the impact union representation would have on Respond- ent's sales On this evidence. I find that Vice President C L. Ross, on June 7, 1965, following his brother's speech about the economic impact representation by a union would have on Respondent's sales, said he did not see how Respondent could survive with a union. About a week before the August 4, 1965, election, Pre- sident Ruben Ross came to employee Strickland's work station and said, "Shorty, I Just want you to know that if we beat this union, and I think we will, that we're going to have a happy shop, and everybody's going to be happy, and we're going to give raises according to the cost of liv- ing, and if any of the employees get into a financial strain we are going to help them out." This testimony by Strickland is unrebutted. On August 3, 1965, the day be- fore the election, Vice President Robert Ross approached employee Joe Huro and asked him how he felt about the Union. Huro said he did not know, that he did not know what was going on. Ross then said the Union would lead to trouble for the employees financially, since it would be their first experience with a union , and the individual em- ployees not the union would decide if they wanted to strike, and it was up to the Company whether it wanted to agree on a contract. Vice President Ross then asked IN It is undisputed that Respondent 's president and vice presidents have been and are opposed to employee representation b^ the Union or any labor organization The question is whether they have acted illegally in re- gistering their opposition to union organization There is an area of allowa- ble economic conflict 19 Robert Ross illustrated Respondent 's competitives position with two maps On one map, he illustrated with colored thumbtacks where Re- spondent's plants were sold He said that Respondent sold more plants in his competitors ' backyards , than they sold in Respondent 's backyard 20 On June 15, 1965, Vice President Ross held a meeting of department heads, and introduced to them Alan Schoolfield , Esq as Respondent's at- torney Schoolfield told them they were assistant foremen and super- visors , and recited to them what their duties were as assistant foremen He told them they should not engage in union activity or attend union meetings, and if any of them went out on strike they would be replaced On June 30 , 1965, Production Manager Keith furnished to the department heads assembled in a meeting , statements of their duties as heads of the departments On August 30, 1965 , in a separate meeting with each depart- ment head, Keith and Vice President C L Ross furnished them with statements of their duties as heads of the departments, which they signed The department heads were notified of a 25-cent-an -hour increase in their hourly rates at these August 30 meetings On advice of Attorney School- field, Vice Presidents Robert Ross and C L Ross , and Keith , Wells, and McBride undoubtedly made reference to them as assistant foremen Production Manager Keith held meetings of the department heads every Monday morning following the June 25 , 1965, representation hearing, and gave them manuals containing instructions dealing with plant management and the directing of employees I find nothing illegal in this conduct of Respondent as the department heads are supervisors within the meaning of Section 2(11) of the Act It very likely increased the competency of these employees and contributed to more efficient operation by Re- spondent ROSS PORTA-PLANT, INC. 507 Huro how he was going to vote, and he replied that he did not know. This testimony is also unrebutted. On August 3, 1965, Vice President Robert Ross said to employee George W. King that he would like him to help "us" de- feat the Union, that he hoped he would vote "No" on Au- gust 4. King said he would help all he could. On August 5, 1965, the day after the election, Vice President Robert Ross assembled all the employees, about 95, in a meeting, and addressed them. Vice Pre- sident C. L. Ross, Production Manager Keith, and Plant Superintendent Wells were also present. Vice President Robert Ross said that all he wanted was to see everybody going back to work. He also said there were to be no further union activities going on in the plant during work- ing hours, and if anyone was caught violating this rule he would be penalized by a 3-day layoff. On August 9, 1965, a Thursday, each of the department heads was handed co- pies of written rules of conduct to guide employees in their conduct during their employment. There were two copies for the department head, and two copies for each of the employees in his department. One copy was to be signed by the employee, and returned. There were no compiled written rules to guide employees' conduct in connection with their employment prior to that time. The rules contain a broad no-solicitation rule, rule 15, banning any type of solicitation or promotion on Respondent's premises unless special permission is received from the plant manager. Solicitation or promotion includes the dis- tribution of written material, but does not include per- sonal discussion among employees on any subject during nonworking time. This rule is broad enough to include the no-solicitation rule announced by Robert Ross on August 5, 1965, and a ban on the distribution of union literature and collection of union dues in nonworking areas of the plant during nonworking time without the permission of the plant superintendent. Otherwise, the written rules are those which an employee would normally expect to con- trol his moral conduct in connection with his employ- ment, whether or not announced to him by his employer, other rules governing his employment which were already in effect, but which had not been reduced to writing in the form of a complied set of rules, and rules identified as those being placed in effect to permit Respondent to comply with the Federal Wage and Hour Law. The last group has to do with the time an employee must "clock" in or out, when he may leave and return from a break, and related matter. C. The Discharges 1. Preliminary findings Respondent began operating in 1958. During the 8=year period from January 1958 to December 31, 1965, it delivered plants in each of these years in the numbers of 103 for 1958; 204 for 1959; 155 for 1960; 138 for 1961; 109 for 1962; 122 for 1963; 153 for 1964; and 150 for 1965. It delivered three less plants in 1965 than it did in 1964, although it opened a new plant building in April of 1965 and had this added plant space for additional em- ployees. In 1965, the number of employees ranged from a low of 55 or 56 to a peak of 115. This peak number was reached around the first of May. At the time of the representation hearing on June 25, 1965, Respondent had approximately 90 employees. In 1965, the number of plants delivered each month was 5 for January, 12 for February, 24 for March, 15 for April, 19 for May, 11 for June, 23 for July, 13 for August, 11 for September, 10 for October, 1 for November, and 6 for December. In 1964, the number of plants delivered each month was 6 for January, 8 for February, 20 for March, 11 for April, 19 for May, 14 for June, 17 for July, 21 for August, 6 for September, 12 for October, 13 for November, and 6 for December. Ordinarily, production demands in Respond- ent's plant drops to a low in November. December, and January, begins to pick up in February, reaches a peak in the period of March, April, and May, decreases slightly in June, increases again in July, and then tapers off to the low in November. While Respondent delivered three plants less in 1965 (the sales price of a plant ranges from $20,000 to $80,000) than in 1964, and its gross receipts were less in 1965 than in 1964 in the amounts representing the sales value of the three units, the number of employees in 1965 ran 20 percent higher than the number in 1964. Respond- ent's month-to-month operations are geared to the sales orders it receives.21 The Board of Directors consisting of President Ruben Ross, Vice President Robert H. Ross, and Vice President C. L. Ross, informs Production Manager Keith to reduce labor costs as well as other costs when there is a falling off in sales orders, and, as a consequence, the estimated gross receipts figures are ad- justed downward. Another factor that requires reduction in labor costs as well as other factory costs is a cancella- tion of orders either before production is started, or after it is started or completed, and the plant is waiting delivery, is in transit or has been delivered. Reduction in factory costs is vitally necessary to the maintenance of a proper balance between costs and receipts especially in a high cost operation such as Respondent's. Respondent also has the established policy of tem- porarily merging a department with another when the production needs of the department do not, on a cost ba- sis, justify operating it as a separate department. In addi- tion, employees are transferred to departments where their services are needed. The department head stays with his crew and directs them during the temporary merger, and goes with them on a transfer unless there is work in his department which requires his attention. As previously stated, he is a working supervisor, and works with his hands. For example, if there is a need for addi- tional workers in the Parts Department or Uniplant De- partment, and there are no orders for a 35-4, LP 60-7, or 105-7 plant, the employees in the 35-4, LP 60-7 Depart- ment may be transferred to the Parts Department or the Uniplant Department. The department head will go with them, and they will work as a group unless the depart- ment head's services are needed for something to be done in his own department. In the fall of 1965, Long's Scales Department in anticipation of an order for heavy scales, accelerated its work output, and finished the work scheduled. The order for the heavy scales did not materi- alize, so his workers were assiged elsewhere. He remained in his department to complete some unfinished work. The work demands on his department had in- creased by the first week of October, and he had two em- ployees returned to him by the time he was discharged on October 20, 1965. 21 As previously found, deliveries are scheduled for 30 to 60 days after the sales order, and in some cases 90 days. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In June 1965, a two-unit plant was returned by the purchaser to L. B. Smith Co., Albany, New York, one of Respondent's distributors. These two units were returned to Respondent at Brownwood, Texas, in September or October 1965. One was still on the premises at the time of the hearing in January 1966. Anderson Equipment Company in June 1965, returned a unit of a two-unit plant shipped to them. This unit was also on Respond- ent's premises at the time of the hearing. In May or June 1965, an order for an accumulated batch plant from Respondent's distributor in Guatamala was canceled. Van Lott, Inc., another distributor of Respondent, can- celed an order for a plant in May or June 1965. Produc- tion had not been started on these units. In June 1965, George & Associates, a distributor of Respondent in Pennsylvania, canceled an order for a Model 160 Uniplant, with a selling price of $45,000, while it was in transit, and only 200 miles from destination. Respondent rerouted the unit to Chesapeake Bay and Supply Com- pany, Washington, D.C., to fill another order scheduled for delivery 30 days later. In May 1965, Manatt Con- struction Company, Brooklyn, Iowa, canceled a sales order of a plant. with a selling price of $36.000, that had been built in April and May 1965, and was in Respond- ent's plant year in Brownwood, Texas, awaiting delivery to the destination named by Manatt. Respondent delivered this plant to another customer from whom it had a sales order. In July 1965, Olsen Equipment Com- pany, Minneapolis, Minnesota, canceled an order for a unit that had been completed. Respondent was waiting for delivery instructions at the time of the cancellation. Sometime in the period of 1965, between June and December, Western States Machinery Company can- celed an order for a plant when it was in production. This unit was completed and used to fill another sales order. On the morning of June 29, 1965, Respondent Vice President Robert Ross held a meeting of all employees, and informed them of the cancellations that had been made in that month, and in May, and stated that Respond- ent may have to terminate some employees. In the after- noon of June 29, 1965, Vice President Robert Ross held a meeting of the department heads in which he referred to the cancellations, and stated again that some employees may have to be terminated. He asked the department heads to give some thought to selecting the ones in their departments who could be let go. Vice President C. L. Ross testified that his brother also referred to a dropping off in sales orders. He also testified that in the middle of June the Board of Directors decided to reduce costs because of the drop in sales, and to advise Production Manager Keith to reduce labor costs by $500 a week. C. L. Ross testified that he so informed Keith shortly thereafter. This is corroborated by Keith's testimony. C. L. Ross also testified that toward the latter part of May 1965, the Board of Directors decided that Keith should start reducing the number of personnel by laying off the incompetent employees or deadwood. Keith cor- roborated this testimony. 2. Termination of Jack W. Hughes General Counsel contends that Respondent, on June 1, 1965, discriminatorily discharged Jack W. Hughes, a welder with 3 to 4 years' experience. Hughes was discharged about 11 a.m. on June 1, 1965. He had been hired on May 10, 1965. He was employed in the Uniplant Department headed by Pete Ferguson. About 10:30 a.m. when he was in the back of the Uniplant Department lay- ing out material, Production Manager Keith motioned to him to come to where he was standing. He went there. Keith asked Hughes how he liked his job. He said he liked it, but not the wages. Keith then asked him what he knew about the Union. He asked Keith, "What Union?" Keith replied it was rumored someone was getting up a union. Hughes then said that all he knew about it was that employees were asked how they felt about a union, if they would vote for it or against it, and why. Keith then asked him if he circulated the union petition. He said yes. Keith said that the circulation of the petition could be dan- gerous. On May 21, 1965, Hughes had signed a petition for union representation prepared by Calvin David In- gram, and obtained 37 other signatures in it. He returned it to Ingram about 5:15 p.m. on May 21. Respondent did not have a no-solicitation rule. About 11 a.m. on June 1, 1965, Plant Superintendent Wells went to Hughes' work station, and told him to get his tools, and come with him. Hughes asked him if he was being let go. Wells said yes. Hughes asked if he was being let go because of his union activity. Wells denied it was. He said to Hughes that his work had not improved as it should have. He brought him to Keith's office, and gave him a termination slip to sign. The explanation on the form for the discharge was that Hughes' work was not as good as it should be. He told Hughes he could not have his check unless he signed the termination form. He signed it, but told Wells he was doing so in order to obtain the check, and not because the explanation for the discharge was true. He told Wells it was not the truth. Pete Ferguson, who had signed a union authorization card, told Hughes at the beginning of his employment, that his vertical and horizontal welds were satisfactory, but his overhead welds needed improvement. Ronald Coleman, a welder with whom he worked, told him a short time later that he was catching on fast. Ferguson told him the same thing. Vice President Robert Ross saw him without glasses, cutting a hole with a torch in a con- trol box for a conduit, and told him not to do that work without glasses. He obtained a pair of glasses from Keith's office.22 Production Manager Keith testified that he had been informed by the Board of Directors in the latter part of May that sales were off, and to start reducing the number of personnel by getting rid of the incompetent employees. Vice President C. L. Ross corroborated his testimony. Keith also testified he had decided the week prior to June 1, 1965, to terminate Hughes, and employees Bush and Haak, and informed the Rosses on Friday, May 28, that Hughes would be one of the three let go. Respondent's of- ficials testified that Respondent did not have a policy of giving notice of termination or layoff, but did give notice if it was possible to do so, and laid off and terminated on the basis of ability, and considered seniority only where abilities of employees being considered were equal. How- ever, when Keith spoke to Hughes shortly before Wells notified him he was laid off, he did not mention or indicate in any other way that he had decided to lay him off. When 22 On evaluation in context of Hughes' and Keith's testimony in regard to Hughes' employment and discharge, I credit the testimony of Hughes ROSS PORTA-PLANT, INC. 509 Wells informed Hughes of the layoff, the latter asked him ironically to thank Keith for notice of the layoff, and Wells replied, "It's not his fault or mine, either one." 2^' Hughes has not been reinstated or recalled. 3. The alleged layoff of all rank-and-file employees on June 2 and 3, 1965 On June 1, 1965, there was posted on the bulletin board on which notices to employees were posted a notice that the plant would be closed down on June 2 and 3, 1965, for the purpose,of taking a general inventory. The plant was closed down for these 2 days. During that time, Barton Keeler, head of the Purchasing Department, with the assistance of office employees took the invento- ry. General Counsel contends that the closedown, and the cutting off of earnings for rank-and-file employees for June 2 and 3, 1965, were in reprisal for employees union activity, and that Respondent's reason that the inventory was needed in connection with a financial statement to be given to the Citizens National Bank of Brownwood, Tex- as, was pretextual. General Counsel subpenaed Vice President Robert Ross to testify in regard to this issue. He testified that during the Memorial Day weekend there was an an- nouncement in the Brownwood newspaper that there was a change in ownership of the Citizens National Bank of Brownwood, and that the Board of Directors became concerned because Respondent's accounts receivable were high, and Respondent had borrowed considerably more money than its financial position indicated was ap- propriate. The Board decided that a financial statement should be prepared to show the current financial condi- tion of Respondent, and that in connection with the preparation of the statement, it was necessary that an in- ventory be taken of equipment used in production and maintenance, and of the plants, subassemblies, and parts being built and in the process of construction. An inven- tory of parts, subassemblies and other materials on hand in the Stockroom, Shipping and Receiving Department headed by Croft was not necessary as that department kept a running inventory of these items. Vice President Ross testified that the inventory was taken by Keeler and the office pesonnel, and the financial statement was prepared and furnished to the Bank. Ross testified that President Drinkard of the Bank did not request the taking of the inventory, but did request that the statement be prepared and furnished to the Bank. This testimony is un- rebutted. General Counsel contends that the reason for the inventory advanced by Respondent is pretextual because in the past a general inventory was always taken at the end of the fiscal year which was in November, or when the plant was closed down for vacation. He con- tends that the plant was shut down for the inventory in reprisal for the union activity of the rank-and-file em- ployees. The only evidence of union activity known to Respond- ent was the circulation of the petition for union 23 Bush was also notified in June that he was laid off Haak was laid off June 4. He was absent on June 1. A general inventory was taken on June 2 and 3, 1965, and the rank-and-file employees did not work on those days. General Counsel does not allege that Bush and Haak were discriminatorily discharged 24 Employee Calvin David Ingram had the petition in his possession from May 21 until June 2, when he gave it to Union International Repre- sentative Frazier 25 Ingram testified Wells informed him of the layoff, and had the termination form in his hand Keith testified it was he. I credit Keith representation, identified as the "barbecue list."24 While the decision to take the inventory was made over the weekend, the earliest day on which the notice could be posted that it would be taken was on June 1. Memorial Day was on Sunday, May 30, but celebrated on Monday, May 31. This was a nonworkday. The Union's Interna- tional Representative Frazier held a meeting during Wed- nesday, June 2, 1965, at the Holiday Inn in Brownwood, which was attended by rank-and-file employees and 13 department heads. The rank-and-file employees and the department heads signed union authorization cards at this meeting. Another union meeting was held by Frazier on the evening of June 3, 1965, at Flat Rock, a short distance away. There is no evidence that any activity in- volving Frazier occurred any earlier than June 2, and the activity on that day occurred away from Respondent's plant. The decision during the Memorial Day weekend to take the inventory, and the posting of the notice of the in- ventory on June 1, 1965, could not be due to the union activity on June 2 and 3, 1965. No evidence was ad- vanced by General Counsel that Respondent had ad- vance knowledge of the plans to hold the two union meetings. Very likely, the union meeting on June 2 during the workday hours was not even arranged until it was found, on the posting of the notice of the inventory on June 1, that the rank-and-file employees would not be working during June 2. General Counsel contends that the inventory, if made in good faith, would have been taken on the Memorial Day holiday of May 31, 1965. 4. The layoff of Calvin Ingram and James S. Cox on June 29,1965 Calvin Ingram, an experienced welder with 6 to 8 years' experience, was laid off on Wednesday, June 29, 1965, about 4:15 p.m. by Production Manager Keith in the presence of Vice President C. L. Ross and Plant Su- perintendent Wells. Wells had come to Ingram's work station, and said to him that Keith wished to see him. They went to Keith's office. Keith said to him that due to financial difficulties Respondent was having, he was going to have to lay off some of the men, and he was one of them. Keith said the layoff would be effective Friday, July 2, 1965. He had a termination form in his hand, and asked Ingram to sign it.25 Ingram refused, and asked Keith if he was being let go "on account of the Union business." Keith replied that he said it, not him, and In- gram retorted that he knew "damn well that's what it's for," and asked him why he was keeping welders who could not weld, and letting welders go who could weld. Apparently Keith did not reply, and he asked him if his work was satisfactory. Keith answered that it was, and Ingram said that since he was going to lay him off any- way, he might as well tell him he was the one who started the union activity. He then asked Keith if he still wanted him to work until Friday. Keith answered no, that he would have his check ready for him in 5 minutes, and for him to check his tools into the supply room.26 26 Wendel Ingram, the brother of Calvin, Wayne Turner, and James Shelby Cox were also notified on June 29, 1965, they were being laid off because of financial difficulties Respondent was experiencing. General Counsel only alleges the layoffs of Calvin Ingram and James Cox to be discriminatory discharges The record does not disclose the circum- stances of the layoffs of Wendel Ingram and Wayne Turner on Tuesday, June 29, or of their election to leave on June 29 instead of working until Friday, July 2. According to Keith, Calvin said on June 29 that he would take his check then, after he told him he could work until July 2 I have credited Ingram's testimony. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calvin Ingram began work on May 17, 1965. When Wells looked at the preemployment test in welding which he gave to Ingram, he said to him that it was the best he had seen for a long time. Wells informed Keith of the results of the test, and Keith said to Ingram he would like him to work for them. Ingram asked him how permanent the job would be, and Keith answered that Respondent had a slack period during the winter months, but enough men quit so a layoff was not necessary. Keith then added that in case of a layoff, from the looks of his work and ex- perience, he should not have anything to worry about, because seniority did not mean anything there, that it was always the best workers they kept. Ingram accepted the job of welder, and was assigned to the Parts Department under Ruben H. Packer. On June 25, 1965, which was the Friday before the Tuesday on which he was laid off, Calvin, along with his brother Wendel and James Cox, attended some of the representation hearing which was being held that day in the courthouse in Brownwood, Texas. The three of them lived in Cisco, Texas, and commuted together daily to and from Respondent's plant in Brownwood, Texas. When the work day ended at 5 p.m. on June 25, they stopped by the hearing instead of driving direct to Cisco, after having coffee at the restaurant across the street from the plant. It was 5:15 to 5:30, when they arrived at the hearing. I credit Ingram's testimony that at the conclu- sion of the representation hearing of June 25, 1966, he and his brother, employee Wendel Ingram, shook hands with Union International Representatives D. A. Braze] and W. H. Frazier, in the small hearing room of the courthouse in Brownwood, Texas, where the hearing took place , and in which Vice Presidents Robert Ross and C. L. Ross, Production Manager Keith, and Plant Su- perintendent Wells were present when the hand shaking took place. On May 21, 1965, Calvin Ingram prepared the petition for union representation, identified as a "barbecue list" to conceal its true identity, signed it, and gave it to em- ployee Vergil Haak, who signed it and secured 8 other signatures on it. Haak returned it to Ingram about 10 a.m. Ingram then gave it to employee Jack Hughes. Hughes returned it to Ingram about 5:10 or 5:15 that afternoon with 40 or 45 signatures on it. On May 22, 1965, Ingram placed it under the blotter on the desk of Ruben Packer, the department head. Six to eight other employees signed it when it was under the blotter. Ingram gave the list to Union International Representative Frazier on June 2, 1965.227 On June 2, 1965, Ingram attended an unofficial meeting of the Union in International Representative Frazier's room at the Holiday Inn Motel, and a meeting on June 3, 1965, at Flat Rock, Texas, called by Frazier. The latter meeting lasted approximately 1-1/2 hours. In- gram signed a union card on June 6, 1965. Ruben Packer, who headed the Parts Department to which Ingram was assigned during the period of his em- ployment from May 17 to June 29, 1965, told him during this period that he wished he had more men who could just take a job and do it, without having to be told about it, and on several occasions told him that Production Manager Keith said he did a fine job. Packer testified that both Keith and Wells praised Ingram's work, and that In- gram did fine work on light gauge steel. On June 29, Wells asked Packer to permit Ingram to help Ben Gilbert of the Machine Shop Department to run a weld on a con- trol box for a conduit. Wells said to Packer at the time that Ingram did fine work. Later that day Packer was in- formed by Ingram that he was being let go. Packer was not consulted prior to notice of the layoff which Ingram received. Packer had testified in the representation hear- ing on June 25,1965, on behalf of the petitioner Union. James Shelby Cox, a welder with 7 years' experience, was also laid off on Tuesday, June 29, 1965, effective Friday, July 2, 1965. He was informed by Keith on June 29 that he was going to have to lay him off on Friday. Cox refused to sign a form entitled "Termination of Employ- ment" handed him by Keith. The reason for "termina- tion" typed in on the form was, "Reduction in forces - No expectation of future recall. Termination to take effect 7-2--65." Cox said he did not sign because of the statement, "No expectation of future recall." Cox is the James Shelby Cox who accompanied Calvin and Wendel Ingram to the representation hearing at the courthouse in Brownwood, Texas, on June 25, 1965, after 5:15 to 5:30 p.m. when they had finished their daily employment at Respondent's plant. Cox shook hands with Union International Representative Frazier after the hearing was over, and when Vice Presidents Robert and C. L. Ross, and Keith and Wells were present in the hear- ing room. Cox was hired in April 1965. He was assigned to the 35-4, LP 60-7 Department, headed by Donald Cox. Assistant Plant Superintendent McBride came to Cox's work station at the end of the workday on June 29, and took him to Keith's office. When Cox returned, he told Donald Cox he was laid off. Donald Cox told McBride he should not lay off Cox as he was a good welder, and a real good hand. McBride did not answer. Donald Cox testified that at the time Cox was laid off, Cox, Blackmon, and Millhollon were his top welders, and that Coy Brooke and James Land, two of his other welders at the time, were not good welders. He had complained to McBride and Wells about the poor quality of their work, and they had said to use them inside of the plants where their welds would not show. About 10:30 am. on July 2, 1965, McBride came to where Cox was working, and said that it was going to hurt his department to lose him. Cox replied that he was not that important, and McBride said that he knew what was going on.28 About 11:30 a.m., McBride told Cox to check in his tools. He did, and McBride and he went to Keith's office. Keith told him that they were going to pay him through 5 p.m., and let him go early. When he left, shortly afterwards, there were wives of other employees and a barbecue truck in front of the plant building. A barbecue was being held that day. Cox signed the petition for a union, the "barbecue list," and signed a union authorization card, and passed out 15 to 20 of them at the June 2 and 3 meetings. He obtained signatures on 15 cards between June 3 and 7. He col- lected a signed card on Respondent's property from Dal- ton Ferguson, head of the Uniplant Department. Keith testified he let Cox go because he was not as good as welders who were retained, and lived 50 miles away in Cisco, and commuted daily with Calvin David Ingram and Wendel Ingram. Cox has never been rein- stated or recalled by Respondent. "Upon evaluation of relevant demeanor and oral testimony, I do not credit Keith's testimony that Hughes admitted to him on June I, he was soliciting signatures on the "barbecue list" on June I '"This is Cox's testimony. McBride denied it On demeanor, I credit Cox. McBride admitted that on the day Cox was laid off he told him he hated to see him go because he was a good worker ROSS PORTA-PLANT, INC. 5. The discharge of Gary Wayne Carriger Gary Wayne Carriger was discharged after 5 p.m. on August 12, 1965 . Carriger began working for Respondent on February 25, 1965, as a helper in the Finish-Up De- partment No. 2 under Pete Dabney. About 5:05 p.m. on August 12, Plant Superintendent Wells informed him that Keith wished to see him. He went to Keith's office, and Pete Dabney, his department head, came into the office shortly afterwards . Wells was also present. Keith showed Carriger four or five photo- graphs of writings on silos, and said to him that they had definite proof that he wrote the writings on the silos. He denied he wrote any of the writings . Keith said he had had his handwriting examined. Carriger then picked out one photograph , and said "I wrote this one." This photograph showed the writing "Vote Yes" on a silo top or cover. Keith thereupon said that he had to take disciplinary ac- tion, and lay him off for 3 days.29 Carriger said that he could not be laid off for 3 days, that his wife was expect- ing. Keith said he had to lay him off. Dabney asked Keith if the layoff was not "pretty stiff punishment for such a small act?" Keith replied he had to go along with Robert Ross's disciplinary action . Carriger then said "he'd be back in the morning to pick up his check." Dabney visited Carriger at his home that evening, and asked him if he would take the 3 -day suspension if Keith and Wells would put him back to work . Carriger said he would. Dabney asked Keith and Wells the next morning, August 13 , if they would put Carriger back to work after the 3-day suspension. He told them Carriger agreed to go back to work. They said they would have to ask the Rosses, that they were in doubt. When Carriger reported to Keith's office at 9 a.m. on August 13, he asked him if they had decided whether he could come back after the 3 days. Keith said yes, that he could pick up his check. Car- tiger has not been reinstated or recalled. Carriger testified that on August 1, 1965, during his lunch hour he wrote with soapstone the "Vote Yes" on the top to a cement silo in 8-inch letters. Employee Luster testified that he saw the words "Vote, No" painted on the side of a tractor that was driven around the plant area be- fore the election . Luster, also testified that he wrote in 12-inch letters "Vote Yes" on a silo 3 days before the election. Employee John Newby testified he saw Luster writing "Vote Yes" on the silo, and saw President Ruben Ross photograph what Luster wrote on the silo a day or two before the election. It is undisputed that Carriger signed a termination form when he picked up his check on August 13. The form he identified as the one he signed is dated August 5, 1965. It is stated therein that the last day worked was August 5, and that the reason for the discharge was: Resigned in lieu of acceptance of 3-day layoff for transgression of Rules (entering pro-union informa- tion on Company Property). Production Manager Keith signed the form in the space provided for his signature, and Carriger signed it below the written certification that the reason given was a true statement of the reason for his termination. I have found, supra that Harvey Hamlett, head of the Machine Shop Department, asked Carriger on or about June 16, 1965, " As found supra, Vice President Robert Ross announced to the employees in a meeting on August 5 that there was to be no union 511 to sign an antiunion petition. Carriger refused to sign it. Carriger signed a union authorization card on June 2, 1965, and attended union meetings on July 22 and 29, 1965. 6. The discharge of Frank Long Frank Long, who headed the Scales Department, was discharged on October 20, 1965. Long was first employed on February 4, 1959. Two or three years later, Respondent set up a Scales Depart- ment, and Long was placed in charge. Barton Keeler ad- vised him of the assignment, and told him that they wanted the best welder in charge. Long's department made the scales for the small batch plants; the larger units, that is the Models 35-4, LP 60-7, and LP 105; the Uniplants, and the silos, and built the heavy duty scales described supra, Building lever type systems and calibrat ing weights, as well as the doing of other assignments in scale building, are exacting and precision work. The jour- neyman must not only have ability as a welder, but also in all the facets of fabrication. Long was the acknowledged expert in scale building. The scales were designed in the Engineering Department under Isom, and Long and his crew built them. Vice President Robert Ross was highly satisfied with the Scales Department, and what it was doing under Long. On one occasion, Robert Ross almost exultingly said to Long that he and Long were in the scale business. Respondent was the only company in Texas building heavy duty scales. The Rosses, Keith and Wells were satisfied to rely on his judgement in connection with problems arising in the con- struction, cleaning and overhauling of the scales. On one occasion, when Long departed from the blue prints in the building of a weigh bin, Wells endorsed the variance because Long was of the opinion it was permissible. Assistant Plant Superintendent McBride was trained by Long in the building of scales, their cleaning, and over- haul. So was Charles Kizer, an employee highly regarded by Respondent. I have found that Long and the other department heads responsibly directed the employees in their respective de- partments, and effectively recommended wage increases, terminations, and transfers, and were supervisors within the meaning of the Act. Long's testimony of his duties, and the direction of employees, especially on cross-ex- amination, supports this finding. Long was subpenaed by petitioner Union to testify at the June 25 representation hearing, although he did not testify. After the hearing, when he was talking to International Representative Fra- zier, the latter interrupted their conversation to shake hands with Vice President C. L. Ross. A short time later he and Ruben Packer again talked to C. L. Ross. Long said to Ross that he wanted him to know he was for the Union all the way, and wanted to tell him so, before someone else did. Packer said that it was the same with him. Ross replied that he knew they were, and ap- preciated their being honest with them. He also said, "We're going to do everything we can to beat the Union, even if it means selling the plant." Long signed a union authorization card on June 2, 1965, met with Interna- tional Representative Frazier on June 2, and attended the June 3 meeting of the Union at Flat Rock. He joined the Union after he was discharged. activity during working hours, and that a breach of this ban on such activity would result in a 3-day layoff 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated supra, Harvey Hamlett, Machine Shop De- partment head, solicited signatures on a petition against union representation, a day or so after Vice President Robert Ross spoke on June 7 to the employees about the union organizational activity. At the time of the solicita- tion, Robert Ross asked Long if he had signed this peti- tion, and for him to remember who was paying him. Although Long received a 20-cent-an-hour increase on August 30,30 Robert Ross was unfriendly to Long follow- ing the June 25 hearing. On one occasion, he told Donald Cox, head of the 35-4, LP 60-7 Department, to avoid as- sociating with Long because of the latter's union activity. Robert Ross called a meeting of employees on August 5, the day following the election, to announce the Board's telegraphic order granting a review of the Regional Director's decision of July 14, and staying the election. Ross said that they did not understand what the order meant. He then said that Frank Long was so smart, that maybe he could tell them. When Long saw the order the previous evening, he told employee Kizer it was a delay- ing tactic. Kizer told employees Jackson and Morris what Long said, and they told Vice President C. L. Ross. Robert Ross, C. L. Ross, Keith, and Wells met with the department heads later on August 5. Robert Ross said to them that the union activity had caused poor production and sloppy work. Long stood up and said he did not be- lieve it did. One of the Rosses said it did, but the other Ross told him to restrain himself, that they did not want any personal feelings involved in the matter. Ross and Long had a number of differences between August 5 and October 20, from which it was apparent that Long irritated Ross. Ross told him on one occasion to keep his mouth closed, that he was causing trouble in the plant. On another occasion, Ross told him he had better straighten up his attitude or get out, and Long replied, "Mr. Ross, your attitude toward me could straighten up also." Following this exchange between him and Robert Ross, Keith called him into his office, and told him that he had been insubordinate, and while he could discharge him or fine him 3 days, he would just write it up, and put it in his file. He asked him not to be insubor- dinate anymore. Long said Keith was his boss, and he would do as he instructed him. During this period, Long "clocked out" a number of times before the end of the workday, which was at 5 p.m. He always had permission. On one occasion, Keith asked him if he was going to attend a union meeting. Long adopted the practice of making frequent trips to the drink- ing fountain and the restroom, the stockroom, and other departments. Long testified he visited other departments to see how the work on the plants was progressing so he would know when his department had to have the scales completed for installation. He said the Engineering De- partment could change the design of the lever systems, and he did not want to go ahead until he had to, if there was that possibility. Joe Cervenka, head of the Electrical Department, resigned his position on July 9, 1965, and later Respond- ent4iiredRay Manning. It was rumored in the plant that he was hired at $3 per hour. The department heads received $2.50 per hour. The two journeymen electri- cians received $2.25. On the evening of October 19, 1965, which was payday, Long, Manning, and Salas had coffee in the restaurant across from the plant. Long testified Manning showed them his paycheck, and the slip showing the regular and overtime work. He received $3 per hour. The next morning Long informed Larry Jackson, head of the Automatic Controls Department, and Wendel Morris, that Manning was receiving $3 per hour. Shortly afterwards, Long saw them in Vice Pres- ident C. L. Ross' office talking to him. Later in the morn- ing, Wells accused Long of spreading a rumor Manning was getting $ 3 per hour. Long denied spreading such a ru- mor. About 4:30 p.m., C. L. Ross and Keith told him Bob Ross wished to see him. They went with him to Bob Ross' office. The latter said "hello Frank, I hate to have to do this", and Keith handed him a termination form. It was stated therein that he was discharged for not doing his job as assistant foreman, poor attitude, and quality of his work was poor. He was terminated effective October 20, 1965. Keith drove Long to his home in his automobile. On September 8, 1965, Hugh Smith, of counsel for Respondent, met with Long in Robert Ross' office. After they were introduced by Robert Ross, Smith said to Long he understood he gave a statement to the Board, and Long answered that he had. Smith said he would ask him some question, and he, Long, would decide if he would answer, and what answer to give, and if he decided not to answer, his decision would not be held against him. He also asked if Long would sign a letter to the Board in which would be a request for a copy of Long's statement. Long said he would think about it. That evening he met with Board Agent Sharon Stubbs to whom he gave a statemen The next morning he met again with Smith. Smith asked him a question about an alleged incident. Long asked him if what he said the day before about Long being the one to decide whether he would answer his questions, was still good, and Smith said yes. Long then said that he would not say anything and left. On the after- noon of September 9, C. L. Ross called him into his of- fice, and handed him a letter prepared for his signature in which a request was made for a copy of his statement. He told C. L. Ross he had told him he would not give him a copy of his statement, and Ross said he thought he might have changed his mind. Long answered that he had a lot of respect for him, but did not intend to help his lawyer do his job. 7. The discharge of Department Heads Fred Bates, Donald J. Cox, Earl H. Dabney, Billy L. Hobbs, Doyle H. Ward, and Billy Ray Weatherman It is undisputed that at the weekly Monday morning meeting of the department hheads on November 1, 1965, Production Manager Keith advised them to disregard material of the Union sent through the mail, and not to at- tend the meeting of the Union scheduled for Tuesday, November 2, 1965. Department Heads Pete Dabney, Billy Hobbs, Reggie Wells, Clyde Adams, Harvey Ham- lett, Donald Cox, Fred Bates, Tom Huddleston, and Billy Ray Weatherman were present. President Ruben Ross, Vice President Robert Ross, and Assistant Plant Su- perintendent McBride were also present. Company busi- ness was discussed during the remainder of the meeting. Bates, Cox, Dabney, Hobbs, Ward, and Weatherman attended the meeting of the Union at the Browntowner Motor Inn, Brownwood, Texas, on November 2, 1965, beginning at 8 p.m. There were a total of 26 employees of Long was receiving $2.30 So his raise to $2 50 meant only a 20-cent increase ROSS PORTA-PLANT, INC. 513 Respondent present. Twenty-five paid dues, and officers were elected. Doyle Ward was elected a member of the Bargaining Committee, and Wayne Cornelius was elected secretary of that Committee. On November 3, 1965, in the morning, Wells asked Bates, Cox, Dabney, Hobbs, Ward, and Weatherman to go to Keith's office. They did, and waited in the outer office. Each was called separately into the inner office. Production Manager Keith, Assistant Plant Superintendent McBride, Vice President Robert Ross, and Plant Superintendent Wells were present. Keith asked each of them if he was at the union meeting. Each admitted he was. Keith then told each of them he was discharged. Dabney said the Board held they were not foremen. Ross said the paper they signed on Au- gust 30 changed all that. Keith then said to Dabney that two different outfits were not going to run the place. Ross said to each of them he could not be both a dog and a cat. Ross and Keith told each of them that he was a good hand, and they hated to see them go. Keith told each of them that his check would be ready at 1 o'clock. They picked up their checks about 1:30 p.m. at Robert Ross' office in the administration office at the top of the hill. On September 8, 1965, Hugh Smith, of counsel for Respondent, asked Hobbs and Donald Cox if they had given statements to the Board which they signed. They admitted that they did. Dabney was asked by Smith on September 9 if he gave a statement to a man from the Board. He said he did not. He admitted on the stand that he did give a statement to a Board representative, but the representative was Sharon Stubbs, a lady. Smith asked Hobbs and Cox if they would sign a letter to the Board in which a copy of the statement was requested. They said they would. Hobbs was never asked to sign a letter. Cox was asked to sign such a letter on September 9 by Vice President C. L. Ross. He declined, and Ross said, okay. When Smith interviewed Dabney, Hobbs, and Cox, he said that they did not have to answer any questions he asked them, that they should decide whether to answer or to keep silent. At the time of the hearing, Truman C. Millhollon was in charge of Shear and Break, Wayne Cornelius of Con- veyor Roller, Bobby J. Blackmon of Small Batch Plants, Gilbert of Scales, Reggie Wells of 35-4 and LP 60-7, Thomas Huddleston of Parts, and Ronald Coleman of Conveyor. The record does not show whether Ray Manning was placed in charge of the Electrical Depart- ment to replace Joe Cervenka, who left on July 9, 1965, even though he was paid $3 per hour. Nor does the record show who succeeded Dabney as head of the Finish-Up Department. Newby was the leadman in that department. There was no replacement for Billy Hobbs as Quality Control Engineer. McBride took over this work. On June 25, 1965, Doyle Ward was in charge of Shear and Break, Weatherman of Conveyor Roller, Reggie Wells of Small Batch Plants, Long of Scales, Donald Cox of 35-4 and LP 60-7, Packer of Parts, Bates of Conveyor, and Dabney of Finish-Up No. 2. This last department was merged with Finish-Up No.1 under Dabney on August 20, 1966, when Hobbs was placed in charge of Quality Control. Ward, Weatherman, Cox, Bates, and Dabney were in charge of the departments they headed on June 25 when they were discharged on November 3, 1965. Hobbs was in charge of Quality Control. 8. The layoff of George W. King, Bud Strickland, Marion O'Dell Norman and Gary Brown on November 12, 1965 It is undisputed that Respondent laid off George W. King, Bud Strickland, Marion O'Dell Norman, and Gary Brown on November 12, 1965. Respondent informed them they were laid off for economic reasons, and con- tends that this was the true reason for the layoff. General Counsel contends that King, Strickland, and Norman were discriminatorily selected for layoff, and that Gary Brown, while not discriminatorily selected for layoff, was denied reinstatement earlier than January 4, 1966, for discriminatory reasons. King, Strickland, Brown, and Norman were offered reinstatement on December 22, 1965, and except Strickland, returned to their jobs on January 4, 1966. Strickland did not respond to the offer of reinstatement. King, Strickland, and Brown are wel- ders, and Norman is a helper. At the time of the layoff, Brown was in the Parts De- partment under Thomas Huddleston. King, Strickland, and Norman were in the merged Uniplant and the 35-4, LP 60-7 Departments, under the direction of Pete Fer- guson. Ferguson had been in charge of the Uniplant De- partment for sometime. Donald Cox had been in charge of the 3 5-4, LP 60-7 Department. Cox was discharged on November 3, 1965, for attending a meeting of the Union on November 3, 1965. About November 29, 1965, the two departments were again operated separately. Fer- guson retained his position as head of Uniplant. Reggie Wells was placed in charge of the 35-4, LP 60-7 Depart- ment. It is undisputed that King, Strickland, and Norman were skilled and able workers at the time of the layoff. Assistant Plant Superintendent McBride, under whom the merged Uniplant and 35-4, LP 60-7 Departments operated, made this clear in his praise of them when they were terminated. When the layoff occurred, there were in the merged departments, in addition to Pete Ferguson, King, Strickland, and Norman, employees Bill Crim, Eddie Reigle, Norman Cox, Bobbie Blackmon, and Tru- man Millhollon. King and Strickland and Millhollon had the lowest seniority. Ronnald Coleman had been trans- ferred to the Conveyor Department on November 10, 1965. However, he had more seniority than the three laid off. Pete Ferguson, Crim, King, Strickland, Reigle, Cox, Norman, and Millhollon had signed union authorization cards sometime in early June 1965. The evidence does not disclose that Bobbie Backman signed an authoriza- tion card. So eight of the nine in the merged departments were allied with the Union. Blackmon, according to Donald Cox's testimony, had been his leadman. As stated above, Ferguson was the head of the merged depart- ments. The two latter employees obviously would be the last to go on any king of a layoff. They had seniority, skill, and experience. Blackmon was later placed in charge of the Small Batch Department. Millhollon, who had signed a union authorization card, was to become head of the Shear and Break Department. The evidence shows that the lowest production month is November, and that layoffs always occur at that time. McBride's testimony and the testimony of General Coun- sel's witnesses show that there was little work in the 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merged departments during the first 2 weeks of November. Two Uniplants, a Model 100 and a Model 160, to be completed by January 15, 1966, for display by Respondent in Chicago, were started on November 9. This was the only work until the middle of November. According to McBride, the crew in the merged depart- ments prior to November 12 should have been working on four units instead of two. Three orders came in on November 15, but there is no evidence that these orders were in the sales department , and were deliberately held there until after the layoff. General Counsel relies on the evidence that King, Nor- man Cox, Strickland, Crim, and Reigle told McBride on November 3 that they had attended the meeting of the Union on November 3. However, General Counsel does not explain how Norman Cox, Crim, and Reigle retained their jobs if Strickland, Norman, and King were laid off because they attended the meeting of the Union. Nor does he explain why these six employees made the disclo- sure to McBride, or assumed that Respondent would be so naive to fall for what might be a trap. Nor does he ex- plain the appointment of Wayne Cornelius to head the Conveyor Roller and Small Batch Plant Departments in November 1965. He had been elected secretary of the Union's bargaining committee at the meeting on November 2, 1965. The appointment was after the meet- ing of the Union.31 Counsel for General Counsel also contends the discrimination is clear because all those laid off except Brown were in one department, and, therefore, the layoff was not plantwide but limited to a department. There is no evidence that the low level in business on November 12 was elsewhere than in the merged Uniplant and 35-4, LP 60-7 Departments. It is to be noted that Gary Brown who was also laid off on November 12 was in the Parts Department . And Millhollon, a signer of a union authorization card, was in a few days to become head of the Break and Shear Department . Counsel for General Counsel argued that John Newby, who began working part time in the merged departments on November 12, was not laid off although all he had was the highest seniority . Skill and not seniority was the stan- dard for retaining an employee at the time of a layoff. However, Newby had been a leadman under Billy Hobbs in the Finish-Up No. 1 Department, and had been receiving $2.25 an hour, the same as Hobbs, until the de- partment heads were raised to $2.50 on August 30, effec- tive September 5. This evidence shows that Newby had skill as well as seniority . He signed a union card, and told Wells on November 3, 1965, he was a member of the Union. I credit the testimony of C. L. Ross that five workers without prior employment history were hired before wel- ders King, Strickland, and Gary Brown were offered rein- statement because they were hired to learn and operate the semiautomatic welding machines that Respondent has installed. Another worker without prior employment his- tory was also hired . But he is a steel stockman , and his classification was needed. None of the employees laid off were of this classification. I credit C. L. Ross' testimony that Respondent had made a study which disclosed that persons with no welding experience make better opera- tors of the semiautomatic welding machines , than welders who have welded under the old welding methods. The latter are accustomed to taking "breaks," and have dif- ficulty in operating the machines without the "breaks," with the result they do not have the smooth weld or the output of the operator who has had no experience with frequent taking of breaks. Breaks are few and far between with the semiautomatic machines . I also credit the testimony of C. L. Ross that Respondent did not have the policy of recalling laid off workers. He testified , however, that they would be given consideration if they came to the plant, and made known their availability for employment. D. Alleged Refusal to Bargain As stated supra, section III, A, the Regional Director, on October 15, 1965 (16-RC-3949), certified the Union as the collective-bargaining representative of a unit of Respondent's employees comprised of employees en- gaged in production and maintenance including draft- smen , shipping and parts employees , and excluding field servicemen, over-the-road drivers, office clerical and all other employees , watchmen, guards, and supervisors as defined in the Act. On July 14, 1965, as stated supra, the Regional Director in regard to the highly disputed issue of the status of Respondent's department heads, whether supervisors or rank-and-file employees, ruled that they were rank-and-file employees. On August 4, 1965, the Board granted Respondent's request for review, and stayed the direction of election issued by the Regional Director. However, the Board's telegraphic order reached the Regional Director and the parties in the representation proceeding after the election had been held on August 4, 1965. The election was held although Section 102.67 (b) of the Board's Rules provides that "the regional director, in the absence of a waiver, may issue a notice of election but shall not conduct any elec- tion or open and count any challenged ballots until the Board has ruled upon any request for review which may be filed." I assume that when the Board on October 6, 1965, affirmed the Regional Director's decision of July 14, 1965, it had knowledge that the Regional Director conducted the election although Respondent had filed a timely request for review , and it was under consideration by the Board. It is undisputed that the Union, on October 23, 25, and 29, and November 3 and December 3, 1965, requested Respondent to bargain in regard to the rates of pay, wages, hours of employment, or other conditions of em- ployment, and Respondent has refused to bargain as requested. It is undisputed that Respondent contends the Regional Director, affirmed by the Board, erred in hold- ing that Respondent's department heads were rank-and-file employees, included them in the appropriate unit as rank-and-file employees, and permitted them to vote in the August 4, 1965, election. Respondent con- tends, and has contended , that this action of the Board resulted in the Union receiving a majority of votes cast on August 4, 1965, but that if the Board excluded the depart- ment heads from the appropriate unit, which it alleges it should have done, the Union would not have received a majority of the votes cast. General Counsel contends that Respondent's refusal to bargain as requested violates Section 8(a)(5) and (1) of the Act. It is also undisputed that on October 25, 1965, the Union requested Respondent to furnish it with a seniority list, the wage rates, and job classifications for the 31 Cornelius had had experience in the Small Batch Plants, Scales, Conveyor, and Conveyor Roller Departments ROSS PORTA-PLANT, INC. employees in the appropriate unit, for the Union's use in bargaining on behalf of these employees, pursuant to the Regional Director's certification of October 15, 1965. Respondent has refused to furnish the data requested for the same reason, stated above, that it has refused to bar- gain in accordance with the Union's other requests to bargain. General Counsel claims that his refusal by Re- spondent also violates Section 8(a)(5) and (1) of the Act. In addition to the layoff on November 12, 1965, al- legedly for economic reasons, Respondent laid off four employees on August 6, three on August 13, and eight on August 20, 1965. Respondent also claims that the layoffs were for economic reasons. While General Counsel does not contend the layoffs were discriminatory, or the em- ployees laid off were discriminatorily selected, he does contend that the Union should have been notified in ad- vance of the layoffs, and afforded an opportunity before each occurred to discuss them with Respondent. The General Counsel contends that the failure to notify and afford an opportunity to discuss the August 6, 13, and 20 layoffs as well as the November 12, 1965, layoff violate Section 8(a)(5) and (1) of the Act. I have found that Respondent issued written rules of conduct on August 9, 1965, and required each employee to sign a copy to be returned to Respondent. I have also found that these rules were comprised of rules governing moral conduct during employment, special rules in effect but never collected in a compiled set of written rules, and new rules governing the times for reporting to the job, leaving the job, taking breaks, lunch periods, and related matter, which the Respondent in the written rules identified as being necessary to compliance with the Federal Wage and Hour Law. Rule 15, in the set of written rules issued on August 9, as I have found, is a broad no-solicitation rule. It states that absent permission from the plant superintendent, there cart be no solicitation or promotion in the plant, in- cluding gathering sums of money, subscriptions, dues, and distribution of literature, with the proviso that the rule does not apply to oral communication between em- ployees on nonworking time. General Counsel contends that Respondent violated Section 8(a)(5) and (1) of the Act, by not notifying the Union in advance of the issuance of the rules, and afford- ing the Union an opportunity to discuss them in advance of the issuance, and by requiring each employee to sign a copy which would be returned to Respondent. E. Analysis and Concluding Findings On the foregoing evidentiary findings, I make the anal- ysis and concluding findings stated in the following paragraphs.32 1. Violations of Section 8(a)(1) Respondent violated Section 8(a)(1) of the Act by Production Manager Keith's interrogation of employee Jack Hughes on June 1, 1965, about the Union; President Ruben Ross' statement about a week before the August 4 election to employee Bud Strickland promising him and the other employees benefits if the Union did not win the August 4, 1965, election; Vice President Robert Ross' interrogation of employee Joe Huro on August 3, 1965, 32 The findings herein are made on the evidence evaluated in context, and upon resolutions of conflicts after consideration of relevant de- meanor, oral and documentary evidence. 515 concerning how he was going to vote in the election, and his admonition that union representation would not benefit the employees as they had no experience in being represented by a union, the employees and not the Union would decide when to strike, and Respondent would be the one to decide if it wished to enter into a collective-bar- gaining contract with the Union; and Vice President Robert Ross' statement to George King on August 3, 1965, the day before the election, that he would like King to help "them" and vote "No" in the election on the next day, August 4. Respondent also violated Section 8(a)(1) of the Act on August 9, 1965, by issuing a written set of rules of con- duct, and requiring a copy to be signed by each employee and returned to Respondent. The union activity of the employees had apparently resulted in a victory for union representation in the August 4, election. Then the Board by telegraphic order on August 4, which did not reach the Regional Director and the parties until after the polls were closed, agreed to review the Regional Director's decision of July 14, 1965, the Respondent's department heads were rank-and-file employees, and stayed the elec- tion. The employees were informed of the Board's tele- graphic order on the morning of August 5. In the midst of their realization that their efforts to have union represen- tation might fail after all, they were presented with a writ- ten set of rules, and required to acknowledge that they had read them by signing a copy.33 Moreover, rule 15 of the written rules is an illegal no-solicitation rule, and by itself is violative of Section 8(a)(1) of the Act, since it bans the distribution of union literature or the collection of union dues in nonworking areas of the plant during the employees nonworking time without the permission of the plant superintendent. 34 I do not find Vice President Ross' speech to the assem- bled employees on June 7, 1965, to be violative of Sec- tion 8(a)(1) of the Act. Ross did not threaten employees or promise them benefit, and merely expressed his opinion about economic conditions over which Respond- ent had no control that would result from the employees being represented by a union. Nor do I find violative of Section 8(a)(1) of the Act the remark of Vice President C. L. Ross following his brother Robert's speech that he did not believe that Respondent could survive with a union representing the employees. Here again was an expres- sion of opinion as to what would happen to Respondent from economic conditions resulting from union represen- tation of employees over which Respondent had no con- trol. Both the speech of Robert Ross and the comment of C. L. Ross are protected by the proviso to Section 8(a)(1) of the Act. There is nothing in the evidence of what was said in the speech of Robert Ross to the assembled em- ployees on July 15, 1965, to warrant a finding that he threatened or promised benefits. Therefore, I do not find this speech violative of the Act. I do not find violative of the Act the meetings of depart- ment heads held by Respondent on June 15, and November 1, 1965, or what was said to them by Respond- ent's representatives in these meetings. The department heads were supervisors within the meaning of Section 2(11) of the Act prior to the initiation of union activity, and prior to these meetings. So the "beefing-up" of their supervisory status on June 15, did not bring into being their supervisory status to defeat union organizational ac- 33 Southland Paint Company, Inc., 157 NLRB 795. The Singer Company, Wood Products Division, 153 NLRB 922; Stoddard-Quirk Manufacturing Co, 138 NLRB 615. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivity. Production Manager Keith had a right to tell the department heads on November I not to attend the meet- ing of the Union scheduled for the evening of November 2, as they were supervisors There is nothing violative of Section 8(a)(1) in the ac- tion of Respondent on August 30, 1965, of increasing the hourly wage rate of the department heads, to be effective September 5, 1965, since they were supervisors, and for the same reason there is nothing violative of Section 8(a)(I) of the Act in Respondent's action of June 30, and August 30, 1965, of distributing to the department heads written statements of their duties , and on August 30 hav- ing them sign a copy of the statement handed them. 2 Violations of Section 8(a)(3) I find that Respondent discriminatorily discharged em- ployees Jack Hughes, Calvin David Ingram, James Cox, and Gary W. Carriger, to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. Hughes' discharge followed Production Manager Keith's interrogation of him regarding his interest in the Union, and his solicitation of signatures on a petition for union representation . He said nothing to Hughes whatever when he interrogated him about laying him off , or about the quality of his work He had been employed only 3 weeks, and the evidence discloses that the quality of his work improved during this brief employment His im- mediate supervisor, Pete Ferguson , and Ronald Coleman, the welder he worked with, were pleased with his work . Ferguson pointed out to him one of the three phases of welding which he felt Hughes could improve, and Hughes improved this phase of his work Hughes was active in soliciting the signatures on the petition for union representation , and when Hughes admitted doing this to Keith, the latter said that such activity could be dan- gerous While the Board of Directors informed Keith that he could lay off at the end of May the incompetent or dead- wood , there is no showing that Hughes was incompetent or was deadwood . This was the burden of Respondent in view of Keith 's interrogation of Hughes regarding his union activity just before laying him off, Hughes' union activity, Respondent 's antiunion animus , and Keith's silence in regard to laying off Hughes when he talked to him a half hour before he was laid off Respondent's policy was to give notice of layoff or discharge when it was possible. Keith testified that he had decided a week before to discharge Hughes, and had in- formed the Rosses , and they had approved his selection of Hughes for layoff I do not credit this testimony of Keith. If he had selected Hughes prior to June I for layoff because of incompetency he would have given Hughes notice at least when he first talked to him on June 1. He learned on June 1 that Hughes solicited signatures on the petition, corroborated this knowledge on talking to Hughes, communicated with one of the Rosses, and then instructed Wells to give Hughes notice of discharge after a decision was made to discharge Hughes for his union activity Keith could not be located when Wells gave Hughes the notice . Wells' statement to Hughes that the layoff or discharge was not his doing or that of Keith dis- closes that the decision was made by one of the Rosses. Calvin Ingram and James Cox were exceptionally skilled welders Moreover they were the type of em- ployees Respondent would retain when there was a reduction in force. Keith had so informed Ingram. They shook hands with representatives of the Union and had friendly conversation with them at the close of the representation hearing on June 25, 1965, in the small courtroom in the courthouse in Brownwood , Texas. Vice Presidents Robert Ross and C. L. Ross, Production Manager Keith , Plant Superintendent McBride and Assistant Plant Superintendent Wells were present. Ingram and Cox lived in Cisco, 50 miles from Brownwood, and commuted daily to and from Respond- ent's plant Their presence at the hearing after the end of the workday at 5 p.m , when they would ordinarily be on the 50 mile route home , and their friendly relations with the representatives of the Union disclosed to the Rosses, Keith , Wells, and McBride that they had a deep interest in the union activity at Respondent 's plant. C. L. Ross told Packer and Long at the close of the June 25 hearing that Rosses would do everything in their power to defeat the Union even to the closing down of the plant. On August 5, 1965, Vice President Ross told the as- sembled employees there was to be no more union activi- ty in the plant during working hours. He said at the time that if there was a violation the penalty would be a 3-day layoff. On August 9, 1965, Respondent issued the illegal no-solicitation rule that I have discussed supra , section III, E, 1. The evidence (supra, section IIi, C, 6) shows that President Ruben Ross photographed the writings on the silos a few days before the election. "Vote Yes" was written on three or four of the silos or on silo tops. Car- nger had written "Vote Yes" with soapstone on a silo top on or about August 1, 1965. A writing with soapstone can be brushed off or removed with soap and water On August 12, 1965, Carriger admitted to Production Manager Keith that he wrote "Vote Yes" on a silo top. Keith laid him off for 3 days as a penalty in accordance with the rule Vice President Robert Ross stated on Au- gust 5. Carriger said he could not take a layoff as his wife was expecting. Keith would not change his decision so Carriger said he would be around for his check in the morning. Although he agreed to take the penalty instead of quitting, on the advice of Dabney , and Dabney con- veyed the agreement to Keith , the latter told Carriger he was terminated when he called for his check the next morning, and asked if Keith had decided whether he could take the 3 day penalty instead of being terminated. It was obvious to Keith that the "Vote Yes" was writ- ten on the silo top by Carriger before the August 4 elec- tion. There would be no point in writing it after the elec- tion because the voting was over . President Ruben Ross photographed the "Vote Yes" on the silos 2 days before the election. Carnger testified he wrote it on August 1, and I have credited his testimony . So he wrote it when there was no rule against doing so. The rule was not an- nounced until August 5 Then Keith penalized him on August 12 for something he did on August 1 pursuant to rules placed in effect on August 5 and August 9. In view of the above , Keith knew that the writing was done before the election , and before the rules were announced even though on August 12 Carriger did not disclose that it was on August 1 he wrote it. The writing could be easily removed since it was done with soapstone , and, therefore, did not deface Respondent's property. It is obvious, therefore, that Carriger was constructive- ly discharged on August 12 for his union activity prior to the election of August 4. The illegal motive is apparent from the readiness of Keith to accept Carriger's decision to quit instead of taking the penalty of a 3-day layoff, and his refusal on the morning of August 13 to permit Car- ROSS PORTA-PLANT, INC. 517 tiger to reconsider and take the 3-day layoff instead of quitting. It is clear from the evidence Respondent closed the plant to rank-and-file employees on June 2 and 3, 1965, to take a general inventory in connection with the preparation of a financial statement to be furnished to the new ownership of Citizens National Bank of Brownwood. The business reasons for the taking of the inventory and the preparation and furnishing of the finan- cial statement are apparent. Counsel for General Counsel argues that since a general inventory was usually taken at the close of a fiscal year or during a closedown for vaca tion, the financial reason given is pretextual, since the in- ventory in June and not at the end of the fiscal year or during a vacation closedown . However, the taking over of the bank by a new ownership occurred in June and not at the end of the fiscal year or during a vacation closedown. Respondent's accounts receivable were high, and it was overdrawn. It obviously had to rely on cash from the bank to meet payrolls and other expenses, and it was vital that its credit lifeline be maintained . As stated, there is no substantial evidence to warrant the finding that although there existed a business reason for the taking of the inventory , there was also an illegal discriminating reason.35 Therefore , Respondent did not violate Section 8(a)(3) and (1) of the Act on June 2 and 3, 1965, by clos- ing down tj plant to take a general inventory. Respondent discharged Frank Long because of his union 4 tivity. This activity of Long was apparent to Vice Pre. ' ent Robert Ross at least from June 25, 1965, when Lr^fig told him he was for the Union all the way. The vari- us things that Long did which irritated Vice President Robert Ross would not have affected him as acutely as they did if he had not been sensitive to anything that Long did which could be questioned in view of Long's espousal of the Union's cause, but at the same time continuing to act as one of Respondent's supervisors. The evidence shows that Long did tell Larry Jackson and Wendell Mor- ris that Ray Manning, the electrician, was receiving $3 per hour, when the department heads were getting only $2.50 per hour, and they asked Vice President C. L. Ross if that was true. However, there is no evidence that Long spread this information any farther. Absent animosity because of his union activity, Long may have been repri- manded, but would not have been discharged for discussing Manning's hourly rate with Jackson and Mor- ris. It is clearly a matter of record that Department Heads Bates, Donald Cox, Dabney, Ward, Weatherman, and Hobbs were discharged on November 3, 1965, for at- tending the meeting of the Union on November 2, 1965, after being instructed by Production Manager Keith on November 1, 1965, not to attend this meeting. I conclude and find that Respondent did not violate Section 8(a)(3) and (1) of the Act by the discharge of Long, Bates, Donald Cox, Dabney, Ward, Weatherman, and Hobbs. They were supervisors within the meaning of Section 2(11) of the Act when they were discharged. Respondent had the right to discharge them for engaging in union activity.36 I do not consider Attorney Smith's ef- forts to obtain a copy of the statements Long, Donald Cox, Dabney, and Hobbs gave to the Board to be viola- tive of Section 8(a)(1) or (4) of the Act. There was no con- duct here that had an impact on employees which limited their rights under Section 7 of the Act. I also conclude and find that General Counsel has not supported with substantial evidence on the record as a whole his allegation that Respondent discriminatorily discharged or laid off employees King, Strickland, and Norman on November 12, 1965, or that it discriminated against Gary Brown by not recalling him to his job prior to January 4, 1966. The weakness supra, of General Counsel's evidence and its failure as substantial proof is discussed. Therefore Respondent has not violated Sec- tion 8(a)(3) and (1) of the Act by the layoff of King, Nor- man, and Strickland, on November 12, 1965, and by not recalling Gary Brown to his former employment until January 4,1965. 3. Violations of Section 8(a)(5) I do not intend to look behind the certification of Oc- tober 15, 1965, in representation case 16-RC-3949. The Respondent was ordered on that date to bargain with the Union in a unit of Respondent's employees described supra. In view of my findings in connection with the al- legations of violations of Section 8(a)(1) and (3) of the Act, that the department heads are supervisors within the meaning of Section 2(11) of the Act, and not just rank-and-file employees, the Board may wish to reex- amine its affirmation of the Regional Director's decision of July 14, 1965, and take the action that may be ap- propriate to its reexamination. 37 It is also for the Board to consider the question whether the holding of the election on August 4, 1965, when a request for review was pending, was a fatal error, in view of the requirements of Section 102.67(b) of its Rules and Regulations. The Board had before it the holding of the election at the time the request for review was pending when it affirmed on October 6, 1965, the Regional Director's decision of July 14, 1965. Therefore, assuming the validity of the certification, I find that Respondent violated Section 8(a)(5) and (1) of the Act when it refused to bargain in response to demands for bargaining made by the Union on October 23, 25 and 29, November 3, and December 3, 1965. I also find that it violated Section 8(a)(5) and (1) by refusing to furnish to the Union as it requested on October 25, 1965, the seniority list, wage rates, and job classifications for the employees in the appropriate unit. These data are infor- mation the Union needs to prepare for its bargaining with Respondent pursuant to the certification. I also find violative of Section 8(a)(5) and (1) of the Act the failure of Respondent to notify the Union of the writ- ten rules it distributed to employees on August 9, 1965, and had them sign. These rules contained a broad no-sol- icitation rule which recluded employees for the first time from engaging in union activity on working time. It also precluded distribution of literature of the Union or collec- tion of dues in nonworking areas of the plant during non- as Counsel's argument reminds me of the story of a person passing by a bank, and seeing a person inside waving furiously at the door indicating he wished to get out. The passerby looked up at the clock, saw it was after 2 p in., knew the bank closed at 2 p.m., concluded no one could be inside since it was after 2 p in., and went off leaving the individual inside still waving furiously trying to enlist the assistance of someone on the outside. 36 National Freight, Inc , 154 NLRB 621 i United Dairies, Inc, 144 NLRB 153; National Van Lines, 123 NLRB 1272, 1273, fn. 4; Pittsburgh Plate Glass Company v. N L.R B., 313 U.S. 146, 158, N.L R B. v. WesternKentucky Coal Co., 152 F 2d 198.700 (C.A. 6), and Rule 102.67(f) of the Board Rules and Regulations. 308-926 0-70-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working hours unless permission was obtained from the plant superintendent. The rules also set out new require- ments to be followed in connection with reporting and leaving work, and taking a break, which Respondent claims are necessary to insure compliance with the Federal Wage and Hour Law This is the type of change in working conditions which the Board has held Respond- ent must give notice of to the Union, and offer to discuss it with the Union. Respondent's failure to do so violates Section 8(a)(5) and (1) of the Act ;" I do not find violative of the Act the failure of Respond- ent to give notice to the Union of the layoffs of August 6, 13, and 20, and November 12, 1965. As can be seen from the findings supra, and the evidence of the layoffs on November 12, supra, these layoffs were for economic reasons in accordance with the seasonal demands of Respondent's operations . Being a high cost operation which produces only a limited number of plants which sell at a high price, labor costs and other costs must always be kept in balance with receipts. When sales orders decrease, and, therefore, production demands decrease, the labor force and other cost factors must be adjusted immediately to maintain the proper balance between costs and receipts. The evidence shows that orders start dropping in Au- gust and continue downward through December and January of the following year. This is the history of Respondent since it began operations in 1958 November is the slowest month. I find nothing in the Act or Board or Court decisions which hold that Respondent must inform the Union of, and discuss with it, layoffs which are nor- mal, seasonal, and customary for Respondent, and for economic reasons. Forthese reasons, I find that Respond- ent did not violate Section 8(a)(5) and (I) of the Act by not notifying the Union of the August 6. 13, and 20 layoffs, and the November 12 layoff 4. Other alleged violations I conclude and find that General Counsel has failed to support with preponderance of the evidence on the record considered as a whole the other allegations of the com- plaint, and that they should be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, I will recommend that it cease and de- sist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Since Respondent engaged in considerable actions of inter- ference, coercion, and restraint to thwart the organiza- tional activity of Union and employees , a broad cease and desist order is warranted , and will be recommended. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). 1 shall recommend that Respondent be required to offer the employees discriminatorily discharged , without preju- dice to their seniority and other rights and privileges, im- mediate and full reinstatement to their former or substan- tially equivalent positions. I shall also recommend that Respondent be required to make them whole for any loss of earnings they suffered by reason of the discrimination and other illegal conduct against them , as provided in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum , as provided in Isis Plumbing & Heating Co., 138 NLRB 716. To remedy Respondent's refusal to bargain , I shall recommend that Respondent be required , upon request, to bargain collectively with the Union as the collective-bargaining representative of a unit of Respond- ent's production and maintenance employees , including draftsmen , shipping and parts employees, but excluding field servicemen , over-the-road drivers , office clerical employees , and all other employees , watchmen, guards, and supervisors , as defined in the Act , regarding wages, hours, and other terms and conditions of employment, furnish to the Union the data requested by the Union to aid it in preparing for bargaining , and if an agreement is reached , to embody it in a signed contract. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , the undersigned Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. Respondent interfered with, coerced, and restrained employees, in violation of Section 8(a)(1) of the Act, by interrogation , threats, promises of benefits , and issuing rules of conduct containing an illegal no-solicitation rule, 5 days after a Board-conducted election, and requiring each employee to sign a copy, to prevent employees from enjoying rights guaranteed them in Section 7 of the Act, including the right to self-organization, to form, join, or assist the Union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 4. By discharging employees Hughes, Calvin David Ingram, James Cox, and Carriger, for engaging in Union organizational activity on behalf of the Union, and because of affiliation with the Union, Respondent dis- criminated against employees in regard to tenure of em- ployment and terms and conditions of employment, to discourage membership in the Union, in violation of Sec- tion 8(a)(3) and (1) of the Act. 5. An appropriate unit of Respondent's employees for purposes of collective bargaining is a unit of Respond- ent's production and maintenance employees including draftsmen, shipping and parts employees, but excluding field servicemen, over-the-road drivers, office clerical employees, and all other employees, watchmen, guards "Southland Paint Company, Inc , 157 N I RB 795 the Timken Roller Bearing Company, 70 NLRB 500, 502, and fn 3 at 507, and in 7 at 512, Respondent cannot contend with merit that it was free to change working conditions as it pleased until the Board found against it in the review of the Director's decision ROSS PORTA-PLANT, INC. and supervisors, as defined in the Act. On October 15, 1965, the Regional Director certified the Union as the collective-bargaining representative of this unit of Respondent's employees. 6. On Otober 23, 25, 29, November 3, and December 3, 1965, the Union demanded Respondent recognize it as collective-bargaining representative of this unit of em- ployees, and requested Respondent to negotiate a collec- tive-bargaining contract with it, and on October 25, 1965, requested Respondent to furnish it a seniority list, wage rates, and job classifications of employees to aid it in preparing for bargaining, but Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused the Union's de- mands and requests on the ground that it did not represent a majority of Respondent's employees in an ap- propriate unit. 7. Respondent violated Section 8(a)(5) and (1) of the Act by failing to notify the Union of, and discuss with it prior to issuance and placing in effect, rules of conduct containing a newly established no-solicitation rule, and certain other newly established rules affecting employees work habits which Respondent claims are necessary to compliance with the Federal Wage and Hour Law. 8. Respondent did not violate the Act in the other respects alleged in the complaint in this proceeding, and the complaint insofar as it contains these allegations should be dismissed. RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in the case, I recom- mend that Respondent Ross Porta-Plant, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees in regard to their rights to engage in union activity , to assist Local 826, Interna- tional Union Of Operating Engineers , AFL-CIO, or to authorize it to act as their collective-bargaining represent- ative. (b) Threatening employees in regard to their working conditions by issuing written rules of conduct containing new rules and an illegal no-solicitation rule, and requiring each employee to sign a copy, 5 days after a Board-con- ducted election, in order to thwart their union organizing activity , assistance to the Union , or authorization to it to act as their collective-bargaining representative. (c) Promising employees benefits to thwart their union organizing activity , their assisting the Union, and their authorizing it to act as their collective-bargaining representative. (d) Discouraging membership in the Union by discharging employees because they engage in union ac- tivity and assist the Union. (e) Refusing to bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in an appropriate unit regarding wages, hours, and other terms and conditions of employment, and to furnish the Union data it needs to aid it in bargaining and issuing unilaterally new rules of conduct that effect em- ployees' working conditions. °" In the event that this Recommended O1dei 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 519 (f) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist the Union or any other labor organization , to bar- gain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Offer Jack Hughes, Calvin David Ingram, James S. Cox, and Gary W. Carriger, without prejudice to their seniority and other rights and privileges , immediate and full reinstatement to their former or substantially equivalent positions , and make them whole for any loss of earnings , including interest , suffered by reason of the discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Preserve, and make available to the Board or its agents upon request, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records relevant and material to Respondent's com- pliance with the provision of this Order. (d) Upon request, bargain collectively with Local 826, International Union of Operating Engineers , AFL-CIO, as the exclusive representative of the employees in the appropriate unit found herein of all production and main- tenance employees including draftsmen and parts em- ployees, but excluding field servicemen , over-the-road drivers, office clerical employees , and all other em- ployees, watchmen , guards, and supervisors , as defined in the Act, with respect to rates of pay, wages, hours of employment , and other terms and conditions of employ- ment, and if an agreement is reached , embody such agree- ment in a written contract ; furnish the Union with the seniority list, wage rates , and job classifications it has requested, and other data that would be an aid to bargain- ing, that it may request; and notify the Union of, and discuss with it, the rules of conduct it issued on August 9, 1965. (e) Post at its plant in Brownwood , Texas, copies of the attached notice marked "Appendix." t9 Copies of said notice to be furnished by the Regional Director for Re- gion 16 (Fort Worth , Texas), after being signed by the Respondent's representative, shall be posted by Respond- ent and 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 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 " 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 16 in writ- ing within 20 days from the date of this Decision and Recommended Order, what steps Rspondent has taken to comply herewith.40 IT IS ALSO RECOMMENDED that the Board dismiss the complaint insofar as it contains allegations of conduct not found to be violative of the Act. IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of the receipt of this Trial Ex- aminer's Decision and Recommended Order the Respond- ent notifies the Regional Director, in writing, that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 40 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT interrogate employees in regard to their rights to engage in union activity, to assist Local 826, International Union of Operating Engineers, AFL-CIO, or to authorize it to act as their collective-bargaining representative. WE WILL NOT threaten employees in regard to their working conditions by issuing written rules of conduct containg new rules and an illegal no-solicita- tion rule, and requiring each employee to sign a copy, 5 days, after a Board-conducted election, to thwart employees union organizing activity, assistance to Local 826, and their authorization to it act as their collective-bargaining representative. WE WILL NOT promise employees benefits to thwart their union organizing activity, their assisting Local 826, or their authorizing it to act as their col- lective-bargaining representative. WE WILL NOT discourage membership in Local 826 by discharging employees because they engage in union activity, and assist Local 826. WE WILL NOT refuse to bargain collectively with Local 826 as the exclusive representative of our em- ployees in an appropriate unit , or to furnish it with in- formation that aids it in bargaining, or issue new rules of conduct that affect employee working conditions without first notifying Local 826 of them, and afford- ing it the opportunity to discuss them with us before we issue them or place them in effect. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization , to form labor organiza- tions, to join or assist Local 826, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection. WE WILL offer Jack W. Hughes, Calvin David In- gram, James S. Cox, and Gary W. Carriger, without prejudice to their seniority and other rights and privileges , immediate and full reinstatement to their former and substantially equivalent positions, and make them whole for any loss of earnings, including interest, suffered by reason of the discrimination against them. WE WILL bargain collectively with Local 826 as the exclusive representative of our employees in the appropriate unit of all production and maintenance employees including draftsmen and parts employees, but excluding field servicemen , over-the-road drivers, office clerical employees , and all other em- ployees, watchmen, guards, and supervisors as defined in the National Labor Relations Act, as amended, by meeting and negotiating a collective-bargaining contract with Local 826, at its request, on behalf of the above unit of our em- ployees, and if an agreement is reached embodying it, in a written contract and signing it by furnishing a seniority list of employees , their wage rates and job classifications which Local 826 has requested, and by furnishing other information it may request that will aid it in bargaining, and by notifying Local 826, and discussing with it, any newly established rules of conduct for employees, prior to issuing them or plac- ing them in effect. All our employees are free to become, or refrain from becoming, members of Local 826, Iternational Union of Operating Engineers , AFL-CIO, or any other labor or- ganization. Ross PORTA-PLANT, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Jack W. Hughes, Calvin David Ingram, James S. Cox, and Gary W. Carriger if presently serving in the Armed Forces of the United States, of their rights to full reinstatement upon application in ac- cordance with the Selective Service Act and 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, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2941.