Brighton Corp.

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brighton Corporation and Richard A. Barker and Gene P. Huff. Cases 9-CA-4141-1 and 9-CA-4141-2 November 20, 1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS , AND ZAGORIA On August 17, 1967, Trial Examiner David S. Davidson issued his Decision in the above -entitled proceeding, finding that the Respondent had en- gaged 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. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the Respondent's ex- ceptions and brief, and the entire record in this case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner.' 8(a)(1) and (3) of the Act by discharging Huff and Barker on November 25, 1966, and December 14, 1966, respec- tively. The complaint also alleges that Respondent inde- pendently violated Section 8(a)(1) of the Act by other coercive conduct. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Cincinnati, Ohio, on April 13 and 14, 1967. At the close of the hearing oral ar- gument was waived and the parties were given leave to file briefs which were received from the General Counsel and Respondent. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation, is engaged in the fabrication and distribution at wholesale of various types of metal tanks and vessels. At the time of the events material herein, Respondent had two plants. One, known as Plant 1, was located on State Avenue in Cincinnati, Ohio, where the events involved occurred, and the other, known as Plant 2, was located at Sharonville, Ohio.' During the year prior to the issuance of the complaint, a representative period, Respondent sold goods and materi- als valued in excess of $50,000 which were shipped directly from its plants to points outside the State of Ohio. Respondent concedes and I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, referred to herein as the Union , is a labor organization within the meaning of Section 2 (5) of the Act. 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 and hereby or- ders that the Respondent, Brighton Corporation, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' Under the established policy not to overrule a Trial Examiner's credi- bility findings unless a clear preponderance of all relevant evidence con- vinces us that they are incorrect, we find no basis for disturbing the credi- bility findings in this case Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (CA 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to charges filed in these cases on December 28 and 30, 1966, by Richard A. Barker and Gene P. Huff, a con- solidated complaint issued on February 28, 1967. The complaint alleges that Respondent violated Section III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Independent Violations of Section 8(a)(1) 1. In early October, the Union began to attempt to or- ganize the employees at Respondent's State Avenue plant. On October 12, during the lunch period at the plant, employee Richard Barker solicited signatures on union authorization cards from employees about a block away from the plant. On that day Foreman Hensler asked employee Nor- man Fowler at his work station, "What's this I hear about the men wanting to get a Union in here?" Fowler replied that he had just heard about it that morning himself. Hensler responded that he did not see why they wanted a union because he and his relatives had never needed one.2 Approximately 2 weeks before the hearing in this case, the State Avenue operations were moved to a new plant in Sharonville. 2 Fowler whom I have credited so testified Hensler conceded that he discussed the Union with Fowler but testified that he did not ask Fowler about the Union However, Hensler also testified that the subject was "naturally brought up," and that he could not say who started the conver- sation In the light of Hensler's vagueness and uncertainty as to the origin of the conversation , I find his denial that he questioned Fowler less than convincing 168 NLRB No. 45 BRIGHTON CORPORATION The complaint alleges that Hensler in this conversation unlawfully interrogated Fowler. Although Hensler's question and comment in isolation might be deemed to fall beyond the proscription of the Act, in view of the number of coercive incidents during the period which fol- lowed, some of which directly involved Fowler and which included threats to his employment, as set forth below, I find that Hensler's interrogation of Fowler violated Sec- tion 8(a)(1) of the Act as alleged. 2. On the next day, October 13, Union Representa- tives Fred Sohmer and James Sprotts went to the State Avenue plant at the close of work and stood on the side- walk at the employees' entrance to the plant passing out organizational leaflets to employees as they left work. While they were so engaged, Respondent's president, Paul Hock, came out of another entrance to the plant and approached where they were standing. Hock stopped one of the employees who had taken a leaflet, took the leaflet from him, and looked at it. Hock then approached Sohmer and asked him who had told the union representatives that they could pass out leaflets there. Sohmer and Sprotts replied profanely, and Sohmer told Hock he could call the police if he did not like it. Hock replied that unions were getting too strong and were trying to run the country. Hock then stood near the door of the plant for several minutes where he watched the employees who were leaving the plant and told them not to take leaflets. Some of the employees refused to take leaflets. Hock then left and reentered the plant through another door.3 The complaint alleges that by the conduct of Hock in directing employees not to take handbills on this occa- sion, Respondent violated the Act. Particularly as Hock remained to observe the employees as leaflets were of- fered to them, I find that his conduct on this occasion vio- lated Section 8(a)(1) of the Act." 3. On the next day Respondent passed out a short leaflet with employee paychecks in which it urged the em- ployees not to sign union cards, but pointed out that em- ployees had a right to join a union and that Respondent respected that right. During that day, Foreman Donald Prigge asked employee Patrick Finn, Jr., if he had signed a union card. Finn replied negatively. Prigge then said that he did not see why anyone would want to sign because what the Company was giving them was better than what the Union could offer.5 The complaint alleges that Prigge's interrogation of Finn was unlawful. In the circumstances of this case, I agree. On the same day, Huff went to his foreman, Hensler, 3 The testimony is in conflict as to Hock's statement and actions after he approached the union representatives The version of Sohmer and Sprotts, partially corroborated by Huff, was denied by Hock All of the witnesses who testified about the incident had clear interest in the out- come of this proceeding I have credited Sohmer, Sprotts, and Huff, find- ing it implausible that Hock responded as meekly as he testified to the admittedly belligerent response of the union representatives when he inquired about their presence outside the plant See The Paymaster Corporation, 162 NLRB 123, and the Trial Ex- aminer's Decision thereto, at 128 5 Finn, whom I credit, so testified without contradiction Although Finn, in answering Prigge, denied signing a card, he had signed a card dated October 12, 1966, which was postmarked October 14, 1966 6 Huff so testified without contradiction, and Hensler conceded that Huff had approached him and told him that he had signed a union card. Ralph Schneider, who was in charge of the State Avenue plant, testified that he had no knowledge of any union activity by Huff other than rumors which he had heard with regard to a number of employees and had 327 and told him that he wanted him to know that he had signed a union card. Huff added that even if he had not previously signed a card he would have done so because of stories the Company was spreading that employees who had previously worked for one of his former em- ployers were responsible for bringing the Union into the shop. Huff told Hensler he was going to do everything he could to get behind the Union and push it all the way. Hensler replied that in his position he could say nothing against the Union but that he could tell him that in other shops where he had worked he had nothing but trouble with unions.e 4. The State Avenue plant was divided into three ad- jacent rectangular work areas or bays. The first or north bay housed employees who worked under the supervision of Harold Kaiser. The second or middle bay housed em- ployees who worked under the supervision of Foreman Donald Prigge. The third or Hamilton bay housed em- ployees who worked under the supervision of Joseph Hensler.' Barker's work area was in the forward portion of the middle bay near an opening between the first and second bays. Huff worked in the center portion of the Hamilton bay. The three bays were separated by parti- tions broken by several doorways or openings. The men's room was located in the middle bay along the partition which separated it from the Hamilton bay. Adjacent to the men's room and next to an opening into the Hamilton bay was a small break area with a Coke machine. In the rear of the first bay was a stockroom where materials and supplies were handed out to employees. In the rear of the middle bay was a so-called pickle room. In the rear of the third bay was polishing area. Employees from all three bays had occasion to use these facilities. Approximately one-third of the way back from the front of the plant was a plant office built into the partition between the first and second bays. Ralph Schneider, Respondent's vice president in charge of production and manager of Plant 1, had his desk in this office. The office area was elevated above the plant floor and had glass win- dows on all four sides from which the first and second bays could be observed. Sometime before the events herein, the office window which faced the front of the plant and which overlooked Barker's work area had been covered over with Masonite or similar material because it was difficult to hear in the office About 2 weeks after the union organizers appeared in front of the plant, a hole about 4 by 6 inches was cut in the covering over the window, making it possible to see Barker's work area from the office.8 ignored However, Hensler testified that he reported his conversation with Huff about the Union to the plant superintendent I do credit Schneider's denial of knowledge of Hoff's union activities ' Kaiser, Prigge, and Hensler are conceded by Respondent to be super- visors within the meaning of the Act 8 Schneider testified on direct examination that there had always been a small hole in the material covering the glass in his office which was simply enlarged so that he could observe where his foremen were in case he needed to send for them in an emergency Although he denied that he had the hole cut so as to be able to observe Barker or any other employee, his cross-examination, in which he conceded that the original hole had been blocked by grease for sometime before he had it enlarged and that a Klaxon which could normally be heard throughout the plant was used to summon foremen, exposed his testimony on direct examination as highly suspect. In view of these facts as well as the timing of the cutting of the hole and the proximity to the office of the area which could be seen through the hole, I do not credit his explanation. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barker also observed that after the union activities began there was a marked change in the frequency and nature of Schneider's appearances on the plant floor. On the morning after the leaflet distribution, Schneider en- tered the plant through the front entrance in the first bay and instead of going directly to his office as he usually had done, he went to the middle bay and walked around the area where Barker worked, standing there with his hands in his pockets and looking around for a few minutes. Schneider left but returned in about 15 minutes without his hat and coat and again walked around in the area where Barker worked without saying anything. Barker's duties required him to leave his work area a number of times a day to get to various other parts of the plant. Although it was not unusual for him to see Schneider in the plant at those times, after the union cam- paign began he noticed that Schneider appeared with in- creased frequency when he left his work station. Schneider frequently entered the stockroom when he went to the employees' window for supplies. When Barker went to the machine shop to talk to an operator performing work on a job that Barker was also working on, Schneider frequently appeared and looked at the operator's work or talked to him. Barker noticed that when he went to the pickle room or the polish room, Schneider also usually appeared, arriving shortly after Barker did. On one occasion a week or two before Barker was discharged, Barker had been working in the middle bay almost directly alongside the plant office. He left the area to go to the stockroom to get some welding rods and ob- served that Schneider arrived there soon thereafter and appeared to be looking around with his hands in his pockets. Barker left and returned to his work station by a circuitous route which took him past where he was working to the front of the Hamilton bay, through that bay, back into the middle bay next to the break area, and to his work area. Barker observed Schneider following him as he traversed this route, and shortly after Barker returned to work he observed Schneider walking past headed toward his office from the direction that Barker had just come from.9 After the union activities started, Barker and Huff started to meet several times a day in the men's room.'o Frequently, when they met in the restroom, Kaiser en- tered shortly after them. According to Barker, for a period of about a week beginning a month after the union activities started, he noticed Kaiser standing in the open- ing between the first and second bays several times a day for about 5 or 10 minutes at a time looking in his direction.'' The complaint alleges that by the above-described con- duct Schneider engaged in surveillance of suspected union activities of an employee. I find from the above that the only rational explanation of Schneider's conduct in the plant with respect to Barker lies in the suspected union activities of Barker. Although Barker's early union activities took place away from the plant and Respond- ent's representatives, the facts set forth below in con- nection with Barker's discharge and in connection with the episode of interference next set forth below leave no doubt that Barker was suspected of playing a leading role in the union organizing activities. Accordingly, I con- clude that Barker was watched at work after the union ac- tivities started because of his suspected union activities and that this change in his working conditions was for the purpose of interfering with his union activities in violation of Section 8(a)(1) of the Act. 5. On or about October 19, about a week after the union activities began, employee Jess Johnson, who worked in the middle bay under the supervision of Foreman Prigge, went to the first bay and asked Foreman Kaiser if he could borrow a piece of equipment he needed. Kaiser replied affirmatively, but as Johnson started to walk away, Kaiser said that if it was for Barker or one of the other "son-of-a-bitches" who belonged to the Union to put it down and "get the hell back over to your own side."Johnson told Kaiser he wanted it for him- self, and Kaiser let him take it.12 About a week later, Johnson again went into the first bay to borrow equip- ment and a similar incident ensued.13 As the complaint alleges, Kaiser threatened that em- ployees would be granted or denied the use of equipment in their work depending upon their allegience to the Union, and Respondent thereby violated Section 8(a)(1). 6. Sometime before October 26, a notice was posted on the plant bulletin board setting forth the average hourly bonus for the year which was to be paid em- ployees, apparently in accord with an established prac- tice. Employee Thomas Turner evidently questioned the computation and had talked to other employees about it. One of the foremen reported Turner's statements to Schneider. On October 26, Turner was told by his foreman, Hensler, that he was wanted in Schneider's office. He and Hensler went to Schneider's office where Schneider spoke to him while Hensler remained present. Schneider told Turner he had checked with his lawyer to determine that it was all right to talk to Turner and proceeded to talk about the bonus. Schneider told Turner that Turner was doubting the integrity of the Company for which he could be discharged. Turner asked Schneider if he was going to discharge all the employees because everyone seemed to be talking about the bonus and the method of its computa- tion. Schneider then explained how the bonus was com- puted and told Turner that a notice on the bulletin board 9 These findings are based on the credited testimony of Barker, partially corroborated by that of Huff Although Schneider denied that he followed Barker around the plant or made a point of watching Barker, I have not found his denial credible in the light of his incredible explanation for cutting the hole in the covering over the office window overlooking Barker's work station, the marked contrast between Schneider 's assured manner during direct examination and his unconfident hesitant manner on cross-examination, not reflected by the cold transcript, and the reasons expressed elsewhere herein in discrediting his testimony in other respects. 10 Huff testified that if either one wanted to talk, he would motion to the other to join him at the restroom 11 Kaiser testified that he did not watch Barker and did not follow Barker and Huff around the plant. In view of my findings otherwise as to the credibility of Barker, Huff, and Kaiser, I do not credit Kaiser's deni- als. 12 Johnson had signed a card at Barker's request outside the plant on October 12. 10 Although Kaiser denied making the statements attributed to him by Johnson, I believe that Johnson, who was still employed by Respondent at the time of the hearing, was not likely to have fabricated these incidents, and there is other evidence that Kaiser was both vocal and crude in ex- pressing his opposition to the Union BRIGHTON CORPORATION 329 would be changed. Turner asked Schneider if he was called to Schneider's office because of the bonus or because the Union was trying to get in. Schneider replied, "indirectly." Turner then volunteered that he had signed a union card but had not contacted any union men before that. Schneider responded, "That's perfectly all right, that's your privilege. I'm glad to know how you stand. '114 The complaint alleges that Respondent violated Sec- tion 8(a)(1) by the conduct of Hensler in calling an em- ployee into Respondent's office and warning him to cease engaging in concerted activities with respect to changed working conditions and in warning and threatening an em- ployee with discharge because of his sympathy toward the Union. While it appears that Schneider rather than Hensler was the actor in events described with Hensler's role restricted to that of a witness, the variance between the allegations of the complaint and the proof is not fatal.15 In threatening Turner with discharge for doubting the integrity of the Company, even under Schneider's version, at the very least, Schneider warned Turner because of reports that Turner attacked the computation of a bonus in talking to other employees. It is arguable whether the activities of Turner reported to Schneider for which he reprimanded Turner were protected concerted activities.16 However, it is unnecessary to decide whether a warning based solely on the reports of Turner's state- ments to other employees would have violated the Act. Schneider's concession that Turner was called to his of- fice indirectly because of the union organizing campaign makes it clear that Schneider viewed Turner's complaint about the bonus as related to the union activities in the plant and sought by warning Turner to inhibit those ac- tivities. Accordingly, I find that Respondent violated Sec- tion 8(a)(1) by Schneider's conduct in warning Turner. 7. About the same time, on October 27, as Barker was going to the buffing area in the Hamilton bay, Foreman Hensler stopped him and told him that he had to come through the area but not to talk to anyone about the Union. Barker made no reply. 17 The complaint alleges that Respondent violated Sec- tion 8(a)(1) by Hensler's instruction to Barker. There is no evidence that there was any rule in the shop prohibit- ing employees from talking to one another during working hours, and there is no evidence of any other direct effort to prevent talk about the Union during working hours, although the surveillance of Barker during working hours found above would appear to have been designed to in- hibit such activities. Nonetheless, although an employer may maintain discipline during working hours, the at- tempt to bar Barker from talking about the Union in Hensler's bay violated the Act under the circumstances of the case. 1 8 8. On November 9, 1966, the day after the 1966 na- tional election, Kaiser approached employee Norman Fowler at the Coke machine and asked Fowler how he had done in the election. Fowler replied that he had lost his first vote as Congressman Taft had been elected. Kaiser replied in obscene terms that he had voted for Taft to spite Fowler and his union. Kaiser then walked off. is The complaint alleges that Respondent violated Sec- tion 8(a)(1) by Kaiser's remark to Fowler. In his brief, counsel for the General Counsel contends that vulgar and disparaging remarks with regard to a union made in the presence of several employees are unlawful. However, the cases on which he relies20 involve vilification of in- dividual employees who have engaged in union activities and are distinguishable . I find in Kaiser's remarks no more than a crude expression of hostility of the Union and not a violation of Section 8(a)(1). 9. On November 11, Respondent mailed a two-page letter to the employees at their homes, setting forth the reasons why it believed the employees should not support the Union and urging them not to sign cards. The complaint alleges that by this letter Respondent in- dicated that sympathy for the Union or acceptance of the Union would result in serious adverse effect on the wel- fare of the employees at work, a change in working condi- tions, and a loss of employment thereby violating Section 8(a)(1). Counsel for the General Counsel relies on the follow- ing portions of the letter: 1) Union Membership costs you money .... 2) You will find that as a union member you have little voice in whether a strike is called or not .... 3) ... . Generally speaking, you will find that your freedom to think and act for yourself is lost .... 4) In most cases , friendly relations go out the door when the union comes in .... 5) The most serious adverse effect upon your wel- fare comes from unions consistent opposition to the improvement of productivity. Unions resist manage- ment incentives to reduce time, to work to high effi- 14 These findings are based on the credited testimony of Turner. Schneider conceded that he called Turner to his office and told Turner that he was questioning the integrity of the Company, which they did not appreciate Schneider, whose testimony I have found other cause to doubt, denied that Turner asked whether he was called in because of the union activity , but also testified that the subject of union activity might have come up. He testified that Turner volunteered that he had signed a card and things of that sort without any prompting from Schneider or Hensler. Hensler, who testified as to other matters, was not questioned about this incident. I find it implausible that Turner would have voluntari- ly disclosed the extent of his union activities at this time in these circum- stances unless Schneider had previously indicated that his union activities were a partial cause for Turner's call to his office I do not credit Schneider's uncorroborated testimony insofar as it conflicts with that of Turner. 15 Cf. Springfield Garment Manufacturing Company, 152 NLRB 1043, 1051. 16 See Offner Electronics, Inc., 134 NLRB 1064; Indiana Gear Works, A Division of The Buehler Corporation, 156 NLRB 397 , enforcement de- nied 371 F.2d 273 (C.A 7). Schneider testified that he acted on the basis of reports that Turner had said he was being cheated, and there is no evidence to show that Schneider's information was erroneous . The merits of Turner's complaint about the bonus were not litigated. 37 Hensler denied that this incident occurred and denied that he ever talked to Barker about the Union or union activities. I have credited Barker whom I have otherwise found reliable in his testimony. 18 Witbeck's IGA Supermarket, 155 NLRB 40,42; Ward Manufactur- ing, Inc, 152 NLRB 1270. Cf. F. P. Adams Co., Inc., 166 NLRB 967. 19 This finding is based on the testimony of Fowler. According to Fowler, there were several other employees present but he did not know who they were. Kaiser denied that the conversation occurred. I do not be- lieve that this incident was fabricated by Fowler who generally impressed me as a credible witness Kaiser on the other hand did not, and there is other evidence to establish that Kaiser expressed his opposition to the Union forcefully and crudely. 20 Dairylee, Inc., 149 NLRB 829, 836; The Rose Company, 154 NLRB 228. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciency and to improve quality. Companies who have appeased unions in these areas have found, to their sorrow, that their costs rise so rapidly, they cannot compete-result, loss of business and, therefore, loss of employment for you. 6) Unions are always "promising" security.... As management , we know that the union cannot deliver these promises.... And your jobs , now and in the past, have been secure because your manage- ment, NOT THE UNIONS, has worked hard .... 7) Unions have not determined the wage rates. This is obvious since you are presently enjoying the highest paid rates of any competitive shop in the area. This has been available to you - without union assistance .... Counsel for the General Counsel contends that para- graphs (6) and (7) of the letter were reasonably calculated to create an atmosphere of futility to discourage support for the Union among the employees . 21 The contentions are also made that the statements in paragraphs (2), (3), and (4) amounted to threats that employees would lose substantial benefits if they chose to be represented by the Union ,22 and that the implication of the entire letter is that the Union could do no good for the employees and its choice would lead to trouble , thereby interfering with em- ployee rights.23 Upon consideration of the above -quoted portions of the letter taken in the context of the entire letter , I am not persuaded that these statements or the letter as a whole exceeded the bounds of free speech protected by Section 8(c) of the Act. While there are some elements common to this and the cited cases , the context, the specific state- ments, and the degree of aggravation in each case differs. The line which separates the impermissible from the law- ful is not always easily drawn , but I am satisfied that despite Respondent 's other violations of the Act, the letter here considered did not cross the line. 10. In mid-November, Kaiser approached Fowler in his department and told him that he had better keep his mouth shut about the Union or he was going to get fired. Fowler replied that he did not know why, and walked off.24 As the complaint alleges, I find that Kaiser threatened Fowler with discharge because of his sym- pathy toward the Union.25 11. In early December, Alvin Hock, Sr., Respond- ent's chairman of the board, approached employee J. C. Chitwood at his work area. Chitwood had signed an authorization card for the Union. Hock said to him "You forgot the favor I did for you." After a momentary pause Chitwood said "Oh yes . 26 Hock then said "You wer i ahead and signed a union card." Hock started to walk away , and then turned around and added , "Well it won't do you no good." Hock did not indicate how he knew that Chitwood had signed the card. Chitwood had not told him, but had told other employees he had signed a card. The complaint alleges that Respondent violated Sec- tion 8(a)(1) by the conduct of Alvin Hock, Sr., in accusing an employee of signing a union authorization card and not appreciating past favors. Hock's conduct in this incident created the impression that Chitwood's union activities had been under surveillance and to that extent was viola- tive of the Act. There is also in Hock's remarks to Chit- wood the suggestion that future favors from Hock would not be forthcoming because of Chitwood's having signed a card. However, Hock's favor to Chitwood to which Chitwood understood that the reference related appears to have been outside the employment relationship, and I do not find the incident sufficiently clear to conclude that it contained a threat of reprisal because of Chitwood's union activities. 12. Also in early December,27 Fowler approached Paul Hock as Hock was coming through the shop and told him that he was getting annoyed because about every time anyone said anything to him, they would say that he was next to be fired or something like that. Fowler asked Hock "How involved do you think I am in the Union?" Hock replied, "Well every time the union is mentioned, your name is brought up with it." Fowler responded that it was like the last time they had a little union trouble and Hock believed the wrong people. Hock answered "Well, you can't have all angels, Norm," laughed, and walked away.2s The complaint alleges that Hock thereby conveyed the impression that he engaged in surveillance of the em- ployees' union activities. It is not controlling that Hock's remark was prompted by Fowler's inquiry as to Hock's thinking concerning his involvement in the Union.29 Hock's reply went beyond the question asked by Fowler. From Fowler's testimony as a whole it is clear that Fowler was concerned over management's belief as to his role in the Union, and Hock's response was such as to in- crease his concern rather than dispel it. As Hock's answer came about in response to Fowler's questioning as to his thinking, his answer indicated belief in reports of the union activity of Fowler and not merely a disin- terested recitation of rumors coming to his attention from sources not necessarily credited by him. In these ciircum- stances, the inference may be drawn that Hock, rather than seeking to allay Fowler's fears, sought to aggravate them by conveying the impression that he had received credible reports implicating Fowler in the union activi- ties. I conclude that Hock sought to create an impression of surveillance of Fowler's union activities as alleged in the complaint thereby violating Section 8(a)(1) of the Act. 21 Citing Orkin Exterminating Company of Florida, Inc., 152 NLRB 83,93 22 Citing Graber Manufacturing Company, Inc., 158 NLRB 244. 11 Citing Cleveland Woolens, a Division of Burlington Industries, Inc., 140 NLRB 87 , 94; Owens-Corning Fiberglas Corporation , 146 NLRB 1492, 1503 ; Sagamore Shirt Company d/b/a Spruce Pine Manufacturing Company, 153 NLRB 309. 24 Fowler so testified without contradiction 25 The allegation of the complaint is that Kaiser engaged i n such con- duct on or about December 5, 1966 The variance in date is not fatal Haynes Stellite Company , Division of Union Carbide Corporation, 136 NLRB 95, 98 , 108, set aside on other grounds 310 F 2d 844 (C.A. 6) 26 According to Chitwood , he understood Hock to be referring to an in- cident some years earlier when Chitwood's lawyer had subpenaed Hock. 27 Fowler originally placed this incident at December 5, in response to a question of the General Counsel directing his attention to that date. On cross-examination he first placed it at the first of November, but then testified that it was after Huff was fired around December 1. 28 Fowler so testified. Paul Hock denied that the conversation oc- curred. In the light of testimony relating to a similar incident involving Foreman Hensler, next described below, Fowler's testimony concerning his refusal to help Huff in his work shortly before Huffs discharge, and his uncontradicted testimony that Kaiser had earlier threatened him with discharge, I conclude that at this time Fowler was concerned over rumors that he was going to be fired because of his union activities and that he sought reassurance that the rumors were unfounded I have credited Fowler. 29 Hotel Conquistador, Inc, dlb/a Hotel Tropicana, 159 NLRB 1220. BRIGHTON CORPORATION 331 13 About the same time, Fowler also asked Foreman Hensler how involved he thought Fowler was in the Union and commented that he was getting tired of the talk around that he was to be the next one fired. According to Fowler, he asked Hensler what he had heard about that and Hensler replied that over the grapevine he had heard the same thing, that Fowler was going to be fired. Hensler testified that Fowler had mentioned to him the talk in the plant that Fowler was going to be fired next, but he de- nied telling Fowler that he had heard the rumors. The complaint contains no allegation relating to this in- cident. In any event a finding of a violation based on this incident would not result in any expansion of the remedy which will be recommended for the violations found herein. Accordingly, I find it unnecessary to reach any conclusions based on this incident.30 B. The Discharge of Gene Huff 1. The facts Gene Huff started to work for Respondent in August 1965. Huff had previous experience as a welder in as- sembly line work , but not in reading blueprints or in fabri- cation work. At the time of his hire he was interviewed at the State Avenue plant and was asked to demonstrate his welding ability to Foreman Kaiser. After the demonstra- tion he was referred to the Sharonville plant and hired there as a submerged arc welder.31 Although some wel- ders were given tests by Respondent and certified, Huff was never tested or certified. In September 1965, Huff was given a 15-cent hourly increase . 32 Huff was given an additional 5-cent hourly increase in December 1965 and was told by Plant Superintendent Fischer that he was coming along real well.33 In February 1966, Huff went to Fischer and told him that he could get a better job el- sewhere. Fischer then told him that he had a wonderful future with Respondent and that he would give him a 10- cent hourly increase immediately.34 During the week of April 11, 1966, Huff was trans- ferred to the State Avenue plant and assigned to the Hamilton bay under Foreman Hensler.35 A while after his transfer Huff told Schneider that Fischer had promised him another increase. Schneider told him that no such promise was made, but that he would give him an increase to try to keep him satisfied. Huff asked Schneider how he could get to the top of the rate, and Schneider told him that his future increases would depend entirely upon his performance. Around October 1966, Huff received another 5-cent hourly increase.36 After his transfer to State Avenue, Huff was assigned to work on the production of kettles. These were large steam jacketed cooking vessels made for customers such as Heinz, Campbell, and Frito-Lay. Huff was assigned to work with employee Thomas Turner who took him through the operation showing him how to read sketches, lay out four segments of the vessel in metal , get the metal sawed, punched, tacked, placed in jigs, and welded.37 Huff worked with Turner for 3 or 4 weeks and thereafter worked alone on kettles until the union organizing cam- paign began.38 Huff became aware of the union campaign through Barker. He signed a union authorization card on October 12, and thereafter he passed out five or six blank cards to other employees in the shop.39 As set forth above, on Oc- tober 14, Huff told Foreman Hensler that he had signed a card and that he was going to get behind the Union and push it. A week or two after this conversation with Hensler, Huff was assigned for the first time to work by himself on the fabrication of tanks and was given little further work on kettles thereafter. 40 Hensler brought him either a 30 The complaint also alleges that Respondent violated Section 8(a)(1) of the Act by Schneider's refusal on or about November 26, 1966, to pro- vide help to an employee on the job because of the employee 's union sym- pathies , and by Schneider' s accusation on or about December 14, 1966, that an employee turned the sympathy of other employees away from management toward the Union The first would appear to relate to Gene Huff although the date stated in the complaint is after the date of his discharge The second relates to statements by Schneider to Barker at the time of his discharge set forth below. As additional findings based on these allegations of the complaint would not alter the remedy to be based on the violation otherwise found, I find it unnecessary to consider further whether Respondent independently violated Section 8(a)(I) in these respects " Submerged arc welding performed by Huff was semiautomatic and different from the welding in which he was experienced. IZ Huff testified that other employees were given increases at this time, but that a general increase at that time was only 5 to 10 cents an hour and a portion of his increase was based on progress 33 Although Fischer testified that he could not recall telling Huff he was coming along real well or had a great future with Respondent , he conceded that as a new plant manager at the time he felt it necessary to get the em- ployees on his side and praised and encouraged employees , including Huff I credit Huff as to the words of encouragement given him by Fischer 34 Huff testified that Fischer told him he would give him a further in- crease in 3 or 4 months if he stayed Fischer denied promising any later in- crease Schneider testified that when he checked with Fischer to see if such a promise had been made , Fischer denied it Although Huff may have developed expectations based on Fischer's encouragement , I credit Fischer's testimony that no promise was made 35 Although Schneider testified that Fischer, superintendent of the Sharonville plant, told him that Huff was transferred because his welding was not up to quality requirements , Fischer's testimony does not support Schneider Fischer testified that he had many occasions to discuss with Huff deficiencies in Huffs work at Sharonville but that the main reason for Huffs transfer was that they were short of work at the time There is no evidence that Huff was ever told that he was transferred because of poor quality I do not credit Schneider as to the reason for Huffs transfer but credit Fischer's testimony that Huff was transferred because he was no longer needed at Sharonville 11 Huff testified that this was a general increase and that it appeared to be company policy to give an employee a raise every 3 months if he was progressing '17 The sawing and punching were done by other employees Huffs pnn- cipal function was to weld the four segments of the hemispherical vessels together after preliminary fabrication of the segments had been completed Huff testified without contradiction that all kettles were similar except for size 38 Huff's testimony as to the nature of the work performed by him at State Avenue until the union activities began was corroborated by Turner and not contradicted 30 There is no evidence to show whether or not this activity was ob- served by any representative of Respondent 40 Schneider testified that it was around September when it became necessary to assign some tank work to the Hamilton department because the Hamilton engineering section was behind in its work According to Schneider, in September Huff welded some flanges on a reactor tank which failed to achieve full penetration as required and which was returned to Huff for rewelding. Schneider testified that he told Huff at the time that his work was not up to quality and that Huff did not ask him how the job was to be done Hensler testified that he first assigned Huff to tank work in early October There is evidence in Hensler's and Fowler's testimony as well as that of Huff that Huff had assisted other employees in welding tanks before he was assigned a complete tank to fabricate. The first tank job described by Schneider and Hensler appears to be that which Huff worked on with more experienced employees Their testimony does not contradict Huffs testimony that his first assignment to fabricate a tank working alone came after he had announced his prounion sympathies. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD blueprint or sketches and told him that Schneider had sent the job down for him.41 The job called for complete fabrication of an oval tank. Huff told Hensler that he had never done anything like it before.42 Hensler told him to be careful and to try to do a good job. Before receiving this assignment, Huff had been as- signed briefly to help on tank work either to hold something in position for another employee or to weld but he had never been given a complete job to lay out and fabricate by himself. No one was assigned to help Huff or work with him. At least for an inexperienced employee, tank work is more difficult than kettle work, because it requires work- ing from blueprints, laying out work, and various kinds of welding, whereas kettle work is largely standardized.43 Unlike tanks, after kettles are welded, the weld is ground and polished so that any pinholes or crevasses in the weld are revealed and the appearance of the weld is not impor- tant. Inexperienced employees were not usually assigned to work on tanks without help until they had worked on tanks with a top mechanic for from 6 months to a year.44 After receiving the tank assignment , Huff asked Hensler where to get the materials and what to do with them. Hensler sent him to the stockroom where he was told where the materials were and then told him to take them to a roll man to have the shell of the tank rolled out. After the shell of the tank had been rolled, Huff sought further assistance in laying out the location of the fittings. Hensler gave him verbal instructions, and Huff put the fittings on. Due to an engineering error for which Huff was not responsible, the fittings had to be cut off and new fittings installed. The welding required for the replacements was heliarc welding which according to Huff he had never previously done. Huff asked another employee, Claggett Mollett, to show him how to do it. Mollett started to help Huff. While so engaged , Schneider walked by and watched them for a few seconds. Schneider then went over to Hensler, said something to Hensler, and pointed at Huff and Mollett. Schneider left and Hensler called Mollett away from Huff. After Hensler spoke to Mollett, Mollett walked away, and Hensler went to Huff and told him "Well, it's a one-man job and you don't need two men to do it." Huff replied that he did not know anything about heliarc welding and asked how he was going to learn. Hensler shrugged his shoulders and walked off.45 Until this time Huff had been accustomed to ask other employees for help and it was accepted practice for them to give it.46 Before he completed the job, Huff was told by Hensler that he had exceeded the estimated time allowed for the job. After the rework was performed, an inspection by the customer's inspector revealed that Huff's weld lacked full penetration and further rework was required. Schneider told Huff that this was not the kind of work that Respond- ent turned out and that Respondent had been embar- rassed by the incident and lost prestige with the customer.47 When Huff finished work on this tank, Hensler told him that he would see what else he had for Huff to do. Hensler went to Schneider's office and returned with a blueprint for another tank which required three fittings to be laid out on its surface at angles to one another. Huff asked several employees in his department for help, but none of them wanted to help him.48 He then went to Hensler who gave him a verbal explanation of what was to be done which Huff found unsatisfactory. Huff then took the drawing to Barker in the middle bay and asked him for help. Barker told him that during the lunch break he would try to help him and he did. While Huff was working on this tank Respondent's vice president, Alvin Hock, Jr., walked through the shop, looked at the tank, and told Huff the job was not up to quality. Huff asked him what he meant, and Hock replied that it was just what he had said, not up to quality. Huff said he did not understand it, that no one had complained about his welding before. Hock replied that the work was not up to Respondent's quality and that, if he expected to stay, he had better shape up and do better. After Huff completed this job, it was discovered that the fittings were out of line. Schneider came to check the tank and told Huff that the job and the welding looked sloppy and that he would have to straighten the fitting up some way. Huff asked Schneider how to do it. Schneider told him to use his head and walked off.49 Huff finished the second tank on the morning of November 25, and was assigned to some minor work in the department. About 5:15, Hensler came to him and told him he had a nasty job to do. Huff asked what it was, and Hensler told him he had to let him go. Huff asked for the reason and Hensler replied, "Well, you know Al doesn't like your weld on a tank and he's pretty well upset about that. But the real reason is we just haven't got any "Schneider testified that he usually left specific job assignments to the foreman, and that the foreman sometimes sought his assistance in picking a job to suit the individual talents of an employee However, neither Schneider nor Hensler testified as to Schneider 's role in the determination to assign this job to Huff 41 Hensler testified that Huff never complained that he was untrained or needed help. Huff's testimony to the contrary is detailed and far more consistent with his lack of prior training and experience in tank work than Hensler's. I credit Huff. 43 Fowler and Turner, both of whom had substantial experience in the kettle department so testified Although Schneider in his testimony sought to minimize the difficulty of the tank work, he did not contradict their testimony. 44 Turner so testified without contradiction. 41 Turner testified that he observed this incident but did not hear what was said. Hensler and Schneider did not contradict Huff as to this in- cident, and no explanation was offered by Respondent for it 46 Fowler's testimony , as well as an undenied conversation between Huff and Paul Hock 6 to 8 weeks after Huff transferred to State Avenue, confirms that this was the practice. Although Hensler testified that Fowler told him before October that Huff had refused help when it was of- fered , Hensler did not deny that help was customarily given when asked for 47 Schneider so testified without contradiction Hensler with apparent reference to this job testified he told Huff at the time that his work would have to improve and that Huff made no response 48 Huff so testified Fowler testified that he had refused a request from Huff for help on this tank although he had not been instructed to refuse to help him, explaining that "I didn't actually understand what was going on and I didn't want to get any more involved than they had accused me of being " 99 Huff so testified Schneider testified that the workmanship was tem- ble in appearance and that Huff took almost twice as long to complete the job as had been estimated for it He testified that he told Hensler it was a bad job but could not recall whether he spoke to Huff about it. I credit Huff as to this conversation. BRIGHTON CORPORATION 333 work for you to do here. We're all caught up, run out of orders." Huff, after looking around and noticing parts that could be assembled in the kettle department said "Well, Joe, I know the reason that I'm getting the axe here," to which Hensler responded "Well, Buddy, I've got to follow orders just like you do and the job was put in my hands."5o For some time before Huff was transferred to State Avenue all the employees at the plant had regularly worked a 55-hour week and they continued to do so after Huff was released.51 During the period that Huff worked on the two tanks, at least some of the other employees in the department were working on kettles.52 2. Concluding Findings The General Counsel contends that Huffs assignment to fabricate tanks without assistance was designed to "set up" Huff for discharge in order to rid Respondent of a leading union adherent. There is substantial evidence to support that contention. At the outset of the organizing campaign Huff identified himself to his foreman as a vigorous supporter of the Union, and this fact was re- ported by the foreman to the plant superintendent. By various acts of interference, some of which were established by uncontradicted testimony, Respondent made clear its hostility to the Union. After the union or- ganizing campaign began, Huff and Barker met occa- sionally in the plant to discuss union affairs and were watched by Foreman Kaiser who frequently followed them into the men's room. From the time of Huffs transfer to the State Avenue plant until the union organiz- ing campaign started, Huff's work on kettles had been satisfactory, and Huff had only been assigned to a small amount of welding work on tanks in conjunction with more experienced employees who had performed all the layout and fabrication work. Only after Huffs union ac- tivities began, he was first assigned to lay out and fabricate a complete tank. Although tank work was more difficult than kettle work and inexperienced employees were usually assigned to work with experienced em- ployees on tanks for several months before being given complete tanks to fabricate, Huff was assigned to fabricate tanks without the assistance of any other em- ployee, in contrast to his assignment to work with Turner when he first worked on kettles. Although assistance was usually freely given by employees in the kettle depart- ment on request, when Huff sought and received assistance from another employee, Mollett, on one occa- sion, Huff was told by Hensler at the apparent direction of Schneider that Huff would have to do the job by him- self. Hensler discharged Huff at Schneider's direction telling him at the time that the reason was that he had no more work which Huff was capable of performing. How- ever, even though kettle work was apparently slack at the time due to a bottleneck in Respondent's engineering sec- tion, there was some kettle work to be performed in the department, and no reason appears why Huff was not given the available kettle work to perform. Moreover, even if there had not been enough kettle work for Huff, there is nothing to explain why Huff was not assigned to work with a more experienced employee on the tank work in accord with customary practice until the normal flow of kettle work was restored. In his testimony Schneider stressed that the deficiencies in Huff's work were at least in part in welding in which Huff had prior experience. But the record shows that the welding required on the tanks differed in important respects from that performed by Huff on the kettles or in his earlier em- ployment at Sharonville, and, when Huff sought help with the welding from Mollett, he was denied it. Although Respondent contends in its brief that Huff was discharged because he did not reveal sufficient ability and progress in welding work to warrant his continued em- ployment, under both Hensler's and Huff's version of Huffs discharge interview that reason was not assigned as the cause of his discharge at the time, and it would in any event appear no more persuasive than that assigned by Hensler at the time of the discharge. I conclude that the nature of Huffs work assignments was altered and Respondent deviated from its normal practice of assigning inexperienced employees to work with experienced employees on tank work in order to create an ostensible cause for ridding itself of an em- ployee who had declared his intention at the outset of the union campaign to do everything he could to get behind the Union and push it all the way. C. The Barker Discharge 1. The facts Barker started to work for Respondent as a welder at the State Avenue plant in August 1962, with approxi- mately 12 years of prior experience. Barker was hired at the rate of $2.45 an hour and at the time of his discharge was receiving $3.65 an hour, the top rate paid in the plant.53 Barker worked from blueprints, laid out his own work, fitted it, and welded it. Much of his welding was required to pass X-ray tests. Barker made the initial contact with the Union which led to the organizational campaign at the plant and on Oc- tober 12, during the lunch break, passed out authoriza- tion cards to a number of employees on the street about a block away from the plant.54 Barker signed an authorization card.55 As set forth above, shortly after the union activities began, Schneider began to follow Barker around the plant when he left his work station, and Kaiser began to follow Barker and Huff into the men's room when both went there. On one occasion, shortly after Barker injured his '° Huff so testified . Hensler testified that he merely told Huff that he had no more work that Huff was capable of performing and that Huff just shrugged his shoulders and left. 51 Fowler who also worked in the kettle department requested extra time off on Thanksgiving weekend which was denied by Hensler because they had work to get out Thanksgiving fell on the day before Huff was released Fowler could not recall what job he was working on at the time. 52 Huff so testified and there is no evidence to the contrary 51 Barker testified without contradiction that usually it took 5 years to progress to the top rate, but that he reached it in 3 years Barker passed the test given by Respondent for certification of its welders 54 There is no evidence that these activities were observed by any com- pany official. 55 Barker testified that he believed he signed the card about a day before he passed cards out to other employees. His card received in evidence, was dated October 11, 1966, but appears to bear a postmark of October 3,1966 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foot in late October, Kaiser entered the men's room rapidly and bumped into Barker. Because of this incident, a few days later, Barker asked for a meeting with Re- spondent's President Paul Hock. The meeting was arranged, and after Barker disclosed its purpose, Paul Hock called Vice President Alvin Hock, Jr., into the meeting.56 Barker told them that Kaiser had been aggravating him quite a bit the past few days, and that he would like them to get Kaiser off his "back." Barker complained that Kaiser had been ridiculing him and his family and that Kaiser had come through the men's room door rapidly and bumped him.57 Alvin Hock re- sponded to Barker's complaint, and Barker registered displeasure with the response.58 At this point discussion turned to conditions in the shop and whether or not Barker and the employees were satisfied with their jobs and working conditions. Alvin Hock asked Barker if he liked his job with Respondent. Barker replied that he did or he would not be working there, but added that it seemed to him that the shop did not have the spirit that some shops had. Hock said he was not aware of this because he always felt they had good spirit in the shop. Barker replied that Hock was not down there among the men and did not hear some of the things that were said. Paul Hock said that he thought the men were satisfied with their wages and working con- ditions and he did not understand what all the trouble in the shop was about. Barker replied that the wages were pretty good, but that the men wanted to have a pension plan and a break in the morning and afternoon. Alvin Hock asked Barker why his committee did not ask for it. Barker replied that it was not his committee and that the men referred to it as the Company's committee. Hock said that they had never had any complaints about it. Barker responded that the men had complained to him several times about it and had asked him to try to get on the committee. Barker stated that the men had told him that when they came up to talk to Alvin or Paul about a raise, it was all cut and dried and the men had nothing to say. Alvin Hock replied that it was not so and that he did not believe that the committee said that. He added that the committee was a good committee and that when it came up everyone talked. Barker replied that that was not what they told him. During this discussion Alvin Hock said he had been in the shop and had talked to some of the men in the shop. He stated that he had not heard any complaints and did not believe what Barker was saying. Barker asked him if he was calling Barker a liar. Alvin Hock replied that he was not, but that he did not believe what Barker was say- ing. One of the Hocks stated that they imagined that Barker did know what was going on in the shop but that as management they knew some of the things that were going on also. The disagreement continued and Barker finally said that he could see that there was no point talk- ing to the Hocks about it because they were not going to do anything about it and that he might as well go back to work. Barker then left. According to Barker, at one point during the discussion of the views of the other employees, Paul Hock said he believed that the employees were very satisfied with the Company and that Barker had started all the trouble in the shop and was the one behind it. This statement was denied by both Hocks. It is clear from the testimony of all three witnesses that there was an extended discussion of the feelings of other employees in the shop and substan- tial disagreement between Barker and the Hocks, with Barker refusing to concede in the face of contradiction by both Hocks. It is difficult to believe that the union or- ganizing campaign, which had been in progress for at least 2 weeks at the time of this conversation, was not upper- most in the minds of all three participants in the conversa- tion when discussing the spirit and feelings of the men in the shop. Barker's persistent adherence to his view that the employees were dissatisfied in this context stamped him as one likely to be even more militant among the em- ployees than in this confrontation with management which he had requested. While both Hocks consciously or subconsciously may have repressed recollection of re- marks made in the heat of argument with Barker, in the light of the circumstances of this conversation as well as the other events during this period, I credit Barker that Paul Hock told Barker he believed that Barker was the one who started all the trouble in the shop. On Wednesday, December 14, 1966, near quitting time, Foreman Prigge told Barker that Schneider wanted to see him in his office, and both went to Schneider's of- fice. Schneider told Barker he had an unpleasant task to perform and handed Barker his check. Barker asked Schneider why he was being discharged. Barker testified without contradiction that Schneider told him that it was "because of my attitude toward the management and that I wouldn't speak to Alvin and Paul Hock when they were in the shop, and he also said that I was stewing up the men against the Company, that when I was in the shop you could just feel the tension building up, and when I was not in the shop everything seemed to be very calm. That my attitude toward management was effecting my work and that I had done a sloppy job on one job and I had a couple of accidents." Barker added that Schneider mentioned one job that Alvin Hock had reprimanded him about, an accident which occurred when Barker was test- ing a tank, an injury received by Barker when a wire from a polishing brush had pierced his leg, and an injury to a newly hired employee while working with Barker. Evidence was developed as to the four incidents to which Schneider referred. The first related to a job which Barker had started in September 1966, but had to stop because of lack of material. This job involved putting a stainless steel jacket on the head of a tank. About 3 weeks before Barker's discharge, Alvin Hock had questioned Barker in critical tones about the work he had done on the 38 Barker, Paul Hock, and Alvin Hock, Jr , all testified as to this meet- ing Their testimony was in harmony as to the rough outline of what was said but in conflict as to specific statements , as indicated below As might be expected in recounting a conversation that was more than momentary, each stated some details that were neither included nor denied in the ver- sions of the others Where their testimony is not in conflict , I have based my findings on a synthesis of the testimony of the three witnesses " Barker conceded that he had had disputes with Kaiser before this oc- casion and that he and Kaiser did not get along Both Hocks testified that Barker complained of being bumped in the locker room after work rather than in the men's room 58 According to Barker , Alvin Hock said he did not believe that Kaiser had bumped him or that Kaiser would do anything like that According to the Hocks , Alvin Hock responded that Barker was taking it too seriously but that he would speak to Kaiser and, if anything had taken place, he would be notified and action would be taken to eliminate any pressure on Barker if it existed BRIGHTON CORPORATION 335 tank. Barker replied that the head had been made wrong perienced employee, for 2 days. Williams turned the tank and had been bumped so much in its fabrication that a portion of it had become hardened and had developed hairline cracks making it difficult to get it properly placed and welded. Barker explained to Hock what he had done on the job and told him that Prigge knew of the problems. Barker saw Hock talk to Prigge a few minutes later and heard nothing more about the matter until the day he was discharged. Barker testified without contradiction that his problems on the job were caused by improper fabrication of the jacket by another employee. 59 The testing accident occurred on October 25, 1966. The test required the filling of a tank with water. and test- ing it for leaks under pressure. These tests were- per- and watched the rolls on which one end of the tank rested to make certain the tank did not "walk" off them as it turned. After 2 days of work on this job Prigge trans- ferred Williams to another job and assigned an employee who had just started to work that morning to replace him. Barker told Prigge that the helper would have to have a welder's hood because he would have to stand on the tank, turn the chain, and watch Barker as he welded to maintain the proper rate of turn to produce an acceptable weld. Prigge furnished a hood for the helper, and Barker explained to the helper what to watch for. They started to work with both Barker and the helper standing or sitting on top of the tank. In the first 15 minutes, the helper formed in the pickle area at the rear of the middle bay. frr- checked the rolls one or two times and they adjusted the a portion of the area which had formally housed a press, tank's position. Shortly thereafter, the tank lurched as it there was a pit varying in depth from I to 3 feet. The pit turned. Barker became aware that the tank was beginning was covered by 2 by 10 or 2 by 12 boards supported in to turn too fast. He threw his welding gear and hood to the center by a steel I-beam. Barker had placed the tank one side and stood up to see his helper falling off the tank, on one corner of the boards. When filled with water, the and the tank fell off the rolls. Barker stayed on the tank tank weighed about 1 ton. While Barker was filling the and was uninjured, but the helper had fallen on a piece of tank with water, two or three boards broke and the tank protruding pipe from a nearby welding stand which dropped, pinning Barker's foot against the wall and injur- penetrated his body and required his hospitalization. ing it. Schneider testified that Barker was responsible for There is disputed evidence as to whether or not Barker safety as well as other aspects of the job. He conceded had followed normal procedure in setting up the tank for that he had observed the setup as he passed through the testing. However, there is no evidence that he was repri- plant before the accident and that he had noticed nothing manded for the incident at the time and, in view of my ul- unsafe about it but he did not specifically check the job timate disposition of Barker's discharge below, I find it for safety. Schneider questioned Barker's judgment in unnecessary to decide whether, as Schneider testified, having the helper stand on the tank while it was turning, Barker had exercised poor judgment in placing so heavy but conceded that the job was performed in plain view a vessel on the boards. where the man standing on the tank could be seen. Barker's injury from the wire brush occurred about a Schneider also conceded that he never told Barker he had month before his discharge when he was working at a done anything wrong in connection with this job before grinder with a wire brush attachment used to polish Barker was discharged.82 welds. It was not uncommon for wires to be thrown from the brush as it rotated. Barker used a hood to protect his face and eyes but on this occasion a wire was thrown and pierced his leg. Fischer, superintendent of Plant 2, had received a similar injury when he was foreman. 60 The injury to the newly hired employee occurred on November 7, 1966. Barker was working on a heavy stain- less steel cylindrical tank which had to be cut and re- welded. The tank which weighed 2 or 3 tons had a number of projections from it. It was set up by Barker on ,its side on rolls and a tripod so that it could be rotated as Barker worked on it. A second employee was assigned to operate a chain and pulley arrangement to turn the tank at a rate matching the rate at which Barker worked with his welding torch. After Barker set the job up, he called his foreman, Prigge, to check the setup. Barker expressed doubts as to its appearance, but Prigge told him that it was the only way it could be set up and instructed him to proceed with care and to keep checking the setup.61 Barker worked on the tank with the assistance of Williams, another ex- 2. Conclusions The findings above leave little room for doubt that Respondent knew that Barker was a leading proponent of the Union in the shop. While the Union was not men- tioned in express terms during Barker's meeting with Paul Hock and Alvin Hock, Jr., in the context set forth above, it is impossible to construe Paul Hock's assertion that Barker was the cause of all the trouble in the shop as anything but a charge that Barker was cause of the union organizing campaign. Schneider's statement to Barker of the reasons for his discharge, established by uncontradicted testimony of Barker , also demonstrates Respondent 's knowledge of Barker's union activities. Schneider told Barker that he was being discharged, among other things, because of his attitude toward management and because he was "stew- ing up" the men against the Company, adding that when Barker was in the shop one could feel the tension building up and when he was not in the shop everything seemed to -5" Only Barker testified as to this incident. "0 Only Barker testified with respect to this injury "I Barker so testified Prigge testified that, before Barker started to work, he instructed Barker to add some outriggers to the setup to steady it and that was done before Barker started to work Prigge also testified that he believed the setup was safe when work started. 82 Apart from the above, evidence was introduced as to one other in- cident which Respondent contends demonstrated Barker's attitude toward his work. In August 1966, when Foreman Prigge was on vacation, another employee , Franz Ullman, was made acting foreman According to Foreman Kaiser, shortly after Prigge's vacation started, Barker ap- proached him and said, "Boy they really scraped the bottom of the barrel when they got Franz to run this bay over here " Kaiser testified that he replied that in his opinion , Ullman was a pretty good man and walked away Barker denied that he made the statement attributed to him by Kaiser or that he thought he should have been made acting foreman 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be calm. On the record before me Barker's attitude toward management could only have meant his support to the Union and his "stewing up" the men could only have meant his efforts to bring the Union into the shop or related concerted activity.63 Although further support for the finding that Respondent had knowledge of Barker's union activities is not needed, it is found in the frequent surveillance of Barker when he met Huff in the men's room, in Hensler's instruction not to talk to employees about the Union when in his bay, and in Kaiser's remarks to Johnson when Johnson borrowed equipment from him set forth above. The record also supports the conclusion that Barker's discharge was caused by his union activities. Indeed, even if Barker's work had been deficient in the respects claimed, Schneider's statements at the time of Barker's discharge would strongly support the inference that Barker's union activities were a substantial motivating cause for the decision to discharge him. However, it is clear from the evidence that the alleged deficiences in Barker's work were merely makeweights brought forward to bolster a decision to discharge Barker because of his union activity. Of the four alleged deficiencies mentioned by Schneider, the record shows that only one arguably could be deemed a deficiency for which Barker was ac- countable. His alleged poor workmanship was defended by him a few weeks before his discharge. There is no evidence to refute Barker's statement of the reasons why he was not at fault or to indicate that his explanation was rejected when given. Nothing more was said to Barker about it until the day of his discharge. Similarly, Barker's explanation that the injury he received while working at the polishing wheel was unavoidable is also unchallenged on the record, and he was not reprimanded for it during the month between its occurrence and the date of his discharge. Although Respondent presented evidence relating to the accident in which the newly hired employee was in- jured, that evidence does not indicate that Barker was at fault any more than Barker's testimony. Barker worked in plain view with a setup that had been approved. Although Schneider at the hearing criticized Barker's judgment in having the employee stand on the tank, Barker's testimony is uncontradicted that when he asked Prigge for a welding mask for the helper, he explained how he was going to proceed. Prigge supplied the mask and said nothing to Barker about the planned procedure. There is no evidence that Barker was reprimanded after this accident. In these circumstances, Schneider's testimony at most establishes that hindsight is better than foresight, and the record as a whole establishes that Barker was not deemed responsible for the accident at the time it happened. There remains for consideration the tank accident in which Barker was injured. There is conflicting evidence as to whether Schneider and Prigge saw the location of the tank before the test and whether employees had previ- ously been warned not to place heavy tanks on the boards. I find it unnecessary to resolve the disputed evidence, for like the other incidents on which Respond- ent relies, this accident happened several weeks before Barker's discharge, and Barker was not reprimanded for it. Assuming that he were at fault in setting up the tank for testing on the boards, one would entertain grave doubt that an employee of Barker's ability would be discharged because of the accident without prior warning more than a month after the accident. When one considers that along with this accident three other stale incidents for which Barker could not be deemed responsible were added in stating the causes for his discharge, that all of these were attributed to his attitude toward management, and that in stating the reasons for his discharge Schneider also charged Barker with responsibility for "stewing up" the men and causing tension in the shop, the only reasonable inference to be drawn in the light of the other violations found herein is that the alleged deficiences in Barker's work were mentioned by Schneider as makeweights to support a decision to discharge him because of his union activities.64 Accordingly, I find that Barker's discharge violated Section 8(a)(3) of the Act as alleged in the com- plaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discriminated against employees by discharging Gene P. Huff and Richard A. Barker, I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from. the date of his discharge to the date of the offer of reinstatement, less his net earnings, to which shall be added interest at the rate of 6 percent per annum, in ac- cordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As the Respondent has engaged in violations of the Act of diverse character including the discriminatory discharge of two of its employees, there exists a danger of 63 In its brief Respondent points to Barker's alleged remark about the selection of Ullman as acting foreman in August and his conduct in com- plaining to Paul Hock and Alvin Hock, Jr , about Kaiser as evidence that Barker was quick tempered and quick to take offense and indicative of an attitude and approach which seriously reflected upon his work Apart from other considerations, including the triviality and remoteness of the remark about Ullman, even if made , and the relationship of Barker's union activities to his conversation with the Hocks, neither his alleged remark to Kaiser nor his meeting with the Hocks constituted "stewing up" of other employees which Schneider specifically mentioned. 6' Whatever Barker's attitude and approach may have been, I reject Respondent's contention that they caused Barker 's work to suffer to a degree which caused his discharge BRIGHTON CORPORATION commission of other and further unfair labor practices which warrants that Respondent be ordered to cease and desist from infringing in any other manner upon rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and the en- tire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Brighton Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining a watch over employees while at work because of their suspected union activities, dis- criminatorily directing an employee not to speak to other employees about the Union, interrogating employees about their union activities, threatening employees with discharge because of their union activities and sym- pathies, threatening to refuse to make necessary equip- ment available to employees because of their union activi- ties or sympathies, creating the impression that union ac- tivities were under surveillance, engaging in surveillance of union activities, and discharging employees because of their union activities and sympathies, thereby discourag- ing membership in the Union, Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclu- sions of law, and the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Respondent, Brighton Corporation, Sharonville, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discriminating in regard to the hire and tenure of em- ployees or any term or condition of their employment. (b) Maintaining a watch over employees while at work because of their suspected union activities. (c) Discriminatorily directing employees not to speak to other employees about a union. (d) Interrogating employees about their union activi- ties. (e) Threatening to discharge or otherwise discriminate against employees in the terms and conditions of their employment because of their union activities and sym- pathies. (f) Creating the impression that union activities are under surveillance. (g) Engaging in surveillance of union activities. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or 337 to refrain from any or all such activities, except to the ex- tent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Gene P. Huff and Richard A. Barker im- mediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision 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, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its Sharonville, Ohio, place of business co- pies of the attached notice marked "Appendix."65 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.66 65 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 66 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial 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 offer Gene P. Huff and Richard A. Barker reinstatement to their former or substantially 338 DECISIONS OF NATIONAL equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss they may have suf- fered as a result of their discharge. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization by discriminatorily discharging and refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condi- tion of employment. WE WILL' NOT maintain a watch over employees while at work because of their suspected union ac- tivities. WE WILL NOT discriminatorily direct employees not to speak to other employees about a union. WE WILL NOT interrogate employees about their union activities. WE WILL NOT threaten to discharge or otherwise discriminate against employees in the terms and con- ditions of their employment because of their union activities and sympathies. WE WILL NOT create the impression that union ac- tivities are under surveillance. WE WILL NOT engage in surveillance of union ac- tivities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor or- ganizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organiza- LABOR RELATIONS BOARD tion, to bargain collectively through representatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection , or to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. BRIGHTON CORPORATION (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.