Thompson Industries, Inc.

NORTH VERNON DIVISION OF THOMPSON INDUSTRIES 429 North Vernon Division of Thompson Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO. Case 25-CA-2701 January 29, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On September 27, 1967, Trial Examiner Jerry B. Stone 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. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Decision. 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 exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, North Vernon Division of Thompson Industries, Inc., North Vernon, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner : Upon a charge filed on January 13 , 1967, by International Union, United Au- tomobile, Aerospace and Agricultural Implement Work- ers of America, UAW-AFL-CIO (sometimes called the Union herein), the General Counsel of the National Labor Relations Board, by the Regional Director for Re- gion 25 (Indianapolis, Indiana), issued his complaint, dated March 8, 1967 , against North Vernon Division of Thompson Industries , Inc. The complaint alleged con- duct violative of Section 8(a)(1) of the Act (interrogation and threats) and of Section 8(a)(3) of the Act (discharges of Evelyn and Thomas Spoonamore ). The Respondent's duly filed answer admitted many of the facts, but denied other facts and the commission of unfair labor practices. Pursuant to appropriate notice, a hearing was held be- fore Trial Examiner Jerry B. Stone at Indianapolis, Indi- ana, on April 25 and 26 , 1967. All parties were represented at and participated in the hearing and were afforded the right to present evidence , to examine and cross-examine witnesses , to offer oral argument and to file briefs . Briefs were filed by the General Counsel and the Respondent and have been considered. The issues involved in this case are (1 ) whether Ralph Kunz, Gene Banta, and Edward L . Lamaster are super- visors within the meaning of Section 2(11) of the Act; (2) whether Respondent interfered with, restrained, or coerced employees in the exercise of their rights under Section 7 of the Act by making threats and engaging in in- terrogation as to union activities in violation of Section 8(a)(1) of the Act ; and (3) whether Respondent dis- criminatorily discharged Evelyn and Thomas Spoonamore in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record in this case and from my obser- vation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER2 North Vernon Division of Thompson Industries, Inc., the Respondent, is now, and has been at all times material herein, a corporation engaged in the manufacture, dis- tribution, and sale of automotive parts. In the course and conduct of its operations the Respondent maintains plants throughout the United States and at North Ver- non, Indiana (herein called the North Vernon plant). The Respondent, during the 12-month period ending on March 8, 1967, which period is representative of all times material herein, manufactured, sold, and shipped from its North Vernon plant finished products valued in excess of $50,000 to points outside the State of Indiana. The Respondent, during the 12-month period ending on March 8, 1967, in the course and conduct of its business operations manufactured, sold, and distributed at its plants located throughout the United States products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plants directly to States of the United States other than the State in which such plant was located. Based upon, the foregoing and as conceded by the Respondent, it is concluded and found that the Respond- ent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' All credibility resolutions are based upon a composite evaluation of the demeanor of the witnesses and the logical consistency of the evidence as a whole. 2 The facts are based upon the pleadings. 169 NLRB No. 62 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED3 International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and International Molders and Allied Workers Union of North America , AFL-CIO, are and have been at all times material herein , labor organizations within the meaning of Section 2(5) of the Act. It is so con- cluded and found. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues Supervisory Status - Lamaster, Kunz, Vandermur4 The Company's supervisory structure can be described as follows. The plant manager of the Company is Edward Fleming. Serving under the plant manager is the plant su- perintendent. For approximately 1-1/2 years prior to April 1967 the Company's plant superintendent had been Kenny Day. Prior to that time the plant superintendent was Gene Banta. Banta was transferred to the Com- pany's Waverly, Ohio, operation shortly before Kenny Day assumed his duties. Serving under the plant superin- tendent are some eight individuals designated as foremen. It is undisputed that all of the foregoing are supervisors within the meaning of Section 2(11) of the Act. Serving under the foremen are 11 individuals designated as supervisors. The parties are in dispute as to whether these individuals are supervisors within the meaning of Section 2(11) of the Act. Serving under the supervisors (disputed status) are various individuals designated as group leaders or setup men. In 1966 the title of supervisor was given to the in- dividuals in the referred to disputed status. Fleming credibly testified that this designation was to give the su- pervisors status over the group leaders and setup men. All of the individuals designated as supervisors had for- merly been designated as group leaders or setup men. It is undisputed that all of the disputed supervisors have the same authority. The disputed supervisors do not have the authority to hire or discharges or to effectively recommend the same.6 Nor can the company-named su- pervisors authorize employees to work overtime unless told to do so by higher authority, discipline employees,7 or adjust grievances. The disputed supervisors do, however, when told to have employees work overtime, select such employees for the overtime work. It is disputed as to whether the disputed supervisors can grant time off for employees. Fleming testified to the effect that the disputed supervisors did not possess the authority to grant time off for employees; that the com- pany procedures required the securing of a leave slip by S The facts are based upon the pleadings and undisputed evidence. 4 The facts are based upon a composite of the creditgd testimony of all witnesses who testified relative to the duties of the disputed supervisors. In general the basic facts are not in dispute. S Fleming testified also that the plant superintendent did not have the authority to discharge and that even when the plant superintendent made a recommendation of discharge that he (Fleming) made his own investiga- tion. 9 The General Counsel elicited testimony from Lamaster to the effect that, as a designated supervisor, he had recommended that an applicant be hired and that the applicant was hired . This standing alone, however, is in- sufficient to establish that the authority to effectively recommend such ac- the employee from personnel, the initialing of the same by the foreman, supervisor, or group leader, and the final ap- proval by Personnel Manager Howard. Fleming testified to the effect that the procedural requirement for the foreman, company-named supervisor, or group .leader to initial the leave slip was in order that the foreman, com- pany-named supervisor, or group leader, would know of the absence of the employee. Lamaster (a disputed super- visor) testified to the effect that he had granted time off to employees and that in an emergency that the procedure as to the leave slips as testified to by Fleming was fol- lowed. Evelyn Spoonamore testified to an occasion wherein she secured a leave slip, went to a disputed su- pervisor (Vandermur), and explained her need for leave, got his approval, went back to Personnel Manager Howard, and took her leave. There is no evidence of the instructions to the disputed supervisors as to the leave procedure or their authority. It appears clear that Lamaster, as a disputed supervisor, and Evelyn Spoonamore as an employee, considered it necessary that employees explain the reason for time off to the disputed supervisors. Had instructions been given to the disputed supervisors that they only initial the leave slips in order to know of the absence of the employees, I am convinced that Lamaster would not have believed and would not have testified to the effect that he granted time off to employees. I also find it reasonable to believe that a prime consideration in the granting of time off to em- ployees would be the effect on production. Under such circumstances I conclude and find that the initialing of the leave slip by the disputed supervisors constituted an ap- proval thereof, or at least an effective recommendation of time off for the employee. A pay comparison of employees, group leaders and setup men, disputed supervisors, and foremen reveals the following: Foremen are salaried. Disputed supervisors, group leaders, setup men, and rank-and-file employees are hourly paid and punch a clock. Group leaders or setup men make from 15 to 20 cents per hour more than production and maintenance employees. Disputed super- visors make from 15 to 20 cents per hour more than the group leaders or setup men, and from 30 to 40 cents an hour more than production and maintenance employees. Disputed supervisors receive exactly the same fringe benefits, including holidays, vacations, and insurance, as do the production and maintenance employees. Whereas the production and maintenance employees, group leaders, disputed supervisors, and setup men's va- cation plan is keyed to their time of service, foremen au- tomatically qualify for a 2-week vacation annually. Foremen, production and maintenance employees, group leaders and setup men, and disputed supervisors all have the same type of health insurance. Of the referred to per- tion has been granted. Fleming testified to the effect that such authority has not been granted. The evidence is insufficient to reveal that the disputed supervisors have the authority to effectively recommend hiring. 7 Although there is a conflict in testimony as to whether supervisors can discipline employees, I am convinced that the supervisors do not have real authority in this respect. It is clear that in directing work that borderline supervisors would speak in tones of correction to employees . However, the incident of Evelyn Spoonamore's "run-in" with Lamaster wherein she spoke in a disrespectful way to Lamaster shows that higher management failed to back Lamaster up and reveals the lack of effective disciplinary authority. NORTH VERNON DIVISION OF THOMPSON INDUSTRIES sons herein only foremen receive a free insurance (life and accidental) plan geared to their salary. Fleming testified to the effect that the salaried foremen were the ones who decided whether or not to retain probationary employees. Lamaster testified with respect to probationary employees that he made verbal reports on their progress to the plant superintendent. Some of the disputed supervisors are located in depart- ments which have production lines. The disputed super- visors are generally responsible for two or more produc- tion lines and have one or more group leaders or setup men on each line." In general the disputed supervisors are over several lines and have a group leader or setup man over the in- dividual line. It is undisputed that the designated super- visors could move men from line to line and that the group leaders or setup men could move men up and down the line that they were over. It would appear that where a line has two setup men, that the setup men have authori- ty to move up and down the portion of the line for which they served. The disputed supervisors direct the work of the group leaders, make sure that they have supplies, tell the group leaders where employees are to be placed, and check to see that the group leaders (or setup men) do their work. The disputed supervisors keep the group leaders, setup men, and production and maintenance employees busy. When told by the foreman that men are needed for overtime work, the disputed supervisors select the em- ployees for such-overtime. Normally the system of selec- tion of such employees involves the use of the seniority list. However, it is clear that when some employees do not want to work overtime, that the disputed supervisor must exercise independent judgment in determining the selection of the person for such work. The disputed supervisor makes the job assignments of the employees on his lines. In making the job assignments on many occasions the disputed supervisor merely has the employees return to the assignment of the previous day. The same type of work is not always carried on from day to day. As an example, if a different type of car door is being produced, there may be changes on the produc- tion line. There also exist the needs for possible personnel changes when employees are absent. Considering all of the foregoing, I conclude and find that the disputed super- visors exercise responsible and independent judgment in the assignment of employees to their job stations. The disputed supervisors make corrections on em- ployee timecards. The disputed supervisors keep records for "scrap," check quality of parts, instruct employees in work, at times run machines, and fill in for individuals who need relief or are absent. As indicated, the disputed supervisors all have the same authority. Naturally their jobs differ in accordance with the precise type' of work performed by their production lines or area of work. As an example, disputed supervisor Vandermur checks to see that the grinders have the necessary supplies and grinding abrasives needed, checks quality of parts coming down the line, and instructs em- ployees in grinding.9 Vandermur at times runs a grinding machine and fills in for individuals who need relief or who are absent from work. At times Vandermur does setup 8 Fleming's credited testimony reveals that at the time material herein that Vandermur was over seven production lines. Lamaster's credited testimony revealed that at the time material herein that he was over two production lines and had two setup men on each line. 431 work on the milling machine. In early 1966 Vandermur was over seven lines having around 300 grinding em- ployees. Apparently at the time of the hearing in this matter, Vandermur, had three setup men and two grind- ing lines under his supervision. On these lines there were approximately 60 grinding employees. Lamaster, a disputed supervisor, was a supervisor on the Chrysler Line. Lamaster, as part of his duties, checked presses to see that they were ready to operate, drove a forklift truck, corrected timecards, kept scrap records, and filled in for absent employees or employees who needed to be relieved from duty. Lamaster had three or four setup men who worked under his direction on two lines. Lamaster had approximately 22 employees who worked on his lines. Kunz, a disputed supervisor, was supervisor in the shipping department. As part of Kunz' duties he checked incoming material from trucks, at times physically loaded trucks and boxcars, and drove a "mule" and the company truck. Kunz worked under Shipping- Foreman C. Heer. Under Kunz and Heer were five rank-and-file employees. The Respondent at times held meetings where foremen attended but the disputed supervisors did not attend. The Respondent also held meetings where foremen and the disputed supervisors attended. The testimony as to these meetings was not precise or detailed. In general, it ap- pears that the meetings were a mixture of production and safety matters. Considering all of the foregoing, I conclude and find that the disputed supervisors are supervisors within the meaning of Section 2(11) of the Act. It is undisputed that all of the disputed supervisors had the same authority. The evidence is clear that this authority included the right and responsibility to assign employees to work. It is also clear that the exercise of this authority involved the use of independent judgment and responsibility of decision. Were it not for the fact that it is undisputed that all of the disputed supervisors had the same authority to make job assignments, the question of Kunz' status might be dif- ficult i to determine. However, the record is clear as to such authority. Accordingly, I conclude and find that the facts reveal that Lamaster, Kunz, and Vandermur, at all times material herein, were supervisors within the mean- ing of Section 2(11) of the Act. B. Background-In General 1965 Union Activity'o Apparently during the period of time April 1965 through December 15, 1965, International Allied Work- ers, Molders Workers Union was engaged in union or- ganizational activities directed toward the employees of North Vernon Division of Thompson, Inc. During this time Thomas Spoonamore and Evelyn Spoonamore worked on the Union's organizing committee. On April 15, 1965, Superintendent Banta approached Thomas Spoonamore who was loading a truck and told Thomas Spoonamore that he wanted to know if Spoonamore had heard anything about a union trying to get in the plant. Thomas Spoonamore told Banta that he had heard only the night before that a union was trying to 9 Fleming testified to the effect that salaried foremen similarly in- structed employees in grinding. Io The facts are based upon the stipulations of the parties and the credited testimony of Thomas Spoonamore, Christy, Stidham, and Royse. 432 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD get in the plant. Banta told Spoonamore that he wanted to know who was instigating the union up around Westport. Thomas Spoonamore told Banta that the only thing he knew about "it" was that Gerald Owens had been to his home and that he did not know what Gerald Owens wanted because he had not been at home. After Thomas Spoonamore finished loading his truck he went to see Foreman Heer and told Heer of the discus- sion he had with Banta. Thomas Spoonamore told Foreman Heer that he wished that Banta would not ask him such questions because it placed him (Spoonamore) in the middle. Foreman Heer said to Spoonamore that if they didn't keep the Union out the same thing could hap- pen there that had happened at the molding plant in Indi- anapolis: the Respondent could just shut the plant down. Foreman Heer also told Spoonamore that the Petoskey, Michigan, plant had either shut down or moved because of labor trouble. Thomas Spoonamore told Foreman Heer that he did not think that the Company could move out in the face of union activity unless the Company was losing money. Later that day Plant Manager Fleming came to where Thomas Spoonamore was working and told Spoonamore that if the Union were to get in and the Company couldn't show a profit in 2 or 3 years, that the Respondent would probably have to shut down. On April 15, 1965, after having clocked in, Thomas Spoonamore was on his way to his department. Superin- tendent Banta spoke to Spoonamore and asked if Spoonamore had had a visitor. Spoonamore indicated that he had a visitor by a nod of his head. A few minutes later Superintendent Banta approached Thomas Spoonamore at work. Banta asked Spoonamore to tell him who had been at his home . Banta asked Spoonamore what Owens had to do with, the union activity. Spoonamore told Banta that Owens had very little to do with the union activity, that all that Owens was invloved in was getting names and addresses for the union men to contact. Banta told Spoonamore that he knew that Gerald had always been a strong union mali.1' Around April 25, 1965, Thomas Spoonamore and a number of other employees of the Respondent wore but- tons of the aforenamed Union at work. While said em- ployees were wearing buttons, Respondent 's plant su- perintendent, Gene Banta, walked around and among the said employees and noticeably listed the names of these employees wearing union buttons on a pad . At some point during this period of time, employee Estes Stidham heard Superintendent Banta tell Marvin Vandermur that he was "going to fire every damn one of them with union badges on." Around this time, employee Russell Christy saw Su- perintendent Banta whipering to employee Benny Barber. Banta's conversational tone increased from a whisper and Christy heard Banta say that he was going to fire anyone who had a union badge. Around this time, Marvin Van- dermur went to where employees Royse and Gunyon were working and told them that the Company was going to fire every man who had a union button on. On April 25, 1965 , a number of the employees of the Respondent went out on strike and stayed on strike until 11 Around 1962 the United Auto Workers Union was involved in or- ganization work at Respondent's plant according to Fleming. Whether Banta was referring to Owen's involvement in such activity is not clear. 12 The parties' stipulations and positions at the hearing and their briefs are substantially to this effect. For specificity I officially note the facts from the Board's official records. July 2, 1965 . Thereafter on various dates after July 6, 1965, and prior to September 16, 1965, the Respondent made unc06ditional reinstatement offers to various ones of the striking employees. The offers were accepted by some and declined by some. On June 30, 1965, the Regional Director for Region 25 issued a complaint in Case 25-CA-2226 against the Respondent. Thereafter on July 30, 1965, the aforesaid Regional Director issued an additional complaint and order of consolidation of Cases 25-CA-2226 and 25-CA-2276 and a notice of hearing. A hearing on the aforesaid complaint commenced on September 16, 1965. At the hearing the parties entered into a settlement agree- ment wherein the Respondent agreed to take certain voluntary action of remedial nature . The said settlement agreement was approved by the Regional Director on September 17, 1965 . Thereafter on December 1, 1965, the Regional Director notified the Trial Examiner in those cases that the settlement agreement had been com- plied with on or about November 29, 1965, and moved for permission to withdraw the complaint in the matter. Subsequently on December 10, 1965 , the Trial Examiner in such cases granted the aforesaid motion. On October 22, 1965, the International Molders and Allied Workers Union of North America, AFL-CIO, filed a petition in Case 25-RC-3041 for investigation of a question concerning representation of certain of Respondent's employees. 12 On November 10, 1965, the parties entered into a stipulation for consent election. Thereafter an election was held in Case 25-RC-3041 on December 15, 1965 , with the union involved losing such election. On December 28, 1965 , the aforesaid Re- gional Director certified the results of said election. Thomas Spoonamore served as one of two observers for the International Molders and Allied Workers Union of North America, AFL-CIO, in the aforesaid represen- tation election on December 15, 1965. C. Interference, Restraint, and Coercion- Union Activity and Related Events 1. Events of August and September 196613 Sometime shortly before August 17, 1966, Plant Su- perintendent Day found a union card of the International Molders and Allied Workers Union of North America, AFL-CIO, on the floor of the plant. Thereafter on Au- gust 17, 1966, Superintendent Day spoke to Thomas Spoonamore as the latter was returning to work from a break period. Superintendent Day asked Thomas Spoonamore if he knew anything about the Union trying to get into the plant. Spoonamore replied that he ,knew nothing about this except rumors that he had heard. Su- perintendent Day then told Spoonamore that the Respond- ent knew that "there is one trying to get in" and that if the Respondent found out who was behind it that the ones who were "could get in a lot of trouble." As Spoonamore started to leave, Day stopped him and asked Spoonamore to let him know if he found out anything.14 13 The facts are based upon a composite of the credited testimony of Fleming, Smith, and Thomas Spoonamore and a fair inference therefrom. 14 I discredit Day's testimonial denial of the described conversation Of the two, Day and Spoonamore , Spoonamore was more impressive as a frank, forthright, and truthful witness. I credit Spoonamore's version of facts over Day's. NORTH VERNON DIVISION OF THOMPSON INDUSTRIES Considering the foregoing, I conclude and find that the Respondent, by Day's conduct, engaged in (1) interrogat- ing employees as to union activity, and (2) threatening employees with reprisals if they engaged in union activity, all in violation of Section 8(a)(1) of the Act. Sometime during the week of September 19 to 24, 1966, Supervisor Vandermur15 spoke to employee Roosevelt Smith. Vandermur asked Roosevelt Smith if he knew anything about union cards being passed around. Smith told Vandermur that he didn't know anything about union cards being passed out, that if he were passing union cards around that he would carry them for people to see. At this reply, Vandermur laughed. Vandermur told Smith that if the Union ever got in that they would not have a job, that the plant would be closed down. Considering the foregoing, I conclude and find that the Respondent, by the conduct of Vandermur, engaged in (1) interrogation of an employee about union activity of employees and (2) threats to an employee of reprisals for engagement in union activity, all in violation of Section 8(a)(1) of the Act. Sometime later, in the latter part of September 1966, Supervisor Vandermur spoke to Smith again. What trans- pired is revealed by the following excerpts from Smith's credited testimony. Q. Where were you on this occasion? A. I was in the part where we eat in the lobby. Q. What did Mr. Vandermur say this time and what did you say? A. Well, I was sitting at the table by myself and him and Jim Lyle were sitting in front of me and he motioned for me to come over and I went over there and sat down. And he asked me if I would tell him the truth if he would ask me a question and I told him yes, If I knowed the truth, which I didn't know what he was going to ask me. Q. What was said? A. Then he asked me was I passing Union cards around. I said, "No, I haven't even seen the Union card since we come in off the strike and where we got beat in the election." In other words, as he said, well, he said, "There's one found back on the floor," and the best I remember he said, "Kenny Day found it." And he looked around at Jim Lyle and said, "Well, now, you know where that come from?" And I said, "Where?" And he said, "Spoonamore." Considering the foregoing, I conclude and find that the Respondent, by Vandermur, engaged in interrogation of an employee about union activity in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. 2. Commencement of Thomas Spoonamore's activity's Apparently the talk with Plant Superintendent Kenny Day triggered Thomas Spoonamore to thinking about the 15 As indicated elsewhere I find Vandermur to be a supervisor within the meaning of Section 2(11) of the Act. is The facts are based upon a composite of Thomas Spoonamore's credited testimony and the logical consistency of all the facts. 17 The facts are based upon Thomas Spoonamore's credited testimony. 18 It is not clear whether all of the employees worked on Saturday after Thanksgiving Day 1966. 433 desirability of a union. In any event, in August 1966 Thomas Spoonamore commenced talking to his fellow employees about the Union. Thereafter Spoonamore con- tinued his talking to employees about the Union and the conditions at the plant until the time of his discharge in January 1967. Spoonamore told his fellow employees that a union was needed because of the conditions at the plant and because of the dissatisfaction of the employees with the way things were done. 3. The Thanksgiving Day incident17 Thomas Spoonamore and certain other employees1s worked on the Saturday after Thanksgiving Day 1966. It appears that the employees who had similarly worked in 1965 on such a day had received time-and-a-half pay for such work but that the employees in 1966 did not receive pay at a time-and-a-half rate. 4. Supervisor Lamaster's threat of plant removal19 On a day, a short time after Thanksgiving Day 1966, Supervisor Edward Lamaster20 had a conversation with employee Evelyn Spoonamore. During the conversation Evelyn Spoonamore told Lamaster that she wondered whether a union getting in the plant would help straighten out the way things had been done. Supervisor Lamaster told Evelyn Spoonamore that he did not think that it would help for the Union to get in, that the Company would just move out like they did in Indianapolis, and that he did not believe that having a union was the answer to the problem. Considering the foregoing, I conclude and find that the Respondent by the conduct of Supervisor Lamaster, made a threat to an employee that the Respondent would move its plant as a reprisal against unionization of its plant. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. 5. Events of December 6, 196621 On December 6, 1966, Thomas Spoonamore had a conversation with Supervisor Kunz in the shipping de- partment. Spoonamore and Kunz discussed the question of overtime pay for the work on the Saturday after Thanksgiving Day 1966. What occurred is revealed by the following excerpts from the credited testimony of Thomas Spoonamore. A. We were discussing this overtime pay. He had found out we wasn't going to get paid. Q. Tell us what he said and what you said. A. He said, he told me about it and I said, "Well, the reason we didn't get paid for time and a half this year and they got it the year before because there was an election coming up that year and there wasn't a Union trying to get in." And he said, well, he said- I said, "If the cards started coming in the plant again that we would probably get paid for it." 19 The facts are based upon the credited testimony of Evelyn Spoonamore. To the extent that Lamaster's testimony may be construed as a denial thereof, it is discredited. 20 As indicated elsewhere, I find Lamaster to be a supervisor within the meaning of Section 2(11) of the Act. 21 The facts are based upon Thomas Spoonamore's credited testimony. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And he said, "Well, he wouldn't much care if there was and I said, "Well, I think I can arrange that." 6. Events of December 9,1966 22 On December 9, 1966, while getting paid off, Thomas Spoonamore engaged in a conversation with fellow em- ployees, Foreman Heer, Production Manager Brewer, and Supervisor Kunz. What was talked about is revealed by the following credited excerpts from Spoonamore's testimony. A. Well, all of us was discussing not getting time and a half for it and I said the only reason we didn't get it this year and they got paid for it last year is because we didn't have an election coming up this year and I don't recall anyone saying anything. 7. Events of December 10, 196623 Spoonamore decided to contact a union. Thereafter Spoonamore contacted Joseph Couch, a vice president of the UAW Local at the Arvin plant in Seymour, Indiana. Couch set up a meeting for Spoonamore with Mr. Louis Strickland, International Representative of the Union, for December 10, 1966. Spoonamore met with Couch and Strickland at the local union hall in Seymour on December 10, 1966. At this meeting Strickland ap- pointed Thomas Spoonamore as chairman of the in-plant organizing committee and instructed Spoonamore to get his wife and others to be an in-plant organizing commit- tee. Strickland also gave Spoonamore a number of union cards. Spoonamore signed a union card on December 10, 1966, later talked to other employees, appointed his wife and several others to the organizing committee, and on December 12, 1966, commenced active solicitation of other employees as union members. Around December 12, 1966, Thomas Spoonamore and several other employees told Supervisor Kunz that they would like to talk with Plant Manager Fleming about the question of overtime pay for the Saturday work after Thanksgiving Day 1966. Kunz arranged a meeting with Fleming for the aforesaid purpose. At the meeting between the employees and Fleming on or about December 12, 1966, the following persons were present: Van Bortel, Kunz, and Fleming, Thomas Spoonamore, Butler, Lamb, and Comer. Plant Manager Fleming opened the meeting by asking what the employees wanted. Supervisor Kunz and the employees stated that the employees wanted to discuss the fact that they did not get overtime pay for the Satur- day work after Thanksgiving 1966. The employees told Fleming that Comer had a check stub to prove that em- ployees had been paid overtime pay the year before, and that the employees did not know why there had been a change in policy. Fleming stated that he did not think that everyone got such overtime pay the year before and that if the employees had, that there must have been a 22 The facts are based upon the credited testimony of Thomas Spoonamore 23 The facts are based upon the credited testimony of Thomas Spoonamore. 24 The facts are based upon Neace's credited testimony. 25 Found elsewhere herein to be a supervisor within the meaning of Sec- tion 2(11) of the Act. 26 The facts are based upon the credited testimony of Evelyn Spoonamore. mistake. There was much discussion along the foregoing lines. Plant Manager Fleming finally said that it didn't matter, that all of the discussion and talk was not going to change things, that the employees still were not going to get paid overtime pay for the Saturday worked after Thanksgiving Day 1966. 8. Events of December 19 to 24, 1966 a. Vandermur's interrogation of Neace24 During the week of December 19 to 24, 1966, Super- visor Vandermur25 spoke to employee Neace in the presence of several other employees. Supervisor Van- dermur asked Neace if Neace had heard anything about a union getting in the plant. Neace said, "Huh?" Van- dermur then told Neace that there was a Teamsters Union trying to get in. Neace asked Vandermur if Van- dermur had any idea as to who was giving out union cards. Vandermur stated that he had an idea. Considering the foregoing, I conclude and find that the Respondent, by Supervisor Vandermur, engaged in inter- rogation of an employee about union activity in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. b. The Christmas party26 Apparently a short time before December 25, 1966, the Respondent had a company Christmas party for its employees at the plant. On the day of the Christmas party, Evelyn Spoonamore asked Plant Manager Fleming about the possibility of having the Christmas party away from the plant. Evelyn Spoonamore 's conversation with Plant Manager Fleming is revealed by the following excerpts from her credited testimony: A. Yes, that day I asked Mr. Fleming why didn't we have a Christmas party away from the plant where we could dress up in our better clothes instead of wearing our slacks and that we could be out of the plant instead of in the plant because we was in the plant every day and we would like to have something different. Everybody had been discussing it though. At the Christmas party Evelyn Spoonamore also told the employees that Respondent should furnish free "Cokes" for the party. 9. Events a. Circa January 6,196727 On or about January 6, 1967, Supervisor Ralph Kunz spoke to Ernest Lamb in the shipping department. What was said is revealed by the following excerpts from Lamb's credited testimony. 27 The facts are based upon the credited testimony of Ernest' Lamb I discredit the testimony of Ralph Kunz inconsistent with the facts found. Lamb, as compared to Kunz was a more frank, forthright, and truthful ap- pearing witness. Kunz impressed me as an evasive witness and as one not telling the facts as he knew them As an example with respect to whether he had testified that he had said that Spoonamore was in trouble again it became obvious that Kunz thought that this testimony was meaningful and that he should try to change the testimony NORTH VERNON DIVISION OF THOMPSON INDUSTRIES A. And after we quit talking going back to the job Ralph came out of.the office and was going over to help Lynn, I guess, and he asked me if Spoonamore was trying to get himself in trouble again. And I said I didn't know and passed it off at that. And then again when I was going up to punch out at lunch he asked me if Spoonamore was trying to get himself in trouble again and I said I don 't know, all I knew just what I had heard. And he asked me what I had heard and I said, "Well I heard that sometime in the future a Union was going to try to come in." And he said he figured that but he wondered what kind. I said I didn't know. The General Counsel contends that the Respondent, by Kunz, engaged in interrogation as to union activity, and in threats of reprisals because of union activity, The Respondent contends that Kunz merely referred to Thomas Spoonamore's getting into trouble because Spoonamore was taking up too much time talking to other employees. I reject the Respondent's contention. I don't believe or credit Kunz' version of what was said. I am convinced that Kunz did refer to "trouble again " as he testified to in answer to a question by me. Considering all of the forego- ing facts, I am convinced and conclude and find that the Respondent, by Supervisor Kunz, engaged in interroga- tion as to union activity in violation of Section 8(a)(1) of the Act, and made threats of reprisals if employees en- gaged in union activity in violation of Section 8(a)(1) of the Act. Such conduct is conduct violative of Section 8(a)(1) of the Act. I so conclude and find. b. Evelyn Spoonamore's lunchroom remarks January 6,196728 On Friday, January 6, 1967, the Respondent had occa- sion to lay off certain employees. About shift-ending time, Norris Howard , personnel director, and Fleming, plant manager, were in the lunchroom in the break area telling the employees who were being laid off of their layoff. At the same time Evelyn Spoonamore and Thomas Spoonamore were sitting in the lunchroom about 30 feet away from the employees being laid off. Fleming was at a place about 20 feet from the Spoonamores. Fleming heard Evelyn Spoonamore make remarks to the effect that some of the employees were being laid off im- properly out of line of seniority. D. The Discharges of the Spoonamores On January 9, 1967, the Respondent discharged Thomas and Evelyn Spoonamore. The General Counsel contends that the background facts and violations of Sec- tion 8(a)(1) set forth previously herein and the facts directly related to the discharges of the Spoonamores reveal that the discharges were discriminatory and viola- tive of Section 8(a)(3) of the Act. The Respondent con- tends that the discharges were not discriminatorily 28 The facts are based upon a composite of the credited testimony of Fleming and Evelyn Spoonamore . To the extent that either's testimony is inconsistent with the facts found, it is discredited . Evelyn Spoonamore testified to the effect that she addressed her remarks to her sister-in-law and that she said in effect that the employees were being laid off im- properly and that she hated to see them go. Fleming testified to the effect that the reinaks were made loudly and that Evelyn Spoonamore created a commotion. Fleming, however, testified that he did not say anything to 435 motivated but were for cause. Accordingly, I find it proper herewith to set forth additional facts relating to the employment of the Spoonamores as well as those facts relating to the contended shortcomings of the Spoonamores. Additional Setting Facts 1. Thomas Spoonamore Thomas Spoonamore was initially hired by the-Re- spondent on September 19, 1956, at a wage rate of $1.05 per hour. He worked continuously for the Respondent until January 9, 1967, and was employed at that time at a wage rate of $2.17 per hour. At the time of Spoonamore's discharge on January 9, 1967, he was employed as a driver and had been so employed for about a year. -- In addition to the above facts and the facts set forth in section III , B and C, of this Decision the following facts relative to the issues and contentions of the parties are herewith set out. In August 1966 Thomas Spoonamore had some dif- ficulty involving a load he had on his truck. What oc- curred is revealed by the following credited excerpts from his testimony. Q. Mr. Spoonamore, did you ever have any dif- ficulty with a load on a truck? A. Yes, couple times. Q. All right, when was the first time this oc- curred? A. Oh, about six months prior to my discharge. Q. Were you coming towards the plant or going away from the plant? A. No, I was going to Indianapolis to the platers. Q. The platers? A. Yes. Q. Tell us what occurred on this occasion. A. Well, I had a full load when I started to- leave and they come back and they said they had some parts that had to go so they had to ship them the next day and they were in a crate, so I set these parts in- side one of the crates that was already on the truck and I left and I got, oh, about fifteen miles and I noticed- I stopped to check and this crate was missing, it had blown up out of the crate, off the truck. So I went back, picked up the parts and some of them were damaged so I went back to the plant and got parts to replace them. Then I went to Indi- anapolis. Q. When you went back to the plant did you have any conversation with anybody about this incident? A. Mr. Heer. Q. Can you tell us what you said to Mr. Heer and what Mr. Heer said to you? A. I told him what had happened and he said this should have had a chain over them, be sure and chain them down after this, so I did when I went back. Evelyn Spoonamore about the remarks and did not reprimand her. I am convinced that Evelyn Spoonamore's remarks were spoken louder than necessary to convey them to her sister-in-law. I am, however, convinced that Fleming has construed the tone and degree of loudness as being higher than it actually was. I do not believe that if it were as loud as he said or that if a commotion had occurred that he would not at the time have made some remarks to Evelyn Spoonamore or have reprimanded her 350-212 0-70-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You did when you were going back, you say? A. Yes. Q. Now, did you ever have any discussion about this incident with Mr. Van Bortel? A. No. Q. Did you ever have any discussion about this incident with Mr. Fleming? A. No. Q. Did Mr. Heer say anything to you about this other than you should have had a chain on it? A. No, sir. Q. Did he tell you if this happened again you would be discharged? A. No, sir. Q. Did he say anything to you to that effect? A. No, sir. Around the middle of December 1966 Thomas Spoonamore was transporting a load from Indianapolis to North Vernon, Indiana. While doing so a box of parts packaged by Advanced Plating Company split and some of the parts in the box became damaged.29 Van Bortel asked Thomas Spoonamore how the parts had become damaged. Thomas Spoonamore told Van Bortel that the parts had been improperly packaged at the platers. Van Bortel and Spoonamore discussed ways and means of correcting the problem. As a result Van Bortel told Thomas Spoonamore to make sure when he got parts packaged (in the pack being used) to make sure that it was banded both ways.30 Van Bortel told Spoonamore that if the parts were not properly packaged in Indianapolis (at the platers) that he was to call the Respondent. On January 4, 1967, Thomas Spoonamore had a problem involving a load of parts that he was taking from Indianapolis to Respondent's plant in North Vernon, Indiana.31 What occurred is revealed by the following ex- cerpts from his credited testimony. Q. All right, tell us what type of load you had on this time. A. I had several boxes of parts in cardboard car- tons and then I had several that were in a wooden crate. Q. Tell us how you loaded this or how you secured it or what you did about it. A. Well, the cardboard cartons I had in the front of the truck and then I had heavy crates on behind them and because I was afraid something might hap- pen to these parts I put a rope over the top of these and then the tarp wasn't very good, it was pretty rot- ten, so I was afraid it would tear so I put a chain over the tarp over these parts. Q. Now, you told us you had some difficulty. When did you observe this? A. I was about half way back from Indianapolis. Q. Okay, tell us what you observed and what hap- pened then. A. I was driving along and I was looking in the rearview mirror and I seen these parts on the highway so I pulled over and stopped and went aroun' to see where they was coming from and I was 29 The facts as to this incident are based upon a composite of the credited testimony of Van Bortel and Thomas Spoonamore. Van Bortel's testimony was more generalized and to the effect that he placed the entire burden and responsibility for a secure load and for seeing to it that the parts were packed safely on Spoonamore. I find Spoonamore's testimony that he was told to see that the boxes were banded both ways to appear more credible and so credit up on the truck and the state trooper pulled up be- hind me and he come around and asked me what had happened and I told him that the tarp had split and one of the boxes had split open and the parts, had been pulled out by the wind. And he told me to be sure and get the parts off the highway so I went back and picked them up and that was it. I went on into the plant. Q. Any idea how many parts were damaged? A. Only about fifteen that actually blew off the truck. Now, inspection had to go through the whole box. I don't know how many were damaged. Q. What type of parts were these, Mr. Spoonamore? A. They were garnish parts for a Mustang that goes above the windshield. Q. Mustang automobile? A. Yes. Q. Now, when you got back to the plant did you have any conversation with anyone in regard to this incident? A. Well, I told my foreman what had happened. Q. Did you tell him about it? A. Yes. Q. All right, tell us what you told him and what he said. A. Well, I told him that the tarp had split and that these parts had blown out and some of them were damaged. I don't know how many. TRIAL EXAMINER: Who was this you told? THE WITNESS: Mr. Heer, my immediate foreman. TRIAL EXAMINER: All right. THE WITNESS: And he didn't say any more about it. I told him about the tarp. By Mr. Mercer: Q. Did he make any reply then? A. No. Q. Did you have any conversation about this in- cident with Mr. Van Bortel? A. Yes, I was up there and talked to him about it. Q. Is this them same day or some other occasion? A. I believe it was that same evening. Q. Where were you when you talked to him? A. In his office. Q. Who was there? A. He's the only one I can think of. Q. Who brought the subject up? A. I forget why I was in there but I told him about it, I brought it up. Q. What, if anything, did he say about this? A. He said that he guessed that we were going to have to start banding these boxes. This was a new pack. The old pack had been banded. Q. What do you mean by banded? A. Steel bands around them. Q. You say this was a new pack? A. Yes. Q. And it did not have a steel band? A. No. 30 Apparently banded crossways and long ways. 31 The facts relating to this incident are based upon a composite of the credited testimony of Thomas Spoonamore, Van Bortel, and the exhibits in the record. NORTH VERNON DIVISION OF THOMPSON INDUSTRIES 437 Q. On this occasion did Mr. Heer warn you or reprimand you about this? A. No. Q. Well, did Mr. Heer say anything to you about this at any time other than what you just testified about? A. No, sir. Q. Did Mr. Van Bortel say anything to you other than what you testified to about this incident? A. No, sir. Q. Did Mr. Fleming say anything to you about this incident? A. No, sir. Q. Did Mr. Fleming talk to you about this in- cident? A. No sir. The parts that were damaged in this incident were 50 in number and the Respondent's sales price for such parts was around $1.25 per part. The type of pack that was being used at this time was different from the pack that had been used a month earli- er. The Respondent has undertaken no steps to have the plater to change the new pack in any way. Prior to the in- cident Spoonamore had related to Foreman Heer on several occasions that the truck needed a new tarp. Within several days after the incident the Respondent furnished a new tarp for Spoonamore's track .32 During Thomas Spoonamore's 10-year employment period he had never been warned about the quality of his work. 33 On January 6, 1967, Thomas Spoonamore was approx- imately 32 to 33 minutes late in clocking in for work. There is no evidence however that he was reprimanded for this incident.34 2. Evelyn Spoonamore35 Evelyn Spoonamore was initially hired by the Respond- ent on September 28, 1956, at a wage rate of $1.05 per hour. She worked thereafter until January 9, 1967, and was employed at a wage rate of $2.07. At the time of her discharge on January 9, 1967, Evelyn Spoonamore worked on position 5 on the line (which was the notch and trim position). According to the credited testimony of Lamaster (the supervisor at the time of her discharge) he kept the best operators on the most complicated job, and the most complicated job was on position 5 or 6. In addition to the above facts and the facts set forth in section III, B and C of this Decision the following facts relative to the issues and contentions of the parties are herewith set out. Sometime around 6 months before Evelyn Spoonamore's discharge, Evelyn Spoonamore had an in- cident in which she and Lamaster became angry with each other. The facts are revealed by the following credited excerpts of Evelyn Spoonamore's testimony.36 A. Well, we had changed lines. We had come from one door line to the other and there was an extra operator that was left from the other line and he had her going to relieve everybody and give everybody a break and she started to give me a break and told her, told me to go on back in and run the press and she had already got in there and he made her get out and made me get back in, you know, and I don't know, a few things was said there and then I started laughing and he took me serious more or less and I said- Q. What did you say to him? A. I said, "Why don't you kiss my butt." * * * * A. He said, "Do you mean that?" * A. And I said. "Yes." And a little bit then he left and a little bit he come back and he said, "Do you still mean that?" And I said, "Yes." And he said, "All right" he said, "Come with me. We are going to the office." I said, "All right, let's go." And we went up to the front office. * * * * A. Ed Lamaster told Mr. Van Bortel what I had said and he said he wasn't going to have nobody talk- ing to him like that. He said,."I asked her if she meant it and she kept saying she did, so I told her we were going to the office" and he said, "Me or her, one, is not going back out there." And Van told us we ought to stop and kind of talk this over and get it straightened out. He said he thought it was more or less a misunderstanding that, you know, between us, and he asked us both- A. Van Bortel. Mr. Fleming's assistant, and so we just kind of discussed it and they told me to go on back out to work, and I went out back in the plant and then I don't know what happened after that. Q. Did you work the next day? A. Yes, I did. Q. Mr. Lamaster work the next day? A. Yes. Q. Did you ever hear any more about this from anyone? A. No. On January 6, 1967, Evelyn Spoonamore was late 32 or 33 minutes in clocking in for work.37 Thereafter Super- visor Lamaster spoke to her about this matter. During Evelyn Spoonamore's time of employment the following may also be stated. Supervisors Lamaster and Brown had told her at different times that her press was 32 This would appear necessary in any event as a torn tarp offers little protection from the elements. 33 Thomas Spoonamore credibly testified to this effect. The record is barren of evidence of such criticism unless the remarks about these in- cidents set out are so construed I do not construe such remarks as criti- cism but merely factual statements of solutions of normal problems that occur in work. 34 Fleming testified to the effect that the Respondent's Employee Handbook set forth that a number of warnings for lateness were required before used as a basis for discharge. Fleming also testified to the effect that the Respondent did not follow the handbook and did not give warnings to all employees. 31 The facts are based upon a composite of the credited testimony of Evelyn Spoonamore. 36 Lamaster's testimony is virtually to the same effect 31 There were a number' of other employees late that date. Fleming's testimony revealed that he did not know whether these employees were reprimanded or not. 438 DECISIONS OF NATIONAL hard to operate and that her work was good. During her time of employment no one had ever told her that she had produced bad or defective parts. In addition to the time that Lamaster spoke to her about being late, around 1961, Evelyn Spoonamore had received a warning slip for being late, and in the fall of 1966 General Foreman Staub had talked to her about being late and had told her that she had to start getting in to work early. On occasion Evelyn Spoonamore set parts off her line. Lamaster credibly testified that he had seen Evelyn Spoonamore and others do so. Evelyn Spoonamore credibly testified to the reasons and occasions that she set parts off the line as follows:38 Q. Under what circumstances would you do this? A. Well, sometimes they would shut the back line off. There was two belts on one line and I was right in the dividing line where the belt divided and if they shut the back line off they would still keep coming at me and I would either have to run them and set them-or set them off and sometimes they would work on a bender and they would run them to the bender and they would be ready for my press and there would be a big pile setting beside my press waiting for me when I went in in the morning, some- times the press would break down and I would have to set them off until they could get the press fixed, and well, there is several things that, you know, that occasioned to do it. Lamaster also credibly testified to the effect that at some point of time shortly before Evelyn Spoonamore's discharge that she brought coffee and doughnuts to the production line, and on another occasion brought apples to the line. Lamaster further credibly testified to the ef- fect that others, and even himself, on occasion brought coffee to the production line. Lamaster credibly testified to the effect that he kept scrap records and that during the last week that it did not come to his attention that there was an unusual amount of bad parts, and that he did not make any report to higher management about Evelyn Spoonamore's work the last week,39 and he did not recommend that Evelyn Spoonamore be discharged. On January 9, 1967,40 Thomas and Evelyn Spoonamore worked their regular shift. When they went to punch (at the timeclock) at 3:45 p.m., they discovered notes on their timecards. The notes stated "Please come to the personnel office" and were signed by the secretary of Norris Howard (personnel manager). The two Spoonamores went to the personnel office. After seeing Personnel Manager Howard, the two Spoonamores were taken by Howard to Plant Manager Fleming's office. In Fleming's office in addition to the two Spoonamores there were Howard, Fleming, and Fleming's personal secretary (Teresa Hollowell). What occurred is revealed by the following credited excerpts of Thomas Spoonamore's testimony.41 A. Well, as soon as we got in the door Mr. Flem- ing said , "Have a seat," and before we got sat down he said, "Thomas and Evelyn, you are being discharged for causing discontent among the people and discrediting any and all Company policy," and "8 Although the Respondent seems to contend that this was one of the problems relating to Evelyn Spoonamore's discharge, there was no specific evidence to reveal the facts other than testified to by Evelyn Spoonamore. °H The record is barren of any evidence of production of bad parts by Evelyn Spoonamore. LABOR RELATIONS BOARD my wife said, "Well, you don't have any reason to discharge us." And he said, "Well, I don't want to discuss it." And then he said, "I have your checks," and he read off the deductions and so forth and gave them to us and I told him, "You don't have a good reason for doing this." And he said, "That's all I have to say, I am not going to discuss it." And I said, "That's fine, you can discuss it with the Labor Board then." Thereafter, Personnel Director Howard, on behalf of the Respondent, filed documents with the Indiana State Employment Security Division. In these` documents the Respondent set forth that the reason for the unemploy- ment of the two Spoonamores was "Discharge-for misconduct." The day after the discharge of the two Spoonamores, Supervisor Lamaster attempted to find out the reason for the discharges. What occurred is revealed by the follow- ing excerpts of Lamaster's credited testimony. Q. When did you first find out that Mrs. Spoonamore was discharged? A. The next morning after she was discharged. Q. From who did you first find out about it? A. Well, I heard the employees talking about it out there in the department first, then I got curious and I just checked with Mr. Howard and then I went to the front office and Mr. Van Bortel, he and I talked about it, discussed it. Q. Tell us what you said and what he said. A. Well, we was right there in the office and I asked him if he wanted to talk to me. I told him Nor- ris told me he wanted to talk to me and he said he did about her termination and he told me that she had been discharged for misconduct. If anybody wanted to know anything about it or any questions of why, the reason, why just misconduct. And I told him just misconduct. Q. You mean if you were asked? A. Yes. Q. Was that it, was there anything else said? A. No. Q. Did he explain to you what he meant by the term misconduct? A. No, sir. Some of the employees also attempted to learn from the supervisors the reason for the Spoonamores' discharges.What occurred is revealed by the following ex- cerpts from the credited testimony of Comer. Q. You men had some conversation, regardless what the conversation was did any of you talk to Ralph Kunz and Charlie Heer? A. Yes, we did. I think it was I or somebody else but we asked him what happened to T. Spoonamore and they said they did not know. Q. When was this in relation to this morning con- versation you had with the other men? A. This was the first thing in the morning, 7:00 o'clock. 40 The facts are based upon a composite of the credited testimony of Thomas Spoonamore, Evelyn Spoonamore, Lamaster, Comer, and Flem- ing. 41 Although Fleming testified, he did not contradict the testimony of the two Spoonamores in this regard. NORTH VERNON DIVISION OF THOMPSON INDUSTRIES Q. Where were you when you talked to Ralph Kunz and Charlie Heer? A. In the shipping office. Q. What was it that was asked, what did you ask Charlie Heer and Ralph Kunz? A. We asked why Spoonamore got fired and they said they did not know. Considering all of the foregoing, I am convinced and conclude and find that the evidence clearly preponderates for a finding that the Respondent discriminatorily discharged Thomas and Evelyn Spoonamore on January 9, 1967, in violation of Section 8(a)(3) of the Act. The evidence clearly reveals that for the past several years the Respondent had been aware of or suspected union activity at various times. The evidence also clearly reveals that on such occasions the Respondent either knew that Thomas Spoonamore was engaged in union ac- tivity or believed that he was so engaged. The evidence further reveals , by Kunz' remarks on January 6, 1967, that Spoonamore was in trouble again , that the Respond- ent knew of the current union activity and of Thomas Spoonamore's involvement. Although the Respondent may not have specifically known the name of the union involved , it is clear that Thomas and Evelyn Spoonamore were engaged in UAW union activity and that this activity was the cause of their discharge. Although the Respondent by Fleming 's testimony, which Ido not credit, offered various contentions as to the reasons for the Spoonamores' discharges , I do not find such contention believable under the circumstances of this case. The uncontradicted and credited testimony of the Spoonamores reveals that the Spoonamores were told at the time of their discharge by Fleming that they were being discharged "for causing discontent among the peo- ple and discrediting any and all Company policy." The only evidence in this record having any meaning relating to this statement, as I see it, is the evidence relating to Thomas Spoonamore 's actions and complaints related to Thanksgiving overtime pay, and to Evelyn Spoonamore's remarks about the use of seniority for layoffs at the time of the January 5 , 1967, layoff. These very incidents cou- pled with Respondent's clear proclivity to associate Thomas Spoonamore with suspected union activity clearly supports a finding that the discharges were because of a strong belief of union activity by the Spoonamores . The background evidence and Respond- ent's conduct violative of Section 8(a)(1) weighs for a finding of discriminatory motivation when considered with the totality of all of the facts. Furthermore the Respondent's notification to the Indi- ana Employment Security Division to the effect that the reason for, the discharges was misconduct is completely inconsistent with the facts advanced or the reasons ar- gued at the hearing. The foregoing is set forth with the qualification that the word "misconduct" as used by the Respondent may have been used to describe the Spoonamores' conduct relating to the Thanksgiving over- time pay and the seniority layoff contention. If so, I do not find such actions to be misconduct but rather the ex- ercise of protected concerted activity . It suffices to say that the totality of the evidence convinces me that in main various reasons testified to, or apparently elicited in sup- port of, or contended by the Respondent at the hearing as the cause for the Spoonamores' discharges, are all pretex- tuous reasons selected after the event had occurred. 439 Thus I am convinced and conclude and find that the al- leged reasons, revealed at the hearing and not to the Spoonamores at the time of discharges, such as poor work performance, tardiness, and damage to parts, are all pretextuous. Accordingly, I conclude and find that-the Respondent discriminatorily discharged Thomas and Evelyn Spoonamore on January 9, 1967, in violation of Section 8(a)(3) of the Act. 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 the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which is found necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by the discriminatory discharges of Thomas Spoonamore and Evelyn Spoonamore on Janua- ry 9, 1967, it is recommended that Respondent offer Thomas Spoonamore'and Evelyn Spoonamore immediate and full reinstatement to their former positions, or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of the discrimination against each of them, by payment to each a sum of money equal to the difference, if any, between the wages each would have earned absent the discrimina- tion against each of them, and the amount of wages ac- tually earned, if less, from the date of commencement of discrimination (January 9, 1967) to the date of Respond- ent's offer of reinstatement to each. Such backpay shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291 to 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 176. As the unfair labor practices committed by the Respond- ent were of a character which go to the very heart of the Act, it is recommended that the Respondent cease and desist therefrom and cease and desist from infringing in any other manner upon the rights of employees guaran- teed by Section 7 of the Act. CONCLUSIONS OF LAW 1. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and International Molders and Allied Workers Union of North America, AFL-CIO, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. North Vernon Division of Thompson Industries, Inc., the Respondent, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees, thereby discouraging mem- bership in or activities on behalf of a labor organization, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization of its employees by discharging or otherwise discriminating in regard to the hire or tenure of employmenrof any term or condition of employment of any of its employees , except to the extent that such rights may be affected by an agree- ment 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 Re- porting and Disclosure Act of 1959. (b) Interrogating its employees concerning their or other employees' union affiliation or activities in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (c) Threatening its employees with discharge, with loss of job opportunity because of plant closure or mov- ing, or with other reprisals, because of their activity on behalf of a labor organization. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, , 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 as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agree- ment 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 Re- porting and Disclosure Act of 1959. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Thomas Spoonamore and Evelyn Spoonamore immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. (b) Notify Thomas Spoonamore and Evelyn Spoonamore 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) Make whole Thomas Spoonamore and Evelyn Spoonamore for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to their loss of earnings from the date of their discharge to the date of Respond- ent's offer of reinstatement in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the l Board and its agents, for examination and copying,, al payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant or necessary to the determination of the amounts of backpay due and the reinstatement and re- lated rights provided under the terms of this Recom- mended Order. (e) Post at its plant in North Vernon, Indiana, copies of the attached notice marked"Appendix."42 Copies of said notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted and take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.43 41 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." 43 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 offer Thomas N. Spoonamore and Eve- lyn Spoonamore immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and WE WILL notify Thomas N. Spoonamore and Evelyn Spoonamore 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. WE WILL make whole Thomas N. Spoonamore and Evelyn Spoonamore for any loss of earnings they may have suffered by reason of the discrimination NORTH VERNON DIVISION OF THOMPSON INDUSTRIES against them, all in accord with and in the manner set forth in the "Remedy" section of the Decision in this case (25-CA-2701). WE WILL NOT discourage membership in or activi- ties on behalf of International Union , United Au- tomobile , Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization of our employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any tern or con- dition of employment, except to the extent that such rights 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 Report- ing and Disclosure Act of 1959. WE WILL NOT interrogate our employees concern- ing their or other employees ' union affiliation or ac- tivities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with discharge , with loss of job opportunity because of plant closure or moving , or with other reprisals, because of their activity on behalf of a labor or- ganization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , 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 as guaranteed by Section 7 of the Act, and to refrain 441 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, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining members of Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization, except to the extent that such rights may be affected by an agree- ment 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 Re- porting and Disclosure Act of 1959. Dated By NORTH VERNON DIVISION OF THOMPSON INDUSTRIES, INC. (Employer) (Representative) (Title) 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921.