LTV Electrosystems, Inc.

532 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD LTV Electrosystems, Inc. and United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases I1-CA-2948, 3045, 3 100, and 3 104 January 31, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On March 13, 1967, Trial Examiner George A. Downing 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. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that those allegations of the com- plaint be dismissed. Thereafter, the General Coun- sel, Respondent, and Charging Party filed excep- tions to the Decision and supporting briefs. I 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by engaging in the conduct described more fully in the Trial Examiner's Decision. The General Counsel and the Charging Party ex- cept to the failure of the Trial Examiner to find that Respondent further violated Section 8(a)(3) and (1) of the Act by discharging employees Gordon Turner, Jerry Cooper, and Leon Metcalf. We find merit in these exceptions. The three employees, Turner, Cooper, and Met- calf, were called, in that order, to the office of A. T. Henry, Respondent's production manager, on the afternoon of September 28, 1965,2 and were sum-. i The General Counsel and the Charging Party except, inter alia, as to some of the Trial Examiner's credibility findings. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect . Such a conclusion is unwarranted here. We, therefore , adopt the Trial Examiner's credibility resolutions, and his findings of fact based thereon. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F.2d 362 (C.A. 3). 2 All dates herein are 1965. 3 The only other incident concerning a slowdown as Ashley told Henry on the morning of September 28, involved Cooper. English, engine shop manly terminated. The reasons given by Respond- ent for such termination. were harassing or coerc- ing and threatening another employee and slowing down production. The name of the employee in- volved was not then disclosed nor were the dis- chargees afforded any opportunity to present their defense. The discharges were purportedly precipitated by a telephone report made by em- ployee Ira Keenan on the evening of September 27 to Respondent's superintendent of production, Hogan, as to an alleged incident after working hours, the day preceding the discharges. As noted, one of the reasons advanced for the discharges was that these three employees were responsible for a slowdown in production. The record, in our opinion, does not support such an al- legation. The record does disclose that in the engine shop where the three dischargees and Keenan were employed there had been at sometimes considera- ble levity in which all employees joined including Keenan. As a result of a complaint by Keenan some 3 or 4 weeks prior to September 28, Ashley, su- perintendent of the engine shop, did speak to the three dischargees about the commotion going on in the engine shop, that he thought they were responsi- ble for some of it, and told them he wanted it stopped. Ashley then immediately called the whole engine shop staff together and repeated what he had told the three about the commotion without men- tioning names, that there was production to get out and he wanted the "b-s-" stopped. Ashley ap- parently did not regard the three dischargees as the sole "culprits" but took in all the employees. Ashley issued no warning slips, as was Respond- ent's practice, and made no report to his superiors Hogan and Henry.3 Hogan, whose duties brought him several times daily into the engine shop and had frequent conversations with Keenan, apparently was unaware of any of the alleged problems in the engine shop until Keenan's telephone call of Sep- tember 27. It appears that Metcalf and some of the others ribbed Keenan about his working at top speed but we do not construe this as an attempt to engage deliberately in a production slowdown but rather a more or less normal situation in an industri- al plant where one employee by working through his lunch period and other actions, as Keenan did, appears to attempt to outdistance a competing crew in production. As we view the record, we find no basis for a conclusion that Metcalf, Turner, and Cooper were collectively or individually engaged in an attempt to achieve a production slowdown.4 foreman, about a month or more before complained to Ashley that Cooper was slowing down his engine-testing work and requested Ashley to ter- minate Cooper . Ashley did not terminate Cooper but spoke to him about the matter and had no further cause for complaint before Cooper's discharge on September 28. 4 Henry admitted that at times he was aware that production slowed down and when he made inquiries of Hogan as to the cause he was in- formed by Hogan slowdowns were the result of the "depth" into which work on the engines was required, or shortage of parts and man power. Such slowdowns were never attributed to employee action by Respondent prior to September 28. 169 NLRB No. 64 LTV ELECTROSYSTEMS, INC. 533 The other reason given by Respondent for the discharges was that the dischargees threatened and coerced another employee. Turner, it appears, did, some weeks before, voice a warning to Keenan "not to cross his path leaving the gate" which, as Turner stated, was a result of a taunt by Keenan. Turner later apologized to Keenan. Subsequently, either on the day before the discharges or slightly prior thereto, Turner again warned Keenan about "his nose being longer than his leg" and "not to cross his [Turner's] path after leaving the gate." Assuming, as Respondent contends, that there was a threat to Keenan, there is not a scintilla of evidence that Metcalf ever voiced a threat against Keenan. Further, Henry was informed by England on the morning of September 28 that another employee Nicholson, a member of Keenan's crew, had threatened to "bash" Keenan's brains out as a result of another taunt of Keenan's. While Henry told England he would look into it, Henry did not question, Nicholson, let alone discipline him. We can only conclude from the above that Respondent was not seriously concerned regarding such alleged threats. On the basis of what is stated above together with the abruptness of the Respondent's discharge of the three employees, the Respondent's failure to relate to these employees the specific reasons for their discharges other than in general terms, and the Respondent's refusal to give these employees an opportunity to state their side, we are not persuaded that these employees were discharged for the reasons stated. On the contrary, we conclude, on the record as a whole, that the reasons advanced by Respondent justifying the discharges, particularly the Respondent's seizure of the incident on the evening of September 27,5 were merely pretextual in order to enable Respondent to rid itself of three employees, particularly Metcalf, who were union adherents. Metcalf, Turner, and Cooper all had signed union authorization cards. Metcalf and Cooper both served, on the original union organizing committee; however, Metcalf was known as one of the most ac- tive leaders. Turner was also an active union member, was a member of the union organizing committee, passed out union handbills at the plant gate, and he appeared several times as a witness for the Union at the Board's representation hearings early in September. Taking into consideration the Respondent's known antiunion bias and its efforts to thwart union organization of its employees, all of which ' is clearly supported by the record and the Trial Examiner's findings of Section 8(a)(1) and (3) violations, it can be inferred that Respondent was fully aware of the prounion activities of these three employees. The record establishes that Metcalf was clearly marked by Respondent for retaliation by Respond- ent because of his activities- on behalf of the Union. Thus, Wayne England, the engine shop foreman and immediate supervisor of these em- ployees, testified that Respondent first became con- cerned about Metcalf's union activities around the latter part of August when Ashley, general foreman of the engine shop, came to England and told him that he was having a hard time getting a raise for Metcalf because Respondent was aware of his union activities. England further testified that, early in September, Joe Strange, Respondent's industrial relations supervisor, an infrequent visitor, to Eng- land's office, told England: Listen Wayne, we are going to have to do something about Metcalf. Metcalf is going to have to go one way or another. You're going to have to watch him and keep an eye on him and come up with some reason, either being out of his work area, or poor productivity or some valid reason we can get for getting rid of him. He is one of the main pushers in the Union. He is going to have to go. We thought it was Branyon who was more or less the leader, but come to find out it is Metcalf. Strange, in testifying, admitted he told England that "Metcalf is of the biggest union pushers" and that England should "keep an eye on him." We conclude, contrary to the Trial Examiner, on the basis of the above, and our review of the record as a whole, that the reasons for the discharge of Metcalf advanced by the Respondent were pretex- tual. While the record is silent as to whether Turner and Cooper were similarily marked by Respondent as was Metcalf, it is clear that in order to give the discharge of Metcalf the aura of legitimacy, it was necessary for Respondent to include Turner and Cooper. Consequently all the dischargees were dis- criminated against within the meaning of the Act.6 We find that the Respondent has not, contrary to the Trial Examiner, sustained the burden of going forward with cogent proof sufficient to rebut the proof adduced by the General Counsel in support of discriminatory discharges. and that the General Counsel has sustained the ultimate burden of prov- ing by a preponderance of the evidence that 5 As to the actual happenings on the parking lot after working hours, the record presents a confused picture. Keenan did not identify any of the three , dischargees specifically other than "he knew their voices." It also appears that while Metcalf and Cooper were together with three other em- ployees in back of Keenan who was with two other employees, there is no conclusive evidence that Turner was there. Turner, it appears from the record, left earlier with employees Branyon and Stroud. Employee Craw- ford, who was close to Keenan at the time, testified at the hearing, but was not questioned as to this alleged incident. Cooper admitted he called out to Keenan, when he saw Keenan running , that "he better hurry." Em- ployee Tedford corroborated Metcalf, Turner, and Cooper that they did not threaten Keenan or run after him the evening of September 27. 6 W. C. Nabors Company, 196 F.2d 272 (C.A. 5), cert. denied 344 U S. 865; Gus Canales, 131 NLRB 571, 586. Cf. Ellis and Watts Products, Inc., 130 NLRB 1216. 534 DECISIONS OF NATIONAL LABOR RELATI6NS BOARD Respondent discharged Leon Metcalf, Gordon Turner, and Jerry Cooper, on September 28, 1965, because of their union activity, in violation of Sec- tion 8(a)(3) and (1) of the Act.7 As more fully described by the Trial Examiner in his Decision , 13 *employees of Respondent engaged in a strike, on September 28, protesting the discharges of Metcalf, Turner, and Cooper. The Trial Examiner found, and we concur, that the strike was a protected concerted activity which the strikers engaged in for their mutual aid and protec- tion and in order to support the cause of their fellow employees. However, on the basis of his findings that the prior discharges of Metcalf, Turner, and Cooper were not unlawful, he concluded that the strike was not an unfair labor practice strike. How- ever, as we have found that the discharges were un- lawful, we conclude and find that the strike was an unfair labor practice strike, and that Respondent in terminating strikers violated Section 8(a)(3) and (1) of the Act. We further disagree with the Trial Examiner's finding that Fred Snoddy was not an agent of Respondent. prior. to.October. 1,. 1965.8 Snoddy's duties prior to his change in status included inter- viewing job applicants, with, authority.to reject ap- plicants if he deemed them unqualified . In the event Snoddy was of the opinion an applicant could possibly qualify for work, he sent the applicant for further interviews with various foremen. In addi- tion, part of Snoddy's duties consisted of informing job applicants of Respondent's labor policy. We have consistently held that a person occupying a position such as was held by Snoddy, is allied to and is part of management.9 However , we make no find- ing as to the alleged unlawful antiunion statements attributed to Snoddy, some of which would be merely background, as they were made prior to the 10(b) period. The record fully establishes Respond- ent's illegal acts committed in furtherance of its antiunion bias. Such further findings would merely be cumulative. We do not adopt the Trial Examiner's comment that Arnold Newkirk, Respondent's General Manager, . while testifying on July, 23, 1965, that "leadmen did not have the right to hire or fire," but added thereto "did have the right to recommend." (Emphasis supplied.) We find there is no basis in the record for attributing the added comment to New- - kirk. We do not adopt the Trial Examiner's recommen- dation that the striking employees, who were un- lawfully discharged, be reimbursed for loss of earnings from the date of their discharge to the date of their reinstatement. In accord with established Board principle, backpay shall be dated from the date the striking employees (Paul A. G. Guevre- mont, John S. Henchock, J. B. Miller, Joe E. Ted- ford) cease withholding their services and request reinstatement, irrespective of the fact that they were discharged.10 THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. We have further found that the Respondent has discriminated against employees Leon Metcalf, Gordon Turner, Jerry Cooper, Paul A. Guevre- mont, John S. Henchock, J. B. Miller, and Joe E. Tedford by discharging them in violation of Section 8(a)(3) and (1) of the Act. We shall therefore order the Respondent to offer the above-named em- ployees immediate and full reinstatement to their former or substantially, equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they may have suffered as a result of this dis- crimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the date of discharge, except that for each of the strikers, Guevremont, Henchock, Miller, and Tedford, it shall be from the date he requested reinstatement, less his net earnings during said period. Such backpay is to be computed in the manner provided by the Order herein. The Trial Examiner concluded and found that employee Kenneth Miller'was given a lower merit rating than he would have received but for his union activities, with a consequent adverse effect on his qualification for a merit increase, and that Respond- ent thereby engaged, in discrimination to dis- courage membership in the ' Union, in violation of Section 8(a)(3) and (1) of the Act. However, the Trial Examiner inadvertently failed to state this finding in his Conclusions of Law and likewise failed to provide a remedy. Accordingly, our Deci- sion amends the Conclusions of Law of the Trial Examiner to correct this omission and our Order provides for reimbursement of Miller for earnings 7 N.L.R.B. v. Solo Cup Co., 237 F.2d 521, 525 (C.A. 8); A. P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 916 (C.A. 8); N.L.R.B. v. South Rambler Co., 324 F.2d 447,449 (C.A. 8); Osceola County Co- Operative Creamery Association v. N.L.R.B., 251 F.2d 61, 62, 66 (C.A. 8); N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A. 2), cert. denied 373 U.S. 950; Nachman Corp. v. N.L.R.B., 337 F.2d 421, 423 (C.A. 7); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693,698 (C.A. 8). 8 On or about October 1, 1965, Snoddy was given authority by Re- spondent to hire new employees and conduct orientation meetings for such employees. 8 Cf. The B. F. Goodrich Company, 115 NLRB 722,724-725. 10 Seaway Distributing Co., 143 NLRB 460, Member Brown would adopt the Trial Examiner's recommended remedy for the reasons ex- pressed in his dissent in Seaway. LTV ELECTROSYSTEMS, INC. 535 lost by reason of the unlawful lower rating. Said lost earnings shall be paid, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. ADDITIONAL CONCLUSIONS OF LAW Amend Conclusion of Law number 2 in the Trial Examiner's Decision to read as follows: "2. By discharging Wendell Chavis, Henry Thompson, Paul Vaughn, Leon Metcalf, Gordon Turner, and Jerry Cooper because of their union membership and activities, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act." Add the following two paragraphs after Conclu- sion of Law number 2 in the Trial Examiner's Deci- sion, as amended above, and renumber subsequent Conclusions of Law accordingly: "3. The strike in which Respondent's employees engaged beginning on September 28, 1965, was an unfair labor practice strike." "4. By giving a lower merit rating to Kenneth Miller because of his union activities, thereby af- fecting his qualification for a merit wage increase, the Respondent has engaged in unfair labor prac- tices in violation of Section 8(a)(3) and (1) of the Act." Amend Trial Examiner's Conclusion of Law number 3, which is renumbered herein as number 5, by substituting therefor the following paragraph: "5. By discharging Paul A. Guevremont, John S. Henchock, J. B. Miller and Joe E. Tedford because they engaged in concerted activities for their mutual aid and protection and refusing to rein- state the employees who went out on strike on Sep- tember 28, '1965, in protest against Respondent's unlawful discharge of employees Leon Metcalf, Gordon Turner, and Jerry Cooper for engaging in union activities, Respondent has engaged in unfair labor practices, in violation of Section 8(a)(3) and (1) of the Act." ORDER reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered by payment to them of a sum of money equal to that which they would normally have earned from the date of discharge, except that for each of the strikers, Guevremont, Henchock, Miller, and Tedford, it shall be from the date he requested reinstatement, less his net earnings during said period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, together with in- terest thereon at the rate of 6 percent per annum." 2. Add the following paragraph to be numbered 2(b), and renumber the succeeding paragraphs ac- cordingly: "(b) Make Kenneth Miller whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to that he would have earned but for the discrimination practiced against him, such payment to be computed from the date he received his down-graded merit rating to the time of his discharge, with interest thereon at 6 percent per annum." 3. Amend renumbered 2(c) by adding thereto the names of Leon Metcalf, Gordon Turner, and Jerry Cooper. 4. Amend the part of renumbered paragraph 2(e) which reads "to be furnished," to read "on forms provided by." 5. The sixth paragraph of the notice is amended by the adding the following names "Leon Metcalf, Gordon Turner, and Jerry Cooper," and by deleting the words at the end of this paragraph "in the manner provided in the Trial Examiner's ' Deci- sion." 6. Add the following as the seventh paragraph to the notice: WE WILL make Kenneth Miller whole for any loss of earnings he may have suffered as a result of our discrimination against him, with 6 percent interest. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, LTV Electrosystems, Inc., Greenville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Paragraph 2(a) is amended to read as follows: "(a) Offer to Wendel Chavis, Henry Thompson, Paul Vaughn, Leon Metcalf, Gordon Turner, Jerry Cooper, Paul A. Guevremont, John S. Henchock, J. B. Miller, and Joe E. Tedford immediate and full TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: These con- solidated proceedings , brought under Section 10(b) of the National Labor Relations Act, as amended, were heard at Greenville, South Carolina, on September 19 to 30, 1966, inclusive. The consolidated complaint and an amendment thereto were issued, respectively, on August 19 and 30, 1966, on various charges dated January 7 and 14, June 10, July 12 and 26, and August 15, 1966. As amended further at the hearing the complaint alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by (1) various 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specified acts of interference, restraint, and coercion (e.g., interrogation, threats, and promises); and (2) by dis- crimination against numerous employees (through discharge, layoff, refusal to reinstate, disciplinary warnings, and denial of wage increases) because of their union membership and activities. Respondent answered denying the unfair labor practices as alleged. Upon the entire, record in the case and from. my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED I conclude and find on facts alleged in the complaint and admitted by answer that Respondent , a Delaware corporation, engaged at Greenville , South Carolina, in the repair, overhaul, and modification of military aircraft is engaged in commerce within the meaning of Section 2(6) and (7). of the Act,'. and that the Charging Union (Union and UAW herein) is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Issues and Contentions; the Pattern Theory The issues herein, almost entirely factual, involve the complaint allegations, denied by answer (see Statement of the Case, supra), that Respondent engaged in a course of coercive and discriminatory conduct violative of Sec- tion 8(a)(1) and (3) of the Act from July 1965 to August 1966. Discrimination was alleged in the discharge of some 19 employees (in order of discharge: Wendell Chavis, Gordon Turner, Jerry Cooper, Leon Metcalf, James E. Brandon, Paul A. Guevremont, J. B. Miller, Joe E. Tedford, John S. Henchock, Henry Thompson, Daniel A. Davis, Paul M. Vaughn, James L. McNinch, Charles F. Reece, Roy E. Chastain, Jr., Roger W. Chastain, Mrs. Paul Hoblitz, Kenneth Miller, and Charles D. McCann), in the refusal to reinstate five strikers (Brandon, J. B. Miller, Guevremont, Tedford, and Henchock), in the is- suance of disciplinary warnings to six employees (Wen- dell Chavis, Frank C. Ward, Frank Schulenburg, Charles McCann, Paul Hoblitz, and Kenneth Miller), in the denial of a wage increase to Paul Hoblitz, and in giving a lower rating and lesser wage increase to McCann and Kenneth Miller. At the conclusion of the General Counsel's case the complaint was dismissed, on Respondent's unopposed motion, as to Brandon, Schulenburg, and the two Chastains. Respondent defended each instance of alleged dis- crimination by a showing of "cause" and it contended further that in any case the complaint must be dismissed as to Leon Metcalf, Wendell R. Chavis, Henry Thomp- son, Paul Vaughn, and Charles D. McCann because, as I Through the receipt annually from extrastate points of materials valued in excess of $50,000 and the sale and shipment annually to extra- state points of finished goods valued in excess of $50,000. 2 The most important issues in the case concerned the discharge on September 28 of Turner, Cooper, and Metcalf for that action triggered a strike by some 13 other employees and resulted in additional issues sur- rounding the alleged discharge and refusal to reinstate 4 of the strikers. 3 The General:Counsel devoted, the major bulk .of his' brief :to .the first series of discharges and he argues that the remainder of his case must also leadman, they were supervisors within the meaning of the Act. (See section B, 2, infra.) The case revolves primarily around two separate series of discharges, the first of which occurred in September and October 19652 (ending with the discharge of Henry Thompson on October 20) and the second from May through August 1966, with an intervening segment of conduct from October to May. For convenience this Decision is organized so as to deal with the conduct as it occurred during those separate periods. Preliminarily, however, it will aid in obtaining perspec- tive to consider the implications of the "pattern" theory advanced by General Counsel and Union under which it is contended that all "causes" were pretexts which Respondent used to retaliate against active union mem- bers and committeemen. Support is thereby claimed for a number of cases where there was little or no showing of discriminatory intent and where the defensive showing of cause was strong and apparently bonafide.3 The chief weakness of the theory, however, fully ex- posed by the record, is that it proved too much. For as ap- plied to all the situations which were involved herein, it would justify findings of discrimination against additional employees whom the General Counsel either failed to litigate or as to whom he accepted dismissal of the com- plaint. For example, the evidence concerning the strike and its aftermath showed that Respondent's conduct ap- plied indiscriminately to 13 strikers, not to just the 5 who were included in the complaint and not to just the 4 who ultimately remained at the end of the hearing. The General Counsel's theory would also have required litiga- tion of Michael Miller's discharge under the latter's testimony.4 Aside from the foregoing, the causes on which Re- spondent purported to act not only varied widely in the flagrancy of the employee's conduct but in some cases equivalent disciplinary action was also meted out to the other participants in the same misconduct, without ap- parent regard to union membership or lack of it and without claim by the General Counsel of discrimination against the other participants. It is not meant by this to say that each of Respondent's acts is to be viewed separately or as standing alone, but only that the pattern theory is rejected as applied indis- criminately to establish Respondent's unlawful motive in all the cases involved herein. B. Background 1. The representation proceeding The Union, which represents the employees at Respondent's Texas plants, began an organizing cam- paign at Greenville in June 1965 and filed a representa- tion petition-on July 1 in Case 11-RC-2223. Following a hearing on July 23, the Regional Director dismissed the petition, without prejudice, on August 13 on the ground that the unit was expanding and that an election would be found because the evidence established "a carefully calculated pattern to destroy the Union." The Union similarly was reduced to reliance on the' pattern theory as to Daniel Davis, Frank Ward, and Mr. and Mrs. Paul Hoblitz, arguing that it created a presumption that Respondent was also discriminatorily motivated in their cases. 4 Miller, though not included in the complaint , was named in one of the Union's charges and the Union's brief specifically assigns the pattern theory as the sole basis of an argument that he (like Daniel Davis and Mrs. Paul Hoblitz) was unlawfully discharged. I make no finding on the issue. which was not before me under the complaint allegations. LTV ELECTROSYSTEMS, INC. 537 not be timely. The Union moved for reconsideration on August 16, and on August 25 the Regional Director granted the motion and revoked his prior decision. Further hearings were held on September 9, 16, 17, and 21. On September 27 Respondent filed a request for a col- lateral investigation claiming that supervisors (i.e., lead- men) participated in the card signing campaign, but on October 26 the Regional Director directed an election in a unit which included leadmen but excluded supervisors. On November 4 Respondent moved the Regional Director to reconsider and to reopen the record to take additional evidence on the status of leadmen, claimed to be supervisors. Upon denial of that motion Respondent filed a motion for review with the Board on November 15, and on November 22 the Board ordered the record reopened for the purpose of taking further testimony on the status of leadmen. The election was held on December 10 with the leadmen voting challenged ballots which were impounded pending determination of their status and further testimony was taken on the issue on December 15 through 17 and 27 through 29. The Regional Director ordered the representation case transferred to the Board for decision, and on April 15, 1966, the Board issued its decision finding that leadmen were not supervisors within the meaning of the Act. When the ballots were counted on April 22 the Union won, but the Employer filed objections on April 27, renewing its contention that leadmen were supervisors. The Regional Director overruled the Employer's objec- tions in his supplemental decision on June 15 and cer- tified the Union. On July 8 Respondent filed a request for review with the Board at a time when its motion for reconsideration was pending before the Regional Director. On August 9 the Regional Director denied the motion for reconsideration, and on October 26 the Board denied Respondent's request for review on the ground it raised no substantial issues warranting review. 2. The litigation of the leadman issue At the initial representation hearing on July 23, 1965, Respondent stipulated that the leadmen were not super- visors following brief testimony by Arnold Newkirk, a management witness, that leadmen did not have the right to hire or fire but did have the right to recommend. When further hearings were held in September, however, cer- tain testimony by the witness Henry Thompson concern- ing his duties as leadman indicated to Respondent's coun- sel that Thompson qualified as a supervisor, and he cross- examined Thompson at length concerning the duties of leadmen. Following that hearing Respondent filed on September 27 its request for a collateral investigation, contending that supervisors participated in the card-sign- ing program and taking the position formally for the first time that leadmen were supervisors. Following the Board's order of November 22, which granted review of Respondent's motion to reopen the record on the point (see section 1, supra), 5 additional hearing days were devoted to a full scale litigation of the issue, with more than 700 pages of testimony being added to the prior record. Upon review of the entire record the Board concluded after making a detailed review of the evidence that "leadmen as employed by the Employer are not supervisors as defined in Section 2(11) of the Act, but are merely experienced workmen who exercise routine, non-discriminatory guidance to less capable workmen." There was no contention in the present hearing that Respondent was in any manner prevented from making in the former record a full presentation of all relevant evidence and none that it wished here to offer evidence which was newly discovered or previously unavailable to it. Cf. Frito-Lay Inc., 161 NLRB 950. Respondent con- tended, however, that it was entitled to require the Trial Examiner to hear de novo all the prior testimony and to make de novo his own findings on the same record on which the Board had already decided against it. Thus for the mere sake of relitigating what had previously been fully explored by the parties and decided by the Board, Respondent would add 5 more hearing days to the present lengthy hearing and would increase the present record from 1,785 pages to 2,500. A better illustration of an exercise in pure futility could scarcely be imagined. Indeed, since Respondent had already obtained a full hearing and since its offers at the present hearing in- volved neither newly discovered or previously unavaila- ble evidence, there existed no genuine or material issue of fact which could conceivably require a further hearing. Moreover Respondent is wholly free to renew before the Board its contention that the former finding is erroneous and to assign that error to the court of appeals on petition to enforce or to review. See Sections 9(d), 10(e), and 10(f). It is thus apparent that all requirements of due process have been met. Cf. E-Z Davey Chevrolet, 161 NLRB 1380; Carl Simpson Buick, Inc., 161 NLRB 1389. Respondent relies chiefly on such cases as Leonard Niederriter Company, Inc., 130 NLRB 113, and Amalgamated Clothing Workers [Sagamore Shirt Co.] v. N.L.R.B., 365 F.2d 898 (C.A.D.C.). I find those cases to be inapposite, for the Board here reopened the representation record on Respondent's motion and per- mitted a full scale litigation of the issue, without claim now either of deficiency or of new evidence. C. The Conduct Involved Herein 1. Setting and introduction Respondent's plant occupies the former Donaldson Air Force Base at Greenville and its operations take place in some 20-odd buildings located in an area which is more than a mile long. Respondent operated similar installa- tions in-Texas--at which UAW was the bargaining representative othe employees, and there was no indica- tion in the present record that relations there were other than amicable. Indeed, some of Respondent's supervisors had been union members either in Texas or in other prior employments and were known to the employees not to harbor antiunion sentiments. Moreover other supervisors who figured prominently in the case had been active in the Union prior to promotion and they were fully aware of the identities of the union leaders and of the other members. Though none of the supervisors continued openly to support the Union after acquiring supervisory status, neither was it evident that all of them suddenly became antiunion or that the employees regarded them as antipathetic to the Union.5 5 Continuing prounion sentiments were particularly apparent in the case of Foreman Wayne England, who was designated by union counsel as his representative to remain in the hearing room (when other witnesses were excluded on motion) and who was one of the leading witnesses for the General Counsel. 538 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is thus relevant under the opposing theories of the case to note preliminarily the identities of the members of the Union's committees as well as of the foremen who were known to have been union members either at Greenville or elsewhere. In mid-June the Union appointed an organizing com- mittee which consisted of Jerry Cooper, Leon Metcalf, Wayne England, Wendell Chavis, Charles Carter, Guy P. Morgan, and Charles F. Ernest. England was made an acting foreman in mid-July and no longer served on the committee. James F. McCoy and R. A. Martin both became foremen on August 16, but before that time they attended union meetings and engaged actively in union activities. General Foreman G. A. Burton was formerly a union member and steward at Respondent's Texas plant. General Foreman Ashley informed Wendell Chavis that he had served, as steward of the Machinists Union in Texas and that he had no "hard feelings" toward UAW, and Chavis testified further that Foreman David Blackwell signed a union card before he became a foreman. After the ballots were counted on April 29, 1966, a bargaining committee was elected consisting of Roy Chastain, Paul Vaughn, Paul Hoblitz, and James L. Mc- Ninch and around the same time the Union appointed a membership committee of 28 members, which included Roy Chastain, Roger Chastain, Charles McCann, James McNinch, Kenneth Miller, Frank Schulenburg, Paul Vaughn, Paul Hoblitz, and Charles Reece. All of those named were involved in various allegations of discrimina- tion, though the General Counsel and union acquiesced in a dismissal of the complaint as to Schulenburg and the two Chastains. 2. The initial period-July to October 20 a. Interrogations, etc. Gordon Turner testified that early in July, he answered an inquiry of Foreman James Wilder as to the strength of the Union in the engine shop by telling Wilder that so far as he knew every employee in the shop had signed a card. As Wilder's inquiry occurred outside the 10(b) period, the evidence is relevant only on the subject of knowledge of the extent of organization in the engine shop, a point on which Foreman England, of that shop, was obviously fully informed. Other evidence outside the 10(b) period consisted of testimony of Jerry Cooper, Leon Metcalf, and Gordon Turner concerning statements which they attributed to Fred F. Snoddy (and which Snoddy denied) at a time when the latter was employed as a preliminary inter- viewer in the personnel department. As Snoddy func- tioned at the time only as a screener of applicants for further interviews and was without authority to employ, I conclude and find that he was not a supervisor or agent prior to the time, around October 1, when he was given the authority to hire and also to conduct orientation meetings with new employees. The finding concerning Snoddy's status also disposed of a further alleged instance of interrogation which John S. Henchock attributed to Snoddy in mid-July, also de- nied by Snoddy. Henchock also testified to statements which were made by Industrial Relations Supervisor Joe Strange dur- ing an indoctrination meeting in mid-July, but his account reflected nothing of a coercive character. Indeed, Henchock's testimony was in substantial accord with the typed statement set out in the margin belowc which Strange testified he read and directed to be read at all orientation meetings. Henry Thompson testified that on August 3 Foreman Martin questioned him about his union sentiments and stated that the Company had given Martin a form to fill out concerning the union views of the employees. Martin denied that testimony, adding that he well knew Thomp- son's union sentiments by reason of their joint participa- tion in solicitation and in other union activities. Besides, Martin testified, he was not made a foreman until August 16, a claim the General Counsel did not refute. I there- fore credit Martin's testimony. Wendell Chavis testified that Foreman McCoy inter- rogated him concerning the Union in mid-August and also suggested that Chavis come over to the supervison side because there were more benefits there. McCoy denied making those statements, explaining that he was fully aware of Chavis' views through active participation with him (and Henry Thompson) in union activities. It was otherwise evident that Chavis was well aware that McCoy was favorably disposed toward the Union for he admitted on cross-examination that he had conversations with McCoy in which the latter agreed that the Union would be a good thing for the employees of LTV. I credit McCoy's testimony. The foregoing summary contains nothing on which a finding of an 8(a)(1) violation can be based. There remains, however, testimony concerning a conversation between Chavis and Martin on August 25, which is directly related to Chavis' discharge and which is sum- marized in the next section. b. The discharge of Wendell R. Chavis Wendell R. Chavis was employed for some 5 months in the accessory shop in building 1030, which housed some seven shops as well as a first aid station and a cafe. All of the shops were under the supervision of Foreman David Blackwell, who made Chavis an acting, leadman in mid- July. Chavis was an active union member, was put on the first organizing committee in June, and was a witness for the Union at the representation hearing on September 9. Respondent conceded knowledge of Chavis' union activi- ties. Chavis was given a warning notice on August 20 for being out of his assigned work area without proper authorization and was discharged on September 15 for the same offense. The warning notice was delivered by Foreman Blackwell who informed Chavis it was based on the fact that Chavis had gone to the first aid station 6 "We are currently undergoing an organizing drive by the UAW Union. The company does not believe that the employees need the union and we are going to oppose this union's organizational efforts with every legal means . You are not required to pay dues or any other charges to any- one in order to work here . The South Carolina Right-to-Work Law clearly provides that you not be required to join or to pay dues to a union in order to hold your job. No one who joins the union will get preferential treat- ment over those who do not join ; we endeavor to treat all of our em- ployees alike. We believe that this union has nothing constructive to offer and that all of us can make greater progress and provide greater security for ourselves and our families by working together without the disruptive influence of outside unions." LTV ELECTROSYSTEMS, INC. without permission. Chavis denied knowing that it was necessary.to have an authorization slip to go to first aid and denied seeing any posted rule to that effect. General Foreman Ashley, who came by, assured Chavis that if he had not seen the rules, he need not worry for he would not be terminated or disciplined for violating them. Chavis testified that he went to the nurse's station to show the nurse a newspaper clipping concerning the Union and that he saw no company rules posted until the following week when some 20-odd rules were posted.7 Charles McCann testified similarly that it was only after Chavis' warning that Blackwell informed the employees that a pass was necessary to go to first aid. Blackwell testified that in mid-July and again the first of August he informed the leadmen, including Chavis, and the employees that a pass was necessary to leave their work areas. However a written notice to employees which Respondent offered tended to support the in- terpretation or understanding which Chavis and McCann had of the rule, for it cited by way of example that, "[I]f an employee who works in Building #1029 wishes to go to Building #1030, he must first secure a pass from his supervisor." I therefore credit the testimony of the latter. Chavis testified further that on August 25 he began a conversation with Foreman Martin by calling him a "titty boy" and that Martin asked Chavis not to call him by that name again, stated that if Chavis did not look out the Company was going to fire him, that it had come close to doing so a day or so earlier when it gave Chavis the warn- ing slip, and that Chavis was going to keep on "with this union stuff until they do fire you." Chavis admitted on cross-examination that in prior conversations Martin agreed that the Union would be a good thing for the Com- pany. Martin testified that Chavis began calling him "titty boy" when Martin was made a foreman and that on Au- gust 25 he told Chavis in a tone indicating that he "meant business" that Chavis was not ever to call him that name again. Martin denied making the other statements which Chavis attributed to him. It was obvious from Martin's testimony that he finally became thoroughly provoked by Chavis' persistent calling him by a derogatory nickname and that naked anger spurred his ultimate outburst and was part of his showing that he "meant business." Considering the probabilities inherent in the situation, I conclude and find that Martin made the threats and warnings which Chavis testified to. On September 15 Ashley took Chavis to the office of Shop Superintendent Hogan where Hogan informed Chavis he was discharged for violation of company rules. Chavis testified that the termination slip was already made out and that when he asked which rule he violated, Hogan stated he was not going to comment on it. Chavis also asked Ashley what rule he had violated and Ashley said he knew nothing about it. Chavis at first refused to sign the termination notice but was told that he had to sign it before he could get his tools out of the plant. Ashley and Hogan testified to occasions in mid-Sep- tember on which one or the other of them had seen 9 The date of that posting as Chavis testified to it accorded with the date, August 26, of a notice to employees from Industrial Relations Manager White concerning an attached list of 29 company rules. 8 Respondent also offered the testimony of Henry's secretary, Barbara Wilson, concerning a call from Chavis, who asked her to give him certain information about incoming aircraft. Respondent 's witnesses made no at- 539 Chavis either in other buildings without a pass or in other shops in building 1030 (e.g., the machine shop and the tubing shop). They discussed the matter between them- selves, reached a decision to discharge Chavis, and talked to Production Manager Henry about it.8 Concerning the discharge interview, they gave mutually corroborative testimony that Ashley referred to the previous warning about Chavis being out of his work area, stated that Chavis had been doing the same again, and that Chavis was being terminated for violation of company rules. Chavis inquired what rule, and Ashley told him it was code 19, violation of company rules. I credit their testimony. Concluding Findings I conclude and find on the credited testimony of Chavis and McCann that Respondent had in effect prior to the warning notice, no rule which required employees in building 1030 to obtain a pass to go to the nurse's station in that building. Furthermore Ashley did not deny that he assured Chavis there would be no disciplinary con- sequences to flow from the alleged infraction. In addition, since Ashley testified that the nurse reported to him Chavis' visit to first aid, it may be assumed that she re- ported also the reason for the visit. Thus the warning was directly attributable to the fact of Chavis' union activities and to Respondent's desire to place restraints upon him. The seriousness with which Respondent considered the matter (despite Ashley's disclaimer and his as- surances to Chavis) was exposed by Martin's angry warn- ing that Respondent came close to firing Chavis when it gave him the disciplinary notice and that he would be discharged if he kept on "with this union stuff." Respondent was plainly on the lookout for some ground upon which it could follow through with the letter of the warning notice that, "Any further violation of this or any other Company rule will be cause for dismissal." Thus though Ashley and Hogan testified to their own per- sonal observation of Chavis outside his working area, neither of them spoke to Chavis about his apparent viola- tion of the rule and they made no attempt either then or later during the discharge interview to seek his explana- tion or to give him an opportunity to defend himself. There was no evidence that prior to the actions against Chavis Respondent had resorted either to warning or to discharging employees for violating the rule against leav- ing assigned work areas, and Ashley was unable to state whether other employees were discharged prior to Chavis for violating that rule. Furthermore, since Ashley ab- solved Chavis from the consequences of the first alleged violation, there was no good-faith basis for his attempt to assign it as establishing Chavis' record as a repeated violator. Moreover, as found above, the visit to the nurse's station, assigned by Blackwell as the reason for the warning, was not in fact a violation of the rule as previously interpreted and as confirmed by the written notice to the employees. The foregoing considerations thus confirm Martin's warning that Chavis was on the brink of discharge tempt, however, to link that conduct to the grounds of discharge and Respondent's brief fails to assign it as part of the reason, arguing only that the testimony which it offered "demonstrated that Chavis' discharge was caused by his repeated failure to follow the Respondent's published rule regarding the obtaining of intra-plant passes to go out of his work area " 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of his union activities and that he would be fired if he kept on with them. I therefore conclude and find that Respondent was lying in wait for some excuse to charge Chavis with being a repeated violator of company rules9 to serve as the ostensible reason for a discharge, the real, the dominating, motive for which was to eliminate one of the leaders in the Union's campaign. By that discharge, to discourage union membership and activities, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1). Respondent engaged in a further violation of Section 8(a)(1) by Martin's warning that Chavis would be discharged if he continued to engage in union activities. c. The discharge of Gordon Turner, Jerry Cooper, and Leon Metcalf Gordon Turner, Jerry Cooper, and Leon Metcalf were employees in the engine shop under the supervison of Foreman Wayne England, whose prounion sentiments have been previously referred to. Turner, though less ac- tive in the Union than Cooper and Metcalf, signed a union card, attended union meetings , and was a witness for the Union at the representation hearings in Sep- tember. Metcalf and Cooper served on the organizing committee with England, and Metcalf in particular was well known to be one of the most active union leaders. Thus England testified that early in September Industrial Relations Supervisor Joe Strange told him that Metcalf was "one of the main pushers in the Union," and that "Metcalf is going to have to go one way or another." Strange directed England to keep an eye on Metcalf and to come up with some valid reason for getting rid of him. Strange admitted that he told England that Metcalf "was one of the biggest union pushers" and that England should keep an eye on him. Though Strange testified there was no further discussion, he made no specific deni- al of the other statements which England attributed to him. On September 28, Turner, Cooper, and Metcalf were called, in that order, to the office in the engine shop and discharged by Production Manager Henry in the presence of Shop Superintendent Hogan and General Foreman Ashley. Each was informed that he was being discharged for harassing or coercing and threatening a fel- low employee and for slowing down production. The name of the employee involved was not mentioned, but as later evidence will show, the shop employees were aware through reports from England earlier in the day that management was investigating certain charges made by Ira Keenan , a leadman like Metcalf over a crew in the shop, and not only that discharges were to be expected, but that Cooper, Metcalf, and Turner were the probable candidates. Though the discharge action was precipitated by Keenan's report of an incident at the close of the preced- ing day, the evidence showed that it followed a substan- tial course of employee conduct in the engine shop of which Keenan was the butt and which management felt was adversely affecting production. It is therefore neces- sary to review at some length the situation in the engine shop and the personalities of some of the individuals who were involved in it. Keenan and Metcalf were leadmen over separate crews which were engaged in the same kind of work on the same kind of engines, one crew doing the even numbered en- gines and the other the odd numbered ones. Keenan had signed a union card on solicitation of Metcalf and had at- tended a union meeting, but the evidence did not show whether he continued his interest in, or sentiment for, the Union after becoming a leadman. Keenan once confided to Metcalf and Turner that he had received a medical discharge from the service as a result of a nervous break- down. That information was apparently the basis of later suggestions by employees that Keenan was a "psycho" or was at one stage or another of "panic" as listed on a humorous leaflet entitled "Code of Panic" which was given some circulation in the shop, and which was brought to Keenan's attention. Keenan testified that on a number of occasions Met- calf, Turner, and Cooper made statements that Keenan should slow down, that he was trying to make the other employees look bad, and that the Company did not ap- preciate the work he was doing. They also made critical statements concerning the quality of Keenan's work and sometimes they would "holler" from the middle of the hangar the word that a. Keenan job had been rejected. They also made and recited rhymes about Keenan work- ing his fingers to the bone and made remarks that he was at stage two or three of panic. Aside from the foregoing Keenan testified to a "run in" with Turner when the latter apparently assumed that Keenan and other employees were laughing about a posted notice that there was to be no union election. Turner warned Keenan that it would be dangerous for Keenan to cross his path, but he later came back and apologized. Turner admitted having a personal dislike for Keenan and admitted the election notice incident, but he testified that it was Keenan who harassed him by gibing at him about what happened to the Union. Turner denied that he threatened Keenan but admitted that he later returned and apologized for what he had said. Though denying also that he ever spoke to Keenan about the quantity of the work Keenan put out, Turner admitted that he spoke about the quality of Keenan's work and that he "probably" asked Keenan on several occasions what he was trying to prove. Cooper in turn admitted that he "might" have said something to Keenan about how fast Keenan was getting the engines to him, that Keenan was working too hard, and that he should slow down. Metcalf testified that Keenan informed him that he could not "take any kidding," but that nevertheless Metcalf "and everybody else" kidded Keenan about working through his dinner hour so that he could get ahead and accused Keenan of "brown nosing." Metcalf admitted further that he kidded Keenan about "working his fingers to the bone" and com- mented, "That is the way to get the brownies." Keenan reported both to England and to Ashley on several occasions that Metcalf, Turner, and Cooper were harassing him, and testified that on one occasion England called the four of them in and told them to cut out the "b... s..." and to get along together. England admitted that he was aware of a certain amount of dissension in the shop surrounding Keenan, admitted that it involved criticisms of Keenan's work, and admitted that he called the four men together and told them he was tired of bickering about trivial things, that there was a schedule to meet, and that they would have to work together. 9 It was plain from evidence concerning later cases that it was not Respondent's policy to discharge for a first offense of a rule violation. LTV ELECTROSYSTEMS, INC. 541 Ashley testified that Keenan complained to him that the three men were riding him and were accusing him of getting his engines out too fast. Ashley talked to Turner, Metcalf, and Cooper, telling them it had come to his at- tention that they were causing some of the commotion in the shop, that the production was to be gotten out, and he wanted the "b... s..." stopped. Ashley also talked to Eng- land about the matter and he also called the whole shop together, including Turner, Cooper, and Metcalf and re- peated the same things that he had told the latter, urging on the group the necessity of getting the engines out on time.I0 James McNinch a witness for the General Counsel testified that Ashley told him on one occasion that some "harassing and/or kidding of the employees in the engine shop was going to have to stop," and Metcalf, Cooper, and Turner later told him that Ashley had called them aside and told them to "lay off" of Keenan. Ashley also made a comparison of the work being done by the two crews to determine the relative quality and found that there was little or no difference in quality and that Keenan turned out more work. On one occasion Ashley found it necessary to pull two engines from Met- calf's line and put them through Keenan's because Keenan was so far ahead. Metcalf also testified to the latter incident and admitted his own production was "a little bit" less than Keenan's. Despite the admonitions by Ashely and England, Keenan testified that the harassment by Turner, Cooper, and Metcalf was renewed shortly before the discharge. On the preceding day Turner approached Keenan in angry fashion, pointed a finger, and said, "I know your kind ... your nose is longer than your leg ... you had just better not cross my path outside the gate." Turner then walked over to where Cooper and Metcalf were standing and they began talking and laughing. Roy Craw- ford testified in corroboration that he heard Turner tell Keenan it would never do for Keenan to cross Turner's path. Keenan testified further that when he went to the timeclock shortly after that incident, he heard one of the three say (though there were a couple of men between him and them) that Keenan's Comet would not run fast enough to get away from them and that he had better run. As Keenan left the plant Metcalf, Turner, and Cooper fol- lowed him out of the gate and he heard one of them say he had better run. Cooper admitted that he and Metcalf (and possibly Turner) left the plant at the same time Keenan did, that he (Cooper) possibly made the statement that Keenan had better hurry up, and that he may also have said that his own Ford would catch up with Keenan's Comet. Keenan called Hogan at the latter's home that night and reported that he had been threatened by Turner, Metcalf, and Cooper as they were leaving work to go home and that he was afraid and wanted to quit. Hogan directed Keenan to report to his office in the morning rather than to the job, and on the next morning Hogan and Henry talked with Keenan, who related the incident which he hadreported to Hogan on the telephone. England was then called in and queried as to his knowledge of the situation and England acknowledged he was aware of some trouble in the shop. Henry also called in Ashley who related what he knew about the earlier occurrences involving Keenan and Cooper, Turner, and Metcalf and what action he had taken at the time. In the meantime England went back to the shop where (he testified) he informed Leadman Don Smith and a number of the men that Keenan had reported that Turner, Cooper, and Metcalf had threatened him. England told the men they should not handle that sort of thing in such a manner, that if they had any complaint they should come to him as a group and let him know about it, and that it could be worked out before it got to a point where the employees got themselves `gout on a limb." England admitted that he told some of the employees he was afraid that supervision was "going to lower the boom," but de- nied stating that anyone might be fired. The latter testimony was refuted by cumulative and credited testimony of other witnesses for the General Counsel. John S. Henchock, for example, testified that he heard England talking with Smith, Turner, and others and that England stated that a couple of "blue slips" were going to be handed out and gave the names and the reasons. The names were Turner, Metcalf, Cooper, and possibly Nicholson," and the reason was that they were charged with harassing and intimidating Keenan, a'fellow worker, after leaving work. England also stated that "we would have to stick together in some way." It was im- mediately afterward, Henchock testified, that the em- ployees began discussing the question whether they would walk out in sympathy if Cooper, Turner, and Met- calf were fired. Gordon Turner testified that England informed him that it looked as if several employees were about to be discharged (because of Keenan's complaint), that Eng- land specifically mentioned Metcalf and Cooper, and said that Turner 'and Nicholson would also probably be included. Paul A. Guevremont testified that he heard England telling other employees that " some people were going to be discharged." Joe E. Tedford testified that Leadman Donald Smith informed him, as early as 9 a.m., that some discharges were going to be made that day and that he found out through talk in the shop that the action might involve Cooper, Turner, Metcalf, and possibly Nicholson, who had allegedly harassed Keenan. Jerry Cooper testified similarly that talk was going through the shop all day that there would be two men, and possibly three or four, who would be fired and that Keenan's name was mentioned in that connection. As a consequence Cooper was "expect- ing to get it" because he had heard the talk all day long. On the afternoon of the 28th Henry, Hogan, and Ashley went to the engine shop. England was asked to bring Turner into the office and Henry informed Turner he was being terminated for harassing, threatening, and interfering with a fellow employee. He did not mention Keenan's name and stated that he had no further com- ment and that Ashley would go with Turner to get his tools. Cooper was next called into the office and Henry ad- vised him he was being terminated because he had been deliberately slowing down work and coercing and' 10 Ashley also testified to an occasion some 4 or 5 weeks prior to the offense involving a slow down , Cooper was to go back and get the engines discharge when England complained to him that Cooper was restricting out, and he did not adopt England's recommendation to terminate Cooper. production and that England wanted to terminate Cooper Ashley called 11 Nicholson had been involved in an earlier altercation with Keenan, the two together and England strenuously repeated his charge in the face but Keenan testified that the matter was settled and "forgotten" after of Cooper's denial. Ashley informed Cooper that since that was the first Nicholson apologized to him in England's office. 542 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening a fellow employee . He did not mention the employee's name and Cooper made no reply but only shrugged his shoulders. England then brought Metcalf to the office where Henry advised him he was being terminated for coercing and threatening a fellow employee and for slowing down production. Metcalf testified that he inquired who the em- ployee was and Henry said he had no further comment. Concluding Findings Considering first the evidence which supports the General Counsel's claim of discriminatory motivation, I find that Respondent was fully aware of the prominence of Metcalf and Cooper in union activities and that its knowledge may also be inferred of Turner 's union mem- bership and sentiments, not only through the interroga- tion by Foreman Wilder but through England's prior con- nection with the Union. In Metcalfs case there was, of course, direct evidence from the England-Strange testimony that Respondent was looking for an excuse to discharge Metcalf. Significantly, however, it is to be noted that in Cooper's case though he was , like Metcalf (and formerly England), a member of the organizing com- mittee , England had urgently recommended his discharge for slowing down production, a recommendation which Ashley did not adopt. I conclude and find that were the General Counsel's case considered as standing alone, the evidence would establish a prima facie case that Respondent was dis- criminatorily motivated in effecting Metcalf s discharge and that Cooper and Turner were necessarily included because they were inextricably involved in the conduct which Respondent was using as a pretext for Metcalf s discharge. We turn then to the question whether Respondent's evidence was sufficient to overcome that prima facie showing. That evidence showed that Respondent discharged Turner, Cooper, and Metcalf after its in- vestigation established a course of conduct on their part which, aside from the harassment of Keenan, was aimed at achieving a slowdown in production . Furthermore, the three men had been repeatedly warned by England and Ashley that they were to desist from such conduct and they were fully aware on the morning of the 28th of the impending action and of the fact that their treatment of Keenan had led to it. The latter facts fully explained their curious failure to inquire during the discharge interviews as to the basis of the action and to protest their innocence of the charges . Furthermore , Cooper's admissions as to statements made to Keenan the previous day confirmed Keenan's testimony concerning the incident and refuted contentions of General Counsel and Union that Keenan's tale was but the figment of an overwrought imagination. There was no indication from the evidence that either the Union or pro- or anti-union sentiments were in any way involved in the attempts to achieve a slowdown12 but it suggests rather that there was a strong rivalry between the competing crews led by Keenan and Metcalf, with Metcalfs crew suffering in comparison. Furthermore, England had not hesitated strenuously to advocate 12 Even were it assumed arguendo that such were the case, the activity was plainly an unprotected one. '3 Credited testimony of Henchock, Tedford, Guevremont, and Eng- land. Henry testified that England informed him that, "these fellows Cooper's discharge for the latter's individual conduct in slowing down production. Thus Respondent's evidence established its genuine concern over the situation in the engine shop, established that Cooper, Metcalf, and Turner were responsible for creating it, and established a record of repeated prior warnings which they disregarded . That record did not bespeak the action of an employer who was intent on finding pretextual grounds for discharge. Indeed, Re- spondent had foregone earlier opportunities presented by England's recommendation to discharge Cooper individ- ually and by Keenan's earlier complaints as made to Ashley and England against the three of them . Respond- ent was not required indefinitely to countenance the ignoring of prior warnings , whatever the prominence of the employees as union leaders ; and whether Respondent welcomed the final opportunity or not, the evidence did not establish that it acted for any reason other than that which is assigned at the time. I therefore conclude and find on the entire record that the General Counsel failed to establish by a preponder- ance of the evidence that Respondent was discrimina- torily motivated in discharging Turner , Cooper, and Met- calf. d. The strike; the termination of the strikers As is seen from the preceding section, there was com- mon knowledge throughout the shop that the discharges of Turner, Cooper, and Metcalf were imminent and there were also anticipatory discussions among the employees about engaging in a walkout in sympathy with the discharg- ees or in protest of the discharges. Indeed,. the latter discussions may well have been sparked by England's suggestion that the employees should "stick together in some way." When the expected action materialized and was confirmed by Turner upon his emergence from the office, the reaction was immediate. Various employees stopped work and began gathering their tools and assem- bling in the center of the building. After Metcalfs discharge completed the action, Henry came out into the shop and was questioned by'Don Smith in England's presence. Smith suggested that Henry get to the bottom of the matter and asked whether Henry would listen to the other side of the story or if he were going to take the word of one person over that of the rest of the employees . Smith also Stated that if the three men were being fired, Henry might as well fire all of them . Nichol- son asked whether Henry was going to take the word of a "nut" over the whole shop. Henry made no comment except to say that if the others felt "that way," they should pack up their toolboxes. 13 I therefore find that both England and Henry were fully aware that the employees were striking (through concert- edly engaging in a stoppage of work) in protest of the discharges and in sympathy with their fellow employees. There were altogether some 13 employees who en- gaged in the strike14 and they were taken together, along with the dischargees, in a trailer to the personnel office. After first having their tools checked out through the security office, the strikers were called into Strange's of- want to go too" if-the dischargees went , and that he told England to tell them to get their toolboxes. 14 Only four of the group are presently involved ; i.e., J. B. Miller, Guevremont, Tedford, and Henchock. LTV ELECTROSYSTEMS, INC. 543 fice where each was interviewed individually by Strange in Henry's presence. Tedford and Guevremont testified that prior to those interviews the strikers selected Don Smith to act as their spokesman but that when Smith asked Strange to talk with them as a group "to get to the bottom of this thing," Strange refused, stating that he would see them one at a time. Strange told each of the men that he wanted them to un- derstand that there was a job there for them and that it was his understanding they were voluntarily quitting. The testimony is in conflict as to whether the strikers acknowledged that they were quitting, as Strange and Henry testified they did. Guevremont and Miller testified that they replied to Strange that they were walking out in sympathy with the men who were fired, and Tedford testified that he was walking off in protest of the discharges. Henchock testified that Strange stated that what Henchock was doing was voluntarily quitting, and Henchock replied that "[I]f that is what it is called, that is what I am doing." Strange and Henry admitted that 1 of the 13 employees insisted he was not quitting, but neither could recall the identity of the 1 who did so. Furthermore, Henry already knew not only that the employees had struck but also that their action was taken in protest of the discharges. I therefore credit the testimony of Guevremont, Henchock, Miller, and Tedford. Upon the conclusion of the interview, Strange tendered each employee a "Termination Notice" which specified as the ground, code 1, "Personal Reasons," and each of them signed. The forms were identical with those which were used to effect the discharges of Metcalf, Turner, and Cooper except that in the latter case code 19 was checked; i.e., "Violation of Company rules." All of the strikers were replaced on the following day. Concluding Findings I find that the strike was a protected concerted activity which the strikers engaged in for their mutual aid and pro- tection and in order to support the cause of their fellow employees. N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505-506. As I have found, however, that the prior discharges were not unlaw- fully made, I conclude and find that the strike was not an unfair labor practice strike in its inception. By engaging in such a strike the strikers did not, of course, quit or terminate their employment for they remained employees until such time as they might be replaced by permanent replacements. As strikers they were free to leave the premises subject only to such security check or pass as was necessary to get them through the gate. Respondent chose, however, to subject the strikers to full fledged exit interviews, and though it was fully aware of the nature and the reason for the strike, it endeavored through the device of conducting individual interviews to convert protected concerted activities into an individual act of quitting's and to procure the acknowledgment of each striker that such was the case. Finally Respondent made explicit its own acknowledgment that the employment relationship was being finally terminated by issuing to each striker a ter- mination notice in the usual form which it used to effect all terminations, whether voluntary or involuntary. Though I conclude and find that the 13 employees were economic strikers whom Respondent was free to replace at any time prior to their applications for reinstatement, they retained their status as employees and could not be validly discharged for their strike activity. Summit Min- ing Corp., 119 NLRB 1668, 1673, enfd. 260 F.2d 894 (C.A. 3). I therefore conclude and find that by discharg- ing Guevremont, Tedford, Henchock, and J. B. Miller on September 28, prior to replacing them, because they had struck, Respondent engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. Id.16 e. The discharge of Henry J. Thompson Henry J. Thompson, a leadman, was another active or- ganizing committeeman whose union activities and senti- ments were well know to Respondent. Thompson was also a witness for the Union at the representation hearing - in September and was the witness on the stand at the time it first occurred to Respondent's counsel to change Respondent's position on the leadman issue. Some time thereafter Respondent notified Thompson individually and the other leadmen in a group that both the Company and the employees considered them to be supervisors and that they were not to engage in union ac- tivities. They were also given a list of "Dont's" concern- ing union activities which governed the conduct of super- visors. Thompson testified that Production Manager Henry informed him that if he attended any union meetings or went down to where the union representa- tives were staying, Henry would terminate Thompson and that he replied that in that case, Henry might as well terminate him at once. Henry testified that he and Supervisor Walter Hopper talked with Thompson separately because the Company had information that he was engaging in union activities and that Hopper did all the talking, telling Thompson sub- stantially what the other leadmen were told. Thompson was also told the Company had evidence of his activities with the Union and wanted him to cease all of his union activities immediately. Thompson asked whether he would have a job if he did not follow the list of "Dont's" and Hopper replied that he was telling Thompson again to cease his union activities immediately.17 I credit Thompson's testimony concerning the interview. 1S Respondent could have made no good-faith representation of an un- derstanding that the employee was quitting for Henry was fully aware that the employees had struck. 16 Under the findings previously made concerning the circumstances surrounding the discharge of Turner, Cooper, and Metcalf, there is no basis for a finding that the discharge of the strikers constituted also a violation of Section 8(a)(3). The present findings also make it unnecessary to consider evidence concerning Respondent's subsequent help-wanted ads and the question whether openings later became available which might or should have been offered to the strikers. But see American Flint Glass Wkrs. (Bartlett-Cal- lins Company), 110 NLRB 395, 397, enfd. 230 F 2d 212 (C.A.D.C.); Brown and Root, Inc, 132 NLRB 486,493-494. 17 Thompson testified also that around October 1, Foreman McCoy suggested that the privileges of the management club might be someday available to Thompson if he would "go along with us and work with us." I find that statement to be no more than a suggestion that club member- ship would be available to Thompson if he should become a supervisor for there was neither suggestion nor indication in the record that McCoy was empowered to confer supervisory status or that Thompson had any reason to assume that he did. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson was discharged on October 20 by Produc- tion Manager Henry who informed him (under Thomp- son's testimony) that he was being terminated "because you have talked about the Union so bad during working hours that the men under you are afraid." The termina- tion notice, later made out by Strange at the personnel of- fice, assigned as the ground , "Violation of Company rules," and Thompson signed it "under protest." Thompson admitted that he engaged in solicitation on company property but denied that he did so on working time. Henry testified that his action was based on a written statement furnished by employee Robert A. Newman and that he informed Thompson in Hopper's presence that the termination was based on evidence that Thompson was still engaged in union activities despite the previous warning that he was to cease such activities. Hopper's testimony was in accord. Newman, a youthful employee called as Respondent's witness, testified that he was hired on October 18 and as- signed to hanger 1029, and that Foreman McCoy in- troduced him to Thompson as his leadman. Thompson thereafter subjected him openly, during working time, to repeated, intensive solicitations to join the Union, stating among other things that the Union would take care of those who helped to support it. Being "pretty upset" about Thompson's various statements, Newman reported to his father that he was disturbed because his "boss man" had made him believe that if he did not join the Union he would not get good merit ratings or move up in the Company. A couple of days later Newman was called to the office where he was informed that his father had called the Company, and he then gave Respondent a writ- ten affidavit which covered the subject matter of his testimony. Thompson was not called in rebuttal in denial of New- man's testimony. Foreman Randolph Eskew testified to an incident in early October when he witnessed Thompson engaging in the apparent solicitation of another employee during worktime, but there was no evidence that the latter in- cident formed any part of the basis of Thompson's discharge. Concluding Findings The evidence is undisputed that Respondent undertook to put into effect vis-a-vis the leadmen, particularly Thompson, an absolute rule prohibiting them from engag- ing in any form of solicitation or union activity, whether on worktime or nonworktime, and that Thompson was never informed of any retraction or modification of the rule. The fact that Respondent was contending that Thompson was a supervisor in no way insulated it from responsibility for the consequences of its conduct for it assumed the risk that it may erroneously have assessed the leadman situation and may have misconceived its legal rights.18 Thus, despite Respondent's belief, Thomp- son and the leadmen were merely rank-and-file em- ployees as to whom Respondent's rule was unlawfully broad. Thompson was never informed that any less ab- solute rule applied to him or that he was free to engage in union activities on his own time, and he was threatened with discharge should he violate Respondent's absolute 18 It is noteworthy that Respondent's actions occurred prior to the reopening of the representation hearing and the development of a full rule, itself an unfair labor practice as applied to him. I therefore conclude and find that Thompson could not be lawfully discharged for violating a rule whose promul- gation and enforcement was an unfair labor practice, for the violation of an invalid no-solicitation rule is not a proper ground of discharge. Southwire Company, 145 NLRB 1329. Since Respondent gave Thompson no op- portunity to comply with a lawful no-solicitation rule, it is immaterial that Thompson actually engaged in the so- licitation of Newman on working time, for it is no defense that Thompson's conduct might have violated a proper rule if one had been promulgated. Cf. Idaho Potato Processors, Inc., 137 NLRB 910. By discharging Thompson for participating in union ac- tivities, Respondent therefore engaged in discrimination to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. Respondent engaged in a further violation of Section 8(a)(1) by threatening to discharge Thompson unless he ceased his union activi- ties. 3. The intervening period- October to May Evidence concerning Respondent's conduct from Oc- tober to May 1 involved a number of alleged interroga- tions and coercive statements and the discharge of Daniel A. Davis which was not related to either the first or the second series of discharges. a. Interrogations, etc. Michael Miller, who was hired on November 15 and discharged on November 25, testified to a conversation in November with Foreman D. L. Howell and Leadman Clarence Roach during which Howell allegedly made cer- tain threats and other coercive and antiunion statements. Howell denied making the statements which Miller at- tributed to him and Roach fully corroborated Howell's testimony. I credit their testimony. Charles Whitlock testified that around November 20, Foreman Martin sounded him out on becoming a leadman and, after commenting on their friendship, asked how Whitlock was going to vote in the election. Whitlock, who also admitted being friends with Foreman McCoy, testified that around November 22 McCoy made the statement that the Union was no good and that if Whit- lock voted for it he would be sorry. Martin admitted that he sounded Whitlock out on becoming a leadman but denied mentioning the union or the election. McCoy made a flat denial of Whitlock's testimony. I credit the testimony of Martin and McCoy. Daniel A. Davis testified that around the first week of October Strange spoke to him in the break area, asking how Davis felt about the Union. Davis replied he thought it was a good thing for the employees, and Strange stated that though he was against it, he believed that everyone should have his own "say so" about it. Davis testified further that McCoy spoke to him before the December election, inquiring as to his union sentiments and why he was for it. Strange admitted having a conversation with Davis in the canteen, that it began by him asking Davis how everything was going, and that Davis rejoined that if Strange wanted to know anything about the Union, to record on which the Board made its determination that the leadmen were not supervisors. LTV ELECTROSYSTEMS, INC. come right out and ask him. Strange replied that he was interested only in Davis' job and the illness of Davis' wife; he denied that there was any other mention of the Union. McCoy testified to a number of conversations with Davis in which Davis discussed with him his dissatisfac- tion with the job. Though McCoy admitted that the discussions sometimes concerned the Union and union sympathies , he denied interrogating Davis. I credit the testimony of Strange and McCoy. Paul Hoblitz testified that about 2 days before the elec- tion McCoy asked him how he felt about the Union and that he replied that it was his own business . McCoy con- tinued that, "We don't want a union in this Company. We don't need one," and stated that the employees could han- dle with supervision any matters that came up. Hoblitz testified further that on the day of the election McCoy called to him, "Hi, buddy. How did the election go? ... Do you think we won?" McCoy denied interrogating Hoblitz about his union sentiments, and I credit that deni- al. James McNinch testified that in late October or early November General Foreman G. A. Burton inquired how he was going to vote in the election. McNinch replied that he would give no direct answer but that he felt that the people in South Carolina were entitled to as many benefits as the employees in Texas. Burton admitted having a lengthy conversation with McNinch in the month of November in which McNinch asked about a raise and brought up the subject of the Company's pay scales in Texas where , McNinch claimed, the Union had gotten the employees a good pay scale. McNinch continued his inquiries about a raise and a promotion and complained that he, rather than P. E. Dancy, should have been made a leadman. Burton ex- plained why Dancy was chosen over McNinch. Burton denied that anything was said about the election and de- nied inquiring how McNinch was going to vote. I credit Burton's testimony. Charles F. Reece testified that around November 15 he reported to Burton upon his transfer from another job and Burton stated he understood that Reece was very strong in the Union and that he had been instructed by his superiors to fire Reece if Reece did not pan out. Reece acknowledged his strong union sentiments and volun- teered that he had been shop steward for Lockheed in California. Burton commented, "We will see what takes, place." Burton denied that he ever discussed with Reece his feelings concerning the Union and denied that Reece ever informed him that Reece had been a steward at Lockhead. I credit Burton's denials. Kenneth Miller testified that during an orientation meeting with new employees on February 2, Fred Snod- dy stated that the Company knew the Union was coming in but was going to fight it and wanted no part of it. I find that Miller's testimony represented his interpretation of the written statement which Snoddy testified that he read and which is quoted in footnote 6, supra. Miller also testified that Snoddy inquired during his employment interview on January 31 what his feelings were toward the Union. I credit Snoddy's denial. I conclude and find that the General Counsel did not establish that Respondent engaged in interference, restraint , or coercion by the conduct summarized in this section. 545 b. The discharge ofDanielA. Davis Daniel A. Davis was discharged on February 1 after some 5 months of employment. Davis joined the Union, attended two or three meetings , and passed out from three to five cards. He was also one of the participants in a brief recognition strike in late September in which ap- proximately 80 percent of the employees engaged. Though I have credited the denials of Strange and McCoy of alleged interrogations of Davis (section a, supra ), it was plain from their testimony that they learned of Davis' union sentiments during their discussions with him. Davis was summarily discharged on February 1 im- mediately after completing a lengthy telephone conversa- tion with his wife during worktime . Davis, who admitted making the call, testified that as he left the telephone booth his supervisor, Jack Arledge , came up and told him to get his tools and that he was fired. Davis replied, "Good. Do you really mean it ..." and got his tools and left. He admitted, however, that while awaiting transpor- tation to the gate he visited the nurse's station. Arledge testified that he discharged Davis for spending 45 minutes making a private telephone call and that he had previously warned Davis about using the telephone without permission after receiving reports that Davis was spending a lot of time on the telephone . Nurse Merle (Pat) McMillan had also spoken to him about Davis. McMillan testified that she had previously treated Davis for a back injury and that during some of those treatments Davis told her he was trying to get fired so that he could draw his unemployment compensation. After being discharged Davis came in and reported that, "Well, they finally did it, they finally fired me," that it was for talking on the telephone for some 40 minutes , and that he thought he "was going to have to hit somebody in the kisser before he could get fired." McMillan reported her earlier conversations with Davis to Arledge. Davis was not called in rebuttal of McMillan's testimony, which plainly established that Davis desired and deliberately provoked his discharge. Indeed, unless the "pattern" theory were accepted completely (and blindly), there is no evidence which is suggestive of a dis- criminatory motivation for the discharge . I therefore con- clude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent un- lawfully discharged Davis. 4. The period from May 1 through August 18 As previously recounted the Union set about a new membership drive in early May 1966, appointing a 28- man membership committee as well as a bargaining com- mittee. The course of conduct presently complained of began shortly thereafter and may be considered as falling into two general types, one being connected in whole or in part with alleged violations of a no -solicitation rule and the other being unrelated to that rule. We begin with the latter. a. The discharge of Charles F. Reece Charles F. Reece was employed as a building service mechanic under General Foreman Burton from August- 3, 1965, to May 16, 1966. Reece was active in the Union, was one of approximately 80 percent of the employees 546 'DECISIONS OF NATIONAL LABOR RELATIONS BOARL who engaged in a brief strike and picketing in September 1965,19 and was appointed to the membership committee on April 29, 1966. He was discharged by Z. E. White on May 16 in Burton's presence for having falsified com- pany records (by having another employee punch out his timecard on Friday, May 13) and for having received pay for time he did not work. The evidence is undisputed that Reece left the plant at 10:30 a.m. on Friday on a pass signed by Foreman Cecil A. Longino and that his timecard was checked out at 4 p.m. (i.e., 1600), the end of the normal workday. The evidence is in conflict as to the circumstances of Reece's departure and as to certain facets of later interviews. Though Reece testified that he left the plant after sustaining an injury to his elbow, the pass which he ob- tained from Longino bore a checkmark in the box marked "Personal" rather than in the box marked "Medical." Furthermore Reece's testimony was unsupported and he was not called in rebuttal to deny the mutually corrobora- tive testimony of Burton and Longino which was also supported by the documentary evidence.20 The following findings are therefore based on the testimony of Burton and Longino and supporting payroll records introduced by Respondent. Weather conditions were such on Friday morning that it was decided to give the employees who desired, the op- portunity of going home for the remainder of the day. Reece was one of those who chose to go, and Longino is- sued him a departure pass at 10:30. Longino later noticed that Reece's timecard was still in the rack on the side of employees who were supposed to be present and noticed that it had not been punched out. He reported to Burton that Reece had not punched out and that he was suspi- cious of Reece because of a conversation concerning him with another employee involving an incident which oc- curred a month earlier.21 Burton and Longino went to the timeclock area around 4 p.m., and Longino was informed by employee S. T. Raines that Calvert, another employee, had punched out Reece's timecard as well as his own. Longino removed Reece's timecard, and he and Burton got on a scooter and caught up with Calvert as he was leaving. They con- fronted Calvert with the card and Calvert admitted that he had punched it out but claimed it was a mistake. Bur- ton stated that if it were a mistake, Calvert should have brought the card to him or to Longino. Burton took Calvert to the office, telephone Henry, and recommended that Calvert be discharged. Henry ap- proved, but suggested that Burton also check with White. Burton did so, and then discharged Calvert. Burton testified that he knew nothing of Calvert's union activi- ties, and so far as the record shows Calvert had none. On Saturday morning Burton and Longino informed Reece that they had discharged Calvert for punching out Reece's timecard at 4 o'clock and that they were in- vestigating Reece's records to determine whether they were falsified and if the investigation showed that they were, disciplinary action would be taken. In the meantime Burton had requested Reece's time records from the Texas office and they arrived on Mon- day afternoon. The documents included timecards and departure passes on prior dates concerning which Reece was under suspicion. Discrepancies were found on timecards for the week ending March 20 and 27, in that they contained certain entries not made in the handwrit- ing of any of the authorized supervisors . On Monday, March 21, for example, Reece had obtained a pass and had left work at 1:35 p.m. His timecard for the day, how- ever, bore an entry in handwriting indicating his depar- ture at 4 p.m., which entry was not in the handwriting of any authorized supervisor. Burton, White, and Longino decided after examining the records that Reece had falsified them and that he should be discharged. Burton went to pick up Reece and told him that the investigation had proved that he had fal- sified company records by receiving money for time he did not work and that Reece would be terminated. Reece denied that he was guilty, but added that he did not be- lieve that it was Burton's fault, that he believed it was Longino's fault, and that he was going to "get" Longino. Burton thereupon took Reece to the personnel depart- ment to White's office where Reece again denied the charge. White exhibited to Reece the records on which the charge was based but Reece claimed they did not prove anything. White stated that the records established a falsification, and terminated Reece. Concluding Findings As there is no evidence which is directly suggestive of a discriminatory motive behind Reece's discharge the General Counsel' s case necessarily rests on the "pattern" theory, which as previously found is defective in proving too much. Furthermore if that theory were to be con- sidered as of some weight as applied to Reece it would not raise the General Counsel's case to a level of the pre- ponderance of the evidence. What is of controlling sig- nificance in bespeaking the genuineness of the reasons as- signed by Respondent was its action in summarily discharging Calvert whose union sentiments and activi- ties (if any) were unknown to Respondent and without in- fluence on its action. In Reece's case Respondent delayed action pending a careful investigation which con- vinced it that its prior suspicions of Reece were well founded and that he again had either deliberately procured a falsification of his timecard or had knowingly accepted the fruits of the fraud . And since the misconduct for which Reece was discharged did not arise out of a pro- tected activity, Respondent 's good-faith belief furnished adequate basis for its action. Cf. N.L.R.B. v. Burnup and Simms, Inc., 379 U.S. 21, 23. I therefore conclude and find on the entire evidence that the General Counsel failed to establish by a prepond- erance of the evidence that Respondent discharged Reece because of his union membership or activities. b. The discharge of James L. McNinch James L. McNinch, a field service mechanic on the flight line, was employed for approximately a year before 10 Reece's testimony concerning an alleged conversation with Burton in November has previously been discredited, section 3, a, supra. 20 Not only did the pass tend to refute Reece 's testimony, but he other- wise attempted to magnify the extent of his injury (he admittedly worked on both intervening workdays prior to his discharge) in an apparent at- tempt to distract attention from the real issues surrounding his discharge. Thus Reece had been given permission to leave the plant and his discharge was based on the alleged falsification of his timecard. 21 Respondent also offered the testimony of Jimmie Ray Todd concern- ing an occasion in February or March 1966 when Reece requested Todd to punch out his timecard for him. LTV ELECTROSYSTEMS, INC. his discharge on May 12, 1966. He received an excellent rating at the end of 6 months of employment and shortly after that was reclassified as an A mechanic. McNinch participated actively in the union activities, and on April 29, 1966, he was elected to the Union's bargaining com- mittee. McNinch's attachment to the Union was known to Respondent. His leadman, P. E. Dancy, knew of his union activities and his foreman, John Jarosh, had been a member of UAW while with LTV in Texas. Furthermore General Foreman Burton admitted having a conversation with McNinch in November (previously referred to in section 3, a, supra) in which McNinch made his union sentiments manifest . As that conversation has an impor- tant bearing on subsequent developments and as it throws considerable light on the relations between McNinch and Dancy we review it at more length. Burton testified that in addition to inquiring about a raise McNinch asked about a promotion to leadman and referred to a report that the promotion was going to Dan- cy. When Burton acknowledged that was so, McNinch stated that he thought he should have the job rather than Dancy. Burton explained that he felt that Dancy was better qualified, had more knowledge of aircraft, and was a better leader than. McNinch. McNinch was called to the flight line office on May 12 and was discharged by General Foreman Randolph Eskew in the presence of Jarosh and Dancy for the as- serted reason that McNinch (as admitted during the inter- view) "had no interest in his work." Though the testimony concerning the interview is somewhat in con- flict, it was plain from the entire evidence, including Mc- Ninch's admissions on cross-examination, that McNinch sought to justify the deterioration in his job performance with which he was charged by explaining that his "morale" was down because of his treatment by Dancy who had assigned him to working "stale old squawks," and his statement that he had lost interest in his job was prompted not by anything which Eskew said during the interview but by the fact that Dancy had treated him "pretty rawly" on the flight line. Thereupon Eskew stated that if McNinch had no interest in his work, or if that were the way he felt about it, Eskew did not have a place for him and would have to terminate him and thereupon made out the termination notice which McNinch signed. Dancy, Jarosh, and Eskew testified to a substantial background of conduct which led to the May 12 inter- view. There was no question that McNinch was highly re- garded (and rated) as a workman and that until sometime in March he was doing a good job. Dancy testified, how- ever, that he and McNinch disliked each other and that they were more or less in constant conflict ; that during the month of March McNinch's productivity began to decline, and other employees complained that McNinch was bossing them around and asked Dancy to speak to McNinch about it. Dancy inquired why McNinch was or- dering the men around and told McNinch he was assigned to work with them and not to order them. McNinch replied that someone had to do the work and he was tak- ing it upon himself to dictate the duties of the other em- ployees because they did not understand all of their du- ties. Dancy stated that he (Dancy) was there to lead the crew and if assistance were needed the matter should be brought to his attention. 22 No discrimination was claimed against McNinch as regarded Respondent's choice of Dancy as leadman, and of course the absence of 547 On another occasion the day foreman complained to Dancy that McNinch had not completed a canopy job as McNinch had reported. Upon investigation Dancy learned that McNinch had deliberately left out eight screws in doing over an unfinished job left behind by the day crew and that McNinch's explanation was that the day crew had left the job that way and if that crew had been able to get by with it, then he should too. As a result it was necessary to have the job done for the third time. Dancy, Jarosh, and Eskew also gave mutually cor- roborative testimony concerning a number of occasions when McNinch was not working when he should have been and concerning efforts to get McNinch to work. Though McNinch made a blanket denial that either Eskew or Dancy discussed his work with him or gave him a "pep talk" before May 12, he was not called in rebuttal to refute any part of the testimony of Eskew, Jarosh, or Dancy- concerning the specific incidents which they testified to. Finally Eskew testified that the interview of May 12 was prompted by his observation of McNinch's work the preceding night. Eskew assigned McNinch to work in an engine bay (an area which McNinch seemingly preferred) and since the particular job was not completed at the end of the shift he asked McNinch to work overtime. Though McNinch left after working 2 hours, Eskew noticed nothing of substance had been accomplished during that time. Eskew testified that he began the interview the next day by asking McNinch why he had not completed the job the preceding evening and from that he went on to other occasions when he had observed that McNinch was not working. McNinch's explanations included his com- plaints about Dancy's treatment and finally his statement that he had lost heart or interest in his work. When Mc- Ninch was informed that he would therefore be ter- minated, he made no comment except one to the effect that he was ready to go. Eskew testified that he had no in- tention of discharging McNinch prior to the conclusion of the interview (no termination notice had been prepared), and Dancy testified that he had no information that Mc- Ninch was going to be terminated. Concluding Findings On the foregoing record there is little which will sup- port a finding of discriminatory motivation save that Mc- Ninch was discharged only 2 weeks after he was elected to the bargaining committee and that he was formerly highly regarded as a workman. Yet McNinch had received a raise and a reclassification after the time Bur- ton was made aware of his prounion sentiments, and Respondent's evidence established a progressive deteri- oration in McNinch's work beginning in March. The basis of that deterioration, plain both from McNinch's ad- missions and from the testimony of Respondent's wit- nesses, was the strained relationship between McNinch and Dancy, stemming from McNinch's jealousy over Dancy's selection as leadman. There is no suggestion of any kind that the situation had antiunion overtones, that the difficulties between the two men stemmed even in- directly from McNinch's union activities, or even that Dancy was antiunion.22 discrimination was indicated by the rating and the raise he received in November. 350-212 0-70-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally it was apparent from McNinch 's attitude at the end of the interview that no improvement was to be ex- pected from him. McNinch laid his shortcomings and his loss of interest at Dancy's door, and though informed that there was no place for one who had lost interest in his job, McNinch made no protest and no promise of willingness to get along with Dancy, but stated only that he was ready to go. I therefore conclude and find that the General Counsel failed to establish by a preponderance of the evidence that Respondent discharged McNinch because of his union membership , sentiments , or activities. c. The discharge of Mrs. Lavora S. Hoblitz Mrs. Lavora S. Hoblitz, the wife of Paul Hoblitz, was employed on April 18 , as a general helper in the paint shop and her duties consisted of cleaning and masking doors, seats , etc., in preparation for painting the aircraft. There was no evidence that she was a union member or participated in union activities in any manner , but her husband had been very active in the Union throughout the 14 months of his employment to the knowledge of the Company and was elected to the bargaining committee early in May. Despite that knowledge Paul Hoblitz ad- mitted it was as a result of his recommendation that Production Manager Henry hired his wife. On July 8 Mrs. Hoblitz was called to the production of- fice where her foreman, R. A. Martin, informed her that he had her papers made out and that he had to lay her off because there was not enough work for the people in the shop. Hoblitz testified that since her duties also involved logging the work in and logging it out and since the books did not show that any less work was coming in at the time, she was surprised at the action. Martin handed her the termination notice and asked her to note particularly that it specified that she was laid off for lack of work and he thereafter took her in the station wagon to the personnel office. Along the way Martin looked at her and burst out laughing for no reason at all and without making any ex- planation. Mrs. Frankie Miller, wife of Kenneth Miller, testified in corroboration of Mrs . Hoblitz' testimony that there was in fact an increase in the work at that time and that other employees , Ronnie Boone and two women em- ployees from the soldering school, were brought in to work in the paint shop. Foreman Martin testified that he found it necessary to cut down the number of work hours in his building at the time because he was running above the number allotted to him and that he decided to reduce the number of em- ployees rather than to cut down on the hours. After reviewing the various operations in the building, he de- cided to start with the paint shop because he was farther along there with his work than in any other place. Martin thereupon explained to Mrs. Hoblitz his reason for reduc- ing the work force in the paint shop. He denied that he laughed at her on the ride to the personnel office. Respondent also offered evidence that Mrs. Hoblitz was the only employee in the paint shop whose duties were limited to cleaning and masking and that the other employees were qualified painters, who thereafter did their own cleaning and masking . Ronnie Boone, for exam- ple, though admitting that Mrs. Hoblitz instructed him concerning masking and cleaning when he first came in, testified that he came back to the shop as a painter and hat, after Mrs. Hoblitz left, each of the painters did his own masking and cleaning . Boone also testified that after Mrs. Hoblitz left, no other employees came into the shop, though two girls who had been to soldering school helped out for about 2 weeks during the time when no equipment was available for them on the jobs for which they had been hired. Boone also corroborated Martin's testimony that work was slacker than usual when Mrs. Hoblitz left. Respondent also calls attention to the fact that Paul Hoblitz, a known union adherent, was never discharged and that he voluntarily quit on August 29, 1966 . Similarly Mrs. Frankie Miller, the wife of Kenneth Miller, another known union adherent, was never laid off or discharged and she remained in Respondent 's employ until Sep- tember 20, when she also voluntarily quit. Concluding Findings Since Mrs. Hoblitz was not shown to be a union member or to have participated in union activities, the General Counsel's case of discriminatory motivation rests on a presumption that Respondent's action was directed against her husband. The evidence proved that to be a tenuous theory at best. In the first place Respond-. ent made no effort to .terminate Hoblitz and the only al- leged discrimination against him consisted of a warning for horseplay and the alleged failure to give him a merit increase. Also tending to disprove a discriminatory mo- tive was the fact that Respondent hired Mrs . Hoblitz on her husband's recommendation despite knowledge of his prominence in union activities . Though the bringing in of other, employees seemed at first blush a strongly suspi- cious circumstance23 which reflected on the bonafides of the action, the testimony of Martin and Boone explained both the basis of the termination and the temporary presence of other employees . Thus there was no per- manent increase in the staff and there was no employee whose duties were thereafter confined to making and cleaning. I therefore conclude and find that the General Counsel failed to establish by a preponderance of the evidence that Respondent terminated Mrs. Hoblitz because of the union membership and activities of her husband. d. Discrimination against Paul H. Hoblitz Paul Hoblitz was an active participant in union affairs to Respondent's knowledge, and was a member of the Union's bargaining committee . The complaint charged Respondent with discrimination in issuing a warning notice to Hoblitz on June 28 and in denying him a wage increase on June 27. The warning notice was issued by Foreman McCoy, who informed Hoblitz he had reports that Hoblitz had en- gaged in horseplay on company time, specifically in an in- cident of nose flipping. Hoblitz admitted that there was such an incident involving one Ted Ussery but denied that it was on company time and denied that Ray Dean was involved. Dean, called as Respondent's witness, testified that on several occasions in June Hoblitz either stuck his fingers 29 It would be difficult to find how Martin 's alleged unexplained laugh would somehow add an aura of suspicion , much less that it was probative evidence of a discriminatory motive. LTV ELECTROSYSTEMS, INC. into Dean's ribs or punched him in the ribs as Hoblitz passed by. Dean reported those incidents to McCoy and thereupon Hoblitz ceased this conduct. Around July 1 Hoblitz was called in by McCoy who showed him his merit rating of 7.2 out of a possible 8 when Hoblitz asked what increase he might expect and McCoy replied that Hoblitz was not eligible for an in- crease at the time but that he did not know the reason and that the explanation would come from personnel. McCoy made no reference to the warning notice which he had previously issued to Hoblitz. Hoblitz testified that he assumed he should have gotten a 6-cent raise on July 1 because Strange had stated that the employees would automatically get a progression raise every 6 months. He admitted that he received a 5- cent increase in late December following his participating in various union activities , including handbilling at the gate and picketing the Company in September , and ad- mitted further that the Company hired his wife on his recommendation in April 1966. Strange testified generally that new employees were in- formed during orientation meetings that Respondent's policy was to make a performance review after 6 months of employment and in 6 months after any promotion and that though a merit review was guaranteed , the em- ployees were not guaranteed an increase. Concluding Findings The foregoing record will not establish that Respond- ent discriminated against Hoblitz in the respects com- plained of. Hoblitz admitted the horseplay with Ussery and did not testify in rebuttal of the testimony of Dean, who reported other instances of horseplay to McCoy. On the face of it, therefore, it cannot be said that there was no justification for warning Hoblitz to desist. Neither did Hoblitz' assumption that he was entitled to a wage increase establish that he was discriminatorily de- nied one. Strange's testimony showed that merit raises did not automatically follow a performance rating, and Hoblitz admitted that he had received an earlier increase after Respondent was fully aware of his attachment to the Union. Indeed, as late as April it had not hesitated to em- ploy Hoblitz' wife on his recommendation. Finally, the General Counsel sought to bolster a show- ing of discriminatory motivation by Hoblitz' testimony concerning an oral warning for not staying on the job which was given him by a new foreman, Burl Laney, on the day before Hoblitz quit. Their testimony was in agree- ment that Laney stated that he was not going to issue a written warning and that Laney felt the matter was a trivi- al one. To the extent that their testimony is in conflict, I credit Laney, who admitted that Hoblitz claimed the Company "had it in for him" because of the Union. There was no contention, however, that the incident had anything to do with Hoblitz quitting the next day, for Hoblitz informed Laney he was leaving to accept a better offer he had received from Lockheed. I conclude and find that that final, trivial incident, which was not regarded seriously by Laney, is without substance either in supporting a claim of discriminatory motivation as to Hoblitz or as to union supporters generally. I therefore conclude and find that the General 24 That posting followed shortly after the Union's designation of a 28- man membership committee from which Respondent might reasonably have anticipated an intensification of solicitation among the employees. In 549 Counsel failed to establish by a preponderance of the en- tire evidence that Respondent was discriminatorily motivated against Hoblitz in the respects alleged in the complaint. e. The no-solicitation rule The remaining alleged discriminatees were Frank C. Ward, Paul M. Vaughn, Charles D. McCann, and Ken- neth Miller in all of whose cases there were involved, in whole or in part, warnings for violating Respondent's no- solicitation rule. We therefore review preJliminarily cer- tain conflicting testimony concerning the time of the post- ing of the rule and alleged disparate enforcement of it. A number of witnesses for the General Counsel testified that the rule was first posted on or about May 12, 1966, and that they had not seen it prior to that day. They usually acknowledged, however, that they knew they were not supposed to engage in solicitation or union activities on company time and in some cases they en- deavored to give the Union credit for so informing them. Respondent produced a written rule issued over the signature of Industrial Relations Manager White which bore the date June 25, 1965, and supported it by the testimony of Fay B. Frost, a supervisor in industrial rela- tions. Frost testified that it was a part of his duties to post all pertinent material on all plant bulletin boards and periodically to monitor the boards. The no-solicitation rule was originally posted in June 1965 but thereafter it may sometime have become necessary to report new co- pies where the old ones were mutilated or torn down. Reconciling the foregoing conflicts, I conclude and find that the rule was in effect long prior to May 1966, though it is quite possible that in some buildings and on some bul- letin boards no copies may have been physically posted for substantial periods of time. I find that what the em- ployees observed around May 11 was a fresh posting of the rule, with the evident intent of reminding the em- ployees of its existence.24 The General Counsel also contended at the hearing that though the rule was not illegally worded its "illegal thrust" consisted of discriminatory enforcement. The latter claim was based on testimony by Kenneth Miller and Frank Ward concerning solicitation by Michael Miros for a beer fund for a ball game and on testimony concerning solicitation by Mrs. Marvalee Putnam. Both Miller and Ward testified that they were solicited on worktime. Miller, however, testified that Strange and White were solicited at the same time, but Ward men- tioned only Strange. Miros testified that the solicitation was made in the canteen on breaktime and that neither Strange nor White was present. Miller's testimony in part lso indicated that the incident did not occur on worktime for he testified that it occurred at a time when he and Ward were conferring with Strange about the ball game to be played that evening. I therefore credit Miros' testimony. The Putnam solicitation was also without substance. I credit the testimony of Mrs. Marvalee Putnam, called by Respondent, who testified that she solicited for some 20 or 30 minutes on behalf of a needy employee whose child had died, that she did not get permission to do so from any supervisor, got no contribution from a supervisor, any case, as the ensuing events will show, Respondent immediately began to intensify its own efforts to enforce the rule. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and solicited no employee in the presence of a supervisor. I therefore conclude and find that the Putnam solicita- tion occurred without Respondent's knowledge. We turn now to specific allegations of. discrimination emanating from Respondent's enforcement of the rule, and we begin with Frank Ward, in whose case a single warning was involved. f. The warning of Frank C. Ward Though Ward was hired in October 1965 he did not join the Union until May 11, 1966, and there was no evidence that he participated in union activities save in the single incident which led to the issuance of a warning notice on May 17 for violating the no-solicitation rule. There was no substantial conflict in the evidence that Foreman Hopf informed Ward the notice was based on a report that Ward had made a telephone call concerning the Union to a girl in the office and that Ward did not deny making the call but claimed that it was made on breaktime. Though Ward testified that Kenneth Miller was present when he made the call, Miller's testimony contained no corroboration of Ward's claim. Respondent called Pat Gray, the girl in question, who testified that the call was definitely made before break- time and that Ward asked her a number of questions con- cerning the eligibility of the office girls and concerning whether they had joined the Union and had voted in the election. Gray immediately reported the incident to her supervisor. I credit Gray's testimony and find that Ward made the call during worktime. Concluding Findings The evidence showed that Ward was not only without distinction as a rank-and-file union member but there was no showing that Respondent knew that he was in any manner interested in the Union until Gray reported Ward's call. Indeed, under Ward's testimony Hopf com- mented , after telling him the reason for the warning, that Hopf did not know that Ward was a union member. On this record it would be difficult to find that the General Counsel was successful even in raising a suspi- cion of discriminatory motivation in the issuance of the warning to Ward. Certainly the General Counsel failed to make out a case by a preponderance of the evidence. g. The discharge of Paul M. Vaughn Paul Vaughn was employed for some 9 months in building 1029 prior to his discharge on May 12 for viola- tion of Respondent's no-solicitation rule. The discharge followed by 1-day warning notice for the same rule infrac- tion . Vaughn was made an active leadman on March 28 but there was no evidence that he was informed (as were Thompson and the other leadmen in September) that the position conferred supervisory status which would preclude him from engaging in any form of union activ- ities.25 Vaughn was an active union member to Respondent's knowledge. He joined the Union in August, attended meetings , and passed out handbills in December and January. On April 29 he was elected to the bargaining committee and he continued to solicit membership cards though (he testified) not on company time. Though Vaughn denied that he ever saw the no-solicitation rule posted, he was admittedly aware that he was not per- mitted to solicit on company time, and as I have previ- ously found the rule was in effect long prior to May 12. Vaughn testified that on May 11 he and Foreman McCoy reported to the office of Ross Williams, produc- tion foreman of the hangar, where Williams informed him that the main office had issued a warning slip that Vaughn had been soliciting for the Union on company time. Vaughn asked who the informer was and Williams replied he did not know. Vaughn asked what would happen if he did not sign the slip and Williams informed that it was for Vaughn's good to sign it. Neither McCoy nor Williams testified concerning the warning interview. At the end of the next workday Williams took Vaughn into the office where Production Manager Henry referred to the prior warning and that Vaughn had "done it again" and that Henry's only alternative was to terminate Vaughn under code 19. Vaughn asked what that rule was but, Henry simply told Williams to clear Vaughn out. The termination notice specified that code 19 was "Violation of company rules." Henry testified that Williams was no longer with the Company, that he himself informed Vaughn of his termination, reminding him of the prior warning about solicitation during working hours and in- formed Vaughn the Company had evidence that he was continuing that conduct, which was slowing up produc- tion. Vaughn denied he was guilty. Though Respondent presented evidence that Vaughn was guilty of the first rule infraction for which he was warned on May 11, it made no attempt to establish that there was any repetition of the misconduct which inter- vened between the warning and the discharge on the fol- lowing day. Thus John L. Logan testified to two incidents of solicitation by Vaughn on working time, the first occur- ring 2 weeks prior to the discharge and the other a week later. Logan reported both incidents to his supervisora few days before Vaughn was discharged. Richard Lee Braswell testified similarly to a single instance of solicita- tion on working time which occurred some 2 weeks be- fore Vaughn's discharge. Braswell was questioned about the matter by his leadman on the same day it occurred and by his foreman the next day. As Vaughn was not called in rebuttal, I credit the foregoing testimony that the solicitations occurred on working time. Concluding Findings The foregoing record suggests no reasonable theory save that of discrimination which will explain the precipitate discharge of Vaughn on the baseless charge that he had engaged in another infraction of the no-solici- tation rule for which he had just been warned. Henry made no attempt to support his claim; he gave Vaughn neither particulars nor the names of informers or wit- nesses. Neither did Respondent seek to support Henry's claim at the hearing by evidence of a new infraction, for the solicitation of Logan and Braswell was known to Respondent prior to May 11 and served as the basis of the first warning. 25 The Board rejected on April 15 Respondent's contention that lead- men were supervisors. LTV ELECTROSYSTEMS, INC. 551 The General Counsel's evidence plainly established a prima facie case through the evidence of Vaughn's prominence in union activities and his testimony concern- ing the circumstances of his discharge. Respondent's evidence not only failed to overcome that showing but tended to confirm it by failing to support Henry's charge that Vaughn had committed another infraction of the no- solicitation rule. I therefore conclude and find that Respondent discharged Vaughn because of his union membership and activities, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. h. Discrimination against Kenneth Miller Kenneth Miller was employed from February 2 to Au- gust 8, 1966, first under Foreman Gordon Casadei and after mid-July under Foreman R. J. Robinson. Miller was put on the membership committee after the counting of the ballots on April 29 and was elected to the negotiation committee in mid-June. The alleged discrimination in his case consisted of the issuance of a disciplinary warning on May 12, in giving him a lower rating and lesser in- crease on July 1, and in discharging him on August 8. We consider first certain background evidence which bears directly on the issue of discriminatory motive.26 Miller testified that around April 1, Foreman Casadei asked him what his feeling was "about this union busi- ness." When Miller explained why he was for it "all the way," Casadei asked what Miller thought he would get out of it. After Miller was put on the membership commit- tee, Casadei commented that he saw that Miller was not on the bargaining committee and would not get to talk to the Company. Casadei denied questioning Miller about his union sen- timents or having any discussion with him regarding the Union. He denied further that he discussed the bargaining committee or any other committee with Miller and denied knowing that Miller, was on a committee. I credit Casadei's testimony. Miller's testimony concerning a disciplinary warning for violating the no-solicitation rule can also not be credited. In the first place Miller endeavored to fix the date as May 12 and as only some 30 minutes after the posting on that date of the no-solicitation rule. However, the warning notice, signed by Miller, was dated June 12, which Casadei testified was the date on which he gave Miller the warning. Furthermore Miller's testimony con- cerning the circumstances which gave rise to and which followed the warning was refuted by the mutually cor- roborative testimony of Casadei and Joe Kar, the latter of whom, a relative of Miller's, testified concerning Miller's solicitation of him on worktime. Indeed, Miller's admis- sions on cross-examination went far to confirm the truth of the Casadei-Kar testimony. I also credit Casadei's testimony concerning a conver- sation the ' next day by which Miller sought to supply evidence of a discriminatory motive both for the warning and for his later discharge. I therefore conclude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent was discriminatorily motivated in issuing a warning notice to Miller on June 12. Some time after Miller was placed under Foreman Robinson's supervision he received a performance rating which covered the period from February 2 to August 1. The actual rating was made by Foreman Casadei under whom Miller worked for most of the period. Casadei rated Miller as excellent on quantity of work but only as a low satisfactory on quality. On dependability Casadei rated Miller as satisfactory, on initiative as satisfactory but also as questionable, and on cooperation as questionable; i.e., "Reluctant to cooperate with others. Individualistic. Difficult to work with sometimes." Casadei also noted at the bottom of the form that, "This man has been given a notice of soliciting for the union during company hours. This he denies." Being dissatisfied with the rating, Miller sought an ex- planation from Maintenance Superintendent William W. Sissel, who called Casadei in. Respondent's witnesses made no denial of Miller's account of that interview, which was as follows: Casadei explained that though he rated Miller excellent on his work and performance, he could not rate Miller very high (overall) because "he is unloyal to the com- pany," and reminded Miller of the warning which Casadei had given him for soliciting for the Union. The interview concluded with Sissel commenting that he thought Miller could "pull up" the bottom part of the form during the next 6 months. Miller pursued the matter further with Foreman Robin- son upon the latter's return from vacation in the following week. Miller's testimony, again undenied, was that Robinson assured him that he had done an excellent job during the month he worked under Robinson and that Robinson was well pleased with him. On the foregoing record I find that Casadei's downgrading of Miller on all points except quantity of work resulted from the fact that Casadei equated Miller's solicitation for the Union as disloyalty to the Company. However, Section 7 of the Act gave Miller the right to en- gage in union activities without being charged with disloyalty and without having his performance rating lowered for that reason. I therefore conclude and find that by giving Miller a lower rating than he would have received but for his union activities, thereby also affecting his qualification for a merit increase, Respondent engaged in discrimination to discourage membership in the Union, in violation of Section 8(a)(3) and (1) of the Act. On August 8 Foreman Robinson took Miller into Sis- sel's office where Sissel informed him the Company had evidence he had been soliciting and that he was fired. Miller denied the charge but agreed to sign the termina- tion slip only to evidence the fact that Sissel told him why he was being discharged. Sissel testified he informed Miller the Company had written proof that he had disobeyed the rule and that was the reason for the termination. Miller acknowledged that he was aware of the rule because of the previous warning notice but denied that he was guilty of the violation . Sissel reiterated that the Company had written proof of the violation, though he informed Miller that he was not at liberty to tell him whom he solicited. Sissel testified, how- ever, that the information had actually come from one H. R. Robinson, who reported it to his foreman, R. J. Robin- son, who in turn reported the matter to Sissel on the 26 Millet's testimony concerning alleged statements made by Snoddy dunng the former's employment interview has been discredited , section 3, a, supra. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preceding Friday. Sissel testified further that he checked with Industrial Relations Manager White before effecting the termination. Miller testified that on the day following his termina- tion he sought from White an explanation for the discharge and White stated he had written evidence that Miller had been soliciting. When Miller asked that he be permitted to face the informer, White replied that when the proper time came the Company would produce the evidence. Respondent substantiated its claim at the hearing by testimony of H. R. Robinson and Fred Evans, both of whom testified to occasions around August 3 when Miller engaged in solicitations on worktime. Robinson re- ported what he had observed to his supervisor and to White and Evans gave a written statement to his super- visor, E. K. Gibson. I credit their testimony (which Miller was not recalled to deny) and I therefore find that Miller actually engaged in the rule violation for which he was discharged. As found above Miller had received a prior warning for violation of the same rule by a notice which informed him that a further violation would result in discharge . Miller's denials as made to Respondent seemed obviously designed to ascertain the identity of the informer, who in the case of the first warning was, as Miller correctly suspected, his relative Kar. But in any event Miller's record as a repeated violator was established and the only question is whether Respondent discharged him for that reason or for his union activities. Though I have found that Casadei's rating of Miller was affected by his view that Miller's union activities constituted disloyalty to the Company, Casadei was no longer Miller's supervisor and had no part in the discharge action. Furthermore Casadei's views were not shared by Miller's new foreman, Robinson, who par- ticipated in the discharge interview and who regarded Miller highly as a workman. Neither were the circum- stances of Miller's discharge comparable to those sur- rounding Vaughn's discharge (section g, supra ), for in the latter case the discharge action followed only 1 day after a prior warning and was wholly unsupported by evidence to support the naked claim that Vaughn had "done it again." Thus the finding of discrimination in Vaughn's case , where a baseless charge was leveled, lends no sup- port to a claim of discrimination against Miller, whose record as a repeated violator was established. Respondent was entitled , of course, to enforce its no- solicitation rule and its disposition to do so became plainly apparent after the fresh posting of the rule in May. Miller's prominence as a union supporter did not absolve him from compliance with the rule or insulate him from discharge as a repeated violator. Neither did the evidence establish that Respondent seized upon the rule violation as a mere pretext behind which to screen a discharge which was discriminatorily motivated. I therefore conclude and find on the entire evidence that General Counsel failed to establish that Respondent discharged Miller in violation of Section 8(a)(3) as al- leged. i. Discrimination against Charles D. McCann Charles D. McCann was employed on May 17, 1965, and worked on a number of different jobs under different foremen. He joined the Union in mid-June, served as the Union's observer in the election on December 10, and testified as a union witness at the representation hearing on December 29. He also went to Winston-Salem on April 29 to count and tally the ballots, he was put on the membership committee in late April, and he was ap- pointed to the negotiation committee on August 8. His prounion sentiments were plainly known to Respondent. As litigated herein the alleged discrimination against McCann consisted of (1) giving him a lower rating and a lesser wage increase in February 1966; (2) issuing three disciplinary warnings on April 7, May 13, and July 11; and (3) discharging him on August 18. Those items will be considered in chronological order. McCann was given a merit rating in February by his then foreman, David Blackwell, of 5.0, and later received a raise of 4 cents. The contention that the rating and the raise were lower than they should have been was based on the circumstances of an earlier rating in November and the fact that the rating form as shown to McCann bore a checkmark in the "Yes" box opposite the line, "Has he made progress since last rating," while the form as produced at the hearing showed an erasure in that box. Blackwell informed McCann that since he had received a merit increase of 5 cents in November he was not sup- posed to get his 6-month raise of 4 cents because it was company policy to consider a merit increase within the first 6 months to constitute the 6-month raise. Blackwell stated, however, that since all the paperwork had been done, they would just let it go ahead, and McCann got the 4-cent raise. Blackwell testified credibly that he made the erasure on the form because he realized after reviewing it that he had not rated McCann before and therefore could not certify whether McCann had made progress or not. The background of the November rating contributed nothing toward a showing of discriminatory motivation. McCann then received a rating of 6.6 (6.0 to 8.99 being excellent) and a raise of 5 cents, though he testified that his foreman, John Jarosh, informed him that his rating meant he would get a 6-cent raise. Jarosh denied that he so informed McCann and testified that until he got the rate change back from personnel he would not know whether his recommendation was approved or disap- proved and that he in fact showed McCann a change notice reflecting a 5-cent raise. I credit Jarosh's testimony. I conclude and find from the foregoing that the General Counsel failed to establish that either McCann's Februa- ry rating or his raise was less than he was entitled to receive. On April 7 McCann was given a warning notice by Foreman Martin based on the rejection by the inspectors of certain flared tubing which McCann had produced. McCann testified that, having some trouble with the flar- ing, he resorted to heating the tubing at the suggestion of Leadman Bud Brown and that he so informed Martin, who commented in effect that McCann had leaned a new trick. Martin denied that he had any conversation with Mc- Cann about heating the tubing. Martin testified that the inspector rejected some 20 pieces of tubing which Martin. had not previously seen, that he showed it to McCann and asked him what the matter was, and that McCann knew that it was no good. McCann agreed, but stated that was the best he could do because he did not have the proper tool. Martin informed him that he should have LTV ELECTROSYSTEMS, INC. stopped with making the first bad piece instead of wasting all of the time and the tubing, and McCann's only com- ment was that, "we have been getting by with it." Superintendent Hogan testified similarly that his com- plaint against McCann was that, being without the proper tool, McCann might have produced one bad piece, but that he should have stopped there before ruining a hun- dred dollars worth of tubing. Hogan testified further that the tubing was marred and was obvious scrap. The testimony of Hogan and Martin established that regardless of McCann's excuse for producing the first piece of bad tubing, he could have had no legitimate ex- cuse for continuing to waste time and material in turning out more scrap. I credit the testimony of the former, and I conclude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent was discriminatorily motivated in giving Mc- Cann a warning notice under the circumstances. The next warning to McCann on May 13, was for violating the no-solicitation rule, and it read in part, "This is a final warning. -Violation of this or any other com- pany rule will result in discharge." McCann advanced two excuses in his testimony, one that the rule was not posted until May 12, and the other that he had solicited on his own time. I have previously found (section e, supra) that the no-solicitation rule was in effect long prior to May 12, and McCann admitted knowing that he was not supposed to solicit on company time. McCanifs second excuse was refuted by the testimony of David F. Adkins (which McCann was not called to deny) that McCann solicited him on worktime to sign a union card and that he reported the matter to Su- perintendent Hogan. Though as previously found Respondent began around May 12 more strictly to enforce its no-solicitation rule, the General Counsel did not establish by a preponder- ance of the1 evidence !that Respondent was discrimina- torily motivated in warning McCann about his infraction of the rule. McCann received a third warning notice on July 11, is- sued by Foreman Martin, which assigned as the reason, "Interfering with work with fellow employees." McCann testified that he was first interviewed by Hogan who stated he heard that McCann was telling employees to slow down and not to work too hard. When McCann de- nied the charge, Hogan said he would investigate and would let McCann know later in the day. Hogan later informed McCann that the investigation had confirmed the reports, and though McCann testified at great length concerning the conversations during the interview, the evidence as a whole established not only the fact of the reports but their truth. Thus Martin testified that Frank Schulenburg admitted during the in- vestigation that both he and McCann were involved in making "slow down" remarks and that Schulenburg also implicated two other employees in, similar conduct.27 All four-of the employees were issued warning slips the same day. 24 Schulenburg was not called by the General Counsel, who consented to dismissal of a complaint allegation charging Respondent with issuing a warning notice to Schulenburg concerning the same incident. The General Counsel made no explanation as to the reason for not including the other two employees in the complaint. 28 The evidence established that there was no standard size between .028 and .035; that either might mike (measure) out a slightly different 553 McCann admitted being present when Schulenburg reproached another employee for producing too much tubing but contended the remark was jokingly made. His further efforts to inject evidence of a discriminatory mo- tive wholly failed. Thus he testified that at one point -Hogan commented that McCann had put him on the spot the previous week by obtaining from him a plant depar- ture pass (on union business to visit the Board 's office in Winston-Sal'e'm), but it developed on cross-examination that Hogan's complaint related to the fact that McCann requested leave for only 2 hours but was gone all day. McCann also commented on the fact that members of the negotiating committee had been receiving warning slips and then had been fired, but Hogan assured McCann he was not going to discharge McCann though the warn- ing slip would go into his work record. The foregoing evidence established that McCann received equal, not disparate, treatment, and there was no hint in the record that the other employees were joined just to get at McCann. Or were it assumed arguendo that the latter fact were so, then discrimination would have resulted as to all four of the particeps criminis, not just to McCann. I therefore conclude and find that the General Counsel failed to establish that Respondent discriminated against McCann by issuing the warning notice. On August 8 McCann returned from vacation and learned through the Union that he would automatically go onto the negotiation committee, replacing Ken Miller, who was discharged on that day. McCann testified that on August 15, he asked Foreman Martin when he would get his year's raise which was then due. Martin flashed some papers and said that he had the paperwork, but was going to hold back for a couple of days because of "something in personnel." McCann was terminated on August 18 by Hogan fol- lowing an interview in which Hogan asserted that Mc- Cann had misled him by claiming a day or so earlier that certain work orders could be produced only by using tub- ing with a .035 wall thickness. There is no conflict on the point that on August 16 McCann informed Hogan that the .035 tubing was necessary and that though it was on order, none was available at the time with which to work the orders. It is also undisputed that Foreman Odum, of the supply department, later pointed out that the work or- ders called for a .028 wall thickness which was available in supply and that while Hogan and Odum were arguing the point McCann proceeded to bend a piece of the .028 material to demonstrate that it could not be bent to specifications within the allowable tolerance for flat- ness.28 McCann testified that Odum angrily left the conference. Respondent's witnesses testified to the events which intervened before the discharge. Hogan moved McCann to another job and brought in James Kirby, an employee with considerably less experience, and assigned him, without specific instructions, to work on the same orders. Kirby proceeded to make a sample batch of tubing to the correct bands and configurations but made it out of .035 thickness; that .028 for example might mike out at .030, which was within the 10-percent overage allowable under military specifications, but there was no allowable tolerance downward. Hogan also admitted that use of the .035 would not necessarily have rendered the tubing defective if it were properly authorized by engineering and if a proper change were made in the work order 554 DECISIONS OF NATIONAL material, which McCann had contended was not availa- ble. Kirby testified that though the work order called for .028 and though he had no special authorization to use the .035, McCann, who had trained him, told him that tubing of that sort was to be made from .035 instead of .028. Kirby also testified that there was plenty of the .035 on hand. Hogan testified that when Kirby 's first batch of tubing was brought to him it was obviously made from .035 and that he told Martin to direct Kirby to see if he could make the tubing from .028. Martin so directed Kirby , and in a few minutes Kirby brought back a sample piece which he had produced . Martin took the tubing to Hogan , who had it inspected, and it was found acceptable. Hogan testified that he had previously taken it for granted on McCann's representation that it was necessa- ry to use .035 thickness in filling the particular work or- ders, but felt that McCann had misled him and had failed to give his best . He therefore decided that he was not getting a "fair shake" out of McCann on his productivity and would terminate him for failing properly to perform his work. Thereupon McCann was called in. - McCann testified that Hogan stated that he had been pretty lenient with McCann in the past but that McCann had "put pressure on him" because of the .028 tubing in that McCann claimed it could not be used because it would flatten out. McCann reminded Hogan that he had demonstrated earlier that his statement was true. Hogan showed him some samples on the table and McCann com- mented that it was not .028 because Foreman Blackwell had miked it at .030. Hogan and Martin insisted the tub- ing was .028 and Hogan stated he would have to ter- minate McCann. McCann replied that in that case, "you will 'see me in court." McCann admitted that the tubing which he was shown "looked good." The testimony of Hogan and Martin was not substan- tially in conflict . Hogan testified he told McCann he would have to terminate him for the incident plus the earlier ones on which McCann had gotten warnings and . that he felt the last one was the straw that broke the camel '`s back. Martin's testimony was in accord. On the foregoing record the fact which is most sug- gestive of a discriminatory motive is that McCann's discharge followed so shortly after he was placed on the negotiating committee. But McCann's prominence as a union supporter had been known for months, during which time McCann twice received merit raises, the. second of which could easily have been denied on techni- cal grounds if Respondent had desired to invoke them. Furthermore McCann had received a warning notice in. April concerning his job performance and another one in July because of advocating a slowdown. Significantly Mc- Cann was not discharged on the latter occasion despite the fact that the last prior warning specified that it was a final warning and that discharge would follow any further rule infraction. Assuming that Respondent was intent on eliminating a leading union supporter as General Counsel and Union contend, the July incident obviously furnished the ostensible grounds it needed. The final act which precipitated discharge represented a continuing worsening in McCann's job performance as reflected earlier in the April incident and by his attempt in July to induce a slowdown. McCann not only misrepresented to Hogan that the needed material was unavailable but that the work could not be performed with the material called for in the work orders. Those LABOR RELATIONS BOARD claims were fully exposed when Kirby, a less experienced employee, produced satisfactory work without special in- structions of any kind. Whatever McCann's prominence in the Union, Respondent was not required indefinitely to countenance the steady deterioration in McCann's job performance or his efforts to infect other employees with his attitude. I therefore conclude and find that the General Counsel did not establish by a preponderance of the evidence that Respondent was discriminatorily motivated in discharg- ing McCann. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. By interfering with , restraining , and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging Wendell Chavis, Henry Thompson, and Paul Vaughn because of their union membership and activities, Respondent engaged in discrimination to discourage membership in the Union , thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 3. By discharging Paul A. Guevremont , John S. Henchock, J. B. Miller, and Joe E. Tedford because they engaged in concerted activities for their mutual aid or pro- tection, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, I shall recommend 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 I find to be necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries , Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease -and-desist order. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER LTV Electrosystems , Inc., its officers, agents, representatives , and assigns, shall: 1. Cease and desist from: (a) Warning and threatening employees that they will be discharged if they continue to engage in union activi- ties. (b) Giving ,lower performance ratings and lesser merit increases to employees because of their participation in union activities. (c) Discouraging membership in United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, by discharging employees or in any other manner dis- LTV ELECTROSYSTEMS, INC. criminating against them in regard to hire or tenure of em- ployment or any term or condition of employment. (d) Terminating employees because they engage in a lawful strike or in other concerted activities for their mu- tual aid or protection. (e) 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 said United Au- tomobile, Aerospace and Agricultural Implement Work- ers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing or to engage in other concerted activi- ties for the purpose of collective bargaining or other mu- tual aid or protection , or to refrain from any or all such ac- tivities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Wendell Chavis, Henry Thompson, Paul Vaughn, Paul A. Guevremont, John S . Henchock, J. B. Miller, and Joe E. Tedford immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge to the date of the offer of reinstatement , less his net earnings during said period (Crossett Lumber Company , 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum . Isis Plumbing & Heat- ing Co., 138 NLRB 716. (b) Notify the said Wendell Chavis, Henry Thompson, Paul Vaughn, Paul A. Guevremont, John S. Henchock, J. B. Miller, and Joe E. Tedford 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 Train- ing 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 the other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at offices , hangars, shops, and other buildings in Greenville , South Carolina, copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent 's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .30 IT IS FURTHER RECOMMENDED that the complaint in these proceedings be dismissed in all respects save those on which unfair labor practices have been found herein. 555 29 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." 3° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 11 , , 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 NOT warn or threaten employees that they will be discharged if they continue to engage in union activities. WE WILL NOT give lower performance ratings and lesser increases to employees because of their par- ticipation in union activities. WE WILL NOT discourage membership in United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or in any other labor organization, by discharging employees or, in any other manner, discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT terminate employees because they engage in a lawful strike or in other concerted activi- ties for their mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist said United Automobile, Aerospace and Agricultural Im- plement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. WE WILL offer to Wendell Chavis, Henry Thomp- son, Paul Vaughn, Paul A. Guevremont, John S. Henchock, J. B. Miller, and Joe E. Tedford im- mediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of our discrimination against them in the manner provided in the Trial Examiner's Decision. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. LTV ELECTROSYSTEMS, INC. (Employer) Dated By (Representative) (Title) 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 1624 Wachovia Building, 301 North Main Street, Winston- Salem , North Carolina 27101 , Telephone 723-2911, Ext. 381.