Wyco Metal Products

WYCO METAL PRODUCTS 901 Wyco Metal Products and Local 1010, United Fur- niture Workers of America, AFL-CIO and Elec- tronic Cabinet Makers Independent Union' Wyco Metal Products and Local 1010, United Fur- niture Workers of America, AFL-CIO, Petitioner. Cases 31-CA-1368, 31-CA-1467, and 31-RC-1073 June 22, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS On December 30, 1969, Trial Examiner George H. O'Brien issued his Decision and Report as to Disposition of Objection to Conduct Affecting the Result of Election in the above-entitled con- solidated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . The Trial Examiner also found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. He further recommended that the election held on May 6, 1969, be set aside and that the challenged ballots not be opened and counted.2 Thereafter, the General Counsel, Respondent, and Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respondent also filed an answering brief in opposition to briefs of the General Counsel and the Charging Party. 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,3 conclusions, and recommenda- tions of the Trial Examiner, as modified herein. The Trial Examiner found that Respondent on March 124 interrogated employees Hector Padron and Louis Dupart in violation of Section 8(a)(1) of the Act. He also found that Respondent on the fol- lowing day discriminatorily discharged Padron and David Magana in violation of Section 8(a)(1), (2), and (3) of the Act because of the activities of these employees on behalf of Local 1010 and in opposi- tion to the Independent, the bargaining agent for Respondent's 38 unit employees. We agree. The record shows that early in March Padron and Magana, president and secretary-treasurer, respectively, of the Independent, met5 at a restau- rant with Apolinar Espudo, International represent- ative of Local 1010, from whom they secured authorization cards. Soon thereafter, Padron dis- tributed cards "inside and outside" Respondent's premises to no less than 10 employees.6 Magana joined Local 1010 about March 5 or 7 and then dis- tributed cards to three or four employees in the parking lot adjoining the plant . In addition , Magana spoke to seven or eight employees during break periods and told them to see Padron if they wished to join Local 1010. On March 11, at least 20 members of the Inde- pendent met after working hours at Padron's request at a union hall where he stated that a new and better contract could be secured if the Inde- pendent's contract with Respondent were ter- minated and the employees disbanded the Indepen- dent and joined Local 1010. After Magana and other employees voiced their support, the em- ployees voted unanimously to carry out Padron's recommendations. On March 12, employee James Chilton asked George Stassi,7 Respondent's plant superintendent and production manager, if the latter had seen a card. Stassi inquired "which card?" and received the reply that Dupart had one. Two minutes later, Stassi asked Dupart if he had seen or had a card. On being told by Dupart that he had a card which Padron had given him, Stassi sought out Padron who denied he had a card. As indicated by the Trial Examiner, Stassi denied any knowledge of the campaign for Local 1010 and against the Independent and testified that his inqui- ries concerning cards were prompted by a suspicion that they were discount house cards. However, the Trial Examiner concluded that Stassi, "a man of determination" who enjoyed first name relations ' Herein respectively called Local 1010 and Independent 2 Through an inadvertence , the Trial Examiner did not recommend the holding of a second election 3 The parties except to the Trial Examiner 's credibility findings It is the Board's established policy not to overrule a Trisl Examiner's resolutions with respect to credibility unless the preponderance of all the relevant evidence convinces us that they are incorrect On the entire record, such a conclusion is not warranted herein Standard Dry Wall Products, Inc v NLRB.,l88F2d362(CA 3) 4 Unless otherwise indicated , all dates refer to 1969 s They were accompanied by two other employees, namely, Raymond J Gliha and Chester Whitton, vice president of the Independent One employee who signed a card was Oscar Heath r Stassi spent most of the day in the production area 183 NLRB No. 93 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the workmen in the shop, did not rest until he ascertained that the cards were Local 1010 authorization cards. In view of Stassi's close contact with the employees and the small size of the plant, as well as the timing and nature of the interroga- tion, we find there is an adequate basis for inferring that Respondent knew or had reason to believe that the cards were Local 1010 cards and the dis- criminatees, Padron and Magana, were protagonists for that organization.8 Contrary to our dissenting colleague, we find, for the reasons given by the Trial Examiner, that Respondent further violated Section 8(a)(2) of the Act when Stassi presented $150 to the Independent at a meeting on April 4 called by Stassi on Respon- dent's premises. We also find, contrary to the Trial Examiner, that Respondent engaged in the follow- ing additional acts of unlawful support and assistance to the Independent in violation of Sec- tion 8(a)(2) of the Act: On the morning of March 17, Heath returned from his vacation and, on learning of the "confu- sion" and "commotion" over Local 1010 and the Independent, prepared and circulated in the plant9 the following petition, which was signed by 30 em- ployees, that day and the next:10 Please sign if agreed I hereby do say in sound mind without any force or bribe, that I do not want the so-called. Furniture Union [Local 1010] at Wyco Metal Product and do still accept the same Cabinet Maker Union that is now in the Plant. And do accept to attend a meeting to be held on or about March 19, 1969 at 4:30 p.m. to decide on renewal of new contract, on or about the 1st of April, 1969. At noon on March 17, Heath, who "took it upon [himself] to act as acting president" of the Indepen- dent,11 placed on Respondent's bulletin board a notice announcing a "Union Meeting for Em- ployees" at 4:30 p.m.12 on March 19 for election for president of the Independent. On March 18, Forrest Norman Weiss, owner and sole stockholder of Respondent, received and discussed with Stassi a copy of the charge in Case 13-CA-1368 filed by Local 1010 on March 16 which alleged that Padron and Magana had been discriminatorily terminated. That same day, about 4:25 or 4:30 p.m., Heath handed his petition with 30 signatures to Stassi who made a copy and sub- mitted it to Weiss. The meeting called by Heath for 4:30 p.m. did not take place because "nobody showed up." As a consequence, Heath on March 20 asked for and ob- tained Stassi's permission for the Independent to have a half hour meeting in the assembly room of the plant on the following day during an extended lunch period commencing at 12:30 p.m.13 On March 20, Weiss received a letter signed by Padron and Magana informing him of the actions taken at the Independent's March 11 meeting and advising him that Espudo, Local 1010's representa- tive, would communicate with Weiss on behalf of the employees. On March 21, Local 1010 filed a representation petition (Case 31-RC-1062) and a copy thereof was mailed to Respondent by the Regional Office. On the same day, Respondent received a letter from Espudo offering to demonstrate Local 1010's majority and requesting a meeting to negotiate a contract with Local 1010. At 10:15 a.m., Heath signed and posted on Respondent's bulletin board the following notice "To All Union Members," i.e., members of the Independent: There will be a union meeting this afternoon at 12:30 to 1 o'clock in the Assembly Dept. There will be a lot to discuss and explain con- cerning the final stages of our new contract. All personnel must be there and we will have to make up the 1 /2 hr. this evening . In other words everyone will have to work until 5 p.m. instead of 4:30 this is a must. No one will be Excused. The meeting of the Independent was held as scheduled14 and the day shift worked until 5 p.m.15 On March 25, Respondent's counsel, Edwin H. Franzen, replied to Espudo's letter and refused to recognize and bargain with Local 1010 for the fol- lowing reasons : The Independent is not defunct; Local 1010 does not represent a majority of unit employees; Respondent has a "current, valid col- lective bargaining contract" 16 with the Indepen- dent; and Respondent interprets Local 1010's peti- s Century Lumber Company, Inc, 168 NLRB 221, Square Binding and Ruling Co , Inc, 146NLRB206,219 ° Heath was assisted by employees Ted Villa and Henry Perez 10 The Trial Examiner found that the circulation took place " partly dur- ing working hours " " As stated above, Padron was president of the Independent at the time of his discharge on March 13 '= Respondent 's regular working hours for the day shift were 8 a in to 430pin 13 Heath and Stassi agreed that the workday would be lengthened by one- half hour that day to enable those attending the meeting to make up the lost time 14 Heath testified without contradiction that, prior to March, no other meetings of the Independent were held during working hours or inside the plant "As Ghha did not work beyond 4 30 p in , a half hour's pay was deducted from his check 16 The contract provided, inter alia, for automatic renewal in the absence of written notice by either party on or before April I WYCO METAL PRODUCTS tion for an election as a waiver of the demands con- tained in Espudo's letter. On March 26, Respondent received a copy of the amended charge in Case 31-CA-1369, alleging that Padron, Magana, and Harry Barr had been dis- criminatorily discharged. On March 27, Franzen mailed to the Regional Office a copy of Heath's petition and a letter from Weiss explaining the discharges. On the same day, a new contract, effective for 3 years commencing March 28, was signed by Heath and three other em- ployees for the Independent and Weiss for Respon- dent." On April 2, Local 1010 filed a second petition (Case 31-RC-1073) which was mailed by the Re- gional Director to Respondent on April 4. On the latter date, Local 1010 requested leave to withdraw its earlier petition (Case 31-RC-1062) and withdrawal was approved by the Regional Director on April 8.18 On April 4, as already noted, Stassi called a meeting on Respondent's premises at which the In- dependent was unlawfully presented with a check for $150. On April 5, the employees received with their paychecks the following notice signed by Weiss: REGARDING YOUR PAY CHECK: Your hourly rate for Thursday, March 27, was per your previous rate. Starting March 28th (last Friday) you received an eight cents (8) an hour increase. This increase was given to you because of the new contract negotiated between and agreed to by the Electronic Cabinet Makers Indepen- dent Union and Wyco Metal Products. On April 27 the Independent, Local 1010, and Respondent entered into a Stipulation for Certifica- tion Upon Consent Election (Case 31-RC-1073). The election was held on May 6. As noted above, Respondent on March 12 and 13 engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act when it in- terrogated employees Dupart and Padron concern- ing Local 1010 and discriminatorily discharged the latter and Magana for campaigning on behalf of Local 1010 and against the Independent. In con- trast to these hostile and unlawful actions against Local 1010 adherents, Respondent engaged in the above-described course of conduct in the next 3 "This contract contained a new wage scale and one additional paid holiday IN The Trial Examiner pointed out that under the rule in Leonard Wholesale Mears, Inc, 136 NLRB 1000, the petition in Case 31-RC-1062 was premature , having been filed more than 90 days before the expiration date of the Independent's contract with Respondent , and he stated that it would have been dismissed by the Trial Examiner if it had not been withdrawn " As the Trial Examiner indicated in discrediting Stassi's denial of such 903 weeks which reveals a pattern of disparate treat- ment favoring the Independent. Thus, as the Trial Examiner found, Stassi was aware that the petition opposing Local 1010 and supporting the Independent was being circulated for 2 days, partly during working hours, and acquiesced in that action of Heath and two fellow employees.19 Although Respondent questions the Trial Examiner's finding that the petition was circu- lated partly during working hours,20 the issue is not whether the petition was circulated during working or nonworking time . The critical fact is that Respondent, which had only a few days before en- gaged in unlawful interrogation and discharged two employees for soliciting for Local 1010, permitted Heath to solicit on behalf of the Independent. While this fact, standing above, might not justify finding a violation of Section 8(a)(2) of the Act, it occurred here in the context of widespread assistance of various kinds. Respondent rendered further unlawful assistance to the Independent by permitting that organization to meet in the plant on March 21 and by rearrang- ing the workday to the detriment of those em- ployees who were inconvenienced or unable to work beyond the usual hours of the day shift.2' In granting to the Independent the unusual privilege of holding its meeting in the plant at an hour which was normally working time, Respondent gave spe- cial consideration to the Independent that went beyond the ordinary advantages which may properly inhere in incumbency. Confronted by the March 20 letter of Padron and Magana as to the displacement of the Independent by Local 1010, Espudo's March 21 letter asking for recognition of Local 1010, and the latter's petition (Case 31-RC-1062), Respondent took another substantial step to strengthen the position of the In- dependent by prematurely extending its contract with the Independent on March 26 and granting thereunder increased wages and an additional paid holiday. Although Respondent contends there was no question concerning representation during the critical period because Local 1010's demand for recognition and its petition (Case 31-RC-1062) were untimely filed, we deem it significant that the premature extension of the contract, which con- tained additional benefits, took place in a context knowledge , Stassi must have learned about the circulation of the petition in view of his close contact with the employees in Respondent 's small plant S0 Heath himself disclosed his uncertainty as to whether he handed the petition to Stassi during or after working hours when he testified that he did so at "425or430pm" " Although evidence was adduced as to the meeting, the Trial Examiner denied the General Counsel's motion to amend the complaint to cover such conduct We find that the 8(a)(2) allegation in the complaint is sufficiently broad to encompass this subject 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of unlawful interrogation , discharges, and other assistance to the Independent" in the face of the demand for recognition by Local 1010. Ac- cordingly , we conclude that Respondent aided and assisted the Independent in violation of Section 8(a)(2) of the Act by prematurely extending that contract with the purpose and intent of counteract- ing and forestalling Local 1010's organizational campaign and securing the entrenchment of the In- dependent as the bargaining representative.23 The Trial Examiner found , and we agree , that the $150 gift to the Independent interfered with the election of May 6 and , as noted above , recom- mended that the election be set aside and the chal- lenges not be opened and counted . 24 We also find that a new election is warranted because of the continuing impact of Respondent's unlawful assistance to the Independent at the time of the election .25 In view of the appearance on the ballot of the unlawfully assisted Union at a time when the unfair labor practices had not been remedied, it cannot be said that the election was fairly and properly conducted or that the results of the elec- tion represent the freely expressed desires of the employees . We shall therefore order that the elec- tion be set aside and that the Regional Director hold another election when he determines that a free and untrameled election can be held. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent Wyco Metal Products, North Hollywood, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. In 2(a) of the Recommended Order delete the words prior to the word "substantially" and sub- stitute therefor the following: "Offer to Hector Padron and David Magana immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to". ' See H & F Binch Co , 168 NLRB 929 In view of our reliance on the Binch case, we rind it unnecessary to pass on the Trial Examiner 's finding that there was no Midwest Piping viola- tion However, we do find that par 9(b) of the complaint, which alleges that the premature extension of the contract violated Sec 8(a)(2), is suffi- ciently broad to warrant our finding of such a violation _' As noted above, we have already adopted the Trial Examiner 's finding that the gift constituted an 8(a)(2) violation. ' Weather Seal Incorporated, 161 NLRB 1226, 1228 S° In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all 2. In the sixth indented paragraph of the notice delete the words prior to the word "substantially" and substitute therefor the following : "WE WILL offer to Hector Padron and David Magana im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to". IT IS FURTHER ORDERED that ( 1) the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions of the Act not specifically found herein, and (2) the election conducted on May 6 , 1969, in Case 31-RC-1073 , be, and it hereby is, set aside, and said case is hereby remanded to the Regional Director for Region 31 to conduct a new election. [Direction of Second Election26 omitted from publication. ] MEMBER BROWN, dissenting in part: I agree with my colleagues in all respects except insofar as they adopt the Trial Examiner's conclu- sion that Plant Superintendent Stassi's payment of the $150 to the treasury of the Independent vio- lated Section 8(a)(2) and interfered with the elec- tion which was held on May 6, 1969. There is no dispute about the facts. In 1968, many months before the organizational effort of the Charging Party, the members of the Independent decided to withdraw the Independent's funds from the bank and each member could either take his share in cash or turn it over to Stassi for betting at the racetrack. As a result, most of the employees left their shares for betting, and $120 was turned over to Stassi for that purpose. However, Sassi lost the money and promised to replace it with interest if he "ever hit it lucky." This he did at the end of March or beginning of April 1969, and on April 4 he called the employees together and announced he had had a winner and handed a check for $150 to the Independent's treasurer. The election agree- ment was entered into on April 25. As I view these facts, the only basis for constru- ing the payment as unlawful is the timing during the critical period between the filing of the petition and date of the election. Notwithstanding that the record demonstrates Respondent's union animus, there is nothing to connect the payment of this money with that animus. Although it is entirely conceivable that such a payment could be made as parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- derwear Inc , 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 31 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordina- ry circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed WYCO METAL PRODUCTS a devious means of supporting the Independent, some evidence would be essential to justify this conclusion and none appears to be available. Ac- cordingly, in finding that the Respondent violated Section 8(a)(1), (2), and (3), 1 would not rely on this incident. TRIAL EXAMINER'S DECISION and REPORT AS TO DISPOSITION OF OBJECTION TO CONDUCT AFFECTING THE RESULT OF ELECTION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: This con- solidated proceeding was heard at Los Angeles, California, on September 2 through 4 and 8 through 12, 1969. In this Decision and Report Wyco Metal Products is called Respondent; Local 1010, United Furniture Workers of America, AFL-CIO, is called Local 1010; and Electronic Cabinet Makers Independent Union is called Inde- pendent. The consolidated amended complaint is- sued July 16, 1969, is based on a charge filed by Local 1010 on March 17, 1969, as amended March 20 and 25 and April 14, 1969, and upon a charge filed by Local 1010 on June 9, 1969. The com- plaint alleges, in substance, that Respondent, by discharging three employees, by coercive interroga- tion and threats, and by contributing financial and other support to Independent, violated Section 8(a)( 1), (2), and (3) of the Act. By a further order of consolidation issued by the Regional Director on August 15, 1969, one objection by Local 1010 to conduct of Respondent affecting the results of an election held May 6, 1969, was placed in issue. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in com- merce and in business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATIONS INVOLVED Local 1010 and Independent are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT OF ELECTION A. The Issue In Case 31-RC-1073 Pursuant to a Stipulation for Certification Upon Consent Election under Section 102.62(b) of the 905 Board's Rules and Regulations , Series 8, as amended, an election was held on May 6, 1969, with the following result: Local 1010 13 Independent 18 No union 2 Challenged 4 The challenges being sufficient in number to affect the result of the election , and timely objections having been filed by Local 1010, the Regional Director, on July 23 , 1969, issued his Report on Objections and Challenges . No exceptions having been filed , the Board on August 8, 1969 , issued an order adopting the Regional Director's report wherein he recommended: ... that the issues raised by Objection 1 and by the challenges to the ballots of Hector Padron, Harry Barr and David Magana be consolidated for hearing with the hearing scheduled to be held in Cases 31-CA-1368 and 31-CA-1467, and has recommended that the challenge to the ballot cast by Warren Kelly be overruled. It is recommended further that the ballot cast by Kelly not be opened and counted at this time but be held pending resolution of the other challenged ballots and the objections and that in the event the objections are sustained, a second election be directed without opening and counting any challenged ballot. Objection 1, in its entirety , states as follows: On or about April 4 , 1969, the Employer turned over to the Electronic Cabinet Makers Independent Union the sum of $ 180 [sic]. B. The Issues in Cases 31-CA-1368 and 31-CA-1467 The General Counsel asserts that Padron, Barr, and Magana were discharged because they joined or assisted Local 1010 or because they failed and refused to assist Independent. Respondent answers that Padron was discharged because of his un- satisfactory job performance and because he deliberately refused to obey a direct order of his immediate superior; that Magana was discharged for leaving work early without permission in viola- tion of an established published rule; and that Barr was discharged for culpable negligence in the operation of a crane, subjecting himself and fellow employees to the possibility of serious bodily harm. The complaint further alleges, and Respondent de- nies, that Superintendent George Stassi (I) inter- rogated employees about their union activities, (2) threatened employees with discharge if they sol- icited for Local 1010, (3) told employees they should quit their jobs with Respondent if they sup- ported Local 1010, and (4) threatened employees with reprisals and told them to quit their jobs with Respondent if they would not agree to prematurely open and extend Respondent's contract with Inde- 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent; further that (5) a petition prepared and circulated by employee Oscar Heath was circulated during working hours with the permission, consent, and authorization of Respondent; (6) the agree- ment executed by Independent and Respondent on March 27, 1969, granting increased wages and other benefits to employees was a premature open- ing and extension of Respondent's contract with In- dependent; and (7) the $150 given by George Stas- si to Independent constituted unlawful support and assistance. C. The Manufacturing Process Respondent fabricates sheet metal cabinets designed to house electronic devices. Sheet steel and sheet aluminum are received at a truck dock where they are picked up by a traveling crane and deposited in piles in the steel warehouse, according to the gauge of the metal. The shear operator, using the crane, removes sheet metal from a pile and deposits it on a shear table. The shear operator and his helper then push the shear table, which rolls on six wheel casters, to the shear. The shear operator cuts the metal to dimensions shown on a work order and illustrated by an accompanying print. The shear helper then takes the pieces of metal which have been cut to prescribed size to the punch presses where holes are punched according to the work order and the print. The next operation is per- formed on the power brake. There are five power brakes of varying sizes and capacities which bend the sheet metal at a right angle between a ram and a die. The brake operator checks the guage of the metal and sets his ram so that when the pressure is applied, 55 tons on one of the brakes, the metal will emerge at a perfect right angle. If too much space is left between the ram and the die, the angle will be obtuse; if too little space is allowed, the brake will jam. Before inserting the sheet metal in the brake the operator is also required to check it against the work order and the print to see that the shear operator and the punch press operator have done their work properly. In March 1969, Ray Gliha was the leadman over shear, punch press, and brake and Gliha himself operated brake and punch press. Harry Barr was the shear operator and James Chil- ton was his helper. Other brake operators were Chester "Tex" Whitton, David Magana, and Louis Joseph Dupart. The formed parts then pass to the welder and spot welders. Sides, top, and top moldings are welded to the frame by heliarc. The spot welder at- taches the bottom moldings and the unit channels. In March 1969 Warren Kelly was the heliarc welder and leadman over spot welders Bridie Geeter and George Bartel. From welding the cabinets go to metal finishing, where rough edges are ground off with machines and the entire subassembly given a smooth finish in a machine called a "jatterbug." Metal finishing was under Leadman Henry Perez. After degreasing, the cabinets enter the paint de- partment. There are two paint booths-the smaller is occupied by one spray painter and the larger by two spray painters. In March the painter leadman was Luis Sandoval and the other painters were Hec- tor Padron and Orlando Molina. There were also three helpers, one of whom was William Molina, Orlando's brother. The painter inspects the part to see that it is free of dust or grease , dilutes his paint with the proper amount of thinner, and sprays the paint evenly and smoothly over the entire surface. The painter's helper wipes the part with a cloth be- fore the paint is applied. He also hangs the painted article on a rack and wheels the rack to the bake oven. Gilbert Wagner was in charge of the oven. Smaller "Wyco" items which require no further processing are taken directly to the packer, Rose Padilla. If the item is perfect she packs it; if she ob- serves an obvious defect in the paint she returns it to the paint shop for repair. On doubtful items she asks the advice of the Production Control Super- visor George Castro Suarez. Items which require further processing, which in- clude the larger "Wyco" items and all "Stantron" items, are delivered by Wagner to Oscar "Dean" Heath, the leadman in final assembly. Heath super- vises four assemblers who use screwdrivers and pliers in their work. Heath is also the final inspector and after he puts his tag on the completed cabinet it goes to packing and shipping. As part of his du- ties Heath inspects the paint before final assembly and when he finds a defect he sends the part back to the paint shop for correction. One copy of the work order has accompanied the work throughout the manufacturing process. Heath also has a copy of all pending work orders which he keeps on a clipboard and he makes frequent trips through the shop to check the progress of the parts which he will require in his final assembly. The entire operation is under the immediate and close supervision of Plant Superintendent and Production Manager George Stassi who spends most of his working time in the production area. Forrest Norman Weiss, Respondent's president and sole stockholder, exercises some direct supervision. Suarez supervises no one. As of March 1, 1969, there were 38 employees in the bargaining unit. As of March 13, after the discharges of Padron and Magana, there were 33 employees in the bargaining unit. Employees address and refer to Mr. Stassi as George and to Mr. Weiss as Norm or Norman. D. Sequence of Events On July 1, 1955, Respondent and Independent entered into a 3-year contract, making membership in the Independent a condition of employment and providing for automatic renewal for annual periods in the absence of written notice by either party on or before April 1, 1958, or any succeeding April 1. On July 1, 1966, the same parties signed a one-page amendment of the 1955 agreement changing the wage schedule and further providing: WYCO METAL PRODUCTS 907 This contract may be reopened for discussion of the Wage Schedule by notice in writing served by either party upon the other at least 30 days before June 30, 1969. In early 1966 George Stassi , with over 30 years' experience in all aspects of sheet metal manufac- ture, accepted a position with Respondent as proto- type mechanic and 3 months later he was put in charge of punch press and brake. Shortly thereafter he was placed in charge of metal finish, weld, spot weld, and degrease and in September 1967 became superintendent and production manager responsi- ble only to Norman Weiss. Stassi is a gregarious in- dividual and enjoyed talking about sports (he had been a professional baseball player) and horserac- ing with Respondent 's employees. It had been the practice of the Independent in December of each year to distribute all the money then in the treasury among the bargaining unit employees then working. In the summer of 1968 it occurred to Bridie Geeter, a spot welder, that rather than have $5 or $6 at the end of the year, the money should be removed from the bank, where it wasn't doing any good, and put to work and that Stassi 's expert knowledge of hor- seracing should be employed. A meeting of the In- dependent was held at which it was decided that the Independent's funds should be withdrawn from the bank and each member would be given the cho- ice of either taking his share in cash or of giving his share to Stassi to bet at Hollywood Park. The of- ficers of the Independent in the summer of 1968 were Chester Whitton, president; Henry Perez, treasurer; David Magana, vice president; and Oscar Heath, secretary. Whitton and Perez went to the bank and drew out the Independent's funds. Each employee as he left work about 4:30 was asked, "Do you want it to ride or do you want it?" About 10 employees took their money. The remainder of the treasury, about $120, was given to Stassi to bet. He placed this money and "a lot of (his) own" on the daily double on a Saturday. The following Mon- day in Respondent's plant he laid down the losing tickets, stating in Geeter's words: "Look, you guys don't never give me no more money to go and bet. I lost too. I can't bet with nobody else's money. I am going to replace this money if I ever hit it lucky. I'm going to replace with interest on it." In October 1968 the Independent elected new of- ficers. Harry Barr became president; Whitton, vice president; and David Magana, secretary-treasurer. Heath had no notice of the meeting and did not learn util somewhat later that he and Perez had been replaced. Barr resigned after 2 months and Hector Pardron was elected president. Padron called Local 1010 and arranged to meet with Apolinar Espudo, International representative, at a restaurant . Padron brought David Magana, Ray Gliha, and Chester Whitton with him . The next day, March 5, 1969, at quitting time, Heath signed a Local 1010 authorization card at Padron's request. Heath then left on his vacation and did not return to the plant until Monday , March 17. On March 11, 1969, 20 of the then 36 members of Independent met at the United Automobile Work- ers union hall. Padron, speaking both in English and in Spanish, reminded the members that a new contract could be negotiated if notice were given prior to April 1, stated that the new contract should be a better one, and urged that Independent disband and the employees join Local 1010. Votes were taken by show of hands and Padron's recom- mendations were adopted. On March 12, James Chilton, the shear helper, asked Stassi if he had seen a card and when Stassi asked "which card," Chilton replied that Dupart had one. Stassi then asked Louis Dupart if he had a card, and Dupart replied that he had received a card from Padron. Stassi went to Padron and asked if he had a card. Padron denied having any card and invited Stassi to search him. Stassi declined the invitation. On March 13, Stassi discharged Hector Padron and David Magana. On Monday, March 17, Heath arrived at the plant about 7:30 a.m. (starting time was 8 a.m.). Heath was told by Bridie Geeter and a few others about the "confusion" and "commotion" over Local 1010 and Independent. He heard that it was going to be necessary for Mr. Weiss to go to the hospital and that the Independent officers had been asked to discuss the renewal of the contract at a meeting but had failed to do so. He also learned that Padron and Magana had been discharged. Heath, in an effort "to find out how everyone was standing," wrote at the head of a pad of lined yel- low paper: Please sign if agreed I hereby do say in sound mind without any force or bribe, that I do not want the so-called Furniture Union at Wyco Metal Product and do still accept the same Cabinet Maker Union that is now in the Plant. And do accept to at- tend a meeting to be held on or about March 19, 1969 at 4:30 p.m. to decide on renewal of new contract, on or about the 1st of April, 1969. Heath, attempting to confine this activity to his lunch period and breaktime, asked individual em- ployees to read the above statement and to sign if they agreed. Heath signed on line one. Ted Villa, an assembler under Heath, accompanied Heath on part of his rounds and translated the English text into Spanish for the benefit of the Spanish-speaking employees. At noon on the 17th Heath, who "took it on myself to act as acting president," placed on the company bulletin board (bulletin board rights are conferred by the 1955 agreement) the following notice: Union Meeting for Employees at 4:30 in Eve. March 19, 1968 for election for Pres. On March 18 Weiss received in the mail a copy of the charge in Case 31-CA-1368 filed by Local 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1010 on March 17 which alleged that Padron and Magana had been terminated "for participation in union activities," discussed this charge with Stassi, and wrote a letter to the Regional Director setting forth his explanation of the discharges. He did not mail the letter to the Regional Office, but delivered it to his then counsel, Edwin H. Franzen. Heath continued to solicit signatures to his petition, using Leadman Henry Perez as his interpreter. About 4:30 p.m. Heath handed the petition bearing the signatures of 30 bargaining unit employees to Stassi who, after making a photocopy, returned the original to Heath . Stassi gave the photocopy to Weiss. The meeting called for 4:30 on March 19 was not held because "nobody showed up." In some manner on either March 19, 20, or 21 Independent acquired the following officers: Oscar Heath, pre- sident; Warren Kelly, vice president; Louis Dupart, secretary; and Earl Hopson, treasurer. On March 20 Heath told Stassi that he would like to hold a union meeting in the assembly department for the purpose of discussing negotiations for a new contract. Stassi gave his permission and agreed that on the following day the lunch period would be ex- tended for an additional one-half hour and the plant would run one-half hour beyond the normal quitting time to enable those attending the meeting to make up the lost time. On the same date Weiss received a letter signed by Padron and Magana stat- ing in substance that at a regular meeting held on March 11, 1969, the members of Independent voted to terminate the contract, to dissolve Inde- pendent, and to affiliate with Local 1010 advising him that Apolinar Espudo would communicate with him on behalf of the bargaining unit employees. On March 21, 1969, Local 1010 filed a petition docketed as Case 31-RC-1062 and a copy thereof was mailed by the Regional Office to Respondent. On March 21 Respondent received a letter from Espudo recapitulating the substance of the letter from Padron and Magana, claiming and offering to demonstrate majority, and requesting a meeting to negotiate a contract. At 10:15 a.m. Heath posted on the bulletin board the following notice to all union members: There will be a union meeting this afternoon at 12:30 to 1 o'clock in the Assembly Dept. There will be a lot to discuss and explain con- cerning the final stages of our new contract. All personnel must be there and we will have to make up the 1/2 hr. this evening. In other words everyone will have to work until 5 p.m. instead of 4:30 this is a must. No one will be Excused. Thank You 0. Heath ' Under the rule of Leonard Wholesale Meats, Inc, 136 NLRB 1000, the petition in Case 31-RC-1062 was premature , having been filed more than The meeting was held as scheduled and the day shift worked until 5 p.m. On March 24, Monday, Harry Barr was discharged by Stassi on the instruction of Weiss. On March 25 Franzen replied to Espudo's letter of March 20: It is our client's understanding that the Elec- tronic Cabinet Makers Independent Union is not defunct, that it has officers and is other- wise functioning as a union, completely separate and distinct from your Local 1010. Aside from that, our client's information and belief is that you do not truly represent a majority of the employees in an appropriate bargaining unit. In addition, Wyco has a current, valid collec- tive bargaining contract with Electronic Cabinet Makers Independent Union. We note that you filed a Petition for Election with the NLRB and we interpret that as a waiver of your demands continued in your March 20, 1969 letter. For the above and other reasons , we are deny- ing your requests and demands. On March 26 Respondent received a copy of the second amended charge in Case 31-CA-1369, al- leging that Padron, Magana, and Barr had been discharged in violation of Section 8(a)(3) of the Act. On March 27 Franzen mailed to the Regional Of- fice, with a covering letter, a copy of the petition circulated by Heath on March 17 and 18, and the original letter written and signed by Weiss on March 18. On the same date, March 27, a new con- tract was signed by Heath, Kelly, Dupart, and Hop- son for the Independent and by Weiss for Respon- dent. The new contract was an exact copy of the 1955 agreement except for the correction of typo- graphical errors, a different wage scale, the addi- tion of one paid holiday, and changes in dates. The new contract runs from March 28, 1969, to March 27, 1972. On April 2 Local 1010 filed the petition docketed as Case 31-RC-1073. On April 3 a copy of the petition was mailed to Respondent by the Regional Office. On April 4, Local 1010 requested leave to withdraw Case 31-RC-1062 and withdrawal was approved by the Regional Director on April 8.' To the first April paycheck of each bargaining unit employee was attached the following notice: REGARDING YOUR PAY CHECK: Your hourly rate for Thursday, March 27, was per your previous rate. Starting March 28th (last Friday) you received an eight cents (8) an hour increase. 90 days before the expiration date of a valid contract, and would have been dismissed if not withdrawn WYCO METAL PRODUCTS 909 This increase was given to you because of the new contract negotiated between and agreed to by the Electronic Cabinet Makers Independ- ent Union and Wyco Metal Products. Norman Weiss On Saturday , March 21 , Stassi hit it lucky at Santa Anita. At a morning break on April 4 he had the employees called together in the assembly depart- ment by loudspeaker , announced that he finally had a winner, and handed a bank cashier's check for $ 150 to the Independent 's treasurer , Earl Hopson. On April 25 the Independent , Local 1010, and Respondent entered into a Stipulation for Certifica- tion Upon Consent Election in Case 31-RC-1073. The election was held May 6, 1969. E. The Discharge of Hector Padron Hector Minsel Cohen , who has adopted and is called by the name of Hector Padron, was born in Beirut and speaks several languages , including En- glish and Spanish . Though his English speech is rapid and fluent and his English comprehension is excellent, his ability to communicate is impaired by mispronunciation , by accent, and (possibly) by the injection of foreign words. Padron , an experienced spray painter, was hired in the spring of 1966. The other painters were Luis Sandoval, who had started with Respondent as a painter's helper in 1964, and Red, the painter lead- man. Later, Red quit , Orlando Molina was hired, and Sandoval was appointed leadman by the then superintendent, Jack Lannon. About 2 weeks after Stassi became superintendent in September 1967, Sandoval complained to him about Padron's con- duct and he continued to complain to Stassi about Padron to at least January 1969. Padron also vo- iced complaints to Stassi , with whom he had been friendly when both were production workers, about Sandoval. Padron complained that Sandoval was taking all the good jobs for himself and Molina was giving Padron all the difficult ones, and voiced the somewhat contradictory complaints that Sandoval would not talk to him and he should not be required to take instructions from Sandoval because Padron 's knowledge of painting was so much greater than that of the leadman . The situa- tion in the paint department in 1968 was aptly described by Stassi as: "Nobody liked anybody. Everybody was mad at everybody ." On several oc- casions Stassi called all the painters and helpers into his office "to pacify them as well as I could." Sandoval testified that at these meetings: Stassi was telling us that we should be more companionable among ourselves and try to get along . Just because we were Latins , we should have been able to get along much better than usual . He was advising us to get along in the best personal way. At some time in the summer or autumn of 1968 Padron was discharged by Stassi, who testified: Q. Did you call him into your office? A. Yes. Q. And what did you tell him at that time? A. [ told him I was going to fire him. Q. What did he say? A. He wanted to know the reasons for the dismissal. 0. Did you tell him? A. Yes, I told him. Q. What did you tell him? A. I told him because his rejections were too high and the fact that he would not take orders. Q. And what did he say at that time, if anything? A. He asked for another chance. Q. And did you give him that chance? A. Yes. The occurrence is more graphically described by Padron: Stassi had some argument with me . I don't know what its for. Oh, I think something and they had dirt. And I paint the second time, and really dirty you know. It's got dirty- it comes out so dirty, you know .... I tell him , "It's no my fault ... I don't mix the paint . Tell the leadman . He the one that mix the paint ...... So I used the same paint Sandoval gave it to me, and still Stassi didn't like the color, but it wasn 't really good for the color . So this-Stassi at this time, I don't know what he had in mind. Anyhow he is disgust with me , and he said, "No, you erase." So I raise my voice. So I discussing-so he got so mad at me he said ... he said "Ho, ho , ho. Don 't holler at me. Don't"-he say, "I never say this . This is the way I talk." So he say, "You through over here." Just like that. So he called take my card , punch me out, and say "You through." You know fired. Later the same day Sandoval , Padron, and Molina were called to Stassi 's office and given a lecture about cooperation and getting the product out and Padron testified that he was told : "Come back to work and forget about it .... Please come back to work and be all together. Be nice , Forget about it." On one occasion Padron was called to Weiss' of- fice by Stassi . Padron placed the date as 2 days fol- lowing the discharge and rehire by Stassi. Weiss and Stassi place the date as early January 1969. Weiss testified: Mr. Stassi said that Mr . Padron was still not taking orders or instructions from his leadman, Mr. Sandoval . Mr. Stassi also stated that Padron was not giving us the quality ; it was still marginal. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Padron] said that he would make efforts to improve the quality of his work and he also stated that he would take steps to cooperate with his leadman. 0. Did you say anything at that time? A. I-at that time, I told Mr. Stassi , in front of Mr . Padron , that if there were any more oc- currences in which Padron did not take orders from his leadman , that he was supposed to be discharged immediately. Q. Was there anything else that you said? A. Not that I recall. Q. Was there anything said about this warn- ing being final or not? A. Yes, I had told Mr. Stassi that this was the last time that I wanted to hear anything re- garding the insubordination and not taking or- ders regarding Padron , and that the next time, he would have to be discharged. 0. And was Mr. Padron present at the time? A. He was standing right next to me. Stassi testified that upon receiving a complaint from Sandoval that Padron would not take orders he took Padron to Weiss ' office where he told Weiss that Padron would not take orders and his paint work was rejected , that Padron said he was going to do better, and that Weiss said that this was Padron 's last chance and the next time to fire him. Stassi further testified that there was nothing of value to him in the meeting and "Most everything else went through me as far as conversation was concerned." Padron testified: Mr. Stassi wanted first to keep all the talking. He no wanted me to talk . The other way he told something-I told him-Mr. Norman first. He wanted to know what I hear. So he say he asking the other way to give me a chance to explain . So he said , "Only listen what Mr. Stassi told me." So this is what : I came hear all the story about the-and I don't like it . You have to go by the store. I am not talking about that. I thought it was seniority , and all the overtime, and like the time my leadman don't talk to me-I have to find out what job to do or something. And Mr. Weiss said to me he no believe in seniority . And I really said some words at that time-I am sorry . I don't want to say that here. So he said, so that way, " I don't believe in seniority." So what are you going to do? You see, the boss told you he don't believe in your seniority nor nothing. So at the same time I can't- everybody talk to me-accuse me, and I can't say a word. Q. Just relate what was said at the conversa- tion . Did you say anything at all? A. No. I tried to talk to him about seniority about my job and everything. He was just talk- ing nothing. He was just talking about general work he wanted to get out. He had some part he wanted to leave, and he wanted it to leave. 0. What did Mr. Stassi say? A. Stassi was-at that time Mr. Weiss was talking . Mr. Stassi listened. Q. Now tell us what Mr. Weiss said. A. First Mr. Weiss talked to me about the store-go to the store and buy something for each for $5 and you don 't like. You no like what you pay $5 for so you take and go another place. After that he said , " How you like working here?" I work here for three years, and I never had any complaint or trouble with me. So he said to me-so he said "What do you want to keep?" I ask, "How many troubles?" He said, "No, I never had any troubles and complaints with you . I want to keep you in that work . I want you to come back to work, and we work together" you see-you know what I mean. So the only thing I said when I was talking about my overtime and everything, he say he no believe in seniority. Q. Did anyone mention a strike? A. Yes sir, Mr. Weiss asked me the last word , " Do you know anything about a strike?" I say, "No." Padron specifically denied that he was accused by either Weiss or Stassi of disobeying any order of Sandoval , denied that Weiss warned him in any way, and denied that he was told this was his last chance or that he would be discharged if work and conduct did not improve. On another occasion, which was placed by Stassi about the end of 1968 and by Heath in early 1969, Padron and Sandoval were called into Stassi's office and Heath was called in at Padron's request. Neither Sandoval nor Stassi described the meeting. Padron testified that he was accused by Stassi of having too many rejects , Heath in Padron 's defense replied that Padron painted just like everybody else. Heath testified that he told Stassi that while Padron had quite a few rejects, other painters had rejects too, though not quite as many as Padron, and all painters had some good days and some bad days . The meeting ended with Stassi telling them all to go back to work and to try to cooperate with each other. The paint used by Respondent is quick-drying metallic enamel. The more expensive items which are marketed under the "Stantron" brand are painted in one or more of eight different colors. In- terior mounting angles in the Stantron product are WYCO METAL PRODUCTS painted black. "Wyco" items, a less expensive product, are painted either black or silver-grey hammertone. Final assembly of all "Stantron" items and of the larger "Wyco" items is under the supervision of Heath, who inspects the paint on each part before assigning it to an assembler. Heath returns to the painter for correction every part which does not come up to Respondent's standard. Parts are returned by Heath if the paint is too hard, too soft, shows a run, shows a bubble, has a mottled effect, or shows particles of dust on or under the surface. Since each painter signs his own work, each painter is required to correct his own errors. Correction is effected by rubbing the bad spot or spots with a fine grain sandpaper and repainting. Each such return is called a "reject." Six witnesses in this proceeding gave their esti- mates of the number of rejects in the work of each of the three painters during the year immediately preceeding the discharge of Padron. Sandoval's estimate was: Padron, 70 to 100 percent rejects, and Molina and Sandoval, 10 to 20 percent rejects. Padron's estimate was: Padron and Sandoval, 3 to 5 percent rejects, and Molina, 20 percent rejects. Stassi 's estimate was: Padron, 20 to 40 percent re- jects, and Sandoval and Molina, 5 to 6 percent re- jects. Heath's estimate was: Padron, 70 percent re- jects, Molina, 40 percent rejects, and Sandoval, fewer rejects than Molina. Suarez testified that Padron painted only silver-grey hammertone "- Wyco" items and that 50 to 75 percent were re- jects. Molina testified: "Almost always they returned all the majority of the pieces that [Padron] was painting." Most of Padron's difficulty occurred with the blue Stantron products and in mid-January, after the meeting with Weiss and after the meeting at- tended by Heath, Stassi instructed Sandoval to restrict Padron to black enamel. From that time until the date of his discharge there was no com- plaint about his work or his conduct. On Wednesday night, March 12, Sandoval telephoned Stassi and said that he would not be in the next day. Stassi testified that on the following morning, March 13, he gathered Molina, Padron, and their helpers together and announced that San- doval was out that day, that Molina would be acting leadman and to take orders from him as if they were taking orders from Sandoval. All nodded their heads. Stassi continued: Q. Now, what happened during the day after that? A. Mr. Molina came into my office and told me that there were some rush orders that had to be gotten out, and he had asked Padron to paint them and he would not take his orders. 0. What did you then do? A. I immediately went into the paint shop and I told him that I wanted him to do them, and he started to give me an argument. And then, at that time, I says, "O.K., you go ahead and start on the black." 911 Q. Now when you say he "gave you an argu- ment," what did he tell you? A. Just the same thing, that he was a better painter than Molina or Sandoval and ... he didn't think or didn't feel that he should take orders from an inferior painter. 0. Did you tell him that he should take those orders? A. Absolutely. Q. What did he say? A. As I said, he gave me a little problem as to what-and I just walked off on it. Q. What did you then do? A. I said, I put him back on the black, and I went back to my office and decided to let him go. Q. And did you talk to him that day, later? A. No, except for the fact to "See me in my office." Q. And when he came into your office, did you have a conversation with him? A. No-well the conversation I had with him was to the fact that I was letting him go because he would not take orders. Q. Did he say anything? A. He said nothing, no. Orlando Molina testified: Q. Now in the morning of the day that Padron was fired, did Mr. Stassi have a talk with the painters in the paint department? A. Not that I should remember. Q. Did he say anything to you and to Padron? A. The only thing that Mr. Stassi said was that I should representing Luis Sandoval, because he wouldn't be there during that day. Q. Was Padron present when Mr. Stassi said that? A. All of us were there. 0. Now in the course of the day, did you give Padron any instructions? A. In the morning. Q. And what did you tell Padron? A. There were several parts to be painted, which they were needing at the assembly. I told Padron if he could paint those parts which were needed in the assembly, because I also was painting other parts which were also needed in the assembly. And he told me that there was no reason why he should be painting that. Q. Did he say anything further? A. That he was not going to paint that. He went out, and he brought in some frames, and he started painting them. Q. Now when he said he would not paint it, did he at all mention Luis Sandoval? A. He said, "Those parts have been started to be painted by Luis Sandoval first"-that he was not going to work on the pieces that had been started by Luis Sandoval. 0. What did you do then? 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. As they were in need of those parts, I could not do it at the same time , so I went to say to Mr. Stassi what I had told Padron, and that he did not pay attention to what I was telling him. Q. Did you tell Mr. Stassi what Padron had answered you? A. Yes. Q. After you told this to Mr. Stassi , what did you do? A. I went on painting. No helper was called to corroborate any of the foregoing, although at least two and possibly three helpers should have heard the announcement of Molina's new status , and Padron 's helper, at least, should have heard the conversation which Stassi had with Padron. Padron testified on direct examination that at 3:45 p.m. on March 13 Stassi told him to come to the office after he punched out at 4 : 30. When he entered the office Stassi was alone and they had the follwoing conversation: A. Well, the first thing he said, he said, "Hector, I really am sorry I have to do that, but you gave me a lot of trouble . I have to let you go ' I asked him again, "What for? For union ac- tivity?" He said , " You gave me a lot of trouble, and I have to save myself." So he take a check and give it to me. And I asked him again-he was discharging me for union activity? He said , "It's not going to be that." I said, "I see you in court." I asked him again , " Mr. Stassi , I see you in court." He say-again , he gave me the check, and go. Q. At the time that Mr. Stassi discharged you on March 13, did you have any conversa- tion with him regarding cards? A. Well,-well, those were union cards? Q. Yes. A. I said day before. Q. Did you have any conversation with Mr. Stassi at the time he was discharging you about the cards? A. No. On cross-examination Padron testified that on March 13 Stassi did not tell him that Molina was in charge , that Molina did not ask him to do anything, and that Stassi did not speak to him at all about work on March 13. He also testified that Stassi in the exit interview told him what Stassi meant by "a lot of trouble." Stassi was referring to the fact that on the day before Padron had lied when he said he did not have cards. Having some uncertainty about the testimony, I inquired: 0. On your last day when you were working for the company-in your last talk with Mr. Stassi , just that one time , did Mr. Stassi say anything about the cards? A. The last day? Q. The last day , when you were discharged. A. No sir. On redirect examination , after his recollection was refreshed by reading his pretrial statement, Padron testified that Stassi , in the exit interview, said "that somebody saw [Padron ] passing the union card and somebody take one of the cards and put it on his desk in the office , too, and this is the way he find out," and that Stassi also asked : "Well, yesterday, when I asked you about passing cards, did you lie to me?" Recalled on rebuttal , Padron testified that on March 12 he had been assigned by Sandoval to paint doors and sides of cabinets with blue metalic enamel and that he continued to work on this as- signment through March 13. On cross-examination he testified: 0. Now, you say that except to say "hello," or "hi, " to Mr . Stassi , he A. That's right. 0. Did he discuss your work with you at all that day? A. No sir. Q. Did you discuss your work with him? A. No, sir. I no talk to him that day. 0. Did he discuss with you anything about instructions? A. I say no. I no talk to him. Q. Nothing? A. Nothing. I almost say to him that one time that day-twice. 0. And the one time when you said "Hi"? A. One time when I told how much I paint that day and he walk away from me-and the punch clock. Q. When was this? A. The day I got fired . The day he discharged me. Q. Did you have a conversation with him about how much- A. I told him how much I doing a good job that day. I got that 14 frame . Yes, I told him about that that day. Q. Was this when he discharged you that you told it to him? A. That day he discharged me. 0. You told him you did 14 frames that day? A. That's right . This was about 12 o'clock. I told him that this one time I saw him , and I saw him again , the second time I saw that day, I said about 3:30 or 4 o'clock when he call me "Go see me in the office." After 4:30. Q. So now you tell us you did have a con- versation with him before 3:30? WYCO METAL PRODUCTS 913 A. He never answered me or say anything to me. I talk to him. I told him, "Stassi, this is what I did." I say, "This is a good work. I did it." I was thinking I do a good job and I told him. Q. And then it is your testimony that after you told him how much good work you did, he fired you? A. (No response) Q. Is that what you told us? A. I said I work-what I told him. Q. Did Molina at any time on March 13th tell you to do any work? A. No, sir. After Padron's discharge, Henry Austin, with whom he rode to work, reported to Respondent that about 2 weeks before the discharge, Padron stated to Austin: " I am going to bust Norman. I have won two of these cases and I will win this one." On cross-examination Austin testified that Padron also told him that Independent was a com- pany union and that Local 1010 would bring greater benefits including job classifications, seniority, and higher wages. F. The Discharge of David Magana David Magana was hired as an experienced power brake operator on April 14, 1967. Sometime in the fall of 1968 his machine jammed. Prior thereto a pulley on the machine had suffered a mal- function, with the result that the machine was not putting out its full-rated power. This fact had been reported to Stassi who had ordered a new pulley and an outside mechanic to install it, telling Gliha that since the machine was still working to keep on using it. As soon as the machine jammed, the fact was reported to Stassi. Shortly thereafter the mechanic appeared and replaced the defective pul- ley. Gliha, Whitton, and Magana, in the presence of the outside mechanic , unjammed the machine, breaking an essential part in the process, and putting the machine out of service for a period of about 2 weeks. It was repaired and restored to operation by another outside mechanic. When Weiss received the repair bill in December 1969 he told Stassi to discharge Magana. Stassi reminded Weiss that the labor market was very tight and it might not be possible to obtain a competent replacement. Weiss then agreed that Magana's discharge could be deferred, but wrote down the amount of the repair cost (about $700) on a sheet of white paper and told Stassi to show it to all per- sons concerned. Stassi gave the paper to Gliha, with instructions to show it to Whitton and Magana. In February 1969 Magana's machine jammed again. It was released by Stassi and Whitton without damage. Magana met with the Local 1010 representative at the restaurant on March 4 and spoke in favor of Padron's proposals at the meeting in the Auto Wor- kers hall on March 11. At 3:30 p.m. on March 13, Magana punched out, went to the telephone company where he made a deposit to obtain a new telephone, and went home. Prior to punching out he had looked around the shop for Stassi and, failing to see him, had told Gliha that he had business to attend to and Gliha gave him permission to leave. Shortly before 4:30 (quitting time) Stassi asked Gliha where Magana was "because he wanted to talk to him about something real important." Gliha told Stassi that he had given Magana permission to leave. Stassi replied that Gliha had no such authority. Stassi had final checks prepared for both Padron and Magana and presented them to Weiss for signa- ture. Neither he nor Weiss could remember whether the checks were presented at the same time. As to Padron, Stassi stated that Padron had again refused to follow orders. Stassi gave Weiss no reason for the discharge of Magana. Stassi at 4:30 p.m. telephoned Magana's home, spoke to his sister, and left word for Magana to return the call as soon as he arrived. Magana received the message about 5:30 p.m. and called Stassi who said there was an emergency and he had to see Magana right away. Magana drove directly to the plant where he was met in the parking lot by Stassi. Magana testified: Q. Well as we walked over to his office, I don't think he started talking right away, but as soon as we got in the office, he says, "Well, David, remember that mess we had about three-four or five months ago about the brake breaking down?" or something like this. I said, "Yes." "Well, Norman just got a bill for an awful lot of dollars, and he's madder than hell. And I'm sorry, but I will have to let you go." And-well, I was stunned. I didn't know. And he says,-he mentioned something about, "Look at me. I being a mess. You are in the act of going now, so I be in a mess." 0. Did you say anything to Mr. Stassi? A. Well, he mentioned Hector. I knew that it was something about the Union deal, and that's what I said to him, "You know this is not for the brake. This is for the union deal." And he acted surprised. And he says, I don't know about the union. I don't know what you mean. Q. Did you say anything else to Mr. Stassi? Did he say anything else to you? A. Well, not-not-oh, he asked me too, where was I at quitting time. I answered that I had to go earlier, and that I had talked to Ray Gliha about it. He didn't say anything else. Stassi testified: A. I told him I was going to have to let him go because I did not allow anyone to leave the premises without my permission-or George Suarez'. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0. Now had you spoken to George Suarez that day? A. Yes. 0. What did Suarez tell you? A. He said, "No," he hadn't seen him. 0. Now what did Magana say when you told him that you were going to let him go? A. He didn't say-what did he say? I don't recall him saying anything. He kind of laughed and I handed him his check. Q. Did he mention anything about having permission to leave? A. He said that he had permission from Ray Gliha. Q. Did you say anything to him about that? A. I said Ray Gliha has no authority to give permission of any kind. 0. Did you make mention of anything else at that time? A. I don't recall. On the same date on which he received a copy of the charge in Case 31-CA-1368 and an invitation from the Regional Director to state Respondent's position, Mr. Weiss replied: Magana was employed as a power brake operator. During his employment, he was directly responsible for damaging a power brake requiring approximately $1,000 in repair work. In addition to the damage, this particular piece of equipment was "down" for over two weeks. This loss of 2 week production time cost this company approximately $1,000. Subsequently, despite instructions and guidance from our production manager, Magana "jammed" the same power brake twice. Fortunately he was intercepted before he took steps to "un-jam" the brake, so that additional damage was not incurred. Over and above the foregoing described damage, the quality of his work was marginal . This com- pany (small by all governmental standards) cannot afford destruction, intentional or unin- tentional, of its equipment for all the obvious reasons. Weiss testified that he first learned from Stassi in April 1969 that Magana had been discharged for leaving the shop without Stassi's permission . Stassi testified and Weiss denied that he and Weiss talked about the original charge on the day it was received. In his brief to me Respondent's counsel states: "David Magana, a power brake operator, was discharged by the Respondent on March 13, 1969 for absenting himself from his work during the day without first obtaining permission." On May 9, 1967, there was posted on the bulletin board by the timeclock the following notice: 1. Any employee who incurs an injury, while on the job, during work hours, and requires medical attention: A. Must see Rose Padilla for first treatment. If Rose Padilla is not present, see George Suarez. B. If Medical treatment by a doctor is required, the employee must receive permission from the plant superintendent before leaving the plant to receive medical attention. C. The first visit required to obtain medical treatment for an injury incurred on the job will be "on company time". D. Any and all visits to the doctor, after the first visit for an injury incurred on the job, is on the employee time. If the employee leaves the plant premises to go to the doctor: 1. He must receive permission from the plant superintendent or George Suarez. 2. He must "punch-out" and "punch-in" on his time card. 2. The above must be adhered to-there will be no exceptions. 3. Any employees who leaves the plant premises without permission during the work- ing hours-will be subject to discharge. Stassi testified that the notice was posted because prior thereto when employees had an accident they would just say they didn't feel good and would leave the job. "They wouldn't ask me. They would ask their leadmen or just leave, period." The purpose of posting the notice was to the fact that no one could leave without my per- mission, and also the fact that if they had to go to the clinic for the second time, they would have to go on their own time. Stassi further testified that since May 9, 1969, only two employees had left without his permission and that both had been discharged. His description of the incidents demonstrates that both were volunta- ry quits. Well, Kimmich walked right out in front of me, and I told him to do "something." So that happened right there. As far as Lowe was con- cerned, he evidently checked out at lunch time or thereabouts,and never showed up again. Gliha testified that he had authority .to release employees and had exercised that authority in the case of Whitton, Barr, and Bogues. Later he would tell Mr. Stassi . Whitton testified that in July or Au- gust 1968 while he was at home for lunch an emer- gency came up and he returned to the plant and told Gliha that he had to go back home. He did not see Stassi . He did not work the remainder of that afternoon and nothing was said to him. On a Satur- day toward the end of summer 1968 Whitton got sick and went home with only the permission of Gliha. Suarez was in the plant, although Stassi was not usually there on Saturday. Geeter, a witness for the Respondent and whose testimony is generally reliable, testified that in September or October 1968: I was putting away some stock over there, because the thing was-I didn't have nothing to spot weld, so I asked my leadman [Kelly] could I go home. So he told me to put away WYCO METAL PRODUCTS some stock there, and if I wanted to go, I could go. Stassi testified that the reason he called Magana's home at 4 :30 p.m . amd asked him to return to the plant was to avoid payment of "call in " time the following morning . Although the same contract provision was in effect when Kimmich and Lowe walked out early, neither was recalled by Stassi. Gliha testified and Stassi denied that on March 14 Stassi stated that Magana had been discharged for damaging the brake. Whitton testified and Stassi denied that on March 14 Stassi told Whitton that Magana had been discharged for damaging the brake. G. The Discharge of Harry Barr Barr was hired October 18 , 1967, as a helper and became the shear operator in November or December 1968. He was president of Independent in November and December 1968. He attended the March 11 meeting in the Auto Workers hall and signed a Local 1010 card at the invitation of Chester Whitton. Barr testified that on March 1 1 or 12, Stassi, holding a Local 1010 card in his hand and in the presence of Chilton, asked Barr if he had signed such a card . This testimony was contradicted by Stassi and by Chilton. Barr testified that on March 18 , during working time, Heath asked him to sign Heath 's petition and that Barr refused, ask- ing Heath how he could do this on company time and why Local 1010 could not have the same privilege . Heath and Barr agree that the only thing Heath said was " sign it if you want to sign it." Barr did not sign . Barr testified and Stassi denied that as Heath was walking away Stassi walked up and Barr inquired. I asked Mr. Stassi if another employee that was on working time could come around with a petition like this during working hours while I am working on my shear . And Mr. Stassi said to me, he said something like this-maybe some kind of wise crack-I don't exactly re- member what it was, but he said that, "They are on salary. So it is none of your business." Barr testified that during breaktime on some date between March 16 and 19, Stassi, addressing Gliha, Whitton, and Barr, said "There 's the three troublemakers, and if you don't like it here, why don't you go find another job." One of Barr 's duties was to transport sheet metal from the steel warehouse to the shear which he operated. The warehouse is a room about 100 feet long and 35 feet wide. One end of the room opens onto a loading and receiving truck dock. At the other end of the room is a sliding steel door which gives access to the production area . A steel " I" beam attached to the ceiling extends the length of the room from the truck dock to the wall which is pierced by the door opening . The crane mechanism contains an electric motor by which it is propelled from one end of the 915 beam to the other and which operates a winch to which is attached a steel cable. The crane hook hangs on a swivel from a pulley block . The pulley wheel is about 1 foot in diameter and its axis is parallel to the beam . Thus the hook is free to swing pendalum fashion parallel to the beam , but cannot swing in any other direction. Suspended from the hook by an "eye" bolt is the sheet hoist. The swivel permits the sheet hoist to be rotated over 360 degrees , and the hook permits it to be tipped in any direction. Directly under the "I" beam are seven piles of 4- foot by 10-foot sheet metal . The sheet steel is in bundles, pound by steel bands to wooden pallets. The sheet hoist is so designed that it holds the en- tire bundle in a firm grasp when the lifting mechanism is activated . Aluminum sheets, on the contrary , rest loosely on a different type of pallet called , very appropriately , a "skid board" and between each two sheets of aluminum is a sheet of paper . The sheet hoist grasps the sides of the "skid board" firmly but does not touch the aluminum. When the "skid board " with its load of aluminum sheets is raised there is no mechanical restraint to prevent them from sliding off the end of the "skid board." The long axis of the piles of sheet metal is per- pendicular to the "I" beam . On March 24 Barr at- tached the sheet hoist to a "skid board " on which was piled 20 sheets of aluminum. He pushed the "lift" button to raise the load. He then pushed the forward button and, steadying the load with one hand, walked with the crane toward the shear table. Before the load reached a point directly above the shear table , he turned the load . Prior to turning the load the long axis of the metal was perpendicular to the beam . After the load was turned , its long axis was parallel to the beam. When the load was directly above the shear table, Barr removed his finger from the "forward" button. The mechanism on the "I" beam stopped. The load, governed by in- ertia continued to swing forward. On the back swing of the pendalum , the upper sheets of alu- minum , governed by their inertia, and insufficiently restrained by friction, continued to move forward, changing the center of gravity and causing the "skid board" to tip. The result was that the sheets of aluminum descended like a pack of cards onto the table, across the pedestrian passage , and against the door. As the load started to fall, Barr, to avoid inju- ry to himself, jumped back. Weiss, hearing the noise , emerged from his office, saw the mess, and told Chilton who was standing nearby to call Stassi. After telling Stassi to take Barr off the shear, Weiss returned to his office and shortly thereafter told Stassi to discharge Barr. Barr worked on a punch press for the remainder of the day and was discharged at 4:30 p.m. by Stas- si. H. Concluding Findings 1. Respondent's superintendent , George Stassi, 427-258 O-LT - 74 - 59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did on March 12, 1969, interrogate employees con- cerning their union activities . Interrogation of Du- part and Padron is admitted . Stassi testified that he suspected that a contraband item , i.e., discount house cards , was being distributed . This may be true, but I am convinced that Stassi , being a man of energy and determination , enjoying first-name rela- tions with the workmen in the shop, and suspecting the existence of contraband , did not abandon his investigation until he determined what that con- traband was . By 4:30 p.m. on March 12, George Stassi knew or suspected that Padron was soliciting membership in an outside union and that Magana was implicated in this activity. 2. Respondent did not threaten employees with discharge if they solicited for Local 1010. The General Counsel relies on the following testimony of Leadman Raymond Gliha: On March 12 or 13, 1969, Stassi came up to the punch press on which Gliha was working . Stassi had a local 1010 authorization card in his hand and asked if Gliha had ever seen one of these cards be- fore. And I said, "No." Like I had never seen one. And he said to me, he said, "Well, if I ever catch anybody passing these out , I will fire him on the spot." Stassi denied ever having made any such state- ment, and asserted that to the very time of his testimony in this proceeding , September 11, 1969, he had not seen a Local 1010 card . I am not per- suaded either by Gliha's assertion or by Stassi's denial. Gliha's testimony on rebuttal , that Stassi himself had brought discount cards into the shop and instructed Gliha to "tell the guys they can have these," was singularly unpersuasive . I do not be- lieve that Stassi , with his long and varied ex- perience in the sheet metal manufacturing industry, would conceal his unlawful intent not only from all other employees but from Weiss himself, yet freely disclose it to Gliha. 3. Stassi did not tell employees that they should quit their jobs with Respondent if they supported Local 1010. Stassi freely admitted that on many oc- casions he has told complaining employees, includ- ing Gliha , that "if I [Stassi ] didn't like it, and if it made me sick working here, if it was me I wouldn't work . I would leave." This remark was made in substance to Gliha , Barr, and Whitton during a lunch period sometime between March 13 and 24. Gliha testified that on this occasion Stassi , walking by and addressing all three, said, "Why don't you leave if you don't like working here ?" Barr then said something to Gliha about the Mafia , and Stassi wheeled around saying, "If you are saying that to me I say I will punch you in the mouth." Barr testified that on this occasion Stassi said : "There's the three trouble makers. And if you don't like it here, why don't you go find another job some place else?" Barr turned to Gliha and said , "Well, the Mafia." Stassi then looked at Barr and said , "If you say anything about me , I will punch you right square in the mouth ." Whitton testified on direct examination that Stassi said : "Well, I see there is the Mafia trying to organize . Why don 't you boys give up . If I was y 'all and I didn't like it here, I would just quit." On cross-examination Stassi's words changed to "if you don't like it here why don't you quit?" Finally on redirect examination Whitton added the detail: Harry Barr said something to Mr. Stassi as he was walking off and Mr. Stassi turned around and said , "What?" and Harry Barr said he didn't say anything . And [Stassi ] said "If you do, I will come back there and punch you in the mouth." I conclude that Stassi's recollection is the more reliable, in view of the obvious contradiction in the testimony of the General Counsel 's witnesses and the general unreliability of the testimony of Barr and Whitton . Stassi 's remark , though noncoercive, does constitute evidence of attitude and motive and is given weight in the 8 (a)(2) and ( 3) determina- tions hereinafter made. 4. Respondent did not threaten employees with reprisals nor tell them to quit their jobs with Re- spondent if they did not agree to prematurely open and extend Respondent's contract with Inde- pendent. The sole evidence tendered in support of this allegation is the testimony of Whitton. Whitton testified that at some time which was either shortly before or shortly after Heath circulated his petition, Whitton, noting a difference in the attitude of Weiss, stopped Stassi on his rounds and inquired whether Mr. Weiss was mad at him. Somewhere in this conversation or in some other conversation Stassi "asked me when I was going to draw up a contract with Mr. Weiss, and I told him I didn't want to draw it up because they had laid Mr. Magana and Mr. Padron off and we didn't have a president or no secretary or treasurer . . . . He said `Well, if you don't want to draw up a contract, why don't you resign and let somebody else take over?' . . . They just said that Mr. Weiss wanted to draw up a contract because he was going to the hospital." Although Stassi's all-embracing denial is less than convincing-he not only denied that the conversa- tion occured, he denied that any conversation oc- curred, denied knowing who any officer of the Independent was, and denied knowing that the Independent had a contract- I find Whitton's recital unconvincing. If Stassi's investigation had been sufficiently complete to disclose the fact that Padron and Magana were engaged in union activ- ities, and I find that it was, that same investigation would have disclosed Whitton's deep involvement and rendered such statements highly unlikely. Further ground for viewing Whitton's testimony with grave misgivings is supplied by his pretrial affidavit. This statement signed March 26, 1969, recites: "Kelly told me that Weiss wanted to negotiate a new contract with new officers because WYCO METAL PRODUCTS Weiss was going into the hospital." In contains no reference to the highly significant statement which , on the witness stand , he attributed to Stassi, although in the same statement Whitton asserts that he overheard Stassi ask Dupart whether (Dupart) had signed a card. 5. Heath did prepare and circulate a petition, partly during working hours. Stassi was aware that Heath was circulating a petition and neither granted nor refused permission , consent, or author- ization. Respondent has no rule prohibiting union activity on company time and Heath 's activity did not interfere in any way with his performance of his normal duties nor did he interfere with the work of any other employee . In not forbidding this activ- ity by Heath , Respondent committed no unfair labor practice. Stassi testified that he did not know that the peti- tion was being circulated , that the first knowledge he had of it was when it was handed to him by Heath on the evening of March 18, and that he had no conversation with Heath on that occasion. The fact that Heath undertook the project because of the "confusion " and "commotion" in the plant, which must also have been apparent to Stassi, and the fact that Heath carried a clipboard throughout the plant during four rest periods , when Heath was not normally working and Stassi was normally present, must have aroused some curiosity in Stassi. Weiss on March 18 had received a copy of the charge filed by Local 1010 , had talked it over with Stassi , and had composed his reply to the Regional Director . As found above there was nothing im- proper or unlawful in Heath 's actions, of this activi- ty is an additional ground for questioning the general reliability of his testimony. 6. The contract signed March 27, 1969 , was not a premature extension of the 1955 agreement. The 1955 agreement would have been automatically renewed for a period of 1 year , absent notice given and received prior to April 1. It is true that by the supplemental agreement of 1966, if the basic con- tract had been renewed , it could have been reopened for wages only at least 30 days before June 30 , 1969, but this did not mean that renegotiation of the entire contract in March was in any sense premature. Counsel for Local 1010 argues that Respondent's execution of a contract with Independent on March 27, 1969 , violated Section 8(a)(2) on the authority of the Midwest Piping2 line of cases . This argument fails on two grounds: ( 1) The complaint does not allege a Midwest Piping violation ; and (2 ) the peti- tion in Case 31 -RC-1062 having been filed during the "insulated period " prescribed in Leonard Wholesale Meats, supra, it did not create a "real question concerning representation" as defined in Shea Chemical Corporation , 121 NLRB 1027. 917 7. The $150 presented to Independent by George Stassi in April 1969 was a "contribution of financial and other support" to a labor organization in clear violation of the specific terms of Section 8(a)(2) of the Act. When Independent in the summer of 1968 voted to distribute its funds, and the funds were in fact distributed , that money became the separate property of specific in- dividuals . Certain individuals gave their own money to Stassi to invest . Stassi 's obligation , if any, was to those individuals. He owed no duty , moral or other- wise, to Independent or to its treasury . The method chosen by him to make a present to Independent, i.e., calling all employees together by loudspeaker in the department presided over by Independent's president and publicly presenting a check to Inde- pendent 's treasurer, was an open demonstration that this was not the act of an individual but the act of Respondent itself. This action by Stassi at a time when Independent was engaged in an election con- test with Local 1010 is strong evidence that Respondent was prepared to go to any lengths to encourage membership in Independent and to discourage membership in Local 1010. 8. Hector Padron was discharged on March 13, 1969, because of his activities on behalf of Local 1010, and because of his activities against Indepen- dent , and for no other reason. It is true that Padron was the least efficient of Respondent 's three paint- ers. It is also true that he resented the fact that he was required to take instructions from Sandoval. It is true that he had been warned by Weiss that any refusal to take orders from Sandoval would result in his immediate dismissal . Padron did not after this warning refuse to take orders from Sandoval. Padron 's work , restricted as it was by Stassi and by Sandoval to black , was entirely satisfactory. Padron 's attendance was perfect. Stassi, having de- cided to discharge Padron in an effort to discourage further activity on behalf of an outside union, took immediate advantage of the opportune absence of Sandoval . Stassi told Molina, but told no one else, that Molina "should be representing" Sandoval. Although Padron's denials , like Stassi's, are far from convincing , in this instance I do credit Padron's testimony that Stassi did not tell him that Molina would be in charge . Any such announce- ment would have provoked an immediate outburst. Padron would not have meekly bowed his head and immediately thereafter, with Stassi 's words still ringing in his ears , deliberately disobey Molina. I believe that Molina answered truthfully when he testified that Stassi did not "have a talk with the painters in the paint department" and that he was untruthful when two questions later he testified that "all of us were there " when Stassi said that Molina should be representing Sandoval . I credit Molina's testimony that about 9 a.m. he requested Padron to finish some parts which Sandoval had started, and 2 Midwest Piping and Supply Co., Inc , 63 NLRB 1060. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Padron refused . Padron was carrying out or- ders which he had received the previous day from Sandoval . To change jobs on the instruction of a fellow employee , with neither actual nor ostensible authority , would have subjected Padron to the risk of immediate discharge . I credit Stassi 's testimony to this extent: that when Molina reported that Padron had refused to obey , Stassi immediately asked Padron whether this was true . When Padron began to lecture Stassi to the effect that Molina should not be giving him orders , Stassi was satisfied that he had attained his objective . Stassi told Padron to go on with the black ; i.e., continue with the work to which he had been assigned by San- doval . Stassi then had Padron 's check prepared and gave it to Weiss with the simple comment that Padron had again refused to obey an order. While Padron 's testimony on rebuttal that he was working on blue Stantron products on the day of his discharge , and told Stassi what a good job he was doing, is wholly incredible, and tends to cloud all of his prior testimony , I am also unable to credit Stassi 's testimony that Padron "said nothing" when handed his final check or checks . This combined with Stassi's too facile denial that he knew anything about any union activity until he was shown the letter from Padron and Magana on or after March 20, his denial that he had seen a Local 1010 card prior to September 11, 1969, his denial that he knew who were the officers of Independent , and his denial of knowledge of the very existence of the In- dependent contract tends to cloud his testimony. I do credit the testimony of Austin (denied by Padron ) that Padron said he would "bust Norman." Since this was not reported to Respondent until after Padron's discharge , it could not have motivated the discharge. I further find that this re- mark and the attitude that it discloses does not make Padron ineligible for reinstatement . The re- mark was made in conjunction with Padron's ef- forts to persuade Austin of the desirability of ad- herence to Local 1010, and if meant in the sense of putting Wyco out of business would have defeated Padron 's objective of obtaining better working con- ditions for all employees . I am convinced that Padron , by the words "bust Norman," meant only that he intended to break through Weiss ' resistence to any change in working conditions. 9. David Magana was discharged because Respondent knew or suspected that Magana was in- volved in the concerted activity in favor of Local 1010 and opposed to Independent. The contention that he was discharged for leaving work early without having obtained permission from Stassi is an after-invented pretext designed to cover and conceal the real reason for the discharge. I find that the primary purpose of the posted rule was to ensure that some responsible official of Respondent have immediate notice of any industri- al accident, and a secondary purpose was to avoid paying employees for unnecessary trips to the clinic . There was no inflexible rule that no em- ployee could leave without the prior permission of Stassi or Suarez. Stassi 's own description of the cir- cumstances under which Kimmich and Lowe left demonstrates that these were voluntary quits. The contract does provide for call-in pay , but this clause is not applicable to a discharge for cause. The casual and offhand manner in which Kelly told Geeter he could go home is fully corroborative of the testimony of Gliha and Whitton that leadmen did have and exercised that authority . Stassi was "angry" and "mad" ( his words ) not because Magana had left early and not because Magana had failed to obtain his prior permission . Stassi was "angry " and "mad " because he had been betrayed by a man whose job he had saved at considerable personal risk. Stassi had received clear and specific orders from Weiss to discharge Magana. If the jamming of Magana's machine in February had resulted in monetary damage , it is certain that Weiss would have held Stassi personally responsi- ble. Since Respondent concedes that Magana was not discharged for jamming his machine, and since the preponderance of the evidence demonstrates that he was not discharged for leaving the shop without permission , only one explanation remains. Magana was discharged because of his active participation with Padron in activities designed to change the bargaining agent of Respondent's employees. 10. Barr was discharged for culpable negligence endangering the bodily safety of himself, Chilton, Padilla, whose work station was nearby, and possibly other passersby and for no other reason. On direct examination Barr testified, I believe truthfully, that he started to turn the load before it reached the shear table in a position with its long axis parallel to the beam . After it was conclusively demonstrated by testimony , photograph, and dia- gram that this action positively invited accident, Barr on rebuttal completely changed his testimony. On rebuttal Barr testified that he carried the load to the shear table and brought it to rest in a position where the long axis was still perpendicular to the "I" beam , that only then did he turn the load, which, for some inexplicable reason , began to teeter and fall. He did refuse to sign Heath 's peti- tion, but as to the conversation on that occasion I credit the version of Heath . He had not presented the petition to Whitton because he knew Whitton was not interested . He had not presented the peti- tion to Gliha because he and Gliha did not get along too well. He did present the petition to Barr with the same statement that he made to every em- ployee , " read it , sign it if you want or don 't sign it." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent , as set forth above, occurring in connection with the operations of Respondent described above have a close, intimate, and substantial relationship to trade, traffic, and WYCO METAL PRODUCTS 919 commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices. It will therefore be recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the Recommended Order below, designed to effec- tuate the policies of the Act. CONCLUSIONS OF LAW 1. Wyco Metal Products is an employer within the meaning of Section 2(2) of the Act and is en- gaged in commerce and in business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1010, United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Electronic Cabinet Makers Independent Union is a labor organization within the meaning of Section 2(5) of the Act. 4. By discharging Hector Padron and David Magana to discourage membership in Local 1010 and to encourage membership in Independent, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 5. By contributing financial and other support to Independent, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 6. By coercive interrogation of employees, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that Wyco Metal Products, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating employees concern- ing union membership, activities, or sentiments. (b) Contributing financial or other support to Electronic Cabinet Makers Independent Union, or any other labor organization. (c) Recognizing Electronic Cabinet Makers In- dependent Union, or any successor thereto, as the representative of any of its employees for the pur- pose of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. (d) Giving effect to, performing, or in any way enforcing its contract dated March 27, 1969, or any modifications, extensions, or renewals thereof, or any other contract, agreement, arrangement, or un- derstanding entered into with Electronic Cabinet Makers Independent Union or any successor, relat- ing to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said labor organiza- tion shall have been certified by the National Labor Relations Board as the exclusive representative of Respondent's employees; provided however, that nothing in this Decision shall be construed to require Respondent to vary or abandon any wages, hours, seniority, or other substantive feature of its relations with its employees which Respondent has established in the performance of said contract, or to prejudice the assertion by employees of any rights they may have thereunder. (e) Discouraging membership in or activities on behalf of Local 1010, United Furniture Workers of America, AFL-CIO, or any other labor organiza- tion of its employees, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or con- dition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Hector Padron and David Magana immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them. Reinstatement shall be effected in the manner described in Chase National Bank of New York, 65 NLRB 827, 829. Backpay shall be com- puted in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military and Training Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended order. (d) Withdraw and withhold all recognition from Electronic Cabinet Makers Independent Union, or any successor labor organization, as the representa- 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of Respondent's employees for the purposes of collective bargaining, unless and until said labor or- ganization shall have been certified by the National Labor Relations Board as the exclusive representa- tive of such employees. (e) Post at its plant in North Hollywood, Califor- nia, copies of the attached notice marked "Appen- dix.-3 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 RECOMMENDATION AS TO THE DISPOSITION OF OBJECTION AND CHALLENGES It having been found that Wyco Metal Products did on April 4, 1969, turn over to Electronic Cabinet Makers Independent Union the sum of $150, it is recommended that the Board sustain the objection of Local 1010 and that the election con- ducted on May 6, 1969, be set aside. It is further recommended that the challenged ballots cast by Kelly, Padron, and Magana on May 6, 1969, not be opened and counted. 'In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order , and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Ap- peals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 4 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 31 , in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Governme t WE WILL NOT contribute financial or gther support to Electronic Cabinet Makers Indepen- dent Union, or any other labor organization. WE WILL NOT enforce or give effect to our contract with Electronic Cabinet Makers Inde- pendent Union, but will not take away any rights or privileges which the contract gives to employees. WE WILL NOT discourage membership in or activities on behalf of Local 1010, United Fur- niture Workers of America, AFL-CIO, or any other labor organization of our employees, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or condition of em- ployment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed in Section 7 of the Act. WE WILL offer to Hector Padron and David Magana immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them. WE WILL withdraw and withhold all recogni- tion from Electronic Cabinet Makers Indepen- dent Union, or any successor labor organiza- tion, as the representative of our employees for the purposes of collective bargaining, unless and until said labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees. All our employees are free to become or remain, or refrain from becoming or remaining, members of Electronic Cabinet Makers Independent Union or Local 1010, United Furniture Workers of America, AFL-CIO, or any other labor organization. WYCO METAL PRODUCTS (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850.