Southeastern Cast Stone, Inc.

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southeastern Cast Stone, Incorporated and North Carolina Laborers' District Council , affiliated with Laborers' International Union of North America, AFL-CIO. Case I I -CA-4024 officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION September 22, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 25, 1970, Trial Examiner Herzel H. E Plaine issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Southeastern Cast Stone, Incorporated, Kinston, North Carolina, its ' We do not adopt, or rely on, the observation set forth in fn 11 of the Trial Examiner's Decision Moreover, Respondent has excepted to the Trial Examiner's finding that President Fred Adams "began counter- campaigning in late July, 1969 " Our rejection of that finding, and of the observation in fn 11, does not alter our agreement with the Trial Examiner's conclusions and recommendations. ' These findings and conclusions are based , in part, on credibility determinations of the Trial Examiner to which the Respondent has except- ed The Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) HERZEL H. E. PLAINE, Trial Examiner This is a proceeding charging the Respondent with violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act)' Complaint was issued November 19, 1969, on a charge by the Union (the Charging Party) filed with the Board October 13, 1969, amended charge filed October 22, 1969, and second amended charge filed November 17, 1969. There are two principal issues. First under the pleadings and proof, the Respondent has conceded that it discharged from its employment William Dunn for engaging in union activity. However, Respondent contends that Dunn was a supervisor, rather than an employee, within the meaning of the Act, and therefore not entitled to the protection of Section 8(a)(3) of the Act, as contended by the General Counsel. Hence the status of employee Dunn as either supervisor or rank-and-file employee is at issue Second, it is the contention of General Counsel, denied by Respondent, that, in violation of Section 8(a)(1), Respondent engaged in unlawful interrogation of employees concerning their union membership and desires, threatened reprisals if they attended union meetings and if the Union came into the plant, and promised better vacation schedules and granted paid holidays for the purpose of undermining the Union's organizational campaign Essentially, the events and statements out of which these charges emanate are not disputed by Respondent, but their alleged coercive nature or unlawful purpose is disputed and gives rise to the second issue. The case was tried on March 17, 1970, at Kinston, North Carolina Counsel for the General Counsel and for the Respondent have filed briefs Upon the entire record of the case, including my observation of the witnesses, and after due consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a North Carolina corporation engaged at Kinston, North Carolina, in the manufacture and sale of prestressed concrete panels, sometimes referred to as cast stone, used in the construction of buildings Annually, Respondent receives raw materials and products, valued in excess of $50,000, directly from points outside North Carolina. ' Under Sec 8(a), "It shall be an unfair labor practice for an employer-(I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization 185 NLRB No. 99 SOUTHEASTERN CAST STONE, INCORPORATED Respondent is, as it admits , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is, as Respondent admits, a labor organization within the meaning of Section 2(5) of the Act. If. THE UNFAIR LABOR PRACTICES A Status of Employee Dunn I. The business operation and Dunn's function At the times in issue, i.e , prior to the discharge of employee William Dunn, October 10, 1969, Respondent conducted its operation at Kinston with about 30 rank-and- file employees, according to the undisputed testimony of Dunn These 30 men were engaged primarily in unskilled hand labor, according to the testimony of General Manager Roland Paylor. Beginning in July 1969, Respondent had, if its version is accepted, II supervisors, 6 of whom were called foremen, for the approximately 30 unskilled laborers In order of rank (or chain of command, to use General Manager Paylor's phrase), President Fred Adams was the overall production manager,3 Paylor was general manager, Harold Davis was plant superintendent, Jim Tucker was assistant plant superintendent, Phil Stroud (former plant superintendent replaced by Davis and reassigned) was in charge of all outside work, J B. Jackson (former assistant plant superintendent replaced by Tucker and reassigned) was directly responsible for the production items in the plant and was foreman of the carpenter shop, and there were five others classified as "foreman" (without testimony purporting to rank them) These were shop foreman Bobby Bird, yard foreman Lee Mitchell, casting foreman James Outlaw, fabricating or steel foreman William Dunn, and foreman Cleveland Cornegie For the purposes of this case, the General Counsel attacked only the claim of Respondent that Dunn was a supervisor within the meaning of the Act (although the attack cast some doubts on the validity of the claim for some of the others designated foreman'). According to its president, Fred Adams, Respondent and tour other companies, also engaged in the cast stone business at four other locations in North Carolina, are owned in common by four Adams brothers All five plants are under the common management of Adams United Corporation, a management company formed by the five operating compa- nies and staffed by the several Adams brothers None of the other four operating companies , or the management company, or the Adams brothers, were named respondents in this case He served in this capacity also for the other four North Carolina plants, owned and managed by the Adams' interests, see fn 2, supra, employing, with the Kinston (Respondent 's) plant, a total of 125 employ- ees All other supervisors mentioned served only the Respondent, at Kinston There was only meager testimony regarding the nature of the work and pay of foremen Outlaw and Mitchell , a little regarding foreman Jackson, and none regarding either foreman Cornegie , who was identified as a foreman in 1968 and in the early summer 1969 meeting of management and the employees (infra), or foreman Bobby Bird, who was mentioned as among the foremen and others who attended the production meetings inaugurated by Respondent in July 1969 689 Respondent manufactured its concrete panels mainly in- plant, with a crew of 12 employees, known as the casting or precasting department.-' The precasting department mixed and poured the concrete into wooden forms (made in the carpenter shop), inserted the reinforcing wire mesh and steel bars, and attached the metal plates and anchors bolts (designed for joining the panel to the ultimate building construction). The panels were then moved into the plant yard for finishing, storing, and shipping Employee Dunn was a part of the precasting department, where his prime function was cutting and bending the wire mesh and steel rods and inserting them in the concrete panels. As Assistant Plant Manager Tucker explained the manufacturing process, the precasting men would pour a few inches of concrete into a form, Dunn would insert the reinforcement, and the precasting men would then pour the rest of the concrete over the reinforcement If Dunn needed help, said Tucker, it was only for bending the reinforcement to fit in the form Frequently, said Tucker, Dunn would go to the blueprints to see what he had to have to make a piece of wire fit into the form Dunn's function was referred to as reinforcing or fabricating, and Dunn performed the task usually in a small open area or room called the reinforcement area or steel room, adjoining the area where precasting was performed. Dunn was the only man regularly assigned to reinforcement or fabricating and it occupied no more than 75 percent of his tifne When not so occupied he spent the remainder of his time doing other chores in the precasting department, such as helping put the anchor plates in the concrete panels, or carrying wood forms from the carpenter shop According to Dunn, most of this 25 percent of his time he spent with Foreman (and former assistant plant superintendent) Jackson, who according to General Manager Paylor was the foreman directly and immediately concerned with in- plant production, and sometimes with foreman James Outlaw whose job, said General Manager Paylor, was to see that concrete was properly placed in the forms and vibrated and troweled Dunn testified that Outlaw, like himself, worked manually all of the time.6 In his prime reinforcement function, Dunn was able to do 30 to 35 percent of the work without any help, according to Assistant Plant Superintendent Tucker Both he and Dunn agreed that whenever Dunn needed help it was mostly one man, and only occasionally more than one, and the time required of the man or men to help was as little as 2 minutes and on the average 5 to 15 minutes Occasionally, said Tucker, production requirements might necessitate giving Dunn a helper for an hour or two. ' General Manager Paylor thought that the number of men in precasting, in June and July 1969, was 15 to 20 employees , although he did not differ on the total number for the whole plant of about 30 employees There were some other such matters , concerning what the payroll actually showed, but notwithstanding Paylor was offered the opportunity and was even requested to produce the payroll records to help settle such matters, he declined , through counsel , to produce the payroll records In net effect, the differences were not cntical , where they existed, Paylor's failure to provide the best evidence has cast doubt on the credence of his testimony in those matters ' Neither Jackson nor Outlaw, who apparently knew most about Dunn's work, was called to testify 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Dunn testified that, except for a four month period prior to May 1969, when a Leo Bremage assisted him regularly, he had no regularly assigned assistance 7 When he needed help, Dunn said, if he saw an employee available in the precasting area he would ask him to help, and usually kept him only a few minutes But, said Dunn, if he found no one available, he asked his supervisor, usually Jackson, and he would assign someone to help Plant Superintendent Davis and Assistant Plant Superintendent Tucker said it was their understanding that when Dunn needed help he normally went to Foreman Outlaw who assigned someone he could spare from the precasting men This seeming difference in testimony ("usually Jackson" as against "normally Outlaw") is not a conflict but an understandable and reconcilable difference in emphasis based upon differing backgrounds Davis and Tucker did not come on the job until July 1969 (and then partially displacing Jackson in his previously greater supervisory role), whereas Dunn had been performing his reinforcing job for at least 2 years with Jackson as his supervisor Moreover, Davis and Tucker undoubtedly overlooked, in testifying, the fact that Dunn got his temporary assistance from yard employees (Kelly was an example, and so testified) as well as from in-plant employees (like Hawkins), and that Jackson was the overall foreman, just below Assistant Plant Manager Tucker in rank, whereas Outlaw was merely precasting foreman working inside the plant. What is significant, in the combined testimony, is the agreement on both sides that essentially Dunn did not enjoy or exercise control to assign men to assist him in his work Likewise, when employee Dunn came over to help with the other work of the precasting department, Dunn neither had nor exercised authority over the men This was not only Dunn's testimony but the testimony of employee Jesse Hawkins who had worked in the plant for 19 years and was stationed in the precasting department a few yards from Dunn's steel reinforcing area. Employee Hawkins testified that he was one of a few who had given Dunn a hand from time to time, a few minutes at a time, in the reinforcing work, and that when Dunn finished this work he would come and help in the precasting department with the placing of the anchor plates and bolts on the concrete panels. According to Hawkins, Dunn gave no orders or directions to any of the men when he worked in the precasting department, nor had he (Hawkins) been given, or observed others given, orders or directions by Dunn in the steel reinforcing work 8 ' General Manager Paylor's faint recollection (without benefit or produc- tion of payroll records, see fn 5, [supra]) that Dunn had a regular helper named Cauley, who worked in form-setting , assigned to Dunn in October and November 1969, was hardly credible evidence, since Dunn was discharged on October 10 None of the more immediate supervisors corroborated Paylor's recollection ' Plant Superintendent Davis claimed that when Dunn did this assisting work he shared command of the men with foreman Outlaw, but this is contradictory of his assertion that Dunn needed Outlaw's permission or assignment for the same men to help with the reinforcing, an integral part of the precasting work The claim lost any force it might have had (to contradict employees Hawkins and Dunn ) when Plant Superintend- ent Davis, who said that he spent considerable time observing in-plant operations, confessed that he had never heard Dunn giving directions to employees Employee Dunn had engaged in this same work for several years both for Respondent and previously for a predecessor company In the fall of 1968 when employee Outlaw was made a foreman, Dunn asked Phil Stroud, who was then plant superintendent, for a pay raise and was told by Stroud he was up for a raise and if Stroud could get two or three men to help Dunn he would be made a foreman Nothing further was done until May or June 1969 when, after the firing of an employee and a sitout of the men including Dunn, Plant Superintendent Stroud provided Dunn with an explanation for the firing and told Dunn he was making him a foreman, with a 10-cent-per-hour pay raise (from $1.75 per hour to $1.85 per hour) and 15 cents more later on. Nothing was said to him about the scope of his authority or duties According to Dunn, Stroud told the sitting employees he wanted them back to work and that Dunn and Outlaw were foremen. Dunn went back to work and the men followed. Employee Roy Lee Kelly, who worked in the yard where Lee Mitchell was foreman, recalled that at this meeting Plant Superintendent Stroud told the men that Dunn, Outlaw, Mitchell, and Cleveland Cornegie were foremen and to take orders from them as from himself Employee Hawkins recalled that Stroud told the men at the meeting that Outlaw was a foreman in charge of the precasting and that Dunn was in charge of doing the same thing he had been doing Later, in July 1969, when General Manager Paylor introduced the employees to their new plant superintendent and assistant superintendent, Davis and Tucker, and described the new assignments for the replaced Stroud and Jackson, Dunn along with the other foremen were introduced as foremen who would continue in their then capacities, according to the testimony of Paylor, Dunn, and Kelly In talking to Dunn, and to the men, Stroud did not indicate what employees, if any, would be assigned to Dunn nor were any assigned to him Indeed Dunn lost the one man ever assigned to him for a period of time, Bremage, who left in May 1969, before Dunn was named foreman, after helping Dunn in the previous 4 months with the reinforcement work A substitute for Bremage was not given to Dunn and he reverted to the previously described means of obtaining help with the reinforcement work as help was needed. Employee Hawkins, as well as Dunn, testified that Dunn's work did not change after the meeting where he was designated foreman, that he did the same work thereafter as he had done before and got his help as before Dunn did not receive the additional 15-cents-per-hour pay raise discussed by Stroud Dunn and Outlaw were paid $1.85 per hour and Mitchell was paid $1 80 per hour, which represented a differential for foremen of between 10 cents and 25 cents per hour more than the hourly rate paid the other employees, according to General Manager Paylor In this connection Assistant Plant Manager Tucker testified that Dunn's job, entailing the reading of blueprints and cutting and fitting steel into the panels, was regarded as a skilled job and gets a little more pay than a laborer helping with the steel reinforcing Like the other employees, said Dunn, he punched a timeclock and was paid at hourly rates with overtime, in SOUTHEASTERN CAST STONE, INCORPORATED 691 contrast to supervisors, such as Davis and Tucker, who were on salary and did not punch in and out Dunn said he had only the 6 nonpaid holidays and the I week's paid vacation (if not lost by absences) allowed the employees at Christmas He worked with his hands all of the time, and testified that the only directions he gave to another employee was to show one who might be helping him how the wire mesh or steel should be bent In the case of employees like Hawkins who had done reinforcing work before, there was no need for such instruction, said Dunn. Plant Superintendent Davis, who spent considerable time in- plant, testified that he never heard Dunn giving directions to employees When Respondent inaugurated the holding of occasional production meetings in July 1969, Dunn said he attended three of them, up until the time of his discharge in October, along with all of the foremen and supervisors, the chief estimator, and the architect. Dunn testified that he did not participate in the discussions, which related to quantity and quality of the products (and nothing about personnel or labor relations), and that the one time he spoke in the meetings he mentioned the need for more adequate quarters for the steel room, to be better protected from the rain. Dunn had none of the authority normally associated with supervision, such as participation in the hiring, disciplining, or firing of employees Assistant Plant Superintendent Tucker testified that when asked by Foreman Outlaw if Outlaw could let a man off early Tucker told him it was up to him. Tucker said further that Dunn didn't ask, but that he had the same discretion Nevertheless, testified Tucker, he did not know of any case where Dunn had let someone go off early without checking first with Tucker 2. Dunn not a supervisor Counsel for Respondent has relied heavily on the label or title "foreman" in attributing supervisory status to employee Dunn In Dunn's case, if not some of the others, according him the title was a method for reclassifying and providing him a little better pay as a superior or skilled employee remaining in the same job. Assistant Plant Superintendent Tucker madeclear that the steel reinforcing job that Dunn performed was skilled, a cut above the ordinary labor performed in the plant, and entitled to a little more pay The circumstances of the 10-cent pay raise and promotion to foreman for Dunn indicated that management wanted to retain his skill as a worker and his apparent influence with fellow employees that got them to lay aside their grievance and go back to work after the May 1969 sitout. Dunn's job and style of operation was the same both before and after the promotion to foreman. Right up to his discharge, he continued to do manual work full time, frequently alone in the reinforcing work or with an occasional helper as needed, and in turn assisting with the other precasting work when he completed his reinforcing work. The only control he could and did exert over a fellow employee was to ask one who was unoccupied to give him a hand with the bending or cutting of wire mesh or rods when he was physically unable to handle the task alone Dunn enjoyed and exercised this privilege before he was accorded tho title foreman , and even after he acquired the title, if there were apparently no unoccupiedemployees available to help, then Dunn was obliged to request assignment of helpers needed from Overall Foreman (and former assistant superintendent ) Jackson or from Precasting Foreman Outlaw . These assignments of help were only temporary , usually for the brief time entailed in a particular job. For a short time prior to his promotion, Dunn had a regularly assigned helper for the reinforcing work This lasted for a period of about 4 months, after which Dunn reverted to the "pickup " or assignment method of obtaining help when needed The instructions Dunn gave to his temporary helpers were routine instructions on how to bend wire mesh or reinforcing bars. With employees who had done the work before, instruction was unnecessary. Dunn did not share in any way in the powers of management to hire, discipline, or fire employees These powers were reserved to General Manager Paylor, Plant Manager Davis , Assistant Plant Manager Tucker, and Overall Foreman Jackson Indeed . Dunn had no powers of direction or control over the functions, assignments , or time of any employees (except in the very limited "pickup" of an occasional helper , already discussed) Dunn was essentially a skilled or superior worker with no supervisory authority , except as he might routinely show a new helper among his occasional helpers how to perform the physical tasks of bending or cutting the wire mesh or steel rods He was paid a few cents per hour more than his fellows in recognition of his skill, including ability to read blueprints , but in other respects was under the same conditions of employment applicable to the rank-and-file employees , including the punching of a timeclock , hourly pay, 6 unpaid holidays, and a I week Christmas vacation if not forfeited by previous absences. The most that can be said of Dunn's position is that he had achieved the status of a "leadman ," the superior worker who exercises the control of a skilled worker over less capable employees , but who does not enjoy supervisory status in that capacity because he does not also share the power of management , N.L.R.B. v Griggs Equipment, Inc , 307 F.2d 275, 279 (C.A. 5). The fact that Dunn gave instructions to occasional helpers on how to help would not denote the exercise of supervisory discretion or independent judgment but only the exercise of routine authority,9 N.L.R B v. Whiten Machine Works, 204 F.2d 883, 886 (C.A 1); Precision Fabricators , Inc. v . N L R B , 204 F.2d 567, 568-569 (C.A. 2) Respondent gave Dunn the title " foreman," but "the employer cannot make a supervisor out of a rank and file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions The important thing is the possession and exercise of actual supervisory duties and authority and ' Under Sec 2(11) of the Act, a supervisor is one having authority, in the interest of the employer, (among other things) "responsibly to direct" other employees, if the exercise of such authority is "not merely of a routine or clerical nature , but requires the use of independent judgment " 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not the formal title " N L R.B v. Southern Bleachery and Print Works, Inc , 257 F 2d 235-239 (C.A 4) Even the occasional assumption of a position of command or responsibility does not transform an otherwise rank-and-file worker into a supervisor, N L R B v. Quincy Steel Casting Co, 200 F 2d 293, 296 (C A. 1), N.L R B v Cousins Associates, 283 F 2d 242, 243-244 (C A 2) In sum, employee Dunn was a leadman with the title of foreman whose only control over temporary manual helpers occasionally assigned to him was the routine function of instruction on how to help him, a function that in no way identified him with management or made him part of management Compare Evans Orchard Supply Company, 166 NLRB 243, 248, foreman and stock room manager held not supervisors; and Powerful Gas, 181 NLRB No. 21, assistant managers of gas stations held not supervisors. B. Respondent's Coercive Acts and Discharge of Employee Dunn The Union began its organizing campaign at Respondent's plant and the other North Carolina plants owned by the Adams brothers in the summer of 1969, and made a formal demand for recognition as bargaining agent for all North Carolina employees on August 19, 1969, Respondent's Exhibit 8, received by President Fred Adams on August 21, 1969. Voluntary recognition was not given, and a Board-conducted election was held thereafter for all of the North Carolina plants of the Adams brothers. There was no dispute of employee Dunn's testimony that he was active among Respondent's employees in soliciting support for the Union, obtaining signatures to union authorization cards and attending union meetings, and that he included some of Respondent's supervisors in his discussions of the Union and solicitation of authorization card signatures Likewise it was not disputed that some of these discussions with supervisors concerning the Union occurred prior to August 15, 1969. President Fred Adams conceded that he had heard that the Union was organizing at the various Adams brothers' North Carolina plants before August 15, and before he received the Union's formal demand for recognition on August 21, 1969 Indeed, he began countercampaigning in late July 1969 As production manager of the new management company (Adams United Corporation), newly formed to provide a common management for all five locations in North Carolina (including Respondent's plant at Kinston), President Adams inaugurated*a personal interview program for all existing employees at the five plants As a result Adams personally interviewed each employee separately (usually with the general manager or plant superintendent present, as occurred at Kinston) as though the employee were a new applicant for employment, and covered with each a discussion of the company's views and the employee's views (if any) on the Union President Adams took down the answers he got in each interview, including the employee's rating of his own performance and Adams' version or summary of the employee's comments, and wrote them (or checked them) on two forms for each employee, one entitled "employee personnel record" and the other captioned "progress report." Adams then required each employee and the supervisor present to sign both documents (Examples for employees Dunn, Kelly, and Mitchell were submitted in evidence as Resp Exhs 1, 2, 4, 5, 6, and 7). In employee Dunn's case, as an example, Respondent's Exhibit 2 recites among other things, that in the interview on August 29, 1969, after President Adams stated the Company's position on the Union, Dunn said that he wasn't interested in any union and hadn't joined a union when he worked for a former employer, B. Altman and Company of New York President Adams testified that he started the employee interviews at the Durham, North Carolina, plant around July 22, 1969, reached the Fuquay-Varina plant around August 1, 1969, and commenced Kinston plant interviews on August 29, 1969. (He gave no beginning dates respecting the Raleigh and Fayetteville plant interviews that followed.) In discussing the Union in these interviews with the employees, President Adams said that he stated for each employee the company position or views on the Union. He claimed that, after he received the Union's formal demand of August 19, 1969, for recognition, he covered this portion of the interview by reading from a written statement he prepared, beginning with the interviews at the Kinston plant. However, from the evidence respecting the two Kinston interviews of employees Dunn and Kelly, as well as from the composition of the "prepared statement," which was a handwritten note of an outline or series of topical phrases and sentences (Resp. Exh 9), it was obvious that at most Adams used the note as a reference and did not simply read it verbatim when discussing the Union with each employee. In employee Dunn's meeting with President Adams on August 29, Plant Superintendent Davis was present. According to Dunn, Adams said that he had been made production manager for all Adams' concrete companies and wanted an application from Dunn for his files, as if he were applying for a new job. When the questions were asked and answered for this form, Adams turned to the second form and asked Dunn what he thought about the Company, how he got along with other employees, and what improvements should be made Dunn said he told Adams about the steel room. President Adams then asked, said Dunn, what Dunn thought about the Union. Dunn replied he didn't know much about it Adams asked if he had signed a union card, and Dunn said yes. Adams asked if Dunn knew what a leech was, and Dunn answered he thought it was something that lived at the expense of others That's what a union was, said Adams, and went on to say, according to Dunn, that "if the Union got in to never ask for anything else. Don't come to him for anything else."10 10 Counsel for Respondent contends that President Adams was attempt- ing to articulate the thought (not articulated very much clearer in Adams' written note, Resp Exh 9, says counsel), that if the Union came in it would represent you and speak for you However it has been well said that the "words must be judged by their likely import," to the employees and that 'one who engages in' brinkmanship' may easily overstep and tumble into the brink," Wausau Steel Corp v N L R B, 377 F 2d 369, 372 (C A 7), finding Sec 8(a)(I) threats and promises coupled with interrogation in employer interview of employees SOUTHEASTERN CAST STONE, INCORPORATED President Adams, after completing the "employee personnel record," Respondent's Exhibit 1, and "progress report," Respondent's Exhibit 2, had employee Dunn and Plant Superintendent Davis sign each, and the interview was concluded Davis said nothing during the interview In President Adams' interview of employee Kelly, also on August 29, Plant Superintendent Davis was again present, and the same procedure was followed Adams filled out the forms based on his discussion with employee Kelly, and both Kelly and Davis signed the completed forms, Respondent's Exhibits 4 and 5. In the course of the interview, President Adams asked employee Kelly what he thought about the Union. Kelly replied he didn't know much Adams spoke of a "leech," Kelly said (Adams' note, Resp Exh 9, refers to a "parasite"), and told Kelly a leech was something that would fasten on him, like what the Union would do to him. Adams explained union dues, according to Kelly, and then told Kelly "he didn't want it [the Union] in none of his plants, that he would fight to keep it out " Employee Dunn had a second office meeting with President Adams on September 2, 1969, this time with General Manager Paylor present. At this meeting Adams told Dunn that as a foreman he was part of management and that he was not to attend union meetings or help the Union in any way On October 10, 1969, Dunn was summoned for a third meeting with President Adams. General Manager Paylor and Plant Superintendent Davis were also present Adams charged Dunn with having continued to engage in union activities and dismissed him forthwith, ordering him off the premises Dunn did come back later, once, he said, to vote a challenged ballot in the representation election. Following Dunn's discharge, in a meeting with the employees, President Adams referred to the discharge, according to employee Kelly, and said he would fire other foremen who attended union meetings. In connection with his personal interview program for the employees of all five plants in North Carolina (which began with interviews at Durham on July 22, 1969), President Adams said he began to hear complaints by the men about the existing policy concerning nonpaid holidays and vacations only at Christmas Under the policy there were 6 specified holidays during the year, without pay, and a 1- week vacation with pay that could be taken only at Christmas if the employee had worked not less than a year prior to December 23 and had not been absent more than 5 days during the year On August 15, 1969, 6 days before the receipt of the Union's formal demand for recognition and with interviews begun at only two of the five plants, President Adams issued an announcement (G. C. Exh. 2), affecting all employees at the five plants, that henceforth the 6 holidays would be paid holidays and vacations could be scheduled at times other than Christmas. Employee Dunn testified he was paid for the next holiday, which was Labor Day, September 1969. C. Section 8(a)(1) and (3) Findings Respondent made no bones about letting its employees know, individually, that it would fight against their 693 affiliation with and choice of the Union as bargaining representative in the Kinston plant (and associated plants), and did not hesitate to include several illegal actions in furtherance of its declaration of war against the Union Under cover of the personnel review, and with the clear announcement that Respondent was taking a fresh look at each employee as if he were an applicant for employment, Respondent's president separately interviewed each employee and, in the context of declarations of hostility and opposition to the Union, interrogated the employees, as in the case of Dunn and Kelly, concerning their union sympathies or affiliation The oppressive atmosphere of the interrogation was heightened by having the plant superintendent present listening to the answers, without any assurance against reprisal. In Dunn's case the interrogation was accompanied by the express threat of reprisal-not to come to President Adams or the company for anything else if the Union came in-followed in a subsequent interview by a warning not to attend union meetings. By this time, employee Dunn was a known union activist, and telling him he was part of management, forbidden to continue union activities, was a pretense to short circuit his organizing of the employees In employee Kelly's case, no express threats accompanied the interrogation, but the implication of employer reprisal against those who would support the Union was there The implication for the employees became evident with the subsequent discharge of Dunn because he engaged in prounion activities, including attending union meetings The employees knew Dunn to be one of them, notwithstanding the title foreman, and the i nport for all employees was not softened by the employer's announcement that he would fire other foremen who attended union meetings." The interrogation of the employees concerning their union sympathies and affiliation'12 the warnings to stay away from union meetings, the threats of reprisal for giving union support,13 and the discharge of employee Dunn for engaging in union activities were coercive actions that interfered with the self organizational rights of the employees, in violation of Section 8(a)(1) of the Act, and the discharge of employee Dunn, in order to discourage affiliation with and support of the Union, also violated Section 8(a)(3) of the Act 14 In the context of Respondent's actions to destroy the union organizing effort among its employees, Respondent's grant, and timing of the grant, of increased holiday and vacation benefits cannot be regarded as unrelated and innocent benevolent action (as in the inapposite case of Champion Pneumatic Machinery Co , 152 NLRB 300, 305-307 (1965), relied on by Respondent). The idea of the " The meaning of the announcement to the employees was also foreboding because it did not tell them that the employer would be equally hard on foremen who fostered employee opposition to the Union " Daniel Construction Co v NLRB, 341 F 2d 805, 812 (C A 4), cert denied 382 U S 831 "NLRB.v MooreDryKiln Co, 320 F 2d 30,32 (C A. 5) NL R B v Overnite Transportation Co., 308 F.2d 284, 289-290 (C A 4), upholding 8(a)(3) and (1) finding in discharge of alleged supervi- sor 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desirability of providing several paid holidays, and adjusting the fixed vacation schedule to employee needs as well as employer convenience, took root as the result of employee complaints in the personal interviews of the employees of the five North Carolina plants, begun by President Adams July 22, 1969. The union organizing campaign had already begun and Respondent was using the employee interviews to make its opposition to the Union known to each employee Without waiting to complete the interviews, or even commence them at three of the five plants (including the Kinston plant), within 3 weeks after the start of the interviews and dust a few days before the Union made formal demand for recognition, Respondent announced, on August 15, 1969, the grant of the new benefits to the employees The circumstances and timing of the grant give rise to the inference that it was the purpose of Respondent in providing such benefits to dissuade the employees from pursuing their interes in the Union. Bestowal of economic benefits by an employer for such purpose is a restraint upon the freedom of choice of employees for or against unionization and a violation of Section 8(a)(I) of the Act. N L R B. v. Exchange Parts Co , 375' U.S 405, 409-410, Betts Baking Co v N L R. B , 380 F 2d 199, 203 (C A 10). CONCLUSIONS OF LAW 1. By discharging employee Dunn because of his union activities and to discourage union organizing and membership of its employees, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(I) and (3) of the Act. 2 By coercively interrogating its employees as to their union sympathies and affiliation, by threatening reprisals for union activity, and by announcing and granting new holiday and vacation benefits to dissuade employees from pursuing their interest in the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY It will be recommended that the Respondent (1) Cease and desist from its unfair labor practices, (2) Offer to reinstate employee Dunn with backpay from the time of discharge, the backpay to be computed on a quarterly basis as set forth in F W Woolworth Co , 90 NLRB 289, approved in N L R.B v. Seven Up Bottling Co , 344 U.S. 344, with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716, approved in Philip Carey Mfg Co v. N L R B, 331 F 2d 720 (C.A 6), cert. denied 379 U.S. 888; and (3) Post the notices provided for herein Because the Respondent by its conduct violated fundamental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act N L R B v Entwistle Mfg. Co., 120 F.2d 532, 536 (C A. 4), N L.R B v Bama Company, 353 F.2d, 323-324 (C A 5), P R Mallory and Co v N L R.B., 400 F.2d 956, 959-960 (C A 7), cert denied 394 U.S. 918. RECOMMENDED ORDER Upon the foregoing findings and conclusions, and upon the entire record, I recommend that Respondent, its officers, agents, successors, and assigns, shall- 1. Cease and desist from (a) Coercively interrogating its employees as to their union sympathies and affiliation. (b) Threatening employees with loss of future benefits or with other reprisals if they support the Union or if the Union comes into the plant (c) Discharging employees for attending union meetings or other activities on behalf of the Union. (d) Announcing and granting new economic benefits in order to dissuade employees from supporting the Union. (e) Discouraging membership of its employees in a union or other labor organization by discharging employees or otherwise discriminating against them as to their hire, tenure, and conditions of employment, or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to employee William Dunn immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of this decision entitled "The Remedy," for any loss of earnings he may have suffered as a result of his discharge on October 10, 1969 Notify him, if he is serving in the Armed Forces of the United States, of his right to full reinstatement upon application after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board and its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Recommended Order (c) Post in its establishment at Kinston, North Carolina, copies of the attached notice marked "Appendix." Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 11 (Winston-Salem, North Carolina), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall SOUTHEASTERN CAST be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material." (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.16 " In the event no exceptions are filed as provided by Sec 102 4E of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 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 Appeals 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 ' 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "NotifN said Regional Director in writing, within 10 days from the date of this order what steps Respondent has taken to comply therewith ' APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice, and we intend to carry out the order of the board and abide by the following WE WILL NOT fire you because you attend union meetings or favor, orjoin, or are active for a union. WE WILL NOT coercively question you as to whether you favor a union or are participating in union activity. WE WILL NOT threaten you with loss of benefits or with other reprisals if you support the Union or the Union comes into the plant. STONE, INCORPORATED 695 WE WILL NOT announce or grant you new benefits in order to persuade you to drop your support of the Union WE WILL NOT, in any other manner, discriminate against you to discourage your membership in a labor union or interfere with your right to join, assist, or be represented by, a labor union, or interfere with any of your other rights of self-organization and mutual aid guaranteed by Section 7 of the National Labor Relations Act Since the Board found that we fired William Dunn on October 10, 1969, because of his union activity, WE WILL OFFER him his old job back and give him backpay If he is in the Armed Forces of the United States, we will notify him of his right to reinstatement upon application after discharge from the Armed Forces Each of you is free to become or remain or refrain from becoming or remaining a member of North Carolina Laborers ' District Council , affiliated with Laborers' International Union of North America, AFL-CIO, or any other labor union SOUTHEASTERN CAST STONE, INCORPORATED (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-2300