Technical Maintenance, Inc.

TECHNICAL MAINTENANCE, INC. 721 Technical Maintenance, Inc. and International Brotherhood of Electrical Workers, AFL-CIO, Local 390. Cases 23-CA-2716 and 23-RC-2968 June 28, 1968 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 19, 1968, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. The Trial Examiner also recommended that the chal- lenges to the ballots of Ernest Dean, Marvin Hogan, K. C. Underwood, and James Sims be sustained and 'their ballots not be opened or counted and that the challenge to the ballot of James L. Johnson be overruled and his ballot be opened and counted. He recommended that Respondent's objections to the election in Case 23-RC-2968 be overruled and that the election be held valid. Thereafter, the Respon- dent filed exceptions to the Trial Examiner's Deci- sion with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Em- ployer's objections, the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner, with the modifications hereinafter set forth. 1. We find merit in Respondent's exceptions to the Trial Examiner's findings that James L. Johnson was discriminatorily discharged in violation of Sec- tion 8(a)(3) and (1) of the Act. Johnson was a Class B journeyman electrician on Respondent's electrical construction crew under Supervisor Hogan when laid off on June 2, 1967, allegedly to meet a reduction on the work force requested by Houston Chemical. During the week before June 2, Hamill told Hogan that one of the men in his crew would have to be terminated. On about June 1, Hogan asked Hamil if he still wanted a man taken off the job and Hamil replied, "yes." Hamil inquired of Hogan whom he intended to select, whereupon Hogan named Johnson, "as he was the last man to come on the job." The follow- ing day Hogan told Johnson that there was to be a eduction in the work force, and, as Johnson was the man with the least seniority, he would be discharged. Thereafter, during the evening of June 9, Tom Robinson, administrative assistant to Respondent's president, contacted Supervisor Dean and told him that he was informed by Houston Chemical that Respondent would be able to add another man to the electrical maintenance crew. Robinson sug- gested that Dean offer the job to Johnson as "we had reduced him from the force, and the fact that Houston Chemical wanted us to and so he knew the plant, and I thought, well he would make a good man to call back." Later that same evening, pur- suant to Robinson's instruction, Dean telephoned Johnson and offered him the job on his crew. John- son wanted time to think about the offer and to give some sort of notice to his new employer, and responded that he would let Dean know his deci- sion on Monday, June 12. At or about 10:30 Mon- day evening Johnson called Dean to accept the job, but Dean told him that the job had been filled as Johnson was to have called him earlier that day. Johnson replied that he had promised to call Dean on Monday, that no specific time had been set, and that Dean had promised to keep the job open until Tuesday morning. Dean disputed all of this during their telephone conversation and at the hearing. Although the timing of Johnson's termination in relation to his union activities and the demon- strated union hostility of Respondent create a suspi- cion of unlawful motivation, we are here con- fronted with a record which plainly establishes that: (1) Houston Chemical requested a reduction in the work force in accordance with the terms of its con- tract with Respondent; (2) Respondent, following orders from Houston Chemical, discharged the least senior member of the construction crew; and (3) as of the close of the hearing, September 22, no ' In further support of the Trial Examiner 's finding that Dean , Hogan, ployees Cf The Bama Company, 145 NLRB 1141 , 1143, Swan Super and Underwood were supervisors within the meaning of the Act, we note Cleaners, Inc , 152 NLRB 163, 168 , cnfd in pertinent part 384 F 2d 609 that the record establishes a disproportionate ratio of supervisors to super- 'C A 6). visees if Howard Hamil , Houston Chemical 's liaison man with Respondent , 2 See in . I, supra be accepted as the sole person exercising supervision over the 24 cm- 172 NLRB No. 60 354-126 O-LT - 73 - pt. 1 - 47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD person was hired to replace Johnson . Unlike the Trial Examiner , we are not willing to say in these circumstances that the Respondent 's lack of proof of the necessity for a layoff at this particular time, especially from Hogan 's crew , or as to why Johnson was not immediately transferred to the electrical maintenance crew , evidences a discriminatory mo- tive in Johnson 's discharge . On the contrary, it is clear on the record that Houston Chemical had ex- press authority to require cutbacks of personnel, and that , contractually , Respondent 's compensation was based upon a percentage of direct labor costs. Thus, Hamil 's instruction to Hogan to eliminate a man on his crew was in accord with the expressed authority granted to Houston Chemical and had the economic effect of reducing Houston Chemical's direct labor cost . Johnson was severed pursuant to Respondent's policy of laying off the least senior member of the crew , and the Respondent did not hire a replacement for him on that crew . The fact that Houston Chemical permitted Respondent to add another employee to the electrical main- tenance crew a week later does not establish that such an opening was available on June 2, when Johnson was terminated. In addition to the above , we are not persuaded that Respondent was aware of Johnson's activities on behalf of the Union . Unlike the Trial Examiner, we are unable to conclude that testimony to the ef- fect that Dean told certain employees that he knew who had signed union authorization cards establishes that Respondent was actually aware that Johnson had even signed an authorization card, let alone that he initiated the union movement and was its principal proponent . Indeed , Dean 's statement that he knew who had signed authorization cards appears to have been erroneous , and he may not, in fact, have known the identity of those employees who actually signed cards . Thus, according to the credited testimony of employee Villemez, Dean stated to him "that he knew that there wasn't but eight men that filled out these cards ," but the record shows that more than eight cards had been executed by the employees. Against this background , we are also unwilling to rely upon Dean 's treatment of Johnson on June 9 and 12 as determinative of an unlawful motive in Respondent 's failure to reinstate Johnson. On the contrary , the series of events , including the timing of the offer of reemployment on Friday, June 9, when Respondent first received instructions to hire an employee ; the fact that the offer remained open until the evening of Monday, June 12, and the further fact that Johnson could have accepted the offer at any time during that period , are consistent with a lawful motive of attempting to reinstate an employee who had been recently servered due to a cutback . The dispute between Dean and Johnson over the deadline for Johnson 's decision can best be explained as a simple misunderstanding rather than an unlawful tactic devised by Respondent to avoid rehiring an active union adherent who was lawfully discharged only a short time earlier. In view of the above , and as it is clear that Respon- dent followed Houston Chemical 's instructions and also terminated Johnson according to Respondent's policy of seniority , we find that General Counsel has failed to prove by a preponderance of the evidence that Respondent 's discharge of, and failure to reinstate , Johnson was motiviated in whole or in substantial part by union animus. 2. The parties stipulated , and we find , that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All instrument and maintenance mechanics, employed by Technical Maintenance , Inc., at the Houston Chemical Corporation plant located on Gulf States Road , Beaumont, Texas, specifically including all first class electricians, electrician leadmen ,3 electricians , electrician helpers, apprentice electricians , first class in- strument technicians , instrument leadmen, in- strument fitters, instrument trainees , and in- strument fitter helpers , but excluding all office clerical employees, guards, watchmen , and su- pervisors as defined in the Act. Inasmuch as Johnson was lawfully discharged prior to the election, the challenge to his ballot must be sustained and it may not be opened and counted. We note that , in any event , it could not affect the results of the election . As we adopt the Trial Ex- aminer 's recommendation to overrule the objec- tions, and as the tally of the ballots shows that Peti- tioner has received a majority of the valid votes cast, we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit 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, as modified below, and hereby orders that the Respondent, 3 Dean, Hogan, and Underwood are excluded from the unit, as they have been found to be supervisors within the meaning of the Act TECHNICAL MAINTENANCE, INC. Technical Maintenance, Inc., Pasadena and Beau- mont, Texas, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as herein modified: 1. Delete paragraph l (a) of the Recommended Order and renumber the subsequent paragraphs ac- cordingly. 2. Delete paragraph 2(a) of the Recommended Order and renumber the subsequent paragraphs ac- cordingly. 3. Delete the words "in any other manner" from the present paragraph 1(g) of the Recommended Order and from the sixth indented paragraph of the notice, and substitute therefor the words "in any like or related manner." 4. Delete the seventh and eighth indented para- graphs of the notice. CERTIFICATION OF REPRESENTATIVE It is hereby certified that International Brother- hood of Electrical Workers, AFL-CIO, Local 390, has been designated and selected by a majority of the employees in the appropriate unit as their representative for the purposes of collective bar- gaining, and that pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for the pur- poses of collective bargaining with respect to rates of pay, wages , hours of employment , and other con- ditions of employment. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: This con- solidated proceeding, with all parties represented, was heard before this Trial Examiner in Beaumont, Texas, on September 21 and 22, 1967, on com- plaint of the General Counsel and answer of Technical Maintenance Inc., Respondent herein.' The issues litigated were whether during an or- ganizational campaign Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. sec. 151, et seq., herein called the Act, by interrogating and threatening employees because of their union activities and by other acts; and whether Respondent unlawfully discharged and refused to reinstate, or lawfully laid off, James Johnson. Also involved is whether an election should be set aside on the grounds that the Union offered economic inducements in return for votes, and how some five determinative, challenged ballots should be disposed of. 'The Union filed the original charge on May 18, 1967 It filed the amended charge on June 6, 1967 It filed the second amended charge on June 14, 1967 1 The following errors in the numbering of the pages of the transcript are 723 After the hearing the General Counsel and Respondent filed helpful briefs, which have been carefully considered.' Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Technical Maintenance, Inc., Respondent herein, is a Texas corporation having its principal office and place of business in Pasadena, Texas, with facilities located in the Beaumont, Texas, area where it is engaged in the instrument service main- tenance business. During the 12-month period prior to the issuance of the complaint on August 1, 1967, a representative period, Respondent purchased goods and materials valued in excess of $50,000 from sources outside of Texas, which goods and materials were shipped directly to Respondent in Texas. During the same period Respondent received in excess of $50,000 for services per- formed for customers located outside of Texas. Respondent admitted, and I find, that at all times material herein Respondent has been and is an em- ployer engaged in commerce within the meaning "r Section 2(6)and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL-CIO, Local 390, herein called the Union, is and has been at all times material herein a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Setting Involved herein is the group of approximately 24 employees who work for Respondent and perform maintenance work on the electrical equipment at Houston Chemical Corporation's plant in Beau- mont They were unorganized prior to the events herein. The employees' first contact with the Union was in March 1967.3 A number of employees signed union authorization cards in April and May, which were received in the Board's Regional Office on May 11, 1967. Pursuant to the Union's petition the Union and Respondent entered into a Stipulation for Certifica- tion Upon Consent Election, Respondent signing the stipulation on May 3 1, the Union on June 1, and the Regional Director approving it on June 2. At the election, held June 19, of 24 eligibles, 9 voted for the Union, 7 voted against the Union, and hereby corrected Change p 222 to 221, change p 221 to 222 The trans- cript is hereby further corrected as follows- p. 346, 1 20, change "set aside" to "complied with", p 346,1 23, change "endorse" to "enforce 3 All events herein occurred in 1967 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 ballots were challenged. These included the Union's challenge of the ballots of Ernest Dean, Marvin Hogan, and K. C. Underwood on the ground that they were supervisors. B. The Supervisory Status of Dean, Hogan, and Underwood At the time of the events herein Ernest Dean, Marvin Hogan, and K. C. Underwood were the only ones having any supervisory authority over, and were Respondent's highest paid men in ,' Respon- dent's crew at the Beaumont plant of Houston Chemical Corporation. The approximately 24 em- ployees worked in three groups. Some six worked in electrical maintenance under Dean. Some three worked in electrical construction under Hogan. Some 15 worked in instrument maintenance under Underwood. Respondent contended that Dean, Hogan, and Underwood were leadmen. The General Counsel contended they were supervisors within the meaning of the Act. Decision as to their status is complicated by the close relationship between Respondent and Houston Chemical Corporation, a separate cor- poration, and by the anomalous authority of one Howard Hamil with the two corporations. Respondent and Houston Chemical were parties to a written contract which provided that Respon- dent was an independent contractor. Respondent's compensation, subject to additions and deductions provided in the contract, was to be 29 percent of direct labor costs under $100,000 plus 27 percent of any portion over that amount. Thus, Houston Chemical as well as Respondent had a vital interest in the labor costs of the job. The contract and its amendments set forth the job classifications and hourly wage rates of employees, and provided that Respondent "shall keep on the work, during its pro- grams, such competent superintendent and such necessary assistants ... as may be requested or ap- proved by the Owner (Houston Chemical) all of whom shall be acceptable to the Owner."This con- tract and its amendments are herein referred to as the contract. Prior to March 1967, Howard Hamil was on Respondent's payroll and was without question on the record Respondent's top man on the job. In March Hamil went over to the payroll of Houston Chemical, and thereafter Respondent's top men on the job were Dean, Hogan, and Underwood. Some testimony described Hamil as thereafter Houston Chemical's liaison man with Respond- ent. Other testimony suggested that the change of payroll made no change in Hamil's functions. One witness testified a group of employees were told of- ficially that Dean's authority would increase and would cover all Respondent's employees. Dean, Hogan, and Underwood used an office in a corner of the maintenance shop where each had a mailbox with his name on it. Before and after his change of payrolls each morning Hamil put Houston Chemical's written work orders for the three crews in the respective boxes. Dean and Hogan determined which of the men under them performed which assignment . Underwood's men were more or less permanently assigned to certain areas of the plant and the assignments to each area were given to the respective man by Underwood. Dean, Hogan, and Underwood see that the work is performed in accordance with the orders and on schedule. They make out necessary work reports. They do the paperwork involved in the termination- of employees. They give safety talks to their crews. Dean initials the timecards every day. Employees ask them for time off and for raises, and for help on the job when needed. They were sometimes referred to in the evidence as foremen. According to the credited testimony of employee J. F. Wise, Jr., who impressed me as a very credible witness, Underwood told him shortly before the hearing that Underwood made $4.25 an hour and that his addi- tional 35 cents an hour over Wise's $3.90 hourly rate was because Underwood was a foreman. Dean, Hogan, and Underwood wear gray khaki pants and shirts which they have laundered themselves. The employees are issued blue coveralls and other work clothes and a $2-per-week laundry fee is deducted from their wages. The record established that when employees were issued uniforms and other working equipment for the first time and/or in replacement of lost items, they had to have the list of needed items signed or initialed by Dean, Hogan, or Un- derwood before Houston Chemical would issue them. In addition to the above, the record demon- strated the exercise of supervisory authority by Dean, Hogan, and Underwood. According to the credited testimony of employee Mercer, who impressed me as a credible witness, twice, in March or April and in August, Dean warned him about his absenteeism. Dean told him that if Mercer could not be depended upon he would have to let him go. The second time, in Au- gust, Mercer was about 2 minutes late at 7 a.m. Dean told him that if he was late again Dean would give him 3 days off, and that if it occurred again after that, Mercer would be fired. Mercer's version included no mention of Hamil. Dean admitted giv- ing Mercer these warnings, but testified that he al- ways told the employee he was warning that Hamil had told Dean to warn him. As on the entire record this seems highly unlikely to me, and as Mercer was a credible witness, I credit Mercer's testimony and find that Dean did not, in warning Mercer these two times, make any mention of Hamil. This warn- ' These three men testified they were leadmen, and the contract's hourly rate for leadmen was $4 55 The next highest classification was paid $3 90 per hour TECHNICAL MAINTENANCE, INC. 725 ing of Mercer, which involved the authority to discipline, required the use of independent judgment. In addition Dean hired one Jerry Tupes as an electrician. He asked his employees if they knew of someone who wanted a job. There was no evidence that prior to this he had discussed the need of another employee with Hamil. When an employee suggested the name of Tupes, Dean directed that Tupes come in. When he did, Dean administered a mechanical test and a written test to Tupes. Dean testified he showed the written test to Hamil, who then talked to Tupes and told Dean to hire him. Dean did so. All this occurred in May 1967 when Hamil was working for Houston Chemical Corpora- tion. Hamil appears not to have examined Tupes' mechanical test. On this evidence and upon the en- tire record, I find that Dean took the initiative to hire a man, found the man, administered the test to him, got Houston Chemical's approval of the man in accordance with the contract, and then hired him. It was Dean who hired Tupes, as contended by the General Counsel, and Hamil approved the ac- tion on behalf of Houston Chemical. In addition Dean was present when Hamil hired two em- ployees, Johnson and Sims, and, as is seen below, when Respondent was considering rehiring Johnson after his layoff, Dean used independent judgment about giving Johnson a period of time to make up his mind. Underwood effectively recommended the hire of one Newman to the president of Respondent, Mr. McCrocklin. Underwood and Newman had previ- ously worked together. Underwood testified that President McCrocklin said that since Underwood knew Newman's abilities he should have him take the test. Underwood then had Newman come in, fill out an application, and take a test. Underwood testified that Hamil came over, picked up the test, took it to his office, and wrote "good" on top of it. Then, according to Underwood, Hamil told him to hire Newman and Underwood did so. Underwood admitted he recommended Newman, but testified that Newman was hired on his showing of the test and not because of Underwood's recommendation. However, Newman would not even have taken the test if, at Newman's request, Underwood had not taken the initiative to see if there was a job opening and if Newman could be considered for it. I find on all these facts and upon the entire record that Un- derwood effectively recommended the hire of New- man and that doing so required the use of indepen- dent judgment. Underwood also discharged one Coleman. Several days before the June 19 election, after a heated argument, Underwood discharged Coleman and, according to the credited testimony of Wise, when Underwood escorted Coleman to the gate both were "fuming mad." That evening Underwood told Wise, according to the latter's credible and un- contradicted testimony, that he had nothing per- sonal against Coleman but that he was not going to have a man in his crew who gave him such backtalk as Coleman had given him, and that that was why he let him go. Wise's version included no mention of Hamil. Underwood testified that Hamil had previously told him that the next time Coleman became argumentative he wanted him terminated. By this statement Houston Chemical indicated that the next time Coleman became argumentative the latter would be no longer "approved" or "ac- ceptable" to Houston Chemical under the contract. Underwood thereafter discharged Coleman and in doing so used independent judgment in deciding that Coleman would no longer be acceptable to Houston Chemical. As is seen below it was Hogan who selected Johnson for severance on June 2, an act which required the use of independent judgment. Upon the above facts and considerations, and upon the preponderance of the evidence in the en- tire record considered as a whole, I hold that Dean, Hogan, and Underwood have authority in the in- terest of Respondent to hire and discharge em- ployees or effectively to recommend such action, to warn and discipline employees, and responsibly to direct employees in their work; also that Dean and Hogan have authority to assign employees; and that the exercise of such authority requires the use of in- dependent judgment. Under these circumstances they were supervisors within the meaning of the Act and Respondent was responsible for any viola- tions of the Act committed by them. Even if they were not supervisors, Respondent was responsible for their actions because it held them out to em- ployees as Respondent's top persons on the job and the only ones having any authority at all over em- ployees. The employees look upon them as super- visors; they exercise general authority over the em- ployees and were in a strategic position to translate to their subordinates the policies and desires of Respondent. Cf. I.A.M. v. N.L.R.B., 311 U.S. 72, 79-81. C. Interference, Restraint, and Coercion A few days after the filing of ti,. )etition on May 11,5 Supervisor Dean called at lea hree employees individually into the supervisor's c ffce, and, after talking to each about a "call out" problem the previous weekend, proceeded to interfere into, and to make economic threats concerning, the em- ployees' union activities. The latter was clearly one of the reasons for the interviews. As credibly testified by James Sims, Dean told him that he knew about the union movement going on among the men, and that he knew the names of those who had signed cards. Dean said one group of I take official notice that in Case 23-RC-2968 the Union filed the peti- tion on May I I and that it is the practice of the Board 's Regional Offices to advise companies immediately when petitions are filed involving them 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's employees, such as just this main- tenance group, could not " go union " but only all the Company's employees together. He said that no one would think badly of them if they went down to the union hall and asked to get their cards back. He added he would be willing to help anyone who helped him. Dean also threatened that if the men "went union" Respondent would probably lose its contract with Houston Chemical and the men would be out of a jobs As credibly testified by Claude Villemez, Dean told him that there had been discussions in the plant "about passing out these cards" and he knew that Villemez had signed a card. Dean said he once had signed a union authorization card and had later turned it in, and that there was an instrument man who had a card and he had taken it back. Dean said there was "no way we could work out here and still go union," that the Company could not afford to pay "the high wages that the Union makes" and that "the insurance rate is very high and they just couldn't afford to pay it if we went union." Dean said he knew that not more than eight had signed cards. Villemez replied that over half the em- ployees had signed cards, Dean threatened that if they did not "drop all this union activity that they were going to have to crack down on things like coffee breaks and taking pretty long coffee breaks," and they were going to have to start cracking down on men who had cigarettes in their pockets-contrary to the rules. In his individual interview with Alvin Mercer, Su- pervisor Dean told Mercer he knew the names of the men who had signed the cards. He asked Mercer if he had read the bylaws of the Union. Supervisor Dean admitted calling Sims, Villemez, and Mercer into the office, admitted telling the men he had heard they were in the Union, admitted that he "just asked them about it"; but denied most of the specific statements and questions attributed to him by the three employee witnesses. Dean in- dicated that he had heard talk about a union in the lunchroom; but this fact, if true, would not have justified him in interrogating individual employees about it. As the three employee witnesses impressed me as credible witnesses, and as, by his testimony con- cerning his and Hamil's duties, Dean appeared to me not to be telling the whole truth, I credit the testimony of Sims, Villemez, and Mercer. By inter- rogating and interfering with employees concerning their union activities, by impliedly soliciting em- ployees to withdraw their union authorization cards, by threatening that if the Union came in Respondent would probably lose its contract with Houston Chemical and the employees would lose their jobs, and by threatening that if the employees 6 Respondent urged that the threat that Respondent would lose its con- tract with Houston Chemical if the Union came in was improbable because it was inconsistent with a rumor in the plant that another union then negotiating with Houston Chemical for its employees was trying to oust did not stop their union activity Respondent would stop or curtail coffeebreaks and start cracking down on employees who have cigarettes in their pockets, Dean revealed his hostility to the Union and Respondent interfered with, restrained, and coerced employees in the exercise of their rights according to Section 7 of the Act, Respondent thereby violating Section 8( a)(I). Sims, Villemez, and Mercer testified that the Union was discussed rather freely in the lunchroom and that Dean was sometimes present during the discussions. Under these circumstances it is unlike- ly, and I do not find as contended by the General Counsel, that Dean's telling these employees that he knew who and how many had signed union cards reasonably tended to create the impression of sur- veillance. The General Counsel contended that it was a further violation of Section 8(a)(1) when Super- visor Dean told Villemez that Respondent could not afford to pay union wages and insurance rates. Rather it appears to me, and I find, that these state- ments were views, arguments , or opinions protected under Section 8(c) of the Act. On about May 24, according to the credited testimony of Joel Girolamo, a credible witness, Su- pervisor Marvin Hogan told Girolamo that Respon- dent had received a letter from the Union and that they probably would not get any more raises. Hogan added that Houston Chemical would probably break its contract with Respondent and that "we could lose our jobs." Hogan admitted asking his crew of employees what benefits they expected to get out of being unionized. When one employee replied, to have a permanent job, Hogan allegedly replied that there was no such thing as a permanent job and that Houston Chemical could terminate the contract at any time for any reason. Hogan did not remember but did not deny saying that if the Union came in the employees would get no more raises. Hogan testified, improbably as it seems to me, that without using the word "union" he told Girolamo that if anything came up that would cause Respondent not to be able to take care of the work, Houston Chemical would probably break the contract. On the preponderance of the evidence in this record it seems probable to me, and I find, that the conversation between Hogan and Girolamo oc- curred substantially as testified by Girolamo, with Hogan referring to a letter from the Union and fol- lowing it with the quoted threats. Also, Hogan's ad- mitted interrogation as to expected benefits from unionism , followed by his statement that Houston Chemical could break the contract at any time, reasonably tended to interfere with, restrain, and coerce employees in the exercise of the rights Respondent and to take over its maintenance function for Houston Chemi- cal employees But Respondent 's contract with Houston Chemical was can- celable at the will of Houston Chemical and it does not seem improbable to me on this record that Dean would make such a threat TECHNICAL MAINTENANCE, INC. guaranteed in Section 7 of the Act. By these threats and this interrogation Respondent further violated Section 8 (a)(1) of the Act. D The Unlawful Discharge and Refusal To Reinstate James L. Johnson James L. Johnson worked for Respondent from November 1966 until Supervisor Hogan told him on June 2, 1967, that he was laid off in a reduction in force because he was the lowest man in seniority. He was the only one severed. Just a week later, on July 9, Respondent offered him another job in Su- pervisor Dean's crew and gave him until a certain time to let it know his answer. When he later called and accepted, Dean told him he was too late and that the job had been given to another man. Johnson was the employee who made the original contact with the Union in March, who started talk- ing up the Union among the employees, and who originally got authorization cards from the Union and passed them out to employees for signatures and returned the cards to the Union. Johnson signed his own authorization card on April 21. Johnson testified he returned some six signed cards to the Union. The Union's assistant business manager put the figure at 13. Although after John- son's beginning several other employees also got one or more cards signed, none got as many signed as Johnson. The cards were signed and turned into the Union prior to May 11, when the signed cards were turned over to the Board's Regional Office by the Union and the Union filed the petition. Supervisor Dean knew, as has been seen above and as he stated to Mercer, Sims, and Villemez, that each of these employees had signed cards for the Union, and he knew who else had signed up. It follows that Respondent knew that Johnson also had signed up. Johnson was responsible for the sig- ning up of Sims, Villemez, and Mercer, the only three employees shown by the record to have been called in by Dean. From this circumstance and the fact that there were only 24 employees in the plant,' I conclude also that Dean knew that John- son started the union movement and was its prin- cipal proponent. Johnson was severed June 2, some 3 weeks after the filing of the petition, and just as the parties had entered into a Stipulation for Certification Upon Consent Election: Respondent's attorney signed the stipulation May 3 1, the Union signed it June 1, and the Regional Director approved it June 2. The stipulation set the election for June 19, just 17 days away. As the Board knows, and as Respondent could not have failed to know, severing the prin- cipal union promoter shortly before the election and at the same time that word of the setting of the election would be reaching the employees would ' See the recent discussion of the "small plant doctrine " by the Fifth Cir- cuit, enforcing the Board 's Order in a case involving a plant of 100 em- ployees N L R B v Joseph Antell, Inc , 358 F 2d 880, enfg Malone 727 have had the inevitable effect of discouraging em- ployees' support for the Union and the likely effect of defeating the Union at the election. Although Supervisor Hogan told Johnson on June 2 that he was being laid off in a reduction in force, Johnson credibly testified without contradic- tion that there was no slacking of work during the few days prior to his severance and that "we were working." In its defense Respondent offered no proof of the necessity for a layoff at this time, or why the al- leged layoff was from Hogan's crew, rather than from the larger crews of Underwood and Dean. Its evidence, through Hogan, was that a week before June 2 Hamil told Hogan to let one man go from his crew. No reason was given. Hogan did not do so for a week, and the record contained no reason for his delay. Then, according to Hogan, on about June 1, Hogan asked Hamil if he still wanted a man taken off and Hamil replied ir, the affirmative. Hamil told Hogan to select the man and Hogan selected Johnson. Johnson was the last hired in Hogan's crew but was not shown to have been the last hired of Respondent's then approximately 24 employees. Equally unexplained was why a week later Respondent suddenly reversed itself and offered Johnson another job in a different crew , in Dean's crew. There was no showing that a job had sud- denly opened up in Dean 's crew and no explanation as to why, if in fact work was slacking off for Hogan's crew a week before, a qualified employee had not then been transferred from Hogan's crew to Dean's crew. Respondent's evidence was that on the evening of Friday, June 9, Tom Robinson, ad- ministrative assistant to Respondent's president and a relative of Respondent's president, telephoned Dean, told him that Respondent was able to put on another man in his crew (not that it needed a man), and suggested he offer the job to Johnson. Robin- son testified that he had been told by "Houston Chemical that we would be able to add on people, another man," in the electrical maintenance group. To be noted is that Robinson did not testify that Houston Chemical said a man was needed. Asked why he selected Johnson for the new job Robinson replied, "because we had reduced him from the force, and the fact that Houston Chemical wanted us to and so he knew the plant, and I thought, well, he would make us a good man to call back." (Emphasis supplied.) Thus Respondent's defense seems to contend that Hamil, then working for Houston Chemical but continuing to make decisions that vitally affected Respondent's employees, directed the layoff of a man but not what man, and then a week later Houston Chemical gave Respondent permission to hire a certain man, Johnson. Respondent's defense Knitting Company, 152 NLRB 643 See also Hesmer Foods, Inc, 161 NLRB 485 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could possibly have been proven by calling Hamil to the witness stand, but Respondent did not call him and he was not shown to have been unavaila- ble. As the record stands there is no direct proof as to why Hamil and/or Houston Chemical took the actions they allegedly did. A plausible explanation for the offer of another assignment to Johnson so soon after his severance was that in the meantime, on June 6, the Union filed the amended charge alleging that Johnson's severance was an unfair labor practice and Respon- dent was immediately apprised of that fact;" and that Houston Chemical and Respondent decided to take Johnson back rather than contest the matter and in order to toll backpay in the event the charge was found to have merit . If this was Respondent's objective it failed in that objective because of Dean's treatment of Johnson in connection with the offer. According to the credited testimony of Johnson, who impressed me as a credible witness, when Dean telephoned him on Friday, June 9, at or about 10:30 p. m. and offered him the job, Dean told him that he wanted a yes or no answer right then. John- son replied that he could not give him a yes or no answer, that he wanted time to think about it, and also that he would have to give some sort of notice to his new employer . Dean asked when he could let him know. Johnson replied, the following Monday. Dean said he would hold the job open until Tuesday morning, June 13. About 10:30 Monday night, June 12, Johnson called Dean and told him he had decided to take the job. Dean replied that the job was filled, that Johnson was to have called him on Monday morning. Dean said he had given the job to a man from Mississippi and that he had expected to hear from Johnson Monday morning. Johnson replied that he had promised to call Dean on Monday, that a specific time had not been set, and that Dean had promised to hold the job open until Tuesday morning . Dean disputed this. Dean testified in substance that in the Friday conversation Dean had told Johnson to let him know by Monday at dinnertime and that Monday night after dinner Dean called Tom Robinson and told him that Dean had not called back, and Robin- son replied that Dean should "go on ahead and tell Howard ( Hamil ) that he had somebody else." On credibility grounds I credit Johnson as to when he was to call Dean back. From Dean 's treatment of Johnson on June 9 and 12 I conclude that the offer of a job was tainted and was no longer a bona fide offer such as would toll any backpay. Firstly, it was unreasonable for Dean to demand and expect an immediate yes or no answer at 10:30 p.m. Secondly, when Dean did not hear from Johnson Monday by the time Dean al- leged was set, he hastened to report Johnson's al- leged failure to Robinson rather than first phoning Johnson to seek his answer. Thirdly, when later that Monday night Dean learned that Johnson wanted the job and disputed when he was to have let Dean know, Dean made no effort to contact Robinson to explain the situation and see if Johnson could have the job. As Dean was hostile to the Union, as found above, and as Dean knew that Johnson had signed a union card and was the principal proponent of the Union, as found above, and as no other reason than antiunion considerations appears for Dean's treat- ment of Johnson, I conclude on the preponderance of the evidence that Supervisor Dean handed the job offer to Johnson as he did on June 9 and 12, because of Johnson's union activities, in order to bar Johnson from returning to Respondent's em- ploy, in order to discourage further employee sym- pathy and support for the Union, and to defeat the Union at the upcoming June 19 election. The tim- ing of Johnson's orginial severance, just as the date of the election was being set, 17 days hence, the fact that he was selected for severance by Super- visor Hogan, whose union hostility was demon- strated in the record, the fact that he was never re- called to the same job or ever reinstated to any job, the unconvincing nature of Respondent's defense including the offer of another job tainted by Super- visor Dean's hostility to the Union, and the prepon- derance of the evidence in the entire record con- sidered as a whole proved, and I find, that Respon- dent discharged Johnson on June 2 and has since then failed to reinstate him because of his union ac- tivities, in order to discourage further employee sympathy and support for the Union, and in order to defeat the Union at the June 19 election, Respondent thereby violating Section 8(a)(3) and (I) of the Act. IV. THE CHALLENGED BALLOTS AND RESPONDENT'S OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION At the election the Union challenged the ballots of Dean, Hogan, and Underwood on the ground that they were supervisors. Supervisors were ex- cluded from voting in the Stipulation for Cer- tificarition Upon Consent Election executed by the parties. As they were in fact supervisors within the meaning of the Act they were not entitled to vote. The challenges to these three ballots should be sustained , and these three ballots should not be opened and counted. At the election the Company challenged the bal- lots of James L. Johnson and James Sims on the ground that they were no longer working for it. This was true as to Sims, who was discharged in early June , and whose ballot should not be opened ' I take official notice that the Board 's Regional Offices send copies of charges to the charged party as soon as clerically possible after they are filed TECHNICAL MAINTENANCE, INC. 729 or counted. As Johnson had been unlawfully discharged and would otherwise have been still em- ployed on election day, his ballot should be opened and counted. Respondent filed timely objections to the elec- tion alleging that between the petition and the elec- tion the Union offered economic inducements to the employees, such as waiver of initiation fees and/or reduction of initiation fees and/or member- ship in the Union conditioned upon said employees voting for the Union. The record contains not a scintilla of evidence that the Union offered to waive initiation fees, offered to reduce initiation fees, or offered free membership in the Union to the em- ployees in return for the employees' voting for the Union. The record contains no proof of any economic inducements of any kind made to the em- ployees by the Union. In its brief Respondent urged that "the record shows that the initiation fees of the Union were reduced from $8 for a `BA' member to $4." The record showed that initiation fees were set by the Union's bylaws, and that initiation fees varied with different classifications of journeymen and depend- ing upon whether the new member chose to par- ticipate in the Union's insurance and pension plans. Concurrent with the organizing period the bylaws were being changed, affecting the amounts of the initiation fees. The changes, not shown in the record, were approved by the Union' s International office on April 11 and were put into effect by the Local on July 1, according to the Union 's assistant business agent. The latter testified that the initia- tion fee for a "BA" maintenance journeyman was $8. Employee Mercer testified he thought he was a BA member and that his initiation fee, paid after the election about July 6, when he received his membership card, was $4. None of the other em- ployees received their membership cards or paid their fees, insofar as the record showed, prior to the election. Above is all the record evidence on this point. It does not show any inducement in return for votes, and does not show any reduction of initiation fees in return for votes. The Local accepted members from other companies than Respondent and any changes in initiation fees presumably related to them as well as to employees of Respondent. The record did not show why any changes in initiation fees were made during this period or what changes were made. Certainly it did not prove any changes were made to influence the election herein or that any inducements were made to that effect. Under all these circumstances I recommend that the ob- jections to the election be overruled and that the election stand. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recom- mend that it cease and desist therefrom and that it take certain affirmative action designed to effectu- ate the policies of the Act. Respondent having unlawfully discharged James L. Johnson because of his actual or suspected union activities and because of the other reasons stated above, and not having reinstated him, I recom- mend that Respondent make a bona fide offer to Johnson of immediate and full reinstatement to his former or substantially equivalent position 9 without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, June 2, 1967, the date of the discrimination against him, to the date when, pursuant to the recommen- dations herein, Respondent shall offer him rein- statement, less his net earnings during said period (Crossett Lumber Co., 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make available to the Board, on request, payroll and other records in order to facilitate the checking of the amount of the backpay due. In the light of the entire record, I recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the follow- ing: CONCLUSIONS OF LAW 1. Technical Maintenance, Inc., of Pasadena and Beaumont , Texas, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Wor- kers, AFL-CIO, Local 390, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of James L . Johnson, thereby discouraging membership in the above- named Union , Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act. 4. By interrogating and interfering with em- ployees concerning their union activities, by solicit- ing the withdrawal of union authorization cards, by threatening loss of jobs if the Union came in, by threatening that if employees did not stop their union activity Respondent would stop or curtail coffeebreaks and stop permitting employees to ' The Chase National Bank of the City of New York, San Juan , Puerto Rico Branch , 65 NLRB 827 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have cigarettes in their pockets, by threatening that since Respondent had received a letter from the Union the employees would get no more raises, Houston Chemical would probably break its con- tract with Respondent, and the employees could lose their jobs, and by other acts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. The aforesaid 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 preponde- rance of the evidence in the entire record con- sidered as a whole, I recommend that Technical Maintenance, Inc., of Pasadena and Beaumont, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Electrical Workers, AFL-CIO, Local 390, or any other labor organization of its employees, by discriminating in regards to their hire or tenure of employment or any term or condi- tion of employment. (b) Interrogating employees concerning their union activities, sympathies, and expectations. (c) Soliciting employees to withdraw their union authorization cards. (d) Threatening that if the Union came in Respondent would probably lose its contract with Houston Chemical and the employees would lose their jobs. (e) Threatening that if employees did not stop their union activity Respondent would stop or cur- tail coffeebreaks and start cracking down on em- ployees who have cigarettes in their pockets. (f) Threatening that since Respondent had received a letter from the Union the employees would get no more raises, Houston Chemical would probably break its contract with Respondent, and the employees could lose the jobs. (g) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of their rights to self-organization, to form labor organizations, to join or assist International Brotherhood of Electrical Workers, AFL-CIO, Local 390, or any other labor organization, to en- gage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Make a bona fide offer of reinstatement to, and make whole, James L. Johnson for any loss of pay he may have suffered by reason of the dis- crimination practiced against him, in accordance with the recommendations set forth in "The Remedy" herein. (b) Post at its offices in the Houston Chemical plant in Beaumont, Texas, copies of the attached notice marked "Appendix." '0 Copies of said notice, on forms provided by the Regional Director for Re- gion 23 (Houston, Texas), after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respondent's employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. ti RECOMMENDATIONS IN THE REPRESENTATION CASE For the reasons given above, and upon the pre- ponderence of the evidence in the entire record considered as a whole, I recommend that: 1. The ballots of Dean, Hogan, and Underwood not be opened or counted. 2. The ballot of Sims not be opened or counted. 3 The ballot of Johnson be opened and counted. 4. Respondent's objections to the election be overruled and the election held to be valid and con- trolling. 10 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " 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 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of the Na- tional Labor Relations Board and in order to effec- tuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate employees con- cerning their union activities , sympathies, and expectations. WE WILL NOT solicit employees to withdraw their union authorization cards. WE WILL NOT threaten that if International Brotherhood of Electrical Workers, AFL-CIO, Local 390, comes in, Technical Maintenance, Inc., will probably lose its contract with TECHNICAL MAINTENANCE, INC. 731 Houston Chemical Corporation and our em- ployees would lose their jobs. WE WILL NOT threaten that if employees do not stop their union activity we will stop or curtail coffeebreaks and start cracking down on employees who have cigarettes in their pockets. WE WILL NOT threaten that because of the Union employees will get no more raises, Houston Chemical Corporation will probably break its contract with us, and our employees could lose their jobs. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of the rights to self-organization, to form labor organizations , to join International Brotherhood of Electrical Workers , AFL-CIO, Local 390, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make a good -faith offer to James L. Johnson to give him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges previ- ously enjoyed. WE WILL make whole James L. Johnson for any loss of pay suffered by him by reason of the discrimination practiced against him in ac- cordance with the recommendations of the Trial Examiner 's Decision. All our employees are free to become or refrain from becoming members of International Brother- hood of Electrical Workers, AFL-CIO, Local 390. TECHNICAL MAINTENANCE, INC. (Employer) Dated By (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 6617 Federal Office Building , 515 Rusk Avenue, Houston, Texas 77002, Telephone 228- 0611.