ACS Industries, Inc.

ACS INDUSTRIES, INC. 383 ACS Industries, Inc. and United Rubber, Cork, and Plastic Workers of America, AFL-CIO 1, Cases 16-CA-3813, 16-CA-3867, and 16-RC-5342 February 4, 1971 DECISION AND ORDER BY MEMBERS FANNING , BROWN , AND JENKINS On August 14, 1970, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain un- fair labor practices within the meaning of the Nation- al Labor Relations Act, as amended, and recommended that it cease and desist therefrom and take certain affirmative action as set forth in the atta- ched Trial Examiner's Decision. The Trial Examiner also made certain rulings with respect to 15 chal- lenged ballots,' objections to the election conducted on January 22, 1970, and the holding of a new elec- tion. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Union filed cross-exceptions to the Trial Examiner's Decision and a memorandum 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 proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, and briefs, and the entire 'record in the cases, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that i Herein called the Union 2 The challenges were sufficient in number to affect the results of the election as 29 votes were cast for and 24 against the Union . The Trial Examiner recommended that 2 challenges be sustained, that the challenges to the ballots of 13 employees be overruled , and that the latter ballots be opened and counted by the Regional Director. The Trial Examiner also considered a number of objections to the election and recommended that two be sustained . He further recommended that a new election be held if the Union does not receive a majority of the valid votes cast. While we agree that the 13 ballots should be opened and counted , we are at this time withholding judgment on the objections and shall rule thereon only in the event the Union fails to achieve majority status. Respondent, ACS Industries, Inc., Miami, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner 's Recom- mended Order.4 IT IS FURTHER ORDERED that Case 16-RC-5342 be, and it hereby is, remanded to the Regional Director for Region 16 to open and count the ballots of Sam Bunce, Tommy Sutton, Raymond Smith, Carl Ran- dolph, Mamie Kyser, Justine Vanover, Gene Van- over, Larry Sirmans, Robert Atkinson, Charley Blalock, Robert Crider, Jack Chandler, and Paul Trimble, and to issue a revised tally of ballots and a certification of representative if United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, receives a majority of the valid votes cast. In the event the said labor organization does not re- ctiive a majority of said votes, the Regional Director shall transfer Case 16-RC-5342 to the Board for con- sideration of the objections to the election. 4 1n footnote 17 of the Trial Examiner's Decision , substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner : A complaint was issued by the General Counsel in Case 16-CA-3813 against the Res- pondent on January 16, 1970, pursuant to a charge filed by the Charging Party on November 17, 1969 . The complaint alleged that the Respondent discharged or laid off eight employees in November 1969 in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, and that the Respondent had engaged in other acts and conduct consti- tuting independent violations of Section 8(a)(1) of the Act. Subsequently, on March 23, 1970, the General Counsel is- sued a complaint in Case 16-CA-3867, together with an order consolidating Cases 16-CA-3813 and 16-CA-3867. This complaint, which was issued pursuant to a charge filed by the Charging Party on February 1, 1970, alleged that the Respondent had discharged one additional employee on or about January 29, 1970, in violation of Section 8(a)(3) and (1) of the Act, and that it had engaged in further acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. Meanwhile, on January 22, 1970, the Board's Regional Director, Region 16, conducted an election among the Respondent's employees pursuant to a Stipulation for Certi- fication upon Consent Election (Case 16-RC-5342). The Petitioner in Case I6-RC-5342 (the Charging Part y in Cases 16-CA-3813 and 16-CA-3867) timely filed objec- tions to conduct affecting the results of the election. On April 3, 1970, the Regional Director issued a Report on Objections and Challenged Ballots and Order Consolidat- ing Cases in which he directed that Case 16-RC-5342 be consolidated with Cases 16-CA-3813 and 16-CA-3867 for the purpose of hearing, ruling, and decision on the objec- tions and challenged ballots. A hearing was held by me on April 21-23,1970, at Miami, Oklahoma, on the unfair labor ractice allegations of the two consolidated complaints anion the representation case questions . All parties were represented by counsel and fully participated in the hearing. Briefs submitted by all parties after the hearing have been fully considered. 188 NLRB No. 65 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, my consideration of the briefs, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent, a Rhode Island corporation having its principal office in Woonsocket, Rhode Island, operates a )ant at Miami, Oklahoma, where it is engaged in the manu- acture of rugs, carpeting, and related products. During the year prior to the issuance of the complaint the Respondent shipped more than $50,000 worth of finished products to out-of-State destinations. Upon the foregoing facts I find, as the Respondent ad- mits, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Charging Party, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In the latter part of 1968 the Respondent arranged with the Oklahoma Industrial Authority to take possession of a large building which had formerly been occupied by the Crane Plumbing Supply Company and to install various kinds of carpetmaking equipment. The negotiations in 1968 were handled largely by Richard Schweitzer, the Respondent's vice president, whose headquarters are at Woonsocket, Rhode Island. Schweitzer, who was the principal actor for the Respon- dent in the events involved in this case, went out to Miami on April 15, 1969, to oversee the initial stages of the installa- tion of the complicated machinery used in the Respondent's carpetmaking operations. Schweitzer remained in Miami 3 weeks out of 4 until the end of June. Except for several days in September, Schweitzer did not return to Miami until Thursday, November 6, 1969, just before the events in- volved in this case. At the time the installation of the machinery and equip- ment commenced John Weitz was sent out from Woonsock- et to be in charge. Weitz served as plant manager from the time production operations commenced some time in Sep- tember until November 7, 1969, just before the discharges which are the principal issue in this case. As the installation of machinery and equipment pro- gressed a number of the employees who were no longer needed on construction work and who had shown them- selves to be good workers were transferred to production operations. The Respondent planned to have over 400 em- ployees during peak operations and needed to do consider- able training of employees as there were no employees in the area who were experienced in working on the complicated machinery and equipment used by the Respondent in its carpetmaking operations. The Respondent found it neces- sary to recruit some experienced employees from rugmak- ing centers in Georgia. The Respondent's plant at Miami is set up to manufac- ture two main types of carpeting. One of these is tufted, or regular, carpeting. In the second-half of 1969, the market for tufted rugs was very poor and consequently the Respondent was not making any tufted rugs on a production basis at this time. It was making some samples , however. The second type of carpeting which the Respondent makes is indoor- outdoor carpeting, which is pproduced both in room-sized rugs and 12-inch squares, called tiles. There are three main steps in the production of indoor- outdoor carpeting. The first step, if I understand the process correctly, is on what the Respondent terms the needle line on which fiber is punched into a backing material called scrim. To make plain indoor-outdoor carpeting a latex seal- er is added and material is put through a I20-foot-long drying oven, which is the second step in the process. If cushion-backed carpeting is desired, a layer of polybutulene foam is added, in addition to the latex and then the material is put through the dryer . The third step in the process, which is involved only where tiles are being made, is on what the Respondent terms the tile lines. On these two lines machines cut six 12-inch squares out of 6-foot widths of carpeting. On October 21, 1969, Curt Morris, a new employee of the Respondent, was sent to the Miami plant as a development engineer. As part of his assigned duties he was to effect a changeover in the type of tile being manufactured. The new-type tiles had the adhesive spread by machine directly on the carpeting. Previously the Respondent had used a tape with glue on both sides in an effort to furnish the proper adhesive quality. However, the Respondent found that this type of tile did not adhere to surfaces as well as desired. Consequently , it decided to discontinue making the old-type tile and to concentrate on making the new type which is referred to in the record as "sticky -back" tile. When the Respondent commenced producing the sticky- back tiles it discovered that its tile -cutting machines would not cut them properly into the desired 12-inch squares. The machine became jammed with glue. The Respondent commenced making numerous adjustments and changes on the tile-cutting machines in an effort to solve its tile-cutting problems. This was the situation at the plant when Vice President Schweitzer arrived there on Thursday afternoon, November 6, 1969 , accompanied by George Botvin, the Respondent's president. There were several reasons for Schweitzer 's and Botvin's visit to' the plant at this time, according to Schweitzer's testimony. For one thing the Respondent had scheduled a tour of the plant by the county commissioners on Monday, November 10, and Schweitzer was to give a talk to the chamber of commerce that week . Two other factors contri- buted to the decision to visit the plant at this time . Schweit- zer testified that labor costs were very high per unit of production at that time and also the Respondent was having serious problems with the cutting of its new sticky-back tiles. They wished to do what they could to solve both of these problems on this visit. One of the first actions taken by Schweitzer and Botvin was the replacement of John Weitz as plant manager with Curt Morris, who had been at the plant approximately 3 weeks. This was announced to the employees on Friday morning, November 7. Weitz was placed in charge of the needle fine. ACS INDUSTRIES, INC. B. The November 1969 Discharges and Layoffs in Violation of Section 8 3) and (1) of the Act 1. The employees decide to seek union affiliation ; the November 10 union meeting; related events Discussions among the Respondent 's employees concern- ing the desirability of having a union in the plant commenced in the second half of October 1969. The Respondent soon became aware of these discussions, as is indicated in the comment of Plant Manager Weitz to several employees about the middle of October that "this place will never go union .. . Botvin (the Respondent's president) will close it down first."' These discussions led Sam Bunce and Tommy Sutton, who worked on the oven line, to consult with Joe Johnson, a representative of the Union . Johnson suggested obtaining the signatures of employees favoring a union to determine if there was enough interest in the Union to proceed further. Thereafter Bunce and Sutton circulated papers for em- ployee signatures . Bunce obtained the signatures of 9 em- loyees, Sutton secured about 20 signatures, and Claud Starks signed up 8 or 9 employees on a blank piece of paper which he referred to as a petition ." These signatures were obtained in the plant during break and lunch periods and also in the course of visits to the employees ' homes. Bunce turned these "petitions" over to Union Representative Joe Johnson and arranged with him to hold an organizing meet- ing at the Rubber Workers' hall in Miami on Monday night, November 10. Bunce contacted other employees and as ed them to invite employees to the meeting. The meeting was held as scheduled . It lasted 1 1/2 hours. Shortly after the meeting got started Jackie Johnson, the foreman over the oven line, received a message at his home from an unidentified person that the employees were having a union meeting. Johnson notified Weitz, then the foreman of the needle line, of the union activity then in progress, and Weitz in turn promptly informed Vice President Schweitzer of this development. When Weitz called Schweitzer between 8 and 9 p.m. that night, he informed Schweitzer , as Schweitzer himself testi- fied, that "he and Jackie Johnson were going to scout around and see what was going on." As Johnson and Weitz testified, they "rode around town" for "thert or forty-five minutes" looking for a union meeting, end ng up at the Rubber Workers hall after the meetinghad apparently end- ed. Bunce testified that after he and two other employees left the meeting in Bunce's car and were about a block from the Rubber Workers' hall, Johnson started following him in his car and that after doing so for about 2 blocks, Johnson pulled up along side of Bunce's car and peered in. Johnson testified that he did observe Bunce and the others in Bunce's car earlier that evening, before he received the message about the union meeting, and that this did not occur near the Rubber Workers' hall. For reasons more fully discussed below, I credit Bunce's testimony concerning this incident and find that Johnson's observation of Bunce in his car occurred after the union meeting and that Johnson at least i This is the credited testimony of Justine Vanover Weitz was not ques- tioned about this incident Weitz, when asked whether he had talked "to any employees about the union at all," replied that "It has come up in conversa- tion .. . just a lot of kidding " I do not regard this testimony as contradicting Vanover's specific testimony quoted in the text above. Weitz' threat to Van- over and the others is alleged in the complaint in Case 16-CA-3813 as a violation of Section 8(aXI) of the Act This allegation is fully substantiated by the evidence 385 suspected at that time that Bunce and the others in his car had attended a union meeting. James Jones, one of the employees on the take-up end of the oven line, testified that early the next morning, Tuesday, November 11, Foreman Johnson questioned him as fol- lows: Did you hear anything about a meeting last night? I said, "Yes." He said, "How many people were there?" I told him about 80 or 90 percent of^the employees were there, and he wanted to know what it was all about, and I told him that I had told him all I could tell him. He asked me-everything that I told him-everything you tell me will be in the strictest confidence and I told him I still couldn't tell him anything else. Johnson's testimony is as follows: Somebody said something to Jimmie Jones about a meeting or a gathering and Jones and myself and a few other couples had been talking about getting together and listen to him play the guitar, because he is a real good singer, and I asked him, "Did you all get together? Who was there? Did you get drunk?" He said, `No, it was a union meeting." I said, "Oh," and I shut up. Q. Did you ask him who was there? A. In the initial question, yes, in regard that I thought it was a bunch of them getting together to make music. Q. After he described it as being a union meeting, did you ask him who was there? A. No. I may be unduly skeptical, but I cannot believe that this supervisor who admittedly had spent 30 to 45 minutes the night before driving around town trying to locate a union meeting place, would infer upon hearing a reference to a meeting early the next morning that this was a reference to a social gathering. As appears below, Johnson reported to Schweitzer the morning after the union meeting that 80 to 90 percent of the employees had attended the meeting. Un- der all the circumstances I cannot accept Johnson's version of this conversation. When Schweitzer arrived at the plant the morning follow- ing the meetmg he asked Foreman Johnson, as Schweitzer testified, "what was going on." Johnson replied that "he knew there was a meeting but that as far as he had gathered 80 or 90 percent of the people of the plant were there." Johnson added that he "had gone down to the Rubber Workers Hall and there wasn't anybody there." Johnson immediately went on to say, Schweitzer's testimony contin- ues, that "He had seen a couple of the fellows-he didn't give any names-riding around town." It is this testimony which leads me to accept Bunce's version of Johnson's following Bunce's car in preference to Johnson's. Since Johnson's observation of the employees riding around town had no significance except in connec- tion with their attendance at a union meeting, I infer, from Johsnon's reporting to Schweitzer his observation of the employees at the same time he passed along to Schweitzer his information concerning the union meeting, that Johnson at least suspected that Bunce's outing was connected with attendance at the union meeting, that the incident occurred after the union meeting, as testified to by Bunce, and that Johnson, in following Bunce, was engaging in surveillance of employees attending the union meetmg.2 After questioning Foreman Johnson concerning his knowledge of the union meeting on Tuesday, November 11, Schweitzer went up to Gene Vanover and two others as they were working in the plant and, according to Schweitzer s 2 I conclude, as alleged in the complaint in Case 16-CA-3813, that this conduct constituted interference, restraint , and coercion in violation of Sec- tion 8(a)(1) of the Act 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD own testimony, asked them as follows: "I understand that there was a big meeting last night. What went on?" Vanover parried the question. After Schweitzer commented that he had heard that "just about everybody was there," Vanover admitted that he also had attended. Later that morning Lonnie Spurgeon approached Schweitzer about a raise. After Schweitzer said that he would leave that to the discretion of the plant manager, Schweitzer stated, "We have got some weeding out to do around here .... We have a mess to clean up." But, Schweit- zer added, "You are not one of the weeders outers."4 That same morning Paul Skidmore, supervisor over the Respondent's tufting operations (Skidmore's supervisory status is discussed below in part IV), told Gene Vanover as follows: Gene, you don't want to say nothing about the union around here .... I want you to know that none of the factories under this ACS is represented by unions, and if you say anything you will be discharged.5 Vanover further credibly testified that Skidmore said to him on this occasion, referring to the Union, that "there isn't going to be any, because Botvin will move it out before a union represents them." Skidmore was not called as a wit- ness. On the following day, Wednesday, November 12, Fore- man Johnson asked both Sam Bunce and Linda Zentz whether they had attended the union meeting. When both admitted that they had, Johnson asked both "who all was there." Bunce declined to say, and Zentz said "everyone." Johnson was not questioned about his conversation with Bunce. Johnson admitted asking Zentz, "Did you go anywhere last night," and testified that she replied, "I went to a union meeting." Johnson immediately added that Zentz volunteered that Everybody went." I have found Johnson to be unreliable in connection with his testimony concern- ing his conversation with James Jones and credit the testi- mony of Bunce and Zentz.6 2. The discharge of Tommy Sutton and Sam Bunce on November 12 Both Sutton and Bunce were hired in July to work on the installation of machinery and equipment, Sutton as a pipe- fitter and Bunce as a welder's helper. When the oven line was put in operation both men were transferred to this 3 The testimony quoted in the text above is Schweitzer's Vanover's version that Schweitzer said, "I guess you know that I know everybody was there," is not inconsistent with Schweitzer's Neither version, in my opinion , supports paragraph 7(c) of the complaint in Case 16-CA-3813, which alleges that Schweitzer told the employees that Respondent "was maintaining surveil- lance of its employees' union activities and meetings " This allegation is hereby dismissed. However, Schweitzer's questioning of Vanover, when viewed in the light of the Respondent's surveillance of the union meeting and the disenmmatory discharges and other coercive conduct found below, vio- lated Section 8(a)(1) of the Act, as alleged in the complaint. 4 Schweitzer explained his reference to "a mess" as follows "I was talking about the number of people that we had who were in training that I had to let go and the waste problem and the problem I had with the tile cutter " While Schweitzer's statement quoted in the text above is alleged in the complaint in Case l6-CA-3813 to violate Section 8(aXl) of the Act, I find it too ambiguous to warrant such a conclusion . This allegation is hereby dismissed. 5 This threat clearly violated Section 8(a)(1) of the Act , as alleged in the complaint in Case 16-CA-3813. 6 Johnson's questioning of Bunce and Zentz on November 12, as well as his interrogation of Jones on the previous day, is alleged as a violation of Section 8(a)(1) of the Act This conduct, particularly Johnson's inquiry of the employees as to who attended the union meeting, is clearly proscribed by the Act operation. Sutton was assigned to operate the foam machine which controls the mixture of the foam to be applied to the carpeting. It was his responsibility on this job to adjust various dials and valves which control the viscosity and the weight of the mixture, which varies depending upon the type of carpeting being run. At the time of his discharge Sutton was assigned quality control duties and at the same time was training a new man on the foam machine. Sutton's quality controll duties involved checking the amount of foam being applied both before drying and after the carpeting had passed through the oven. When he found that the weight of the foam was either over or under the weight specified, Sutton would have to adjust the ruler which determined the thickness of the foam, usually in accordance with the in- structions of Foreman Johnson. Even after adjusting the ruler the foam would not remain the same thickness consist- ently. However, Sutton testified without contradiction that he received no complaints from management about improp- er foam thickness. Bunce worked at the other end of the oven line as slitter operator. The slitter operator controls the knives which trim the selvage off the carpeting and cut the carpeting to the desired widths and lengths. In connection with these duties, the slitter operator operates controls which guide and posi- tion the carpeting as it passes through the knives. At the time of the discharges the Respondent was using nonpre- shrunk scrim as backing for the carpeting and it was shrink- ing in the drying process, the carpeting emerging from the oven at times only 12 feet, 1 inch wide, rather than the proper width of 12 feet, 4 inches wide. Extreme care had to be exercised in positioning the carpeting to run through the knives with only 1-inch leeway, and almost constant atten- tion was required to see that the carpeting came out the full width desired. But the slitter operator hag other duties also, including checking the thickness of the foam with a small gauge and reporting variations in thickness. The slitter oper- ator controlled the operation of the wrapping machine, re- corded the footage going into each roll, and ticketed each roll. The slitter operator also acted as leadman over the crew handling the rolling, wrapping, and the disposition of the wrapped rolls of carpeting. Bunce credibly testified that on November 10, before the union meeting, Foreman Johnson commented to him as follows: "Bunce, you are doing a hell of a good job here. Just keep up the good work." Johnson, although later called as a witness by the Respondent, did not deny Bunce's testi- mony in this regard. Both Sutton and Bunce received substantial wage in- creases after being assigned to production operations. Sut- ton was raised from $2.20 to $2.50 per hour and Bunce's wages went from $1.85 to $2.25 per hour. Several weeks after being transferred to the foam machine, Sutton was offered a job by Plant Manager Weitz as foreman on the night shift at $3 per hour and a guaranteed 50-hour week. Sutton said he would take the job at $3.25 per hour, but the Respondent refused to go along with this proposal. On Wednesday morning, November 12, the Respondent was running some expensive tufted carpeting through the oven. Like the other carpeting made with nonpreshrunk scrim, it was coming out of the oven only 12 feet, 1 inch wide, making the trimming of the selvage very difficult. Schweitzer observed Bunce operating the slitter that morn- ing and cautioned him, as Schweitzer testified, that the ma- terial was "very narrow" and to make as narrow a cut as he could on his side to avoid cutting too deeply into the mate- rial on the far side which he could not see. According to Schweitzer, he observed Bunce at various times that morn- ing, sometimes he was doing it right, and he told him to keep ACS INDUSTRIES, INC. it that way. But more often, Schweitzer testified, Bunce was not keeping the cut sufficiently narrow on his side. At 9:30 that morning both Bunce and Sutton were sum- moned to the office by Foreman Johnson. As Bunce credi- bly testified, Curt Morris, the new plant manager, announced that the Respondent was having a "cutback," and that they were "the first two to go." Schweitzer then spoke up, saying that the Respondent had put them in the position of leadmen and that they had let the Respondent down . According to Schweitzer's testimony, he also told them that they were not sufficiently "quality conscious." When Sutton inquired why he was being selected Schweit- zer mentioned that there were 10 thousand pounds of foam that could not be accounted for and that the foam was too thick. It does not appear that Schweitzer even consulted Fore- man Johnson, the immediate supervisor of Sutton and Bunce, before deciding to discharge them . Rather, Schweit- zer, as his testimony reveals , decided to discharge both Bunce and Sutton after observing them intermittently at work for about 2 hours on the morning of November 12. After being discharged Sutton and Bunce went back to the oven to get their belongings . Foreman Johnson was up on the catwalk . According to Sutton, Bunce asked Johnson "What's the real reason for us being fired?" Johnson replied, Sutton's testimony continues, "Well, I heard you and Tom were the ones that got the union started." Bunce's testimony is to the same effect. Johnson denied making any such statement. His version of the conversation is as follows: Sam Bunce come up the side of the machine and he said, "Say, can you tell me the real reason we got fired?" He said, "Was it because of the union activity?" I said, "Man, I don't know." I said, "I know nothing about it and I got my tail chewed the same as you did. I have found Johnson's credibility wanting in other respects and do not credit his testimony on this point. I credit the mutually corroborative testimony of Sutton and Bunce. Around November 20 or 21 , Bunce encountered Fore man Weitz at Billy's Pool Hall. According to Bunce, he asked Weitz "what we got fired over." Weitz answered, "I guess it was the union.... I might be down there with you in a couple of weeks." While admitting to a conversation with Bunce on this occasion, Weitz denied attributing Bunce's discharge to his union activities . While Weitz was no longer in the Respondent's employ at the time of the hearing and thus was not an interested witness in this sense, his testimony as a whole nevertheless strongly favored the Respondents position . At times, in an apparent effort to bolster the Respondent's case , he gave testimony about matters about which he was not adequately informed. On the other hand, Bunce, while an interested witness, im- pressed me as attempting to be truthful . It would be contra- ry to my impression of Bunce for him to have made up this testimony out of the whole cloth . Accordingly, I credit Bunce's testimony. 3. The discharge of the tile line employees on November 12 to 14 As found above, when Schweitzer and Botvin arrived at the plant on November 6, the Respondent was experiencing difficulty with its two tilecutting machines ; they would not cut the tiles properly. On Saturday, November 8, through Wednesday, November 12, the Respondent did not run any of the new type sticky-back tiles (on Monday, November 10, the Respondent made a demonstration run of the old-type tiles for the benefit of the county commissioners ). The Res- pondent was seeking by trial and error to readjust the ma- 387 chines so that they would cut the tiles properly . The two regular tile machine operators, Raymond Smith and Carl Randolph, were actively engaged in this experimenting on Saturday and Monday. Employees were brought in from the machine shop on Tuesday and Wednesday to continue the experimenting. Smith and Randolph were assigned both days to help in the construction of additional racks needed in the plant. The other tile line employees were either reas- signed to other jobs or were told not to report for duty. On Wednesday, as Schweitzer testified, he concluded that the Respondent was not going to be able to cut the new-type tiles without using a release paper . (For a week or two the Respondent had been unsuccessfully attempting to cut the tiles without any release paper although the samples cut at Woonsocket had had a release paper attached .) Using a thin sheet of plastic as a release paper , the sticky-back tiles cut satisfactorily. The problem remained , according to Schweit- zer, of obtaining prompt delivery on sufficient quantity of plastic needed to go into full production. Mamie Kyser was one of two inspectors on one of the tile lines. She was the senior employee of all four inspectors. Kyser testified that her work had never been criticized. Don Rickard, Kyser's immediate foreman on the tile line, was not called as a witness. Kyser attended the November 10 union meeting and there signed a petition authorizing the Union to represent her. Kyser did not work November 11, Veterans Day, and on Wednesday, November 12, Kyser was assigned to the nee- dle line. After Kyser completed her shift that day at 4:30 p.m., John Weitz, who was then the foreman over the needle line, informed her that she was being laid off , that the Res- pondent was cutting back production . When Kyser inquired how long she would be laid off, Weitz told her it would be "for good." Raymond Smith and Carl Randolph, as stated above, were the Respondent's two tile machine operators . As stated above, the tile machines cut 6 feet rolls of carpeting into 12-inch by 12-inch squares. Smith and Randolph both at- tended the union meeting on November 10 and signed the union authorization petition on this occasion. The tile machine operators were responsible for threading the carpet into the machines , and while the machines were operating had to see that the right oil and cutting pressures were maintained . They were also responsible for seeing to it that the tiles were properly boxed after they were cut. After each shift the tile machine operators had to service the machines, mark the carpet, and every other day the tile machine operators customarily installed new knife blades. The length of time spent by them on this after-shift servicing was left to their discretion. After Smith worked on the tile line about 3 weeks, he was made leadman on the night shift , where he was in charge of about six other tile line employees . At this time Smith was given a 25-cent-per-hour increase to $2.25 per hour, the second wage increase Smith received while on the tile line (Smith had been given a 20-cent-per-hour raise only about 2 weeks earlier). Smith was frequently complimented con- cerning the quality of his work by the Respondent's supervi- sors. Not long before Smith's discharge the Respondent offered him a foreman's job but Smith refused, saying that with all his overtime he could make more money on the timeclock. Only a few days before Smith was discharged Smith in- quired of Schweitzer about his prospects with the Respon- dent, , explaining that he wanted to trade cars . Schweitzer, as Smith testified, told him, if you want to trade, go ahead. He said, "You will never have to worry about ever 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being fired and the only way you will ever leave here is quit, as far as I am concerned, and you can retire with the company." This testimony is not denied by Schweitzer. Randolph, like Smith, was given a 25-cent-per-hour wage increase while on the tile line, raising his wages to $2.25 per hour. Randolph also was frequently complimented by the Respondent's supervisors about doing a good 'ob. On Tuesday morning, November 11, Smith and Ran- dolph were told by Paul Trimble to assist him in installing racks. Smith and Randolph continued doing this work until Thursday noon, November 13, when Schweitzer and Weitz came over to where they were working. Then the following ensued, according to Smith's credited and undenied testi- mon ick Schweitzer said, "Boys, don't get me wrong." He said, "There's nothing wrong with your work," but he said, "due to difficulties we are having, you know, the tile machines are down, and we are experimenting with the adhesive backing, and the ovens are down," and he said, "We are cutting back and we are going to have to let you go." And I said, "You are laying us off?" He said, "No, we are letting you go period." He said, "You are not good production personnel and you don't have a future with this company." And I said, "Dick, that's the first time I ever had a man to fire me and tell me I wasn't doing a satisfactory job." He said, "I didn't say that." He said, "Your work has been excellent," and he said, "We don't have any complaints about your work at all, but we just have to let you go." Justine Vanover's job was to catch the tiles as they came out of the tile machine, stack the tiles, and toss them to the inspectors below her, throwing out the selvage in the pro- cess. Vanover credibly testified-that her foreman, Don Rick- ard, had recently complimented her on "the real good job" she was doing under difficult circumstances in handling the sticky-back tiles. Rickard was not called as a witness. Vanover attended the union meeting on November 10 and signed the union authorization petition at the meeting. On November 10, Vanover had been instructed not to report for work on November 11 and 12. On November 13 she received word not to report to work and to check with her foreman Don Rickard by telephone on Friday morning, November 14. Unable to reach Foreman Don Rickard by telephone on Friday morning, November 14, which was payday, Vanover went to the plant at 1 p.m. She asked Rickard about her check and when she was supposed to come in to work. When Rickard evaded answering Vanover repeated her question. Rickard left to make a telephone call, returning a few minutes later and the following occurred, according to Vanover's credited and undenied testimony: [h]e said "Well, Justine, I am supposed to terminate ou." I said, "In other words, you are saying that I am tired?" And he said, "Yes." He said, Its not my doing." He said, "I have argued with Dick-Dic Schweitzer-and he told me that, I am supposed to terminate you." Pursuant to Rickard's suggestion Vanover went to Schweitzer's office and asked him why she had been fired. Vanover testified that Schweitzer told her, "Your work is unsatisfactory." When Vanover reported Schweitzer's ex- planation back to Rickard, he observed, according to Vanover's undenied testimony, "Well, Justine, you know that's not true.... My hands are tied.... I am sorry.... I have to do what they tell me." As Vanover left the plant on Friday, November 14, she noticed that her tile machine was in operation and that Betty Clark, who had not attended the November 10 union meeting, was doing her job. 4. The layoff of Gene Vanover and Ronnie Tuns on November 12 Gene Vanover was hired early in August as an acetylene torch operator and when production work commenced was assigned to the job of forklift operator . Ronnie Tims was hired in April as a laborer on construction work and at some undisclosed time was transferred to the job of tufting-ma- chine operator. Vanover attended the union meeting on November 10 and signed the union authorization petition at that time. Tims apparently did not attend the union meeting.7 Schweitzer approached Vanover at his work about 6 p.m. on November 1p2, and told him that he had some `bad news" for him. According to Vanover's credited testimony, Schweitzer said that he had talked to John Weitz and Don Rickard and "neither one of them want me to let you go, " but "production was down" and he was going to "let [Van- over] off for a couple of weeks ." In Vanover's words, Schweitzer concluded with the following suggestion: "Call Don or John in a couple of weeks."8 When Vanover called Rickard about 2 weeks later, Rick- ard said he would check into the matter and call Vanover back. However, Rickard did not call Vanover back. When Vanover called again, he was told that the Respondent could not use him at that time. On November 12, Schweitzer informed Tims that he was going to have to lay off Tims and a couple of other employ- ees. Schweitzer, afer mentioning the difficulties which the Respondent was experiencing getting the tufting machines to operate roperly, said, "We have a man coming in from the Singer Company to get it straightened out ... As soon as we get it straightened out, we will call you back." Schweitzer assured Tims that his work was all right, and said that the Respondent would call him back within 2 or 3 weeks. On Friday, December 5, Weitz called Tims at his home and told Tims that, after talking to Schweitzer and Botvin on the telephone, he had "got it straightened out as to why you were laid off" and to come in the following day when Schweitzer and Botvin would be at the plant . Tims talked with Schweitzer the next day at the plant . After mentioning the letter which he had received from the Board (on Novem- ber 17, 1969, the Union had filed with the Board's Regional Office unfair labor practice charges based on the separation of Tims and the others and also a representation petition under Section 9 of the Act), Schweitzer said that he was putting Tims back to work, as he had said he would. Tims reported back to work on Monday, December 8. After he had helped a welder for 2 hours, supervisor Paul Skidmore put him on a tufting machine . Later Skidmore had the following conversation with Tims: He asked me, he said, "You didn't sign a union card, did you?" I said, "No." He said, "I tried to tell them ^ou didn't." I said, "Who did yon you try to tell?" He said, Dick (Schweitzer) and Joh (Weitz). " He said, "Would you sign one if it came up again?" And I said, "No." 7 In response to a question from Schweitzer at the time he hired Tuns, Tims indicated that he thought that a good union was a very desirable thing 8 Schweitzer's version of this conversation is not at odds with Vanover's, set forth above ACS INDUSTRIES, INC. The foregoing is Tims' undenied testimony. Still later that day Skidmore observed to Tims as follows: You know, I come from down at Dalton, Georgia, and that's the carpet center of the world, and I don t know of one carpet mill down there that has a union. He said, "So a union is no good in a carpet mill," and he said, "George (Botvin) can do more for us here than any union can." 5. The Respondent's contentions; conclusions 389 largely inexperienced employees in operating complicated machinery and equipment. Some employees were switching back and forth between production operations and con- struction work. Some of the equipment was malfunctioning due to no fault on the part of the employees and this contri- buted to idle time and increased costs. Although the Res- pondent succeeded in making the two tile machines operate successfully on November 12, the Respondent not long thereafter discontinued using those two tile machines alto- ether, substituting one new larger and faster machine. Thus, the Respondent was experimenting with production methods. Higher costs are not to be unexpected in such ri d f i o s o experimentat on. Vice President Schweitzer testified that when he and Pres pe [dent Botvin arrived at the plant on November 6, he already is difficult for me to believe that with the Respondent p y attempting to build up its workforce to many times its then had made plans for a cutback in employment, that the labor level of 65 employees the Respondent would permanently costs for the Miami plant were grossly excessive, that the sever the employment of satisfactory and proficient em- Respondent had hired a number of employees for training plo ees that it had spent time and money trainin unless it purposes, and that he wanted to get rid of any excess em- had an ulterior motive for doing so. The cases of Tile Ma- ployees immediately. Schweitzer also gave as an additional chine Operators Smith and Randolph are particularly in reason for reducing employment the problems which it was point. We Respondent makes no claim that they were not having adapting its tile machines so that they would cut its proficient operators on these complicated machines. new sticky-back tile properly. Until these problems were Schweitzer admitted that he told both employees when he solved, the Respondent would need less employees. discharged them that "they had done a good job in the Schweitzer admitted that he decided that the employees to plant, that he was sorry to have to let them go." Yet on be separated at this time were to be permanently discharged November 13, the day after the Respondent admittedly had rather than temporarily laid off. solved the cutting problems on the machines and knew that Schweitzer testified that he informed Curt Morris, whom it could resume production on the machines as soon as Schweitzer and Botvin had just named as plant manager, delivery was received of the plastic release paper, the Res- that he, Schweitzer, would make the cutbacks, rather than pondent permanently discharged both Smith and Ran- Moms. Moms had been at the Miami plant less than 3 dolph.9 Justine Vanover is another experienced employee weeks at this time. Schweitzer himself, at the time he made on the tile line whom the Respondent permanently dis- the decision regarding the discharges, had been at the Mi- charged rather than temporarily laying her off, althou as ami plant only a few days since the end of June. In the cases Schweitzer admitted she was a 'good worker.' In of most of the employees whose discharges are here in- Schweitzer's words, "she had been one of the ones pushing volved, Schweitzer made the decisions as to who would be us for a raise" and in his view would be back at the plant let go without consulting the immediate supervisors of the pressing to be put back to work. affected employees. The Respondent's action in Permanently discharging em- The cutback affected 14 or 15 out of 60 to 65 employees, ployees for whom it temporarily had no work was in con- most of whom were discharged after the union meeting on trast with its past policy. Previously it had tried, by shifting November 10 (so far as the record shows, only two employ- employees about the plant and by transferring them from ees were discharged before the union meeting). In other production to construction work, to avoid even short peri- words, this was a sweeping reduction in force amounting to Pods of layoff. The fact that this change in policy was put into 20 to 25 percent of the workforce. The extent of the cutback effect but 2 days after the Respondent was informed that 80 is somewhat surprising in view of the fact that the Respon- to 90 percent of its employees had attended a union meet- dent was diligently striving to build up its production at the ing, suggests the latter action of the employees may have new Miami plant. The Respondent had ample orders for its been a factor in the Respondent's action in adopting the indoor-outdoor carpeting, including its new sticky-back new tough policy. tiles. Almost simultaneously with the discharges, Schweitzer The Respondent's explanation for the selection of the was announcing in a speech to the Miami Chamber of Com- various individual employees for discharge, when viewed in merce that the Respondent hoped to be employing 250 em- the light of all the facts, appear to be the kind of complaints ployees within 6 months, with an ultimate goal o over 400 that almost any employer can dig up after the event to employees. The Respondent had 160 employees at the time justify his decision. Few employees do such a perfect job of the hearing in April 1970. that their employer cannot refer to some shortcoming of the While the problems which the Respondent was having employees as ustifying the decision to discharge them. In with the tile machines may have warranted some temporary a new plant dike the Respondent's, with the Respondent lowering of the Respondent's employment levels at the time starting up operations with inexperienced employees on of the discharges here involved, a fact of which cognizance complicated machines with few experienced supervisors to will be taken in the remedy herein ordered, I am not per- train them, the possibilities of the employer pointing to suaded by the Respondents general explanations concern- errors by the employees are greatly increased. ing the need for the ermanent severance of such a lar p ge percentage of its workforce at this time. I discuss below the v Schweitzer's e Respondent's contentions regarding those of the dischar ed g employees as to whom the Respondent gave an explanation for their selection. While the Respondent's labor costs at the Miami plant were undoubtedly high, excess labor costs are almost inev- itable in connection with the starting up of any new manu- facturing business. Here the Respondent was training xplanation for permanently discharging Smith and Ran- dolph rather than laying them off is scarcely believable Thus, Schweitzer testified that he thought it would be from 6-8 weeks before the tile machines would be running again, and that he did not want any of the discharged employees coming back and pestering the office for their jobs Production was actually started on one of the tile machines on the following day and over 8,000 square yards were produced during the week ending November 21 But neither Smith nor Randolph was called to work 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the case of Sutton and Bunce the Respondent claims that they were not performing their jobs properly and did not have the potential to do so . Schweitzer reached this conclusion, so he testified , after observing them on and off for about 2 hours on the morning of November 12, when tufted carpeting was being put through the oven. This is a type of carpeting which was processe only very infrequent- ly at the plant. However, neither Bunce nor Sutton previous- ly had been seriously criticized because of the manner in which they were performing their work. Bunce had but 2 days earlier been praised by Foreman Johnson for the kind of a job he had been doing . Earlier the Respondent had offered Sutton a job as foreman on the night shift, which attests to the Respondent's opinion regarding his potentiali- ty at that time. According to the Respondent, on the morning of Novem- ber 12, Bunce was not guiding the carpeting through knives properly, with the result that the product was too narrow and there was an excessive amount of waste . Bunce, says the Respondent, was also guilty of permitting seconds to pass as first quality material. Schweitzer admitted that it required constant attention to the controls to avoid wastage on the carpeting with the very narrow selvage then being run. But, as found above , the slitter operator had other duties besides keeping his eye on the guidance control and it was difficult to do everything at once. Schweitzer also testified concerning confusion between Sutton and Bunce as to the precise duties of each . I agree that the record does show confusion in this regard . Howev- er, in my opinion this stemmed from a failure on the Respondent's part clearly to define their respective duties and adequately to supervise them in the performance of their duties . Such supervision would have entailed sufficient guidance by their foreman to enable them to avoid the difficulties which Schweitzer said he observed on the morn- ing of November 12. As it turned out, Bunce and Sutton's supervisor, Foreman Johnson, were relieved of their super- visory duties about 2 months later. With the exception of Mamie Kyser, the Respondent made no effort to explain the selection of the four tile line employees for permanent discharge . I have mentioned the cases of Tile Machine Operators Smith and Randolph whom Schweitzer admitted "had done a good)ob" and also the case of Justine Vanover, another admittedly "good worker." However, regarding Mamie Kyser, who was dis- charged by John Weitz, the foreman over the needle line, the Respondent offers various explanations. Weitz testified that when Kyser had worked on the needle line earlier, from about July 16 to September 16, "the boys that were running the line were raising heck with me that she wasn 't doing her job." Weitz' testimony continues , "I took her and put her on the tile machine and I started getting it from the girls down there and they were saying the same thing." Plant Manager Moms testified that it was reported to him by one of the girls on the tile line that Kyser refused to rotate positions on the tile line. Thus, the Respondent's case against Kyser is based solely on complaints received from other employees concerning her work both on the needle line and the tile line . But Kyser had not worked regularly on the needle line for about 2 months and this complaint was clearly stale. There is no evidence that the Respondent ever communicated either of these complaints to Kyser. The foreman over the tile Imes , Don Rickard, who was presuma- bly most familiar with the quality of Kyser's work , was not called upon to testify . As to the report that Morris received about Kyser's refusing to rotate, there is no evidence that rotating was required by the Respondent . Indeed, the testi- mony of Ruth Jones, who worked on the other tile line, indicates that rotating positions was optional with the em- ployees. Schweitzer's "main reason" for discharging Gene Van- over, as he testified, was to make room for Ronnie Cnder so as to avoid having to send Cnder back to Georgia. The Respondent had recruited Crider in Georgia . So Schweitzer gave Crider Vanover's job on the forklift and let Vanover go Schweitzer testified at this point , "a lot of these people were hard workers and I had nothing particular against them except I was cutting back at this point ." 10 This testi- mony might explain a temporary layoff for Vanover, but it does not explain why the Respondent did not recall Van- over when work picked up, as Schweitzer had said the Res- pondent would do when he laid Vanover off. As found above, the credited and undemed testimony of Vanover establishes that, unlike the other employees discharged at this time and like Ronnie Tims , Vanover was not discharged but was merely temporarily laid off . It was not until Van- over sought to go back to work in accordance with Schweitzer's instructions that he discovered that his tempo- rary layoff was in fact a permanent one. Ronnie Tims, who also had been temporarily laid off on November 12, was recalled to work 3 weeks later, after the Union had filed unfair labor practice charges challenging the discharge of Tims and others. The conversation between Supervisor Skidmore and Tims, quoted above, casts light on the Respondent's motives in recalling Tims and refusing to recall Vanover . In this conversation Skidmore obtained from Tims his assurance that he was not in sympathy with the Union and would not sign a union card 'if it came up again." In contrast, as found above, Vanover, unlike Tims, had attended the November 10 union meeting and had signed the union authorization petition at the meeting. Recapitulation I have concluded that the Respondent had an ulterior motive in discharging the employees here involved on No- vember 12 to 14, 1969. Various factors contribute to this conclusion. The Respondent at this time discharged a sub- stantial percentage of its entire workforce at a time when it was generally attempting greatly to expand its complement of employees. The Respondent had spent considerable time and money training inexperienced employees to operate complicated machinery and equipment; yet on November 12 to 14 the Respondent permanently discharged a number of these operators, some of whom the Respondent in effect concedes to be proficient operators. This permanent se- verance of efficient employees from the payroll was in sharp contrast to the Respondent's past policy. The timing of the discharges, commencing less than 2 days after 80-90 percent of the Respondents employees attended a union meeting (a fact of which the Respondent had been informed), and the marked change of policy which the discharges represented, give rise to the inference that the employees' action and the employer's subsequent action were not wholly unrelated. The inclusion of Sutton and Bunce, the two original instigators of the union movement at the plant, in the group to be discharged also has a bearing on the Respondent s underlying motivation in effecting the discharges . In view of Foreman Johnson's revealing com- ment to Sutton and Bunce immediately after their discharge about their being "the ones that got the union started," the inclusion of Sutton and Bunce among the dischargees can- 10 Schweitzer added in what appears to be an afterthought that Vanover was not good at paper work that he had checked in the office and found that Vanover was not turning in his tickets ACS INDUSTRIES, INC. not be regarded as fortuitous . And it will be recalled that Moms told Sutton and Bunce at the time of their discharge that they were "the first two to go." The inclusion of the original promoters of the union movement in the group discharged, of course, made the objection lesson posed by the sudden discharge of the group of union sympathizers all the more effective. Under all the circumstances I conclude that the Respondent's explanations for the selection of individual employees for discharge on November 12 to 14 were largely pretextual and that a significant factor in the Respondent s sweeping reduction in force on this occasion was, as indica- ted above, the Respondent's desire to pose an object lesson as to the possible consequence of affiliating with a union. The discharges of the seven employees and the layoff of Ronnie Tims, therefore, were violative of Section 8(a)(3) and (1) of the Act." C. The Discharge of Claud Starks on January 28, 1970 Starks was hired as a laborer on construction work in July 1969 and after production work started he was transferred to operating the console on the oven line. The console was a control panel containing approximately 30 controls and gauges for regulating, among other things, the speed of the carpeting through the oven and the temperature and air pressure in the oven. Careful attention to the movement of the carpeting through the oven and accurate synchroniza- tion of the controls was required, particularly when foam was being applied to insure that a proper quality product resulted. On January 12, 1970, a little over 2 weeks before Starks' discharge, he was given a written reprimand by the Respon- dent for alleged negligent operation of the oven on January 6 and 7, 1970. There is no assertion by the Respondent of any other or further complaints concerning Starks' work. Starks became interested in the Union in the early days when Bunce and Sutton were obtaining signatures on the ` etitions" to determine the extent of employee interest in the Union. Starks visited employees' homes with Bunce seeking such signatures and himself succeeded in obtaining the signatures of eight or nine employees on the "petitions. Starks subsequently made himself conspicuous as a union supporter at one of the meetings conducted by Plant Man- ager Morris before the election in an effort to dissuade the employees from voting for the Union. In the question and answer period which followed the meeting on January 20, Starks challenged Morns' assertions concerning the lack of need for a union and for paying high union dues. In the course of his remarks Starks mentioned the reprimand which he had received and expressed the opinion that it was unjustified in view of the fact that he was having to perform three mens'jobs at the time. Starks acted as an observer for the Union at the election, which was held on January 22, 1970. Before discussing the actual circumstances of Starks' dis- charge the following facts concerning Starks' record before he was hired by the Respondent should be noted. On Au- " I would reach this conclusion even if the Board should disagree with the inference which I have drawn that the Respondent knew or suspected that Bunce and Sutton were the leaders in the union movement Under the cir- cumstances of this case the discharge of such a substantial percentage of employees on the heels of a union meeting which the Respondent had reason to believe had been attended by 80 to 90 percent of the employees, in my opinion, tended to discourage membership in the Union , regardless of wheth- er the Respondent was aware of the union sympathies of the individual employees involved 391 gust 8, 1968, Starks was hired by U.S. Metal Container Co. in Miami. On September 4, 1968, while in the employ of the container company, Starks became engaged in an alterca- tion with a fellow employee over a used-truck transaction, in the course of which he cut the other employee with a pocket knife in the stomach and elsewhere and seriously injured him. Starks was promptly fired by the container company as a result of this incident. In December 1968, Starks pleaded guilty in district court to the crime of assault and battery with a dangerous weapon. The district court, finding that Starks "is a person of good character and has never previously been convicted of any crime," put him on probation for 3 years. On January 26, 1970, the district attorney, passing through the plant in connection with some business which he had there, noticed Starks working on the oven. He asked Plant Manager Moms if he was aware that Starks had a criminal record and said he had been looking for Starks but had lost contact with him.12 On the following day a deputy sheriff came to the plant, arrested Starks, and took him off tojail. Starks was released the next day after he was ascer- tained that due to a misunderstanding or faulty advice from a probation officer, Starks had been sending monthly re- ports to the probation officer rather than to the district attorney. After being released from 'ail on January 28, 1969, Starks went back to the plant and asked Plant Manager Morris about his job. Moms said he was letting Starks go because he had failed to list a former employer on his employment application form. Moms added that he would not have hired Starks had he given the full information requested on the form. Starks had not listed on the application form which he filled out about July 2, 1969, his employment for about a month by the container company. Starks had disclosed on his application form that he had been convicted of assault and given a suspended sentence of 3 years. A security check dated August 22, 1969, made by the Miami Police Depart- ment at the request of the Respondent, erroneously reported "No Record with Miami Police Dept.,, Less than a month after Starks' discharge President Bot- vin returned to the plant on another visit. Encountering a new employee, Laverne Connell, Botvin asked him if he had been hired before or after the election. Ascertaining that Connell had been hired after the election, Botvin asked, "Do you know anything about how the people feel about the union?" Connelll replied, "As far as r know, there isn't very many people in here that thinks much about the Uni- on. ' During this conversation, according to Connell's un- contradicted testimony, Botvin commented that "the man running the oven was more interested in the umon than he was in his job and he had to let him go." The Respondent contends that Starks was discharged be- cause he furnished it with an incomplete and misleading employment application form and because of his negligent operation of the oven for which he had reprimanded previ- ously. There is no suggestion by the Respondent that Starks failed properly to operate the oven console after receiving the reprimand. In my opinion, this contention is but a make- weight. Regarding the allegedly misleading application form, it is clear that Starks did disclose on the form that he had been convicted of an assault and given a 3-year sus- pended sentence. Had the Respondent really been con- i2 Morris some time in the past week had been advised by an employee who had worked at the container company at the same time as Starks did of the incident which led to Starks' discharge by that company and of the fact of Starks' criminal record. Moms promptly contacted the container company for further information about the incident. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerned about the past record of applicants for employment it could have obtained further information from Starks be- fore putting him to work . Instead, it put Starks to work and delayed for well over a month before obtaining a security check from the Miami Police Department. These facts hard- ly evidence the genuine concern, which the Respondent now professes to have, about keeping potentially trouble- some employees off its payroll. Starks had been in the Respondent's employ almost 7 months at the time of his discharge . In this period of time any tendency on Starks' part to engage in violent conduct likely would have revealed itself. However, no claim is made by the Respondent that Starks ever conducted himself other than peaceably while in the Respondent's employ. Morris admitted that Starks had not presented any disciplinary problems during his period of employment. I have mentioned Starks' conspicuous support of the Un- ion at one of the preelection talks given by Plant Manager Morris before the election and also the fact that Starks acted as a union observer at the election on January 22, 1970. Less than a week later the Respondent removed him from the payroll. About a month later, as found above , President Botvin commented to a new employee about having had to get rid of the man running the oven because he had become too interested in the Union . Under all the circumstances of the case, and beanng in mind the Respondent's past dis- crimination against union supporters in November, I con- clude that the Respondent seized upon the employment application discrepancy as an excuse for ridding itself of an employee who had become objectionable to it because of his active advocacy of the Union. Starks' discharge violated Section 8(a)(3) and (1) of the Act. IV THE REPRESENTATION CASE A. The Challenged Ballots 1. The discharged employees The Board agent conducting the election on January 22, 1970, challenged the ballots of Sam Bunce, Tommy Sutton, Raymond Smith, Carl Randolph, Mamie Kyser, Justine Vanover, and Gene Vanover because their names did not appear on the eligibility list. I have found that all seven of the above-named employees were discharged in violation of Section 8(a)(3) and (1) of the Act. Accordingly, they re- tained their status as employees and were entitled to vote in the election. I recommend, therefore, that the challenges be overruled and that the Regional Director open and count the ballots of the seven above-named employees. 2. Sammie Schmidt The Board agent also challenged the ballot of Sammie Schmidt because her name did not appear on the eligibility list. The parties stipulated at the hearing that Schmidt s name did not appear on either the so-called Excelsior 11 list furnished byithe employer or on the election eligibility list. Schmidt had left the Respondent's employ before the elec- tion. The Respondent presented no evidence indicating that Schmidt had a reasonable expectancy of employment in the near future. In fact the Respondent introduced no evidence at all beanng upon this issue. Under the circumstances I recommend that the challenge to the ballot of Sammie Schmidt be sustained. 13 Excelsior Underwear Inc, 156 NLRB 1236, 1239,et seq 3. The ballots of alleged supervisors The Union challenged the ballots of seven alleged super- visors, including Paul Skidmore and Paul Trimble. In its bnef to the Trial Examiner the Union has apparently aban- doned its challenges, except in the cases o Skidmore and Trimble. In any event I find the evidence insufficient to establish supervisory authority within the meaning of Sec- tion 2( 11) of the Act in the cases of Larry Sirmans, Robert Atkinson, Charley Blalock, Robert Crider, and Jack Chan- dler. I recommend, therefore, that the challenges to the ballots of these five employees be overruled. Paul Skidmore was in charge of the installation and oper- ation of the machines and equipment used on the tufting line. The Respondent had no other supervisor over this area other than the plant manager . Skidmore gave employees their various assignments in the morning, changed their assignments during the day, changed their work schedules, assigned overtime work, and granted employees permission to leave early. Skidmore was hourly paid, punched a timeclock, and worked along with other employees in the tuftmg area to an extent which is not clearly disclosed in the record. However, Skidmore was paid $3 .25 per hour . When Sutton was of- fered a job as foreman on the night shift , the Respondent offered him only $3 per hour. Skidmore 's hourly wages was $1.05 per hour more than Tims', one of the Respondent's most proficient tufting machine operators. Plant Manager Morris consulted Skidmore , who ob- served the tufting line employees on a continuous basis, about wage increases for tufting line employees. Morris also met with Skidmore at the beginning of each week to outline the program for the week and relied on Skidmore's rec- ommendations concerning the level of employment in the tufting area. Upon the foregoing facts I conclude , despite Morris' con- clusionary testimony to the contrary , that Skidmore was a supervisor within the meaning of Section 2(11) of the Act. I recommend, therefore, that the challenge to the ballot of Skidmore be sustained. Paul Trimble does maintenance work of all kinds. He occasionally has helpers , but he does as much work with his hands as do his helpers. Trimble trains his helpers, instructs his helpers as to their duties, and tells his helpers to work overtime. At the time of the election Trimble had no help- ers; he was the only maintenance man the Respondent had. Before the Respondent hired men to act as maintenance helpers the plant managers would generally tell Trimble whom to have act as helpers. Trimble credibly testified that he gave only routine instructions to helpers . Trimble has not been consulted by the plant manager concerning the prog- ress his helpers were making. Trimble punches the timeclock and earns $3 per hour. His helpers do not earn more than $2 per hour. U on these facts I conclude that the Union has failed to satisfy the burden of proof required by Section 2(11) of the Act of showing that Tumble exercised independent judg- ment in his relations with his helpers, and that his instruc- tions to his helpers were of more than a routine nature. Accordingly, I recommend that the challenge to Trimble's ballot be overruled. B. The Union's Objections to the Election The Regional Director in his Report on Objections and Challenged Ballots and Order Consolidating Cases con- cluded that a hearing was in order with respect to objections 2, 3, 5, 6, 8, 10, and 12. The Union in its brief does not press ACS INDUSTRIES, INC. objection 10, which is based upon the conduct of Robert Atkinson, whom I have in effect found not to be a supervi- sor within the meaning of the Act. This objection must be deemed withdrawn. The remaining objections are discussed below. 1. Objection 2 Objection 2 is that the Respondent adopted a new proce- dure on January 22, 1970, the day of the election, of locking the plant gate and stationing two uniformed and armed guards there (instead of the usual one guard) to check em- ployee status, and of checking on occasion by telephone to venfy employee status before unlocking the gate. The re- cord in this case factually supports objection 2. However, I am unable to understand how a tightening of security pre- cautions at the plant gate could be construed as impairing the employees' freedom of choice at the polling place some distance inside the gate, no matter how unreasonable the employer's explanation for tightening security precautions may be. I recommend that objection 2 be overruled. 2. Objection 3 This objection is based upon the Respondent's treatment of the seven discharged employees when they went to the plant for the purpose of voting in the election . The facts shown by the record in this case are as follows : The polls were scheduled to be open between 3 :30 and 4:30 p.m. When the seven employees sought to enter the plant gate at 3:30 in. they were informed by one of the' guards, after a telephone call to Plant Manager Morris, that they would not be permitted to enter until 4 :15. At 4: 15 one of the guards escorted the discharged employees through the production area to the foot of the stairs leading to the office where the balloting was being conducted. The guard waited there the few minutes required for the seven employees to cast their ballots, and then escorted them back through the building and out of the gate. All of the employees, except the seven discharged employees were allowed to remain in the polling area to observe the counting of the ballots. It appears that during the preelection conference which immediately preceded the setting up of the polling place in the office the Respondent made known its intention to pre- vent the discharged employees from entering the plant until 4:15 p.m. and also its intention to escort them to the polling place. Jolley, the union attorney , protested to Aaramstam, the Regional Director's agent conducting the election, that this was an impermissible procedure. Aaramstam, neverthe- less, allowed this procedure to be adopted . In view of the foregoing it appears inappro riate for me to conclude that the procedure followed interfered with the employees' free- dom of choice in the election . In any event, while the Respondent's treatment of the discharged employees when they presented themselves to vote may have appeared to them to be unduly restrictive , I am not persuaded that this treatment reasonably tended to destroy either their freedom or the freedom of the employees as a whole to vote as they chose in the election. I recommend that this objection be overruled. 3. Objection 5 This objection is based on a conversation between Plant Manager objection and Helen Hadley on the day before the 393 election. Hadley testified concerning this conversation as follows: [he] said, "I can't say anything about 3:00 o'clock, but how do you feel about the Union?I said, "Well, as far as I know, all I am interested in is more money.... I said, "I do feel you have made a wonderful plant man- ager and if given time, you will even do better," and he smiled and said, "I will tell you what. If I can't make you all happy in a ear's time, I will even help you get the union in here:' Moms generally denied questioning any employees con- cerning their union inclinations . Moms also denied Hadley's testimony about asking her how she felt about the Umon. According to Moms: What I did say was-I had a canned speech. I went around to all the employees the day before the election making sure I would allow myself twenty-four and a half hours, so I didn't infringe upon their rights, and I told them that I would appreciate a no vote on the following day, but that the election, however they wanted to vote, was their own business. I did feel like that if they would give me a year's time-all that I had ever asked for was a year to try to prove that we could make the company into a productive and economically sound organization and have some jobs for everybody. I credit Hadley's testimony concerning Moms' question- ing her concerning how she felt about the Union. Hadley exhibited no hostility whatever to the Respondent and she was much more likely to remember the details of the conver- sation than Morris, who by his own admission, had spoken to all the employees on the day before the election. I con- strue Morris' question as a veiled inquiry as to how Hadley was going to vote in the election. In addition, considering the testimony of both Hadley and Morris concerning Mor- ris' further remarks to Hadley, I interpret them as intimat- ing that the employees would have greater benefits and greater job security without a union than with a union. Morris' conduct on this occasion, in my opinion, exceeded the bounds of permissible employer preelection cam- paigning.14 Accordingly, I recommend that objection 5 be sustained. 4. Objection 6 This objection is based on a threat allegedly made by Plant Manager Moms at one of the meetings of employees called by him 2 or 3 days before the election. The testimony is conflicting. Ruth Jones, a witness called by the Union, testified that Morris, in response to the question posed by an employee whether there was any guarantee that the plant would stay in Miami if the Union came in, replied that "it was still a free country and I guess we could move out if we wanted to." On the other hand, Lee Wallace, also called as a witness by the Union, testified that Morris answered, "that it was still a free country and they were going to make carpet whether we went union or didn't go union." Moms denied that he made any threat to close the plant and ex- plained that he "told them it was a free country and that no union could force a company or any other organization, to 14 Morris' questioning of Hadley on this occasion and his implied offers of benefits to the employees for rejecting the Union also constituted interfer- ence, restraint, and coercion in violation of Section 8(axl) of the Act, as alleged in the complaint in Case 16-CA-3867 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operate at an economic loss indefinitely ." In my opinion Jones, in her testimony was giving the impressions created by Moms' statement and was not stating Morris' actual words. Wallace's testimony discloses no threat whatever. Under all the circumstances I credit Morris' testimony and conclude that his statement should not be deemed an inter- ference with the election . Accordingly, I recommend that this objection be overruled. 5. Objection 8 This objection is based upon the conduct of Rocky Fresh- our who is not an employee of the Respondent . Freshour is an employee of the Singer Sewing Machine Company. Freshour works in the Respondent's Miami plant installing and servicing tufting machines. At noon on the day of the election Freshour stated within the hearing of three employees, as follows: I received my orders this morning that if the plant goes union today, I am to load the tufting machines up and move them back to Georgia. And he said, "What's more, I don't appreciate the idea of having to load them on skids and crate them up. The Respondent does not dispute the fact that some such statement was made by Freshour . It relies on Morris' testi- mony that he had given no such orders to Freshour and on the legal proposition that Freshour had no authority to speak for the Respondent . The Board has held, however, that the conduct of third parties not legally attributable to the employer may constitute a basis for setting aside an election where it created such an atmosphere of fear and coercion as to render improbable employees ' free choice. James Lees and Sons Company, 130 NLRB 290; Owens- Corning Fiberglass Corp., 179 NLRB No. 39, 72 LRRM 1289, 1293. In determining whether the conduct here complained of may reasonably be deemed to have created such an atmos- phere, the following should be taken into consideration. Information concerning possible removal of plant machin- ery is of such a nature that it is like ly to be quickly passed along to other employees, particularly in the period imme- diately preceding a representation election . Freshour's statement that he had orders, if the plant went union, to move the tufting machines back to Georgia , made as it was by a nonemployee who had no interest in the outcome of the election and who, by virtue of his responsibilities and duties in connection with the machines, presumably would be in a position to know what he was talking about, would likely be regarded as true by the employees hearing it or hearing about it. Such a statement , in my opinion, would be apt to have considerable impact upon employees then mak- ing up their minds how to vote in the election and would create an atmosphere of coercion which is incompatible with the employees making a trul y voluntary and uncoerced decision as to how to vote in the election . Although the Respondent was not responsible for the creation of this atmosphere, I conclude since such an atmosphere did exist and tended to prevent employees from exercising the free choice which the Act contemplates, that Freshour's state- ment constituted grounds for setting aside the election. I recommend that objection 8 be sustained. 6. Objection 12 The Union contends that four communications or hand- bills distributed by the Respondent to its employees be- tween January 11 and the morning of January 22 , 1970, the day of the election, overemphasized the possibility of strikes if the Union won the election , stressed the futility of collec- tive bargaining, and contained veiled threats of reprisals and promises of benefits. I have carefully considered these four documents in light of the arguments in the Union's brief, but cannot agree with the Union's contentions regard- ing these documents. In my opinion these documents fall within the area of permissible employer electioneering. I recommend that objection 12 be overruled. C. Recommendations In accordance with the foregoing conclusions , I recom- mend that the Regional Director open and count the ballots of the 13 employees as to whose ballots the challenges were overruled, and if the Union received a majority of the valid votes cast, that it be certified as the exclusive bargaining representative of the emplo ees in the appropriate unit; but if it be determined that the Union did not receive a majority of such votes, that the election of January 22, 1970, be set aside and a new election conducted. Conclusions of Law 1. By permanently discharging Sam Bunce , Tommy Sut- ton, Raymond Smith, Carl Randolph, Justine Vanover, Ma- mie Kyser, and Gene Vanover between November 12 and 14, 1969, by laying off Ronnie Tims on November 12, 1969, and by discharging Claud Starks on January 28, 1970, the Respondent has discouraged membership in United Rub- ber, Cork, Linoleum and Plastic Workers of America, AFL- CIO, by discrimination in regard to tenure , terms, and con- ditions of employment and has interfered with , restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(aX3) and (1) of the Act. 2. By threatening employees with reprisals because of their union activity, engaging in surveillance over employ- ees attending a union meeting, and coercively questioning employees concerning union matters , the Respondent has further interfered with, restrained, and coerced its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, thereby enga . g in unfair labor practices in viola- tion of Section 8(axl)of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, my recommended Order will direct that the Respondent cease and disist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent effected the discharges and the layoffs of November 12 to 14, 1969, as part of an unlawful effort to pose an object lesson as to the adverse consequences of affiliating with a union . I have further found that the Respondent's problems with its tilecutting machines justified a temporary reduction in force at about ACS INDUSTRIES, INC. the time of these discharges and layoffs . The record indi- cates that a temporary layoff of 2 weeks would have suf- ficed, and this fact is taken into consideration in formulat- ing the backpay of the employees terminated in the Novem- ber 12 to 14 period. To remedy the Respondent's unlawful action in perma- nently terminating these empployees, my Recommended Or- der will provide that the Respondent offer each of these employees (excepting Ronnie Tims who has been reinstat- ed) immediate and full reinstatement to their former jobs, or if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them and Ronnie Tims whole for their losses resulting from the Respondent's discrimination against them, by payment to them of the sum bf money which they would have earned from a date 2 weeks after the date of the discrimination against them until the date on which the Respondent offers them reinstate- ment, less their net interim earnings . Claude Starks, who was discharged on January 28, 1970, is entitled to imme- diate reinstatement, with backpay for the entire period of the discrimination against him . Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and pur- suant to Section 10(c) of the Act there is hereby issued the following: RECOMMENDED ORDER 15 The Respondent, ACS Industries, Inc., Miami, Oklaho- ma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor organization, by discriminatorily dis- charging or laying off employees, or by discriminating in any other manner with respect to their hire and tenure of employment or any term or condition of employment. (b) Threatening employees with reprisals because of their union activity, engaging in surveillance over employees at- tending union meetings, coercively questioning employees concerning union matters, or in any other manner interfer- ing with, restraining, or coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sar to effectuate the policies of the Act: (a) Offer to Sam Bunce, Tommy Sutton, Raymond Smith, Carl Randolph, Justine Vanover, Mamie Kyser, Gene Van- over, and Claud Starks immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges previously enjoyed, and make each of them and Ronnie Tims whole for any loss of pay suffered by reason of his discharge or layoff, in the 15 In the event no exceptions are filed to this Recommended Order as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided , in Section 10(c) of the Act and in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 395 manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees if presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon appplication in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records, and reports, as well as all other records neces- sary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Miami, Oklahoma, copies of the attached notice marked "Appendix."16 Copies of said no- tice on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.17 1' 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 " 17 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT threaten employees with discharge or other harmful consequences because they join or favor a union. WE WILL NOT spy on employees attending union meetings or coercively question employees concerning union matters. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to form, join , or assist unions or to bargain collectively through representatives of their own choosing. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL OFFER immediate reinstatement to Sam Bunce, Tommy Sutton , Raymond Smith, Carl Randolph, Justine Vanover, Mamie Kyser, Gene Vanover, and Claud Starks and will pay each of them and Ronnie Tims backpay as provided in the Board's Decision and Order. ACS INDUSTRIES, INC (Employer) 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, 8A24 Federal Office Bldg., 819 Taylor St. Fort Worth, Texas 76102, Telephone 817-334-2921. Dated By (Representative) (Title)