Gary Aircraft Corp.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gary Aircraft Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 23-CA-3672, 23-CA-3702, 23-CA-3733, 23-CA-3733-2, 23-CA-3733-3, 23-CA-3733-4, and 23-RC-3440 September 14, 1971 DECISION, ORDER, AND DIRECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On March 24, 1971, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further recommended that the chal- lenged ballots cast by 20 employees in Case 23-RC-3440 be opened and counted and that, thereafter, in the event the Union has not received a majority of the ballots cast, the election be set aside and a new election be held. The Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases and hereby adopts the findings,' conclusions,2 and recommendations3 of the Trial Examiner. ORDER AND DIRECTION Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Gary Aircraft Corporation, San Antonio, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. It is hereby directed that as part of his investigation to ascertain representatives for the purposes of collective bargaining with the Employer, the Regional Director for Region 23 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Direction, open and count the ballots of Eliseo Casanova, James Dodson, Jesse Dominguez, James Fields, William Gentry, Ramon Gonzalez, Willis Hensley, Calvin Lissner, Angel Lopez, Seratin Lopez, Othon Martinez, Robert Mayen, Pedro Perez, Philip Persyn, Manuel Puente, Tomas Sanchez, Victorino Sanchez, Eladio Trevino, Paul Tudyk, and Benito Zuniga and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. If the Petitioner receives a majority of the valid ballots cast, according to the revised tally, the Regional Director shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. If the Petitioner does not receive a majority, the following shall become applicable. IT IS FURTHER ORDERED that the election conducted in Case 23-RC-3440 on July 10, 1970, be, and it hereby is, set aside, and that said case be, and it hereby is, remanded to the Regional Director for Region 23 to conduct a new election when he deems the circumstances permit a free choice of a bargaining representative. i In the first sentence of the sixth paragraph of section 11, A, of his Decision , the Trial Examiner inadvertently referred to July 18 rather than July 10 as the day on which employees Morales and Otero met Personnel Manager Gomez on his way to the preelection conference This inadvertence is hereby corrected 2 The Respondent has excepted to certain credibility findings alleging that the Trial Examiner was biased and prejudiced It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless a clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3) We have carefully examined the record and find no basis for reversing his findings and reject the charge of bias and prejudice 3 There are no exceptions to the Trial Examiner's findings with respect to the challenged ballots of James Dodson, Angel Lopez , Pedro Perez, Philip Persyn, Manuel Puente, Seratin Lopez, Robert Mayen , Eladio Trevino, Gregorio Torres, Eugene Mireles, Paul Mireles, Robert Pauley, James Fields, Willis Hensley, Calvin Lissner, Tomas Sanchez, Paul Tudyk, Eliseo Casanova, William Gentry, Othon Martinez, Victorino Sanchez, Jesse Dominguez, Ramon Gonzalez , and Benito Zuniga that Union's Objections 4, 5, and 6, as designated by the Trial Examiner in his Decision, be overruled, or that the Employer's Objections 2 and 3 be overruled. In the absence of exceptions thereto, these findings are adopted pro forma. 193 NLRB No. 21 GARY AIRCRAFT CORP. 109 [Direction of Second Election4 omitted from publication.] Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 4 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236; N L R B v Wyman-Gordon Co, 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 23 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: These consolidated cases were tried at San Antonio, Texas, on November 2-6, 10-12, and 16-18,1 pursuant to complaints issued on August 14 and October 6, and an order dated October 6, consolidating the cases and referring the representation case to the Board. The six charges were filed by the Union, respectively, on June 19 (amended July 13), July 20 (amended July 27 and August 12), August 19, August 31 (amended September 8), September 10, and September 16. The primary issues in the complaint cases are whether the Company, the Respondent, (a) unlawfully threatened and interrogated employees during the Union's organizing drive, (b) discriminatorily discharged nine active union supporters, before and after the election, and (c) discnmi- natorily issued reprimands, withdrew overtime, and assigned more arduous work to employees, in violation of Section 8(a)(1), (3), and (4) of the National Labor Relations Act. In the representation case, the petition was filed on April 20, an election (directed by the Regional Director) was conducted on July 10, 39 ballots were challenged, and both the Company and the Union filed timely objections. Excluding challenges, the vote was 231 for and 225 against union representation. All except 10 of the challenged ballots are in issue, plus the objections. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company, a Texas corporation, is engaged in the repair of airplane engines at its plant in San Antonio, Texas, where it annually receives goods and materials valued in excess of $50,000 directly from outside the State. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the If. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Threats and Interrogation The Union began organizing the Company's San Antonio employees in late 1969 and, on February 17, formally notified the Company of the organizing drive and the names of employees on the in-plant organizing committee. An early indication that the Company had adopted a policy of finding pretexts for discharging active union supporters was given on February 23, when Leadman Jack Howard (an admitted supervisor) talked to employee Jesse Verastegui about the union button he was wearing. As Verastegui credibly testified, Howard "came over to me and saw it, and said that I better take the button off or the people upfront will see it and they will find a way to get rid of me." [Emphasis supplied.] Verastegui protested, "Jack, that's my rights," but Howard stated that he could not do anything about it, "It's the people up front." Verastegui removed the union button. When Howard was called as a defense witness, he first answered, "I can't recall," when asked if he ever had a conversation with Verastegui about a union button. He then added, "I don't-no, I didn't." I discredit his denials and find that the threat, about the Company finding a way of getting rid of Verastegui, was coercive and violated Section 8(a)(1) of the Act, as alleged. About April 6, 3 days before Verastegui's discharge, Howard (as Verastegui credibly testified) came up and asked, "Jesse, you still strong for the Union?" Verastegui answered, "Yes, sir, that is the only way we are going to better ourselves." Howard commented, "Well, I tried," and walked off. (Howard admitted asking Verastegui "if he was still strong for the Union," but denied telling him, "Well, Jesse, I tried." According to Howard, "I probably just shook my head . . . I don't recall what I said." Finding Verastegui to have been the more trustworthy witness, I credit his testimony and discredit Howard's denial.) I find that Howard's April 6 interrogation of Verastegui, includ- ing his comment, "Well, I tried," was coercive, particularly in view of Verastegui's discharge later that week. I therefore find that the interrogation violated Section 8(a)(1) of the Act, as alleged. On July 7, President A. W. Stewart gave an antiunion speech to employees in the plant, stating (among other things) that the Union lied to them and urging them to vote against union representation. After the speech, according to employee Victor San Miguel, Leadman John Harrison asked him what he thought about Stewart's speech. San Miguel responded, "I didn't believe him." Harrison "gave me a dirty look" and walked off, but returned the next day, and asked "if I had changed my mind." San Miguel answered no, whereupon Harrison stated, "Well, if you vote for the Union that is going to be the biggest mistake of your life." One day later, on July 9, San Miguel was discharged, as discussed later. When called as a defense witness, Harrison related a bitter experience he had had as a boy with a union in a coal mine. Yet, he testified that he I All dates are in 1970 unless otherwise indicated 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never talked to any employees about his coal mine experience, and did not tell San Miguel that voting for the Union would be the biggest mistake in his life, but "If I had said such a thing . . . I would have been expressing to him my personal experience." Harrison did not impress me as a credible witness, whereas San Miguel did. I credit San Miguel's account of the conversations, and discredit Harrison's denials. Particularly in view of San Miguel's discharge the following day, I find that Leadman Harrison's July 8 statement, concerning the "biggest mistake of your life," was coercive and violated Section 8(a)(1) of the Act, as alleged. On July 8 and 9, Vice President A. J. Stewart gave an antiunion speech to about 25 small groups of employees. Employee Joe Otero (who impressed me as an honest, forthright witness) credibly testified that at the conclusion of A. J. Stewart's July 9 speech to his section, Stewart stated: "In every barrel there are a couple of rotten apples. In this case there's two. I also see that the same two are wearing sunglasses, probably to hide their identity [thereby referring to Otero and employee Ricardo Morales, both of whom were wearing sunglasses ]. They are the bad guys. That is all nght. We will take care of them next week." Morales (who did not appear to have as good a memory) recalled the comment about "rotten apples," and testified that Stewart concluded, "We will deal with them next week." (On July 16, as discussed below under II,B,5,b, both Otero and Morales were given reprimands.) When called as a defense witness, Stewart did not specifically deny having, after giving his speech to this group, added the comment about two "rotten apples" wearing sunglasses. (In the absence of such a specific denial, which would have placed the "rotten apples" remark directly in dispute, I do not agree with the Company's argument in its brief that Otero's and Morales' testimony should not be credited because the General Counsel failed to call other witnesses in that section to corroborate their testimony.) The complaint alleges that on July 9, A. J. Stewart "threatened employees with discharge for engaging in activities on behalf of the Union." Although Otero and Morales (who were active in the organizational effort) were not specifically named by Stewart, they were the only two employees wearing sunglasses. And although Stewart did not specifically state why he considered them "rotten apples," they were the only two present who were wearing union buttons. And further, although neither of the employees was discharged the next week, and only one of them was discharged later (Otero on September 14), I find that Stewart's remark about taking care of them next week was an implied threat either to discharge them or to take other reprisal against them. I therefore find that the evidence supports the allegation and that the Company thereby violated Section 8(a)(1) of the Act by making the implied threat. At lunchtime on July 18, employees Morales and Otero met Personnel Manager Joel Gomez outside the break- room, on his way to the preelection conference. (The two employees were alternate observers at the election, held between 2 and 5 o'clock that afternoon.) Morales asked Gomez for a reservation form for the Company's July 18 employee picnic. Gomez asked what happened to his and Morales said he had lost it. Then, according to Morales, Gomez asked, "Isn't the Union going to give you a picnic?" Morales said, "Yes, provided we win the election." Without saying anything further, Gomez turned around and started walking away. Morales overtook him and asked, "Hey, Joel, aren't you going to give me one?" Gomez answered, "No," and left. According to Gomez, Morales "asked me if I could give him another reservation form, and I told him I didn't have any." Then "I turned and started to walk on, and Richard called after me, `Hey, you are not going to give me one?' And again I said, `No,' " and "just kept on walking." (The next workday, Gomez had additional forms run off. Although Morales had also repeatedly asked his leadman for another form, no one gave him one, and he did not attend the picnic.) Gomez' version does not ring true. If Gomez had in fact said he did not have any reservation forms (as Gomez claimed), it seems unlikely that Morales would have asked him if he was "not going to give me one," and that Gomez would have flatly answered, "No" (as Gomez admitted). I credit Morales' testimony (not specifically denied by Gomez) that Gomez did raise the question about a union picnic before telling Morales, "No." Therefore, as contended by the General Counsel, "Gomez gave the impression to Morales that he was being denied a picnic form because of his union activity." Although taking time to inquire what had happened to Morales' first reservation form and to ask about whether the Union would give a picnic, Gomez did not tell Morales that more forms would have to be run off or that a reservation would not be required for attending. (Gomez later testified that other employees went to the company picnic without reservation.) I find that Personnel Manager Gomez, having injected the Union into the conversation, did flatly refuse to give this active union supporter another picnic reservation form because of his union activity, in violation of Section 8(a)(I) of the Act. B. Discharges and other Alleged Reprisals 1. Asserted misuse of reprimand procedure The General Counsel contends that the Company misused its reprimand procedure, issuing reprimands as pretexts and for insignificant incidents "in order to rid itself of the nucleus to the Union's organizational effort," and wiping out "a significant percentage" of the Union's in- plant organizing committee and election observers, even though the Company "did not have any complaints regarding the work or production of any of the discnmina- tees." The General Counsel also contends that in order to justify pretextual discharges, the Company treated as mandatory the discretionary discharge provision in the "Company Rules." The Company contends that its written rules "require a mandatory discharge" whenever an employee "received three written reprimands within a six month period," and denies that any employee was discharged or discriminated against in violation of the Act. Contrary to the Company's position, the Company Rules do not require mandatory discharge, except where the violation of a more serious offense is involved. Paragraph A of the Company Rules provides that an employee receiving three reprimands in a 6-month period for violating one or GARY AIRCRAFT CORP. Ill more of 17 listed offenses "will be subject" to discharge, but that the Company "at its discretion" may amend discharge to a suspension of not less than 3 days. Mandatory discharge is not required unless one of the three violations in a 6-month period involves a more serious paragraph B offense (or unless two paragraph B or one paragraph C offense is involved) Thus, as clearly stated in its written rules, the Company has the discretion of assessing only a 3-day suspension for three reprimands in a 6-month period for violating such paragraph A "rules" as leaving work station without permission (rule 2), loafing on company time (rule 4), and reporting late or being absent three times in a 30-day period (rules 10 and 11). Yet, despite the clearly discretionary provision, four of the active union supporters (Estala, Martinez, San Miguel, and Verastegui) were discharged after receiving, in 6-month periods, three reprimands involving only paragraph A offenses. All of them were experienced employees and one of them, San Miguel, was considered one of the Company's 20 best employees before he testified on behalf of the Union at the May 18 representation hearing. The plant was "expanding and hiring people," and the Company offered no reason for not merely suspending, in an effort to retain, these valuable employees-other than the fallacious claim that discharge was mandatory under the Company rules. After considering (a) the fact that the Company placed the obviously erroneous interpretation on the reprimand provision, (b) the Company's discharge of the four above- mentioned experienced employees without any other explanation for the maximum penalty, (c) the fact that the Company was hostile to union organization and engaged in other unfair labor practices in its antiunion campaign, and (d) the early indication, given by Leadman Howard, that the Company had adopted a policy of finding pretexts for discharging active union supporters (as discussed above), I find that the Company deliberately misused the reprimand procedure as a means of establishing pretexts for the discriminatory discharge of active union supporters. (In the absence of appropriate allegations in the complaint, I do not rule on the legality of Rules 5 and 9, prohibiting the distribution of literature, and soliciting at any time on company premises without written permission.) I now consider whether the General Counsel has proved, in individual instances, that the Company issued repri- mands as pretexts and whether each discharge or other action was discriminatorily motivated. 2. Employee under Leadman Howard The discharge of Jesse Verastegui, for receiving three reprimands in a 6-month period, not only illustrates clearly how the reprimand procedure was misused to eliminate an active union supporter, but also reveals the identity of one of the "people up front" whom Leadman Howard had earlier warned would "find a way to get rid" of Verastegui if they saw him wearing a union button. Verastegui, hired in August 1969, was an installation mechanic in final assembly, where the repaired airplane engines are assembled. He signed a union authorization card on February 19, passed out union handbills on the road leading to the plant, and was assigned to the in-plant organizing committee on February 22. Leadman Howard admitted knowledge that Verastegui was "strong" for the Union. Before becoming active in the organizational drive, Verastegui had been absent not only 3, but 4 days in a 30- day period without receiving a reprimand. It is undisputed that he made a practice of calling in whenever he was to be absent. However on February 24, 1 day after Leadman Howard warned him about wearing a union button and 3 weeks after his last absence, Verastegui was given a written reprimand for violating rule 11 (three absences in a 30-day period) for four earlier absences. Thereafter, during the organizing drive, the personnel office initiated the repri- mands automatically, following the third absence. On March 16, Leadman Howard gave Verastegui a second reprimand for violating rule 11. This reprimand was for being absent on three additional dates, including March 2 and March 9, when Verastegui went to the dentist. It is undisputed that on March 2, Verastegui reported for work at 7 a.m., but clocked out shortly thereafter, when Howard (seeing his swollen cheek) gave him permission to visit the dentist. Not having worked as long as 6 minutes, he was treated as being absent that day. On March 3, Verastegui showed Howard the stitches in the gum where teeth had been extracted and Howard gave him permission to return to the dentist on March 9. Then on March 9, Verastegui went to the dentist after calling in. Howard testified that "maybe" Verastegui did ask if he could go to the dentist, that Verastegui "might have" shown Howard the stitches in his mouth, and that "chances are he might have" told Howard that he had to go back to the dentist on March 9. Yet on March 16 when Verastegui's reprimand came from Personnel, Howard ignored the fact that he had given Verastegui permission to be absent on both March 2 and 9 and issued him the reprimand, signing it as Verastegui's foreman. About April 6, as previously found, Leadman Howard asked Verastegui if he was "still strong for the Union," and upon getting an affirmative answer, commented "Well, I tried." Later that week, on April 9, Howard gave Verastegui his third reprimand, for violating rule 16, "Preparing to quit work prior to specified time." Verastegui noted that the date of the infraction was not stated, and asked (as he credibly testified), "When did I commit the infraction, Jack?" Howard answered, "Well, I don't know. It come from up front. " (Emphasis supplied.) Although Howard, when called as a defense witness, denied this credited testimony, he revealed the identity of one of the persons "up front" (the expression he used on this occasion, and also earlier on February 23, when he warned Verastegui that he had better take the union button off his shirt or the people "up front" would see it and "find a way to get rid" of him). Howard testified that Vice President A. J. Stewart had authorized the reprimand. (A. J. Stewart's participation in the reprimand and discharge of other union supporters is discussed hereafter.) According to Howard, he told A. J. Stewart, "I caught Mr. Verastegui washing his hands before lunch and he had been warned about it, and I asked him if I should give him a reprimand," and Stewart answered, "Yes, go ahead." (Howard testified that he believed this was the only reprimand he had given in 1970, except for being late 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or absent excessively.) Howard presented to Verastegui the third reprimand, and also termination papers reading: "MANDATORY DISCHARGE-Employee received three (3) Reprimands within a six (6) month period for violation of company rule # 11 & 16." Thus the termination papers emphasized, incorrectly, that discharge was manda- tory for three violations of these paragraph A rules in a 6- month period. While on direct examination as a defense witness, Leadman Howard testified that, after informing the company counsel the night before about the circumstances of the second reprimand (covering three absences, two of which were excused), he was advised by counsel to offer Verastegui his job back, provided he brought in a slip from the dentist. (At the time he testified, Howard had not contacted Verastegui.) In its brief, the Company contends that the General Counsel "has not sustained his burden of proof that Verastegui was terminated because of his union activity." I disagree. The Company, after Verastegui was warned about wearing a union button, belatedly issued him a reprimand for previously ignored absences, and thereafter gave him a second reprimand, covering two absences which were specifically authorized by Leadman Howard. I find that the Company gave Verastegui both reprimands for the unlawful purpose of building a case against this active union supporter. Then less than a month later, after Verastegui admitted still being strong for the Union, he was accused of a relatively minor paragraph A rule violation, given a third reprimand, and summarily discharged on the false contention that discharge was mandatory. I find that Vice President A. J. Stewart authorized the discharge pursuant to a company policy of finding pretexts for discharging active union supporters, and that the Company discharged employee Verastegui because of his union support, in violation of Section 8(a)(3) and (1) of the Act, as alleged. 3. Employees under Foreman Seery George Seery was the foreman over the cylinder shop, PRT shop, heat treating, and welding shop. His credibility and motivation are involved in the allegations that five union supporters were unlawfully discharged and/or discriminated against. a. Victor San Miguel Valve grinder Victor San Miguel was selected as one of the plant's 20 best employees before he testified for the Union in the May 18 representation proceeding. One day before he testified, his picture appeared, along with the 19 others, in the Company's full-page newspaper ad, under the caption, "Gary Men. We are proud of them and their many co-workers." He had been employed since November 1968, and had never been given a reprimand-although (as his credited, undisputed testimony reveals) he had several times been late to work as many as three times in a 30-day period. After testifying for the Union , he became an active union leader, signing up employees at the plant, passing out union handbills, speaking at union meetings , etc. In less than 2 months, the Company gave him a total of four reprimands and discharged him, after assigning him to three prog- ressively worse jobs (from valve grinding first to the lesser- skilled, heavier, "dirtier" job of seat grinding; second, to the reaming machine, where "little parts of metal would get under the skin," causing a rash; and third, to the ovens, a much "hotter, sweatier"fob). In giving San Miguel his first reprimand, on June 3, Foreman Seery clearly revealed a discriminatory motiva- tion. Seery gave San Miguel the reprimand for being late to work on 3 days, including May 25, although Seery had given him permission to attend court that day. San Miguel continued to complain about the unfairness of the reprimand, until Vice President Juan Mercado-an official who was not involved in any of the alleged discrimination against union supporters-canceled the reprimand. San Miguel was given a second reprimand on June 17 (for being absent 3 times) and a third reprimand on June 30 (for loafing, having held up and shown to those around an antiunion sign which Foreman Seery had brought in to display)-both reprimands involving only paragraph A rule infractions. Although there is such conflicting testimony surrounding the June 17 reprimand, and some surrounding the June 20 reprimand, I find it unnecessary to discuss them further in view of the circumstances of San Miguel's discharge on July 9, the day before the election. San Miguel continued to pass out union handbills in front of the plant. On July 8, he began wearing a large number of union buttons on his cap at work. The same day, President A. W. Stewart told him to "be quiet" when he attempted at a meeting to intervene on behalf of two employees who had reportedly called Stewart a liar. (The alleged discriminatory discharge of these two employees, Benito Perez and Joe Gallegos, is discussed next.) On July 9, Vice President A. J. Stewart (who authorized the discriminatory discharge of employee Verastegui, as previously found) personally gave San Miguel his third (uncanceled) reprimand, telling him that discharge was mandatory. San Miguel was accused of violating rule 4 (loafing on company time), one of the relatively minor paragraph A rules. As previously noted, the Company rules do not require a mandatory discharge for three such paragraph A rule infractions in a 6-month period. San Miguel, who had been placed back on valve grinding that week, did not return to his machine promptly at 11:30 on July 9, at the end of the lunch break. (His testimony is undisputed that this was the first time Foreman Seery ever talked to him about not being at his work station on time.) General Counsel's witnesses, San Miguel and employee Aurelio Martinez, both testified that at 11:30, San Miguel was talking to his leadman, Joe Cano. San Miguel testified that before the 9 o'clock break that morning, he told Cano he would need some more valves that afternoon and Cano promised to get him some. At 11:30, he was asking Cano again about them, and Cano said he had forgotten, that he would put somebody on them right away. Foreman Seery, on the other hand, testified that he was watching from a distance of about 50 or 60 feet and saw San Miguel talking to Martinez for a minute after the 11:30 bell had rung. The Company gave no explanation for failing to call its own supervisor, Leadman Cano. Instead, it called Assistant GARY AIRCRAFT CORP. 113 Foreman D. Helgeson, who claimed that he personally saw what happened and observed San Miguel talking to Martinez. However, he testified that he saw this after the 9 o'clock break (over 2 hours earlier) and he was positive it did not occur after 11:30. His testimony is also dubious because Foreman Seery, who claimed that he and Helgeson later checked on the stock of valves, did not mention anything in his testimony about Helgeson saying at the time that he had personally observed San Miguel talking to Martinez. Inasmuch as (I) San Miguel impressed me as an honest witness, (2) it is undisputed that Leadman Cano's desk is near the place where San Miguel was standing at 11:30, and (3) San Miguel's testimony is undenied that he had spoken to Leadman Cano earlier that day about getting more valves, I credit San Miguel's testimony that he was talking to Cano, not Martinez, at 11:30. However, whether or not Foreman Seery honestly believed that he saw San Miguel talking to employee Martinez for a minute after the 11:30 buzzer rang, I find that the Company's actions demonstrate that it was looking for a pretext for discharging this union leader, who previously had been chosen as one of the Company's best plant employees. Shortly after San Miguel testified for the Union, Seery had given him a reprimand which Seery knew was not justified. Then, immediately before the election, San Miguel was conspicuous in his union support. Without checking with San Miguel's leadman, Seery reported San Miguel's brief absence from his work station on July 9 to Vice President A. J. Stewart who, after getting the reprimand and termination papers prepared, personally informed San Miguel, falsely, that his discharge was mandatory. I find that Foreman Seery gave the June 3 reprimand to San Miguel in an effort to build a case against him, and that on July 9, Seery was seeking a pretext for discharging him. I also find that A. J Stewart again used the charge of a relatively minor rule violation, and the erroneous contention that discharge was mandatory under the Company rules, as a pretext After weighing all the evidence, I find that the Company discharged employee San Miguel because of his union support and because he testified on behalf of the Union at the May 18 representa- tion hearing, in violation of Section 8(a)(1), (3), and (4) of the Act, as alleged. I also find, as alleged in the complaint, that soon after he testified, he was assigned "to more arduous or less agreeable" (and lesser skilled) jobs for the same discriminatory reasons--and not for training purpos- es, as claimed by Foreman Seery. I therefore find that such assignments also violated Section 8(a)(1), (3), and (4) of the Act. b. Benito Perez Benito Perez (hired in May 1969 and discharged on September 3) was one of the two employees whom Foreman Seery reported had called President A. W. Stewart a liar-after Stewart made his speech on July 7, stating that the Union was lying to the employees . (Stewart called this group of employees back into a meeting on July 8 to confront anyone calling him a liar and to explain "to everybody" that anyone's statement that he told a lie "was a falsehood." Perez and the other employee both denied calling Stewart a liar.) Perez was listed as a member of the in-plant committee in the Union's February 17 letter to the Company; he passed out union handbills on the road to the plant; he was a union observer at the July 10 election; and he wore several union buttons on his shirt pocket. The Company's statement in its brief that the General Counsel "has not established that the Company had knowledge of Perez' union activities" is apparently inadvertent. On July 7, Foreman Seery gave Perez a reprimand for violating rules 4 and 17, loafing, and causing disturbance in the shop. According to Perez, Foreman Seery saw him making a "peace sign" to a fellow worker. Seery accused him of bothering people and loafing around and later told Vice President A. J. Stewart in Perez' presence that "He has been making wisecracks in the meetings." According to Seery, Perez was talking to another employee after the 9 o'clock break and was about 45 seconds late getting back to his work station and about 2 minutes getting to work. However, I note that on cross-examination, Seery testified that this happened after the 1:30 break, and claimed that even though Perez saw that Seery was watching, Perez continued talking, and upon arriving back at his work- bench, "he is hollering to everybody in the shop" while preparing for work. I consider this most unlikely, and credit Perez' version. On August 24, Foreman Seery gave Perez his second reprimand, for violating rule 4: "Loafing on company time. Employee was late returning from lunch break." According to Perez, he was talking to an employee when the first buzzer rang (at 11:27), then went to his work area, but went back for his lunch bag, and was about "a step away" from his area when the 11:30 buzzer rang. About 1 o'clock Seery brought the repnmand, and told Perez, "You know you were late." Perez answered, "I just came a minute late." Seery did not respond. According to Seery's testimony, Perez continued talking for a minute after the 11:30 bell rang, and was out of his work station about 2 minutes. As when testifying about the circumstances of Perez' first reprimand, Seery appeared to be attempting to fabricate testimony favorable to the Company, rather than relating what actually happened. I credit Perez' version of this incident as well and find that the Company issued the July 7 and August 24 reprimands (Perez' first, since he began working there) for the discriminatory purpose of building a case against him. Perez' third reprimand, on September 3, involved faulty grinding on 19 "Y" stacks (exhaust pipes). According to the Company, it could not determine whether Perez or another employee, Vincent Cortez, was at fault, so it gave a reprimand to both-admittedly knowing full well that such a reprimand to Perez would result in his discharge . (Perez' termination papers stated that he received three written warnings in a 6-month period for violating company rules.) Having found that the Company was seeking a pretext for discharging Perez, as well as other active union supporters, I draw the inference-before consideration of other evidence-that the issuance of the third reprimand to Perez, on the asserted suspicion that he might have been responsible, was discriminatorily motivated. The other evidence further impeaches Foreman Seery's credibility and shows that neither Perez nor Cortez damaged the Y stacks. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For weeks, Perez, Cortez, and other employees had been removing the wear bands from the Y and T stacks and grinding the surface smooth. Hundreds of them had been ground and not a single one was damaged until Monday, August 31, when two new employees began working in the department. One of the new employees, Oliver County, worked in the grinding booth, grinding the Y stacks. The other new employee, Howard Canellis, worked elsewhere. Two days later, on Wednesday, September 2, Foreman Seery was notified that the 19 Y stacks had been rejected by the government inspector. (This Wednesday was the same day that the government and company counsel went to the plant to investigate the Union's August 31 charge that the Company had been discriminating against Perez, and Perez gave his second pretrial affidavit.) Perez testified that Foreman Seery told him that Wednesday morning, September 2, "Hey, Ben, you cut into these pipes too much." Perez said nothing. Seery showed him one of the pipes. Perez asked, "What about Howard?" Seery responded, "Oh, Howard is doing work perfectly." ("Howard" was the wrong name for the new grinder, Oliver County.) I note that in Perez' September 2 affidavit, which the Company introduced into evidence without limitation, Perez referred to the pipes which were damaged "on or about August 31" and stated that Seery "came to where I was working and said: `Hey, Ben, you cut all these pipes wrong. You are too much out of the pipe.' I did not say anything . . . because I felt he was trying to blame it on me. Howard (an employee of about 3 days) also did the same work . Seery told me that he knew Howard did not do it because he was doing his work perfect. Nothing else has been said to me about these pipes." (Perez was discharged the next morning.) Foreman Seery clearly was not a candid witness. He testified positively that the new employee, County, did not do any grinding on Monday, August 31, yet another company witness, Leadman Kenneth Jordan, admitted that County spent 8 hours on that Monday, working in the grinding booth, "Grinding wear bands," the same as Perez and Cortez did. When asked if he mentioned anything to Jordan about whether some of the new employees were working on grinding the Y stacks, Seery answered, "No, I left it up to him to find out." Although testifying that he had Jordan investigate , Seery testifying elsewhere that he already knew who had done the grinding, having assigned the grinders himself, so he told Jordan, "Bring [Perez and Cortez] over here. We will talk to them." I note that while Jordan openly admitted early in his testimony that County ground Y-stack wear bands all that Monday, he later claimed-in an apparent attempt to lessen the impact of this admission-that County had ground the bands only on the female end of the Y stacks, not on the flare end where the faulty grinding had been done. Foreman Seery had already testified that the same employee grinds the wear bands on both the flare and female ends. Furthermore, Jordan admitted that the grinding was done in the same way on both ends and gave no explanation for his belated claim that County ground wear bands only where there was no damage-or why the experienced grinders would do such a large amount of faulty work, instead of the new employee. At one point, Seery testified that he believed he told Jordan "that as far as I was concerned," Perez and Cortez "couldn't have done it." Although Jordan denied that he said anything to Seery about County doing any of the grinding, he admitted that Seery said, "I can't believe that [Perez and Cortez] would grind like that." Foreman Seery and Vice President A. J. Stewart gave conflicting testimony about the incident. Seery was obviously attempting to conceal what actually happened when he testified that after Perez and Cortez denied doing the faulty work, he went to Stewart's office that afternoon, and told Stewart "we had checked into it and we had two employees that had worked on it, and he asked me their names, and I gave him their names, their badge numbers. And he said O. K.," and that was all the conversation. He denied recommending that Perez be given his third reprimand. Vice President Stewart, on the other hand, testified that he and Seery "collectively" decided to give reprimands to both employees, after receiving advice from counsel. Although testifying, "I would not expect a regular grinder to do this type of work," Stewart testified that he had "no reason" to make any investigation to determine if there was a new man there grinding that day, that "Mr. Seery knows his own crew." At one point, however, Stewart testified, "We did double-check and I asked George [Seery] again" and he said "no one else could have worked on it." Yet, Seery admitted that on that same day, Wednesday, another employee (D. Leza) was working in the grinding booth, grinding off Y-stack wear bands (being taught by himself and Leadman Jordan) and Jordan testified that still another trainee (H. S. Martinez) was also in the grinding booth, grinding Y-stack wear bands that Wednesday and that not only was trainee Oliver County grinding Y-stack wear bands on Monday, but trainee Leza had been in the grinding booth, grinding T-stack wear bands (which Seery admitted was similar work). The company records show that on Monday, trainee County worked 8 hours on the Y stacks, and trainee Leza worked 8 hours on the T stacks. Thus, although there were three trainees in the grinding booth that week, grinding wear bands on Y and T stacks, and despite the unlikelihood that experienced grinders Perez or Cortez would have suddenly turned out 19 badly damaged stacks after having done the work properly for weeks, the Company contends that it believed that either Perez or Cortez did the damage. Having considered the Company's conflicting testimony about the incident, I find that the Company either was aware that trainee County (mistakenly referred to as "Howard") had done the faulty work on his first day on the job, or that the Company was content to accept Seery's dubious charge against Perez and Cortez-without making an investigation-in order to have a pretext for discharging Perez. I, therefore, find that the Company, having given employee Perez the two reprimands on July 7 and August 24 in order to build a case against this active union supporter, gave him a third reprimand on September 3, and discharged him, because of his union support, in violation of Section 8(a)(3) of the Act. This finding of a discriminato- ry motivation is supported by the credited, undenied testimony of former employee Ruben Cortrares, who testified that earlier, Foreman Seery told him that if Perez "wasn't working good, or if he didn't want to do what I told GARY AIRCRAFT CORP. 115 him to do when I was showing him how to work on stacks," to let Seery know, that "he was going to try to get rid" of Perez, "that he was making too much trouble for the Company " (Perez' September 2 pretrial affidavit, another company exhibit, stated, "Rubin Contras told me about the time I got moved to the exhaust work that Seery had told him that he was going to try to fire me ") c. Joe Gallegos Cylinder grinder Joe Gallegos, who was hired in May 1969, solicited other employees at the plant to sign union authorization cards, passed out union handbills on the road leading to the plant, and wore a union button which Foreman Seery had noticed. Also, he was the second employee accused by Seery of calling President A. W. Stewart a liar after Stewart's July 7 speech. (The discriminatory discharge of the other employee, Perez, is discussed immediately above.) Gallegos had never been given a reprimand . On Monday, July 20 (2 weeks after President A. W Stewart called the special meeting to confront Gallegos and Perez), Gallegos had been on the night shift only 2 days, working on a new job, installing guides. Gallegos testified (as corroborated by employee Aurelio Martinez) that shortly after they began working that day, Gallegos was talking to Martinez about which cylinders to send through the line. (There was no rule against talking while working.) Foreman Seery passed by, saw them talking, and did not say anything. Later, according to Gallegos, Seery called Gallegos over to his desk and told Gallegos he had a reprimand for him. Gallegos asked why and Seery said because he was loafing, talking to Martinez. Gallegos protested, stating that he was talking to Martinez about work. Seery said he had to get out production and Gallegos began explaining that they were putting out 50 cylinders on the night shift as compared to 45 on the day shift. Seery became angry, accused Gallegos of making a scene, and told him to go ahead and sign the reprimand. Gallegos refused and Seery said, "You are fired." Gallegos started walking off and, as he passed by Martinez, told him, "Well, I have been fired." (Martinez testified that as Gallegos walked by, "he said he was fired.") Then Seery asked Gallegos for his badge and told the guard, "I just let this man go. See that he leaves." The following Friday, July 24, when Gallegos came for his paycheck, the clerk in the personnel office did not have it and referred Gallegos to Personnel Manager Gomez. Gomez told Gallegos that Seery had not told him that he was fired but had said, "Fine" (when Gallegos refused to sign the reprimand) and that Gallegos had walked off. Gallegos responded, "0. K., if he didn't fire me why did he take my badge?" Gomez did not answer, but left and returned with Vice President A. J. Stewart, who also stated that Seery had not fired him but had said, "Fine." Gallegos said, "No, sir, he fired me." Stewart said, "Well, there is nothing we can do about it," and told the secretary to write down on his termination papers, "Walked out." (Emphasis added.) Gallegos was then given his final paycheck. According to Foreman Seery, Gallegos was not talking to Aurelio Martinez as they were working, but Gallegos was standing in the aisle, talking to another employee, Edmundo "Al" Martinez, who was on his way home. (Elmundo Martinez did not testify. ) Seery also testified that Gallegos refused to sign the reprimand and "got all up in the air," became "real belligerent ," used profane language, and was "real loud." Yet Seery testified that he merely told Gallegos, "Fine," to go back to work . He further testified that he saw Gallegos leaving, caught up with him , asked for his badge, and gave the badge to the guard. (There is no specific denial, either by Seery or the guard, of Gallegos' testimony that Seery told the guard, "I just let this man go.") The Company contends that although Personnel Manag- er Gomez had issued the reprimand (at Seery's request) on Monday, both Gomez and Vice President Stewart were completely unaware that Gallegos was away from the job, without permission, - from Monday until Friday. The Company offered no explanation for this purported lack of communication between the foreman and the two officials, concerning what would have been (under the Company's evidence) a serious paragraph B rule violation (inasmuch as rule 34 prohibits unauthorized absence for 3 consecutive working days). Stewart, as production manager, spends most of his time in the plant. Both Seery and Gomez testified that after Gallegos arrived on Friday to pick up his paycheck, Seery told Gomez over the telephone that Gallegos had not been fired, and Gomez testified that he told Gallegos he still had his job. Even though Gallegos' testimony indicated that Stewart was already aware of what happened and Gallegos testified that Stewart said , "there is nothing we can do about it," Stewart did not testify about this matter. Although there was nothing in the demeanor of either employee Gallegos or Personnel Manager Gomez which would assist in resolving their credibility, Foreman Seery again appeared to be willing to fabricate testimony to support the Company's cause. In the absence of corrobora- tion from either Elmundo Martinez or the guard to support Seery's version of what occurred on July 20, I credit Gallegos' version (corroborated in significant part by Aurelio Martinez). I therefore find that when Seery received Gomez' approval to give Gallegos his first reprimand, without first inquiring about the subject of Gallegos' conversation with Aurelio Martinez , Seery was again attempting to build a case for discriminatorily discharging an active union supporter. And relying on Gallegos' testimony, I find that Seery did, upon getting angry, discharge Gallegos, take his badge, and tell the guard, "I Just let this man go. See that he leaves." Furthermore, having considered the manner in which Foreman Seery and Vice President A. J. Stewart acted together in discriminating against other active union supporters and the fact that Personnel Manager Gomez approved the issuance of the July 20 reprimand to Gallegos, I find it implausible that this incident (involving the continued absence of an active union supporter for 3 consecutive days) would not have been brought to the attention of both Stewart and Gomez . I therefore draw the inference that the Company-realizing that Foreman Seery's discharge of Gallegos ( 10 days after the election, and while other union charges against the Company were pending) might be unsupportable-fabricated the defense that Gallegos had merely walked off the job. Accordingly, I 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credit Gallegos' testimony of what occurred when he arrived for his paycheck 4 days later and find that the Company did not offer him back his job, but that instead, A. J. Stewart said that he had walked out and "there is nothing we can do about it" I, therefore, find that the Company discharged him for his union support, in violation of Section 8(a)(3) and (1) of the Act. d. Joel Estala Joel Estala was hired in May 1969 and discharged on July 20, the same evening Joe Gallegos was discharged. Like discriminatorily discharged Benito Perez, his name was listed as a member of the in-plant organizing committee in the Union's February 17 letter to the Company. He wore a union button at the plant, attended most of the union meetings, and passed out union handbills. I reject the Company's contention that the General Counsel intro- duced no evidence of company knowledge of his union activity. On July 16, Foreman Seery transferred Estala to the night shift because (in Seery's words), "we needed his experience to train the men . . on the night shift, and plus new men . . . to do the rework on the 3350" engines Despite the fact that Estala had never been given a reprimand except for being late and absent, and was needed to train night shift employees, Seery gave him a reprimand on July 20 for being out of his work area shortly after the shift began, and summarily discharged him. Even assuming that Seery was truthful in testifying that he saw Estala away from his work station 4 minutes after the 3.30 starting bell rang (contrary to Estala's testimony that he was on his way after the bell rang to pick up a cylinder, and so advised Seery), I find that Seery issued him the reprimand, without prior warning, for this relatively minor Paragraph A rule violation (Rule 4, loafing), and assessed the maximum penalty of discharge (for 3 reprimands in 6 months), pursuant to the Company's policy of finding pretexts for discharging active union supporters, in violation of Section 8(a)(3) and (1) of the Act. e. Vincente Paredes Vincente Paredes is a quality control inspector, working in the cylinder shop where Seery is the foreman. Although Paredes is under separate supervision, the General Counsel contends that beginning June 4 Foreman Seery caused a decrease in Paredes' overtime work. Paredes attended the May 18 representation hearing with employee San Miguel who, as found above, was discrimina- torily discharged on July 9. Paredes did not testify (as San Miguel did), but he sat at the counsel table with the Union. The company records show that for 10 consecutive weeks before June 4, Paredes had been working overtime in the cylinder shop-working 3 or more 10-hour days during the week and/or working on Saturday Paredes testified (before these records were produced at the trial) that one day he was working past the 3:30 quitting time. His inspector leadman, Raul Enriques, notified him that he would have to go home because Foreman Seery did not want that many inspectors working overtime; however, "if I wanted to stay and work overtime he would go home and then the next day he would stay and I could go home, and just rotate with the leadmen on the overtime." Then Seery came up and said, "Rudy, tell him no more overtime, that is all." As already found, on June 3, the day before this, Seery began building a case for the discriminatory discharge of San Miguel, by giving him a reprimand for being late on 3 days, including 1 day when Seery had given him permission to go to court. Later Paredes saw Enriques and Seery talking, and then Enriques returned and told Paredes no more overtime, after explaining that "he had asked Seery why he didn't want me to work overtime, and George Seery answered, `You know why.' " Paredes testified that his overtime was cut, but that the three other cylinder-shop inspectors, Enriques, Ruben Gonzales, and G. T. Moreno (actually it was J. C. Garcia until Moreno replaced Garcia on July 6) continued to work overtime. After about 2 or 3 weeks, "they needed me real bad, so they asked me to stay overtime." But after Paredes had accumulated about 5-1/2 hours overtime, Leadman Enriques came to him and said that Foreman Mireles was told by somebody who came through the cylinder shop "that there would be no more overtime for me." Again his overtime was cut for several weeks. (The company supervisors, Leadman Enriques and Foreman Mireles, did not testify. Foreman Seery denied the conversations with Enriques.) When the Company's records were produced, they corroborated Paredes' testimony, which I credit over Foreman Seery's denials. On June 4 (when Seery told Enriques, "tell him no more overtime"), Paredes worked 8.7 hours. For the next 2 weeks, Paredes' time was cut to 8 hours a day, with no Saturday work, whereas Enriques, R. R. Gonzales, and J. C. Garcia continued to work 10 hours almost every day, with some Saturday work. Then on June 25, after Paredes had accumulated 6 overtime hours (instead of the 5 1 /2 hours as he estimated), his overtime was again cut off (but not the overtime of the other inspectors) until July 10, when he began working overtime again. In the meantime, on June 19, the Union had filed a charge, alleging that since about June 4, the Company had been discriminating against Paredes and San Miguel because of their testimony and union support. (Paredes' overtime was restored on July 10, the day of the election, when company counsel was at the plant.) I find that the Company decreased the amount of Paredes' overtime work because he appeared at the May 18 representation hearing on behalf of Union and because of his union support, in violation of Section 8(a)(1) of the Act, as alleged. 4. Employees under Foreman Gentry a. Patrick Cunniff Machinist Patrick Cunniff, who was hired in January 1969 and discharged on May 20, was listed as a member of the Union's in-plant organizing committee in the Union's February 17 letter to the Company. (As already found, the Company discriminatorily discharged two other in-plant committee members listed in that letter , Benito Perez and Joel Estala, as well as Jesse Verastegui, who was appointed to the committee on February 22.) On page 14 of its brief, the Company contends that "there is no dispute as to the Company's knowledge of [Cunniff's) union activity," but GARY AIRCRAFT CORP. on page 47, the Company contends that the General Counsel "has not established that the Company had knowledge of Cunniff's union activity." I reject the latter contention. Early in February, Cunniff wore a union button at work for 3 days, until his leadman, Cline Arnold, told him that Foreman Edward Gentry (in Cunniff's words), "is p-----o-- [unhappy] about that button you are wearing." (Cunniff impressed me as being an honest witness, and I discredit the denials by Arnold and Gentry.) Shortly thereafter, on February 11, Cunniff received his first reprimand and a 1- day suspension for damaging some engine parts on a lathe, at a total cost of $157.64. I find that the General Counsel has failed to prove that this reprimand and suspension were discriminatorily motivated. Cunniff's second reprimand was received on February 19, only 2 days after he was listed as an in-plant committeeman in the Union's February 17 letter. The reprimand was for violating rule 2, "Leaving work station without permission." Leadman Arnold, a company witness, testified that upon returning to the area from the back, where he had been doing a special job, he saw Cunniff "coming back from the toolcrib." Foreman Gentry "asked me where he had been, and I told him that I didn't know, that I had just finished my job in the back." Gentry "told me to . . . find out if he had permission. I told him that he didn't have permission from me. And so Ed Gentry said that he didn't ask him, so he had a reprimand prepared." Although the written rule read, "Leaving work station without permission," the practice had been for employees to notify another employee upon leaving to go to the toolcrib. Arnold testified that if an employee needed a tool or part from the toolcrib, when neither the leadman or foreman was present, the employee should tell "the next senior man, more or less." (Cunniff credibly testified that he told another employee where he was going.) Without first checking to determine if Cunniff had notified anybody, and without having announced that the practice would be changed and the written rule strictly enforced, Gentry went to the personnel office for the reprimand. I find that the Company was seeking a pretext for discharging this active union member and issued the February 19 reprimand for this reason. On May 19, Cunniff was working on the evening shift. In the absence of a leadman, Foreman Gentry had assigned Cunniff to act as the night leadman Gentry testified that during this shift, he was making his round and saw, from a distance, Cunniff go into the aisle and start talking to employee Derrell Cox. "So I stopped and watched them. And in between 5 and 10 minutes Derrell headed for the door [on his way home] and Pat come back into his section. I continued my rounds." The next morning, May 20-without saying anything to Cunniff-Gentry went to Personnel, requested a reprimand (for violating rule 4, loading), and issued it and termination papers (for three reprimands in 6 months) to Cunniff. The next day he presented a written memo to Cox for him to sign, explaining (in Cox's words), "that the paper would be used if the UAW had an argument over the termination of Pat Cunniff." The prepared memo said nothing about what Cox and Cunniff were discussing, and Gentry testified at 117 the trial that he did not have any idea what they talked about. Cox, a company witness who was an assistant leadman at the time, testified that "We were discussing the day's work," and that Cunniff "explained a few problems that he had." Cunmff credibly testified that the men under him were all busy, that he did not have anything to do at the time except watch them, and that he was watching them while talking to Cox. (Although acting as night leadman, Cunniff had not been granted supervisory authority.) I find that the Company, having been discriminatorily motivated in issuing Cunniff his second reprimand, and having issued him this third one under these circumstances without any investigation, discharged him because of his union support, in violation of Section 8(a)(3) and (1) of the Act. b. Ascencion Martinez Employee Ascencion Martinez' testimony is undisputed that his foreman, Gentry, and his leadman, Victor Alejandro, saw him passing out union handbills during the week of the election. (As previously found, the Company discriminatorily discharged employees Estala, Gallegos, Perez, San Miguel, and Verastegui, who passed out handbills.) Martinez also distributed union authorization cards and talked to employees in the plant about the Union. He was a union observer at the July 10 election. If Martinez' testimony is credited, the grounds for his discharge were clearly pretexts. According to him, Foreman Gentry gave him a reprimand on the morning of the election for going to the restroom without permission (violating rule 2), even though he and others in that department (as observed by both Gentry and Leadman Alejandro) had made a practice of going to the restroom, about 10 feet from Martinez' work station, without saying anything to either the leadman or the foreman. Martinez protested that the other employees went to the restroom without permission, but Gentry said, "That is the company rule and you are going to have to go by the rules." Martinez then began obtaining permission before leaving, even though the others in the section continued to go to the restroom without permission. (This testimony is undisput- ed.) On August 17, Leadman Alejandro was absent and Gentry was away from his desk when Martinez needed to go to the restroom. Martinez waited 5 or 10 minutes, then told employee Reyes Coronado, and also employees Emilio Munoz and Joe Mesa on the way, that if Gentry came and asked where he was, to tell Gentry he had gone to the restroom. Returning, "I asked Mr. Munoz and Mesa if they had seen Gentry around. They said no. So I went back to my working area," also asking Coronado on the way. (None of these employees testified.) About 3 hours later, Gentry gave Martinez his third reprimand (for violating rules 2 and 4, leaving without permission and loafing), and discharged him. (His first reprimand, dated April 20, was for three absences in a 30-day period.) Thus, according to this testimony, Gentry singled out Martinez, and reprimanded him without prior warning. Then when Martinez was attempting to comply with the written rule and talked to other employees (to have them inform Gentry where he had gone and to check if Gentry had inquired), Gentry gave 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him a third reprimand and discharged him, again without making any investigation. Foreman Gentry gave a different version. According to him, he asked Leadman Alejandro where Martinez was on July 10; Alejandro said he did not know; so "At that point I went to Personnel and asked for a reprimand"-without first investigating. Gentry testified that when he showed the reprimand to Martinez, and Martinez protested, saying he was looking for parts and that "he didn't think it was right I told him to look his rules over." (Alejandro did not testify.) Even if the incident happened this way, I would find that the decision to give the reprimand under these circumstances, without prior warning and without any investigation, would be for the same unlawful reason as his earlier reprimand to Cunniff in another section for going without permission to the toolcrib. However, I do not believe Martinez was fabricating his positive testimony about having to start getting permission before going to the restroom, and I credit Martinez' version, which also established that the Company was discriminatorily moti- vated in giving the July 10 reprimand. According to the Company's brief, the August 17 reprimand "was not for going into the washroom but was for stopping by the work station of another employee on the way back from the washroom and engaging him in conversation during working hours." But the supporting evidence is not convincing. Foreman Gentry and Prod- uction Supervisor Maynard Berg testified that they were watching from another section. Gentry claimed that when Martinez was returning from the restroom, "He was standing there shooting the breeze with Munoz for two or three minutes"; whereas Berg testified, "we just started looking over there for a little while to see how long he would be there" and he was there "four or five, six minutes." However, it appears obvious that if Martinez had not been accused at the time of going to the restroom without permission and that if his only offense was stopping on the way back and talking, he would have been reprimanded only for loafing, not both for loafing and "Leaving work station without permission." Furthermore, if Martinez had been "shooting the breeze" with Munoz for 2 or 3, or 4 or 6 minutes (instead of stopping only long enough to inquire if Gentry had been around, as Martinez testified), there would have been reason for Gentry to have investigated, to determine why both employees were loafing, instead of proceeding to request Martinez' final reprimand without any investigation. I therefore credit Martinez' version, and find that again the Company was seeking a pretext for discharging an active union supporter and discharged him because of his union support, in violation of Section 8(a)(3) and (1) of the Act. 5. Other employees a. Lloyd Wright Employee Lloyd Wright was another employee who passed out union handbills before the election . He wore a union pencil holder on his pocket, solicited employees to sign union cards, and attended union meetings. He was also a union observer at the election (like Ascencion Martinez and Benito Perez, who were discriminatorily discharged, and like Vincente Paredes, who was deprived of overtime, as found above). I reject the Company's contention that the General Counsel has failed to establish the Company's knowledge of Wright's union activities. On September 4, Wright was discharged, being accused of violating rule 43, threatening a company representative (a paragraph C offense requiring mandatory discharge). That morning, when Wright was reporting to work, he took offense at guard Melvin Oldham's shouting at him, "Hey, hey," ("like I am, you know, a cow, horse, or something"), instead of calling him by name, when he was not wearing his company badge in the proper place. As credibly testified by Oldham (who impressed me as an honest witness), Wright "told me that I was ignorant and I didn't know how to talk to anybody. . . . Then he told me he was going to get me later." (I do not credit Wright's testimony that he did not make the latter statement to Oldham.) Wright clocked in and "turned around and hollered back to me that he was going to tell A. J. I told him that was his privilege." (Wright, as well, testified that after he punched in, he told Oldham that he was going to tell Vice President A. J. Stewart on him, and Oldham said he did not care. I discredit the conflicting version given by employee Garland McGarity.) Wright went on to work and, about 8 o'clock, started toward the classroom. (He was a member of the Federal MA-4 program, for the unskilled, hard-core unemployed.) Guard Oldham saw Counselor Sal Olivas, who had come to tell the employees that there would be no class that day. Oldham asked "what is that colored man's name," and started telling him about the trouble he had had with Wright not wearing his badge in the proper place. Then, as Oldham credibly testified, Wright walked up and told Olivas, "This policeman here is picking on me." Oldham said, "I am not picking on the man. . . . I had trouble with him three weeks ago because he didn't show his badge and now this morning he started the same thing over again.. . . [H]e said I was ignorant, that I didn't know how to talk, and he was going to get me later." As company witness Olivas credibly testified, Oldham also stated that Wright had said "he was going to report" Oldham "to A. J. Stewart." Oldham left and Olivas asked Wright what happened and where was his badge. Wright said that he had pinned his badge on his pants because he had forgotten his belt. Olivas asked him what else happened, and Wright said, "Well, that is it," and that he wanted to talk to A. J. Stewart when he came in." Olivas promised to tell Stewart as soon as he saw him, and told Wright to return to work. About 10:30 that morning, Olivas read Wright a statement, saying that he had threatened the security guard, and told him that he was discharged. Wright asked if Olivas was going to let him see Stewart and Olivas said no, "to come on." As they were leaving, they came across employee Valentine Lerma (who entered the plant with Wright that morning), and Wright said he hadjust been fired "because the security guard had said that I had threatened him." Lerma told Olivas that Wright "didn't say nothing like that," and Olivas (in Wright's words) "turned around and looked at him, puzzles a while, and told me to come on." They went to the office, where Personnel Manager Gomez and Wright's foreman were present, but Olivas said nothing to Gomez about eye witness Lerma's statement that there GARY AIRCRAFT CORP. 119 had been no threat . Wright refused to sign his termination papers and again asked to see A. J. Stewart , but Olivas said no, "I am taking you off the premises." In the meantime, Counselor Olivas telephoned Personnel Manager Gomez and reported (as Olivas credibly testified) "what Mr Oldham had told me." (Gomez testified that Olivas reported Oldham's saying that Wright had threat- ened, "I will get you later," but failed to mention that Olivas also reported what Wright had said he was going to do, that "he was going to report" Oldham "to A. J. Stewart.") Then , as Olivas further testified, Gomez asked if anybody witnessed this and Olivas said, "I will check." Olivas again talked to Oldham and asked him if anybody had witnessed the incident, and Oldham said, "Yes, the other security guard" (Dave Williams). Olivas asked Williams if he had witnessed an incident that morning and Williams said he had. (Williams did not testify.) Without asking Williams what he had heard, and without making any further investigation , Olivas again telephoned Gomez and "1 told him that Mr . Williams had witnessed the incident." Then (in Gomez' words), "I told Sal that I would take care of it," and "I had termination papers typed up." The question is whether the Company discharged Wright because he said to the guard , "I am going to get you later. I am going to tell A . J. Stewart on you," or as merely another pretext for discharging an active union supporter. After considering all the evidence and circumstances, including ( 1) the fact that Wright passed out union handbills and was a union observer, and the Company discriminatorily discharged other such union supporters, (2) the convincing proof that the Company was seeking pretexts for such discharges , and (3) the fact that the limited investigation demonstrated that the Company was not attempting to determine if an actual threat was made, but was merely seeking some support for a summary discharge, I find that the real reason for the discharge was Wright's union support and that the discharge violated Section 8(a)(3) and ( 1) of the Act. b. Joe Otero and Ricardo Morales Joe Otero and Ricardo Morales were employed on the same day and often worked together in the preservation department. Both passed out union handbills (as did the discriminatorily discharged employees Gallegos, Martinez, Perez, San Miguel , Verastegui, and Wright), and were alternate union observers at the July 10 election. Both received reprimands on April 22 and July 16, and Otero was discharged on September 14 On the morning of April 21, there was a bomb scare at the plant and the Company announced that the 11 o'clock 30- minute lunch period would be canceled and that the employees would take their lunch between 12:30 and 1:30, outside the plant. (The report was that the bomb was timed to explode at 1 o'clock.) Before noon , about 25 or 35 of the employees left the plant early. All except 20 of the 600 or so employees returned to work at 1:30. These 20 employees (including Otero and Morales) were given written repri- mands on April 22 and suspended for I day for violating rule 23 (a paragraph B rule), for "Leaving the facility during working hours without permission in writing." Contrary to the General Counsel , I find that he has failed to prove that Otero's and Morales' reprimand and suspension were discriminatorily motivated or were violations of Section 8(a)(1) of the Act. On July 8, 2 days before the election (and at a time when both Otero and Morales were passing out union handbills outside the plant), Otero emphasized his union support by wearing a large number of union buttons on his hat at work. On July 9 (as found above under II, A), Vice President A. J. Stewart singled out Otero and Morales by referring to "a couple of rotten apples . . . wearing sunglasses," and stating, "We will take care of them next week ." A week later, on July 16, Otero was looking for a small oil pan which was required in his work. Looking where he had found such pans before , he found one outside the door on a dolly. It was underneath some large oil pans, being cleaned by two employees . As Otero credibly testified, he asked them to give him a hand, to lift out the small one, and they did so as soon as they finished the pan they were washing. When he returned with the pan, Leadman Roberto Martinez (who had been watching him through the door) told him, "That is going to cost you." Otero asked, "For what?" and Martinez answered , "For talking." Otero explained, "I was just asking if they would give me a hand" to get the pan . Otero returned to work, having been gone (he estimated) about 4 minutes. Later, Martinez took Otero to see Vice President Stewart and Foreman Mullins. Stewart accused him of "loafing around and cutting up." Otero said, "No, sir. I have been working." Stewart said, "I have thirty signatures that state that you have been loafing around." Otero asked him where they were, but Stewart did not reply. (I discredit Stewart's denial that he referred to 30 signatures.) Foreman Mullins spoke up and said that he had timed Otero the day before and Otero had spent twice too much time (30 minutes for a 15-minute job) putting a sling on an engine . Stewart said he was giving Otero two reprimands, one for loafing and the other for taking too much time, and told Otero he was suspended for 2 days, Friday and Monday: "and Tuesday I could return to work, if I wanted to." Foreman Mullins and Leadman Martinez gave conflict- ing testimony concerning the accusation that Otero was loafing on the job. Mullins testified that Martinez reported Otero was talking to the two employees that morning between 4 and 5 minutes; whereas Martinez testified that he observed Otero "just standing there talking to them" about 10 or 15 minutes. (Neither Mullins nor Martinez impressed me as a candid witness.) Mullins also testified that 2 days earlier, he helped Otero and Morales for about 30 minutes on a 2 1 /2-hour engine job, and later found that they had not finished the engine in 4 hours , but did not say anything to them at that point. When asked why he did not take some action then , he gave the dubious reply (as if not knowing what to answer), "I believe in giving a man an opportunity to prove himself." I find instead that, even assuming Mullins believed Otero and Morales were taking longer than they should in doing their work, he did not warn them of a written reprimand, nor take any action at the time, for a discriminatory reason. Having considered the fact that Vice President Stewart (who participated in the discharge of other active union supporters ) had commented the preceding week that "We will take care of [the two 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `rotten apples'] next week," and told Otero about having 30 signatures proving that he had been loafing, I find that the Company was attempting to build a case for discharging Otero and gave him the two reprimands at one time for that purpose. I also find that the reprimand given to Morales a few minutes later (for working too slow) was likewise discriminatorily motivated. Otero received his final reprimand on September 14. He had not reported to work on Saturday, September 12 Both before and after that date , an unexcused absence on a scheduled workday was not grounds for discharge-even when an employee had been requested to work overtime. (Vice President A J. Stewart testified, "The policy is that if a person is asked to work overtime and does not show up, he will be denied overtime for a reasonable length of time.") On Monday morning, as credibly testified by Otero, Foreman Mullins asked him why he had not showed up that Saturday. Otero said he did not know that it was a working day. Mullins asked , "Didn't [pusher ] Harold [Miller ] tell you? Everybody in the plant knew that last Saturday was a working day I told you last Saturday, myself." Otero insisted, "No, sir, nobody told me Saturday was a working day I didn't know about it" Personnel Manager Gomez issued Otero a reprimand for "Failure to report to work on a scheduled work day" (which is not a violation of any written rule) and for "Dishonesty," and explained to Otero (in Gomez' words) "that he had received three reprimands within a six-month period, and that under our company rules this called for a mandatory discharge, and this is why he was being terminated." There is much conflicting testimony about whether or not Otero was notified on Friday about Saturday being a workday. After weighing all the testimony, I find that Otero (who, as previously indicated, impressed me as an honest, forthright witness) was telling the truth when he denied being notified . Furthermore, I consider it most unlikely, as argued by the General Counsel in his brief, that "if Otero was going to make up an excuse for not coming to work Saturday and Mullins had actually told him to come to work Saturday, Otero would have told Mullins, the person to whom he had to make an excuse, that no one had told him to come to work." Having found that Foreman Mullins was not a candid witness and that the Company had issued Otero two earlier reprimands to build a case against him, I find that the Company gave Otero this final reprimand for a previously nonchargeable offense, and for "Dishonesty" on a false charge that he was not telling the truth, as a pretext for discriminatonly discharging him, in violation of Section 8(a)(3) and (1) of the Act. III. THE REPRESENTATION PROCEEDING A. Challenged Ballots In the July 10 election, the employees voted 231 for and 225 against union representation , with 39 challenged ballots. I overrule 10 of the challenges, on the basis of the agreement by the Company and the Union at the trial on 5 of them (James Dodson, Angel Lopez, Pedro Perez, Philip Persyn, and Manuel Puente) and the concession in the Union's brief that there is insufficient evidence to support the other 5 (Jesse Dominguez , Ramon Gonzalez, Seratin Lopez, Robert Mayen , and Eladio Trevino). I sustain the challenges to four ballots : the ballot cast by Gregono Torres, who was not on the payroll during the eligibility period and the ballots cast by three summer students (Eugene Mireles, Paul Mireles, and Robert Pauley), who had no reasonable expectancy of continuing employment. Crest Wine and Spirits, Ltd., 168 NLRB 754. The remaining 25 challenges involve 11 persons whom the Union contends were supervisory leadmen and 14 employees whom the Union contends were on temporary transfer from the Company's Victoria plant. 1. Alleged supervisors The officially-designated acting leadmen, leadmen, and senior leadmen not only direct the work , but also have the authority and responsibility of filling out evaluation forms every 4 months, evaluating the employees working under them and making recommendations on wage increases. The Union introduced considerable testimony , indicating that most of the 11 alleged supervisory leadmen performed various duties of leadmen. However, with the exception of one of them (Cecil Hunter), the company records show that they had not been so designated. Five of them (James Fields, Willis Hensley, Calvin Lissner, Tomas Sanchez, and Paul Tudyk) were inspectors under the quality control department . Sanchez had been offered a leadman position at the Company's Hondo plant, but had chosen to transfer to the San Antonio plant, where he was not promoted to leadman until August. The official department roster, dated June 1, listed Fields, Hensley, Lissner, and Tudyk as inspectors , not leadmen . Evaluation forms made out for Fields, Lissner , and Tudyk before the election showed them as "potential" leadmen . The only basis for alleging Hensley to be a leadman was the mistaken testimony to that effect by Vice President A. J. Stewart at the May 18 representa- tion hearing . I credit Quality Control Manager Howard Burke's testimony that none of these five inspectors was a leadman at the time of the election . (By the time of trial, Fields as well as Sanchez had been promoted to leadman.) Five of the remaining alleged leadmen (Eliseo Casanova, William Gentry , Othon Martinez, Victonno Sanchez, and Benito Zuniga) performed certain duties which leadmen perform, and some of them had been referred to as leadmen from time to time. However , I credit the testimony by company witnesses that none of them had the authority to evaluate other employees and make wage recommenda- tions. Casanova, Martinez, and Sanchez were shown as "potential" leadmen on pre -election evaluation forms, and Gentry (a relative of Foreman Edward Gentry) was not designated as acting leadman until September 22. Zuniga credibly testified that he was a mere mechanic, with no authority to evaluate employees working with him. I therefore overrule these 10 challenges. The remaining alleged leadman was Cecil Hunter, who was promoted to leadman on November 21, 1969. He was admittedly a leadman in the preservation department until March 16, when he was transferred to the toolcrib, where credible evidence shows he was in charge of two to three employees, and ordered the tools for both the toolcnb and toolroom . Contrary to Vice President A. J. Stewart's testimony, the company records indicate that he was not GARY AIRCRAFT CORP. 121 demoted from leadman. His March 30 evaluation form showed that, 2 weeks after his transfer, his classification remained "Leadman." (Although Stewart also claimed that Hunter was then under a leadman, the space for the leadman's signature was left blank on the evaluation form, which was signed by the foreman.) Hunter's continued supervisory status is also indicated by the credited, undisputed testimony by former Leadman Edward Si- fuentes that after Hunter's transfer to the toolcrib, Hunter was going to write up a reprimand against a machinist for not wearing his badge at the toolcrib when Production Supervisor Maynard Berg "had to go over there and talk to Cecil Hunter to keep him from giving" the machinist the reprimand. I discredit Vice President Stewart's testimony to the contrary and find that Hunter remained a supervisory leadman. I therefore sustain the challenge to his ballot. 2. Alleged temporary employees On June 1 and 8, 14 Victoria employees (Domingo Benitez, Robert Guerra, Courtney Hungerford, C. E. Kingston , Bob New, Alejandro Perez, K. R. Plant, Thomas Pulido, James Ramirez, Lupe Salazar, Martin Torres, Alford Williams, Fred Williams, and James Williams) were transferred from the Victoria plant to the San Antonio plant, 120 miles away. All 14 of them were offered, and they accepted, temporary housing in the barracks at the former Hondo Air Field, which the Company leases. On July 2, the Company issued its monthly publication, "The Gary Aircraft Flyer," which contained a signed, front-page article by President A. W. Stewart, stating in part: Recently, several truckloads of equipment were pur- chased for the Victoria plant where facilities for engine overhaul work are being installed. Temporarily, some personnel from Victoria are working at the San Antonio plant training for future engine work at our Victoria plant. [Emphasis supplied.] It is undisputed that before these Victoria employees arrived, Foreman Fred Bennett told mechanic Manuel Pena (as Pena credibly testified) that "people from the Victoria plant" would be sent to the San Antonio plant to "be here temporarily," and "that I was going to try to teach them what I knew about the engines so when they would go back they would know how to build it . . . and as far as he knew they were going to take this particular contract back . . .to Victoria." On July 13 and 24 (following the July 10 election), 7 of the 14 Victoria employees were transferred back to the Victoria plant. The remaining seven were also transferred back, four in August and three on September 8. (Three of them were again working in San Antonio at the time of trial.) The Union contends that they were temporary employees in the San Antonio plant at the time of the election. The Company contends that they were permanent employees of the San Antonio plant. President A. W Stewart testified that he did not know what the Victoria employees were told at the time they were transferred, but that he instructed the plant manager of the Victoria plant that "all folders should be turned over to San Antonio Personnel so that they could be established on the San Antonio payroll." When asked about his July 2 front- page article saying that they were working in the San Antonio plant temporarily, he testified that this was a "morale-builder," that "I have to admit when I wrote this I couldn't tell whether these people . . . would be up here for a month or a year. All I can say is they hopefully would be able to come back to Victoria, but they were permanent, they were basically permanently transferred on our records " When questioned about their transfers back to Victoria, he testified that some were transferred back temporarily, and regarding those still there, "All I can say is that our plans have changed, and at the time back in May and June we did not plan to transfer as much engine work to Victoria as we have had to do. So this may be why some people have gone back that was not contemplated to put back at the time." (Emphasis supplied.) Thus, according to President Stewart, he wrote in the July 2 "Flyer" that the Victoria employees were "temporarily" in the San Antonio plant "training for future engine work at our Victoria plant," but actually the employees had been transferred to San Antonio permanently (or "basically" permanently), and "we did not plan to transfer as much engine work to Victoria," but "our plans have changed," and this "may" be why some of the employees were transferred back although "not contemplated" at the time. I discredit this explanation as an afterthought. From his demeanor on the stand, he did not impress me as a forthright witness. Having considered the temporary nature of the housing for these 14 employees, the undisputed testimony by mechanic Pena, and President Stewart's unequivocal front-page article written at the time, I find that the transfers were temporary. I therefore sustain the challenges to these 14 ballots. B. Union Objections 1. Wage freeze The notes which President A. W. Stewart used in making his July 7 speech to different groups of employees state in part: ONLY TWO RESULTS: 1. COMPANY WINS .. . Evaluation procedures, pay raises, everything continues as always. 2. UNION WINS: a) Wages, all benefits frozen. b) Company decides to accept or protest election. If Company files complaint, complaint takes 3 months. If Company loses, it then meets with union outsider to talk about contract. How long? Another three months to three years - Wages frozen by law If and when contract is signed, are wages and benefits better than now? Not necessarily. We decide-not Union. [Emphasis and punctuation supplied.] In its employee booklet on "Policies & Practices," the Company states under "Employee Evaluations," that new employees are reviewed after 90 days, at which time they may receive a pay increase, and that every 4 months thereafter, "you will be evaluated and recommendations made for pay increase if warranted." The Company followed this practice. I find that the July 7 speech clearly threatened that if the Union won the election, the Company would discontinue all evaluation increases during contract negotiations, falsely stating that such a wage freeze was required by law. I further find that the impact of the threat was magnified by 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statement that contract negotiations would last from 3 months up to 3 years, whereas if the Company won the election, the evaluation procedures and pay raises would continue. I therefore sustain the Union's Objection I and find that the speech contained a threat of reprisal which interfered with the employees' free choice of representation. 2. Discharge of union leader In its Objection 6, the Union alleged that the Company's July 9 discharge of employee Victor San Miguel intimidat- ed the employees in the July 10 election. This discharge came in the context of Vice President A. J. Stewart's July 8 and 9 speeches, in which Stewart denied (as shown by the notes he used) that if the Union won the election, the Company would have to hire back "some former employees terminated for violating company rules." As found above, the Company had misused its reprimand procedure, discriminatorily issuing repeated reprimands for violating relatively minor company rules as pretexts for discharging active union supporters. Before the Union filed its petition on April 20, the Company had thereby discriminatorily discharged employee Verastegui on April 9, when he continued his strong union support after being warned that he had better take his union button off "or the people up front will see it and they will find a way to get rid of you." On May 20, following the filing of the petition, the Company had also discriminatorily discharged another member of the Union's in-plant organizing committee, employee Cunniff, who had been told by his leadman that his foreman was "p- o- [unhappy] about that button you are wearing." In the meantime, after testifying for the Union at the May 18 representation hearing, employee San Miguel had become a leading organizer. Under these circumstances, I find that his discharge interfered with the employees' free choice. I therefore sustain this objection. 3. "Vote No" badges In Objection 7, the Union alleged that company supervisors intimidated employees by insisting that they wear "Vote No" buttons. These badges were admittedly distributed by the Company to its supervisors. Employee Jesse Hernandez credibly testified that on July 10, he saw Foreman Ed DeHoyos (a supervisor) pass out "Vote No" signs to Leadman Pete Alcozer (a supervisor), who went around "pinning the signs on the employees . . he would grab the pin and say, `Here, put this on," and pin it on the employee's shirt." (This testimony is undenied.) Such conduct has been held to be coercive, inasmuch as the individual employee, being confronted by such actions on the part of his supervisor, must "announce his choice" by either accepting and wearing the badge or rejecting it. Kawneer Co., 164 NLRB 983, 994-995, enfd. 413 F.2d 191, 192 (C.A. 6 1969); Garland Knitting Mills of Beaufort, 170 NLRB No. 39 (1968), enfd. in pertinent part, 414 F.2d 1214, fn. 4 (C.A.D.C. 1969). Here the conduct would be particularly intimidating, following the discriminatory discharge of employees Verastegui and Cunniff after they had been warned about wearing union buttons. I find that the supervisor's conduct interfered with the employees' free choice in the election. I therefore sustain the objection. 4. New holiday A year earlier, in March 1969, the Company wrote the employees a letter, stating in part that "later this year, as soon as we can get the San Antonio plant to where we are making money, we plan to add one more holiday to our list of holidays." On May 22, 7 weeks before the election, the Company announced in its "Progress Report News" that "Next Saturday is Memorial Day (also Mr. Stewart's Birthday) and is a Company Holiday." In view of the 1969 notice that another holiday would be added, I overrule Objection 9, alleging that the Company awarded the additional holiday in an effort to influence the employees' votes. 5. Discriminatory restrictions In Objection 10, the Union alleged that for 2 weeks before the election, the Company required employees wearing union buttons to obtain permission to go to the restroom while not requiring other employees to do so. The evidence does not support this objection. Although discriminatee Ascencion Martinez credibly testified (see II,B,4,b above) that he was required to get permission to go to the restroom while other employees were not, this occurred between July 10 and the time he was discharged on August 17-not during the 2 weeks preceding the election. The evidence shows that in a number of other sections, the practice for all employees was to tell another employee, not necessarily a supervisor, when going to the restroom. I overrule this objection. 6. Other objections In Objection 2, the Union alleged that the Company's election-day distribution of facsimiles of ten dollar bills which had the appearance of having "shrunk" was objectionable. The fake bills read "Vote No" on one side and on the other: "Do you want your pay check shrunk? If UAW had its way it would require you as a member to PAY a part of your wages each and every month. Vote No for Gary Aircraft." However, in view of the Company's repeated reminders that under Texas law, union member- ship could not be a requirement for holding a job, I find that there was no implied threat that the employees would be required to pay union dues as a condition of employment. I therefore overrule the objection. Before the election, the Company displayed a glass container bearing signs reading, "$40,000.00," and "One Year's Union Dues from this Plant's Employees." The Union has shown no basis for a finding that such a display of money, to dramatize the Company's propaganda that the Union was merely seeking dues money, interfered with the employees' choice at the election. I therefore overrule Objection 3. On July 8 and 9, Vice President A. J. Stewart stated in his speech to the employees that it was very important that everyone vote, and that in order to encourage everyone to vote, the Company was giving away two (black and white) television sets. Employees were given raffle tickets as they left the voting area. The Union having failed to show how this, under the circumstances, interfered with the employ- GARY AIRCRAFT CORP. 123 ees' free choice, I overrule Objection 5. Elgin Butler Brick Co., 147 NLRB 1624, 1627 Neither has the Union shown how the Company's campaign literature interfered with the employees' choice. I therefore overrule Objection 12. When the first group of voters arrived near the counselors' office, they waited for about 5 minutes in the walkway, before being told to go outside the building and line up near another entrance, leading to the voting area. While they were inside the building, in the walkway, a foreman and two or more company officials were standing nearby, but not saying anything to the employees. Thereafter, the voting line was limited to 25 and supervisors did not go near it Under these circumstances, I agree with the Company that its supervisors neither kept the voting under surveillance nor engaged the employees in conversa- tion. I therefore find that the Board's rule in Milchem, Inc., 170 NLRB No. 46 (1968), was not violated, and overrule Objection 14. There being no prejudice shown, I also overrule Objection 4 (regarding the Company refusing to allow union observers to accompany the company representatives releasing employees to vote), Objection 13 (regarding the Company's refusal to allow discharged employee San Miguel to be a union observer), and Objection 15 (concerning the Board agent allowing the Company to strike from the eligibility list the names of terminated employees). I likewise overrule the remaining Objections 8 and 11, for lack of evidence. C. Company Objections 1. Union letter On or about July 7 (3 days before the election), the Union mailed the employees a letter which read, in part: The Company . . . will probably have a mass (captive audience) meeting for everyone on the job the day before the election. They may even give everyone a 254 raise the day of the election and pay early to try to get you to vote against Your Union. We understand they did this at the Hondo Plant in the union election there. Don't be fooled! Vote a big "YES" for the Union Friday! There had been an election at the Company's Hondo plant, but the Union had not been on the ballot. Although alleging in its Objection I that the information contained in the letter "as to such wage increase was false and misleading," the Company did not give detailed informa- tion about how many of the Hondo employees had received election-day increases, and in what amounts. Vice Presi- dent A. J. Stewart testified no across-the-board increases was given, but that a "certain number" of the Hondo employees were given increases in their election-day paychecks "due to their normal evaluation process .. . effective almost two weeks pnor to the election." He testified (without supporting records) that none of the increases was as much as 25 cents an hour, but "I do not know" how much the increases were. He "estimated" that 20 or 25 employees received the increases . He did not testify when the Company first learned about the Union's July 7 letter, testifying only that he was first given a copy on the evening of July 10. The evidence shows that the Union had attempted to organize the Hondo plant and had unsuccess- fully appealed the Regional Director's dismissal of a charge that the Company had discriminatorily discharged two Hondo employees. There is no specific evidence on whether the Union deliberately misstated the amount or extent of the election-day pay increases. The evidence does not support the contention in the Company's brief that the Union distributed by mail the letter to the voters "on the day of the election," precluding the Company from making an effective reply. The letter was dated July 7, and the Company and the Union stipulated that it was mailed "on or about" that date. Two days later, on July 9, Vice President Stewart gave an antiunion speech to the employees. He did not specifically deny that he and the Company knew the contents of the letter by that time. However, even assuming that none of the election-day pay increases at the Hondo plant amounted to as much as 25 cents an hour, and assuming further that there was insufficient time to notify the employees that the Hondo election-day increases were smaller evaluation increases and not a 25 cents across-the- board increase, I find that the Company has failed to prove that the alleged "false and misleading" information would tend to interfere with the employees' free choice in the election. The July 7 letter warned the employees to beware of being "fooled" by such election-day activity. This warning was received by the employees in the context of the Company telling them that the Union was lying to them, and that "all they want is just your dues." Both the Union and the Company were denigrating the other's motives, but there is no showing that such campaign propaganda, on either side, interfered with the employees' free choice. I therefore overrule the objection. 2. Other objections The Company contends that "the Union's unmeritorious challenges delayed the voting process of other eligible voters and prevented numerous eligible voters from casting their ballots in the election." However, 18 of the Union's 31 challenges (and one of the Board agent's eight challenges) have been sustained, and there is no evidence that any employee was prevented from voting. I therefore overrule the Company's Objection 2. There is no evidence to support Objection 3, alleging that the Union appealed to radical prejudice. I therefore overrule it. At the pre-election conference on July 10, the Board agent, at the Company's request, struck from the eligibility list the names of employees who had been terminated, including the name of San Miguel who had been discharged the day before. Although it is the Board's practice to challenge the ballots of persons whose names have been struck, and the agent instructed both the company and union observers to inform him if any such person appeared to vote, apparently none of the observers did so and San Miguel was permitted to vote without challenge. However, in view of the foregoing finding that San Miguel was discriminatorily discharged, he was entitled to vote. There being no showing that the error in allowing San Miguel to 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vote without challenge was prejudicial, I overrule Objection 4 D. Concluding Findings Having sustained 19 of the 39 challenges, I find that the remaining 20 challenged ballots should be opened and counted. Having overruled the Company's objections, but having sustained three of the Union's objections to company conduct which I find interfered with the employees' exercise of a free and untrammeled choice in the July 10 election, I further find that the Union should be certified if it has received a majority of the valid votes when the opened ballots are counted, but that the election should be set aside and a new election conducted in the event the Union has not received a majority. CONCLUSIONS OF LAW 1. By discharging Patrick Cunniff on May 20, Joel Estala and Joe Gallegos on July 20, Ascencion Martinez on August 17, Joe Otero on September 14, Benito Perez on September 3, Jesse Verastegui on April 9, and Lloyd Wright on September 4, because of their support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By assigning more arduous and less agreeable work to Victor San Miguel, and by discharging him on July 9, because he supported the Union and gave testimony on its behalf, the Company violated Section 8(a)(1), (3), and (4) of the Act. 3. By decreasing the amount of overtime assigned to Vincente Paredes and by refusing to give Ricardo Morales a picnic reservation form and on July 16 discriminatorily issuing him a reprimand, because of their union support, the Company violated Section 8(a)(1) of the Act. 4. By coercively interrogating, warning, and threatening employees, the Company violated Section 8(a)(1) of the Act. 5. The Company did not violate the Act by issuing reprimands to Joe Otero and Ricardo Morales on April 22 for leaving the plant without written permission. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights, to take certain affirmative action, and to post appropriate notices. The Respondent having discriminatorily discharged nine employees and reduced another employee's overtime, I find it necessary that it be ordered to offer the discharged employees reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as 2 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and to pay Vincente Paredes for his lost earnings , the amount to be computed in the same manner. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER Respondent, Gary Aircraft Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America (UAW) or any other union. (b) Discharging or otherwise discriminating against any employee for giving testimony under the Act. (c) Threatening any employee with discharge or other reprisal for supporting or voting for a union. (d) Coercively interrogating any employee about union support or activity. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Patrick Cunniff, Joel Estala, Joe Gallegos, Ascencion Martinez, Joe Otero, Benito Perez, Victor San Miguel, Jesse Verastegui, and Lloyd Wright immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them and Vincente Paredes whole for their lost earnings, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-named discharged employees, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in San Antonio, Texas, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 23, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- 3 In the event that the Board's Order is enforced by a Judgment of the 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." GARY AIRCRAFT CORP. 125 ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS ALSO FURTHER ORDERED that Case 23-RC-3440 be remanded to the Regional Director for Region 23 to open and count the ballots of Eliseo Casanova, James Dodson, Jesse Dominguez, James Fields, William Gentry, Ramon Gonzalez, Willis Hensley, Calvin Lissner, Angel Lopez, Seratin Lopez, Othon Martinez, Robert Mayen, Pedro Perez, Philip Persyn, Manuel Puente , Tomas Sanchez, Victorino Sanchez, Eladio Trevino, Paul Tudyk, and Benito Zuniga, and to issue a revised tally of ballots and a certification of representative if International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW) has received a majority of the valid votes cast. In the event the Union has not received a majority, the election conducted on July 10, 1970, shall thereupon be set aside and a new election shall be conducted when the Regional Director deems that circumstances permit a free choice by the employees. Joel Estala Benito Perez Joe Gallegos Victor San Miguel Ascencion Martinez Jesse Verastegui Lloyd Wright WE WILL pay Vincente Paredes for lost overtime. WE WILL NOT discharge any employee for supporting International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other union. WE WILL NOT issue any reprimand, withdraw overtime, assign harder work, or otherwise discriminate against any employee for supporting or testifying for a union. WE WILL NOT threaten or discriminate against employees for wearing union buttons or passing out union handbills. WE WILL NOT coercively question you about union support or union activity. WE WILL NOT unlawfully interfere with our employ- ees' union activities. Dated By APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal Law by issuing reprimands to active union supporters in order to discharge them unlawfully, and by otherwise interfering with our employ- ees' right tojoin and support a union: WE WILL offer full reinstatement, with backpay plus 6 percent interest, to all these employees: Patrick Cunniff Joe Otero GARY AIRCRAFT CORPORATION (Employer) (Representative) (Title) We will notify immediately the above-named dis- charged employees, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Dallas-Brazos Building, 4th Floor, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4722.