M. B. D. Co.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. B. D. Company and International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC. Case 6-CA-5255 October 1, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 16, 1971, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with supporting brief and the General Counsel filed a brief in opposition and in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, M. B. D. Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board 's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3). We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner : International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, referred to herein as the Charging Party or the Union , filed an unfair labor practice charge against M. B. D. Company , referred to herein as Respondent, on October 26, 1970,1 and amended it on January 21, 1971. On January 29, 1971, the General Counsel of the National Labor Relations Board , by the Acting Regional Director for Region 6 (Pittsburgh, Pennsylvania), issued a complaint alleging that Respondent had violated Section 8 (a)(1) and (3) of the Act, principally by discharging Kent Myers and Dale Neill on October 9 . Respondent's answer, duly filed, admitted certain allegations of the complaint and denied others, including the allegation that it had committed any unfair labor practices. Pursuant to due notice , hearing was held before me in Brookville, Pennsylvania, on March 18 , 19, 29, 30, and 31 and April 1 , 1971. The major issue litigated was Respon- dent's motive for discharging Myers and Niell. All parties appeared and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs . The General Counsel's motion to correct transcript is hereby granted. Upon the entire record as corrected , including briefs filed by Respondent and the General Counsel , and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation, is a wholly owned subsidiary of Beverage-Air Company,2 Spartanburg, South Carolina, referred to herein as the Spartanburg plant. Respondent manufactures small coolers for keg beer, known as barmobiles , at its plant in Brookville . During the year just prior to issuance of the complaint in this case, Respondent received goods and materials valued in excess of $50,000 which were shipped to the Brookville plant directly from points outside the Commonwealth of Pennsylvania. On the basis of these admitted facts, I find Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. i Dates are 1970 unless otherwise indicated 2 Respondent in Beverage-Air Company, 164 NLRB 1127, enfd. as modified 402 F.2d 411 (C.A 4, 1968 ); Board's Order enfd pendente hie as modified 391 F 2d 255 (C A. 4, 1968) Herman Buffington, Respondent's president , is the Buffington referred to variously in Beverage-Air as president and chief executive officer of that Company A third company, located in Punxsutawney, Pennsylvania, and mentioned in Beverage-Air, also figures in this case. It is also headed by Herman Buffington. It is referred to herein as the Punxsutawney plant. 193 NLRB No. 79 M. B. D. COMPANY 495 III. THE UNFAIR LABOR PRACTICES A. Credibility The heart of the General Counsel's case is testimony from several of his witnesses that James Love, Respondent's plant superintendent , said Kent Myers and Dale Neill were going to be discharged for engaging in union activities. The heart of Respondent's defense is Love's categorical denials that he did so. Thus the beginning and the end of the resolution of the issues presented by this case must turn on whose witnesses are believed. For the reasons which follow, where the conflicting testimony of the General Counsel's and Respondent's witnesses cannot be reconciled, I have credited the General Counsel's witnesses (Myers, Neill, and fellow employees Wayne Corbin, Larry Arnold, and Gene Boddorf) over Love and Earl Brosius, Myers' and Neill's immediate supervisor and the only other witness called by Respondent whose testimony relates to these critical areas. I have not relied on numbers in reaching this conclusion. Five witnesses for the General Counsel do not necessarily outweigh two witnesses for Respondent . Nor have I relied on demeanor of the witnesses in the literal sense in which that phrase is usually used . None of the witnesses "looked" or "acted" like a barefaced liar, however a liar is supposed to look or act when practicing his art . All struck me as men involved in a novel experience who were trying to live up to the oath they had sworn to tell the truth without, however, doing mortal hurt to the cause with which their interests lay. Because of this impression , based on demeanor in a literal sense, I have also not relied on inconsistencies within the testimony of any particular witness. The case of Gene Boddorf illustrates this point. It is the most glaring in the record . As developed below, there is no dispute that Boddorf got a raise by complaining about the work of a man working next to him who was making more money than he . According to Respondent, that man was Neill. On rebuttal , Boddorf testified that the man was one Joe Sherman and stated flatly that he knew Sherman was making $2.45 an hour while he was making only $2.35 because he had seen the payroll change notice which boosted Sherman to the $2.45 level. However, Respondent introduced all payroll change notices relating to Joe Sherman into evidence . They establish beyond any doubt that Sherman, who left Respondent's employ in late October, never earned more than $2.35. Therefore, Boddorf did not tell the truth when he said he saw Sherman's payroll change notice . I do not think , however, that Boddorf must be discredited generally for this reason . He got carried away by a desire to help Neill or the Charging Party and may well have convinced himself, as he sat through the hearing and listened to Respondent's evidence about Neill's inadequacies as a worker, that he really did have Sherman in mind when he complained. I find below that Boddorf complained about Neill, not Sherman. In spite of the fact that I have discredited Boddorf on this specific detail, however, I have credited, for example, his testimony on which I have based my finding below that Love told Boddorf he had orders from Buffington to discharge Myers, Neill, and Carl Uplinger. What I have relied on in generally crediting the General Counsel's witnesses over Respondent's is demeanor in a broader and, I think, more useful sense, namely, the personality of James Love as he revealed it on the stand. Love got in on the ground floor when the Brookville plant opened and advanced rapidly from the ranks to the top managerial position in the plant . His version of one of the early antiunion statements attributed to him by the General Counsel's witnesses is that he told the men he personally did not want any part of the Union. It is undisputed that Respondent waged a vigorous and skillful campaign to keep the Union out of the plant . Love frankly admitted his lack of experience in labor relations . Putting all these pieces together, including the way he looked and acted on the stand, I conclude that Love, because of his inexperience and an excess of zeal to protect what he conceived to be Respondent's as well as his own best interest , went too far. It is not surprising that a man in this predicament could not bring himself to acknowledge his transgressions on the stand. In the context of the total situation which admittedly existed at the Brookville plant in the spring, summer, and early fall of 1970, I find the General Counsel 's version of what Love said and did more inherently credible than a man of Love's demonstrated temperament and personality conducting himself as Love claimed he did. There were two other witnesses to whom I have not yet alluded. John Amend, an organizer for the Union, testified for the General Counsel. I have credited his testimony. There are no significant conflicts between it and Respon- dent's evidence. I have also credited Dennis Henry, the inventory control clerk at the Brookville plant, who was called as a witness by Respondent . He impressed me as a candid young man with excellent powers of recall. There are some minor conflicts between his testimony and that of the General Counsel's witnesses, principally as to what words Myers spoke to Love when Love discharged Myers on October 9. In those instances , I have relied on Henry's testimony and rejected that of those who disagree with him. Finally, I have placed in June an event which the General Counsel's witnesses placed in March, namely, a meeting of employees at which Love admittedly read them a letter. The letter is in evidence. It conveys the usual message of an employer who has employed experienced counsel to his employees who are about to participate in a Board election that unions can mean strikes, strikes can mean trouble, and they had better think twice about where their real interests lie before they vote . It is unlikely that such a letter would have been read to employees 2 months or more before election day in a campaign conducted by expert counsel. I find that it was read a day or two before the election held at the Brookville plant on June 26 and that all the events which took place on the occasion when Love read a letter to them took place then and not in late March, as the General Counsel's witnesses recollected. B. Facts 1. Opening of the plant The Brookville plant is housed in a building the steel framework of which stood exposed to the elements for a number of years before Respondent acquired it. Once the building was completed by Respondent and a complement 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees began to assemble, the first work done in the plant was to scrape and paint the rusty steel. As the building was readied and machinery moved in, employees were gradually transferred from that work to production jobs. James Love was hired in April 1969 as a maintenance man. He was one of Respondent's first employees. At that time the operation was under the direction of William Kallas, manager of the Punxsutawney plant. Other early hires were Allen Dempsey and Carl Uplinger. Soon after he was hired Love was entrusted with supervisory duties, including the hiring of employees. In late 1969 or early 1970, as production loomed larger and plant preparation became less demanding, Kallas suggested to Love and Uplinger that one should begin to specialize in production and the other in maintenance. Uplinger opted for maintenance. Love took production. In the summer of 1970, when Kallas left, Love succeeded to his title of plant superintendent, although he had, in fact, been performing most of the duties of that job for more than a year. Uplinger is not, and has never been, a managerial employee or a supervisor within the meaning of the Act. The Brookville plant is the site of an automatic shear, a large machine used to cut steel, which services the Spartanburg and Punxsutawney plants as well. After it was installed in the spring of 1969, Love operated it for a short time. He was succeeded by Dempsey. From mid- 1969 until mid-1970, production work at Brookville was limited to making parts of coolers for the Punxsutawney and Spartanburg plants. The Brookville plant began turning out finished coolers in July 1970. In May, when the assembly operation was being organized, Dempsey elected to transfer to it. He ultimately became foreman of that department, apparently in August, although the exact date is not clear in the record. Myers, who had been hired in July 1969 and worked in the carpenter shop in the interim, succeeded him as operator of the automatic shear. Neill, who was also hired in July 1969, worked first in the rack department and then in the pressroom. Earl Brosius transferred from the Punxsutawney plant in late April 1970 as foreman of the pressroom and the automatic shear. 2. The election campaign and its aftermath The Union, which still represents employees at the Punxsutawney plant and represented those at the Spartan- burg plant at the time, appeared on the scene in Brookville in March 1970. Organizer John Amend held a meeting on March 11. Four employees attended. They were Myers, Neill, Uplinger, and Dempsey. Amend held a second meeting on March 18. This time seven employees, Myers, Neill, Uplinger, Dempsey, Glenn Schaeffer, Gary Cable, and Larry Arnold, attended. Employees signed authoriza- tion cards for the Union. Myers and Neill were among those who signed. The Union filed a petition for an election in M. B. D Company, Case 6-RC-5445, on March 20. Amend continued to hold weekly meetings until the election. Myers and Neill attended on a regular basis. A few days after the petition was filed Love held a meeting of the employees in the plant , a not unusual event. In the course of a discussion about the way the plant was developing, the Union's effort to organize the employees came up. Love said that he knew the names of all those who had signed authorization cards. He also said that Herman Buffington would close the plant if the Union gave him too much trouble. The question of whether wages were frozen for the time being came up. Love said he understood that they were but that he would try to get them unfrozen. (In fact, Respondent continued to grant individual raises throughout the pre- and post-election penod.) Gene Boddorf started working for Respondent on April 1. A few days before, when Love interviewed him and hired him, Love asked Boddorf how he felt about a union. Boddorf said he had worked for both union and nonunion companies and had got along under both systems. Love said there were a few men around the shop who were trying to get a union in but he thought it was too early, he did not want any part of it. During this same period in March, around the filing of the petition, Love talked to Neill one day in the plant. Love said he knew the men were trying to get a union in and who the instigators were. He said he was going to weed them out and heads would roll. On the evening of April 8 Amend held one of his weekly organizational meetings in room 6 at the Howard Johnson Motor Lodge in Brookville . On April 10 Love called Larry Arnold into his office. He told Arnold that three men had come to him and told him Arnold was going to get him. He said he had talked to an attorney and had enough evidence to fire Arnold and Allen Dempsey. He said he had a tape recording of the meeting held on April 8, he had been in room 7 that night and knew everything that went on there. He said Arnold could tell anybody Arnold wanted to tell and he would deny it. At another employee meeting held sometime in April, Love again told the employees that a few people in the plant were trying to bring a union in and he knew who they were. He said he felt it was too soon for a union and he could not see any reason why a handful of people should determine whether they were going to have a union or not when the plant was going to employ 80 or 90 persons in the future. He said that Buffington was against the Union and would fight it to the bitter end. He said that, as the plant grew, a number of supervisory jobs would open up. A hearing was held in Case 6-RC-5445 on April 21. The issue litigated was whether the time for holding an election was ripe in view of Respondent's contention that the unit was expanding. The evidence showed that Respondent then had 13 to 16 employees, expected to hire 12 or 13 more in May, and anticipated an ultimate complement of 90 unit employees at some unspecified time in the future. (As events turned out, Respondent's fastest rate of hiring came in July, apparently due to the beginning of full scale production of coolers in Brookville. At the beginning of that month there were 30 to 35 employees. By the end there were 40 to 45.) On June 1 the Regional Director issued his Decision and Direction of Election in Case 6-RC-5445. The election was scheduled for June 26. The preelection campaign intensi- fied. Love talked to employees. On several occasions, one of which was about 2 weeks before June 26, he told Boddorf he knew who was pushing the Union. Two or three days before the election, Love came by as Neill was passing out union leaflets before work. Love took the leaflets out of M. B. D. COMPANY 497 Neill's hand and asked him what Neill could give the men that Love could not. Neill demanded that Love return the leaflets. Love did so. Later that morning, Neill was answering questions from some of the men on the assembly line. Love came by. One of the men asked about dues and initiation fees. Neill said there would be no initiation fee because all the men in the plant who joined would go in as a group. He said there would be no dues until a contract was signed. Love said Neill knew Buffington would not sign a contract. Love said the men at the Spartanburg plant wanted a contract and Buffington would not sign one there. Love asked what made Neill think Buffington would sign a contract in Brookville when he would not sign one for Spartanburg. A day or two before the election Love talked to Larry Arnold in the plant. Love asked Arnold to be honest with him and tell him what the men expected to gain by getting the Union in the plant. Arnold told him. In the course of their discussion Love said that Neill had beaten himself out of a foreman's job by being active for the Union. Love also said that the men were talking strike at their meetings and asked Arnold whether he was aware that, in the event of a strike, Respondent would move the automatic shear to Spartanburg. Love pointed out that the shear was the lifeline of all three plants and it would be legal for Respondent to bring a truck through a picket line to haul it away. Also a day or two before the election, Love held employee meetings on each shift He read to the assembled men a 5-page document prepared for him in Spartanburg which was entitled "NOTES FROM LETTER." The only part of the document prepared in Brookville was a list of local fringe benefits inserted in a blank left for that purpose on page 3 after the words "As to your benefits, you have." The document started out by assuring the employees that how they vote in the upcoming election was their decision, a decision which they should weigh carefully in light of their own best interest. It pointed out that unions sometime mean strikes and strikes sometime mean loss of money and/or, lobs. It avowed Respondent's intention to improve the lot of its employees in every way possible as the plant grew and prospered. It pointed to the high wages and attractive fringe benefits the men were already receiving. It argued that the Union was only interested in the money it could get out of the men. It assured the men that they did not have to belong to the Charging Party or any other union in order to work for Respondent. It ended with the opinion that, once the men had given the matter thorough study, they would conclude that they stood to lose if the Charging Party got into the plant and to gain by keeping it out. A discussion developed between Love and the employees at these meetings . Love announced that Buffington had had a heart attack. He said that Buffington was opposed to the Union and would not sign a contract. He said that, in the event of a strike, Respondent would move the automatic shear to the Spartanburg plant. The election was held as scheduled on June 26. Kent Myers and Carl Uplinger acted as observers for the Union. Allen Dempsey and Rollene Corbett, a secretary, acted as observers for Respondent. The Union lost. It filed objections. On August 19 the Regional Director issued a Supplemental Decision, Order, and Notice of Hearing in Case 6-RC-5445. It scheduled a hearing on the Umon's objections for September 3. Sometime in early July, Love called Neill into his office. Love asked, now that the union thing was all over, how Neill felt about the Union. Neill said he still felt the same but was not going to stick his neck out anymore. Love said that was what he wanted to hear. He said he needed a backup man for Earl Brosius as supervisor of the pressroom and thought Neill was the man for the job but he "wouldn't put a man in this situation with this business [i.e., union business] behind his [i.e., Love's] back." Neill received a 10-cent raise shortly thereafter and did, in fact, on at least one occasion keep an eye on the pressroom in Brosius' absence. In late August Love held another employee meeting. He announced William Kallas was resigning and Love was taking over officially as superintendent of the Brookville plant. He told the men the Punxsutawney plant was due for a raise on November 1. (Under the contract then and now in effect between the Punxsutawney plant and the Union, higher maximum rates of pay were scheduled to go into effect on November 1.) He told the men they had nothing to worry about because he expected raises to go into effect at Brookville on October 1. The maximum rate at the Brookville plant was, in fact, increased from $2.55 to $2.75 per hour around the first of October. Not all employees got a raise at that time, however. Shortly before September 3 the hearing on objections scheduled in Case 6-RC-5445 was postponed until September 10. Neill had arranged with Brosius and Love to get off so that he could go to the September 3 hearing to testify for the Union. When the hearing was postponed, he did not take off. Sometime between the postponement and September 9, Love asked Neill if he still planned to go to the hearing. Neill said he did. Love shook his head, said, "You don't want to go to that hearing," and walked off. On September 2 Brosius interviewed Neill and filled out an employee performance review form on him, a personnel management technique which Respondent penodically uses with all employees. Brosius rated Neill poor on job attitude. Neill asked him what he meant by a poor attitude. Brosius said, "Well, let's face it-like this hearing business. You can't be all for the company and go to a hearing." On September 4 Boddorf asked Love for a raise. Boddorf was making $2.35 an hour at the time, while Neill was getting the top rate of $2.55. Boddorf argued that he was entitled to a raise because he was doing better work than the "God-damn" man working next to him. He was referring to Neill. Love gave him the raise he wanted. They then discussed Boddorf's becoming a group leader. In the course of this conversation, Love told Boddorf that Buffington had given Love direct orders to fire Myers, Neill, and Uplinger. Love said he was going to try to do something about Uplinger because he needed Uplinger, but Myers and Neill had to go. On September 9, the Union withdrew its objections to the election. The Regional Director issued in Case 6-RC-5445 a withdrawal of the outstanding notice of heanng and a certification of the results of the election held on June 26. When Love learned that the hearing had been canceled he 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to Neill's machine and told Neill the hearing had been called off. He said, "That must be some Union. You want to know something else? I'm going to get rid of you. First chance I get I'm going to fire you. The first time you're not doing your job I'm going to fire you." Myers was injured on the job on August 27 and hospitalized. When Myers called Love in mid-September to tell Love that he was ready to return to work, Love asked Myers to come to the plant to see him first. Myers went to Love's office as requested on September 18. Love told Myers things had changed since Myer's accident, the charges against Love in the objections case had been dropped. Love asked Myers why they had been dropped. Myers said he did not know. Love asked Myers what he had to gain by forming a union in the plant. Love accused Myers of trying to get Love fired by taking part in the objections phase of the representation case . Love told Myers he did not want Myers to return to work. He asked Myers to quit. He told Myers, if Myers did not quit, he would fire Myers the first chance he got without even giving 2 weeks' notice. Love said he was also going to fire two other men for union activities. He said none of them had a chance of going any further in the plant or getting a better job. Myers refused to quit. He returned to work the following Monday, September 21. 3. Kent Myers' work history Kent Myers went to work for Respondent on July 14, 1969, at $2 an hour. Initially, like all employees hired that early in the history of the Brookville plant, he chipped rust and painted steel. On July 28, 1969, he received a raise to $2.10 an hour. On September 15, 1969, he received a second raise, this time to $2.35 an hour. The payroll change notice which effectuated this raise contains the remark "Very good worker, will do anything he is ask [sic] to do, never has been late for work or absence [sic] from work." Sometime in the early days of his employment Myers tried to drive a forklift through a trailer doorway when the lift was raised too high to clear the doorway with predictable consequences. No serious damage was done. Myers' first assignment following the chip-and-paint phase of his employment was to the carpenter shop. On February 9, 1970, he received a raise to $2.45 an hour. This time the payroll change notice read, "Good worker-good attendance, judgment, etc. but was told that he would have to be carefull [sic ], not get hurt. Get help from supervisor if needed. At all costs must be carefull [sic]-no more accidents and use all safety equipment." There is no evidence of what accident or accidents prior to February 9 caused Love to write this remark. The first accident of which there is any detail in the record occurred in April. At that time, Myers strained his back in lifting some material down from a shelf. He lost no time from work. In May the job of operating the automatic shear opened up. Love offered it to Myers as the next senior man in the plant. Myers accepted it. A notation written by Love and dated May 15 on a job bid form in Myers' personnel file reads, "This job not up for bid as Ken Myers was man with most time, I ask [sic] him and he said he would like to trade job to shear line." Love explained to Myers at the time of his transfer that he was next in line for the job of supervisor of the carpenter shop and would probably get that promotion in the near future if he elected to remain there. Love pointed out, however, that Myers could not expect to be transferred back to the carpenter shop when that job opened up if he decided to move to the shear. Myers elected to take the transfer on this basis. Another note on the bid form dated July 20 reads, "I talked to Ken, asked him if he still wanted to stay on the shear or move back to the carpenter shop." Myers elected to stay on the shear. Myers operated the shear until his discharge on October 9. He made some mistakes on the job. It is a serious mistake for the operator of the automatic shear to cut steel pieces to sizes different from the sizes ordered, especially when the steel involved is destined for the Punxsutawney plant or the Spartanburg plant. Myers made that mistake on occasion. So did other persons who operated the automatic shear. It is a somewhat less serious mistake (but one that can have an unfortunate effect on Respondent's inventory control system) for the operator of the shear to cut more pieces on a particular order than he is told to cut. Myers made that mistake on occasion. So did other persons who operated the shear. It is a mistake for the operator of the automatic shear to fail to put protective tape on the steel he is cutting when protective tape is called for or to put it on when it is not. These mistakes also affect inventory control adversely. Myers made both on occasion. He also, on occasion, marked improperly tickets which accompany orders of cut steel to the Punxsutawney and Spartanburg plants. Approximately 1,600 orders to cut steel on the automatic shear have been processed at the Brookville plant since the shear was put into operation. A search of the forms used in processing those orders shows approximately 25 instances in which mistakes of the types just mentioned were made. Most, but not all, of these mistakes were made by Myers. It is a nuisance for Dennis Henry, Respondent's inventory control clerk, when the operator of the automatic shear fails to record on the form which tells him what he is supposed to do how many pieces he has actually cut, but it is not a particularly serious mistake. Myers did that on occasion. Myers received his last raise on June 1. This one brought him up to $2.55 an hour, the top rate in the plant at that time. The remarks entered on that payroll change notice read, "Talked to Ken about steel length-also about keeping coils [of steel] in line and writing ticket up-also about being carefull [sic], make sure to use all safety equipment-also if you get hurt must report it at once." In July he caught his hand in the automatic shear. He was taken to the hospital for X-rays. The hand was only pinched and not broken. He returned to work the same day. Myers' personnel file contains four written warnings. All are on forms which provide for a series of three written warnings at most. The first is dated July 20. It indicates that the violation took place in the plant in the "month of July." The nature of the violation is specified as substandard work, conduct, and attitude. The section devoted to company remarks reads, "Steel length all off, left [sic] wavy steel go, tickets mixed up." The question "has employee been warned previously?" is answered with a check in the yes box. The notation "talked to employee in office" also appears on the form. It is signed by Love. Myers cut his arm seriously on August 27. Coils of steel M. B. D. COMPANY 499 come with a retaining band on them. There is a safety device on the automatic shear which is designed to keep the end of the coil from springing free when the retaining band is cut. Myers cut a retaining band without using the safety device. The end of the coil sprang and hit him on the arm. Myers underwent surgery and was hospitalized for a time. He returned to work on September 21. Myers' second written warning is dated September 22. This time the date of violation is "Sept." Nature of violation is substandard work and carelessness . Company remarks read, "Talked to Ken, ask [sic] him to slow down, not so carelessness [sic], also orders all mixed up." The form is signed by Love. Myers' third written warning is dated October 1. Date of violation is "Oct." Nature of violation is substandard work and carelessness. Company remarks read, "Talked to Ken at machine-orders all mixed up-length all off." Else- where on the form appears "talked to Ken in office." For the first time, the "action to be taken" section of the form is filled in This entry reads, "Ken was told at this time that this would go on his record, but that it was his 3rd warning but would go along for a couple of weeks." Love prepared the form. It is signed by both Love and Brosius. Myers' fourth and last written warning is dated October 6. Date of violation is "month of Oct." Nature of violation is substandard work , carelessness , and attitude. Company remarks read, "Talked to Ken. Orders all mixed up. We must do something within a couple of days or I must let him go-length off-carelessness-cut two fingers on stainless on [sic] this morning." The form indicates some confusion in Love's mind at the time he prepared it as to just how many warnings he had given Myers. The "3rd warning" caption of one part of the form is circled. However the "2nd warning" caption of the part just next to it is overwritten with a penciled "3rd" and immediately under it appears, once again , "talked to employee in office." Action to be taken reads, "Again Ken was told, we would look at his work until end of the week." The form is signed by both Love and Brosius. On all four occasions Myers did not enter his remarks on the form and refused to sign it. Myers cut one finger on a piece of stainless steel on the morning of October 9. He also ruined two pieces of stainless steel in an order of 50 which he was cutting. He was discharged that afternoon. 4. Dale Neill's work history Dale Neill was hired July 23, 1969, at a rate of $2 an hour. He, too, apparently chipped and painted initially. He received a 10-cent raise on August 11, 1969. By September 29, 1969, when his rate went up to $2.35 an hour, he was in the carpenter shop The payroll change notice which effectuated this raise bears the remark "very good worker." On February 9, 1970, Neill was given a raise to $2.45 an hour. He was apparently transferred to the rack department at this time, for the remark on this payroll change notice reads, "Trans to coatingjob, doing real fine." In May ajob came open in the pressroom. Love offered it to Neill. Neill accepted. A bid form dated May 15 bears Love's notation "I ask [sic] Neil [sic] if he wanted to move to press room. He said yes, so we did not putjob up for bid as Neil [sic] was oldest man at this time." A notation dated July 27 reads, "Asked Neil [sic] if he wanted to stay in press room. He said yes he liked it there." Neill's last raise, this one to the top rate of $2.55 an hour, came on July 13. This time Love's remark on the payroll change notice reads, "Talked to Dale about being late and talking on the job but still thought that we would let the raise go in, he said he would try." Earl Brosius rated Neill on September 2. Love added a note to the employee performance review form Brosius filled out which reads, "I talked to Dale and said that he due for raise but must improve work." All of the evidence produced by Respondent to demonstrate that Neill was discharged for cause relates to his work as a press operator. Neill's usualjob was to punch holes in flat pieces of various types of steel already cut and notched in various shapes and sizes according to the sizes and positions specified on the blueprint which accompa- nied the steel. He sometimes operated other presses which notched the steel or bent it into various shapes, Neill made a number of mistakes while working in the pressroom. In most cases, the record is unclear as to just when they occurred. In this group are six stainless steel doors on which he punched the hole for the lock half an inch out of position. The doors had to be scrapped. His setup was left for another employee to use the next day. The remainder of the run of 50 or 100 doors was saved from being similarly nuspunched only because Brosius happened to check the setup the next morning. Also, Neill misbent approximately 700 air deflector bottoms. This is a 5 by 13- 5/16 inch piece of paint grip steel which must be bent at a 30-degree angle along one side. Neill bent them at the wrong angle. They were unusable. Also, Neill mispunched approximately a dozen blower housing covers, made from a piece of paint grip steel measuring approximately 19 inches by 11 inches. In this instance, he punched a screw hole in such a position that the cover would have been askew if used on a cooler. The covers were scrapped. Also, Neill rmspunched approximately 200 blower housing fronts. Here he punched holes on the wrong edge of a piece of zinc grip steel measuring approximately 20 inches by II inches in a place where the forming operation which followed would have made a tray designed to hold water. The holes, of course, would have made the trays leak. The pieces of metal which would have become blower housing fronts but for Neill's mistake were scrapped. Neill's personnel file contains four written warnings. The first is dated July 27. Date of violation is "July." Nature of violation is substandard work, tardiness, and attitude. Company remarks read, "Talked to Neill about being late for work, must stop. Attitude must improve. Work very bad." The yes box is checked under the question "Has employee been warned previously?" The form is signed by Love. Neill's second written warning is dated August 12. Date of violation is "Aug." Nature of violation is substandard work. Company remarks, written by Love, read "Talked to Dale about always playing around sitting at machine and not keeping at his work. Must improve quality, and follow prints. Answer: nothing will try." The form is signed by both Love and Brosius. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two other mistakes which Neill made near the end of his employment can be dated with a fair degree of accuracy In mid-September , Neill mispunched more than 1 ,000 screw plates. A screw plate is a piece of plain mild steel which measures 3-1/2 by 5/8 inches. It has a tapped hole in the center and another three -eighths of an inch from one end. It fits inside the door of the cooler Its function is to hold the screws which fasten the door to the body of the cooler. Neill punched the end hole at a three-sixteenths of an inch instead of three-eighths of an inch dimension. When the assemblers attempted to use these screw plates, the doors did not fit properly New screw plates had to be made before the assembly work could proceed. Some of the mispunched screw plates were later salvaged by punching a proper hole in the other end Several hundred, however, still had not been used at the time of the hearing. At one point in the controversy over this incident, Allen Dempsey, the assembly foreman , complained about Neill to Brosius in Neill's presence Neill told them to fire him if they did not like his work His manner was not contrite Neill's third written warning is dated September 21. Date of violation is "Sept." Nature of violation is substandard work, tardiness, and attitude. Love's company remarks read, "Talked to Neill about poor work, holes all off and is not following prints." Love and Brosius signed. Around the first of October, Neill mispunched approxi- mately 12 cooler tops. A cooler top is made from a piece of stainless steel which measures 30-5/16 inches by 28-9/16 inches . It comes in various models. However, generally speaking, it is punched to accommodate a beer pull at the front which runs through to the keg inside the cooler and to fasten wooden rails on the sides and back designed to keep glasses from slipping off. Neill double-punched the rail holes on one side Since the extra set of holes could not be covered up or repaired, the tops could not be used. These 12 pieces of stainless steel got through the forming process and were nearly ready for assembly when the mistake was discovered Neill's last written warning is dated October 5. Date of violation is "Sept -Oct." Nature of violation is substandard work and attitude. Love's company remarks read, "Talked to Neill about poor work again. He said it's the best he can do for the money he is making I left [sic] him see some samples and he claims a man can make a mistake once in a life time. (Sample in office of work.)" In the block under the printed "3rd Warning" is penciled "4th " Both Love and Brosius signed In each instance, Neill did not enter his remarks on the form and refused to sign it . He, too, was discharged on the afternoon of October 9. 5. The events of October 9 Near quitting time on the afternoon of Friday, October 9, Brosius sent Myers to Love's office on Love's instructions. When Myers entered Love asked him what, in view of the mistakes Myers was making, Love was going to do with him Myers replied, "Pay me in full " Love told Myers he was discharging him because he was accident prone, because he had a poor attitude, and because of the mistakes he was making . He referred to the two pieces of stainless steel Myers had crushed in the automatic shear that morning and the fact that he had failed to mark his work order sheets properly in the past week . Myers asked what effect his discharge would have on his hospitalization insurance . Love said he did not know, but, that if Myers would call back on Monday morning, he could find out then from Love's secretary . There was some controversy over whether Love had authority to pay off discharged employees in full in view of the fact that paychecks are ordinarily signed by officials in Spartanburg. Brosius, as instructed , next sent Neill to Love 's office. Neill went in when Myers came out. Love flipped an employment verification form across the desk to Neill. (Neill had applied for a loan to buy a house . The form was part of the process he was going through to get it.) Love said he was not going to fill it out, he was going to release Neill instead . Neill said , "OK, just give me my check." Love said it was being prepared . Neill said they both knew why Love was firing him but what sort of a reason had Love thought up? Love said substandard workmanship. Neill said that is as good a reason as any. Love said he could not have a man who was going to make parts like some samples he showed Neill. The samples were screw plates, a blower housing cover, and a cooler top, all mispunched . Love said he had gotten the cooler top off the production line. Neill denied that he had put it there. Neill asked what kind of a reason Love had given for firing Myers . Love said it was none of Neill's business. Neill said he would find out anyway. Love said he had discharged Myers because he was accident prone. He cited the occasion when Myers had failed to use the safety device on the shear with the consequent serious injury to his arm , the fact that he had crushed two sheets of stainless steel in the shear that day, and the fact that he had recently cut his fingers. Myers and Neill both received their final checks before they left the plant that day. On Monday, October 12, Love prepared a payroll change notice on each which showed that they had been removed from the payroll on October 9. In Myers' case, the reason given on the form is "resigned" and the explanation reads, "When called in to be talked to about bad quality and production , he asked to be paid in full " In Neill's case, the "discharged" box is checked and the remark reads, "Had to discharge Dale because of continued errors in production and his attitude toward foreman." Both forms are signed by Love and Brosius. Sometime after October 9, Myers was informed that his hospitalization insurance would remain in effect until the end of the month. He had an operation before the end of October for which the insurance company paid. Only two employees other than Myers and Neill have ever been discharged by Respondent. Both were fired during their probationary period for failing to do what their foremen told them to do. C. Analysis and Conclusions Respondent does not seriously argue that Kent Myers quit, therefore he was not discharged . In its brief, Respondent states, "Whether Myers, when called to the office by Plant Superintendent Love on October 9, 1970, was terminated before or after he asked to be paid off in full may be an issue in the case, but, at least for present purposes, it is not one of great significance . Love testified M. B. D. COMPANY 501 that he was in the process of giving Myers a final warning when Myers asked to be paid off in full, and this was corroborated by testimony of employee Henry and by company records . . . Myers testified that Love told him he was being discharged , and that Myers thereupon asked Love for the full amount of pay he had coming. . . Either way, however, the fact is that Myers' employment was terminated on that occasion in the course of a discussion about his work." Respondent's answer admits the allega- tion of the complaint that Respondent "did terminate the employment of" Myers on October 9. Therefore, despite the disparity of the wording on the payroll change notices by which their terminations were reported to Spartanburg, I find that Respondent discharged both Myers and Neill on October 9. Moreover, I find that Respondent discharged Myers and Neill because of their union activities and not for the reasons it advances . My reasons for this finding are so obvious as to be almost self-evident. First, and most important, Love said he was going to fire them for engaging in union activities . He told each of them to his face; he told Boddorf about each of them behind their backs . The fact that only Myers and Neill of the original four ringleaders in trying to organize the employees eventually lost theirjobs is consonant with these facts Love told Boddorf that Carl Uplinger was too important to Love's management of the plant for Love to fire him. Allen Dempsey, obviously, shifted his allegiance from the Union to Respondent before the election . Second , the documenta- ry evidence introduced by Respondent to prove it was motivated by Myers' and Neill's shortcomings as workers belies the very point it is meant to support . All of the relevant documents from their personnel files are in evidence. Each man was a good enough employee to rise to the top of the rate expeditiously and be praised in the process. The only hint of a criticism of either man which predates their activities as leaders of the drive to get the Union into the plant is found in the payroll change notice when Myers got a raise in February. The reference there is only to his alleged propensity for getting hurt and not to the quality of his work . The first unfavorable mention of his work is in the notice which accompanied his raise in early June . Here, it is significant that the exhibit does not jibe with Respondent's explanation of Myers' and Neill's rapid transformation from satisfactory to unsatisfactory employ- ees, evidenced by their four quick written warnings. All Respondent's witnesses emphasized that both men only started into a marked decline in late July. In Neill's case, no hint of criticism appears in Respondent 's record until after the election on June 26 and the resulting charges about Love's conduct in the campaign which were not resolved until withdrawn by the Union on September 9. The written warnings will least stand scrutiny . Myers did not work in the month of September until Monday the 21st. Yet his second warning is dated September 22 and purports to warn him for substandard work and carelessness in the month of September . Myers' third warning is dated October 1 , yet it purports to warn him for the same failures in the month of October. The fourth, dated October 6, states that Myers "cut two fingers on stainless . . . this morning." Both Myers and Love testified that Myers cut himself on the morning of October 9 although they disagreed over whether he had cut one or two fingers. Neill's testimony about his conversation that afternoon with Love is that Love said "He [Myers] didn't use the pillar [i.e., the safety device on the shear ] and that he got his arm cut and [Love ] said . . . he messed up a couple of sheets of stainless that very day and [Love] said yesterday [i.e., October 8] he cut his fingers." At least a suspicion arises that the warnings were concocted after the discharges because of Love's misconception about written warning systems and the use to which they are frequently put as evidence when motive for discharge becomes an issue in a Section 8(a)(3) case before the Board. Third, Myers and Neill are the only nonprobationary employees Respondent has ever discharged. Even though the Brookville plant is still relatively new and not a large number of persons have yet worked there, the fact that every other employee who survived the probationary period stayed until he left of his own accord indicates that Respondent is, at the least, a most lenient employer. While Respondent may well have had good cause to discharge either Kent Myers or Dale Neill or both for allowing the quality of their work to drop far below acceptable levels and for failure to improve their work and their attitude towards their jobs after having been given repeated warnings and reprimands, as Respondent claims, I find that these reasons advanced by Respondent are pretexts. Since Respondent's real reason was their activities on behalf of the Charging Party, Respondent violated Section 8(a)(3) and (1) of the Act when it discharged them on October 9, 1970. Respondent, by the acts of James Love during the Section 10(b) period, also committed various independent violations of Section 8(a)(1). In this respect, Respondent: (1) Threatened to discharge employees for engaging in union activities in Love's conversation with Boddorf on September 4, with Neill on September 9, and with Myers on September 18. (2) Promised to grant and granted economic benefits to employees for rejecting the Union when Love gave Neill a raise in July and made him backup supervisor to Brosius in the pressroom and when Love announced, in August, that the Brookville plant would receive a raise a month earlier than the organized Punxsutawney plant and implemented the new top rate around October 1. (3) Told employees their efforts to organize for collective bargaining were an exercise in futility when Love told Neill in a private conversation a day or two before the June 26 election and told all the employees at a meeting around the same time that Buffington would never sign a contract. (4) Threatened to deny employees opportunities for promotion for engaging in union activities when Love told Larry Arnold a day or two before the election that Neill had beaten himself out of a chance to be a supervisor by his union activities. I find that, in each of these instances , Respondent interfered with, restrained, and coerced employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. The General Counsel also contends that Respondent violated Section 8(a)(1) by creating the impression that it 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had employees' union activities under surveillance, interro- gating them about those activities, and threatening to move the automatic shear to Spartanburg in the event the Union got into the Brookville plant. As to the first, the only event relevant to this issue occurring less than 6 months before the charge was filed in this case is the conversation in June in which Love told Boddorf he knew who was pushing the Union. While Love said several things before April 26 which would sustain an impression of surveillance finding, this one conversation will not. As to the second, the only event relevant to this issue is the conversation Love had with Arnold about the Union a day or two before the election. In the context in which Love's question about what the men wanted was asked and answered, it was not coercive. As to the third, it is clear from the testimony of the General Counsel's witnesses, especially on cross-examina- tion, that Love's statements about the shear being moved to Spartanburg was in the context of what Respondent could do to continue its production in the event the men struck the Brookville plant. As such, it was an exercise of Respondent's right of free speech under Section 8(c) of the Act and not an illegal threat to move the shear in retaliation for employees' union activities. I find that the General Counsel has failed to sustain his burden of proving each of these allegations of Section 8(a)(1) violations. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. M. B. D. Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Kent Myers and Dale Neill on October 9, 1970, for engaging in union activities, Respon- dent has violated Section 8(a)(3) and (1) of the Act 4. By threatening to discharge employees for engaging in union activities, promising to grant and/or granting economic benefits to employees for rejecting the Union, telling employees their efforts to organize for collective bargaining were an exercise in futility, and threatening to deny employees opportunities for promotion for engaging in union activities, Respondent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not committed other violations of Section 8(a)(l) of the Act alleged in the complaint THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist 3 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 from the unfair labor practices found and remedy them. In order to remedy the discriminatory discharges of Kent Myers and Dale Neill, I will recommend that Respondent be required to offer them reinstatement with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that Respondent be required to post appropriate notices. 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: 3 ORDER M. B. D. Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge employees for engaging in union activities. (b) Discharging employees for engaging in union activities in order to discourage membership in Internation- al Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization. (c) Promising to grant and/or granting economic benefits to employees for rejecting a union. (d) Telling employees their efforts to organize for collective bargaining are an exercise in futility. (e) Threatening to deny employees opportunities for promotion for engaging in union activities. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Kent Myers and Dale Neill immediate and full reinstatement to their formerjobs or, if thoseJobs no longer exist, to substantially equivalent positions, and pay them for the earnings they lost as a result of their October 9, 1970, discharges, plus 6 percent interest. (b) Notify immediately the above-named individuals, 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, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plants in Brookville, Pennsylvania, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " M. B. D. COMPANY 503 representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations by Respondent of Section 8(a)(1) of the Act not specifically found herein. 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX WE WILL NOT discharge you or threaten to discharge you for engaging in union activities. WE WILL NOT discriminate against you in any way in order to discourage membership in International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization. WE WILL NOT promise to grant or grant you economic benefits for rejecting a union. WE WILL NOT tell you your efforts to organize for collective bargaining are an exercise in futility. WE WILL NOT threaten to deny you opportunities for promotion for engaging in union activities. WE WILL NOT, in any like or related manner, interfere with you or attempt to restrain or coerce you in the exercise of the above rights. All our employees are free, if they choose, to join International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization. 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 a trial, that we violated Federal law by discharging employ- ees in order to discourage membership in a labor organization and by interfering with your rights in various other ways, we hereby inform you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. Dated By M. B. D. COMPANY (Employer) (Representative) (Title) WE WILL notify immediately Kent Myers and Dale Neill, if presently serving in the Armed Forces of the United States, of their 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. 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412--644-2977.