Illinis Steel Fabricators, Inc.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illini Steel Fabricators, Inc. and District Lodge 154 of the international Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-6318 June 6, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 10, 1972, Trial Examiner Gordon J. Myatt issued the attached Decision in this proceed- ing.) Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National - Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,2 and conclusions and to adopt his recommended Order. ORDER 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 Illini Steel Fabricators, Inc., Benton, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. 1 Case 9-RC-9089 is hereby severed from the instant case for purpose of decision 2 However, we do not adopt the Trial Examiner's apparent finding that Mooney is a supervisor because the record is inadequate for us to make a definitive determination of Mooney's status TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed by District Lodge 154 of the International Association of Machinists and Aerospace Workers, AFL-CIO (hereinaf- ter called the Union), against Illini Steel Fabricators, Inc. (hereinafter called Respondent), a complaint and notice of hearing was issued on July 20, 1971, by the Regional Director for Region 9.1 The complaint alleged, inter alia, that the Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of employees' union activities, by unlawfully interrogating employees about their union activities, by promising to improve an employee's working conditions if he did not select the Union as his bargaining representative, and by threatening employees with plant closure if the Union became their bargaining representa- 1 Unless otherwise indicated all dates herein refer to 1971 tive. The complaint further alleged that the Respondent violated Section 8(a)(3) of the Act by unlawfully discharg- ing and refusing to reinstate two employees to their former positions because of their membership in, sympathy for, or activities on behalf of the Union, and further to discourage membership in the Union. The Respondent's answer admitted certain allegations of the complaint, denied others, and specifically denied the commission of any unfair labor practices. The Union filed a representation petition in Case 9-RC-9089 and the Regional Director issued an order on August 10, consolidating the representation case with the above-cited unfair labor practice case. Trial of the consolidated matter was held before me in Paducah, Kentucky, on October 13 and 14. All parties were represented by counsel and afforded an opportunity to be heard and to present relevant evidence on all of the issues in question. Briefs were submitted by counsel for the Respondent and counsel for the General Counsel and they have been duly considered by me in arriving at my decision in this case. Upon the entire record herein, including my evaluation of the testimony of the witnesses based upon my observation of their demeanor and consideration of the relevant evidence, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS The Respondent is an Illinois corporation engaged in the manufacture and sale of fabricated steel products. The Respondent runs a job-shop operation producing custom- ized products upon order by other manufacturers. The Respondent maintains fabricating plants at Monticello, Illinois, and Benton, Kentucky. During the past 12 months, the Respondent in the course of its business operations manufactured, sold, and shipped products valued in excess of $50,000 from its plant in Benton, Kentucky, to points outside the State of Kentucky. The pleadings admit, and I find, that the Respondent is an employer as defined in Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District Lodge 154 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent is in the business of manufacturing and selling steel fabricated products such as machines, machine parts, steel racks, and trays for use by other companies in their manufacturing process. Until the summer of 1970, the Respondent's sole producing facility was located in Monticello, Illinois. In August 1970, the Respondent 197 NLRB No. 44 ILLINI STEEL FABRICATORS, INC. expanded its plant facilities to include a new plant located in Benton, Kentucky. Some of the machinery formerly located in Monticello was moved to Benton and two skilled shop employees moved from Monticello to Benton to assist in setting up the operation there.2 The Respondent started hiring production employees at the Benton plant in September 1970 and gradually increased its shop work force by December to a peak of approximately 20 employees, working two shifts. The number of production workers were subsequently cut back during the early months of the following year and the Respondent maintained an average work force of approximately 14 employees. B. The Events Leading to the Unfair Labor Practice Charges As noted, the Respondent began hiring shop employees in September 1970. Until the Benton plant began to achieve production, Woolridge performed all of the work in the fabrication shop and Mooney did likewise in the machine shop. Doty, Respondent's president, moved temporarily from Monticello to Benton. He and Paul Whitney, plant manager, spent most of their time in the plant office or on the road in an effort to generate orders for the plant. As new employees were hired to work in the fabrication shop they received their day-to-day instructions from Woolridge. Doty and Whitney also came into the shop area from time to time during each workday to check on the production. There is unrefuted testimony by shop employees that Woolridge opened the plant in the morning, assigned the work to the employees, shifted them from one job to another without consulting Doty or Whitney, and ordered small supplies without approval from higher management. He also notified the employees when it was time for them to take breaks, stop for lunch, and time to quit by blowing a whistle in the shop. Woolndge supervised the loading and unloading of materials and he made up the shop "cut sheets" showing the amount and size of material to be cut and used in the fabrication operation There is also unrefuted testimony that a notice was placed on the employee bulletin board located in the breakroom instructing employees to call Woolridge at the plant or at home if they were unable to report for work for any reason. Both Woolndge and Mooney were hourly paid employees and punched a timecard, as did all of the other shop employees. However, they received a dollar an hour more than the highest paid employee in the shop. In addition, Woolridge and Mooney had a separate arrangement with Doty whereby they were to receive 1 percent of the gross profits from the sale of items produced in the shop. Doty testified that he entered into this arrangement with the two employees in order to 2 These two employees were James Woolndge and Robert Mooney Woolndge was skilled in every phase of the operation of the fabricating shop and Mooney was equally as knowledgeable about the operation of the machine shop The status of Woolridge is in issue here and will be treated elsewhere in this Decision 3 Orville Paul, Respondent's vice president who joined the operation in January 1971, testified that in March 1971 he terminated the commission arrangement with Woolridge and Mooney. Paul stated that the Respondent could no longer afford to honor this commitment because of its poor 297 compensate them for moving from Monticello to Benton. He stated that it only resulted in a payment of $200 to each of the employees.3 Although the Respondent takes the position that Woolridge and Mooney were merely leadmen who were most knowledgeable about the operation of their respective shops, it is clear from the description of their duties and responsibilities that these individuals were in fact supervi- sors and looked upon as such by the employees during the period of time critical to the resolution of the issues involved in this case. It is also evident from the testimony that Woolridge asserted independent judgment in directing the work of the employees in the fabrication shop. Not only did he assign employees their duties and check on their work, but he also had authority to move employees from job to job as he deemed necessary. In addition, he possessed authority to order small supplies when needed and he was the individual to whom the employees were instructed to contact when they were unable to report to work. Moreover, on the basis of Whitney's own testimony, Woolndge had authority to assert day-to-day discipline over the fabrication shop employees. Although the Re- spondent claims that Woolridge could not hire or discharge an employee, it is evident that he was empowered to responsibly direct the work of the employees in the fabricating shop. Accordingly, I find that Woolridge was, at all times material to this case, a supervisor within the meaning of Section 2(11) of the Act. N.L.R B v. Metropoli- tan Life Insurance Company, 405 F.2d 1169, 1177 (C.A. 2). In January 1971, the Respondent was operating two shifts in the plant. Sometime during that month (the exact time is not clear in the record), the Steelworkers Union attempted to organize the shop employees. Doty met with the employees in the breakroom4 and stated that the Benton shop was just getting started and was too small to have a union. He also stated that he did not want a union in the plant and felt that the employees didn't need one. There is conflict in the testimony regarding whether Doty told the employees he would pack up and move the plant if they chose to be represented by a union. Story, an employee who worked in the paint room testified this statement was made, but Doty denied saying anything of this nature. Based upon my observation of Doty and upon other inconsistencies contained in his testimony, I credit Story and find that Doty did threaten to move the plant. Can, an employee who delivered Respondent's products to out-of-town customers, was out on the road at the time of the meeting.5 He returned to the plant subsequent to Doty's meeting with the employees and he and the other employees engaged in a discussion about the need for a union in the plant. Can was looked upon by many of his coworkers as an authority on unionism because of his long experience as a financial condition. 4 The complaint alleges the meeting took place sometime in February, but the testimony of the witnesses places the meeting in the month of January 5 Carr was hired by Doty in September 1970, after a chance meeting in a restaurant Carr was a retired over-the-road truckdriver and a member of the Teamsters Union He was hired to dove the Respondent's truck when there were products to be delivered and he worked in the plant as a production employee when there were no deliveries. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamster. Carr told- employees that he agreed with Doty and felt it would be unwise to have a union in the plant since it was dust getting started and was so small .6 The employees agreed among themselves that it would be unwise to join a union at this time. The Steelworkers campaign apparently died from lack of interest among the employees. In February, the Respondent reduced its work force by laying off most of the employees on the second shift. This layoff was necessitated by the fact that the Respondent did not have enough orders to warrant having two shifts. Rickman, a student at a local vocational school who was hired to do electrical maintenance in the shop, was on the second shift but was not terminated.? He was transferred to the day shift. In May, Guy Phelps, a field representative of the National AFL-CIO, contacted Gray, the local business representative of the Union, and suggested that Lodge 154 organize the Respondent's employees. A meeting was held at Gray's home on May 15 and a majority of the shop employees signed authorization cards for the Umon. On May 17, Phelps and Gray went to the Respondent's plant and requested recognition from Doty and Whitney. Gray offered to prove the Union's majority by having an independent third party check the authorization cards. According to Gray, Doty and Whitney agreed to this procedure and the umon officials were to return the next day to discuss the choice of a third party. Gray testified that when he returned to the plant the following day, he was told that there was nothing to discuss. On May 19, Doty sent a letter to Phelps stating that there was no need for the union representatives to meet with Respondent's officials at any time. The letter suggested that the Union take the matter up with "the appropriate agency" and if they "qualified", the Respondent would cooperate.8 On May 19, the employees were scheduled to meet at Gray's home after they finished work at 4 p.m. From the unrefuted testimony of employee Story it is evident that Woolndge was aware of the meeting. Before Story left the plant he was asked by Woolridge if he were going to the union meeting. Story replied that he was and Woolridge said nothing more. Story and coworker Taylor left the plant in Story's automobile to go to the meeting. On the way, they stopped at a gas station and Story noticed Woolndge and another employee, Owens, in an automo- bile behind him. When Story left the gas station, he drove to Gray's home by a different route because he suspected that Woolridge was following him .9 The meeting between the union representative and the employees was held outside on a patio which provided an 6 Doty testified that Carr attended the meeting he held in the plant and expressed his opinion there, but it is evident from the testimony of the employees that Can was not present at the meeting 7 Although Rickman performed electrical maintenance work, a good deal of his time was spent operating machines in the fabrication shop as a production worker S The letter to Phelps was incorrectly addressed and he did not receive it until a week after the date indicated thereon. The Union filed a representation petition in Case 9-RC-9089 on May 26 and a hearing was held by the Regional Director on June 30 9 Story also testified that a day or so before the meeting he had a conversation with Whitney in the paint room According to Story, Whitney told him that as soon as the "union shit" was over he would get the unobstructed view of the street running alongside of Gray's property. While the meeting was in progress, several employees noticed Woolridge's automobile passing very slowly by the house. This was called to the attention of the other employees and shortly thereafter several of them observed Woolridge's car passing again very slowly in full view of the patio.io On May 21, Doty came into the breakroom and spoke to the employees about the Union. Doty told the employees that his views had not changed since the last organizing campaign and he still did not want a union in the plant. He stated that a umon would not help anyone and was not needed. He also displayed a copy of a purported collective- bargaining agreement the Union had with a similar type plant. He told the employees that their present wages exceeded those contained in the contract. Whitney, who was also present, stated that on the basis of the contract in Doty's possession the employees were overpaid. Doty then called upon Carr and asked if he had anything to say on the subject, since he had been a member of a union for a long time. Carr replied that he felt that a union in the plant was inevitable, even if it did not get in this time. Can then went on to cite the high cost of having skilled work performed on his trailer home. He compared the hourly expense for this work with the hourly wage he earned at the plant. Another employee, Owens, took sharp issue with Can and accused him of being the ringleader of the Umon among the employees. Rickman then spoke up and said that the employees were in favor of a umon not only to get better wages but also to get better working conditions and benefits. The discussion became very heated, especially between Owens and Can. Doty finally calmed the employees and told them there was no need to get into personal matters. As the employees were returning to their work, Woolndge told employee Adams that copies of the contract displayed by Doty were available on the brake press and he could look at them during working hours without anyone saying anything to him. Shortly after the meeting, the Respondent posted a statement on the employee bulletin board indicating its position regarding the Union. The statement contained much of what Doty told the employees at the meeting. During the latter part of May, Doty called the employees together in the shop and told them that production in the plant was falling off. He stated that he felt the employees were engaging in a deliberate slowdown and, if he discovered any employee not producing, he would get rid of him." Rickman and Can were assigned to work the riveting machine during the first 3 days in June. Rickman was the employee out of the paint room Whitney testified that Story suffered from asthma and he wanted to move him He stated that because of the layoff in February there was no one to replace Story in the paint room and he told this to the employee At the time of the trial , Story was still working in the paint room. is The testimony of the employees regarding this incident is undisputed in the record ti The record is not clear as to whether Carr was present at this meeting Although Can testified that he had never been warned about production, it is evident from the testimony of Doty and Whitney that all of the employees were informed, either in a group or individually, about the Respondent's concern over the low level of production ILLINI STEEL FABRICATORS, INC. machine operator and Carr worked as his helper. They were riveting trays which the Respondent manufactured for use by the makers of automobile tires. The trays came to the riveting operation from the brake press machine where holes were punched in them. Since the brake press operated faster than the riveting machine, ' it was not unusual for a number of trays to be stacked up waiting to be riveted. Doty testified that on June 1, 2, and 3 he observed Rickman and Can talking and laughing constantly during the times he went into the shop. He stated that he warned them to stop talking and turn their attention to their work. He also testified that a large number of trays were left unriveted after the two employees completed their shift.12 Both Rickman and Can testified that they were talking while working on the riveting machine. They both acknowledged that Doty spoke to them about it, but stated they were keeping up with the flow of trays coming from the brake press. They also testified that their machine was constantly breaking down and had to be adjusted. According to them, Doty, himself, spent time adjusting the machine. Taylor, the operator of the brake press, testified that on June 3, the brake press was down because it needed repairs and that he did not have a surplus of trays to feed to the riveters. Whitney testified that he knew Doty had spoken to Rickman and Can about talking. He also stated he was conscious of the fact that the rivet machine was not running at the usual pace because he did not hear the noise it normally made when operating constantly. According to Whitney, because of the slow operation of the riveting machine he undertook to count the production of Rickman and Carr and compare it with the trays produced by the night shift employees.13 He testified that, on the basis of his comparison, he found that Rickman and Can produced far less than the Respondent expected of employees operating the riveting machine. He then decided, after consultation with Paul, to discharge the two employees. Whitney stated that he was not aware of any problems with the brake press which caused a stoppage in the flow of trays to the riveting machine. He admitted, however, that on June 2, Rickman and Carr riveted all but four or five of the trays coming from the brake press. On June 3, Woolridge informed Can that Whitney wanted to see him in the breakroom. Whitney told Can he was going to have to let him go, but never stated the reason for the discharge. Carr asked if he could get a written notice stating the reason for his termination and was told that Doty would have to be consulted. When Can turned in his key and other material belonging to the Respondent, he informed Doty that he was going to fight the discharge. According to Carr, Doty replied that it was up to him but that the Union would be no help to him, as it would never get into the plant. At approximately 3:30 p.m. on June 3, Rickman was also discharged by Whitney. Rickman was told that he had missed the layoff in February and the Respondent was now going to have to let him go. As in the case of Can, 12 Under cross-examination, Doty stated that he observed a number of trays left over but was unable to state the amount When pressed further, he stated that even if one tray were left he would consider it surplus work 299 Rickman was never told why he was being discharged. The following day, Rickman came to the plant to ask for a recommendation that he could give to future employers. Whitney told Rickman that he would be willing to give him a recommendation for his electrical maintenance work, but would not be willing to recommend him for his production work. After Can's discharge, the Respondent contracted out its over-the-road deliveries to a truckdriver who was paid only when he was actually driving for the Respondent. This arrangement did not prove satisfactory and the Respon- dent subsequently hired another employee who divided his time between driving the truck as needed and working in the shop as a production employee. C. Concluding Findings The complaint alleges that the Respondent, through the conduct of Doty, Whitney, and Woolndge, committed numerous violations of Section 8(a)(1) of the Act. On the basis of the credited testimony and relevant evidence contained in the record as a whole, I find that this contention is supported, but not to the extent alleged by the General Counsel. It is more than evident, indeed it is conceded, that Doty did not want a union in the plant. Nor did he hesitate to so inform the employees on the two occasions when union organization of the shop seemed imminent. But under the right of free speech as defined in Section 8(c), expressions of animus toward the concept of unionization of one's employees do not violate the Act unless they contain threats of reprisal or force or promises of benefit. Thus, Doty was free to assemble the employees in January and again in May and to make known to them his objections to having a union in the plant, provided he uttered no threats or made no promises. The credited testimony, however, indicates that during his meeting with the employees in January, Doty threatened to pack up and move the plant if the employees were represented by a union. There is no question but that his statement interfered with the right of the employees to engage in self-organization . Doty made it clear to the employees that, if they exercised the rights guaranteed them by law, he would penalize them by removing the source of their livelihood. Statements of this nature by an employer constitute a clear violation of Section 8(a)(1) of the Act. The General Counsel also contends that Respondent violated Section 8(a)(1) on May 21, when Doty told the employees that he was still opposed to the idea of having a union in the shop. It was during this meeting that Doty called upon Can to express his opinion since he was familiar with unions through his experience in the Teamsters. The General Counsel takes the position that Doty was forcing Can to reveal his true feelings and "give up his protected right." This, according to the General Counsel, constituted unlawful interrogation of the employ- ee. I do not agree. This was a meeting between the employer and the employees wherein expressions of views were being exchanged. Although he solicited Can's which should have been performed by the rivet machine operators 13 Although it is not clear in the record, it is apparent that the Respondent resumed a limited second shift operation 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comments, there was nothing in Doty's manner or his expression which compelled or forced Carr to state his views. The fact that he chose to make a statement in support of the Union does not in anyway cause Doty's request for Can's opinion to become unlawful. I therefore recommend dismissal of the allegation in the complaint regarding this incident. There is also an allegation regarding the statement made by Whitney to Story. As Whitney testified, Story was afflicted with asthma and he intended to remove him from the paint room when he had someone to replace him. The mere fact that Whitney told Story he would move him when the matter involving the Union was finally resolved does not in my judgment constitute a promise of benefit to this employee. Even when viewed in the context of the obvious union animus displayed by the Respondent's officials, I am unable to find that implicit in Whitney's comments was a promise to take this action if Story rejected the Union. Accordingly, I find that the General Counsel has failed to establish a violation by this incident and I recommend dismissal of this allegation in the complaint. As noted above, I found that, during the period of the incidents involved in this case, Woolridge was in fact a supervisor within the meaning of the Act. All the unrefuted testimony indicates that on May 19, Woolridge asked Story if he intended to go to the union meeting after work. This was more than an idle inquiry. It was a pointed question by one of supervisory authority regarding the union activity of an employee. Such questioning, made in the context of an employer's clear union animus, is coercive as it makes known to employees that their employer is aware of their activities on behalf of the Union. Such interrogation impedes and interferes with the statutory right of the employees to engage in self-organization and constitutes a violation of Section 8(a)(1) of the Act. Atlantic Marine, Inc., and Atlantic Drydock Corporation, 193 NLRB No. 145. But, even if I were reluctant to find Woolridge's interrogation of Story to be a violation, his subsequent conduct clearly demonstrates that the interrogation was for an unlawful purpose. Woolndge not only knew about the meeting, as he indicated to Story, but he also drove past the home of the union representative while the employees were meeting on the patio. That it was no accident is evident from the fact that he rode past the house a second time in clear view of the employees. Surveillance of this nature can only be construed as interfering with the right of the employees to engage in self-organization and likewise constitutes a violation of Section 8(a)(1) of the Act. Wolverine World Wide, Inc. 193 NLRB No. 54. Finally, I find and conclude that the termination of the employment of Can and Rickman was for discriminatory reasons. Although the Respondent claims that these two employees failed to meet the level of production expected from employees working on the riveting machine, the testimony of all of the witnesses leads me to the conclusion that this was merely a pretext to allow the Respondent to get rid of announced umon adherents. As previously noted, in the meeting on May 21, Carr was accused by a coworker of being the ringleader for the Union and Rickman also expressed reasons why the employees needed a umon. The testimony of both Whitney and Doty regarding the basis for terminating these two employees is vague and at times appeared deliberately uncertain. For example, Whitney stated that he knew the riveting machine was not operating at its usual pace because he did not hear the noise it normally made in the shop. He also stated that he counted the trays produced by Rickman and Can on June 2 and they were less than the number of trays produced by the night shift operators of the machine . However, Whitney apparently chose to ignore or profess to have no knowledge of the fact that the riveting machine was not operating properly and that Doty had to make adjustments on it so that it could function. Whitney did not know what adjustments were made, but stated they could have only been minor. Nor did Whitney recall that the brake press was down for a period of time and therefore unable to supply trays to the riveting machine. Although he claimed a substantial number of trays were left unriveted by the two employees, Whitney finally admitted that there were possibly only four or five trays left at the end of their shift. Similarly, Doty was unable to recall having to make adjustments to the riveting machine while the two employees were operating it, but stated it could have been possible. Doty also failed to mention the brake press being down so that the flow of trays to the riveting operation was interrupted. As in the case of Whitney, Doty claimed that a surplus of unriveted trays was left by Rickman and Can, but he too admitted that he was not aware of the number and stated that even if one tray were left it was surplus in his opinion. Doty finally stated that Rickman and Can were simply not attempting to work, but he was unable to state whether they were keeping up with the flow of trays coming from the brake press. These inconsistencies and omissions in the testimony of Doty and Whitney cause me to conclude that the basis for the discharge of the two employees on June 3 was no more than a pretext to allow the Respondent to get rid of two known advocates of the Union. When considered in the light of the Respondent's avowed union animus and also the light of the surveillance engaged in by Woolridge, the Respondent's explanation for the basis of the discharges fails to be persuasive. Moreover, Doty's parting comment to Can, when the employee stated he was going to fight the discharge, clearly indicates that the employer had identified Can as a moving force in the Union's organizing campaign. Accordingly, I find that the Respondent's explanation that Rickman and Can were discharged because of poor work performance was nothing more than a pretext to enable the Respondent to rid itself of employees consid- ered to be union activists and therefore Respondent violated Section 8(a)(3) and (1) of the Act. Owens-Corning Fiberglas Corporation, 185 NLRB No. 21. CONCLUSIONS OF LAW 1. Respondent, Illini Steel Fabricators, Inc., is an employer as defined in Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 154 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a ILLINI STEEL FABRICATORS, INC. labor organization within the meaning of Section 2(5) of the Act. 3. By telling employees at a meeting in January 1971, that if the Union got into the plant the Respondent would pack up and move, the Respondent interfered with, restrained, and coerced the employees in the exercise of the right to engage in self-organization guaranteed in Section 7 of the Act, and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully interrogating employee Dan B. Story about his intention to engage in activities on behalf of the Union and by unlawfully engaging in surveillance of employees during a meeting with the union representative, the Respondent engaged in conduct which interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The Respondent did not violate Section 8(a)(1) of the Act when Plant Manager Whitney informed employee Story that he would be moved from the paint shop when the union matter was finally concluded. 6. By discharging employees Charles Carr and Jerry Rickman on June 3, 1971, for the reason that they were considered activists on behalf of the Union in the shop, the Respondent discriminated against these employees in regard to tenure of employment in order to discourage membership in a labor organization and thereby violated Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY - Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. In view of the manner in which the Respondent's unfair labor practices were committed and in view of the substantial background evidence of the Respondent's animus toward the Union, and in order to prevent the commission of other unfair labor practices , I shall order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed the employees in Section 7 of the Act. Barnwell Garment Company, Inc., 163 NLRB 51, 54; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 523, 536 (C.A. 4). Having found that the Respondent unlawfully dis- charged employees Charles Carr and Jerry Rickman on June 3 , 1971, for the reason that they were advocates on behalf of the Union, I shall order the Respondent to offer these employees immediate and full reinstatement to their formerjobs or, if thosejobs no longer exist, to substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed by them. Also to make them whole for any loss of earnings they may 14 In the event no exceptions are filed to this recommended Order as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recom- mended Order herein , shall as provided in Sec. 10(c) of the Act and in Sec 301 have suffered by reason of the discrimination against them, by payment to them a sum of money equal to that which they normally would have earned from the date of the discharge to the date of the Respondent's offer of reinstatement, less net earnings during such period. The backpay shall be computed in accordance with the remedial relief policy set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 139 NLRB 716. Accordingly, upon the foregoing findings of fact, and conclusions of law, and upon the entire record in this case, pursuant to Section 10(c) of the Act, I make the following recommended: 14 ORDER Respondent, Illini Steel Fabricators, Inc., its officers, its agents, successors and assigns shall: 1. Cease and desist from: (a) Telling its employees that the Respondent will pack up and move the plant if they select the Union to be their collective-bargaining representative. (b) Unlawfully interrogating employees about their intention to engage in union activities and unlawfully engaging in surveillance of employees while engaged in union activities. (c) Discharging or otherwise discriminating against employees because they support and are active on behalf of District Lodge 154 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following action which I find will effectuate the policies of the Act: (a) Offer Charles Can and Jerry Rickman immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service At and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records , timecards, personnel records and reports, and all other records necessary to analyze the amount of the backpay due Can and Rickman. (d) Post at its plant in Benton, Kentucky, copies of the attached notice marked "Appendix." 15 Copies of such notice on forms provided by the Regional Director for Region 9, after being duly signed by an authorized 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 15 In the event this order is enforced by judgment of a United States (Continued) 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and be maintained for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or,covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.16 IT IS FURTHER ORDERED that the allegations of the complaint setting forth violations not specifically found herein be dismissed. IT IS FURTHER ORDERED that the representation case numbered 9-RC-9089, which was consolidated with the unfair labor practice case by order of the Regional Director, be, and the same hereby is, severed from this proceeding and remanded to the Regional Director for whatever action he may deem appropriate to take in that matter. Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 16 In the event 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 9, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial before a duly designated Trial Examiner, that we violated Federal law by questioning employees regarding their union activity, by threatening to move the plant if the Union became the collective-bargaining representative of the employees, by engaging in surveillance of employees engaged in union activity, and by unlawfully discharging employees to discourage membership in and activity on behalf of the Union, we hereby notify our employees that: WE WILL NOT question any employee regarding his union activity. WE WILL NOT engage in surveillance of our employ- ees while they are participating in activities on behalf of the Union. WE WILL NOT threaten to close our plant and move if our employees select a union to be their collective- bargaining representative. WE WILL NOT discharge or discriminate against any employee for supporting District Lodge 154 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL offer reinstatement to Charles Carr and Jerry Rickman to their former jobs , or if those jobs no longer exist, to substantially equivalent positions, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agreement conforming with the provisions of Section 8(a)(3) of the Act. Dated By ILLINI STEEL FABRICATORS, INC. (Employer) (Representative) (Title) We will notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act or the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 matenal. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.