Nashua Pre-Cast Corp.

NASHUA PRE-CAST CORPORATION 39 Nashua Pre-Cast Corporation and United Steelworkers of America, AFL-CIO-CLC. Cases l-CA-7817 and 1-CA-7825 July 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 21, 1972, Trial Examiner Josephine H. Klein issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a copy of his brief to the Trial Examiner. 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 briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt her recommended Order.2 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 Nashua Pre-Cast Corporation, Nashua, New Hampshire, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: Upon charges filed against Nashua Pre-Cast Corporation, Respondent, by i In adopting the Trial Examiner's finding that Clark was discharged in violation of Sec 8(a)(3) and (1) of the Act, we do not rely on any adverse inference she may have drawn from the fact that Respondent did not call its attorney, Harkaway, to testify concerning his conversation with Worden on the day of Clark's discharge (TXD, in 16) We do not draw such an inference 2 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 her findings Respondent asserts that the Trial Examiner committed prejudicial error by unduly limiting its right to cross- examine General Counsel's witnesses, and that it was thereby denied a full and complete hearing We find no support in the record for Respondent's charge. United Steelworkers of America, AFL-CIO-CLC, Charg- 'ing Party, on August 19 and 25 , 1971,1 a consolidated complaint was issued on November 1 (and amended, after !notice of intent, at the hearing), alleging that Respondent discriminatorily discharged employees William T. Clark and Raymond L. Amadon on August 17 and 19, ,respectively, in contravention of Section 8(a)(1) and (3) of the Act,2 and on various occasions between August 24 and 30 and on October 20 Respondent interfered with the exercise by the employees at its Nashua, New Hampshire, plant of the rights guaranteed them by Section 7 of the Act. Pursuant to due notice , a hearing was conducted on the complaint in Nashua, New Hamspshire, on January 5, 6, and 7, 1972. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and thereafter briefs were filed on behalf of the General Counsel and Respondent.3 Upon the entire record, observation of the witnesses, and consideration of the briefs , the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, a New Hampshire corporation with its ,principal office and place of business in Nashua, New Hampshire, is engaged in the manufacture, sale, and distribution of concrete manholes for drainage and sewerage systems. Respondent annually receives goods and material valued in excess of $50,000 directly from points outside New Hampshire and ships finished products valued in excess of $50,000 from its Nashua plant directly to points outside New Hampshire. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union, Charging Party, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Chronology In the summer of 1971, Respondent had about 24 production and maintenance employees at its plant in Nashua.4 Sometime in July employee Raymond L. i Except as otherwise specified, all dates herein are in 1971 2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519. 29 U S.C Sec 151, et seq ) 3 Pursuant to two successive requests by Respondent, the time for filing briefs was extended from February 4 to 28, 1972 Although not received until March 3, Respondent's brief has been accepted and fully considered 4 It was also continuing operations on a very small scale at its older plant in Hollis, New Hampshire, a few miles away The Hollis plant was then being "phased out" and had only two to four employees 198 NLRB No. 30 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amadon approached other employees concerning the desirability of trying to unionize.5 Employee William T. Clark joined Amadon in making these initial inquiries in the last week of July and the beginning of August. With a generally favorable response, Clark conferred with officers of the Union's local at Hume Pipe Company, a similar company in the area. A meeting was held on the evening of August 11 at Clark's home. Present at the meeting, in addition to union representatives, were employees Clark, Amadon, and Moms Charron, all of whom signed union authorization cards and took blank cards. Within the next few days employees Amadon, Clark, and Charron secured executed cards from other employees at the plant largely during working hours. Earl M. Bourdon, union staff representative, testified that on August 16 he received 17 executed cards in the mail.6 Bourdon there- upon mailed a recognition demand to Respondent. The Union's demand letter was received at the plant about 10:50 a.m. on Tuesday, August 17. Immediately a management conference was held in the office of Respon- dent's president, Jack S. Rossborough. Present at this meeting, in addition to Mr. Rossborough, were Mrs. Rossborough, an active vice president; Leonard A. Worden, vice president in charge of production; and Mr. Ross, comptroller. Shortly after the meeting commenced, Charles Cillizza, plant superintendent, was called in to join the group. A telephone call was made to Mr. Aaron Harkaway, Respondent's counsel.? This conversation concerned the Union's demand letter and the advisability of discharging employee Clark that day. After the conversation with Harkaway, Worden and Cillizza left Rossborough's office and went to the plant area. Sometime around 11:15, in Worden's office, Worden, with Cillizza present, discharged Clark. Clark was told to leave the premises immediately although he would be paid for the entire week (through Friday, August 20). Clark did not receive his final paycheck until sometime later. Near the close of business of Thursday, August 19, Amadon was called to Worden's office, where Cillizza informed him that he was being discharged effective immediately. Amadon's final checks were given to him at that time. So far as appears, he was not paid for the rest of the current week. I On August 19 the Union filed a representation petition and an unfair labor charge alleging Clark's discharge as violative of the Act. The second charge, concerning Amadon's discharge, was filed on August 25. At this point Vice President Worden held a general employee meeting and a series of meetings with individual employees in which the union campaign and the two employee discharg- es were discussed. The Union thereafter chose to proceed with an election despite the pendency of the unfair labor practice charges. The Trial Examiner hereby grants the General Counsel's request that official notice be taken that a Decision and Direction of Election was issued on September 22. Thereafter Respondent engaged in an active "Vote No" campaign, by letters and other literature sent to the employees and culminating in a speech by Respondent's president on October 20. On October 21 the Union lost the election by a vote of 8-13, with 4 ballots challenged. No objections were filed. B. The Discharge of William T. Clark Although Respondent's products are made by three different processes, it is sufficient for an understanding of this case to know that essentially all the products consist of concrete with steel reinforcement. Clark's function was to fabricate the steel reinforcements, called "baskets," "tops," and "slabs." Respondent commenced operations sometime in 1963. Clark first worked for Respondent for about 9 months in 1964, when he was laid off for lack of work. He then worked for Respondent again for about a month in 1965. In 1966, at Rossborough's request, Clark worked part time until the beginning of 1968, when, again at Rossborough's request, because of increasing business, he began to work full time, which he continued to do until he was discharged on August 17, 1971. From the beginning Clark worked strictly on a piece- work pay basis. The hours he worked were dictated by Respondent's production requirements and were left to Clark's discretion. The evidence is undisputed that Clark was an efficient and rapid worker and always met production requirements. In the early years, while Clark was working at piecework rates, the other employees were working at a combination of hourly and incentive piece rates. Around the end of 1968 or the beginning of 1969, apparently as a result of dealings with the Wage and Hour Administration, incentive pay (or, as Respondent referred to it, "bonuses") was discontinued for all employees except Clark. Respondent wanted Clark to shift to an hourly rate of pay, but Clark refused, maintaining that he needed the incentive of piece rates in order to function at top efficiency. Worden arrived at the plant to supervise production sometime around the middle of 1969. From time to time thereafter, principally on the prodding of Mr. and Mrs. Rossborough, Worden attempted to have Clark change from a piecework to an hourly wage rate. However, Clark was unwilling to do so and the issue was not pressed to a "showdown" until the summer of 1971, as detailed below. At the hearing, Worden maintained that he had simply been too busy with other problems caused by the growing pains of a new company, a disastrous fire which razed the Hollis plant in January 1970, the reconstruction of the Hollis plant, and the construction of the new Nashua plant. Mr. and Mrs. Rossborough, however, indicated that Clark was allowed to have his way because he was indispensable and Respondent could not find another person who could satisfactorily perform Clark's work. The running controversy was punctuated by Respondent's threatening discharge of Clark unless he agreed to work at S Amadon had made some abortive attempt in the same direction 7 Mr Harkaway did not represent Respondent or appear at the hearing, around November or December 1970 where Respondent was represented by Boston counsel specializing in labor 6 It is not entirely clear whether these cards were in addition to the three law. signed at Clark's home on August I I The matter, however, is immaterial NASHUA PRE-CAST CORPORATION an hourly rate and Clark' s insisting that he would quit unless he remained on piecework rates. Throughout the employment, both before and after Worden's arrival, Clark and Rossborough negotiated the piecework rates. For example, when Clark returned to work for Respondent in 1966 he was paid 50 cents per linear foot for "tops." Shortly thereafter Rossborough announced a reduction to 40 cents. Clark testified that he was displeased and therefore "kind of slowed the work down so that [Respondent] needed the material again." This led to complaints of shortages and Clark's announc- ing that he was quitting forthwith because he did not want the job at the 40-cent rate. Rossborough then proposed, and Clark agreed, that the rate would be 50 cents per foot if Clark produced 100 feet per week but 40 cents any time he fell under 100 feet per week. At another time, in 1971, Rossborough and Clark negotiated reduction of the piece rate for "slabs" from $2 to $1 per unit, with Respondent providing precut steel reinforcing rods rather than Clark's being required to cut the rods to required lengths. Respondent's witnesses maintained that Clark was earning between $300 and $500 per week throughout his employment. According to Clark's testimony as to his annual earnings, he averaged roughly $400 a week in 1968, $260 in 1969, $280 in 1970, and then $300 until his discharge in August 1971. To compute his weekly earnings, Clark recorded his daily production on a timecard and kept a record for his own use. Frequently his personal record did not jibe with Respondent's and he often visited the office and spoke to Mrs. Rosen, the bookkeeper, to reconcile the discrepancies. So far as appears, there never was any serious difficulty or any unpleasantness about such differences. In the early part of 1971 Respondent's business was growing rapidly. Clark was finding it increasingly difficult to keep up with necessary production. For awhile he had a friend come in to help him, but Respondent made him discontinue that practice because of problems of insurance coverage for nonemployees. Respondent apparently hired a series of other employees to assist Clark, but they proved unsatisfactory. Respondent then purchased a machine which would make "tops" automatically. Clark declined an offer to operate the new machine, saying that there was more than enough other work to keep him occupied. Frank Austin was hired on April 12 and assigned to operate the automatic machine and to observe Clark to some extent. After a short time, because Clark reported that his work was unsatisfactory, Austin was requested to leave. Howev- er, he requested and was given a second chance, whereup. on his work unproved and he was kept on. Clark was scheduled to leave on vacation for 2 weeks commencing July 12.8 Before leaving, he went to the office for his vacation pay and to request an advance on his regular pay. There is no dispute that employees, including Clark, frequently got pay advances. Clark's request for an advance was later rejected. Mrs. 8 Although the evidence is not entirely clear, it appears that Clark left work several days earlier because a plant breakdown prevented production of the items in which his products were used 9 Clark's request appears to have been for $100, although Rossborough 41 Rossborough testified that she felt he did not, or should not, need an advance in view of his substantial earnings. According to her, his current paycheck, with vacation pay added, amounted to around $500. So far as appears, there were no complaints by Clark or other aftermath of this refusal of an advance.9 When Clark received his vacation and salary pay, he discovered that he was being granted only 1 week's vacation pay, at the agreed rate of $2.50 per hour for a 40- hour week.10 He was displeased, believing that he was entitled to 2 weeks' vacation pay. He told Mrs. Rossbor- ough that on his initial hiring Mr. Rossborough had said that beginning with his third year Clark would be entitled to 2 weeks' vacation, as were all employees. Mrs. Rossborough checked with Mr. Rossborough, who said he had made no such agreement and that Clark was not entitled to 2 weeks because he was being paid on a piecework basis. According to Mrs. Rossborough, Clark forcefully expressed his displeasure when she reported back to him. She quoted Clark as having exclaimed, in a loud voice, that he would "get it one way or the other." Although this occurred in the reception office, where customers and other outsiders wait, there was no evidence that any strangers were present at the time. So far as appears, neither Mrs. Rossborough nor anybody else responded to Clark's statement. According to Worden, just before Clark left on his vacation, Worden told him that they "were getting very, very close to the time when [they] would sit down and establish an hourly rate for [Clark's] work." Worden testified that he then "had experienced people" and "could negotiate to get a good hourly rate for" Clark. Clark said he wanted to stay on piece work and that at hourly pay "he couldn't possibly do his job as fast and as rapidly as he could if he had an incentive to work for." Sometime during the first week of his vacation Clark visited the plant, apparently to get another paycheck. At this time he again complained about not having been given more than I week's vacation pay. At Mrs. Rossborough's suggestion, he spoke to Worden about the matter but was not granted any additional vacation pay. Worden said that if Clark went on an hourly rate he would receive 2 weeks' vacation pay, as did other employees. Before going on vacation, Clark, at Worden's suggestion, had prepared in advance what Worden described as a "good supply" of his products for use in his absence. Clark testified that he produced as many as there was storage space for. About 10 days after he left, this advance production was exhausted. Austin was then assigned to produce the baskets. However, the slabs which Clark had been producing were contracted out to Al Lee Company, an independent contractor. It agreed to produce them at 50 cents a basket, whereas Clark's rate was $1. In addition, Al Lee undertook, without further charge, to handle the purchase of materials thus saving Respondent considerable paperwork. According to Worden, subcontracting to Al Lee, even with attendant transportation costs, resulted in testified that he understood it had been for $200 . Rossborough's testimony generally was unreliable He disclaimed much personal knowledge or clear recollection 10 This rate had been agreed upon for Clark's vacation and sick pay. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD savings to Respondent as compared with Clark's prod- uction at his piecework rate. During the second week of his vacation, Clark visited the plant again. At this time he learned about the subcontract- ing of the slab work. With tops being made by Austin on the automatic machine and slabs being produced by Al Lee, Clark was left with a rather small workload. He was fearful that he would be unable to make a living. Worden testified that at this point, during the vacation, he "finally decided to discharge Mr. Clark when he came back from vacation." He said nothing to this effect to Clark. Worden testified that he informed Rossborough of the decision, but Rossborough's testimony does not tend to corroborate Worden and, as discussed below, other evidence leads the Trial Examiner to discredit Worden on this point and to find that Worden did not make any decision to discharge Clark before August 17. When Clark returned to work on July 26 he and Worden discussed Clark's work situation and it was agreed that Clark would work that week at his old piecework rates and see how it worked out. Concerning this discussion, Worden testified: [Clark ] agreed to work out to the end of the week. And I told him, at that meeting, see how it goes this week, which we had agreed to, if he came in, and come in and we will discuss an hourly rate. Clark worked that week, earning somewhere around $120 at piece rates." On Monday, August 2, Clark and Worden negotiated an hourly rate. Worden offered $3.50 an hour as Respondent's "top" offer. Clark insisted that he could not live on that wage and demanded $4 an hour as a minimum. He argued that he should be paid a flat $200 a week, which he understood was the salary of Norman Landry, an "employee" not otherwise specifically identified.12 The parties finally agreed that Clark would be paid $4 per hour but was not to work more than 40 hours a week unless specifically requested or directed to do so by Worden. On Friday, August 6, Worden asked Clark how many hours he had worked that week. According to Clark, this occurred during the afternoon and Clark replied that by closing time he would have worked 40 hours. Worden testified that the conversation occurred after quitting time, as Clark was leaving the plant. They agree that Worden said "good" when Clark reported his total work for the week as 40 hours. About 15 minutes before quitting time on that day Clark learned for the first time that the plant was to operate on Saturday. He reported to work on Saturday morning and proceeded to produce the baskets needed for that day's production. Around 10 a.m. Worden arrived. He immediately berated Clark, reminding him that he had been instructed not to work beyond 40 hours in any week unless specifically so instructed by Worden. Clark replied that he had come in because he knew that baskets 11 Throughout, all persons were vague about monetary amounts. No records of any kind-either production or earnings-were ever produced or offered in evidence Such records would be relevant to Respondent's claimed reasons for Clark's discharge. 12 The evidence suggests the possibility that Landry was not an employee includable in the bargaining unrt. would be required for the production on Saturday and that there was nobody else available to make baskets. It is undisputed that Clark had not been told in advance that the plant was to operate on Saturday and had not been asked to prepare any baskets in advance. Worden testified that he did not at any time on Friday check to determine what, if any, inventory of baskets there was. Austin, who testified that he has often refused to work overtime, was apparently not requested to work on Saturday,13 and no other arrangement had been made for obtaining baskets for Saturday's operation. Rossborough testified that Clark had reported merely to obtain unauthorized overtime pay and that his production was not needed. However, neither Rossborough nor Worden suggested what alternative means were available for obtaining the baskets essential to production that day. Even if there was an alternative, it is impossible to see what could have been done in the production time before 10 a.m., when Worden arrived. On Monday, August 9, Clark spoke to Worden about the possibility of getting overtime work, possibly at driving a truck. Clark maintained that he needed more than $160 per week to live on. According to Clark, Worden said he would see what could be done. Worden testified that he said that he could not afford to pay Clark overtime at his $4 per hour rate when he could use men whose basic rates were only around $3.50 per hour. Whichever version is correct, it is undisputed that no action was taken and Clark's position remained in status quo until his discharge on August 17. Charles Cillizza commenced work as Respondent's plant manager on August 9. He was hired because Respondent's business had so increased that Worden was no longer able to supervise production directly in addition to performing his other duties. Worden testified 14 that "one of [the] first" assignments he gave Cillizza was "to check out with Austin; [to] see whether or not in his opinion he could handle the job." According to Worden, after spending a few days familiarizing himself with the plant operation and personnel, Cillizza was critical of Clark's independence and freedom to set his own schedule for dividing his time between the Nashua and Hollis plants. Worden also testified that Cillizza expressed the opinion that the volume of work did not warrant keeping two men for the reinforcing work. Rossborough directly contradicted this view. He testified that he "believed there was more than one man's job. In other words, if Bill [Clark] could have fit into this role, then he would have been working, like with, maybe Frank Austin." Worden testified that he decided that, if only one man was to be kept, it would have to be Austin because he was willing to operate the automatic top machine, was being paid less than Clark, and was also able to perform regular production work. Worden then testified that he and Cillizza "agreed that [they] would watch Mr. Austin's functions to see if he was capable of handling all the 13 Worden agreed that he "had an understanding . . with Mr Austin that we would not need him to work overtime." However, now that he has taken over Clark's work, Austin regularly works overtime about 2 hours a day and around two Saturdays a month 14 Although Cilhzza appeared as a witness, he testified very little, and only on cross-examination, concerning the Clark matter NASHUA PRE-CAST CORPORATION reinforcing work at [Respondent's] plants" and they would discuss it again on Friday, August 12. They were unable to get together that day or on Monday, August 16. However, as heretofore noted, on Monday, Worden did discuss with Clark the latter's request for overtime work. According to Worden, he and Clark "left it that he was still getting four dollars an hour, 40 hours a week, no overtime." Worden testified that he finally got to talk Cillizza about Clark between 9 and 9:15 a.m. Tuesday, August 17. According to Worden, Cillizza said Austin "could find time to execute both ends of the reinforcing" and was "more valuable" than Clark. Worden testified that Cillizza based his opinion on having observed Austin "when he first came in" when "Clark was on vacation, and Mr. Austin was doing both phases of it." Worden appeared only slightly embarrassed when it was noted that Cillizza had not arrived until a week after Clark had returned from vacation. Worden then said that Cillizza had observed Austin on an unspecified day when Clark was at the Hollis plant. But no explanation was offered for Clark's not having done all necessary work for both plants, as was his wont. Worden also testified that Cillizza "spoke to Mr. Austin with relationship to doing both jobs." Austin, however, testified that nothing was said to him about taking over Clark's work until after Clark was fired. Austin was told that "if things worked out" he would receive a wage increase, which he eventually got late in November, after Phase I of the wage freeze ended. Worden testified that around 9:30 a.m., immediately following his meeting with Cillizza, he (Worden) informed Rossborough of the decision to discharge Clark. However, in his testimony, Rossborough gave no indication of having been so notified.15 And at another point Worden's testimony clearly indicated that he first disclosed the decision to discharge Clark at the meeting in Rossbor- ough's office immediately after receipt of the Union's demand (discussed below). At 10:50 a.m. on Tuesday, August 17, the Union's demand for recognition arrived at the plant. Yvette Hudon, Respondent's receptionist at that time, testified that immediately thereafter Mrs. Rossborough, whose desk also is in the lobby-reception room, opened and read the letter, with Comptroller Ross reading over her shoulder. Mrs. Rossborough and Ross then went into Mr. Rossbor- ough's office, where they were soon joined by Worden. A few minutes later, Plant Superintendent Charles Cillizza was paged and joined the group in Mr. Rossborough's office. Hudon heard part of the conversation in Rossborough's office. Worden made a remark to the effect that the Company should not be "scared" by the letter. At Ross' suggestion, a telephone call was made to Mr. Aaron Harkaway, Respondent's lawyer. At that point the office door was closed, so Hudon heard no more. According to Worden, Harkaway at first advised against 15 Rossborough was called pursuant to Rule 43(b) of the Federal Rules of Civil Procedure as the General Counsel 's first witness Respondent's counsel waived "cross-examination of this witness at the present time until I put my case in, in direct." Rossborough was not recalled. 16 It was not essential that Respondent produce evidence corroborative of Worden However, Harkaway's testimony concerning this conversation 43 discharging Clark because of the "bad timing." However, when informed by Worden that the discharge was for good cause and was unrelated to the Union, Harkaway said it would be lawful.is A few minutes later Worden and Cillizza left Rossbor- ough's office and headed toward the plant area. As they passed her desk, Hudon "heard Len Worden say to Charlie Cillizza, we will have to get rid of him. We will train someone to replace him." Respondent did not cross- examine Hudon and her testimony was not contradicted. Within 5 or 10 minutes, Clark was discharged in Worden's office, with Cillizza and Worden present. The only major conflict in the evidence in this case concerns the circumstances under which Clark went to Worden's office. Clark testified that Worden came to Clark's work area and told him to report to the office immediately. According to Clark, at that time he had completed about two-thirds of his day's production for the Nashua plant and had not done any of the production at the Hollis plant. Worden, on the other hand, testified that around 9 to 9:15 a.m. that day he and Cillizza had agreed to fire Clark and Worden had then told Clark to report to the office when he finished his Nashua production and was ready to leave for Hollis. Worden testified that Clark had then come to the office pursuant to that request. On all the evidence, as well as careful observation of the witnesses , the Trial Examiner credits Clark's version of the timing of his summons to Worden's office. Clark testified that Worden said that as of that moment Clark's services were no longer needed. Clark asked if there was anything wrong with his work, to which Worden replied: "No, it is not your work. . . . your work is good ... in fact, your department is the only department I have never had to worry about, the work was always done . . . it is just you are a trouble maker. We want you out of here." When Clark said he wanted at least to finish the day because he needed the money, Worden said Respondent would pay him for the entire week, but wanted Clark "away from the men" immediately because he was a "trouble maker." Neither Worden nor Cillizza contradicted the foregoing testimony. Worden, however, testified that he specified the reasons for the discharge, as follows: I told Mr. Clark . . . he should perfectly understand why he was being discharged because he was not happy at an hourly rate. He was constantly demanding more money. And I couldn't meet his demands. I brought his attention to the rudeness when he had spoken to Mrs. Rossborough and told him that we just couldn't afford to keep him doing the work he was doing. Q. Was any mention made about the Saturday work? would have been very illuminating, particularly as to Respondent's knowledge or belief of Clark's involvement in the union activity. Since Respondent chose to give testimony concerning its consultation with counsel, thus waiving its attorney-client privilege, its unexplained failure to call Harkaway is noteworthy. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE WITNESS: Yes, I did draw his attention to that, to disregarding what we had-I told Mr. Clark that he, it was said, was constantly harassing Mrs. Rossborough or the bookkeeper. I told him I had told him previously to take his matters up with me and not to go into the general office which he refused to do or did not do. And I told him that the amount of work we give him at his old working pace would take about half the time it takes him to do it. He asked me if that was all. And I told him we would pay him through to the end of that week and to bring his uniforms in so we could get credit through on them and so on. Worden volunteered to give Clark a good reference. Rossborough, on the other hand, indicated that the major, if not sole, reason for Clark's discharge was his refusal to accept an hourly rate and/or his insistence on $4 an hour. Rossborough's version of the reason for the discharge was that the matter was "brought to a head" by Clark's not fitting into the role of an hourly paid employee. Rossborough continued: ... he was not satisfied to earn 160 dollars a week. He had to have at least a couple of hundred dollars a week. He did not want to work for $3.50 an hour. He wanted to earn four dollars an hour. Our highest paid man, which is our operator, I believe, is $3.60 an hour as far as the general labor is concerned. And here a person other than an operator, you know wanting four dollars an hour. ' At one point Rossborough testified that the matter had been brought to head by Clark's working on Saturday, August 7, without having been specifically requested to. In view of the undisputed facts, Respondent's explana- tion of the sudden discharge is little short of preposterous. Throughout the several years of the employment, Clark and Rossborough had engaged in hard bargaining as to specific piece rates and as to piecework versus hourly rate wages . They were both shrewd bargainers, using various means of persuasion. The bargaining continued after Worden's arrival. After years of resistance, Clark finally agreed to accept an hourly rate when Respondent so reduced the quantity of his work that a piece rate basis was nonremunerative. Even then the bargaining was hard. Respondent raised its "top" offer from $3.50 to $4 an hour and Clark agreed to a straight 40-hour week. This bargain was made at least 2 weeks after Worden maintains he had definitely decided to discharge Clark. If, as Worden maintained, he had simply postponed the discharge to avoid the adverse effect on employee morale which would result from a discharge immediately upon the end of 17 Respondent could have paid Clark for the second week of his vacation for less than the wages it paid for the remainder of the week after he was discharged. Employee morale would presumably have suffered less 18 Respondent apparently does not contend that Clark's unfruitful request for a pay advance played any part in his discharge Although considerable evidence was adduced concerning that request, it does not appear that it led to any unpleasantness 19 The adverse inference which would normally be drawn from this Clark's vacation, one would normally expect Worden to welcome Clark's quitting upon Respondent's refusal to pay more than $3.50. It is also difficult to understand how Worden would expect employee morale to be less adverse- ly affected by a precipitous discharge than it would have been by a discharge with notice as of the end of a vacation.17 Little need be said about Clark's supposed "rudeness" to Mrs. Rossborough and his claimed "harassment" of the office personnel. The disagreement about the second week's vacation pay had arisen some 5 weeks earlier.is Mrs. Rossborough testified that, while Clark's conduct with respect to the vacation pay somewhat upset her, she was not angry and she did not want or request his discharge. Mrs. Rossborough also in effect disclaimed any annoyance at Clark's alleged "harassment" of the office personnel. She testified that, while she felt the extra bookkeeping involved in Clark's working at piecework rates was unnecessary, she was not "upset" by it. When asked on cross-examination if Clark periodically went to the office to check on his production, Mrs. Rossborough replied simply: "He came in when he was called to come in." Despite Worden's insistence that Respondent would close its doors before taking Clark back, Mrs. Rossborough testified that she did not want or request his discharge and that, as far as she was concerned, he could be taken back at any time. Worden suggested that a contributing factor in Clark's discharge was, in effect, a "slow-down" of his production when he was finally shifted from piece rate to hourly rate compensation. Although the Trial Examiner twice indicat- ed that production records, which Respondent conceded it keeps, would be considered the strongest evidence of any such contention, no records were produced.19 In any event, it is undisputed that Clark performed all the work assigned to him; at no time did he fail or refuse to fulfill any assignment. No criticism was ever leveled against the quantity or quality of his work. As heretofore noted, it appears that the agreement for an hourly rate was reached only because there was insufficient work to assure Clark reasonable earnings at his piecework rates. Both Clark and Rossborough indicated that in the past the speed of Clark's work had varied directly with the extent of his "incentive." At the time the final agreement was reached for an hourly rate Clark openly stated that his working pace would decline, yet Worden acceded to Clark's demand for $4 per hour. The evidence is clear that Clark was an unusually efficient worker. For several somewhat stormy years Respondent negotiated with Clark, making numerous bargaining concessions because Clark was virtually indis- pensable. Mrs. Rossborough testified that whenever she asked Worden about forcing Clark to accept an hourly rate, Worden replied that "he needed Bill" until he could failure to produce is considerably weakened by the fact that the General Counsel stated an anticipatory objection to the introduction of such records, as follows there is testimony on the record by Mrs. Rossborough and by [Clark 1 that the production process changed while he was on vacation . And there is no way production records or any other records are going to measure the two times And I think for that reason it is an unfair question TRIAL EXAMINER . You will have redirect examination to establish that, Mr Harvey " NASHUA PRE-CAST CORPORATION 45 find a replacement. On August 17, when Clark was discharged, Respondent did not have a known replace- ment. As Hudon testified, without any contradiction while enroute to discharge Clark, Worden said to Cillizza: "He [clearly referring to Clark] will have to go. We will train somebody to replace him." (Emphasis supplied). And when Austin was hurriedly assigned to perform the job, he had to take on considerable overtime work, at $5.10 per hour- -scarcely consistent with Respondent's claimed "econom- ic" basis for Clark's discharge. Worden testified that Respondent, as a matter of policy, never gives advance notice of discharges. But one must wonder why Clark's discharge and the notification thereof could not have waited until the end of the week for which Respondent volunteered to pay him, or at least until Clark's checks had been prepared. The final string to Respondent's bow is its denial of any knowledge of Clark's involvement with the Union at the time of his discharge. But such denial of knowledge is effectively refuted by Respondent's own evidence. Worden and Rossborough testified that when they received the Union's demand for recognition they knew to a virtual certainty that Clark would cause "trouble." That realiza- tion, they maintained, was the reason for their consulting counsel about the discharge. But, unless Respondent knew or immediately surmised, that Clark was a union sympa- thizer or activist, it would have no reason to anticipate a union-oriented complaint arising from the discharge. Whether Respondent had actual knowledge of Clark's involvement or merely jumped to such a conclusion based on intimate knowledge of Clark's personality is essentially immaterial; the knowledge was acquired or the surmise formed before the discharge and the two matters were linked together in Respondent's corporate mind. The record as a whole provides no plausible explanation that for the precipitous discharge other than Clark's unquestioned leadership in the union movement. Employer knowledge of such activity may be inferred on circumstan- tial evidence just as discriminatory motivation may be. N.L.R.B. v. Link Belt Co., 311 U.S. 584, 602, F. W. Woolworth v. N.L.R.B., 121 F.2d 658, 660 (C.A. 2); Syracuse Tank & Manufacturing Co., 133 NLRB 513, 539. The evidence, however, also warrants an affirmative inference Respondent knew of Clark's involvement. As heretofore set forth, the first union meeting was held at Clark's home. The employees present were Clark and Amadon, the alleged discnminatees, and Morris Charron. Worden testified that Charron had told him about the employees' dealing with the Union before August 17. 20 Q. Had any employees told you that they were negotiating with the union? A. No, they hadn't. Q. Hadn't Moe Charron told you that9 A. Moe Charron did not-did tell me that Q When did he tell you9 A I believe Moe Charron told me that while he was out with an injury. Q And when was that? A At the time he was out with an injury was prior to the 17th, and he came in, I believe after I had the meeting with the employees, after the 28th he came into my office And I asked him about his hand and so on. Q What did he tell you? A. Well, I just-I related to Mr Charron, as well, what I had related in the speech Q Well, you testified that he told you about the union negotiations9 A. He didn't tell me about the union negotiating He told me-it was common knowledge that the union was in there negotiating because we had received a letter Q Was it your testimony that Moe Charron told you about the union negatiating with the Worden's ensuing denial was so ambiguous as to be totally incredible.20 Other evidence also suggests that Charron was Respon- dent's source of information concerning Clark's activity. Worden testified that Charron was a "leadman" and the person to whom Respondent looked as the "spokesman" for the employees as a group. Worden testified that at one time he had discharged an employee from the Hollis plant on Charron's recommendation.21 On cross-examination as to this matter, Worden testified that Charron "was quite outspoken, and he would come to [Worden] with any little problem or what he thought. He would try to offer advice where he could." Charron's communicativeness was in line with the overall atmosphere in the plant. For example, Worden testified: We always had close relationship with our employees, and we always related to the men and conversed with them regarding subjects of mutual interest such as their work... . The openness of the relationship between employer and employees is reflected by the undisputed fact that umon authorization cards were solicited at the plant during working hours.22 In its brief Respondent contends that the noise of the plant machinery would preclude any supervisor from hearing solicitation conversations from any distance and there is no evidence that any supervisor was in the immediate vicinity when Clark solicited any cards. Howev- er, the credited evidence establishes that, despite the machinery noise, conversations generally can be conducted in normal speaking tones. The plant is an open area, not partitioned by walls, and the supervisor regularly travels throughout the plant. It is a reasonable inference that in a plant as small as Respondent's, the supervisor was aware of the employees' activities therein. In the course of the hearing, Respondent's counsel emphasized the fact that Charron, the third employee solicitor for the Union, was not discharged. This fact, in itself, would not tend to establish that Clark and Amadon were not discharged for their union activities. N.L.R.B. v. Nabors Co, 196 F.2d 276 (C.A. 5), cert. denied 344 U.S. 865; N.L.R.B. v. Puerto Rico Telephone Co., 357 F.2d 919 (C.A. 1). In any event, Charron's retention is at least consistent with his being a source of information to the Company concerning the employees' activities. The timing of the discharge by itself is substantial 'evidence that Clark's union activity was the cause. N.L.R.B. v. Stemun Mfg. Co., 423 F.2d 737, 741 (C.A. 6); men while he was out on sick leave9 A I'll have to say no. Q Are you sure? A. I already knew about the union" 21 In the course of cross-examining Worden , the General Counsel attempted to establish that Charron was a supervisor. No finding is here made concerning Charron's status. 22 There was evidence that Clark solicited one employee's umon card at the gas pump, which is visible from the window of the shipping office, and that Worden was standing at that window at the time Worden denied having seen this solicitation. Since the gas pump is between 75 and 125 feet from the shipping office, Worden could not have read the card or heard the conversation between the employees The Trial Examiner therefore does not rely on this incident as establishing company knowledge of Clark's union activity. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. L. R. B. v. Tennessee Packers, Inc., 390 F.2d 782, 784 (C.A. 6); N.L.R.B. v. Schnell Tool and Die Corp., 359 F.2d 39, 45 (C.A. 6). Respondent's discriminatory motive is inferred from the surrounding circumstances. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8); Shattock Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). On all the evidence, the Trial Examiner finds that Clark was discharged on August 17 because of his union activities, in violation of Section 8(a)(3) and (1). C. The Discharge of Raymond L. Amadon Amadon commenced working for Respondent in July 1970 at $2 per hour. Within the ensuing year he received two merit wage increases totaling 35 cents per hour, and two general increases totaling 45 cents per hour, bringing his wage rate to $3.40 per hour in July 1971. He testified, without contradiction, that on several occasions, including the times of the wage increases, Worden praised his work. Amadon had never had any adverse criticism except for a statement by Worden to the effect that "sometimes [he] say[s] too much." This remark was made in conjunction with a generally laudatory statement on the occasion of Amadon's receiving a merit increase in May 1971. Sometime in May Worden assigned Amadon to clean the pit area, apparently a relatively difficult operation. Accord- ing to Amadon's uncontradicted testimony, Worden made the assignment because he was dissatisfied with the employees who had been doing that work and he "wanted somebody he could depend on." Worden thereafter said he was "very satisfied with the way [Amadon] was keeping the pit clean." When Robert W. Tidd, Jr., was hired in November 1970, he was initially trained by Amadon. Thereafter Tidd and Amadon worked together, each finishing the inside of a piece while a third man did the finishing work on the outside of both pieces. Shortly after the operation moved from Hollis to Nashua, around February or March, the third member of the crew left Respondent's employ. It is not clear whether that employee was ever replaced. It is established, however, that at least on some occasions Amadon and Tidd alone performed work previously done by three men. Amadon initiated consideration of unionization among the employees sometime in July.23 On August 12, the day after the organizing meeting at Clark's home, Amadon solicited eight authorization cards-one on the way to work, four at the plant during working time, and three at lunchtime. So far as Amadon knew, there was nobody in the vicinity when he solicited three of the four cards at work. However, immediately after obtaining employee Paul Mertz' signature, Amadon noticed Cillizza coming toward him. Amadon testified that he started to leave, but Cillizza came up and "told me he didn't want me talking to his employees as I had done." Cillizza was not specifically examined about this testimony by Amadon and Cillizza did not testify to any such incident. The Trial Examiner credits Amadon. There is no direct evidence that Cilhzza saw the actual card solicitation or knew the nature of the conversation between Amadon and Mertz. And Cillizza denied having had any knowledge of union activities before August 17. However, a friendly and relaxed atmosphere pervaded the plant (see discussion above) and there is no evidence of any rule against employees' engaging in conversation among themselves. It would therefore be reasonable to infer that Cillizza's rebuke of Amadon on August 12 was a reaction to the nature of the dealings between Mertz and Amadon rather than to the mere fact that they were talking together. However, it is unnecessary to rely on that incident to establish Cillizza's knowledge of Amadon's union sympathies since such knowledge is clearly shown by a subsequent event. Amadon testified that on August 18 he and Tidd were working alone . Irked because Respondent had not provid- ed a third man, Amadon, in a very loud voice and using an obscenity, exclaimed that he would be glad when the Union came in. Amadon testified that at the time Cillizza was standing about 6 feet away from him and employee Arthur Morrill was about 10 or 12 feet away. Immediately after Amadon's outburst, Cillizza went to the office. Morrill thereupon told Amadon that Morrill had heard Amadon's statement. Amadon's testimony was corroborat- ed by Morrill and Tidd. If Morrill heard Amadon's statement, obviously Cillizza, who was considerably closer to Amadon, must have heard it. Thus, despite Cillizza's denial, the Trial Examiner finds that on August 18 Cillizza heard Amadon's emphatic expression of prounion sympa- thy. At the close of business on the next day, Thursday, August 19, Cillizza called Amadon to Worden's office. Amadon testified: [Cillizza] says, "I'm going to have to let you go." I says, "Why?" He said, "Well it's your work." I said, "What do you mean my work. I do piece by piece with anybody out there." He said, "It's not only that. It's your attitude. You don't have an attitude for the company.". . . With the use of relatively minor obscenity, Amadon ended the interview with a request for his pay. Cillizza testified, in effect, that Amadon expressed such anger that Cillizza felt he could not fully explain the reason for the discharge. Tidd testified that when he later asked Cillizza about Amadon's discharge, Cillizza said he "felt that [Amadon] wasn't doing any work." Tidd replied, as he testified at the hearing, that Amadon was doing as much work as Tidd; since they worked together, Tidd could not maintain his satisfactory work pace unless Amadon did too. According to Tidd, while Amadon did not possess Tidd's special "touch . . . to bung out the quality with a piece, the quality finishing," Amadon's work was entirely satisfactory as to both quantity and quality. Worden testified that after the discharge he held meetings to reassure the employees that Clark's and 23 He had previously worked at a union shop, a fact which Worden had elicited when he hired Amadon. NASHUA PRE-CAST CORPORATION Amadon's discharges were for cause and not for union activities. At one point Worden testified that he told the employees that Amadon required constant supervision and that Worden had frequently observed him wasting time in talking, drinking coffee, or simply idling. However, Worden never said anything to Amadon about such derelictions. The discharge came 10 days after Worden had ceased supervising production, being replaced by Cillizza. Cilhzza, who claimed sole responsibility for the dis- charge, ascribed it to a serves of three incidents. According to Cillizza, sometime during his first week at the plant, he told the men to try a different method of performing part of the work. Amadon replied that that method had been tried before and did not work and Amadon did not think it would work now. However, as conceded by Cillizza, nothing more was said; Amadon did not refuse to follow instructions, but in fact did proceed to try the method suggested. The second incident occurred on Monday, August 16. Cillizza asked the men to do a particular job which the men had done in the past. Amadon replied that it had not been done at this time because the men did not have the time. Amadon and Cillizza both testified that Amadon did then proceed to perform the task. Nothing further was said. The final-and, according to Cillizza, the decisive-inci- dent occurred on the morning of August 18. Cillizza told the men that he would like to try to increase production by making three rather than two products at a time. Enraged, Amadon proclaimed that they could not do so. He said that they had tried it before, when they had three men working, and he was not going to do it now, when there were only two men. According to Cillizza, Amadon then turned his back. Cillizza told Amadon that in Respon- dent's plant one did not turn his back on other people but spoke to them face to face and that it was "not permissible to yell in this company." Cillizza testified that it was at this time that he definitely decided that Amadon had to go. Cillizza testified that he immediately informed Worden that he wanted Amadon terminated as of that day. Worden approved and had Amadon's paychecks prepared. It is noteworthy that Amadon had never been warned that his work was anything less than satisfactory. The absence of any criticism or warning takes on special significance in the light of Worden's testimony concerning the earlier discharge of another employee: At the Hollis plant in 1970 [an unnamed employee] wasn't doing his job properly, and the foreman made me aware of this. And, of course, we gave him an opportunity to do his job better. And he failed at this ... we would speak to him and try to build an incentive enough so he would give us an hour's work for an hour's pay and so on and stop getting in everybody's way and acting smart alecky and talking smart alecky . . . I don't like to fire a man unless it's really essential. As noted above, employee Frank Austin had been given a chance to improve his performance after Respondent had 24 Cillizza had been hired because of the Company's growing business 25 There was some confusion or conflict in the evidence as to the precise date of the general meeting The Trial Examiner finds that it was held on August 27, the day after Respondent received the second charge in this case, 47 decided to discharge him. In view of this policy, it is somewhat remarkable, to say the least, that Worden agreed, without any discussion or question, to discharge an employee with a year's creditable service upon the recommendation of a plant superintendent who had been with Respondent for less than 2 weeks-and this at a time when, according to Worden, the Company's production was increasing and it "needed every man [it] could get." 24 The circumstances and timing of Amadon's abrupt discharge in the middle of a pay period lead inexorably to the conclusion that it was motivated by the union situation. On all the evidence, the Trial Examiner finds that Amadon was discharged because of his union activities and sympathy, in contravention of Section 8(a)(3) and (1) of the Act. D. Alleged Violations of Section 8(a)(1) 1. Vice President Leonard A. Worden In 10 separate paragraphs the complaint alleges that between August 24 and 30 Worden engaged in various acts of interference with the employees' rights under Section 7, including unlawful interrogation, promises, threats, and surveillances of union activities. The evidence in support of these allegations concerned a meeting of all unit employees Worden called on August 2725 and a series of private meetings he held with the individual employees just before or within a few days after the general meeting. The general meeting, in the Company's lunchroom, lasted about 45 minutes, late in the day. The employees were paid at overtime rates for the duration of the meeting.26 In Worden's words, the purposes of the general meeting were to inform the employees that Respondent was "aware that union negotiations were taking place" and "to assure them that the discharge of Mr. Clark and Mr. Amadon was not because of union activity." He stated, in general, that Clark and Amadon had been fired for poor or insufficient performance and/or bad attitude. Questions and com- ments by employees were solicited. As detailed below, there was considerable discussion of existing employee benefits. In the main, his private conversations with individual employees, held in his office, were similar in content to the general meeting. Although Worden testified that he was "neutral" on the question of unionization and that he did not comply with Rossborough's request that he participate in the Compa- ny's "Vote No" campaign, the evidence, including Wor- den's testimony, establishes that he made clear his opinion adverse to unionization at Respondent's plant. The complaint essentially raises the question of the extent to which his statements fell within or without the limits of protected free speech. At the meeting, Worden reviewed the Company's employee benefits, with considerable emphasis on its profit-sharing plan. He assured the employees that as the Company grew and prospered it would improve benefits as alleging Amadon's discharge as violative of the Act 26 Or for the time spent in after-hours cleanup necessitated by the meeting 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD much as possible. He asked the employees what they believed the Union could obtain for them that they could not secure for themselves, without a union. This led to a discussion of job security in the light of the Clark and Amadon discharges and reference to specific employee benefits. By asking why the employees "needed a union" and indicating that their problems could be solved by direct dealing with management, Worden in effect solicited employee grievances "and implied a promise to correct them without the intervention of the Union." Such conduct contravened Section 8(a)(1) of the Act. Teledyne Republic Manufacturing, 185 NLRB No. 129 (TXD). There is no dispute that Worden suggested that the employees consider forming a grievance committee. As stated by employee Morrill, after some discussion of the benefits desired by the employees, "Mr. Worden said that, if we wanted to organize, we could organize a committee or something and bend them against the wall with anything we want." It has consistently been held violative of the Act for an employer to suggest to employees that they form a "committee" rather than seek representation by an outside union. International Metal Specialties, Inc., 172 NLRB No. 139, enfd. 433 F.2d 870 (C.A. 2), cert. denied 402 U.S. 907; Seibert Distributing Co., 187 NLRB No. 108 (TXD). Apparently in response to a specific inquiry, Worden said that Respondent was already looking into the possibility of lowering the eligibility age, then 25, for participation in the Company's profit-sharing plan. He also referred to a possible future plan under which employees, on a voluntary basis, could invest in mutual funds. While he apparently gave no details, he clearly created the impression that such a plan would be of considerable benefit to the employees. He also spoke of the contemplat- ed installation in the plant's lunchroom of a ping pong table and other recreational facilities for the use of employees. There is no suggestion that any of these possible future benefits had ever previously been mentioned to the employees. Further, there is no probative evidence that Respondent had actually brought them under serious contemplation. On the contrary, Worden himself testified that the mutual funds investment plan was simply one of the benefits that Respondent might "look into"-"it was just something that I had been approached on personally, and I took up with some of the employees." The only "employee" he specifically recalled having talked to about it was Norman Landry.27 Worden could not date that conversation.28 In the absence of any probative evidence that Respon- dent had actually formulated or announced any plans for the institution of new benefits before the union campaign commenced, it was a violation of Section 8(a)(1) to hold out the prospect of such benefits as an inducement to the employees to reject the Union. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409; N.L.R.B. v. Grand Foundries, Inc., 362 F.2d 702, 708 (C.A. 8). Worden also spoke of the Company's interest in employee "loyalty." According to employee Tidd's credit- ed testimony, Worden said that Respondent " was a small company, needed loyal employees, and the loyal employ- ees would be taken care of. Anybody that wasn't loyal he didn't need." Worden conceded that he might have told the employees that Respondent needed "every loyal man they could get." He admitted that he might have called Amadon "disloyal." Worden testified that "loyalty" was unrelated to the union matter, referring solely to dependa- bility or reliability-"to give an ... honest hour's work for an honest hour's pay." According to Worden, he also referred to the "acute shortage of personnel showing up for work in the mornings" and "the fact that the burden had to be carved by some of the individuals that were regular and did show up." But there is no evidence that tardiness or absenteeism had been a deficiency of Amadon, and there was only a passing reference in Worden's testimony to a possible tardiness by Clark. Worden knew that the employees believed, as the Trial Examiner has found was the fact, that Clark and Amadon had been discharged for union activities. It was virtually inevitable that employees would equate "loyalty" to "anti-Unionism." That this was Worden's message is reinforced by employee Earl Bergh, Jr's., testimony that toward the end of the meeting Worden "said, if this talk did not, mainly, sink into our heads, that he was going to have to find some other means or ways of convincing us not to go for the union." On all the evidence, the Trial Examiner finds that, as alleged, Worden threat- ened discharge of employees who did not renounce the Union. It is undisputed that Worden said emphatically that Respondent would close its doors before it would take Clark or Amadon back because they had been discharged for cause and not for union activities. This threat, however, was made after the charges had been filed with the Board, and Worden was fully aware that at least some of the employees believed the discharges to have been based on union activities. Worden testified that he called the meetings to reassure the employees because of an air of great tenseness in the plant caused by discharges. Against this background Worden's threat to close the plant, without any possible deference to the Board's disposition of the charges, was clearly coercive and thus violative of Section 8(a)(1). Morrill testified that a few days after the general employee meeting he visited Worden's office to request a wage increase and to discuss Amadon's discharge. Morrill credibly testified that on that occasion Worden asked him what he thought of the Union and Morrill replied that he "was strongly for it." Worden than asked to whom Morrill had been talking and Morrill refused to answer. Worden's questions, occurring while a representation petition and unfair labor practice charges were pending, were clearly violative of Section 8(a)(1). The complaint alleges, in effect, that Respondent, through Worden, promised wage increases if the employees rejected the Union. The support for this allegation is found 27 Landry's status does not appear The evidence suggests that he was 28 Rossborough was at least equally vague about possible liberalization salaried and possibly was not an employee includable in the bargaining of the profit-sharing benefits He finally said the matter was considered at Worden did not speak to Landry about the Union, as he did with other an unspecified time in August employees. NASHUA PRE-CAST CORPORATION in the testimony of employee Morrill that around August 27 Worden said that "before the wage freeze came along, everyone was due for a substantial wage increase." On its face, that statement would clearly imply a promise of a general wage increase, without union intervention, at the end of the wage freeze, which had been imposed on August 15. However, at the hearing the parties stipulated that Respondent's records show that eight employees received increases as of the week ending July 17 and nine others as of the week ending August 7. In light of this fact, it is likely that Worden merely reminded the employees of their recent increases and, in effect, their good fortune in having had the raises granted before the freeze.29 So viewed, Worden's statement was not violative of the Act. There is no substantial evidence to support the allegation that Worden kept union activities under surveillance or gave the impression of doing so. 2. President Rossborough's speech On the morning of October 20 Rossborough delivered a speech to the assembled employees. The meeting lasted about 30 to 40 minutes, ending just about 24 hours before the beginning of the Board-conducted election. Rossborough testified that he read the speech from a prepared text, with no variations. However, he also testified that at the conclusion of the speech he invited questions and "There might have been one question, one or two questions." These statements cannot both be true because the text of the speech contains a concluding sentence explaining that Rossborough "won't be able to open this meeting for discussion" because of the Board's 24-hour rule. Be that as it may, the prepared text of the speech is the sole evidence in support of the allegation that Respondent, through Rossborough, threatened to close the plant if the Union won the election or if the employees "became or remained members of" or assisted or support- ed the Union.30 In his brief the General Counsel does not discuss this allegation of the amended complaint and does not specify any portions of Rossborough's speech which he believes constitute a threat of plant closure.31 The following are the only parts of the speech which either directly or indirectly refer to possible plant closure or loss of jobs: I have pointed out before, no union can guarantee you a job.... No union can guarantee you steady work.... You have absolutely no guarantee or assurance whatsoever that the Steelworkers Union can do one single thing for you. * I would also like to make it very clear that no union, Steelworkers or otherwise, can tell us how many people we should employ, or who we can hire or how many hours per day, or days per week, we should work or who can do what jobs in our plant, or otherwise tell 29 In his brief the General Counsel conjectures that the raises were actually granted at a later date and made effective retroactively. There is no evidence to support such speculation. Amadon, the General Counsel's witness, indicated that he had received a general increase in July. 30 This allegation was added to the complaint by amendment made at the beginning of the hearing, after the General Counsel had given notice of 49 NPC how to run its business. We have no doubt that the Steelworkers' Union may try to do this, but the law gives the company the right to manage its business whether there is a union in the picture or not. I believe most of you know me well enough to be certain that I would never let any union tell me how to run this company. No company has ever grown from a small beginning like ours by letting someone else tell them how to run their business. The union may have told you that you will have "job security" if you vote them in. Let us consider "security." I would like to point out the many varying elements of security. What is security? . . . Security, to me, is my job. I believe security to you, is your job. What created them? . . . And what conditions will assure their continuing and expanding? . . . We are in the manufacturing industry. NPC was started as just an idea. This idea has become our product line, and we have turned it into something we can sell. How much, and how often people buy our product is of the utmost importance to everyone here today. It's these, the many tasks and operations involved in making and selling our product that creates and will expand our jobs, and I'm sure you all understand this. I would like to point out that these past many months have been hard times for some people. Yes, even some industries as a whole, but not so at Nashua Pre-Cast. We have expanded-even while other have been cutting back.... When people no longer want or need our product . . . or are not satisfied with our service, it is then that we are in trouble. Anything less than this-union or no union-and the future of this company will be in peril. This can only be accom- plished through your loyalty and cooperation.... By all of us working together and pulling together . . . not by our pulling apart. * * * Even if the union were to win the election ... there would still be only one way that it could try to force us to agree to any of its demands which we thought were unreasonable or which we otherwise couldn't see our way clear to agree to. That would be by pulling you out on strike. I hope you realize . . . and understand .. . while there is yet time, that NPC has no intention of yielding to any such pressure as that . . . ever.... As matters now stand . . . you have a good job . . . you have steady employment here. Naturally . . . we all hope things will get even better. They can be better if we can get this union matter behind us, and settle down to the business all of us are supposed to be here for. In the Trial Examiner's opinion, Rossborough's speech, whether read as a whole or analyzed sentence by sentence, his intention to amend. 31 A portion of the speech is cited as an unlawful representation that "resort to self-organization was unnecessary" within the holding of Jefferson Wire and Cable Corp., 159 NLRB 1384, 1405-6. No finding is made in this connection since the complaint contains no such allegation. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not contain any threat, express or implied, direct or indirect, of plant closure in the event of a union victory. Accordingly, it will be recommended that the amended complaint be dismissed insofar as it alleges such a threat. CONCLUSIONS OF LAW 1. By coercively interrogating an employee concerning union sympathies and activities; by promising employees improved benefits if they reject the Union and deal with the employer directly or through an employee grievance committee; by threatening discharge of employees who support the Union; and by threatening to close the plant rather than reinstate employees who were discriminatonly discharged, Respondent interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging William T. Clark and Raymond L. Amadon on August 17 and 19, 1971, respectively, and failing and refusing to reinstate them thereafter, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The General Counsel has not shown by a preponder- ance of the evidence that Respondent has engaged in any unfair labor practices other than those found above. THE REMEDY Having found that Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that Respondent be ordered to cease and desist therefrom and take affirmative action of the type customarily ordered in such cases. Having found that Respondent discriminatorily discharged William T. Clark and Raymond L. Amadon in violation of Section 8(a)(3) of the Act, the Trial Examiner will recommend that Respondent be required to offer them immediate and full reinstatement, with backpay, to be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Because the unfair labor practices, particularly the precipitous discharges of Clark and Amadon, strike at the heart of the Act, the Trial Examiner will recommend that a broad cease-and-desist order be issued. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: 32 32 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided by Sec 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 ORDER Respondent, Nashua Pre-Cast Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning union activities. (b) Threatening to discharge employees who support the Union. (c) Promising improved employee benefits if the employ- ees renounce the Union in favor of dealing with Respon- dent directly or through an employee grievance committee. (d) Threatening to close the plant rather than reinstate employees who have been discharged in violation of Section 8(a)(3) of the Act. (e) Discouraging membership in the United Steelworkers of America, AFL-CIO-CLC, by discharging any employee or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form or join labor organizations, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer William T. Clark and Raymond L. Amadon immediate and complete reinstatement to their former jobs or, if those positions are no longer in existence, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in "The Remedy" section of this Decision. (b) Notify William T. Clark and Raymond L. Amadon, if they are 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. (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 and compute the amount of backpay due under the terms of this recommended Order. (d) Post at its facilities in Nashua and Hollis, New Hampshire, copies of the attached notice marked "Appen- dix." 33 Copies of said notice, on forms provided by the 33 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 " NASHUA PRE-CAST CORPORATION Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been ordered to post this notice about what we are committed to do. The National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining of other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything that interferes with these rights. We assure all of our employees that: WE WILL NOT unlawfully question employees con- cerning their union membership, activities, or sympa- thies, or concerning any union activities among our employees. WE WILL NOT threaten to discharge employees if they join or support the United Steelworkers of America, AFL-CIO-CLC, or any other labor organiza- tion. WE WILL NOT promise improved or increased employee benefits or other terms or conditions of employment if the employees choose to be represented by a union; and WE WILL NOT advise employees that 51 they will receive better terms and conditions of employment if they choose to deal with us directly or through an employee committee rather than an outside union. WE WILL NOT threaten to close our plant if we are required to reinstate discharged employees William T. Clark and Raymond L. Amadon. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO-CLC, or any other labor organization, by discriminatorily discharging any employee or discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. WE WILL offer William T. Clark and Raymond L. Amadon immediate and full reinstatement to their former jobs (or, if those jobs no longer exist, to substantially equivalent jobs), without prejudice to their seniority or other rights and privileges. WE WILL give William T. Clark and Raymond L. Amadon backpay, with interest, for any loss of earnings suffered by them as a result of our having discharged them on August 17 and 19, 1971, respective- ly. WE WILL notify William T . Clark and Raymond L. Amadon, if currently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, after their discharge from the Armed Forces. NASHUA PRE-CAST CORPORATION (Employer) Dated By (Representative) (Title) 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, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.