Midland Tractor & Equipment, Inc.

MIDLAND TRACTOR & EQUIPMENT, INC. 271 Midland Tractor & Equipment, Inc. and Harold H. Weber and Lindell J. Deweese. Cases 38-CA-1316 and 38-CA-1317 July 18, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 17, 1972, Trial Examiner Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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 his 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 Respondent, Midland Tractor & Equipment, Inc., Moline, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. I The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 Respondent has requested oral argument This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: The above-named Employer at the times here pertinent employed eight mechanics under the direct supervision of Jimmie Edel- mon,' the Company's service manager. On October 15, 1971, Edelmon notified the eight employees at a meeting that thereafter at the direction of the Company's president he would be spending more time in the shop supervising their work in an effort to catch up with the work backlog and that to give him the extra time necessary for this he had been relieved of his paperwork. Upon receipt of this news which they considered disturbing, a discussion developed in the presence of Edelmon among the eight employees about starting up a union to represent them. After considerable discussion, decision was made in the absence of Edelmon to organize, and one of the mechanics was selected to contact the local of the Teamsters Union for assistance in organizing the shop. Two weeks later on November 1, a business agent of Local No. 371 of the Teamsters Union met with the eight mechanics at the shop and secured their signatures on union authorization cards. Two hours later, Edelmon called the two alleged discriminatees here involved, Harold R. Weber and mechanic Lindell J. Deweese, into his office, individually, and either laid off or discharged them as of November 4. Both before and after November 1, Edelmon engaged various mechanics in conversation on the subject of the Union. Under these skeletonized but admitted facts, the issues in the case are as follows: (1) whether Respondent discrimi- natorily terminated Weber and Deweese as of November 4, 1971, because of their union activities in violation of Section 8(a)(3) and (1) of the National Labor Relations Act; (2) whether after the aforementioned October 15, 1971, meeting at which the eight mechanics discussed union affiliation, the Respondent through its supervisor, Edelmon, (a) interrogated employees about their union activities, (b) threatened employees with discharge or other reprisals or more onerous working conditions in order to dissuade their support of the Union, and (c) created the impression that it was keeping the union activities of its employees under surveillance, all in violation of Section 8(a)(I) of the Act; (3) whether the Respondent by its president, C. R. Tillery, attempted to sponsor a central gripe committee in order to discourage employees from joining, supporting, and assisting the Union, thereby interfering with employees rights in violation of Section 8(a)(1) of the Act; and (4) whether Respondent made its employees' working conditions more onerous in violation of Section 8(a)(1) of the Act. The consolidated complaint herein was issued on December 10, 1971, pursuant to a charge filed by Harold H. Weber on November 8, 1971, in Case 38-CA-1316 and a charge filed by Lindell J. Deweese on the same date, copies of both of which were duly served on the Respondent. An amendment to the consolidated complaint was issued on January 10, 1972, setting forth additional alleged 8(a)(1) violations. The case was tried before me on January 25, 26, and 27, 1972. The briefs filed by the parties on March 14, 1972, have been carefully reviewed and considered. Upon the entire record and from my observation of the witnesses I make the following: I Edelmon's name, incorrectly shown in the pleadings as James Edelman, was corrected at the trial to read as above shown 198 NLRB No. 54 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Findings of Fact 1. JURISDICTIONAL FINDINGS Respondent, Midland Tractor & Equipment, Inc., an Illinois corporation with its principal office and place of business at Moline, Illinois, is engaged in the sale and servicing of heavy industrial mobile equipment and of forklift tractors. During the past 12 months which is representative of its operations, the Respondent sold and shipped equipment from its Moline facility valued in excess of $50,000 to points outside the State of Illinois. In the same representative period, the Respondent in the course and conduct of its business operations sold and distributed products and services having a gross value in excess of $500,000. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Umon No. 371, is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES As heretofore more briefly noted, Service Manager Edelmon called a meeting of the Company's eight shop employees on October 15, 1971, at which he notified them that President Tilley had relieved him of his paperwork so that he could thenceforth spend more time in the shop in a push to reduce the shop's overload of work to normal levels. During the course of the meeting and in Edelmon's presence, the employees, apparently fearful of anticipated pressure for more production, began to discuss the advisability of organizing the shop. When President Tilley entered the meeting room to address the employees, they immediately ceased their discussion about union affilia- tion. Tilley, repeating what Edelmon had said, told the employees that Edelmon would be spending more time with them and asked their cooperation in cutting back the work overload. When Tilley left, the employees in the continued presence of Edelmon resumed their discussion about union affiliation. A little later, Edelmon, sensing that his presence might be an embarrassment to the employees, left the meeting so that they could talk more freely among themselves as to whether they wanted a union to represent them. In Edelmon's absence, the men decided in favor of organizing and designated mechanic Amos Hewitt who had previously been a member of the Teamsters Umon to contact Teamsters Local No. 371 for the purpose of seeking its assistance in organizing Respondent's shop. About 2 weeks later around October 28, Edelmon called mechanic Vernon Lantz into his office to ask his views about having a union and, finding that Lantz favored a union, Edelmon asked if he could not talk him out of it. Lantz replied in the negative and the meeting ended.2 2 The findings in the above paragraph are based not only on the testimony of Lantz, but also on Edelmon's admissions under cross- examination 3 The above evidentiary findings are based on the credited testimony of a number of Respondent's employees, including alleged discrimmatees Deweese and Weber, which appears to be virtually undisputed Thielke did not flatly deny the possibility that he was in and out of the lunch area of the shop during the lunchbreak here under consideration, but on the contrary A few days later on November 1, a business representa- tive of Local No. 371 met with Respondent's mechanics at Respondent's place of business during their half-hour lunch period. During the course of that half hour all eight of Respondent's shop employees, including alleged discn- minatees Weber and Deweese, signed cards authorizing the local to represent them in collective bargaining with the Respondent. During that same half hour, Justin Thielke, the Company's overall service manager and Edelmon's supervisor, passed in and out of the area where the mechanics were sitting around the lunchtable with the union representative as union cards were being signed and while some were lying in open view on the table, not more than 4 to 6 feet from Thielke's vision. Thielke tarried once to joke with mechanic Rodney Nemrick and once to talk with Hewitt about equipment parts. Deweese was not present during all of the half-hour lunch period, but came in about 5 minutes before it was over. His credited testimony shows that after he had taken and signed a union card and while he was in the process of handing the card over to the union agent from a half rising position at the table, Thielke walked by the table and observed him in the act of handing the card over.3 Despite Thielke's disclaimer at the trial,4 the Trial Examiner infers and finds from the above evidentiary findings that Thielke in passing through the lunch area during the lunchbreak period here under consideration observed cards in the hands of the mechanics or on the lunchtable, that he surmised them to be union authorization cards, and that he suspected the stranger at the table to be a business representative of a union. The record further shows that Edelmon was also in the shop's lunchroom area during some of the moments of the lunchbreak of November 1, that he noted that there was a stranger sitting with the shop employees, that he was in sufficient proximity to observe the cards on the lunchtable, and that he surmised that the cards on the table were umon authorization cards .5 Within a half hour after the described lunchbreak had ended, Edelmon questioned Nemrick on whether the stranger at the lunchbreak had been a union representative and, upon receiving an affirmative answer, further ques- tioned him on what union matters had been decided at the lunchbreak and if there were going to be any further union meetings .6 Edelmon in his own direct examination by counsel for his employer admitted that from and after November 1 he also questioned other shop employees "with reference to the union." About 2 p.m. that same afternoon (November 1), Edelmon called Weber into his office and told him that due to lack of work "he was going to have to lay him off" as of the following Thursday, November 4. Incredulous, Weber told Edelmon he could not believe that lack of work conceded that it was altogether possible as his duties frequently take him into that area while the shop employees are having their lunchbreaks a Thielke's disclaimer was not a flat denial, but merely a "Not to my knowledge," which the Trial Examiner does not credit 5 The findings of the above paragraph are based on thejoint testimony of Edelmon and mechanic Nemrick 6 This finding is based on the credited and specifically undisputed testimony of Nemrick MIDLAND TRACTOR & EQUIPMENT, INC. could be the cause for his layoff. Weber's credited and undisputed testimony shows that Edelmon's quick re- sponse to this was, "You know there has to be a scapegoat for this sort of thing; . . . there is going to be a lot of changes made around here; . . . don't expect to be called back." Thereupon, Edelmon dismissed Weber from his office but before he left he instructed him to send Deweese in to see him. In shop layoffs, Respondent follows the rule of laying off employees with the least seniority first. At the time of his layoff, Weber, then 50 years of age, was the second most senior employee in Respondent's shop, having started employment there in September 1968. All but one of the employees in the shop were junior to Weber at the time of his layoff. Although Weber was originally hired to work as a mechanic and setup man on lawn and garden equipment, this specific work assignment ended sometime in the fall of 1970 when the Respondent discontinued its lawn and garden equipment departments. Thereafter Weber's work assignment was chiefly the cleaning and painting of used mobile equipment after their repair or overhaul, but in addition he was also called upon to do many mechanical jobs that only a mechanic could do. Prior to his layoff or discharge as of November 4, 1971, Weber had had two prior layoffs, due to lack of work, but in those earlier layoffs he had been told that he would be recalled when business picked up and actually was recalled whereas in his last layoff or discharge, charged by the complaint to be discriminatory, he was definitely told to look for new employment and not to expect a recall. During his period of employment with Respondent, Weber was known to complain to management from time to time about what he regarded as unsafe working conditions in the shop. As soon as Weber got back to the shop after the unexpected news of his layoff, he sent Deweese in to see Edelmon as he had been directed. There Edelmon also told Deweese that he was being laid off as of the following Thursday. Deweese, a young man of 23 of an obviously quiet, retiring, and noncombative nature, asked Edelmon if he was being laid off because of lack of work. Edelmon's quick response to this was, "You know we've got work. Mr. Tilley told me to lay you off. Mr. Tilley also told me that if he had to lay off everybody in the shop and hire a whole new crew to keep out the union he would." 7 Later that same afternoon (November 1) after the layoffs of Weber and Deweese, Edelmon again approached Nemrick in the shop and told him that President Tilley was "pretty hot about this union activity" and that "the shit was going to hit the fan." On November 4, Nemnck asked Edelmon when he came by his work station whether it was true that Weber and Deweese were being laid off. Edelmon replied that "it was true they were being discharged" and that he had advised Weber to look for another job because he would not be taken back.8 Early on November 2, during working hours, Edelmon had a further conversation with Nemrick about the Union, but this time the conversation took place in Edelmon's 7 The findings of this paragraph are based on the credited and specifically undisputed testimony of Deweese 8 These findings are based on the credited and specifically undisputed testimony of Nemrick 8 These findings are based on Nemrick's credited and undisputed 273 office to which Nemnck had been summoned. There Edelmon asked Nemnck his feelings about the Union and when Nemrick replied that he favored the Union, Edelmon told him that he would be losing befefits if the Union came in, such as 2-day paid leave of absence he had recently been granted to attend the funeral of a relative . During the course of the conversation Edelmon told Nemrick that the Respondent had ways and means of finding out who the union instigators were and that they would "undoubtedly lose their job[sj."9 On the evening of the same November 2, all eight of Respondent's shop employees held a union meeting at the headquarters of the Union. There Weber and Deweese filled in unfair labor practice forms , charging the Respon- dent with their discriminatory discharges , for filing with the Board. The day before the union meeting Edelmon asked mechanic George Dumoulin at the shop if he was going to the union meeting of November 2. Dumoulin replied that he was. On November 3, the day following the union meeting, Edelmon questioned the aforementioned shop employees, Weber, Nemnck, Hewitt, and Dumoulin and mechanic John Rambo, as to what had happened at the union meeting. On November 4, in the same aforementioned conversation in which Edelmon had told Nemrick that Weber and Deweese were being discharged, Edelmon also told Nemnck that if the Union came in, Nemrick's classification as a mechanic would require him to spend all of his time in the shop as a mechanic as against his current preferred driving assignment. Although employed as a mechanic by Respondent, Nemrick by choice spends most of his time bringing mobile equipment of Respondent's customers from their plants to Respondent's shop for repairs and returning such equipment to the customer after the repairs have been completed.io On or about November 9, Edelmon summoned the aforementioned mechanic , Rambo, into his office where he told him that he had called him in "to try to talk" him out of supporting the Union. (As heretofore noted, Edelmon made the same effort with mechanic Lantz just prior to November 1.) Edelmon also questioned Rambo as to who the union instigators were. Certain additional events relating to the union activity at the plant occurred both before and after a consent election was held at Respondent's plant on December 6, 1971. By stipulation, it is established that the appropriate unit involved in that election consisted of all of the Respon- dent's mechanics at its Moline facility, but excluding all office, clerical employees, guards, watchmen, professional and supervisory employees as defined in the Act. The Union won the election. At the time of the trial herein some 7 weeks later, the Umon and the Respondent had exchanged proposed contracts but had not as yet met in any bargaining sessions. About a week before the election, Edelmon told all the mechanics that should the Union win the election, they testimony 10 The findings in the above paragraph are based on the credited and specifically undisputed testimony of the above -named employees 11 These findings are based on the credited and specifically undisputed testimony of Rambo 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be required to take their breaks at the regularly scheduled break periods in contrast to the then present practice of allowing them to stay with the equipment they are working on until they came to a natural stopping point before starting their break. At the same meeting Edelmon made reference to mechanic Dumoulin, the shop's most senior employee who had been working for the Company for more than 5 years. Over the years, Dumoulin gained the reputation of being chronically tardy in reporting to work despite the fact he was always docked for his lateness which he appeared to take cheerfully. Edelmon told the mechanics that if the Union got in, Dumoulin's' chronic tardiness would no longer be tolerated and that he would be replaced if he persisted in being tardy. Edelmon also warned Dumoulin to the same effect personally.12 President Tilley under date of November 27, 1971, in anticipation of the forthcoming representational election, sent to each of his mechanics a letter in which he stated: The primary reason for this communication is to emphasize our belief that you seven mechanics do not need a Union to represent you in dealing with the Company on wages, hours of work, and other condi- tions of employment. Between now and the day of election we plan to attempt to prove to you all on a factual basis why we feel this way. The letter promised a subsequent preelection letter in which Tilley would spell out a plan under which his mechanics could satisfy their problems "without incurring the expense of supporting a Union." In the promised subsequent letter dated November 29 Tilley recommended in lieu of the Union the establishment of a "Central Gripe Committee," made up of employee and management representatives, to solve "annoying problems pertaining to wages, hours of work, and other conditions of employment... . Following through on his November 29 letter, Tilley some 2 or 3 days before the election of December 6 called his mechanics together for a meeting. At the meeting he and his labor relations advisor, James Toohey, sought to persuade the mechanics to give up the Union and to set up in its place his recommended Central Gripe Committee. As heretofore noted, the Union won the election of December 6. The undisputed testimony shows that on the day following the election Respondent required the mechanics to park their cars on the gravel and sand portion of the Company's parking area which becomes muddy in inclement weather in place of the blacktop parking area where they had been parking. The record shows that the blacktop parking area is sufficiently large to accommodate the cars of all of Respondent's 15 or 16 employees, including its mechanics and all customers. The Trial Examiner finds, as might be expected from the nature of Respondent's business, that it was seldom that there were more than two or three customers using Respondent's parking facilities simultaneously per day. Before the election, Respondent's shop employees were not required to use the timeclock for their half-hour lunchbreaks. In the summer or fall of 1971, President Tilley noticed that mechanics Lantz and Dumoulin on occasion would not get back to work promptly at 12:30 p.m., when the lunchbreak period was over, but after he had Edelmon speak to them that situation was rectified. Nevertheless, after the Union won the election the Respondent began to require the shop employees to punch out and in for their lunchbreaks. On or about December 14, 1971, all of Respondent's shop employees attended a union meeting in Rock Island, Illinois, at which Union Representative Ed Pavalic told the mechanics that he would be mailing a proposed contract to President Tilley which would be in his hands by the following Monday. The next day Edelmon queried mechanic Rambo as to what the shop employees were asking in their proposed contract. When Rambo said he did not know, Edelmon replied that Rambo might as well tell him as he would in any event know on the following Monday. The Trial Examiner finds that this reply by Edelmon left Rambo with the very clear idea that Edelmon already knew what had gone on at the union meeting since in fact Pavalic had told the mechanics that the Company would receive the Union's proposed contract by Monday. The Trial Examiner therefore finds without further discussion that the Company through Edelmon created the impression of surveillance of its employees' union activities in violation of Section 8(a)(1) of the Act. As heretofore noted, Edelmon on October 15, 1971, at President Tilley's instructions, informed the eight mechan- ics at a meeting that he would thereafter spend more time helping them in the shop in an effort to reduce the Company's troublesome overload of shopwork. Notwith- standing Respondent's own evidence that its shop was having more customer repair and overhauling jobs than it could keep up with, the Company 2 weeks later on November 1 notified mechanics Weber and Deweese that they would be laid off as of November 4 due to "lack of work." Respondent's explanation for this is as follows. President Tilley testified that he had planned to send many pieces of used mobile equipment to Des Moines, Iowa, in the late fall for sale at a public auction, but that in the 2- week interval between October 15 when the mechanics were told of the push to overcome the work overload and November 1 when Weber and Deweese were notified that they were to be laid off, he had decided on only a limited participation in the Des Moines auction and that this cut down on the pieces of used equipment the mechanics had to get ready for the auction sale and thus resulted in the lack of work that led to the layoffs of Weber and Deweese. However, the concern Tilley and Edelmon expressed in their remarks to their mechanics at the meeting of October 15, as reflected in their own testimony herein, did not in any way indicate that the overload was due to the equipment the Company was allegedly intending to get ready for auction in Des Moines, but on the contrary gives the clear impression that the overload was being caused by the burgeoning demands of their regular customers for service on their privately owned mobile heavy equipment. Moreover, the credited testimony of Weber, as corroborat- ed by mechanics Lantz and Howell and even by Tilley on cross-examination, shows that at the time of Weber's layoff 12 These findings are based on the credited and specifically undisputed testimony of mechanics Nemnck, Rambo, and Dumoulin MIDLAND TRACTOR & EQUIPMENT, INC. there were many pieces of equipment awaiting cleaning and painting by Weber. Although Weber was chiefly engaged in cleaning and painting mobile equipment at the time of his layoff, the record as a whole shows that he was regarded as a member of the unit of mechanics here involved. This is evidenced by the fact that he was originally hired as a mechanic, that some of his work at the time of his layoff involved duties which only a mechanic could perform, and that at the election the Respondent did not challenge his right to vote on the ground that he was not a mechanic but only on the ground that he had been fired.13 As heretofore noted, Weber at the time of his layoff was the second most senior mechanic among the eight employees in Respondent's shop. Respondent's layoff of Weber as the second most senior employee in the unit was contrary to Respondent's own publicized policy that seniority would govern in layoffs for lack of work. Without further discussion, the Trial Examiner finds that Respon- dent's contention that Weber did not have the classifica- tion of a mechanic at the time of his layoff and that therefore his layoff was not in contravention of Respon- dent's seniority policy in layoffs is without merit. It is again noted that at the time of his layoff Weber was known to management to be a habitual complainer of what he regarded as the hazardous clutter and disorder of the shop. It is inferred from this that Respondent regarded Weber at the time of his termination as a focal source for bringing a union into the shop to force better working conditions. While Weber was allegedly laid off on the ground of lack of work, Respondent's defense for Deweese's discharge is that he was discharged as of November 4 because his work was unsatisfactory although he had been told by Edelmon initially on November 1 that he was being merely laid off pursuant to Tilley's instructions according to Deweese's heretofore noted credited testimony.14 Deweese had a comparatively short term of employment with Respondent of a little over 5 months from about June 6 to November 4, 1972. He was hired as a mechanic to work on forklift trucks that were serviced by Respondent for various customers. Forklift tractors are complicated and expensive pieces of machinery that sell at anywhere from $7,500 to $45,000, with an average cost of $10,500. He was hired on the basis of the experience he had with the United States Army as a forklift truck mechanic in Saigon for which he had received a commendation in a "Certificate of Achieve- ment" issued by the Army under the signature of brigadier general which reads in part as follows: As a materials handling equipment branch mechanic for Company F, Troop Command, Specialist Deweese displayed keen and professional insight far beyond that expected of a man of his grade and experience. Through his energetic and diligent actions, he obtained superb results and earned for himself the respect and admiration of all of his Associaties. He performed his 13 This is in contrast to Respondent's present position that he had been laid off, not fired 14 Edelmon testified that when he called Deweese into his office on November 1, he merely told him that he was to be laid off on November 4, his testimony does not show that he gave Deweese any reason for his discharge. Respondent's secondary defense for Deweese's discharge is lack of work However, Deweese's credited testimony as noted above shows that 275 duties in a manner which reflects great credit upon himself, his unit, and the United States Army. At the time of his hiring, Deweese was the only mechanic assigned to this repair of forklift trucks. About the middle of September Respondent also hired David Howell, another young man, as a forklift truck mechanic, but as he had had no previous experience in this kind of work he was assigned to work with Deweese to gain know how and experience. Deweese and Howell were the only forklift mechanics in Respondent's shop at the time Deweese was discharged on November 4. Edelmon found Deweese a most cooperative employee who was always quiet and never talked back and with whom he could calmly discuss difficult mechanical problems. The record shows that there was a wholly harmonious and mutually respectful relation- ship between Edelmon and Deweese during the entire time of Deweese's employment with Respondent. In support of Respondent's contention that Deweese was discharged because his work was unsatisfactory, Edelmon testified to complaints he had received from four custom- ers on work performed or alleged to have been performed by Deweese on their forklift equipment for which the Respondent made reductions of the original repair bill because of such complaints. None of these complaints involved routine, run-of-the-mill repairs. Virtually all involved perplexing mechanical problems which sometimes required the combined skills of Deweese, Howell, senior mechanic Dumoulin, Edelmon, and even President Tilley to solve and occasionally were unsolvable. A job that Deweese was sent out on in October 1971, to Muscatine, Iowa, to repair a forklift truck for Gaeta Wholesale Company is illustrative of the complaints Edelmon testified he had on Deweese's work. Deweese's credited testimony shows that after checking out the Gaeta machine he returned to Respondent's shop to obtain the parts required for the repair and to discuss with Edelmon a puzzling problem with the machine's mast which he found he could not repair. After servicing all other parts of the machine, he still found he was unable to make the mast work. He thereupon on instructions from Edelmon brought the machine back to the shop. While in the shop, Deweese, Edelmon, Thielke, and even President Tilley looked at the machine but were unable to solve the mast problem. Edelmon was obliged to send the machine back to the customer with the problem unsolved and for this reason the customer refused to pay part of the invoice for the servicing of the machine. As might be expected, the record shows that it is not uncommon for Respondent to receive complaints from some customers on the quality of the work performed by its various mechanics for which Respondent would make adjustments of the repair bill in order to keep customer good will. Even if the testimony of Edelmon is credited that he received some complaints on Deweese's work, the record indicates that he got many more complaints on the when he received the news of -, layoff from Edelmon he inquired if it was due to lack of work and that Edelmon's quick reply to this was, "You know we've got work. Mr. Tilley told me to lay you off Mr Tilley also told me that if he had to lay off everybody in the shop and hire a whole new crew to keep the union out he would " Howell, the other forklift truck mechanic, also testified that there was plenty of work for both Deweese and himself at the time Deweese was terminated 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work performed by Respondent's other mechanics. (G.C. Exh. 9 and tr. at pp. 339-341.) The credited and undisputed testimony of Deweese shows that Edelmon never criticized him on any of his repairs which the Respondent now asserts were unsatisfac- tory and the cause of his discharge. The Trial Examiner also credited Deweese's testimony that he never heard any criticism of his work from the involved customers. The Trial Examiner does not credit Edelmon's testimony that he had received a request from a maintenance foreman of customer J. I. Case not to send Deweese out to the Case plant for repairs again. Asked if this was due to an argument between the two men over Deweese's work on a Case forklift, Edelmon declined to characterize it as such, simply stating that it was a "misunderstanding." Edelmon's own characterization of Deweese as an employee who "never talks back" makes it a certainty that Deweese did not have any "misunderstanding" with the Case foreman and requires the crediting of his testimony that he received no criticism of his work by the maintenance personnel of the Case firm. Company knowledge of the union activity of its mechanics prior to the discharge of Weber and Deweese is inferred and found from the evidentiary findings above but is also admitted by both Edelmon and Tillery. As noted the mechanics signed union authorization cards at the shop during their lunchbreak on November 1, 1971, in the presence of a union representative. Tilley admits that he learned about this either from Edelmon or Thielke. At the trial herein Tilley denied under cross-examination that he fought the Union "in every way he could" from coming into his plant. This denial conflicts with a statement made by Tilley in his letter of December 1, 1971, to all of the Respondent's mechanics and reflects, among other inconsistencies in his testimony, upon his credibility. In his letter to the mechanics, Tilley asked the question, "Why is the company fighting the union?" He answered his own question in the letter as follows: "We do not think a union is necessary or beneficial to the best interests of either the Company or the employees...." (G.C. Exh. 7.) In the nearly 3-month interval between the terminations of Weber and Deweese and the trial herein, the Respon- dent has not hired any replacements for them and offers this as proof of the fact that they were terminated because of lack of work. This is not relevant proof with respect to Deweese as it now appears that Respondent contends that Deweese was terminated solely because of his alleged unsatisfactory work and not because of lack of work. But even if lack of work is deemed Respondent's secondary defense for Deweese's termination and its sole defense for Weber's layoff, the evidentiary findings set forth above show that there was the normal flow of work in the shop when Weber and Deweese were terminated and that there was no reasonable indication that the situation would change in the near future. To offset this evidence, Respondent did not offer to introduce into evidence any documentary proof from its books and records to show that there had been any decline in its orders for the servicing of customer equipment at the time of the two terminations. Under these circumstances, the Trial Exam- iner finds without further discussion that Respondent's failure to replace Weber and Deweese is not evidence of lack of need for services such as Weber and Deweese rendered but an attempt to bolster its defense for the discharge of Weber and Deweese in an effort to make it appear that their services were not needed. Discussion and Conclusions The evidentiary findings above and the inferences therefrom on the circumstances relating to the termina- tions of Weber and Deweese leave no choice except for the conclusion that they were discriminatorily terminated in violation of Section 8(a)(3) and (1) of the Act. The evidence that they were discrimately discharged is so compelling as to require very little discussion. The evidence relating to the independent 8(a)(1) viola- tions alleged by the complaint, as amended, is so self- evident as to require even less discussion. A brief summary and discussion of the evidence shows the following. On October 15, 1971, during a lunchbreak there was an open discussion by Respondent' s mechanics in the presence of Supervisor Edelmon on the desirability of having a union to represent them in collective bargain- ing with Respondent. On November 1, 1971, again during a lunchbreak, the mechanics were observed signing union authorization cards in the presence of a union representa- tive by Edelmon and Thielke, Respondent's general parts and service manager. President Tilley admits that news of this came to him from either Edelmon or Thielke. Within a half hour of the lunchbreak, Edelmon began questioning one of the mechanics about what union matters had been decided at the lunchbreak. Two hours later Edelmon called Weber and Deweese into his office individually and told each that their last day of work with Respondent would be on November 4 because of lack of work. Stunned because he could not believe that he was being laid off because of lack of work, Weber pressed for the real reason for his severance. Edelmon's reply was that "there has to be a scapegoat for this sort of thing." Similarly, Edelmon in his separate meeting with Deweese told Deweese that in truth it wasn't lack of work that caused his severance, but instructions from Tilley who had said that "if he had to lay off everybody in the shop and hire a whole new crew to keep out the union he would." In President Tilley's aforementioned letter of December 1, 1971, to his mechanics, Tilley himself acknowledged that his Company was fighting the Union. In the light of this open hostility to a union, the discriminatory nature of the terminations of Weber and Deweese is obvious. The record further shows that they were chosen for termination not because they were particularly more conspicuous than the other mechanics in the support of the Union but more or less arbitrarily as an object lesson to the remaining mechanics of the fate they could expect if they persisted in their support of the Union. Nevertheless there were personal factors in the selection of Weber and Deweese for termination. The record supports the conclusion that Weber was selected because of his known propensity to complain about the unsafe working conditions in the shop and thus would be a prime suspect for an employee who would give enthusiastic support for the Union. With respect to Deweese, it appears that he was MIDLAND TRACTOR & EQUIPMENT, INC. selected for discharge because he was actually seen by Supervisor Thielke in the act of handing his union authorization card to a union representative during the lunchbreak of November 1. Respondent's defense that Weber was laid off because of lack of work and that Deweese was terminated for the double reason of lack of work and incompetence does not stand scrutiny, especially in the light of President Tilley's open opposition to having his mechanics organized. Only about 2 weeks before their discharge there was such an overload of work at the shop that Tilley saw fit to relieve Edelmon of his paperwork so that he could spend more time with the mechanics to help catch up with the overload. At the time of their discharge the testimony shows that both Weber and Deweese had essentially the same amount of work that they had some 2 weeks earlier when Tilley instructed Edelmon to spend more time with the mechanics to expedite their overload. Respondent produced no documentary records to show that its volume of repair orders had declined when they severed Weber and Deweese from its payroll. From this state of the record the Trial Examiner finds and concludes that Respondent's defense of lack of work for the termination of the two mechanics is spurious. Respondent's defense that Deweese was discharged because his work was unsatisfactory is similarly spurious. Deweese's competence as "a materials handling equipment ... mechanic" (tow lift truck mechanic) and a man of exceptional diligence and energy is attested by the "Certificate of Achievement" he received from a brigadier general of the United States Army. In the 5 months Deweese worked for Respondent, the record shows that Edelmon as his supervisor never had occasion to even once criticize his work and Deweese's testimony likewise shows that he never at any time received a criticism from any of Respondent's customers whose equipment he serviced. The record further shows that the few pieces of equipment he had difficulty with had exceptional mechanical problems of such complexity that they required the combined skills of several mechanics to solve and in one instance even such combined skills failed to correct the problem. Moreover, the record shows by Edelmon's own testimony that Deweese was a fully cooperative employee. The Trial Examiner finds and concludes that Respondent 's defense that Deweese was discharged because his work was unsatisfactory is pretextual. It is found and concluded that Weber and Deweese were discriminatorily discharged for the purpose of discouraging union activity among the mechanics in violation of Section 8(a)(3) and (1) of the Act. The evidence relating to the independent 8(a)(1) allega- tions is largely admitted and undisputed. The record is clear that Edelmon engaged in extensive coercive interro- gations of Respondent's mechanics concerning their union activities from November 1, 1971, when the mechanics during a lunchbreak signed union cards, until after the election of December 6, 1971, which the Union won. The record also shows that the Respondent through Edelmon threatened to lay off all the mechanics if necessary to keep the Union out. The record further shows that Edelmon threatened the mechanics with more onerous working 277 conditions if the Union came in, such as the loss of their breaktime if not taken on time and a less liberal policy on tardiness in reporting to work and other unspecified changes in the shop which they would not like. That these threats were not empty is reflected by the fact that after the Union won the election Respondent made at least two changes in the mechanic 's working conditions which were more onerous than they had been prior to the election. One change was to require the mechanics for the first time to check in and out on the timeclock for their half-hour lunchbreaks, although there had been no recent abuse of their former unclocked half-hour lunchbreak period. The other change was to deprive the mechanics of the former privilege they had of parking their cars on the plant's blacktop parking area. After the election they were ordered to park their cars on the unpaved section of the plant's parking lot which causes inconvenience in inclement weather. This change was inaugurated although the blacktop area of the Company's parking facilities is large enough to accommodate the cars of all of Respondent's 15 or 16 employees and such customers as might have occasion to come to the plant from day to day. The Trial Examiner finds that these changes were reprisals against the mechanics for voting in favor of the Union at the election . The Trial Examiner concludes that Respondent's conduct and acts as described and summarized in this paragraph constitute unfair labor practices in violation of Section 8(a)(1) of the Act. In addition, the record discloses that the Respondent engaged in two other distinct and separate categories of proscribed unfair labor practices in further violations of Section 8(a)(1) of the Act. One such proscribed conduct occurred just prior to the election when the Respondent both by letter and orally tried to persuade its mechanics to form their own independent committee for negotiations with the Company on matters of wages, hours of work, and other conditions of employment, and to dump the Union. The other proscribed conduct occurred after the election when Edelmon told mechanic Rambo the day after a union meeting that he already knew that the union representative at the meeting had said he was placing a proposed contract in the mail to President Tilley. By this conduct Respondent through Edelmon created the impression of surveillance of its mechanics' union activities in violation of Section 8(a)(l) of the Act. The Trial Examiner finds that all other incidents of 8(a)(1) violations reflected by the record but not specifical- ly noted and found in this Decision are cumulative in nature and accordingly would add nothing to the recom- mended order herein which will cover all categories of 8(a)(1) violations committed by the Respondent. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Midland Tractor & Equipment, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 371, is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off and/or discharging Harold H. Weber and Lindell J. Deweese on November 4, 1971, for engaging in union activities, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including offers of reinstatement to Harold H. Weber and Lindell J. Deweese, with backpay computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the character and scope of the unfair labor practices herein found, it will be recommended that, in order to effectuate the policies of the Act, Respondent shall cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act.15 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 16 Respondent Midland Tractor & Equipment, Inc., by its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their own and other employees' union activities. (b) Threatening to discharge or take other reprisals against employees for engaging in union activities. (c) Discharging and/or laying off employees for engag- ing in union activities in order to discourage support for, and membership in, the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Local Union No. 371, or any other union. (d) Threatening employees with more onerous working conditions if they select a union for their collective- bargaining representative or engage in union activities. (e) Creating the impression that the union activities of its employees are being kept under surveillance. (f) Attempting to sponsor and encouraging employees to form an independent Central Gripe Committee or any other independent committee instead of joining the Union. (g) Making working conditions more onerous by refusing to allow employees to park on the blacktopped parking area and requiring employees to punch out and in at lunchtime. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Lindell J. Deweese and Harold H. Weber immediate and full reinstatement to their formerjobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their lost earnings in the manner set forth in the "Remedy" section above. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant in Moline, Illinois, copies of the attached notice marked "Appendix." 17 Copies of the notice, after being duly signed by an authorized represent- ative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 38, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.18 15 N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4) 16 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 in 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 17 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" is In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 38, 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 WE WILL NOT discourage membership in the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 371, or any other labor organization, by discnminatori- ly discharging or laying off any employee or by discriminating in any manner with respect to their MIDLAND TRACTOR tenure of employment or any other term or condition of employment. WE WILL NOT interrogate any employee about their union sympathies, desires, or activities. WE WILL NOT threaten to discharge employees or take other reprisals against employees including threats to impose more onerous working conditions, or in any other way interfere, restrain, or coerce employees because of their union activities. WE WILL NOT create the impression that we are keeping the union activities of our employees under surveillance. WE WILL NOT sponsor nor attempt to sponsor an Employee Gripe Committee or any other employee association in order to discourage our employees from joining, supporting, or assisting the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 371, or any other union. WE WILL NOT refuse to allow employees to park on the blacktopped parking area of our facilities, nor will we require employees to punch out and in at lunchtime, or in any other way impose more onerous working conditions because employees choose the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 371, or any other union for their collective-bargaining representa- tive. WE WILL offer to Lindell J. Deweese and Harold H. & EQUIPMENT, INC 279 Weber immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to the seniority and other rights and privileges previously enjoyed. WE WILL make whole Harold H. Weber and Lindell J. Deweese for the earnings which they lost due to our discriminatory discharge of them with 6-percent inter- est. WE WILL NOT in any other way unlawfully interfere with the union activities of our employees. MIDLAND TRACTOR & EQUIPMENT, INC. (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, 411 Hamilton Boulevard , Savings Center Tower, 10th Floor, Peoria, Illinois 61602, Telephone 309-673-9061, Ext. 282.