Thurner Heat Treating Corp.

THURNER HEAT TREATING CORP. 883 Thurner Heat Treating Corp. and Thomas J. Lumley. Case 30-CA-1666 Lumley. Respondent's answer denies the commission of the alleged unfair labor practices. The case was tried in Milwau- kee, Wisconsin, on March 30, 1972. October 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 12, 1972, Administrative Law Judge I Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Thurner Heat Treating Corp., Wauwatosa, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge'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 3 The Respondent's request for oral argument is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions of the parties. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner: A charge and an amended charge were filed on July 28, 1971, and February 22, 1972, respectively, by Thomas J. Lumley, an individual, against Thurner Heat Treating Corp., Respondent herein. The complaint issued on February 24, 1972, and alleged violations of Section 8(a)(1) and (3) of the Act by mterroga- tions and threats and by the discriminatory discharge of FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is a Wisconsin corporation engaged in the heat treating of metals at its plant in Wauwatosa, Wiscon- sin. During a representative fiscal year, Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000 for firms located in Wisconsin, each of which in turn sold and shipped goods and materials valued in excess of $50,000 in interstate com- merce to points located outside Wisconsin. Respondent is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background In a case as here presented, where there has been a prior complaint against Respondent and an ensuing settle- ment agreement between the General Counsel and Respon- dent, the Board has held that "Respondent's pre-settlement conduct can be used as background evidence in assessing the motive or object of Respondent's post- settlement con- duct ...."I Norman Walters had been hired by Respondent as a laborer in March 1965. Two or three years later he was made a shift foreman. Walters was terminated by Respon- dent on July 16, 1971. Walters testified that in 1969, when the Union had commenced its organizing activities among Respondent's employees, Respondent President Robert Thurner asked Walters what he thought could be done, "legal or illegal, as long as we didn't get caught," to break up the Union.2 Walters suggested that he, Walters, could accomplish what Thurner had in mind by working through a key employee named Bacon. Walters further told Thurner that he felt that Bacon could be trusted not to reveal the matter to the Board "or get Mr. Thurner in trouble." Thurner told Walters "to go ahead." Thereafter Walters approached Bacon privately. Bacon was apparently receptive and expressed the view that he and the other employees would not need the Union "as long as they got the benefits they felt they should have" from the Company. Some days or more after this, Thurner, in a conversation with Walters, said that he thought "if we let Carroll Bacon go ... that the Union would just fall apart i Moulton Shirt Corporation, 173 NLRB 882, Mohasco Industries, Inc, 172 NLRB No 237, N L R B v Northern California District Council of Hod Carriers and Common Laborers Union, AFL-CIO (Joseph's Landscaping Service), 389 F.2d 721 (C.A. 9). 2 Thurner has been Respondent's chief officer for 35 years 199 NLRB No. 150 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that would be the end of their problem."3 The foregoing evidence is of a relatively brief and limited nature. It does, however, show a strong desire or commitment on Thumer's part to thwart and to break up the Union by "legal or illegal" means. In May 1969, the Union received certification from the Board as the exclusive bargaining representative of Respon- dent's production and maintenance employees and truck- drivers. The General Counsel issued a complaint against Re- spondent in April 1970.4 About this time, according to Wal- ters, Robert Thurner met with his supervisors, including Tom Thurner, his son, and Walters. When Robert Thurner asked Walters whether the charge or complaint allegations regarding Walter's antiunion activities were true, Walters said "damn right they were true" and that Thurner knew they were true, since he had been aware of what was to occur. Thumer then said that the Company would admit the allegations "and they'll slap my wrists, and that'll be the end of it." During this same period in April. 1970, Walters testi- fied to a conversation he had with Tom Thurner regarding the origins of the union activity. Thurner expressed his be- lief that the men on the third shift had instigated the Union "and if he had his way he would have fired the whole third shift and start all new, and any other union agitators he would fire along with them."5 On June 15, 1970, the Respondent, counsel for the General Counsel, and the Union entered into and executed a formal settlement stipulation regarding the complaint in Case 30-CA-1185. The aforesaid stipulation stated, inter alia, that Respondent withdraws its answer to the com- plaint.6 The stipulation provided for the entry of a Board order against Respondent forthwith. The order, consistent with the complaint allegations to which Respondent had withdrawn its answer, provided, inter alia, that Respondent would cease and desist from:? Depraving certain employees of overtime because of union activities. Interfering with employees' possession of union literature or distributing same during non- working hours in nonwork areas. Interrogating em- ployees about their or others' union activities. Threatening employees by stating that the Union would have to be abandoned before a work agreement could be achieved; that Respondent would not "give an inch" in negotiating with the Union; that the plant would be closed to keep from giving a contract to the Union. Bargaining directly with employees by offering them a working agreement with improved wages and 3 Bacon left Respondent's employ soon after this for a job with another em4ployer. Case 30-CA-1185. S As indicated, Tom Thurner is a son of President Thurner He is a supervi- sor and stockholder and exercises supervisory authority over employees. By profession he is a metallurgist. Another son of the president also is employed by Respondent and shares an office with Tom Thurner. As Respondent's counsel stated, "It's a family business." 6 Sec. 102.20 of the Board's Rules and Regulations , Series 8, as amended, provides: ... All allegations of the complaint, if no answer is filed, or any allega- tion in the complaint not specifically denied or explained in an answer filed . shall be deemed to be admitted to be true and shall be so found by the Board . 7 We are not setting forth the order verbatim. other benefits providing they abandoned the Union. Threatening employees with discharge because of their union activities. Discriminating against Johnson and Sadowski and causing them to terminate their employ- ment. Refusing to bargain in good faith with the Union and granting wage increases during negotiations with- out notice to the Union, the exclusive bargaining agent. The affirmative portion of the order provided for offers of reinstatement and backpay to Johnson and Sadowski; bar- gaining in good faith with the Union upon request; and posting a notice in the plant. The stipulations of settlement also provided for the entry of a decree by the United States Court of Appeals enforcing the Board's order. The Board's Decision and Or- der is dated July 7, 1970. The Court of Appeals for the Seventh Circuit entered its judgment and decree enforcing the Board's order on July 29, 1970. B. The Discharge of Thomas Lumley Lumley had been hired by Respondent in March 1967 as a production worker. At the time he was 26 years old and, as far as appears, he had no particular craft type skills .8 His rate was $2.65 per hour. He continued to work on produc- tion for about 4 months when the first-shift foreman asked him to take a job in maintenance as maintenance helper. Lumley worked in the latter job from June or July 1967 until July 19, 1971, when he was discharged. During these 4 years in maintenance Lumley worked from 8 a.m. to 4:30 p.m. and also worked some overtime after 4:30 p.m. or on week- ends. In general, Lumley's maintenance work involved re- placing tubes in furnaces, replacing gaskets, fixing pumps, and general maintenance work in the building. He had re- ceived four raises in pay in the course of his 4 years in maintenance and was earning $3.20 per hour at the time of his discharge. Van Oyke, an engineer, who was an officer of the Company and a brother-in-law of President Thurner, testified that Gosse was the maintenance foreman. Accord- ing to Van Dyke, maintenance and engineering overlap and Gosse "reports to me on any particular problems and I can advise him." Lumley testified that during his 4 years in maintenance he considered Van Dyke to be his supervisor. Although the Union had commenced organizing Respondent's employees in the forepart of 1969 and had been certified in May 1969, the record indicates that it was experiencing difficulty in dealing effectively with Respon- dent. Some contract negotiations were commenced in 1969 after the Union was certified. However, two employees, Johnson and Bacon, who served as employee representa- tives on the union negotiating team with the nonemployee union representatives or officials, became lost to the Union. Bacon left Respondent's employ for another job. We have described earlier in our Decision how Foreman Walters, with President Thurner's approval, had sought to enlist Ba- con as a tool in Respondent's effort to thwart the Union. Johnson, an electrician in Respondent's maintenance de- partment, who was the other employee union negotiator, also ceased to be an employee of Respondent. The 1970 Board Decision and Order and the court decree, earlier described, ordered Respondent to cease discriminating 8 Such as a welder, plumber, electrician , and so forth. THURNER HEAT TREATING CORP. against Johnson and to offer him reinstatement and back- pay. Apparently Johnson did not accept the subsequently offered reinstatement since the record indicates that he was not in Respondent's employ in the 1971-72 period when the event of the Lumley union activity and discharge occurred, and Johnson never resumed as a union contract negotiator. The Board Decision and Order and the court decree, in addition to Johnson's and another employee's termina- tion, dealt with other conduct of Respondent vis-a-vis the Union, and Respondent was ordered to cease in various ways from refusing to bargain in good faith with the Union. Despite these orders, issued in July 1970, more than a year had in fact elapsed since the Union's certification and little, if anything, had been accomplished from the standpoint of the Union and the employees whose bargaining agent it was. As far as appears from the record, it was not until about February 1971 that a renewed effort was made or was able to be made to seek to negotiate a collective-bargaining agreement with Respondent. The Union, the certified Inter- national Boilermakers Union, had selected a new local un- ion to represent the employees in Respondent's plant .9 The employees then met in employee Smithson's home to select employees to serve as a negotiating committee together with the union representatives. The latter, with the members of the employee negotiating committee, would then meet with the Employer's representatives to begin contract negotia- tions. At this February 1971 meeting in Smithson's home, an employee negotiating team was selected. The negotiators chosen were employees Smithson and Axelman; and em- ployees Lumley and Miller as alternates. The following month, March, a meeting of the entire union negotiating team was scheduled at the home of Uhle, president of the local union. Uhle was not an employee at Respondent's plant. He and the vice president of the local (also a nonem- ployee) were present as well as Sentowski, a representative of the International Union. Of the employee negotiators, who had been selected a few weeks before at Smithson's home, only Lumley remained and participated in this March meeting at Uhle's home. Smithson had resigned as a negotiator and refused to participate further.10 Axelman appeared at the March meeting but by that time he was no longer an employee of Respondent, having been dis- charged.I I Miller did not appear at this meeting and he, too, apparently was out of the picture as an employee negotiator. Probably because he was the one remaining employee nego- tiator still extant, Uhle asked Lumley to serve as the chief employee negotiator, together with Sentowski and Uhle. 9 Although not explicated in this record, we take note that, commonly, when an International Union is certified as the bargaining agent for the employees of a relatively small plant such as Respondent's, it does not set up a new local union. Generally, such a new unit will be made part of an established local union in the area that is affiliated with the International Union. In the instant case apparently Respondent 's employees were assigned to a local union in 1969. After the lapse of time and including the intervening alleged unfair labor practices of Respondent that resulted in a Board order and court decree in 1970 , the International Union, in early 1971, had as- signed another local union to the employees at Respondent 's plant 10 Smithson remained in Respondent's employ. The reason for his resigna- tion as a negotiator does not appear in the record. 11 The reason or circumstances of Axelman 's discharge does not appear in the record. 885 The group then discussed what contract proposals should be made to Respondent. For the same purpose the same group met again early in April. Some time around March 1971, when the Union, as above described, was again showing signs of revival in the months following the Board order and court decree, the then foreman, Walters, had a conversation with Tom Thur- ner. Walters, whom we credit, states that he was discussing some work matter with Thurner. The latter then made ref- erence to the Union, saying, "If I had my way, every union man that I know in here, I'd throw in the oil tank, and if you think I'm kidding, why, I'm not." Walters testified that in the period, through the grape- vine or possibly from another foreman, he and others in the plant became aware that Lumley had been appointed to some position in the Union. In addition to the foregoing common knowledge in which Walters and others shared, Walters testified that Tom Thurner said to him, "Well, you know who's union steward now?" Walters said, no. Thurner said, "Tom Lumley and if they can't find anythirg better than that, they sure don't have much of a union.' f, Lumley testified that in April 1971, before he and the other members of the union negotiating team appeared for a meeting with Respondent on April 20, Van Dyke ap- proached him in the plant. Van Dyke asked him if he was involved "in any of this new activity going around in the Union." Lumley said yes he was. Lumley continued, saying, "I refused to be a steward because of my job position, it would interfere with my job ... but I would be a negotiator, and am presently a negotiator." Van Dyke then said, "for your own good," he advised Lumley to turn over the job of negotiator to someone else because "I recently lost one man for union negotiations." Van Dyke, called as a witness by Respondent, had his attention called to the complaint allegation to the effect that Van Dyke had interrogated an employee concerning his union membership and activity. Van Dyke testified that he had never interrogated any employee regarding union or personal activities. The witness further said that he did not "recall any such conversation" with Lumley in which he asked Lumley "about union activities." The direct examina- tion of Van Dyke on this subject was then concluded with the following question and answer: Q. The complainant further states you threatened him with loss of his employment; did you threaten him with loss of employment? A. I didn't threaten him with loss of employment. I've never threatened anyone with loss of employment in my life and I've never discharged anyone in my life. It is possible that Van Dyke did not "recall," as he states, the conversation testified to by Lumley; or that Van Dyke did not consider that he had interrogated and ques- tioned the employee about union activity; or that Van Dyke believed that by advising Lumley to give up the position of negotiator because of negotiating activity, he, Van Dyke, was not conveying a direct or implied threat of loss of employment (by Respondent if not by Van Dyke personal- ly) if Lumley did not relinquish the position of a union 12 Lumley had been offered the job of steward but had declined on the ground that it would interfere with his work . He did, however, as we have seen, accept the post of employee member of the Union negotiating team. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiator. However, after considering Lumley's testimony and the nature of Van Dyke's testimony, the Trial Examiner credits Lumley, who impressed us as credible. A meeting between the union negotiating team and Respondent had been scheduled for April 1971 in the office of Respondent's attorney. This meeting was canceled.13 A meeting at the same place was then set for April 20, 1971. The union team appeared at the attorney's office at the appointed time. There was the union international repre- sentative; the president and vice president of the local un- ion; former employee Axelman; and Lumley. The latter was the only employee representative on the negotiating team. As credibly testified to by Lumley, all the aforementioned persons were asked and gave to Respondent's attorney their names and titles or positions. The attorney then explained that President Thurner, who was Respondent's principal negotiator, could not be present since the plane he was flying had experienced mechanical difficulty.14 The meeting was thereupon canceled. There is no evidence that any future meeting was scheduled. Lumley testified that as far as he knew there were no negotiating meetings between April20 and the time of his discharge in July. The General Counsel stipulated with Respondent that Lumley did not participate in nego- tiations after the scheduled April 20 meeting. No evidence appears in the record that there were any negotiations be- tween April 20 and the date of Lumley's discharge. In oral argument at the close of the instant hearing, Respondent's counsel state, inter aha, "There was no union activity at the time he [Lumley]was let go. There just wasn't any, and no one has produced any testimony to the contrary. I know for a fact there was none. There wasn't even negotiations going on.,, In this connection, it is appropriate to recapitulate, briefly, the picture of a union and the employees who sup- ported it to certification in May 1969, trying to weather a period between May 1969 and July 1970, marked by a Board Decision and Order and court decree directed against far-reaching unfair labor practices of Respondent. Employees were no doubt discouraged by the lapse of time during which no headway was made in achieving a bene- ficial contract with the Respondent. Moreover, despite the intervention of the Board and the court to enjoin Respondent's illegal antiunion acts, there is little doubt that employees long remembered Respondent's hostility toward the Union and toward individual union activists. Following the Board order and court decree in July 1970, it was not until February 1971 that the Union undertook to, or possi- bly was able to, muster a new employee negotiating commit- tee. The two former employee negotiators, Johnson and Bacon, were no longer in Respondent's employ, as previous- ly described. In early 1971, the newly selected group of four employees negotiators quickly dissipated until only Lumley remained. Whether or not he was the ablest employee in the plant for such a job, he at least was the only one who had the courage or the conviction to remain as the employee member of the union negotiating team and to appear in that 13 Other than the fact of cancellation, the record reveals nothing about the circumstances of the cancellation 14 Thurner, who flies his own plane, testified at the hearing regarding the trouble that he had encountered with the plane on April 20 capacity at the scheduled April meeting with Respondent. Lumley did not relinquish his job as the employee member of the union negotiating team despite an admonition from Van Dyke that he should do so or risk the fate of a former negotiator." Following the abortive April 20, 1971 scheduled meet- ing between Respondent and the union negotiating team, Lumley continued in his job as a maintenance man or main- tenance helper until he was discharged on July 19, 1971. The circumstances and facts of the discharge are now described. On the afternoon of Friday, July 16, 1971, Lumley had completed such maintenance tasks as were on hand. Van Dyke was not around the plant that day or at least that afternoon and Maintenance Foreman Gosse was occupied at some task in the plant and had no particular assignment for Lumley at the time. "Later on in the afternoon,"1 "Wal- ly," an assistant or helper of the shipping manager, came to Lumley in the plant and told him an air-conditioner had come in. Neither Wally nor the shipping manager testified and no witness of Respondent has offered any comment of the uncontroverted fact that the shipping department, through Wally, notified Lumley of the arrival of the air- conditioner at the plant. Presumably, therefore, the ship- ping department was acting normally in notifying mainte- nance man Lumley that an air-conditioner had arrived. The air-conditioner's destiny was quite apparently not to remain in the shipping department. It is clear that the shipping department did not go to Van Dyke or to Foreman Gosse to tell them of the arrival of the air-conditioner and to ask that they assign a maintenance man to install it. For whatev- er reason, Lumley was the employee notified. It is undisput- ed that the air-conditioner was a replacement for an 110 volt air-conditioner in Respondent's office and that its installa- tion was a maintenance function. Upon being thus notified of the arrival of the air-condi- tioner, Lumley, since he had nothing else to do at the time, decided to install the air-conditioner.l" He went to where the air-conditioner was and with the help of another em- ployee, unidentified, they installed it in its proper place in the office, leveled it, and otherwise placed it in operational status from the standpoint of setting it up physically. Lum- ley next was in the course of plugging in the air- conditioner's wired plug into the electrical receptacle in the room. 18 He then discovered that the air-conditioner plug did not fit the room receptacle. He also observed that the air- 15 When Van Dyke told Lumley that he should relinquish the role of negotiator because Van Dyke had already lost one man due to negotiations, he may have been referring to Johnson Johnson had been a maintenance electrician and as such would have been under Van Dyke's general supervi- sion The 1970 Board order and court decree ordered Respondent to cease from its conduct of having discriminatorily terminated Johnson In 1971 neither Johnson nor any other former employee union negotiator was still in Respondent's employ 1 Since Lumley worked from 8 a in to 4 30 p in, the time was probably an hour or so before 4 30 17 There is no evidence that Respondent or its maintenance department had any rule that no maintenance employee was to perform any maintenance tasks unless specifically so assigned by a supervisor Nor had any supervisor ever told Lumley that he was to perform no maintenance work unless specifl- callt assigned thereto and instructed thereon 1 The air-conditioner was evidently a room-type air-conditioner that was wired by the manufacturer and had wires with a male plug at the end that was to be inserted in a wall receptacle or other electrical receptacle in the room The latter receptacle would have holes or slots into which the air- conditioner's plug was to be inserted THURNER HEAT TREATING CORP. 887 conditioner had a tag on it which said 220-160 volts. Lum- ley testified, in effect, that although he knew that 220 volts were not the same as 110 volts and that the two were not compatible if the power line was one of these voltages and the appliance was another, he believed at the time that 160 and 110 volts were substantially the same. 19 He was not an electrician and from the inception of his 4 years in mainte- nance with Respondent he did not purport to be an electri- cian and Respondent was fully aware of his limitations. In any event, despite his erroneous judgment about the two voltages, Lumley did not do anything to implement his own judgment about the situation. He did not seek to force the air-conditioner plug into the room receptacle nor did he undertake to change the air-conditioner plug or the room receptacle so that one would receive the other. Instead, he went to find Gosse, the maintenance foreman. He told Gosse of the situation and asked what he should do about it. Gosse asked Lumley if he had checked the wiring. The latter said yes, there were three wires coming out of the air-conditioner, two power lines and one ground. Gosse then said, "Well, just take the plug off [the air-conditioner wires] and put a plug on it that will fit the receptacle."20 Lumley then returned to the air-conditioner, removed the plug from its wires as directed by Gosse, and attached an- other plug in its place. The new plug fitted the electrical receptacle in the room. Lumley then plugged the air-condi- tioner cord, with the new plug, into the receptacle. The air-conditioner ran but, as Lumley states, "it wasn't running too well." He then, after 5 minutes, unplugged the air-condi- tioner from the receptacle. There had been no smoke, explo- sion, fire, or any other damage to the air-conditioner or to the wiring and electric receptacle in the room. At the time Lumley unplugged the air-conditioner after it ran for 5 min- utes, Mangen, the plant manager, who was in the office, then told him to leave the air-conditioner alone. This was evidently because the air-conditioner in the brief 5 minutes of running, was quite apparently not operating as it should 2' Lumley did leave it alone and did nothing more regarding the air-conditioner. This all occurred at the end of the day, Friday, which was of course, the end of the workweek .22 On the following Monday, July 19, 1971, Lumley came to work at his regular time, 8 a.m. He worked throughout the day without incident until an hour or so before the end of his shift when he was called to Tom Thurner's office. There, Thurner told Lumley that he was discharging him. Lumley asked him why. Thurner then gave three reasons. 19 The room receptacle was on a 110 volt power line The prior air-condi- tioner was wired for 110 volts and had been used in that room Lumley probably assumed that the replacement air-conditioner was similarly wired since it was to be used in the same location and that 160 volts was a minor variation of 110 volts. 20 Lumley's testimony is uncontroverted since Respondent did not call Gosse as a witness . The Trial Examiner credits Lumley 21 Mangan did not testify. 22 As previously stated , the office electrical outlet or receptacle was wired to a 110 volt power line. Such a line is commonly used in private dwellings, and older offices since it is adequate for normal requirements such as lights and low voltage appliances The previous air-conditioner was 110 volts and had been plugged into the office receptacle The new air-conditioner of 220 volts would not function effectively and as it should when plugged into a 110 volt receptacle . In the following week, Respondent's electrician installed a 220 volt line in the office and changed the plug The air conditioner then operated as it should He first mentioned something about a fuse box. Lumley asked what he meant. Thurner said that he would not go into the details. Then, according to Lumley, Thurner re- ferred to the Lumley motor matter.23 The third cause of the discharge mentioned by Thurner was the installation of the air-conditioner the previous day. Thurner then said that it would do Lumley no good to see Van Dyke, the plant engi- neer, "it wasn't his decision [to discharge Lumley] at all, it wasn't his idea and he didn't agree with it."24 On the air-conditioner matter, it is clear and undisput- ed that from Friday to the end of the day on Monday, when Lumley was discharged, no foreman, supervisor, or member of the Thurner family had said a word to Lumley about the installation of the air-conditioner or asked him for his ver- sion or explanation. Tom Thurner testified that he came to work on Mon- day, July 19, at 8 a.m. His brother, Tim, had come to work about the same time or a little earlier. About 10 a.m. Tim Thurner came to Tom Thurner and told him that Lumley "had put the air conditioner in place 25 ... [and] that Mr. Lumley had been told not to hook it up electrically."26 According to Tom Thurner, his brother, also mentioned that tags on the air-conditioner described its voltage and Tim Thumer said that on the 110 volt line the performance of the air conditioner "was very poor." Tim Thurner also said that Mangen "had seen this" and asked that Tom Thur- ner "look into the matter." Tom Thurner testified that it then took him, Tom, "about four hours" to find out "what had happened and for my father to come to a decision to discharge the man."27 After receiving the aforementioned information from his brother about the air-conditioner, Tom Thurner then spoke to Plant Manager Mangen. He thus describes that conversation: Q. What did you discuss? A. The air conditioner. He had little comment on it. Something to the effect it hadn't worked. Q. Was that it? A. Yes. Thurner next spoke to Gosse. According to Thurner, Gosse said that Lumley had put the air-conditioner in place "on his own decision." Lumley then "had come back to him [Gosse] when the plug wouldn't fit in the socket and he [Gorse] had told him to leave it alone and he [Gosse] would take a look at it." that was the end of the discussion with Gosse. Having completed the investigation without even ap- proaching Lumley, the subject of the investigation and the principal actor in the air-conditioner affair, Tom Thurner 23 We will describe the fuse box matter and the Lumley motor at a later point 24 Neither Van Dyke nor Thurner testified on this aspect of Lumley's testimony 25 There is no claim that the air-conditioner had been put in place improp- erly e Since Tim Thurner did not testify we do not know the source of his information 27 This purported long investigation and decisional process is not easy to understand since the only persons who were questioned about Lumley and the air conditioner and the action to be taken were foreman Gosse and plant manager Mangen and there was allegedly no conflict but a consensus of opinion Gosse and Mangen were obviously readily available to the Thurners for any questions they might have had and Van Dyke and Lumley were not questioned during this 4 hour investigation and decision 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to his father, President Robert Thurner, early in the afternoon of July 19. Thurner states that he mentioned to his father "a number of things that Mr. Lumley had done wrong." At the instant hearing, Thurner was then asked, "Like what?" He replied that he did not "remember them specifically" but he then referred to the following incidents as having been mentioned to his father on that occasion. These incidents have been described by Tom Thurner at various points in his testimony. Thus, (a) A propeller and shaft was used in a cauldron containing a salt bath that was maintained at about a 400 degree temperature. The propeller had become bent and Lumley was assigned the task of straightening it. To do this it was necessary to loosen the shaft that was sticking into the salt bath. The shaft and the pro- peller were attached and the whole assembly had to be removed as a unit. In loosening the shaft, Lumley had not held on to it or, in any event, the shaft and all dropped to the bottom of the salt bath. Although no damage to the equipment resulted, it took about 1-1/2 hours to fish the shaft assembly out of the hot salt bath. Respondent's counsel on direct examination asked Thurner re the above: Q. Did you warn him at that time? A. What do you mean, "warn him."Threaten his job? Q. Well, yes. A. No, I did not. Q. But you told him this wasn't proper procedure? A. Yes. The foregoing indicates that there is little doubt that neither Lumley nor the Respondent wanted or expected that the assembly would fall into the salt bath. Although there is no claim that Lumley had performed this task before, we can conclude that he should have held onto the shaft assembly and not allowed it to drop into the salt bath. The extent of Thurner's reaction to the incident at the time was to tell Lumley that allowing the assembly to fall into the salt was not proper precedure. (b) The motor incident involving Lumley that had occurred about a year prior to his discharge. At that time Lumley had read a magazine article which de- scribed an outboard motor; this motor, after it was started by a battery was supposed to run thereafter without any power source, or at least this was the way Lumley had interpreted the article. Lumley had men- tioned this motor to some of his fellow employees at the plant. They and other employees kidded Lumley about this alleged self generating motor and the matter was referred to as the Lumley motor among the plant per- sonnel. This is the extent of the incident. Respondent's invocation of the foregoing as a factor in Lumley's discharge is made on the ground that it showed Lumley's incompetence. However, the motor incident oc- curred about a year prior to Lumley's discharge and Re- spondent had neither said nor done anything to Lumley regarding the fact that he had told some fellow employees about a new type of outboard motor that he had read about. Lumley had, in 1967, applied for a production job with Respondent and been hired as a production worker. After several months Respondent asked him to be a maintenance helper. Respondent was well aware at that time and for 4 years thereafter that Lumley was not a mechanic and had no electrical background. However, Lumley had received four raises in pay because, presumably, as president Thur- ner testified, Lumley "is a fine fellow . . . a very good workman... . (c) Sometime in June, 1971, Tom Thurner was watching Lumley in the plant trying to cut a piece of stainless steel with an oxygen-acetylene cutting torch. Thurner, a metallurgist, was aware that stainless steel could not be cut with such a tool. He then imparted this information to Lumley and told him that he would have to use an electric arc to cut that particular metal. This was the extent of the incident and the "repri- mand." Thurner states that this incident shows Lumley's "lack of knowledge." This is probably true if Lumley had been hired as a welder or steamfitter or as a man with a broad mechani- cal background. Oxygen-acetylene equipment such as used by a welder is commonly used with various attachments as a cutting torch. It will cut iron and steel and most common metals. Apparently it will not cut some more sophisticated alloys and in the matter in question an electric arc had to be used. While Lumley had probably done some metal cut- ting in the plant before this incident, it does not appear that he had previously cut stainless steel. In sum, Tom Thurner testified that on July 19, when he went to his father about Lumley, he mentioned the air- conditioner installation; dropping of the shaft assembly into the salt bath; the Lumley,motor incident; the attempted cutting of a piece of stainless steel; and "numerous incidents ... I can't recall."28 Tom Thurner states that he told his father that he thought Lumley "was a danger around the plant and that he was going off on his own doing things for which he was not qualified. I recommended discharging him." President Robert Thurner testified that on July 19, his son Tom reported to him that Lumley had gone ahead on his own in installing an air-conditioner and had plugged the 220 volt air-conditioner into a 110 volt line. According to Robert Thurner, his son also told him on July 19 that Lum- ley had done work on his own for which he was not compe- tent on many other occasions. At another point Robert Thurner testified that, within the 60 days of Lumley's dis- charge, Tom Thurner and Plant Manager Mangen had, on several occasions previously, told Robert Thurner about Lumley doing things in his own and that he was "danger- ous" because he was not qualified for such tasks. As far as appears, neither Robert Thurner, nor Tom Thurner, nor Mangen nor anyone else had talked to or had admonished Lumley about his allegedly numerous dangerous actions in 25 At another point, Thurner was asked about the fuse box incident which Lumley states was mentioned when Thurner discharged him. Lumley testi- fied that when he asked Thurner what he meant, Thurner said he could not go into any explanation In his testimony, Thurner states that, with a fuse tester, Lumley was supposed to test an electric circuit . Thurner's testimony on this matter is brief and not too revealing Q What did he [Lumley] do wrong with the test mstrument9 A You have two poles, and he had gone from one fuse hole to another fuse hole and if the two are in phase you'll come up with an indication both circuits are dead , they're not functional Q What happens if he gets a charge through it? A. It lights a light in the fuse tester Q Is there any personal danger in doing it improperly? A No. THURNER HEAT TREATING CORP. 889 the past. No supervisor had said, for instance, "Lumley, you are not to perform any electrical or other maintenance pro- ject unless a supervisor assigns you to the task and tells you what to do." Neither this simple instruction nor any warn- ing or genuine reprimand had been given to Lumley by anyone, past or present. Robert Thurner gave no specifics as to Lumley's asserted numerous derelictions. The only specifics were testified to by Tom Thurner and we have previously described each cited incident, such as the Lum- ley motor and so forth. Robert Thurner states that after his son reported to him about Lumley, he, Robert Thurner, then talked to Mangen and Gosse. They each reportedly agreed that Lumley had been doing things on his own and that he was a "dangerous" person to have around because of his lack of competence. Robert Thurner states that he then told Tom Thurner to discharge Lumley because he was too dangerous to have around. In discharging Lumley, Tom Thurner testified that "I mentioned many incidents during which he had made errors in his work." There is no claim that on this occasion or on any other occasion anything was said to Lumley about Lumley doing work on his own initiative and without super- visory direction, although both Thurners testified that this was what made Lumley too dangerous to .retain as an em- ployee. In a sense, at the time Tom Thurner discharged Lumley, there was probably not much point to discussing anything. Tom Thurner, upon hearing about the air-condi- tioner on July 19, had "investigated" that matter without talking to Lumley. Thurner then recommended discharge to Robert Thurner. The latter then made an "investigation" without talking to Lumley and ordered Lumley's discharge. When Tom Thurner informed Lumley of his discharge he was therefore siipply announcing a fait accomph.29 Conclusions We have set forth the facts in this case in some detail. Where testimony or other evidence has been in conflict we have considered the conflicting elements. It is our opinion that Lumley was, on the whole, a reliable witness. He came to work in Respondent's maintenance department at Respondent's request. As far as appears, he had no particular technical or craft background. He had no elec- trical experience and was not a general all-round skilled mechanic. In 4 years in the maintenance department his shortcomings, in our opinion, were known to Respondent. This is a relatively small plant with about 50-60 employees and 3 in maintenance. Since there were 3 shifts, there would therefore be 20-30 employees on hand at any given time and subject to close scrutiny of a family type management-3 actively engaged; Thurners, a plant manager, various shift foremen, a plant engineer, and a maintenance foreman. But although Lumley was no mechanical engineer or master mechanic or even an electrician or journeyman craftsman, he performed adequately in the job for which he was hired, a maintenance helper. He received four raises in pay and 29 On this occasion, according to Thurner, he, Thumer, did mention the air-conditioner but it was apparently limited to discussing "the electricity systems in the shop " Thumer states that on this Lumley showed a "very deep lack of knowledge on the subject." This is not surprising since Lumley had no electrical background, a fact known to Respondent for 4 years had never been disciplined or warned about his work. Al- though he had made mistakes and had been corrected, he was certainly never warned that his work or his work habits were such that they could not be tolerated or that his job tenure was in jeopardy absent change or improvement. The specific incidents that Respondent has cited as reasons for Lumley's discharge were not, in our opinion, treated as serious derelictions at the time they had occurred. The Lumley motor affair took place about a year before the discharge. That incident, at most, indicated that Lumley may not have been a very sophisticated individual. The other cited incidents, like the cutting of stainless steel and the fuse box testing, indicated limited electrical and me- chanical or metallurgical knowledge. However limited such knowledge on Lumley's part, it is not apparent that such lack of knowledge was greater in his fourth year of employ- ment than it had been in the mitial years and throughout his employment in maintenance. The salt bath incident, in our opinion, involved an error by Lumley; or, as Tom Thurner testified, he told Lumley, after the occurrence, that it was not proper procedure to allow the assembly to fall into the salt bath. Obviously it was not proper procedure and it probably is not proper procedure for an employee to let a battery slip from his hand and fall to the floor or to let a tool with which he is working slip and fall or for any em- ployee to make any mistake. Mistakes and errors occur, however, and, in our opinion, in the circumstances of this case, the salt bath incident was not a genuine cause of Lumley's discharge. Respondent asserts that Lumley was an employee who did things on his own and that this was dangerous because of his lack of competence. But specifics on such claimed conduct are limited in one incident, the air-conditioner. It does not appear that any of the other cited causes of dis- charge involved Lumley going off on his own. Tom Thurner was standing on the scene on the respective occasions watching Lumley trying to cut a piece of stainless steel; loosening the shaft assembly over the salt bath; and testing a fuse box. He did not testify that Lumley had not been assigned to each of these tasks and was doing all these things on his own. Rather, the whole expressed import of these cited instances was that Lumley, in performing his work, made mistakes or showed a lack of electrical or mechanical skill. Regarding the air-conditioner, Lumley did take the ini- tiative in putting it in place. Rather than standing in the shop with nothing to do on Friday afternoon, he put the air-conditioner in its proper place, leveled it, and made the installation without error. He did this after the shipping department had notified him that the air-conditioner had arrived in that department. Emplacing the air-conditioner was something Lumley did on his own but it was something he proved competent to do. As Robert Thurner testified, "There's no company prohibition of anything he could do if he had the knowledge and was able to do it .... But when it came to hooking up the air-conditioner electrically, Lumley did not act on his own. He saw that the air-conditioner plug did not fit the room receptacle and he went to his foreman, Gosse, to tell him of the situation and to ask what should be done. Tom Thurner's testimony cor- roborates Lumley on this aspect since he states that Gosse 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Thurner that Lumley had come to Gosse about what should be done regarding the air-conditioner. This undis- puted fact that Lumley had asked his foreman what should be done about connecting the air-conditioner is scarcely consistent with the alleged picture of an employee doing things on his own. If Lumley had wanted to hook up the air-conditioner on his own, he would not have asked Gosse for guidance or direction. He knew how to change an elec- trical plug and if he had wanted to act on his own he could have changed the plug so that it would fit the receptacle. Since Gosse did not testify, Lumley's testimony is un- controverted that, when he consulted Gosse and described the situation to him, Gosse told him to proceed by changing the plug. This is what Lumley did. We perceive no reason- able explanation of why Lumley would have thus proceeded unless so directed by Gosse. As indicated, if he had wanted to act on his own on the electrical aspect he would not have consulted Gosse before acting. If Gosse had told him to leave the matter alone and leave the air-conditioner uncon- nected, there is no convincing reason why Lumley would have defied such a direct order and would have proceeded to do precisely what he had been told not to do. If Lumley had proceeded on his own, in direct disobedience of his foreman, he would have been rightly subject to censure and discipline even if he had connected the air-conditioner suc- cessfully. Why, therefore, would he have completely diso- beyed his foreman. He would not have received a cent less in pay if he had followed the purported order of the foreman to do nothing; and doing nothing, on order, as compared to working, is a choice that would present little difficulty to almost any employee. Moreover, in Lumley's entire 4 years in maintenance, Respondent neither cites nor claims any incident or any occasion when Lumley refused to obey an order of his superiors or took some action when he was told by a superior not to so act. Under all these circumstances, therefore, we are not prepared to credit the Thurners that Gosse had told Lumley not to connect the air-conditioner or that Gosse told this to management. We are satisfied that Lumley testified credibly as to what Gosse had told him and, since Gosse had been in Respondent's employ for 25 years, we are not prepared to believe that he would have failed to confirm truthfully to his superiors that he had told Lumley to change the plug on the air-conditioner. In view of Respondent's failure to call Gosse as a witness we find additional confirmation for the foregoing conclusion. A consideration of the entire record and background in this case persuades the Trial Examiner that the reasons advanced by Respondent for Lumley's discharge were of a pretextual nature and Respondent, without even question- mg Lumley about the air-conditioner incident, used that matter as a convenient proximate cause to rid itself of this employee. In our opinion, Lumley was discharged because of Respondent's hostility toward the Union and to an em- ployee who actively identified himself as prominent in un- ion activities. Despite a warning as to the fate of a past employee member of the union negotiating team, Lumley remained the sole employee member of the union negotiat- ing group. The revival or continuation of any further efforts on the part of the Union to negotiate a contract with Re- spondent was made predictably difficult by Respondent's termination of Lumley, the sole remaining employee nego- tiator.30 It is found that the termination of Lumley on July 19, 1971, was in violation of Section 8(a)(1) and (3) of the Act. It is further found that in April 1971 Supervisor Van Dyke questioned Lumley regarding his union activities and role and advised and warned Lumley of possible loss of employ- ment because of his union activities. This conduct is found to be in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW For the reasons set forth hereinabove in this Decision, Respondent has violated Section 8(a)(1) and (3) of the Act by discharging Thomas Lumley on July 19, 1971. Respon- dent has also violated Section 8(a)(1) of the Act by question- ing Lumley about his union activities, and, upon thereby learning that Lumley had taken the post of employee con- tract negotiator, warning Lumley of the terminal fate of a former employee negotiator. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain remedial action. It will be recommended that Respondent offer Lumley reinstatement to his former or substantially equivalent job with his seniority and other rights and privileges and pay him any wages he may have lost from the date of his dis- charge on July 19, 1971, to the date of the offer of rein- statement, less any intermediate earnings of Lumley. The computation is to be made on a quarterly basis and any sum that may be due is to include interest at 6 percent.3 RECOMMENDED ORDER 32 Thurner Heat Treating Corp., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: 30 Contracts are not infrequently negotiated by international representa- tives of the Union or other paid nonemployee representatives However, in the negotiations, particularly during the negotiation of the first contract, there is frequently an employee committee that participates with the union representative in negotiations as part of the union team. The employee nego- tiators are familiar with the problems and aspirations of employees in the plant and they afford their fellow employees a sense of participation in the negotiations and this strengthens the union position in the plant . Also, when it is necessary for the union representatives to secure ratification of a pro- posed contract by the employees, the task is greatly facilitated if there have been employee negotiators who participated in negotiating the proposed contract With the termination of Lumley, there then remained no employee negotiator on the union team and nowhere in Respondent's employ did there now remain any of the employees who had been at any time, past or present, members of the union negotiating team At least one employee who had been selected as a negotiator in 1971 but who had speedily resigned from such a union position, did continue in Respondent's employ, but, as stated, he had completely abandoned the post of union negotiator. 31 F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716 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 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 THURNER HEAT TREATING CORP. (a) Illegally interrogating or threatening employees with regard to union or concerted activities. (b) Discouraging union activities of any of its employ- ees by discriminatorily terminating Thomas Lumley or any other employee because of union activities or because an employee has assumed an active role in union activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Thomas Lumley immediate reinstatement to his former or substantially equivalent job, without preju- dice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered, as more fully described in this Decision under the section entitled "The Remedy." (b) Post at its Wauwatosa, Wisconsin, plant copies of the attached notice marked "Appendix."33 Copies of said notices, on forms provided by the Regional Director for Region 30, after being signed by Respondent's representa- tive, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by other mate- rial. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all rec- ords necessary to analyze the amount of backpay that may be due to Thomas Lumley, including payroll records, time- cards, social security payment records, and other personnel or financial records. (d) Notify the aforesaid Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith 34 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." 34 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 30, 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 891 After a trial in which all parties participated and were repre- sented by attorneys, it has been found that we have violated the National Labor Relations Act in certain respects. To remedy these violations, we advise you that: WE WILL NOT discriminate against Thomas Lumley or any other employee because of his union activity or because of his position as a negotiator in the Union. WE WILL offer Thomas Lumley reinstatement to his former job or to a substantially equivalent job with his seniority and other rights and privileges. WE WILL pay Thomas Lumley any wages he may have lost from the date of his discharge on July 19, 1971, to the date of the offer of reinstatement, with interest at 6 percent, and less any interim earnings he may have had. WE WILL NOT unlawfully interrogate or threaten Thomas Lumley or any other employee with regard to union activities. WE WILL NOT in any like or related manner interfere with employees in the exercise of their rights guaran- teed in Section 7 of the Act. THURNER HEAT TREATING CORP (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 direct- ed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.