R. G. LeTourneau, Inc.

R G LETOURNEAU, INC. 425 R. G. LeTourneau, Inc. and Allen G. Smith, Jr., Arley Jessie Lewis, Riley W. Wiggs, Oliver Curtis Walker, Arnold W. Schluter, William Leon Wylie, Jimmy D. Hall, Joseph T. Grant, Phillip Chaffin, Jr., Bobby Roosevelt Hunter, Fred F. Davidson, R. J. Mefford, James Ronald Spencer, Ernest Bush, and Jerald R. Jones. Cases 16-CA-4348-1, 16-CA-4348-2, 16-CA-4348-3, 16-CA-4348-5, 16-CA-4348-6, 16-CA-4348-8, 16-CA-4348-12, 16-CA-4348-4, 16-CA-4348-7, 16-CA-4353, 16-CA-4354,16-CA-4376,16-CA-4377,16-CA- 4386, and 16-CA-4390 November 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 1, 1972, Administrative Law Judge' Milton Janus issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs and Respondent filed a memorandum entitled "Cross- Exceptions" in response to the General Counsel's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,2 findings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 The Administrative Law Judge found, and we agree, that Respondent discriminatorily discharged Fred Davidson in violation of Section 8(a)(3) and (1) of the Act. However, he declined to recommend that Davidson be reinstated or made whole for any loss of earnings due to his discharge, because Davidson, in applying for employment with Respondent, stated that he had never been convicted of a felony when in fact he had been convicted of four felonies. The General Counsel has excepted to the failure to apply 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 We find merit in the General Counsel's contention that the Administra- tive Law Judge erred in excluding evidence concerning Respondent's employment of convicted felons, as such evidence is material to the question whether Davidson should be denied reinstatement and backpay because he concealed his prior convictions from Respondent However, we do not view this error as prejudicial, since, as indicated infra, the question can be resolved at the compliance stage of this proceeding 3 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 the traditional reinstatement and backpay remedy to Davidson, leaving to the compliance stage resolution of his qualification for reinstatement. We find merit in this exception. The Administrative Law Judge relied on Southern Airways Company, 124 NLRB 749, and National Packing Company, Inc., 147 NLRB 446, in which the Board denied reinstatement and backpay to discrimi- natees who, in applying for employment, had concealed their criminal records. In those cases, the Board concluded that the discriminatees would never have been hired if they had given truthful informa- tion about their past records. Here, however, we cannot reach such a conclusion on the basis of the record before us. During the hearing, the General Counsel sought to introduce evidence that Respon- dent employed other exconvicts, including at least one who had falsified his application. The Adminis- trative Law Judge declined to permit introduction of such evidence. We are of the opinion that it was improper to deny Davidson reinstatement and backpay without consideration of this evidence, which the General Counsel contends would have tended to show that Respondent would have em- ployed Davidson even if it had known of his criminal record. We note, in addition, that Stahl, who was Respondent's personnel manager when Davidson was hired and when he was discharged, admitted that he had made no effort to check the truth of Davidson's statements on his employment applica- tion during the nearly 8 months that Davidson was employed by Respondent. As we do not now have before us all information relevant to resolution of the matter, we agree with the General Counsel's contention that the question of Davidson's fitness for reinstatement is appropriate for determination at the compliance stage of this case. Accordingly, we shall issue our customary reinstatement and backpay order as to Davidson. However, it is not intended to require Davidson's reinstatement or backpay if it appears in the compliance stage of this proceeding that he is not entitled thereto under Board precedent.5 ORDER Pursuant to Section 10(c) of the National Labor 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 " The Administrative Law Judge, while finding that Respondent violated Sec 8(a)(4) and (1) of the Act by refusing to reinstate William Wylie because he had filed charges with the Board, inadvertently failed to include in his recommended Order and notice a provision directed to the 8(a)(4) aspect of the violation We shall modify the Order and notice to include such a provision 5 Cf Horizon Mobile Homes, inc, 181 NLRB 687, 695, and cases cited therein 200 NLRB No. 66 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, R. G. LeTourneau, Inc., Longview, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified- 1. Add the following as paragraph l(b) and renumber paragraphs 1(b) and (c) as 1(c) and (d), respectively: "(b) Refusing to reinstate, or otherwise discriminat- ing against, employees for filing charges with the National Labor Relations Board." 2. Add the name of Fred F. Davidson to paragraph 2(a) of the recommended Order. 3. Substitute the attached notice for the Adminis- trative Law Judge's. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to form, join, or assist labor unions or to refrain from such activity. WE WILL offer Joseph Grant, Jimmy Hall, William Wylie, and Fred F. Davidson full reinstatement, and we will pay them for the earnings they lost because we wrongfully dis- charged or refused to reinstate them, plus 6- percent interest. WE WILL NOT discharge or discriminate against any of our employees for joining or assisting International Molders and Allied Workers Union, AFL-CIO, or any other union. WE WILL NOT refuse to reinstate, or otherwise discriminate against, employees for filing charges with the National Labor Relations Board. WE WILL NOT question our employees in a coercive manner as to whether they are for or against the Union, or whether they have signed union cards. WE WILL NOT threaten our employees that every time a union campaign starts up, it is necessary to hire new men WE WILL NOT order employees to remove union stickers or insignia from their personal property. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, tojoin or assist International Molders and Allied Work- ers Union, AFL-CIO, or any other labor organi- zation, to bargain collectively through representa- tives of their own choosing , to engage in other concerted activities for their mutual aid or protection, or to refrain from any or all such activities. R. G. LETOURNEAU, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, 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. 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 compli- ance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tele- phone 817-334-2921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: This case was heard at Longview, Texas, on various dates between October 4 and November 11, 1971, pursuant to charges filed by 15 individuals,' and a consolidated complaint issued on July 1, 1971. Unless specifically stated otherwise, all dates and events set out herein occurred in 1971. The complaint alleges that Respondent kept its employ- ees' union activities under surveillance, and interrogated and threatened them, in violation of Section 8(a)(1); discharged 12 employees, and otherwise unlawfully dis- criminated against employees in other ways, in violation of Section 8(a)(3); and refused to reinstate one of the alleged discriminatees because he had filed a charge under the Act, in violation of Section 8(a)(4). At the hearing, I granted the motion of the General Counsel to withdraw the name of Arley Jessie Lewis, a Charging Party and one of the alleged discriminatees, from 1 The charges were filed on the following dates Cases l6-CA-4381-1 through 8 and Case 16-CA-4381 -12 on May 10 , Case 16-CA-4353 on May 13, Case 16-CA-4354 on May 14 , Cases 16-CA3376 and 4377 on June 3, Case 16-CA-4386 on June 11 , and Case 16-CA-4390 on June 15 Amended charges were also filed in Case 16-CA-4348-6 and in Case 16-CA-4390 on June 15 and 30, respectively R Ci. LETOURNEAU, INC. 427 the complaint, and to amend the complaint in other respects, mainly in changing the dates on which certain events were alleged to have occurred.2 Upon the entire record, including my observation of the demeanor of the witnesses, and upon the briefs received from the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation, maintaining an office and plant at Longview, Texas, where it is engaged in the manufacture and sale of bomb casings and heavy construction equipment. During a recent representative 12- month period, Respondent, in the course and conduct of its business operations, sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Texas. Respondent admits, and I find, that it is an employer engaged in commerce within the meamng of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Allied Workers Union, AFL-CIO (referred to hereafter as Molders or the Union), is a labor organization within the meamng of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Background Respondent is engaged in its Longview plant in two separate production processes, the manufacture of bomb casings for the Department of Defense in its metal products division, and the manufacture of earth-moving, construction, and logging equipment in its heavy equip- ment division. From January 1970 through July 1971, its total hourly paid employees gradually rose from about 1,600 to 2,000 employees. In April 1971, when the Union began an organizing campaign to represent the production and maintenance employees in the plant, there were about 1,900 workers employed, almost equally divided between the 2 divisions.3 Production is carried on in five large buildings, known as domes because of their circular shape. Two shifts are employed, a day shift ending at 3:30 p.m., and an evening shift beginning at 4 p.m. One of the principal access roads to the plant area is Nimitz Drive which, in part, is on the plant's private property. Many employees enter onto Nimitz Drive from a public road, Farm to Market No. 1845, and it was at the intersection of Nimitz and 1845 that the Union began its organizing drive the afternoon of April 8, contacting employees entering or leaving the plant and passing out literature and authorization cards. L. B. Beam, the Union's organizer, continued to solicit the employees every working 2 Jerald Jones, one of the Charging Parties who claimed to have been discriminatorily discharged, was not named as a discnmmatee in the complaint 3 Based on figures supplied by Respondent in its exh 6 4 On the first day of the hearing, the General Counsel objected to Respondent's questioning Beam, the Union's representative, as to whether day for the next month. He also had meetings with interested employees at a local motel, the Holiday Inn, daily between April 24 and May 8. In all, about 400 signed authorization cards were obtained. Respondent's officials were immediately informed by its security guards that union solicitation of its employees had begun. Thereafter, according to the General Counsel's theory of the case, Respondent engaged in a massive campaign to thwart the Union's organizing efforts by surveillance, coercive interrogation, threats, and discharg- es. According to Respondent, it took no illegal steps to counter the Union's campaign, limiting itself to holding meetings with its supervisors where its attorneys explained what they could and could not do with regard to employee support of the Union, posting notices on bulletin boards urging employees not to sign authorization cards, holding a general employees' meeting which was addressed by its president, and mailing its employees one commumcation after the president's speech. It also denies that its supervisors engaged in many of the acts alleged to be violative of Section 8(a)(1), and, as to others, that they do not legally amount to coercive action. It also denies that any of the discharges were made for discriminatory reasons. With one exception the testimony on behalf of the General Counsel regarding the alleged surveillance, inter- rogation, and threats comes from the individuals named in the complaint as being discriminatorily discharged. How- ever, certain evidence offered by the General Counsel to prove Respondent's strong union animus was not alleged to be violative of Section 8(a)(1), although it is treated in the General Counsel's brief as if it were conclusive evidence of a massive illegal campaign against the Union. Thus, the General Counsel offered testimony that the plant security guards patrolled the area of the intersection of Nimitz and 1845 (hereafter referred to as the intersec- tion), and on many occasions parked nearby, thus affording them the opportunity of keeping solicitation efforts under surveillance. To counteract this evidence, Respondent introduced testimony that such patrolling, etc., was for the legitimate purpose of noting traffic conditions at major access routes into the plant where tieups could and did occur at shift changing periods. The issue of whether such activity by the security guards constituted surveillance was fully litigated, yet I believe that I should not decide the question since the General Counsel specifically disavowed any intention of claiming that it was violative of the Act.4 Nor does paragraph 7(c) of the complaint, alleging instances of creating the impression of surveillance, refer in any manner to the activities of the security guards. I reach the same conclusion as to another incident involving the security force. During the 2-week period when Beam was holding daily meetings with employees at his room at the Holiday Inn, the Company was involved in changing its contractor for security service from Pinker- his solicitation of employees delayed traffic at the intersection His ground for objecting was as follows Paragraph 7(b) of the complaint alleges certain specific individuals were alleged to have maintained surveillance over employees Union activities in that paragraph there is no allegation as to a security guard maintaining surveillance [P. 38 of transcript ] 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton's to Southwestern Security Service. The latter firm had advertised to hire guards and was interviewing applicants at a room in the Holiday Inn. One or more of the guard officers who had been newly hired by Southwestern used a vehicle displaying the LeTourneau emblem to drive over to the motel, where it was parked near the room it had rented for interviewing applicants. This room was in the same building as the room rented by the Union for its meetings, but on the opposite side. Some of the employees attending the union meetings testified that they saw the security truck parked nearby, but as the evidence was adduced by the General Counsel only to show company knowledge of the union meetings, I find that no violation of Section 8(a)(1) may be based thereon. The General Counsel also relies on a speech which Richard LeTourneau, the president of Respondent, read to the assembled employees of each of the two production divisions on April 30, 1971.5 The speech is unabashedly antiunion, and LeTourneau did not pretend otherwise. He expressed his opposition to the Union and all its works, and appealed to the employees' loyalties to the Company but nowhere threat- ened them with discrimination if they signed authorization cards nor promised them benefits if they did not. It shows that Respondent was strongly opposed to the unionization of its employees, but it does not prove in itself, as the General Counsel suggested at the hearing and in his brief, that Respondent was prepared to go to any length, including discriminatory discharges, to chill its employees' desire for union representation .6 ble cause to believe that a violation of the Act, as charged, had been committed and whether injunctive relief was just and proper under the circumstances. He decided in the affirmative on both points. The standards which a Federal district court uses in determining whether to grant an injunction under Section 10(1) of the Act are not the standards which the Board and I must use in deciding this case-our determination must be based on whether the General Counsel has established by a preponderance of the testimony that Respondent has violated the Act. I have referred to the injunction proceeding then, not because I am bound by the distract court's order, but only to clarify references and comments by all parties through- out this proceeding to the injunction hearing. In cross- examining witnesses for the General Counsel, counsel for Respondent had available to him the affidavits furnished by these witnesses in the General Counsel's investigation of the case, as well as the transcript of their testimony in the injunction proceeding, and he used them extensively in seeking to discredit the testimony of the General Counsel's witnesses in the instant hearing. One other point remains to be made in assessing the district court proceeding. It was heard in 2 days, while the hearing in this proceeding lasted 8 days. Consequently, the record in this case, despite some irrelevant material, is much fuller and more developed than it was in the injunction proceeding, particularly in that it contains the testimony of many of the Company's supervisors who did not testify at the injunction hearing. B. The Federal District Court Proceeding Between the issuance of the complaint and the hearing in this matter, the Regional Director for Region 16 filed a petition for a temporary injunction under Section 10(1) of the Act in the U.S. District Court for the Eastern District of Texas to require the Employer to reinstate 11 of the 12 discharged employees who are alleged as discrinunatees in this proceeding. On September 3, Judge Justice issued a memorandum opinion and order in which he granted the relief asked for. The Employer has appealed the order to the court of appeals, but, after its motion for a stay was rejected, it reinstated those of the 11 alleged discnminatees who wished to return. The order of Judge Justice specifically notes that he was not required to determine, in ruling on the petition for an injunction, whether the employer was in fact guilty of the unfair labor practices charged, since to do so would require a weighing of the evidence and a resolution of any conflicts that might exist, a task within the exclusive province of the Board. The standard he used in deciding to issue the injunction was whether the Regional Director had reasona- 5 The text used by LeTourneau is in evidence as G C Exh 9 The actual speech was also recorded on tape by an official of Respondent, and was played back at the hearing so that I and the parties could check whether the spoken words departed in any significant degree from the written text Except for a few slight word changes, which affected neither the content nor the import of the speech, I find that the spoken words and the written text were identical 6 The General Counsel admitted at the hearing that the paragraph in the complaint alleging that Richard LeTourneau's speech violated Section 8(a)(1) was drawn up before he had read the written text of the speech, and C. Further General Observations 1. The presupposition underlying the complaint and the trial of this case by the General Counsel is that the Respondent had mounted a well-organized scheme to thwart the Union's organizing drive. All of the discharges and each allegedly coercive or threatening remark by a supervisor is viewed as proof of the existence of such a scheme. The conspiratorial theory has a surface reasonableness to it. The Company was opposed to the organization of its employees. Its union animus is exemplified by President LeTourneau's speech of April 30; and although the security guards' patrolling of the intersection during the entire period is not alleged to be surveillance, it can be reasonably inferred that it had an intimidating effect on employees, and that the Company was aware of the effect it created. The assumption that an illegal antiunion campaign existed at the plant must, however, be viewed in perspective. There were about 200 supervisory employees at the plant, yet only a handful are alleged to have engaged in was based on the recollection of employees whom he had interviewed. At the hearing, a former employee, Wilbert Wills, testified that LeTourneau had said in the speech to the heavy equipment division employees, which he had attended, that "signing a card would only cause confusion, hardship among the employees and cause the employees' families to suffer and cause the employees to lose their jobs" I find, after reading the text of the speech and hearing the tape of what LeTourneau actually said, that Wills was mistaken and that LeTourneau did not say that signing a union card would cause hardship to employees and their families and would cause them to lose their lobs R. G. LETOURNEAU, INC. 429 surveillance or to have made remarks violative of Section 8(a)(1). Those remarks too, with few exceptions , are alleged to have been made about the time that an employee was discharged or dust afterwards . No 8(a)(l ) allegation refers to an employee other than one who is also alleged to have been the victim of 8(a)(3) discrimination . One would expect that if there existed an extensive illegal campaign to defeat the Union in a plant of 1,900 employees , it would have manifested itself by inquiries, threats, etc., of more employees than the 12 or 13 involved here. Furthermore, if there is a pattern of illegal discharges it is not self-evident. There were nine allegedly discriminatory discharges in April, and three in May, the months in which Beam was actively engaged in organizing . The total number of discharges throughout the plant was 22 in April and 14 in May. The number discharged in April was the highest for the first 7 months of 1971, but there were 4 successive months in the preceding year when the employee complement was somewhat lower, but where the number of discharges ranged from 19 to 26 per month. The lowest number discharged in any month was 6, in October 1970, yet it was preceded by 22 discharges dust a month before. I do not believe that the discharges of the nine alleged discriminatees in April and the three in May 1970 has disproportionately swollen the total number of dis- charges for those months. 2. Beginning in June 1970, the Company instituted the practice of granting periodic increases . Every 3 or 6 months (depending on what step he was in his grade) an employee would receive an 8-cent-per-hour increase. Perhaps to give the new system an aura of employer magnanimity, they were denominated "merit" increases, and the slip announcing it was headed "CONGRATULA- TIONS! You have been approved for a merit increase." In fact, almost everybody who was eligible got one-98 percent according to one estimate , or anyone who was not in immediate danger of being discharged. The General Counsel, seeking to show that the 12 discnminatees were all highly satisfactory employees , and to contrast it with their abrupt discharges, made much of the fact that all 12 had received such increases when due. I am skeptical about the argument and attach little weight to the fact that an employee received such an increase , even shortly before his discharge, since none of them were said to have been fired for long continued inefficiency , but rather because of some immediate dereliction or poor performance I also attach little weight to the fact that some supervisors had said nice things about some dischargees in the past. Much of this "praise," as the General Counsel chose to characterize it, is on the level of a supervisor writing on a merit increase form , "Doing good work." It strikes me as an inexpensive form of morale building. 3. Finally, there is the issue which was extensively litigated of whether leadmen are supervisors . They are hourly paid, receiving a differential over the highest paid manual employees, act as setup men, relieve employees, and pass on foremen's orders. They also act as foreman when the latter is absent for short periods . They do not attend supervisory meetings. The complaint alleges surveil- lance by one or two leadmen, and some evidence was adduced that a few other leadmen were aware of the union activities of employees in their departments . For reasons which will be made clear in the rest of my Decision, I find it unnecessary to resolve the issue of whether the leadmen were supervisors. D. The Alleged Violations of Section 8(a)(1), (3), and (4) 1. Bobby Hunter was employed in June 1968 and was discharged April 19, 1971. After the institution of the merit raise system he received 8-cent-per-hour increases in September and December 1970 and in March 1971. He could not be eligible for another increase until June. Hunter drove in a car pool and on April 14, as they were coming to work on the evening shift , the car stopped at the intersection and some of the occupants accepted cards from Beam. The next day Hunter handed his signed card to Beam at the same place . There is no testimony that any company supervisor observed them on either occasion. However, Hunter testified that on the following day, Friday, April 16, and again on Monday , April 19, he saw a car parked about 150 yards from where Beam was standing in which two top plant officials , Tarter and Turner, were sitting. Hunter also said that on both days he could make out from his seat in the back of the car a number of individuals standing near dome 5, which he estimated as being 300 yards from the point where Beam was standing and from where he first noticed them. After he reported for work in dome 5, he saw these four individuals , identified as Brackeen, Haden, Hall, and Mouton (foremen and leadmen), standing outside and using two pairs of binoculars to watch Beam at the intersection. At one point in his testimony , Hunter said that the four foremen and leadmen must have been standing on top of the bombs which were stacked in rows, otherwise he could not have seen them and they could not have seen Beam, and anyway he saw their footprints on the bombs . Later in his testimony, however, Hunter said he had actually seen them standing on the bombs, passing the binoculars around and watching Beam , about 300 yards away. In his affidavit to the General Counsel , given I month after these events, Hunter claimed that he had seen six men standing near dome 5 watching Beam . These six were the four already mentioned plus Tarter and Turner, whom he did not place in a car 150 yards from Beam as he did in his testimony. The substance of his affidavit is also the substance of his testimony at the Federal court hearing. Brackeen, one of the four or six whom Hunter said he observed watching Beam, was Hunter's foreman on the evening shift. Brackeen testified that he and supervisors from the day shift regularly meet at the turn of the shifts to count the bombs in the storage area near dome 5 in order to plan production on his shift. He denied that they ever climbed on the bombs or that they had ever used binoculars. It was also his testimony that the intersection where Beam was standing was too far to be seen from the bomb storage area. In the company of counsel for the parties and with their consent I visited the bomb storage area and climbed onto the three rows of bombs. I found it was just barely possible to make out where the intersection was and impossible to see more than the tops of cars as they passed the point 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where Beam had stood. I estimate the distance from dome 5 to the intersection to be at least a half mile and I find it incredible that Hunter, seated in the back of a car, could have seen anything in the bomb storage area from the intersection. I did not use binoculars at the bomb storage area but I strongly suspect that from a distance of a half mile it would still be impossible to distinguish the car occupants, the license numbers, or much of anything else. Of course, it is possible that Brackeen and his companions were using binoculars, but in view of Hunter's shifting stories and explanations, I credit Brackeen and find that supervisors were not trying to watch Beam at the intersection from the bomb storage area. Hunter's credibility was further impaired by the varia- tions between his testimony and his affidavit as to when and where he saw Turner and Tarter watching Beam. It is impossible to reconcile his two versions: either they were seated in a car 150 yards from Beam or they were standing in the bomb storage area watching Beam with binoculars. My own belief is that Hunter fabricated the whole story and he did not see Tarter and Turner at either place. Hunter's testimony as to his own involvement with the Union is that he accepted an authorization card from Beam on April 14 and returned it to him signed on April 15; on April 13 or 14, he first testified, he tried to encourage his coworkers during the dinner break to sign union cards while Brackeen was looking in his direction, but it turned out that this encouragement of a number of workers only involved his telling one fellow employee, Glover, where he could contact Beam. This is despite the fact that Glover rode with Hunter and that they had been passing by Beam for the past few days. Brackeen discharged Hunter on April 19, about 11:30 p.m., shortly before the end of the shift. According to Hunter, he had asked Brackeen about 8:30 p.m. for a raise, which he would not have been eligible for, and Brackeen had replied that he had a merit raise slip for him in his pocket, as well as enough slips to cover everyone in his department, but he wouldn't give it to Hunter because his work was unsatisfactory. Brackeen did not say anything about the Union then, although earlier that evening (as best as I can make out the sequence of events described by Hunter) Brackeen had asked him what their reason was for pushing the Union.7 Also about 8:30, Hunter said that Brackeen had followed him to the restroom after watching him closely, and that he also followed him to the restroom when Hunter went again about 11:30 p.m. When Hunter emerged, Brackeen was waiting for him at the door and told him to come to his office with him. There, according to Hunter, Brackeen said, "I'm going to start with you in 7 At least that is what Hunter testified to on direct examination On cross-examination, though, Hunter admitted that Brackeen had not actually accused him of pushing the Union, but that Hunter assumed that that was the reason why Brackeen was nagging him about his work However, before making that admission Hunter had also admitted that there was nothing in his affidavit or in his testimony at the district court hearing about Brackeen accusing him of pushing for the Union He said he had not said anything about it on either of those occasions because he had not been asked But even that answer was false, since just a few minutes later he admitted that Brackeen had never said anything to him about pushing the Union 8 Although Hunter's testimony about the merit raise slips seems to be extraneous to the issue of why Brackeen discharged him, it reconfirms my order to let the others in the department know that I mean business, and all I know that has signed a union authorization card will be discharged," and then ordered Hunter to leave the plant immediately. Hunter admitted that Brackeen had criticized him on April 13 (before he had taken an authorization card from Beam) and again on April 16 for "dragging around" and had told him on the 16th he was going to discharge him because his performance had fallen off. Hunter had worked for Brackeen about 1-1/2 years, performing one particular operation on the conveyor line which moved the bomb casings through the department. Brackeen testified that he had reprimanded Hunter in October or November 1970, and again in February or March for leaving his station unattended for some 15 or 20 minutes. On another occasion, just 3 or 4 days before his discharge, Brackeen again spoke to Hunter about prod- uction and his failure to hold up his end of the job. Then on April 19, Brackeen again found Hunter's station unattended and ran his machine for about 25 minutes, waiting for him to return. He then went to look for Hunter and found him coming out of the restroom. He asked Hunter to come to his office, and discharged him. Brackeen denied knowing whether Hunter had signed a union card or whether he was active in the Union's campaign. He also specifically denied saying to Hunter that he was going to start with him and would discharge anyone he knew had signed a union card. Brackeen also testified that he did not recall any conversation with Hunter concerning a merit increase for him or that he had such a slip in his pocket but would not give it to him because his work was unsatisfactory.8 In view of my unfavorable impression of Hunter's credibility, what weight can I give to Hunter's testimony that when Brackeen discharged him he said he was doing so to show others in the department that he meant business, and that everyone he knew had signed a union card would be discharged? If Hunter's testimony is true, Brackeen was frankly admitting to him that he was being fired because he had signed a union card. On the other side is Brackeen's specific denial that he had said anything like that to Hunter, or that he even knew that Hunter had signed a union card. There is no evidence tending to prove that Brackeen knew that Hunter had signed a card, since Hunter picked it up one day directly from Beam and returned it to him the next day at the intersection, about a half mile from the point where Brackeen might have observed it. Of course, there is always the possibility that Brackeen learned of it some other way-from an employee informer perhaps-but in the absence of any such evidence I conclude that Hunter's testimony as to what Brackeen impression that nothing Hunter testified to can be trusted Thus since wage increases were almost automatic, given at specified intervals , Hunter was not eligible for a raise in April, and there was no reason why Hunter should ask Brackeen for one at that time. Moreover, the merit raise slips did not originate with the foremen but with the payroll office, so that Brackeen would not have gotten a slip for Hunter from the payroll office until he became eligible for a raise Finally, Hunter's story that he saw 28 or 29 slips in Brackeen's shirt pocket (exactly the number of employees in Brackeen's department) is not believable since Brackeen got slips for individual employees from the office only as they became entitled to the increment periodically R. G. LETOURNEAU, INC. 431 told him at his discharge is unsubstantiated and, I find, not to be believed. I therefore conclude that the allegations of surveillance in the complaint which are based on Hunter's testimony have not been proved, and that it has also not been proved that Hunter was discharged for discriminatory reasons. 2. Phillip Chaffin, Jr., worked in department 282 on the evening shift. He was discharged on April 19 by his foreman, Carroll. Chaffin testified that he drove to work with three other employees, one of whom was Howard King. On April 14, all four accepted authorization cards from Beam at the intersection The next day Chaffin drove. He stopped his car where Beam was standing and handed him the four cards. King pointed out that his foreman, Shaver, and another supervisor, Collins, were sitting in a Volkswagen several hundred feet away facing in their direction. As Chaffin drove onto the parking lot, Shaver and Collins pulled up beside him, got out, and Shaver asked King whose car it was. Chaffin answered that it was his. Collins had previously been Chaffin's foreman, and was also acquainted with the other two riders, both named Corbin. King and the other riders in the car did not testify, nor did Shaver, King's foreman. Collins did, and denied that he was ever in a Volkswagen or other car with Shaver on April 14 or any day thereabouts, or that he had seen Chaffin and his riders talking to Beam, or that he or Shaver had ever asked the occupants of Chaffin's car who owned it. Besides signing an authorization card, as described above, Chaffin also testified on direct examination that a day or two later he openly urged about 20 employees in his department during their lunch break to sign union cards. He had no cards to distribute then or later, but all 20, he said, eventually signed cards.9 Chaffin says he knew this because each of the 20 called him at home after he was discharged to tell him so. His affidavit does not mention his talking to 20 employees in his department urging them to sign cards, and when he was asked at the district court hearing what union activities he had engaged in, he said he had forgotten to mention it. I find it strange that so remarkable a success, getting 20 people to sign cards which he did not even give them (assuming his direct testimony is more accurate than that on redirect) and in having each one of them call him personally to tell him of it at home, should have remained unnoted until this hearing, 6 months after the event, and despite two previous opportunities to mention it. In fact, I find it incredible. If Chaffin fabricated that incident or grossly exaggerated it, as I believe he did, what is one to make of his testimony that Shaver and Collins followed his car, and that Collins had asked him who owned it. His story is uncorroborated, although King and the two Corbins who were with him, were presumably available to testify. It is of course true that Foreman Shaver was not called to testify either, so that there is an absence of corroboration on each side of the question, but since the General Counsel has the burden of proof, it seems to me that his failure to call anyone to support Chaffin's testimony weighs more against him than does the Respondent's failure to corroborate Collins' testimony. With some lingering doubts, I credit Collins as against Chaffin and find that no official of Respondent observed Chaffin hand over signed authorization cards to Beam. Chaffin's job the night he was discharged was to inspect every bomb coming off one of the presses and to send them down the line to the next operation. There was a major breakdown of one of the presses that evening and, according to Chaffin, he went to the restroom dunng the breakdown and was gone from his station 5 or 6 minutes. When he returned, his foreman, Carroll, took him to his office and discharged him, telling him it was for going to the restroom. Chaffin protested, saying that he hadn't even stayed the full 10 minutes allowed him. Chaffin asked to see Collins, his former foreman, and eventually did get to see him. Chaffin told him his version of the events leading up to the discharge. Collins said he would check with Carroll, but then came back and told Chaffin that he agreed with Carroll's decision. Chaffin agreed on cross-examination that there was work to be done even dunng a press breakdown, but said that he was never assigned any when he returned from the restroom. He also admitted that dunng other major breakdowns, surplus bombs might be brought in from elsewhere to be run through the stations not involved in the breakdown, but said that it was not done that shift, at least before he was discharged. According to Carroll, the foreman in Chaffin's depart- ment, the breakdown of one of the presses had started at least an hour before he noticed that Chaffin was 40 to 50 feet from his station. He motioned him back to work. Carroll said there is always a stockpile of bombs which are available to be moved in whenever necessary to bypass the point of breakdown, and that another employee nearby was trying to do Chaffin's job as well as his own during Chaffin's absence. After Chaffin returned to his station, Carroll made a tour of his department, and when he returned to where Chaffin was supposed to be working, he discovered him sitting on a box. Carroll then took Chaffin to his office and discharged him. Collins came by later and asked him about Chaffin's discharge, and Carroll said that Collins agreed with his decision. Here again, it is a question of Respondent's motivation. If company supervisors knew that Chaffin had signed a union card, then Carroll's action (assuming that Chaffin was telling the truth in asserting that he was discharged only for going to the restroom for a few minutes) appears so unreasonable as to justify a finding that it was merely a pretext for illegally discriminating against Chaffin. Howev- er, if Carroll's testimony is to be believed, he caught Chaffin on two occasions within a few minutes of being away from his station when he had work to perform there. I find Carroll's version more credible than Chaffin's. Thus, there was no testimony (with one temporary exception in one department) that there were any pre- scribed break periods for coffee, restroom visits, etc. Employees could leave more or less freely for very short breaks, but for any more extended period they had to 9 On redirect examination Chaffin, however, said that he did have authorization cards and that he gave them to 20 employees A moment later he amended this to about 10 employees 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtain a relief operator, either a leadman or their foreman. I find, as Carroll testified, that the breakdown in his department was into its second hour, rather than that it had just happened, as Chaffin implied, when Carroll found Chaffin away from his station. I assume that during so lengthy a breakdown the Company would make provision to keep its men busy and would have shunted its extra bombs around to keep production moving as much as possible. I therefore believe that there was work for Chaffin to do when Carroll twice found him away from his station, and that he discharged him for that reason. I shall recommend dismissal of the 8(a)(3) allegation regarding Chaffin. 3. Ernest Bush was hired on Friday, April 16, began work on Monday, April 19, and was discharged on April 23, about 2 hours into the shift. Bush testified that he started to pass out union cards the very day he was hired, at the plant's front gate on Estes Parkway, and continued to do so the rest of the week. He also said he went to employees' homes to solicit for the Union and estimated that altogether he passed out about 100 cards. Oddly enough, he did not get any cards from Beam, the Union's organizer on the spot until April 22, and did not himself sign a card until that date.10 The card he signed he got from another employee, Mobley, to whom he returned it. The cards he says he passed out before April 22 at the main gate he had left over from his previous place of employ- ment, East Texas Steel. His testimony about passing out cards is unmentioned in his affidavit and in the district court injunction hearing because, according to him, no one had thought to ask him about it. It is not quite clear where Bush finally decided that he had signed a union card on April 22. At one point it was as he was leaving work, just before he got to the clock alley where the timeclocks are located, but then he testified that it occurred past the clock alley in a field or lot inside the plant fence. At the district court hearing, Bush said he signed the card in the parking lot, which is outside the fence. Whereever it was, there was his foreman, Rowland, observing him from about 50 to 60 feet away. Rowland testified that he normally leaves the plant between 4 and 6 p.m., long after the day shift ends, that he never saw Bush sign a card or pass cards out, and did not know that he had signed one. I cannot believe Bush's strange story about passing out cards at the plant's main gate the very day he was hired and thereafter without first contacting Beam or getting cards from him.ii Here too, as in the cases of Hunter and Chaffin, their unbelievable testimony about the extent of their union activities throws doubt on their testimony as to being observed by company supervisors when they signed their individual cards. I therefore credit Rowland's testimony that he neither saw Bush sign a card nor knew that he had when he discharged him on April 23. The specific facts relating to the discharge can be got through quickly. Bush worked a hand grinder using an air gun, and was classified as a laborer. The job of grinder, according to Rowland, took no more than an hour or two to learn. There were five or six other employees grinding in Rowland's department. Rowland testified that on Friday morning he came out of his office and saw Bush standing at his station, smoking a pipe, not working. He watched him a few minutes, came over to him, and asked him what he was doing. Bush told him he was watching his cousin, another grinder, in order to learn the job. Rowland says he then told him he was looking the wrong way, and took him to his office where he discharged him. Bush testified that Rowland had not told him he was standing around or talking too much or working too slow, but had only said he was going to have to let him go because he thought work was going to pick up but it hadn't. Bush's termination slip, known as a stop card (G.C. Exh. 20), gives as Respondent's reason for his termination: "Standing talking-seems work has slowed down since he has been employed." There is also space on the card for the foreman to indicate whether the employee should be considered for reassignment to his department, and here Rowland entered the following: "Not qualified for job. Does not work." I do not take Rowland's reason for terminating Bush to mean, as the General Counsel argues, that there was less work in Rowland's department, and that the Company should have transferred Bush to another department instead of hiring a new employee in the laborer's classification there. I take Rowland's comment to mean that Bush was discharged for poor work which caused production to slow down in his department. I have credited Rowland's testimony that he did not know that Bush was involved with the Union in any way when he discharged him, and I am also satisfied that Rowland's version of why he discharged Bush is more credible than Bush's. I find therefore that Bush was discharged for reasons unrelated to his union activities. 4 and 5. Graham, foreman of the toolroom department in the metal products division, discharged Joseph Grant on April 23 and Jimmy Hall on April 26. Graham also discharged three other employees with Hall, but they are not alleged to be discriminatees. Grant had been employed since August 1970. He testified that in January 1971, before the organizing campaign began, Graham told him to remove some Machinists Union stickers which were pasted on his toolbox, and that he refused to do so. This is alleged to be an independent violation of Section 8(axl). Graham denied ever having any conversation with Grant about union stickers on his toolbox. Grant also said that early in April while riding with Graham they got into the subject of long hair during a general conversation, and Graham had said that although the Company could not fire an employee because of long hair it could always find some other reason to discharge him. This bit of testimony was presumably adduced to show that Graham or the Company was not beyond engaging in pretextual discharges. As to the immediate circumstances surrounding Grant's discharge on April 23, Grant testified that he accepted two ,ards from Beam at the intersection on April 21 before reporting to work at 4 p.m., signed one then and handed it back to Beam, keeping the other. In his affidavit to the io However, he was not quite certain whether he had previously signed l l So far as the record shows, no other employee openly passed out cards two other cards at any of the plant entrances until Davidson did so about May 4 R. G LETOURNEAU, INC. 433 General Counsel, Grant said he accepted the cards on April 21, signed one at home, and returned it to Beam the next day. He never attended any union meetings, and does not recall seeing any supervisors or security guards when he returned the signed card to Beam. Grant testified, however, that on April 21, the day he gave Beam his signed card (if his testimony rather than his affidavit is correct), Graham asked him while at work if he was for or against the Union. Grant replied that he was for the Union, and Graham said it was for his personal use. The next day, Grant testified, he was taking a prounion position in a discussion with a fellow employee when he saw his leadman, Whitlock, 15 or 20 feet away On April 23, about 11 p.m., Grant testified that Graham came up to where he was working at his lathe and said, "Mr. Grant, we no longer need your services. You have been loafing." Grant testified that he had not been loafing, had never been warned about it before, was keeping up with his production, and had not been producing excessive scrap (another reason stated on his stop card for his discharge). The General Counsel also brought out that Leadman Creger had told Grant 4 months before that he was doing a good job. Graham testified that early in April he instituted specific break periods in his department, telling the 20 or so employees that he would try it out for a few weeks but would discontinue it if it was abused. Graham was away from the plant for 3 working days, April 15-19, and when he returned on Tuesday, April 20, he said he observed the men weren't starting up promptly after the break, so he called them together and in effect discontinued the short- lived practice of giving formal breaks.12 Graham also testified that he had warned Grant before discharge about producing too much scrap, but it was not the reason he fired him. On April 23, he said he had warned him once to get back to his machine and get to work, but then found him about 10:30 p.m. again away from his machine and fired him. Hall had been employed since August 1966 He signed a union card at the solicitation of Jones in his department, had spoken to other employees, and had obtained a few signatures without trying to conceal his activities. About 4 p.m. on April 26, while on the parking lot, he signed up employee Sellers, the brother-in-law of his foreman, Graham, and noticed that Leadman Whitlock was watch- ing them. He and Whitlock had two short discussions about the Union which are not alleged as either unlawful interrogation or surveillance. In the first discussion, about April 16, Hall testified that Whitlock (who was acting foreman in Graham's absence that day and the following Monday) had told him that a supervisor named Swimm had spoken with him earlier that evening; that Swimm was shook up about the Union and had told him that if he saw people getting together to see what they were talking about. In their second discussion, Hall testified that Whitlock had told him in discussing the Union to be careful whom he said anything to. Neither Swimm nor Whitlock were called to testify. As to his discharge, Hall said that Graham came up to him at his machine on April 26 about 10:45 p.m. and said he guessed he was going to have to let him go. Hall asked why and Graham replied that he had been watching him all evening, and that in a 30-minute period he had only ground six drills and that he had also been 7 minutes late coming back from dinner. Hall said he asked Graham if that was the real reason and Graham said it was. Hall said he had never before been criticized, had been praised for his work on one occasion, and had served as a leadman for a month. He also said there were no production quotas in his department, and that other employees, including Graham himself, had returned late from dinner recently. Graham testified that he had never discussed the Union with Hall and did not know whether Hall was engaged in such activities. He also denied that he had any discussion about the Union with his brother-in-law, Sellers, whom Hall had solicited to sign a union card. As to why he fired Hall, Graham said that after Hall returned from dinner around 9 p.m. he had to tell him to start up his machine, and then about 10:30 p.m., after being out of the department for some time, he returned and saw Hall and another employee, Jones, talking on one side of an aisle and two other employees talking on the other side. He said he was tired of everybody standing around talking and away from their machines, so he walked up and fired all four of them. His only reason for discharging Hall was that he wouldn't stay at his machine and work. Besides the other three whom he also fired that evening, Graham said he had fired another employee about 7 months before for the same reason. The next morning, Hall and Jones went to see Stahl, who was then personnel manager for the metal products division, to discuss their discharges. They told him they felt Graham had discharged them because they were both for the Union. Stahl asked them how long they had been with the Company and then, according to Hall, Stahl told them that it seemed like every time a union started to organize the plant things like this happened and he had to hire new men. Stahl then asked them if they would consider returning to work. Jones said he would, and Hall said he would too but not in Graham's department. There was some general discussion about the Union, and Stahl then told them to check back with him after he had had a chance to talk to their supervisors. Hall did call back the next day, but Stahl told him that Graham had recommend- ed against their being rehired and there was nothing he could do about it. At the time of this hearing, Jones was unavailable to testify because of an automobile accident. His discharge on April 26, unlike Hall's, is not alleged to be a violation of Section 8(a)(3). It was stipulated that Jones' testimony in the federal court proceeding would be incorporated in this proceeding. Jones had testified in that proceeding that the employees in Graham's department had been allowed two coffee breaks daily for about 5 months before the practice was discontinued on April 20, but his testimony does not indicate why it was ended then. He also testified that when he and Hall went to see Stahl about their discharge, they 12 Hall, whom Graham fired on April 26, also testified on this matter, corroborating Graham Hall did not say that Graham mentioned union activity in the department as his reason for discontinuing the breaks 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that despite what Graham had told them they felt it was because of the Union. Jones then said that Stahl had told them that any time the Union was mentioned in the plant the Company got shook up and he had to hire new men. Stahl's version is that Hall and Jones came to his office to ask for their final paychecks, and that he told them he didn't have their stop cards yet and would need them before he was able to pay them off. Either Hall or Jones then said that he thought Graham had discharged them for union activities and not for the reasons he had given them. Stahl said he told them he had no idea why they had been discharged and would have to wait until their stop cards came to him. He denied telling them that every time a union started organizing in the plant things like this happened and he had to hire new men. The violations of Section 8(a)(1) alleged in the complaint involving Grant or Hall are: (a) Graham telling Grant to remove union stickers from his toolbox; (b) Graham asking Grant if he was for or against the Union; and (c) Stahl interrogating and threatening Hall about his union activities. The 8(a)(3) violations alleged are the discharges of Grant and Hall and the discontinuance on April 20 of the 10-minute break periods. Unlike the testimony of Hunter, Chaffin, and Bush, discussed above, that of Grant and Hall was coherent, internally consistent, and not inherently improbable. But this is equally true of the testimony of Graham and Stahl. Each side presented a bare-bones recital of events so dissimilar that there are no important points of conver- gence. Graham either asked Grant if he was for or against the Union or he did not; and Stahl either told Hall and Jones that every time a union started up he had to hire new men or he said nothing at all like that. And again, Graham either caught Grant and Hall wasting time away from their machines, or they were both industriously working when Graham arbitrarily fired them. Compounding my difficult task of determining who was telling the truth is the fact that Graham fired four people, including Hall, in one swoop, all allegedly for the same reason, but the General Counsel has proceeded only as to Hall. There may be adequate reasons for doing so which the General Counsel need not reveal to me, but it serves to raise doubts in my mind as to why Graham should fire three other people in order to reach one union adherent. However, taking these and other factors into account, I have decided to credit Grant and Hall on the major points of their testimony as to their discharges. Specifically, I find that Graham asked Grant if he was for or against the Union. Graham may not have known when he asked Grant that question whether he had already signed a union card, but Grant's answer that he was for the Union supplied Graham with information on the identity of at least one union adherent in his department The Company was concerned about the Union's campaign-its presi- dent's speech makes that amply clear-and some of its supervisors, at the least, would consider it their obligation to learn what they could by watchful observance and discreet probings. I consider disingenuous Stahl's testimo- ny that he told Hall and Jones, when they expressed their suspicion that they had been fired because of the Union, that he could not say until he saw their stop cards. Stahl would not be so naive as to believe that if Graham had really discharged them because of the Union he would have put that as his reason on the stop cards. Thus, Stahl's answer indicates to me that he was concealing the possibility that Graham might in fact have been motivated by the Company's opposition to the Union when he fired Hall and Jones. I also credit Hall's testimony, corroborated by Jones, that Stahl told them in effect that an organizing campaign could result in employees being discharged. As to the incident involving union stickers on Grant's toolbox which allegedly occurred in January 1971, I credit Grant and find that Graham told him to remove them. Graham's instruction to do so, although ignored by Grant, was in itself intimidating and a violation of Section 8(a)(1). When Graham called his employees together on April 20 to announce the discontinuance of the 10-minute break periods in his department, he did not attribute it to the advent of the Union. Neither Grant, Hall, or Jones testified that Graham tied the two together, so Graham's explanation that he decided to eliminate the breaks because it took the men a long time to get back to work is undenied. Graham's explanation is a reasonable one and the fact that he discontinued the breaks the very day he returned after his 3-day leave tends to establish that the employees had taken advantage of his absence to extend their breaks. I credit Graham on this point and find no violation of the Act in his announcement and action on April 20. 6. Oliver Walker had been employed as a machine operator in department 294 of the metal products division since February 1970, and was discharged on April 28, 1971. Walker's union activity consisted in picking up an authorization card from Beam at the intersection and signing and returning it to him on April 21; attending a union meeting at the Holiday Inn on April 27; and talking to two fellow employees before work began on April 28. There was a plant security truck facing Beam at the intersection when Walker picked up and returned his card, but there is no other evidence that Walker was observed in this or the rather limited union activity in which he had otherwise engaged. Walker's job at the time of his discharge was operating one of the machines in the department which automatically performed a number of drilling, reaming, and grooving operations on the bombs. The operator rolled a bomb from the conveyor line into his machine, lined it up, and pushed a button which activated the machine to perform its automatic cycle. The operator then stood by through the cycle which took 3-4 minutes to complete, watching to see that nothing went wrong. If it did, he pushed another button which immediately halted the operation. Thus, with a 3-4 minute cycle, the machine could process 15 to 20 bombs per hour. The foreman for the department, Sweatman, estimated that an operator might have to shut down his machine 8 or 10 times per shift during the cycling because it was not operating properly. If the operator was not there to shut the machine off manually when something went wrong, considerable damage could be done to the machine or its attachments. R. G. LETOURNEAU, INC. 435 It is admitted that Walker left his machine unattended while it was running. He said he went to the restroom and then stopped to look at a bulletin board, and that altogether he was away from the machine less than the time it took to complete one cycle . He said it was not uncommon to leave the machine running , that he and other operators had done so in the past with the knowledge and tacit approval of the leadman or foreman. When he left the machine on the occasion of his discharge, he had asked the operator of a nearby machine to watch his for him. According to Sweatman, he had warned Walker before about leaving his machine . Walker had also caused considerable damage on a similar machine by improper operation and, according to Sweatman , Walker frequently asked that maintenance work be done on his machine which Sweatman felt was unnecessary. On April 28, Walker's machine was being repaired between 8 and 9:30 p.m., and as the maintenance men were leaving Sweatman asked them if the machine was operating properly. They said that they had run one bomb through a cycle and that it had operated properly. Sweatman then walked over to the machine, found it running, and observed Walker looking at the bulletin board about 100 feet away Sweatman called a leadman over to run the machine and told him to send Walker to his office when he returned. Sweatman estimated that Walker got to the office about 10 minutes later. Sweatman was preparing a stop card and asked Walker if he knew why he was letting him go. Walker said he didn't, and Sweatman said he told him that, as a former setup man , he should know not to leave a machine unattended while it was running. Walker ex- plained that he had asked the man next to him to watch it for him and Sweatman replied that he could not watch his own machine and Walker's too. Sweatman said Walker had also been goofing off on his job and had not satisfied him since he had been in the department Sweatman denied knowing that Walker had signed a union card or had engaged in other union activities. If Walker's testimony is true, that it was not uncommon for operators of his machine to leave them running unattended with the knowledge of leadmen and foremen, then Sweatman's action in firing Walker seems so arbitrary as to be pretextual. On the other hand, if as Sweatman said, it is a serious breach of the accepted practice in a machine shop to leave a complicated and expensive machine running unattended, then Walker's action in doing so, particularly when it had dust been repaired moments before, seems much less justifiable and to that extent Sweatman's discharging him becomes that much less arbitrary. I am persuaded to credit Sweatman over Walker because there is no evidence that Walker's rather minor activities on behalf of the Union ever came to Sweatman's attention or to that of any other company supervisor. I shall therefore recommend that this allegation of the complaint be dismissed. 7. William Wylie was employed as an inspector in the quality control department of the metal products division from October 1966 to April 28, 1971. The complaint alleges that he was discriminatorily discharged on April 28 and was discriminatorily refused reemployment on or about May 11 because he had filed charges under the Act, in violation of Section 8(a)(3) and (4). According to Wylie, he had taken a union card from a fellow employee on April 13 at work and as he was reading it Leadman Clark looked over his shoulder and asked him if he was going to sign it. Wylie said he didn't know yet. Between April 13 and 28, Wylie said he passed out about 50 union cards to other employees during lunch and after work. 13 He had also attended union meetings at the Holiday Inn and was on the Union's organizing commit- tee. About April 22, Wylie testified, Leadman Clark asked him if he had signed a union card. Wylie admitted he had and also told Clark he had been distributing cards to other employees. On April 26, another leadman in his depart- ment, Crager, asked him if he had enjoyed a recent union meeting. Neither Clark nor Crager testified, but their interrogations of Wylie are not alleged to be violations of Section 8(a)(1). The complaint does allege that Clark by virtue of his position as a leadman was in fact a supervisor. There is no evidence that Martin, Wylie's foreman, nor anyone else whom Respondent admits to be a supervisor, was aware of any of Wylie's activities on behalf of the Union, at least before a copy of his charge was served on Respondent on May 11. If Clark and Crager are supervisors within the meaning of the Act, and if Wylie's uncontradicted testimony on the point is credited, then the knowledge which Clark and Crager acquired as to his union activities is attributable to the Respondent. But even if knowledge of Wylie's union activities is attributed to Respondent, it must yet be shown that the motivation for his termination was his adherence to the Union. Respondent denies that it was, and claims in fact that Wylie voluntarily quit his job rather than transfer to another inspection job which Martin, his foreman, had ordered him to take Wylie testified that he has a back problem and that his doctor has prescribed muscle relaxants for his condition. The inspection job to which Martin wanted to transfer him on April 28 was operating a machine which tested how much pressure the bomb casing could withstand. Wylie had operated this machine on a few occasions , but always under protest. About 2 years before, Martin had assigned Wylie to the Hydrotest. He had gone to the station , worked there about a half hour and then told Martin he wanted to quit his job because of his back problem. Martin talked him out of quitting but sent him back to the station, where he completed the day without incident. In August 1970, Martin again wanted to place Wylie at the Hydrotest station, and again Wylie said he could not do it because of his back problem Martin ordered him to clock out and to get a statement from his doctor indicating what work he could do. Wylie went to his doctor and got a statement from him saying that X-rays and an examination had revealed no abnormalities, and that he responded well to muscle relaxants. Wylie was cleared by the company nurse but Martin then assigned him to another inspection 13 In the Federal court proceeding he testified that he had passed out about 20 cards during the same period 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station. In January or February 1971, Martin again assigned Wylie to the Hydrotest station and Wylie worked there for 2 days. Wylie testified that his back still troubled him and Leadman Crager then took him off the Hydrotest. According to Martin, his regular Hydrotest operator had been on vacation at the time and he rotated a number of his men on the machine, including Wylie, to give them experience on it. According to Martin, one of his inspectors, who operated a Bernel test machine, was called away from the plant on April 28 because of a family emergency. Martin transferred his regular Hydrotest inspector to the Bernel station, thereby requiring someone to operate the Hydrotest. He came over to Wylie and told him to take over that station. Wylie apparently said he wouldn't or couldn't, and Martin again ordered him to. Wylie testified that he then told Martin he didn't want to quit but that Martin was forcing him to. Martin then told him to clock out and prepared a stop card for him.14 The record does not make it clear whether Martin told Wylie that his transfer to the Hydrotest was a temporary one, until the Bernel operator returned, or whether Wylie thought he was being permanently assigned to that station. It is an important point, since it bears on whether Martin deliberately made the assignment of Wylie to the Hydro- test, hoping or expecting him to react unfavorably to it as he had in the past, and thereby perhaps setting him up for discharge Unfortunately, what now appears to be a critical element in the situation was not fully developed at the hearing. There is no need to describe the Hydrotest operation in detail, or to speculate on whether the physical exertion required could affect a weakened back. Wylie himself eventually repudiated his own earlier testimony that it required a dead-weight lift of 100 to 150 pounds. In fact, the physical exertion needed to operate the machine seems to be slight: the operator rolled or twisted the bomb over from the conveyor onto a cradle by inserting two fingers in a bomb hole; the cradle was mechanically lowered into a vat of water, while the operator rocked the bomb once or twice as it was descending, in order to expel the air inside. That is not to deny, of course, that Wylie may have found it uncomfortable or taxing to operate with his back condition, but since his doctor had said that taking muscle relaxants would alleviate his condition, it seems to me that Wylie was not justified in refusing the assignment on April 28, since he had been able to perform the job just a few months before without suffering harm.i5 I therefore find that Wylie quit rather than accept the Hydrotest assignment and that, under the circumstances, his quit did not constitute a constructive discharge. I recommend dismissal of the Section 8(a)(3) allegation regarding Wylie. On May 10, nine charges, including Wylie's, were filed with the Board's Regional Office alleging discriminatory discharges on various dates in April and May. On May 11, Wylie received a copy of his charge in the mail, and the Company received copies of the nine charges filed the day before. Either on May 10 or 11, Wylie phoned Gross, manager for quality control, who was two supervisory levels above Martin, and asked him if he could have his job back. In Wylie's affidavit and in his Federal court testimony, Wylie said he called Gross on or about May 10; in this proceeding he was sure he had called Gross on May 11 because he had his copy of the charge by then. According to Wylie, when he asked Gross if he could have his job back, Gross told him he didn't think so because of the charge he had filed and because of the union problem. According to Gross, he did not know when Wylie called him, that Wylie had filed a charge, and he did not discuss the Union with him. The extent of their conversation, according to Gross, was that Wylie had quit; Wylie asked him again if he could return to work and Gross repeated that Wylie had quit.16 I find that Wylie called Gross the evening of May 11, after receiving his copy of the charge. I do not consider his testimony that he called Gross on May 11 inconsistent with his previous statements that he had called on or about May 10, since he clearly associated the date with what he regarded as a new development regarding his charge; that is, the date on which he was notified that it had been filed. I note that all nine charges were filed on May 10, although they were signed on various dates in April and May. Wylie himself signed his charge on April 30, so that he may not even have known when the charge was forwarded to the Regional Office, presumably by the Union. The receipt by the Company on May 11 of the first nine charges to be filed against it was obviously an event out of the ordinary. I consider it likely that the news would quickly be made known to Respondent's top supervisors, of whom Gross was one. Thus, when Wylie called him that evening at home, Gross would be likely to associate the call with the receipt of the charge, and to refer to it when Wylie asked to be reemployed. I therefore credit Wylie's testimony that Gross told him on May 11 that he didn't think Wylie could have his job back because of the filing of the charge and the union problem, and I find that Respondent thereby violated Section 8(a)(4). 8. Arnold Schluter was hired as a mechanic in May 1968, but in June 1970 was placed on light duty and was transferred to the job of materials coordinator in depart- ment 888, heavy equipment division, under the supervision of Foreman Brooking. He ordered and received incoming materials and parts for the department and kept the necessary records. He had a desk in Brooking's office. Schluter accepted a union authorization card from a fellow employee in his department, Mefford, before work began, on or about April 16. He did not sign or turn it in until he attended a union meeting at the Holiday Inn after work on April 27. However, Schluter testified that in the interval between taking a card for himself and signing it (about 10 days) he passed out cards to other employees soliciting them to sign, both at and away from the plant. This significant item is not mentioned in his affidavit in 14 When Wylie applied for unemployment compensation after his 2 days' work on the Hydrotest, he filed a workman 's compensation claim, termination he wrote on the form as the reason for his termination "I quit apparently alleging that his back condition wasjob-connected or had been because I was assigned to a job that I could not do My foreman told me aggravated by work on the Hydrotest that I had to do it anyhow I had no alternative to quit " 16 Gross was aware of Wylie's termination since he had discussed the 15 After Wylie was terminated, and about 3 months after completing his matter with Martin in Wylie's presence on April 28. R G. LETOURNEAU, INC. 437 which he stated that Mefford was the only one in his department to pass out cards. There is no evidence that his possession or the signing of his card or his solicitation of other employees, if that did occur, came to the attention of any company supervisor. Nonetheless, Schluter's testimony is the basis for a number of Section 8(a)(1) allegations regarding conversa- tions with Foreman Brooking, some of which seem to turn on Brooking knowing that Schluter was a union adherent. The first of these conversations took place in the departmental office on April 26, the day before Schluter signed his own card . Schluter testified that Brooking had said he understood there was a lot of union talk going on and he didn't understand why the employees would want outsiders to act as their go-between, to which Schluter replied that he had worked both union and nonunion and felt that he had done better in a union shop, and that a good union would help both employer and employees. The next day, Schluter testified, Brooking had said to him that he had heard that Schluter had been having outside activities, that he might be forced to let him go, and that he didn't want that to happen. Brooking went on to say that company policy in the past had been that if anyone leaned toward or was for a union they were fired because the Company felt that if anyone was pushing for a union they didn't need them. This conversation too, it will be noted, occurred before Schluter had signed a union card. The next day Brooking told Schluter, according to the latter, "Don't tell them I sent you, but it would be to your benefit if you would tell Don Jones and Falvey Whitehurst that you were not having any union activities." Schluter said he would if he got a chance but never did. Jones and Whitehurst are high officials at the plant. The next day, Brooking discharged Schluter at the end of the shift by handing him a stop card which read "Not doing your job satisfactorily." Schluter said that Brooking had brought up an incident which had happened several months before Schluter recalled the incident that Brooking had referred to but could not remember what Brooking had said to him about it Brooking then took him to the personnel office and on the way back he said he was sorry and would help him any way he could. Brooking denied knowing whether Schluter had engaged in any union activities or had signed a union card. He admitted having a conversation about April 26 with a group of employees including Schluter. Brooking said that he mentioned an incident many years ago involving a local and its International Union in Stockton, California, the point of which was that the members of the local were eventually displaced by other members of the Union. Brooking denied asking why the employees would want an outsider to represent them, or that Schluter had said he preferred a union shop. He admitted that he had spoken to Schluter late in April about his outside activities, but says that it was based on complaints from supervisors in two other departments informing him that Schluter had been wasting time there distracting their employees, and that Brooking had told him it could not be tolerated. Brooking denied telling Schluter during their conversation about "outside activities" that it had been the Company's policy in the past to fire anyone who leaned toward a union, and he also specifically denied telling Schluter to tell Jones and Whitehurst that he was not engaged in union activities. Brooking had spoken to Schluter a number of times about the difficulties he was having in keeping up with his job, which seems to have been primarily clerical. On one occasion, Schluter told Brooking that if he couldn't satisfy him with his work he would like to be transferred, and Brooking had responded that he could not ask another department to take a man who wasn't performing satisfactorily for him. At this time, a written reprimand was placed in Schluter's personnel file. A short time later, however, Schluter was given an increase when his wage interval had passed, because as Brooking explained it, to deny him an increase then would have destroyed his motivation to improve. Brooking said he discharged Schluter on April 29, because he discovered two serious errors that day which Schluter had committed . The first was failing to order steel for the department from the mill and then , after being twice reminded, ordering only half of what was needed. Second, Brooking learned that day that Schluter had failed to write a return merchandise order on some expensive valves which the Company wanted to return to the vendor, after obtaining its permission to do so a month before. Due to the delay, which affected the shelf life of the valves, the vendor refused to accept them resulting in a $2 ,000 loss. Brooking then decided that Schluter was unsuited for the job and had to be discharged. Brooking obtained the concurrence of his superior, Flanagin, and discharged Schluter at the end of the shift. The General Counsel recalled Schluter as a rebuttal witness after the testimony of Brooking was in the record, and, although Schluter testified on another matter, the General Counsel did not ask him to explain or controvert the reasons which Brooking had given for his discharge. I take it then that the General Counsel could not refute Brooking's testimony on the matter. In view of the discrepancies between Schluter's affidavit and his testimony in this proceeding regarding his solicitation of a few employees in the plant area, I find that Schluter's union activity was probably limited to signing a card on April 27. As I pointed out before, there is no evidence that his signing, or whatever else he may have done, came to the attention of any supervisor, except for Schluter's saying that Brooking had told him about the Company's policy with regard to those who lean toward a union and his later advice that Schluter tell two top officials that he was not engaged in any union activities. If I were to credit Schluter on what Brooking had said to him, it would follow that Brooking was discreetly letting Schluter know that the Company knew or suspected, from whatever secret means it had for obtaining such informa- tion, that Schluter was involved with the Union in some way. The issue of whom to believe, Schluter or Brooking, has given me a great deal of trouble , but I have finally decided to credit Brooking. I find it difficult to verbalize my own internal processes on the matter , and therefore leave it simply to that conventional and convenient formula of deciding on the basis of their respective demeanor. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schluter also testified to an alleged instance of surveil- lance on April 29. He had gone to Beam 's room at the Holiday Inn soon after he was discharged, and when he left the room he observed a company supervisor, Burgess, standing on a balcony 200 to 300 feet away looking down toward the room. He went back to tell Beam about it and when he again emerged, Burgess was gone. Schluter testified that the man he identified as Burgess was not wearing eyeglasses. Burgess testified that he always wears glasses , and that the only time he had ever been at the Holiday Inn was about a year before the incident described above. He said that on April 29, he had gone directly home from work to prepare for an out-of-town trip the next day to attend his parents' 50th wedding anniversary. I find that Schluter's identification of the man standing on the balcony at least 200 feet away as Burgess, was incorrect, and I shall recommend dismissal of the Section 8(a)(1) allegation concerning any surveillance by Burgess. It also follows from the fact that I have credited Brooking over Schluter that I also recommend dismissal of the Section 8(a)(3) allegation regarding Schluter. 9. Allen Smith, Jr., worked as a welder in department 284 which was supervised by Foreman Baughn . Smith had been employed about 6 months before he was discharged on April 29. He had received a wage increase on April 5 at which time Baughn had told him he was doing a good job. Baughn had also told him he was doing a good job a few weeks before that. At the hearing, Smith testified that between April 9 and 29 he had encouraged about 10 employees in his department , at their work station and during lunch, to sign union cards . This was despite the fact that he had no cards in his possession . He himself took a union card from Beam on April 18 when he took the card home. He signed it a few days later and gave it to a fellow employee who handed it back to Beam . On Saturday, April 24, he said he had gone to the Holiday Inn to attend a union meeting but there was no one there at the time. He had not attended the meeting on the 17th, although his affidavit given to a Board agent on May 18 states that he had. There is also nothing in his affidavit nor in his testimony at the Federal court hearing about soliciting other employees to sign union cards. Smith testified that work in his department had been falling off the last month or so, and that on one occasion Baughn had told him to make the bombs last, to stay busy but not to work too hard on them. Then , about 2 weeks before he was discharged , Smith said that Baughn had gone around the department and had told the employees that there might be a layoff, and that the only fair way to accomplish it was to select men who weren't doing their job. Smith said he had not noticed that his particular work had decreased . He also denied that he had ever neglected his work or been warned about loafing. Baughn testified that he had had to reprimand Smith a number of times about his work habits, mainly for leaving his work station to talk to other employees. On the day he discharged Smith, Baughn said he saw him early in the shift talking to a forklift driver, and found him about 30 minutes later still engaged in conversation . As Baughn started toward them, Smith went back to his station. A half hour later, Baughn again found him away from his work area talking to another welder. As Baughn started toward them they broke it up, and Smith went back to his station. Baughn then began to keep track of Smith's activities and estimated that in the next 4 hours before the meal break, Smith did no work for about an hour and a half. About 2:30 that afternoon, Baughn decided to discharge Smith. He told him that he had been messing around too much and showed him the notes he had been keeping on him that morning. Baughn denied knowing whether Smith had signed a union card or had engaged in other union activities. Between April and July, when other work was added to his department, Baughn testified that four men had been transferred out because of a lack of work. After July, some new men were added to his force, while two were discharged for poor job performances. There have since been further layoffs and employment is down to about 21 from a high of 34. I find that Smith, like most of the alleged discriminatees, has exaggerated the extent of his union activities . At most, he signed and returned his card secretly, and he may have expressed an interest in the Umon to a few employees without actually soliciting them to sign cards. In any event, there is no evidence that any of this came to the attention of company supervisors. The testimony of Smith and Baughn as to Smith's loafing on April 29 is sharply at variance, but Smith himself admitted that just 2 weeks before, Baughn had told the employees that he would select those who were not doing a goodjob if work in the department continued to slack off. I have taken into account that when work did slack off in Baughn's department, before July, four employees were transferred out rather than being discharged, so that Smith's discharge seems to be abnormal. However, it is not so arbitrary or unreasonable, if Baughn is to be believed, that a presumption has to be made that Smith's discharge was pretextual. Because there is no evidence that Smith 's minimal activity on behalf of the Umon was known to the Company, I shall recommend dismissal of this 8(a)(3) allegation of the complaint. 10. Riley Wiggs worked as an inspector in the metal products division under Foreman Martin. He was dis- charged on May 6, allegedly for failing to comply with a plant safety rule requiring employees to wear side shields on their safety glasses.17 Wiggs testified that after work on April 13, he and another employee picked up authorization cards from Beam at the intersection . They noticed a plant security truck parked about 150 feet away. Between that date and May 6 Wiggs testified that he passed out about 200 cards both inside the plant during lunch breaks and in the restrooms and on the parking lot after work . He said he never tried to hide his distribution activities from manage- ment but could not say that any supervisor observed him while he was so engaged . About April 23, the manager of 11 Side shields are plastic discs which clip on to the ear pieces of the safety glasses for protection of the temples R G. LETOURNEAU, INC. 439 quality control, Gross, came up to him where he was working on a machine line and pointing to a poster put up by the company urging employees not to sign union cards, asked him if he had signed one. Wiggs said he hadn't and didn't care one way or the other.18 On April 24, Wiggs went to a union meeting at the Holiday Inn and signed up on the organizing committee. On May 3 he attended a meeting in Beam's room, and at that time noticed a car with two men in it about 50 feet away. He recognized the car's occupants as Bolton, superintendent of dome 4, anti the other as a supervisor whose name he did not know.1D On May 6, Wiggs was working in a shipping and receiving area, inspecting shipments of material He testified that his foreman, Martin, came up to him and asked him where his side shields were. Wiggs said he didn't have any and Martin then took him to Gross's office. Martin told Gross that he had issued Wiggs nine pair of side shields in a week and a half, and said he didn't need him any more. Gross asked Wiggs what he had to say, and Wiggs answered that there wasn't much to say because if he told Martin that he hadn't issued him nine pair of side shields, it wouldn't make any difference anyway. Gross then told him he was fired. Wiggs asked Martin why he hadn't brought other shipping people in who also were not wearing side shields but Martin did not answer. Wiggs told Gross and Martin that the true reason he was being fired was for union activities. They made no reply to that. Wiggs said that none of the other employees in the shipping and receiving area were wearing side shields Wiggs said that he had never worn side shields until the beginning of the union campaign, about April 13. He picked up a pair voluntarily because he wanted to make sure that he wasn't doing anything wrong However, between that date and May 6 there were occasions on which Wiggs did not wear his side shields. He said that supervisors saw him without side shields during this period and also saw many other employees not wearing them. During this 3-week period, Wiggs testified that he broke a pair of side shields which he had gotten earlier and went to the tool crib for another pair but was told that they had to be issued through a leadman or foreman. He said he went to his leadman, Crager, who said he would get him one but never did.20 Sometime during this period, apparently soon after April 13, when Wiggs said he started wearing side shields, he came to the plant one morning without them. He said he voluntarily told Martin he had forgotten his side shields and wanted to go home to get them. Martin gave him permission to do so. He denied that Martin had sent him home to get them. The Company had a published rule, issued in April 1969, reaffirming its past policy that all employees in the munitions division were to wear protective ear cotton, safety shoes, and proper eye protection It also provided that employees who failed to comply with the rule would receive a verbal warning for the first offense, would be sent 18 Gross denied asking Wiggs if he had signed a union card or ever having a conversation with him in which he asked anything about his signing a card He said that he had not talked to Wiggs at all about union activity since the campaign started at the plant 19 Bolton specifically denied being at the Holiday Inn on May 3 The only times he was ever at the Inn, he said, were on May 25 and 27 when he home for the remainder of the shift without pay for the second offense, and would be discharged the third time. The published rule refers only to "eye protection" which undoubtedly meant safety glasses but does not specifically set out that the wearing of side shields was mandatory. The affidavit which Wiggs gave to the General Counsel during the investigation of this case states that the Company had instituted a policy in the past 2 or 3 years that employees wear safety glasses and side shields. In his testimony, however, Wiggs said that he didn't know how that statement had gotten into the affidavit, but affirmed that the Company enforced its rule on safety glasses although not as to side shields. One of the other alleged discriminatees, Hall, testified, contrary to Wiggs' testimo- ny, that the Company did enforce its rule on the wearing of side shields by first giving a verbal warning, then a three day layoff and then discharge. Hall did not indicate that the rule on side shields was enforced less stringently than the requirement about safety glasses. The General Counsel did not question any other witnesses from the Metal Products Division with respect to the existence or enforce- ment of a rule regarding side shields. According to Martin, Wiggs came to work without his side shields on April 28 and was given a pair by Leadman Crager. The next morning, Wiggs again came to work without side shields, and Martin then instructed him to clock out and go home for them. He clocked out, went home, and returned in about 30 minutes. The following week, on May 6, Martin said that Wiggs again came to work without side shields. Martin asked him where they were and Wiggs said that he had forgotten them. Martin said he reminded Wiggs that it was a company safety policy that the third time without side shields resulted in automatic dismissal. He took Wiggs to Gross's office, prepared a stop card and discharged him. Martin claimed that he enforced the rule on eye protection strictly, and that all the employees under his supervision except Wiggs wore side shields the day he fired him. Martin also testified that he had no knowledge of union activities on the part of Wiggs or whether he had signed a union card. I have previously noted Wiggs' testimony that although he had never worn side shields before, he began to do so in mid-Apnl because he did not want to do anything wrong. I take this to mean that Wiggs recognized there was a requirement that side shields were to be worn. Does it also mean that enforcement of the rule was lax, in the light of his testimony that he had never worn them before the inception of the union campaign and had not always worn them even then, with Martin's knowledge? Besides the predictable testimony of Martin that the rule was strictly enforced, there is also the testimony of Hall, himself a union adherent, as to stnct enforcement. Finally there is Wiggs' puzzling testimony that he voluntarily told Martin one day that he had forgotten his side shields and went home to get them. There is no explanation why he should had lunch there with a representative of a company supplier 20 Davidson, the tool crib attendant, testified that he had told Leadman Crager that Wiggs wanted him to issue him a pair of side shields, and that Crager had told him he had already issued Wiggs nine pairs the last week, and wouldn't give him any more 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have done so unless he knew he was supposed to wear them while on duty I find Martin's story on this point more probable and more credible-that he told Wiggs to punch out and go home for them and thereby suffer the penalty of not being paid for that period. I find, based on the foregoing, that the company policy on eye protection required that side shields be worn, that Wiggs knew it and had failed to conform a number of times even after April 13. I cannot tell whether the Company's policy was enforced more harshly against Wiggs than against others. If it had been, it could have been because of Wiggs' prounion activities. But here again, evidence of company knowledge is not there. Even assuming that Wiggs was not exaggerating the extent of his distribution of authorization cards, there is no evidence that it ever came to the Company's notice. If Gross asked Wiggs, as the latter testified, whether he had signed a union card, Wiggs' answer that he had not furnished Gross with nothing to tie Wiggs in with the Union. I credit Wiggs on this matter, and find that Gross' question whether Wiggs had signed a union card was violative of Section 8(a)(l). I do not, however, find that Wiggs' discharge was for discriminatory reasons and I shall therefore recommend dismissal of that allegation of the complaint. 11. Fred Davidson worked as a tool crib attendant in the tooling department under Foreman West. He is the only 1 of the 12 alleged discriminatees of whose union activities the Company was admittedly aware. Beginning on May 3, a few days before his separation from employment, Davidson openly distributed authorization cards at the close of both the first and second shifts at the two principal intersections of access roads to the plant. Except to mention that Davidson was elected chairman of the union organizing committee in late April, I see no need to relate his earlier efforts on behalf of the Union. There is, however, no evidence that his union adherence had come to the Company's attention before May 3. On Friday, April 30, West came to the tool crib where Davidson was working about an hour after the shift began. He found Davidson pale, gasping, and holding on to his desk.21 West called for someone to replace Davidson in the tool crib and drove him to the first-aid station to have the nurse examine him The nurse took his blood pressure, had him rest awhile, and then told him to go home and to see a doctor. She called his wife to come for him because she did not want him driving home alone. Davidson went out to his car. West, who had been out of the nurse's office, came back and told her that Davidson had told him that a Coke he had been drinking might have been spoiled or drugged. The nurse, now even more concerned, went out to get Davidson, but he had already driven off. Later, she called him at home and told him to go see Dr Wensley, a physician whom the Company used, at the Company's expense. Davidson did so that afternoon and Dr. Wensley, 21 Davidson testified he was not feeling ill, only tired, but I find that West was clearly concerned about his appearance and believed him to be ill 22 The company practice was that checks not delivered on Friday could be picked up at the guard shack over the weekend, but were then returned to the personnel office Monday noon 23 Mrs Davidson apparently also talked to Stahl, the personnel manager, after examining him, told him he needed a more complete examination from his own physician. Davidson then returned to the plant to listen to the speech which the company president gave that afternoon to the assembled employees. Davidson saw West and showed him the slip which Dr. Wensley had given him about needing a complete examination. West also told him he could pick up his paycheck (Friday being payday) at the guard shack. Monday morning, May 3, Davidson arrived at the tool crib ready for work, but West told him he would need a clearance from the nurse before being allowed to return. They then went to see the nurse, who told Davidson he needed a complete examination by his own doctor. Davidson balked at the expense, saying he could not afford the $75 he thought it might cost, but West said, according to Davidson, that he thought Blue Cross would pay for the examination. That afternoon Davidson went to see his own physician, Dr. Moser, who gave him an examination in his office and told him he would need laboratory tests before he could decide about his returning to work. That afternoon, Davidson began passing out union cards openly at the main access routes to the plant. Also that afternoon, Mrs. Davidson phoned Swimm, a supervisor one level above West, to ask him about her husband's paycheck. Swimm told her she would have to get it at the personnel office.22 Neither Swimm nor Mrs. Davidson testified, but West said that Swimm had told him that Mrs. Davidson had responded to this information by saying that she always knew the Company would try to beat her husband out of his last paycheck, and then hung up.23 From Tuesday through Thursday Davidson was engaged in arranging for and taking the laboratory tests prescribed by his doctor and in openly passing out union literature. He did not call the Company during these 3 days. On Thursday afternoon, May 6, Foremen West and Swimm met with officials from industrial relations to discuss Davidson's 3-day absence. They decided to check with the Company's attorney, apparently because of Davidson's open union activities, and he told them to treat Davidson like any other employee who was absent for 3 days without reporting in and to terminate him. No one apparently thought it necessary to call Davidson to find out why he had not come back with a doctor's clearance, so the decision was reached to write out a stop card terminating his employment.24 The next day Davidson called the personnel office and was told he had been terminated. He then went to see Stahl to learn why. Stahl said he had quit but Davidson denied it, telling Stahl that he had been completing his laboratory tests Davidson asked Stahl if he didn't know where he had been, and Stahl replied that he knew where he had been and what he had been doing. Stahl said the Company would need the reports to show to Dr. Wensley before he could do anything further. The following Wednesday, May 12, Davidson brought in about the check Stahl did not say that Mrs Davidson complained about the Company trying to beat her husband out of his last check 24 West testified that he did not believe that Davidson intended to get a physical examination in view of his balking at the cost, or that he intended to return to work in view of his wife's comment to Swimm about the Company trying to beat him out of his last paycheck R. G LETOURNEAU, INC. 441 an EKG tape and other laboratory reports, but no statement from his own physician summarizing the results or stating his conclusions. Stahl asked for the reports to show to the company safety supervisor so that he could discuss them with Dr. Wensley, but Davidson said he would not let them out of his sight. Stahl then asked him to take them to Dr. Wensley. According to Davidson, he said he would if the Company would pay for the visit, and Stahl replied that he would have to find out if it would. According to Stahl, he told Davidson to take the reports to Dr. Wensley but said nothing about who would pay for the visit Davidson and Stahl both agree that Stahl said he would call Davidson between 4 and 5 p.m. that day, but it was Davidson's understanding that Stahl was to let him know if the Company would pay for the visit, while it was Stahl's understanding that Davidson was to go immediate- ly to Dr. Wensley, that the doctor would then let Stahl know what the tests showed, and that Stahl would then call Davidson to let him know whether the Company would reinstate him Stahl said he called Dr. Wensley to tell him that Davidson was coming to see him with the test reports, and that Wensley should let him know what they showed. Davidson did not go to Dr. Wensley's office that afternoon, and at 5 p.m. Wensley phoned Stahl to tell him that Davidson hadn't shown up. Stahl did not phone Davidson. The next morning, Davidson came to see Stahl and asked why he hadn't called him as he had promised. Stahl replied by asking Davidson why he had not gone to see Dr. Wensley as he had said he would. Davidson said there was a "hell of a lack of communication between two English speaking persons," took off his badge and handed it to Stahl, saying that he knew that they weren't going to put him back to work. The Company has a policy of terminating employees who are absent for 3 days without reporting in to explain their absence. It contends that it treated Davidson lust as it had treated others for like cause. But there is an obvious difference between an employee who does not come to work for 3 days nor call in to explain his absence, and an employee who is taken ill while at work and is told that he needs a doctor's clearance to return. For the Company to terminate the latter employee because he has not called in is to equate the employee's nonnotice with nonknowledge on the Company's part The Company in fact knew why Davidson had not come to work-West had even refused to let him return on Monday, May 3-and for the Company to claim that it did not know why he was absent is simply untrue. If the Company had been genuinely interested in learning on May 6 whether Davidson was delaying his return unduly, it had only to call him, since it was they who had forced him to leave on April 30 and on May 3 Nor is it a sufficient answer that the Company recognized no obligation to call absentees, since David- son's absence was caused by the Company's own action and its own requirement that he get a doctor's clearance. 21 Davidson had shown West on April 30 the slip he had gotten from Dr Wensley that he needed a complete physical checkup, and Davidson himself never said anything about quitting In fact, he reported for work on May 3 but West would not permit him to return without a clearance 26 On the other hand, I am certain that he did not do it too openly Since he worked closely with Mefford, and Mefford had also solicited his card, I would presume he operated as Mefford said he himself did Mefford I find therefore that the Company, knowing of David- son's open distribution of union cards, terminated him on May 6 for that reason rather than because he had not kept them informed as to his progress in getting a physician's clearance. I also find that the belief of company officials that Davidson had decided to quit before May 6, even if sincerely held, does not excuse their failing to call him to learn what his intentions were . In any event, their belief that he had quit was based on such shaky inferences that I cannot believe it was sincere.25 Without conceding that it terminated Davidson for discriminatory reasons, the Company also argues that it was prepared to reinstate him on May 12 when he brought in the lab reports if Dr. Wensley would clear him. I find this more persuasive than its previous argument, that Union considerations did not enter into its decision to terminate him on May 6, but still not persuasive enough. I think there was a lack of communication between Stahl and Davidson on May 12, when Davidson showed up with the lab reports, as to when Davidson was to see Dr. Wensley. I do not believe that Stahl was trying to trick Davidson into not going to see the doctor that afternoon, but the situation was unchanged the following morning when Davidson returned to the office to complain that Stahl had not called him. All Stahl had to do then was to send Davidson to Dr. Wensley immediately, thereby resolving the whole problem. Instead, he stood by silently, leaving Davidson with the firm impression that the Company was determined to rid itself of him one way or another. I find that Stahl did not take the single step that would have disabused Davidson of that impression, because in fact he preferred that Davidson's previous termination for discriminatory reasons not be abrogated. I find that the Company thereby brought about Davidson's separation in violation of Section 8(a)(3). 12. James Spencer was discharged on May 21, allegedly for leaving his department without excuse or permission. He had worked in department 888, heavy equipment division, as a welder and setup man, principally as helper to Robert Mefford, a master welder. Their supervisor was E. C. Brooking. Spencer had signed a union card some weeks before his discharge, and had attended a few meetings at the Holiday Inn. At or after one of these meetings, Spencer saw a plant security guard on the grounds of the motel, and at two other meetings he saw a couple of men whom he recognized to be company supervisors, although he could not identify them by name. Beginning about May 10, he passed out cards in domes other than his own during lunch periods without trying to hide his activities.26 Since Spencer could not identify the supervisors whom he said he observed at the Holiday Inn during union meetings, the Company could not call anyone to refute his testimony. It may be that Spencer was telling the truth, but I cannot find, based on his testimony alone, that the testified at one point that he never tried to hide his union activities, but another time testified that it was common practice to hide union activities and that he made it a point to carry on such activities when supervisors were not around If these two seemingly contradictory approaches can be reconciled, it must be that the solicitors for the Union operated warily, preferring to talk to other employees when they believed no supervisor to be close by 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company was aware of Spencer's attendance at these meetings. His foreman, Brooking, specifically denied knowing that Spencer had engaged in any union activity. About 11 a.m. on May 21, Spencer and Mefford left on a three-wheeled cart to deliver some parts they had just fabricated to a department in another dome. According to them, they were gone 5 minutes or so, proceeding directly to their destination, dropping off the parts and returning without stopoffs or side trips. Spencer testified that he did not need permission to leave the department, and had done so in the past He said that Mefford had not told him or asked him to come with him on the cart but that he had done so on his own so that he would know where that department was in case he ever had to go there while Mefford was on vacation. When they returned, Brooking said nothing to them. Then just before quitting time at 3:30 p.m., Brooking told Spencer to come with him to Supervisor Flanagan's office where he was discharged for leaving the department without permission and because he was not putting out the work he was capable of. Mefford testified that it was normal practice for his helper to go along with him when he was delivering parts to a department that the helper was not familiar with. Just after Spencer was discharged, Brooking gave Mefford a written reprimand for having influenced Spencer to leave the department without permission. When Brooking gave it to him, Mefford did not defend against the reprimand by pointing out to Brooking that it was normal practice for his helper to accompany him to other departments, nor did he defend Spencer for going along with him, either of which would seem to be the expected response against an unjustified reprimand or discharge. Instead, all that Mefford said to Brooking about the reprimand was to ask Brooking if he had asked Spencer whether Mefford had influenced him to leave the department. This seems to me to imply that Mefford was denying any responsibility for Spencer's action According to Brooking's version of these events, he gave Mefford permission to use the cart to deliver the parts (the distance between the two departments was about 300 feet), and 10 minutes later he noticed that neither Mefford nor Spencer were at their work stations. After waiting another 10 minutes, he went to the department Mefford had gone to but could not find them. As he was returning to his own department he saw them returning on the cart from another direction. Brooking later questioned Mefford as to how long it had taken him to deliver the parts and why Spencer had gone with him. Mefford told him that he had not asked Spencer to come with him Brooking said he also asked Spencer why he had gone and that Spencer had merely said he wanted to, and that he had no specific reason for going. Brooking then accused him of joyriding and Spencer said, according to Brooking, that that was about it. Brooking then talked the matter over with his superior, and they decided to discharge Spencer for leaving the department without permission. I credit Brooking's account of what led up to Spencer's discharge. Spencer's testimony that it was normal practice for him to accompany Mefford when delivering parts is inconsistent with other testimony of his that he went along with Mefford only to learn where the other department was in case he ever had to go there while Mefford was on vacation. Further, that part of his story sounds improbable because his ever needing to go there again was remote. Finally, Mefford's failure to defend Spencer by pointing out to Brooking why Spencer thought he had to accompa- ny him, indicates that Mefford himself considered Spen- cer's alleged reason to be inadequate. The evidence as to Spencer's union activities does not persuade me that the Company knew of it, and the testimony I have credited as to the reasons for Spencer's discharge leads me to conclude that the allegations of the complaint have not been proven. I shall therefore recom- mend that the allegations relating to Spencer be dismissed. 13. Robert Mefford, who has been mentioned above in connection with Spencer's discharge, was a master welder in department 888, supervised by Brooking . He voluntarily quit the Company's employ some months after the incidents involving him which are alleged as violations in the complaint. The 8(a)(1) allegations relating to him are that on or about May 4 Brooking coerced and interfered with his union activities by telling him in effect that he was a bad influence on the other employees in the department because he was for the Union; and on or about May 17 Brooking created an impression that Mefford's union activities were under surveillance, threatened him with discharge, and urged him to quit because of his union activities. Mefford talked to Beam at the intersection on April 14 and offered to solicit employees in his department. From that date to May 21, Mefford solicited fellow employees in his department and elsewhere to sign union cards, and distributed union literature on two occasions.27 Mefford testified that on May 4 he was in Foreman Brooking's office and during their conversation Brooking told him he was under pressure from higher management because his department was strong for the Union, that Mefford was a bad influence on the employees because he was for the Union, and that he had a poor attitude toward the Company.28 About 2 weeks later, Mefford testified, he went to Brooking's office to ask him why he had not received the merit raise which had come due for him about that time. Brooking told him that he and Flanagan, Brooking's supervisor, had decided that he didn't merit an increase and that their reasons for denying him the raise had been written up and sent up front and when the paper was returned he would give it to Mefford to read . Mefford said he asked Brooking if he was trying to pressure him into quitting, but that Brooking did not answer him, telling him instead about a union strike somewhere . Brooking also said, according to Mefford, that the Company had decided it didn't want a union at the plant. Mefford said that employees still had a right to free speech and assembly, 27 I have previously noted that Mefford said at different times that (a) he union material only when supervisors were not around made no attempt to conceal his activity, but (b) it was common practice to 21 Mefford testified that about 5 of the 12 or 13 employees in his hide the same activities from supervisors and he made it a point to distribute department had signed union cards R. G. LETOURNEAU, INC. 443 and that Brooking then told him that when you choose sides you had to suffer the consequences , and that LeTourneau would take action against anybody to keep the Union out. Mefford then told Brooking that he had gone to the union meetings out of curiosity, but Brooking replied that he had received a lot more credit than that. According to Mefford, Brooking then said that he realized that what he was saying could be used against him. Mefford again asked Brooking if he was trying to pressure him into quitting and that Brooking said it would be a lot more convenient for the Company if he did. The next day, Brooking sent Mefford to see Flanagan. Flanagan gave him a warning card which said that Mefford had a poor attitude and had threatened to quit his job. Mefford said he then told Flanagan that he had neglected to write on the card that it was Brooking who had suggested to him that he quit . Flanagan then asked him when he was quitting and Mefford asked if Flanagan was trying to pressure him into it. Flanagan told him he wanted him to make up his mind, and Mefford said he wanted a little time to look for anotherjob. Flanagan then told him he was satisfied with his work but not with his attitude or that of Spencer's Flanagan did not testify, so that Mefford's story that he was given an official warning allegedly because of his poor attitude and his threat to quit his job stands undenied. Mefford did not say that he had ever indicated to Brooking or Flanagan that he wanted to quit , but I assume from the fact that Flanagan told him he wanted him to make up his mind and that Mefford said he wanted time to look for another job, that Mefford had earlier let it be known that he was thinking of quitting. Mefford did not testify that Flanagan attributed either his poor attitude or his threat to quit to his union activities, although it would follow, if Mefford's testimony is to be credited, that Brooking had made it plain to him the day before that the Company wanted him to quit by denying him a merit increase and by telling him that one who chooses sides must bear the consequences, and that LeTourneau would take action against anybody to keep the union out. Brooking testified that he denied Mefford a merit increase in May because Mefford, while doing some welding had failed to remove the slag in an axle housing where it could have ruined an expensive electric motor if it had not been accidentally discovered in time. Brooking said he told Mefford about it and that Mefford admitted his oversight. Mefford denied however that Brooking had given him any reason for being refused a periodic or "merit" wage increase. Mefford was not asked specifically, since his examination preceded that of Brooking, whether Brooking had ever talked to him about his leaving slag in the axle housing at some time other than when he was told that he was being denied an increase. As for Mefford's testimony that Brooking had told him that he wa,, under pressure from management because his department was strong for the Union, Brooking's version is that he had told Mefford only that he was under pressure because of the appearance of his department and his laxity in letting employees leave early for their lunch break. Brooking also denied saying to Mefford that when an employee chooses sides he must take the consequences, or that LeTourneau would take action against anyone who supported the Union. Brooking also said that Mefford had once in a general conversation told him he had attended a union meeting out of curiosity, but that he had let the subject drop because he knew from the supervisors' meetings that it was illegal to question employees about their attendance at such meetings. My impression of Brooking, based on his testimony and demeanor, was that he was kindly disposed toward employees in his department (an attitude not uniformly shared by LeTourneau supervisors), and somewhat unsure of himself, as evidenced by his doing nothing concerning personnel in his department without first checking with his supervisor, Flanagan . He engaged in conversations with his employees in which unions were discussed, and he drew on his own past experience or assumed knowledge to point out that unions could create problems in a plant, but I believe that he would feel inhibited about going any further than general arguments over the benefits or efficacy of unions. I believe that Mefford had let it be known that he was thinking of quitting but wanted to find another job first, and that Brooking and Flanagan were on him to let them know what he was going to do and when. It is possible that Mefford's leanings toward quitting were due to what he felt was the Company's antiunion attitude, but I believe that Brooking and Flanagan honestly considered that his attitude toward his work was poor, and that was why Flanagan gave him a written warning on May 18. The question of why Mefford was denied an increase in May when he would have normally become entitled to one is not easy to resolve. If it were definite that Mefford had almost ruined an expensive motor because of carelessness in not removing welding slag, then Brooking's refusal to give him a raise would be obviously justified. Mefford said Brooking never told him that it was because of that particular incident, while Brooking said he not only told Mefford about it but that Mefford admitted he was at fault. I have decided to credit Brooking's testimony on this matter, as well as on his denials of Mefford's testimony regarding his being a bad influence because he was for the Union; that if you choose sides you must take the consequences; and that LeTourneau would take action against anyone to keep the Union out. Few credibility resolutions in this case have been easy, but determining what Brooking said both to Schluter and to Mefford has been particularly difficult because he seems to have said more to his employees than other supervisors said to theirs. It is easy to assume that smoke implies fire, and that a supervisor who speaks about a union or unionism at all has on some occasion overstepped the limits of legitimate discussion by uttering some veiled threat or by making some inquiry as to an employee's union sentiments. There is no doubt that it happens frequently enough I am just not satisfied that it happened here, and I shall therefore recommend dismissal of those allegations of the complaint which are based on Mefford's testimony. CONCLUSIONS OF LAW I By discriminatorily terminating Joseph Grant, Jim- my Hall, and Fred Davidson, thereby discouraging 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By discriminatorily refusing to reinstate William Wylie because he had filed charges under the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 3. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by Supervisor Graham interrogating Joseph Grant in a coercive manner if he was for or against the Union and by telling him to remove union stickers from his personal property; by Supervisor Stahl threatening Jimmy Hall and Jerald Jones that a union organizing campaign could result in employee discharges by telling them that every time a union started up he had to hire new men; and by Supervisor Gross interrogating Riley Wiggs in a coercive manner if he had signed a union card. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from other invasions of the employees' Section 7 rights, and to take certain affirmative action. I have found that Respondent illegally discriminated against four employees in violation of Section 8(a)(3) or (4); Joseph Grant, Jimmy Hall, William Wylie, and Fred Davidson. Pursuant to the district court's order, granted on the Regional Director's petition for an injunction under Section 10(1), and after Respondent's motion for a stay was denied, Respondent offered reinstatement to the 11 alleged discriminatees named in the petition.29 Some of these 11 accepted the offer while others declined it. I do not know who did and who did not. The normal procedure for remedying the violations of Section 8(a)(3) and (4) found here would be to direct the Respondent to offer immediate and full reinstatement to all those who were discriminated against, but certain modifications are necessary here. Grant, Hall and Wylie have already been offered reinstate- ment under the Court's order, which remains in effect pending the Board's final disposition. I shall therefore order Respondent to offer these three reinstatement unless they have already declined Respondent's previous offer, pursuant to the order of the district court. In any event, each of them is also entitled to backpay computed on a quarterly basis, as prescribed in F W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum, from the date of the discrimination practiced against him, until a date 5 days after the date on which an offer of unconditional reinstatement was made to him. 29 Fred Davidson is the only I of the 12 alleged discnmmatees in this proceeding who was not included in the Regional Director's petition for an injunction 30 Southern Airways Company, 124 NLRB 749, 752, National Packing Company, Inc, 147 NLRB 446, 458 31 In the event no exceptions are filed as provided by Sec 102 46 of the Davidson falls into a different category. It was stipulated at the hearing that prior to his employment with Respon- dent, he was convicted four times for serious criminal offenses. The facts relating to these convictions are set out in General Counsel's Exhibit 32. It was also stipulated that Davidson's application for employment with the Company was a complete fabrication, designed to conceal his past criminal record. Nevertheless, if there were no Board precedents on the issue of reinstatement and backpay for persons with criminal records, I would have directed that Davidson be at least reinstated, if not also made whole for his loss of earnings, on the ground that the falsification of his employment application and his past criminal record should not forever deprive him of the opportunity to lead a useful, self-supporting life. I consider, however, that I am not free to disregard the few Board precedents which deny reinstatement and backpay to discriminatees with previous criminal records.30 I trust that it is not presumptous of me to suggest that an exception might well be made here. But whether or not the Board chooses to do so, I would also commend to the Company that it condone Davidson's past conduct, in the light of the religious and moral principles and acts of charity which R. G. LeTourneau, its founder, practiced, and for which he is justly remembered. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3i ORDER Respondent, R. G. LeTourneau, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Molders and Allied Workers Union, AFL-CIO, or in any other labor organization of its employees , by discriminatorily discharging or refusing to reinstate any employee , or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Interrogating its employees in a coercive manner as to whether they were for or against the Union or had signed union cards, threatening them that every time a union campaign started up it had to hire new men, and ordering employees to remove union stickers from their personal property. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to loin or assist the above-named labor organization, or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 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 R G. LETOURNEAU, INC. 445 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Joseph Grant , Jimmy Hall, and William Wylie immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of the discrimination practiced against him, all in the manner set forth in the section entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces , in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records , timecards, personnel records and reports, and all other reports necessary to analyze the amount of backpay due, and the right to reinstatement. (d) Post at its plant and office in Longview, Texas, copies of the attached notice marked "Appendix." 32 Copies of the notice, on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.33 IT IS FURTHER RECOMMENDED that the allegations of the complaint regarding any violations not found herein, be dismissed. 32 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 " 33 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 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "