Maple City Stamping Co.

MAPLE CITY STAMPING CO 743 Maple City Stamping Company and International Brotherhood of Firemen and Oilers , Local 8, AFL-CIO and William Charlton Cases 38-CA-1347,38-CA-1421, and 38-CA-1389 December 5, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 14, 1972, Administrative Law Judge' James V Constantine issued the attached Decision in this proceeding Thereafter, Respondent filed excep- tions and a supporting brief and counsel for the General Counsel filed limited exceptions, a statement in support thereof, and a brief in support of the Administrative Law Judge's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,2 findings, and conclusions of the Administrative Law Judge subject to the modifications set forth below 1 We find, in agreement with the Administrative Law Judge, that the Respondent violated Section 8(a)(1) of the Act by (a) engaging in surveillance of union activity of its employees, (b) threatening to close its plant or take other reprisals if its employees chose a union to represent them, and (c) coercively interrogating employees concerning their union membership, sympathies, and activities However, we find merit in the General Counsel's exceptions 3 to the conclusions that Respondent did not violate Section 8(a)(1) of the Act when, about the last week of December 1971, it abolished unsche- duled coffeebreaks, restricted employees to their work areas, and ordered a "speed up" in work It is clear that these changes in working conditions were implemented and enforced by Respondent against known union adherents in reprisal for, and in order to discourage, their union activities and sympathies 2 We agree with, and adopt, the Administrative 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Although the Administrative Law Judge s exclusion of evidence concerning the job classifications and duties of certain of Respondents employees was in error we do not find this error prejudicial in view of the overwhelming evidence summarized hereinafter that Respondent discrimi natorily terminated the aforementioned employees for unlawful reasons rather than as it asserts due to lack of work 3 As it would be cumulative and would not enlarge the scope of the Order we need not pass upon the General Counsel s further exceptions to the failure of the Administrative Law Judge to find additional 8(a)(1) violations by allegedly unlawful interrogations and a threat involving Law Judge's finding that Respondent violated Section 8(a)(4) and (1) by Supervisor Patten's discharge of employee Burress on January 8, 1972 4 We also agree with, and adopt, his findings that after Burress had been reinstated on January 12,5 Respon- dent violated Section 8(a)(3) and (1) by terminating him, on January 17, for unlawful reasons, rather than as Respondent contends because of a "run-in" with a supervisor 3 We agree with, and adopt, the Administrative Law Judge's finding that Respondent's motivating cause for the layoff of Oary on January 13, and Charlton on February 14, was their union activities, rather than absenteeism and failing to call in when absent as asserted by Respondent, and hence Respondent thereby violated Section 8(a)(3) and (1) 4 We also agree with his finding that Respondent violated Section 8(a)(3) and (1) of the Act by laying off Lelm on December 17, 1971, Howell, Hedden, Layton, Leggans, and Burress on January 4, and Miller on January 14 All of these employees engaged in union activity and Respondent had knowledge of the union sympathies of each of them prior to his termination We are persuaded that they were laid off because of their union sympathies and activities rather than for economic reasons The undenied, uncontradicted testimony of various witnesses was that although Respondent had previ- ously experienced periods during which work was slack, it had never laid off employees for this reason Generally, during such prior periods employees were assigned to perform maintenance duties Respondent offered no evidence or explanation of why the alleged lack of work at the time in issue was different from earlier periods when there was a decrease in the amount of available work but no employees were laid off Significantly, there is substantial record testimony that the particular jobs these employees were working on when they were laid off were not complete, that work was not slack, that employees regularly worked overtime after these layoffs, and that part-time employees and employees with less seniority than those laid off were not adversely affected by Respondent's alleged economic cutback In addition, Respondent hired or recalled approxi- several of Respondent s supervisors including Meyer who we find, for the reasons set forth in the attached Decision to be a supervisor within the meaning of the Act However we disavow the Administrative Law Judge s apparent view that absent the implication of reprisals, interrogation by a supervisor of an employee concerning his union activities and sympathies is never coercive 4 Unless otherwise indicated all events occurred in 1972 5 Burress was first laid off on January 4 discharged by Supervisor Patten on January 8 reinstated on January 12 and finally terminated on January 17 The Administrative Law Judge concluded that all of these adverse actions against him were unlawfully motivated but inadvertantly failed to include those occurring on January 4 and 17 in his Conclusions of Law 200 NLRB No 108 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 13 employees between January 3 and March 31 Of the seven employees named above, only Miller and Burress, who was subsequently discriminatorily terminated, were recalled and Respondent offered no explanation of its failure to recall any of the others It is also of probative value that the Administrative Law Judge's findings of conduct by Respondent violative of Section 8(a)(1), which Respondent has not excepted to, included threats by Supervisor Patten on January 8 to lay off some employees because of the union meeting that day and to close the plant before allowing a union to come in Even more telling was Patten's admission to Burress on January 5 that he had orders "to cut back and lay off men that had anything to do with the Union or even was suspicious with having anything to do with the Union [sic] " In view of the foregoing factors and the entire record herein, we are convinced that the primary reason for the layoff of the aforementioned employ- ees was Respondent's union animus ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Maple City Stamping Company, Peoria, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as herein modified 1 Insert the following paragraph and reletter paragraphs 1(c), (d), (e), and (f) as 1(d), (e), (f), and (g) "(c) Changing conditions of employment or other- wise discriminating against employees in reprisal for, and in order to discourage, their union activities and sympathies " 2 Insert the following paragraph and reletter paragraphs 2(d) and (e) as 2(e) and (f) "(d) Restore those conditions of employment herein found to have been unlawfully changed " 3 Substitute the attached notice for the Adminis- trative Law Judge's notice APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice WE WILL NOT discourage membership in International Brotherhood of Firemen and Oilers Local 8, AFL-CIO, or any other labor organiza- tion, by laying off or terminating employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment WE WILL NOT discharge or otherwise discrimi- nate against employees because they have filed, or are believed to have filed, charges under the National Labor Relations Act WE WILL NOT change conditions of employ- ment or otherwise discriminate against employees in reprisals for, and in order to discourage, their union activities and sympathies WE WILL NOT coercively interrogate employees regarding their union membership, sympathies, and activities WE WILL NOT engage in surveillance of union activity by employees WE WILL NOT threaten to close our plant or take other reprisals if our employees choose a union to represent them WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act WE WILL offer Vernon Lelm, Bruce Hedden, L T Howell, Raymond Layton, Ernest Leggans, William Charlton, Clifford Oary, and John Burress each immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent one, without prejudice to the seniority or other rights and privileges enjoyed by each WE WILL compensate the employees mentioned above, and also Robert Miller, for any loss of pay each may have suffered by reason of his layoff or termination, with interest thereon at the rate of 6 percent per annum WE WILL restore the following conditions of employment unscheduled coffeebreaks, lack of unnecessary restrictions of employees to their work area, and the required amount of pro- duction to the level existing prior to its increase All our employees are free to become, remain, or refuse to become or remain members of said Local 8, or any other labor organization MAPLE CITY STAMPING COMPANY (Employer) MAPLE CITY STAMPING CO 745 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, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061, Ext 282 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V CONSTANTINE, Trial Examiner This is a consolidated case consisting of three unfair labor practice cases In Case 38-CA-1347 a charge was filed on January 5, 1972, by International Brotherhood of Firemen and Oilers, Local 8, AFL-CIO, herein called Local 8 or the Union This was amended on February 7, 1972, and a complaint issued on said charge and amended charge against Maple City Stamping Company on February 23, 1972, by the Officer-in-Charge of Region 38, Peoria, Illinois, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board Said complaint alleges that Maple City Stamping, herein called the Company or Respondent, engaged in unfair labor practices violating Section 8(a)(1), (3), and (4) of the National Labor Relations Act, herein called the Act Respondent has answered said complaint admitting some facts contained therein but denying it committed any unfair labor practices Another charge was filed against said Company on February 17, 1972, by William Charlton, an individual, in Case 38-CA-1389 A complaint thereon, alleging that Respondent violated Section 8(a)(1) and (3) of the Act, was issued by said Officer-m-Charge on March 20, 1972 Respondent has answered said complaint admitting some facts but denying it violated the Act On March 20, said Officer-m-Charge consolidated Cases 38-CA-1347 and 1389 for the purpose of trial Still another charge was filed against said Company by said Local 8 on March 17, 1972 Case 38-CA-1421 It was amended on April 21, 1972 A complaint was issued on said charge and amended charge on April 21, 1972, by the Acting Officer-in-Charge of said Region 38 alleging violations of Section 8(a)(1) and (3) of the Act by said Company Respondent answered said complaint admitting some facts but denying it engaged in any unfair labor practices On April 21, 1972, said Acting Officer-in-Charge consolidated Cases 38-CA-1347, 1389, and 1421 for the purpose of trial At the trial the complaint in Case 38-CA-1347 was amended by the General Counsel Pursuant to due notice this consolidated case came on to be heard, and was tried before me, at Peoria, Illinois, on May 16, 17, and 18, 1972 All parties were represented at and participated in the trial, and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and present oral argument Briefs have been received from the General Counsel and the Company Upon the entire record in this consolidated case, and from my observation of the witnesses , I make the following FINDINGS OF FACT I AS TO JURISDICTION Respondent, an Illinois corporation, is engaged at Peoria, Illinois, in manufacturing conveyors and other products for scrap yards and foundries During the year preceding the issuance of the complaint herein, it shipped finished products valued in excess of $50,000 to points outside the State of Illinois I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over this proceeding II THE LABOR ORGANIZATION INVOLVED Local 8 is, and at all times material herein has been, a labor organization as defined in Section 2(5) of the Act III THE ISSUES The issues in this case are (a) whether Respondent unlawfully interrogated its employees concerning their union membership, activities, and desires , (b) whether Respondent threatened to discharge employees if they engaged in union activities , (c) whether Respondent told an employee that he and other employees were being laid off, or discharged, or both, because of their union membership, or activities, or both, (d) whether Respondent engaged in surveillance of the union activities of its employees, (e) whether Respondent discharged or laid off Vernon Lelm, Bruce Hedden, L T Howell, Raymond Layton, Ernest Leggans, William Charlton, Clifford Oary, and Robert Miller because they joined the Union, or engaged in union activities, or both, (f) whether Respon- dent told employees they would lose certain privileges and working conditions would become more onerous if they joined the Union or engaged in union activity , (g) whether Respondent informed employees that it would close its shop if they chose a union for their representative , and (h) whether Respondent discharged John Burress in violation of Section 8(a)(4) of the Act IV THE UNFAIR LABOR PRACTICES A General Counsel's Evidence Jack Yancick is business representative of Local 8 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About December 12, 1971, Vernon Lelm contacted him about organizing Respondent's employees Among other things, Yancick arranged to have Lelm receive between 75 to 100 authorization cards of the Union on or about December 17 On December 21 Lelm telephoned Yancick that Lelm had been fired So Yancick arranged a meeting with Lelm on December 27 Besides Lelm, employees Ernest Leggans, Bruce Redden, Bill Lee, Ray Layton, and Leroy Wilson attended it After discussing organizing Respondent, those present agreed to meet again on December 31 On December 30 Yancick and Lelm placed handwritten cards on about 50 or 60 cars parked around the plant announcing the meeting of December 31 Later that day Yancick and Lelm obtained a signed union authorization card from Bill Charlton At the meeting of December 31, employees Ray Layton, Bruce Hedden, Bill Charlton, L T Howell, Ernie Leggans, Clifford Oary, Bill Lee, Vernon Lelm, and Byron Spencer were present More authoriza- tion cards were distributed to those attending At this meeting it was agreed to meet again on January 8, 1972 On the evening of January 4, 1972, Ray Layton telephoned Yancick that Layton had been laid off As a result Yancick met with some employees on January 5 at the Board's office Among others, the nine employees enumerated in the above section entitled "The Issues" were there, including John Burress Following the meeting Local 8 filed an RC petition with the Board in Case 38-RC-1106 on January 10 (See G C Exh 4 ) Yancick again met with about 25 or 30 employees on January 8 at Papermakers Hall He gave them union badges and stickers Next door is located Villa Tap, a tavern When the meeting concluded, Yancick went to Villa Tap and sat down at a table with John Burress, Bob Miller, Bill Charlton, Dan Stein, and Wayne Revord However, Respondent's supervisor, Ed Patten, came to the table and spoke to those there and asked Yancick why John Burress had filed a charge against Patten Yancick insisted that Burress had not done so Then Patten left Soon he returned and told Yancick that union business should not be conducted in a tavern, that he, Patten, took care of the men at the plant, so that they did not need a union "down there " Soon Patten left Nevertheless he returned again and insisted that Burress had filed a charge against him Thereupon Patten seized Burress by the shoulder and said, "You're fired " At the time Burress was scheduled to return to work for Respondent the following Monday After this Patten left Yet he returned still another time On this occasion he "proceeded to rip and gouge" Yancick as a "lousy" union representative, and accused the latter of "bilking" employees of $5 or $6 a month for dues Continuing, Patten asserted that he could take care of the men "down there and he didn't need a union and that unions were lousy " Additional meetings were held on January 16 and 29 Employees Bill Charlton and John Burress, among others, attended them I Joseph Moore's testimony Joseph Moore is manager of Respondent's conveyor plant, where it manufactures oscillating infeed conveyors, takeaway oscillators , throughing stackers, flat belt stackers, metal sorters, dirt conveyors, steel belt conveyors, rotary dryers and afterburners, power turntable units, and A- frames With the exception of metal sorters, this equipment is custom built Respondent's other plant, which is called the subcontracting or Caterpillar side , is managed by Edward Patten There is no interchange of employees between these two plants According to Moore, he hired Vernon Lelm as a welder on November 22, 1971, to work on some equipment, including a barrel burner for General Electric Co At that time Moore was "under pressure [from General Electric] to get his barrel burner out," because Moore was about 2 months behind on its scheduled completion About December 17 or 18 Moore decided to lay off Lelm Two or three days before this Moore instructed Lelm's foreman to lay off some employees "because of lack of future business " Foreman Walter Bennett selected Lelm because the latter was one of the newest employees and because there was a shortage of welding work At the time Lelm was working on the General Electric job In general, seniority is followed on layoffs Although Lelm was laid off when his work on the General Electric job had ended, he was still working on a barrel burner order Part of the General Electric job was shipped the first week of January, 1972, and the remainder within the next 10 days The decision to lay off employees L T Howell, Bruce Redden, Ray Layton, and Ernest Leggans was made jointly by Moore and Foreman Bennett, shortly after January 1, 1972, for anticipated shortage of work However, at the time Respondent had an unfulfilled order from Wagner Casting Company to make some oscillators and "possibly one" for General Electric In fact Respon- dent was behind schedule on the Wagner order, and Leggans and Layton were still working on it when they were laid off This order was not completed until after Layton and Leggans were laid off, i e, about January 15, 1972 Prior to this Respondent had never laid off anyone in the conveyor plant for lack of work Although Respondent has since January 4, 1972, built more sorters since Howell and Redden were laid off on January 4, 1972, these two employees have not been recalled Yet Howell and Hedden were used in building this equipment in the past Finally, on January 4, 1972, Respondent employed five or six part-time employees, some of them welders, yet they were not laid off In fact three of these part -time welders also had a job with Caterpillar Tractor Co , another Peoria employer Howell and Hedden worked as a team on a sorter, but, as no orders were on hand for this sorter, they were let go together Howell had been employed by Respondent for about 2-1/2 years as the principal worker on sorters, and others working thereon, including Redden, were his helpers When Howell was laid off, employees with less seniority were retained Layton and Leggans, who worked as a team on oscillators, were selected to be laid off because the oscillator business "was also down" and a couple of men MAPLE CITY STAMPING CO 747 senior to them "and probably more qualified" were kept to do the remaining oscillator work A day before Robert Miller was laid off, Moore and Foreman Bennett decided to let him go because "we were running completely out of work for him " He was working on an oscillator at the time Miller was employed for 5 or 6 years by Respondent, could perform several kinds of work, was one of its highest paid men in the shop, and "one of our more senior employees " No previous warning was given to Miller that he would be laid off, which was for a period of 5 days He was then recalled because a "release" had been obtained on "another system which created some more oscillator work" Foreman Bennett made the decision to discharge Clifford Oary, but he discussed it with Moore Oary suffered this fate because he was "absent for four days and [hadn't] called in" However, Oary had been absent without calling in on prior occasions in the past, but had not been warned by Moore that this exposed him to the risk of losing his job by reason thereof Although Respondent effected the foregoing layoffs in its conveyor shop, it nevertheless hired Howard Jayne on January 6, 1972, to perform janitor work Jayne had been out sick for a long time Also, Respondent on January 3, 1972, hired Darwin Baker This was the day before several of the employees mentioned above were terminated Baker was later laid off also Further, some new orders had been received (See G C Exh 2), and overtime had been worked in the conveyor shop since the layoffs mentioned above (See G C Exh 3) According to Moore, he first learned of union activity at the plant by way of "rumors" in the latter part of November, 1971 These "rumors" were mentioned to Moore by Foreman Bennett Moore also described the duties of Dorwm Meyer, who the General Counsel contends is a supervisor under the Act Although Meyer is in charge of research and development, he also is paid at the same rate as Walter Bennett, who is admittedly a supervisor, i e, $5 25 an hour In addition, Meyer directs employees when he's "building a special machine, like a pilot model," can recommend that his employee helpers be transferred or discharged, and trams employees who build such special machines Fur- ther, when Foreman Bennett is absent or on vacation, Meyer "takes his place " Finally, Moore testified that he did consider absenteeism in ascertaining whom to lay off, and that he did not plan to recall Leggans or Layton if he could "get anyone else who was better than they were " 2 Edward C Patten's testimony Patten is Respondent's superintendent in charge of production He made the decision to lay off John Burress This action became necessary because Patten about December 1, 1971, had been instructed by President Mandel of Respondent to "cut the labor force," and Patten chose Burress, on January 4, 1971, inasmuch as Burress was a temporary employee Yet Burress was hired on December 8, 1971, to work on installing a monorail as a plant improvement Patten considered Burress as a temporary employee because the latter was hired "for a specific job, certain length of time " Nevertheless the monorail had been but one-third completed on January 4 when Burress was terminated, and overtime was being worked In fact that monorail had not been completed on May 16, 1972, when Patten testified in this case, but "quite a bit" had been done since Burress was laid off At the same time Patten laid off Robert Means because Means worked part-time for Respondent but held a regular job with Caterpillar Tractor Co, another employer in Peoria On January 12, 1972, Patten recalled Burress to work on roll bars, and also took Means back to work Then on January 17, 1971, Patten again laid off Burress because Burress "had a little run-in with the second shift foreman " Patten first learned of union activity at the plant in December, 1971, and before Burress was laid off 3 Dorwin Meyer's testimony Meyer's status is an issue in the case, the General Counsel contending he is a supervisor under the Act A summary of his testimony ensues Meyer described himself as "research and development," being compensated at $5 25 an hour, the same as Foreman Bennett He makes experimental machinery and helps develop machines pertaining to new equipment He has employee "helpers working under" him when making this new equipment He "instructs them shows them what has to be done [and] tells them what has to be done [he] tells them the proper way to do it or if it's not done right that they have to redo it " Although Meyer gives men their assignments he checks with Joe Moore, his immediate supervisor, before making them In addition, when Foreman Bennett is absent, Meyer "takes over his fob " Meyer also engaged in production work "two or three times a week" under Foreman Bennett Like Foreman Bennett, Meyer is paid for overtime and punches a timeclock Meyer also testified that Hedden and Howell were working for him on an afterburner, an "unusual machine a special job," when they were laid off He described them as very good workers 4 The termination of John Burress Burress originally was a foreman for Respondent in about 1969 and left sometime in 1971 Burress was called to work by Respondent's Superintendent Patten "the last time" about December 8, 1971, to put up a monorail, after he applied to Patten for work On December 31, 1971, he signed an authorization card for the Union (See G C Exh 5) which he received from employee L T Howell At about 3 30 p m on Monday, January 3, 1972, Burress reported to work on the second shift The monorail on which he was working was between one-third and one-half completed John Williamson was his helper thereon The next day, January 4, Patten telephoned the home of Burress and told Mrs Burress (Burress being out at the tune) that Burress had been laid off When Burress learned of this shortly thereafter he telephoned Patten to ascertain the cause thereof Patten replied that he had orders to cut back on expenses Insisting that "we had our work planned for that day" and the following day, Burress expressed 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surprise at the decision But Patten merely commented that he had to take orders "just like anybody else " So Burress went to the plant on January 5 and spoke to Patten The latter explained that he had orders "to cut back and lay off men that had anything to do with the Union or even was suspicious with having anything to do with the Union " When Burress protested, "Why me," Patten replied that Burress could "come back to work Monday " Although Burress protested that he should not "suffer for the four days," Patten expressed an inability to do anything about it because he "was taking Orders from" President Mandel Burress was once approached by Bill Charlton about the Union but Burress induced Charlton to sign a union authorization card Burress also met with employees at the union hall for the same purpose Further, Burress attended the union meeting of January 8, 1972, at Papermakers Hall and on the same day saw Supervisor Patten at the Villa Tap Tavern next door While sitting at a table with others at said tavern , Patten came thereto and asked why Burress had filed a charge against him Burress denied this and was supported by Yancick, who was present Then Patten left only to return in a few moments This time Patten wanted to know why Burress was after him When Burress denied this Patten claimed that Patten's "name was implicated " But Burress insisted it was not Then Patten left a second time but soon returned On this occasion he grabbed Burress by the arm and, after some argument, told Burress that "you're fired " The following Wednesday Patten telephoned Burress to return to work, but this time on roll bars rather than the monorail Shortly thereafter Burress went back to work While at work Burress was told by President Mandel that the Company was behind on both the roll bars and the monorail and that a lawsuit was threatened because the monorail had not been finished On January 14, 1972, while Burress was working on roll bars, Foreman Johnson told him that Patten wanted to know if Burress was willing to go outside to load some steel tubing Shortly thereafter Burress answered Patten in the affirmative So Burress worked outside for about an hour and a half in below zero weather in light clothes When he finished loading Burress returned into the plant and stood for a short period under a heater to get warm At about 7 30 am he told Foreman Johnson that he, Burress, became sick from working in the extreme cold and, therefore, was going home As Johnson had no objection, Burress punched out and went home Burress called on Monday, January 17, to report he would be out because he had not yet recovered About an hour later Patten telephoned to Burress that Burress had been laid off because "we're cutting back " Although Burress commented that this was "kind of funny" to him, Patten replied that he had orders "to cut back" and that President Mandel had told Patten that Burress "was behind with the roll bars " 5 The termination of Vernon Lelm Lelm began working for Respondent on November 22, 1971, as a welder When he applied for employment about 2 weeks before then, Plant Manager Moore told him that Lelm would probably receive a raise within 2 weeks after starting work and that "most of the men got to work as many hours as they wanted " Actually he worked overtime an hour each day and 5 hours on Saturdays About a week after November 22 Lelm talked to employees about being organized by a union He had also engaged in union activity at his former employer's plant, the Rendispos Corporation About December 10 Lelm spoke to Yancick of Local 8 As a result Lelm picked up about 75 or 100 union authorization cards on December 17 Many of these he distributed at Respondent 's plant a few days later Some were returned to him with signatures Lelm also signed one on December 20 (See G C Exh 6) On December 20 Lelm, in the shop, invited employees to attend a union meeting that evening During the day "Foreman" Dorwin Meyer asked Lelm whether Lelm had a card Lelm replied that he did That meeting took place as scheduled on December 20 Lelm distributed some union authorization cards to those who attended On December 21 Foreman Bennett laid off Lelm because "Work's getting kind of slow " At the time Lelm was working on a barrel burner which had not yet been completed Lelm continued his union activity following his termination, and also attended union meetings on Decem- ber 31, 1971, and January 8, 16, and 29, 1972 In addition he solicited employees to attend these union meetings While Lelm was at the above meeting of January 8 he noticed Respondent's Superintendent Ed Patten nearby 6 The termination of Ernest Leggans Leggans was hired by Respondent in March or April 1971 to work under Foreman Walter Bennett Not only did he receive compliments about his work but also was granted a raise in pay about a month later In early December 1971, he obtained 15 to 20 union authorization cards from Lelm and solicited employees in the shop to sign such cards He also signed one of these cards himself on December 20 (See G C Exh 7) In addition he attended some union meetings and solicited employees to come to them by passing out Yancick's card (See G C Exh 8) About a week before January 4, 1972, "Foreman" Dorwin Meyer asked Leggans, "Have you got any more of those petitions you want signed?" Leggans replied in the affirmative and offered one to Meyer, but the latter refused to accept or sign it On January 4, 1972, Foreman Walter Bennett laid off Leggans with the statement "work's kind of slack and I'm going to have to let you off " Leggans replied, "It seems funny to me you hired a guy yesterday and you're laying us off to-day " Continuing, Leggans told Bennett, "I kind of expected it anyway " He meant thereby that "they had known that we were trying to get a union by this time, and that's what I meant when I said I was expecting it " As a matter of fact work was not slack on January 4 because there were four oscillators being worked on in the shop and there was work being performed as well on the other machines About a week before Leggans was laid off Respondent abolished coffeebreaks at nonscheduled break periods and forbade employees to talk to each other Prior to this MAPLE CITY STAMPING CO 749 employees were free to "go get coffee anytime we wanted it and bring it back to our work," and freely talked in the shop 7 The testimony of William Lee Lee has been a setup man, under the supervision of Foreman Bennett, for about 5 years In early December 1971, Lelm interested Lee in joining Local 8 On December 23 Lee signed a union authorization card presented to him by Leggans and Layton In addition Lee succeeded in inducing other employees to sign such cards In late December 1971, "Supervisor" Dorwin Meyer noticed that L T Howell handed Lee a card Thereupon Meyer asked Lee if Lee had a card which Meyer could sign On January 8 Lee went to the Villa Tap Tavern Soon Supervisor Patten engaged him in conversation there Shortly thereafter Lee Joined Howell, Layton, and Leggans at a table Lee also noticed that, after Howell and Hedden were laid off, their work on an afterburner was completed by employees George Chaney and Thomas Green Yet Chaney and Green did not normally work on afterburners After Leggans and Layton were laid off, their work on the oscillator was finished by Bob Miller And, after Howell was laid off, Respondent manufactured other machines which he was capable of working on Further, during the period of the layoffs described herein Lee worked overtime Lee also testified that since said layoffs Respondent has required employees to work faster, so that fewer employees are doing more work This was not the "practice" prior to such time Finally, he commented that, in the past, no layoffs had been effected although work at times had been slack In the past when work was slow employees were assigned to odd jobs, including yard cleaning, and were not laid off But he insisted that work was not slack when Howell, Hedden, Layton, and Leggans were laid off, or since then, so that "there is a shortage of men in the shop " 8 The termination of L T Howell In August 1969, Howell began working for Respondent as an assembler and welder His "supervisors" were Walter Bennett and Dorwm Meyer Although his initial pay was $2 75 an hour he received raises, so that when he was laid off his hourly rate was $3 85 At the request of Hedden, an employee, Howell signed a union authorization card on December 23, 1971 (See G C Exh 10) Howell also solicited seven or eight employees in the shop to join Local 8 On December 31 he attended a union meeting where he received union cards and literature These he passed out to employees at the plant On January 4, 1972, Supervisor Joe Moore laid off Howell on the ground that work was slack At the time Howell was "especially assigned" to build small oscillators and had a helper named Leroy Wilson However, Howell also worked on other types of machines and did some yard work On January 4 Howell was building an afterburner but it had not yet been completed Also, on that day there was other work available in the shop which Howell was capable of doing On January 5 Moore gave a letter of recommendation to Howell (See G C Exh 9) In addition, President Mandel in late November 1971 assured Howell that there was "plenty of work you're not going to leave Maple City " At no time in the past had Respondent laid off employees for lack of work, according to Howell, even when work was slack In such instances employees were assigned to do yard work On January 8, 1972, Howell saw supervisor Ed Patten at the Villa Tap Tavern at the time of a union meeting there Howell also attended two union meetings after January 8 In February Howell called Moore to ascertain when he would be recalled to work Moore replied it would be around March 15 So Howell called him again on March 15 but this time Moore said "there was not any work in the shop " 9 The termination of Bruce Hedden On June 21, 1971, Hedden began working for Respon- dent as a laborer Later he welded and worked on hydraulic brakes under Foremen Bennett and Dorwin Meyer In November 1971, he received a raise in pay In early December 1971, Vernon Lelm interested Hedden in unionism Then on December 21 Hedden signed a union authorization card which is erroneously dated 12/22/71 (See G C Exh 11) In addition Lelm gave him five or six additional cards to distribute to other employees Hedden succeeded in inducing L T Howell to sign one of these cards On December 21 Hedden attended a union meeting where he received more cards to pass out In addition Hedden talked to six or seven employees, both in and out of the shop, favorably about the Union Not long before January 4, 1972, "Foreman" Dorwin Meyer asked Hedden if the latter "was part of this umon business that was going on " Hedden avoided answering this inquiry Later that day Hedden heard Meyer ask employee Ernest Leggans if Leggans had any more of those union cards Leggans "wanted signed " Another union meeting was held on December 31 Hedden went to it While there he received additional union cards and some union leaflets to hand to employees While working on a reburner on January 4, 1972, Heddens was laid off by Foreman Walter Bennett because "they were going to start cutting back work was getting slack" Yet the reburner had not only not been completed at the time, but a new employee, Darwin Baker, had been hired on January 3 to work as a laborer Further, some oscillators, some conveyors, and some stackers were still under construction, and a new order for another tumbler burner was on hand, on said January 4 On January 8 Hedden saw Supervisor Ed Patten "at" a meeting of the Union held that day at the Villa Tap Tavern 10 The termination of Raymond Layton Layton was hired as a welder by Respondent in September 1970 to work under Foreman Bennett In mid- December, 1971, Lelm talked to Layton about "organizing a union " Although Layton then called the I A M to ask its assistance, he was unable to contact anyone there But 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lelm was able to reach Local 8 and arrange a meeting with it Layton and other employees attended that meeting on December 21 At it Layton signed a union authorization card (See G C Exh 12) He also distributed 15 or 20 similar cards to other employees at work Layton also attended another union meeting not long after that, i e , on December 31, where he received more cards to distribute During the week of December 20, 1971, Layton mentioned to "Supervisors" Walter Bennett and Dorwin Meyer that "I think a union would probably straighten this place out " But they walked away without commenting on this On another occasion in December, 1971, Layton overheard employee Jack Lee say to "Supervisor" Dorwin Meyer, "You are going to have trouble with that guy [pointing at Vernon Lelm] He's the one that helped organize the Union at Rendispos " Meyer replied, "We won't have any trouble out of him We'll fire him There's no way we will ever hold still for a union down here " About August 1971, Supervisor Moore told Layton that he should come to work more regularly because "we're behind on orders We need you to come back to work now We've got plenty of work here to do" Foreman Bennett later in substance repeated this statement to Layton Beginning about December 21, 1971, Layton discerned a change in the attitude of supervisors towards him Thus there "was pinching down on coffee breaks and talking to other employees in the shop and staying in your own working area and not moving around in the shop so much " In fact Supervisor Ed Patten once followed Layton when Layton left his department to obtain a bolt for a lift truck This had never happened before, although Layton often left his area to obtain needed materials Another example occurred when Foreman Bennett warned Layton, who had been talking to employee Bobby Walker, to "do more work and quit running your mouth so much " This was unusual as Bennett had never done this before On January 4, 1972, Foreman Bennett laid off Layton with the comment, "I was afraid this was going to come to a head before Christmas " Ernest Leggans was laid off at the same time also Bennett told both Leggans and Layton that they were laid off because "work is slack right now " When Leggans protested that a new man had been hired only the day before, Bennett replied that he thought "we're going to get him too " Notwithstanding that Layton wanted to leave his tools there "if you think we will be called back pretty soon," Bennett insisted that Layton take them "along with you " Further, Layton testified that there remained work to be done by him on four oscillators and that, also, other machines had not been complete when he was laid off A few days before being laid off Layton was assigned to train employee Raymond Meyer to work on oscillators Further, in the past when work was slow, Respondent, instead of laying off anyone, gave them tasks to perform in the yard or in shop maintenance work On January 8, 1972, Layton saw Supervisor Ed Patten "at" a meeting held by Local 8 at Papermakers Hall 11 The termination of Clifford Oary Oary started working for Respondent on May 17, 1966, as a laborer On December 31, 1971, he signed a union authorization card in the shop (See G C Exh 13 ) He also attended union meetings on December 16 and 31, 1971, and January 8 and 16, 1972, and sought to interest five or six employees in the plant in the Union He also wore a union button on his cap On January 13, 1972, Oary returned to work after being out for 3 days with influenza. As soon as Oary reported to work, Supervisor Walt Bennett told him that he was being laid off for missing 3 days without calling in At the time Oary was wearing a union button on his cap In the past Oary had never called in when he was absent, although he was out "lots of tunes," and yet he was not warned, criticized, reprimanded, or disciplined therefor Oary's absences, including the last one, resulted from emphysema and sinus trouble, and Respondent not only knew this but tolerated it In fact Oary had never been warned about his absenteeism Further testifying, Oary asserted that, notwithstanding that work in the past sometimes became slack, no one was laid off as a result Rather than lay off anyone, the Company "cut back on overtime" in these circumstances This occurred "practically every fall " In fact Oary not only worked overtime the week that Howell, Hedden, Layton, and Leggans were laid off, but he stated there was other work to be done during that period Oary also testified that Dorwm Meyer directed his work at times, showing Oary how to do certain work and also assigning Oary to specific jobs 12 The termination of William Charlton Charlton was hired by Respondent on November 4, 1969, at a rate of $3 per hour, to work under Foreman Arman Roan Thereafter he received some raises so that his rate was $3 90 an hour when he was terminated on February 16, 1972 During a conversation with Dorwin Meyer, on about November 17 or 18, 1971, Charlton mentioned that Vernon Lelm had "started the union" at the plant of Rendispos, another employer Meyer replied that if Lehn started any of that s-t that Lelm would no longer be with Respon- dent On January 6, 1972 , Charlton signed a union authoriza- tion card at the shop at the request of Bill Lee (See G C Exh 14), who also gave Charlton four other similar cards to distribute He also attended a union meeting on December 31, 1971, talked unionism to some employees at the plant, invited about 20 of them to said meeting, and passed out about 8 cards in the shop About January 6, 1972, while Charlton was conversing with employee Revord about the Union, Supervisor Arman Roan interrupted them by saying "the Union wouldn't do [them] a damn bit of good " About January 10, 1972, while Charlton was again talking to employee Wayne Revord in the shop, Supervisor Arman Roan pointed to union stickers on the outside of Charlton's lunch basket and asked "what junk that was " Charlton answered that it was not junk but union stickers When Roan asked Charlton what he expected to gain "by this Union," Charlton replied "better pay " On January 8, 1972, Charlton attended a union meeting MAPLE CITY STAMPING CO 751 at Papermakers Hall When it ended he went to the Villa Tap, a tavern next door At Villa Tap he heard Supervisor Patten talk to employees as recited above Patten also asked Charlton what he was doing there and "how come [Charlton] was at the Union meeting" At this meeting Charlton was given union stickers and buttons, some of which he used for himself and others of which he passed out to fellow employees About January 17, 1972, Respon- dent's Vice President Shghton asked about a union button displayed on Charlton's hat And a week after that President Mandel noticed this button on the hat and commented, "humph " I do not regard Mandel's reaction as illegal, and I therefore find it not to contravene the Act Charlton also attended union meetings held on January 16 and 29, both held at the Papermakers Hall On February 14, 1972, Charlton felt sick and obtained permission from Foreman Arman Roan to go home early Nevertheless he remained at work But as he was not well on February 16 he did not work that day and called in to report this to supervisor Patten However, Patten replied it made no difference because Charlton had been "laid off or fired" because of a "lot of absenteeism " Later, when Charlton called Patten again, the latter informed Charlton that he had been fired for "a lot of absenteeism and lack of production " Then Charlton went in on February 16 to pick up his check from Vice President Shghton This time Shghton also said that Charlton had been dismissed for absenteeism but for 8 days less of absenteeism in the past 6 weeks than Patten had mentioned But documentary evidence intro- duced by the General Counsel discloses that "well over 20 employees [in the same division] who were absent six days during a two month period and [were] not discharged" (See GC Exh 21-43) Charlton had been warned in January 1971, by Slighton that Charlton risked being fired because of his absentee- ism After that both Foreman Roan and Supervisor Patten in January 1972 told him that Charlton would suffer "three days off" if he did not "get in a full work week" But Charlton never was given 3 days off for his absences thereafter nor had ever been warned about them except as above recited Porter McCants, another employee, has not been working for the last month because of illness but Respondent has done nothing about this, nor has McCants ever been laid off for lack of work Employee Lyle LeCompte testified that about a month after January 4, 1972, many machines were built in the shop An employee LeRoy Wilson testified that, in February 1972, Foreman Bennett asked him if he wanted to work on some machines but that ultimately another employee, Raymond Myers, Jr, was assigned to perform this work Yet Myers had never before worked on these machines In fact Wilson claimed there was work to do in the shop on the day when L T Howell, Bruce Hedden, Ray Layton, and Ernest Leggans were laid off, and that their work was completed by other employees Actually Wilson enjoyed more overtime in 1972 than in 1971 Finally, Wilson insisted that in the past no one was laid off when there was no production work to do, but, instead, in such instances employees worked in the yard or "straight- ened the place " 13 The termination of Robert Miller This employee was hired by Respondent about 8 years ago to work under Foreman Bennett Although his starting wage was $1 50 an hour it reached $4 by a series of increases He was the senior employee in the oscillator shop On January 8, 1972, Miller attended a union meeting When it ended he visited the Villa Tap Tavern next door where he heard Supervisor Patten make the statements described above In addition Miller heard Patten tell employee Revord that Revord did not need a "mediator" as Patten was Revord's mediator Shortly thereafter Miller volunteered to Patten, while they were talking about the Union, that Miller had signed a union authonzation card Before coming to this union meeting Miller signed an authorization card on January 3, 1972 (See G C Exh 15 ) During the week preceding his layoff Miller worked "regular" overtime, 1 e, 1 hour a day over his usual 8 On January 14, 1972, Foreman Bennett laid off Miller, but when Miller asked why, Bennett replied that he did not know Thereupon Miller asked Plant Manager Moore for the reason behind his layoff Moore replied that it resulted from a lack of work When Miller protested he had seniority over others still working, Moore stated that President Mandel "couldn't have a $400 an hour man sweeping the floor with a broom " Even at that, Miller had not completed his tasks on the oscillator on which he was working Miller was later recalled to work At that time he resumed working on the very same oscillators from which he was taken off He was recalled by a message relayed to him by employee Byron Spencer, transmitted by Supervi- sor Moore, that Miller was to return to his old job However, when Miller telephoned Moore to confirm this, Moore claimed he knew nothing about Miller's coming back to work That evening Miller told Spencer about Moore's lack of knowledge So Spencer promised to look into it On Monday, January 17, 1972, Miller reported to work but Spencer told him that Moore had said nothing could be done until President Mandel got back from out of town because it was Mandel's idea to release Miller However, Spencer that evening told Miller to come to work the next day Miller on January 18 reported to Dorwm Meyer, who assigned him to work on the A-frame In the past Respondent cut out overtime when work was slow but did not resort to laying off employees, according to Miller Hence Miller had never before been laid off for lack of work Robert Means, a supervisor for Respondent, testified that in early January 1972 no lack of work existed in the shop and that Respondent was not then ahead of production On the question of lack of work, the General Counsel introduced documentary evidence indicating that overtime was worked in January, February, March, and April 1972 (See G C Exh 16), and that new employees were hired during this period or old ones were called back (See G C Exh 18) 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14 Section 8(a)(1) violations Some of the foregoing testimony discloses conduct alleged to violate Section 8(a)(1) of the Act Additional testimony on this branch of the case follows below Employee Wayne Revord was present at the Villa Tap when Supervisor Patten fired Burress Later that day Patten told Revord that "if this stuff was to continue he [Patten] would discontinue the use of the phone" by employees In addition, Patten asked Revord what the latter thought of the Union and what it would do for Revord I find this is not coercive and, therefore, does not contravene Section 8(a)(1) On another occasion Supervisor Arman Roan asked Revord and employee Charlton, "What's that junk on [the table] there?" When Revord replied that it was union stickers, Roan retorted, "What good is that going to do for your" I find this does not violate Section 8(a)(1) of the Act In February, 1972, according to Revord, Respondent required employees to call in when they were absent, contrary to past practices In fact Revord was suspended for 3 days for not so calling in, although such suspensions had not been imposed , nor had he been criticized, reprimanded, or warned, prior to this when he did not call in Since this is a management prerogative its exercise does not contravene the Act On January 8, 1972, Morgan, then an employee of Respondent, heard Supervisor Ed Patten tell a group of employees, one of whom was Morgan, at the Villa Tap Tavern that "there was going to be some lay offs because of the union meeting and [Patten ] would probably end up quitting the second shift altogether and [Patten] would close the plant down before he would let a union in the plant down there " Patten added that he would stop letting employees use his telephone at the plant Employee Danny Still testified corroborating Morgan In the middle of January, 1972, employee Lyle Le- Compte overheard Supervisor Patten tell other employees that Patten was "supposed to lay off anybody that looks suspicious " I find this does not violate the Act In the last week of December, 1971, employee LeRoy Wilson heard "Foreman" Dorwin Meyer ask employee Lee if he had a union authorization card and, if so, Meyer would like to sign one Wilson also claimed that after about January 4, 1972, Respondent required employees to work "faster than what we usually do " Robert G Means worked for Respondent as a supervisor until early January, 1972, when he was laid off Shortly before this Superintendent Patten telephoned him that Means was being laid off because of a shortage of work and that Means had been selected for such action because he worked part time Within a day Means telephoned Patten to protest that Means was a full-time employee Patten replied that since Means also worked for Caterpillar Tractor Company Patten "figured" that Means "was part- time " Then Means personally called on Patten at the latter's office At the close of the conversation Means asked "if the Union deal didn't have something to do with my layoff," and Patten replied, "Yes, it had a great bearing on it [Manager ] Slighton didn't want a union in the shop " Continuing, Patten mentioned that the "main source" leading to the layoff of Means was "due to the fact that [SlightonI thought that [Means ] was instigating [a union] " When Means was called back about a week later he was demoted to doing welding work Actually , Means was not active in the Union at the time None of this constitutes a violation of the Act as Means was a supervisor at the time However, it demonstrates a strong antipathy to unions, and I so find While Means was a supervisor, Patten, in November, 1971, told him that Respondent did not want a union in the shop because it was too small a shop and a union would "dust create problems," and that President Mandel not only did not want a union in the shop but would "close the doors before he would see it " Means passed on this information to the majority of the 19 or 20 employees working under him The statement to Means, a supervisor, does not violate the Act However, his repeating it to the employees does amount to a violation of the Act Employee Ricky Birdsell on January 8, 1972, attended the union meeting at Papermakers Hall When it ended he went next door to the Villa Tap Tavern , where he observed Superintendent Patten talking to some employees Among other things, Patten told them, "I've been nice to you guys and I'm going to start cracking down " Some time before this Birdsell noticed a union leaflet on the windshield of Patten's car informing employees of the above meeting of January 8 B Respondent's Defense An abridgment of the evidence adduced on behalf of the Respondent discloses the following, as set forth below William Charlton's employee work record for the period from June 5, 1971, to February 19, 1972, is delineated in his timecards (See Resp Exh 2) Charlton's supervisor, day shift Foreman Arman Roan, insisted that "generally" Charlton's attendance was "poor " Accordingly, Charlton was discharged for "missing too much work absentee- ism " The decision to dismiss Charlton was made by Slighton, Patten, and Roan And Roan had previously "warned Mr Charlton concerning his absenteeism" once or twice about a month and a half or two before this Respondent's foreman on the "conveyor side" is Walter Bennett He serves under Plant Manager Joseph Moore One of those working under Bennett was Clifford Oary Some time in January, 1972, Oary was terminated for "being absent [3 consecutive days ] without calling in High absenteeism Lack of work was also the main reason," according to Bennett Prior to this Bennett had "once or twice" warned Oary "about not calling in " But Oary had been an employee of Respondent for "quite some time" and "was absent many, many times over that period of time " Bennett further testified that he had supervised Dorwin Meyer and has on occasion assigned Meyer to load or unload trucks by means of a forklift But Meyer does not supervise anyone although employees help him in his research and development work Such helpers, however, are assigned to Meyer by Bennett "on a frequent basis " Bennett also supervises welder assemblers , including Layton and Leggans About 2 or 3 weeks before Layton MAPLE CITY STAMPING CO 753 and Leggans were laid off Bennett warned each of them about "standing around " Kenneth F Slighton is manager of Respondent's subcontract department He supervises Superintendent Patten, among others About February 15, 1972, Slighton reviewed the work records of William Charlton for the preceding 6-week period after he found Charlton missing from work When Shghton then inquired of Patten whether Charlton had come in, Patten answered that "Charlton's off again to-day as usual " Thereupon Slighton prepared a document analyzing Charlton's work record from Decem- ber 26, 1971, to February 5, 1972 (See Resp Exh 1), although he had never prepared such an instrument before this in discharging employees About a year before Charlton was discharged Shghton talked to Charlton about the latter's absenteeism But this was the only time he discussed this subject with Charlton However, Slighton also, about February 15, 1972, handed Respondent's Exhibit 1 to Patten and directed Patten to "either straighten [Charlton] out or let's get rid of him" But Patten replied that he thought that Charlton could not be straightened out Nevertheless Patten took up the problem with Foreman Arman Roan Then Roan, in the presence of Patten, communicated to Slighton, "I think we should get rid of" Charlton So Charlton was discharged because of a "more or less standing rule that three days [of absence] in one month is enough to warrant such discharge from the Company" However, employees Melvin Mosier and Joe Shockley, who missed "quite a bit of time" in I month, were not discharged for absenteeism Respondent's superintendent of its subcontracting shop is Edward Patten Among others, he supervised William Charlton, a welder On "numerous occasions" Patten spoke to Charlton about the latter's absenteeism, the first occurring about 2 weeks before Charlton's discharge Patten again told Charlton on February 16, 1972, that Shghton had recommended that Charlton be discharged for absenteeism and that Patten fully agreed Thereupon Patten discharged Charlton Previously Patten had dis- cussed Charlton's absenteeism with Foreman Roan Patten further testified that, after employee Burress was recalled following a layoff, Burress was discharged for having a "run-in" with James Johnson, the foreman of Burress Patten derived this information from what Johnson told him, and, when Johnson recommended said discharge, Patten concurred therein Continuing his testi- mony, Patten asserted that he patronized the Villa Tap Tavern "almost every week-end " And he admitted going there on January 8, 1972 Joseph Moore is Respondent's plant manager of its conveyor side On January 4, 1972, according to him, employees L T Howell, Bruce Hedden, Raymond Layton, and Ernest Leggans were laid off Howell and Hedden worked as one team and Leggans and Layton as another team Immediately prior to said January 4, work for Wagner Casting Company and General Electric Company "was in the conveyor fab shop to be performed" (See Resp Exhs 3 and 5 ) Some of this work was incomplete, so that on the afterburner 4 or 5 hours work plus "cleaning and painting after that" remained to be done But such cleaning and painting customarily was performed by Mike Vesko and not by any of those laid off In addition, a rotary dryer had not been completed by said January 4, there being about 1 more day's work to be done thereon And on the Wagner Casting job about 120 hours of work remained to finish it But Howell, Hedden, Layton, and Leggans were working on these machines And work remained to be done on an order from I Bork & Sons On January 4, 1972, there were employees in the plant who were senior to Hedden and Leggans, according to Moore However, seniority was not the only criteria used in laying off employees In fact some who were retained on January 4 had less seniority than those laid off Moore also asserted that in January 1972 Respondent received some "new business "(See G C Exh 2 ) Respondent's president and owner is Harold R Mandel A conspectus of his testimony follows About the first of December 1971, he told Plant Manager Joseph Moore that the accountants had reviewed operations "with reference to the giving of Christmas bonuses," but that the figures they gave him "showed that the prognosis of our immediate future was very bad and that during this last quarter of 1971 we hadn't received any new business whatsoever " Accordingly, he announced to Moore that "drastic layoffs" had become necessary But he admon- ished Moore to "take it very easy about laying off people right before Christmas [but] to hit it hard as he could after the holidays, because it didn't look like we were going to have any new business " C Concluding Findings and Discussion In arriving at the ultimate findings narrated below, I have been guided by and applied certain elementary principles of law which may succinctly be restated here The first is that the burden of proof is upon the General Counsel to establish the allegations of the complaint, and that no onus is imposed on Respondent to disprove those allegations Hawkins v N L R B, 358 F 2d 281 , 283-284 (C A 7) Secondly, the General Counsel must prove his case by affirmative evidence and reasonable inferences drawn therefrom, and that rejecting or not crediting any portion of Respondent's evidence does not constitute affirmative evidence capable of sustaining the General Counsel's case Council of Bagel and Bialy Bakeries, 175 NLRB 902, 903 , N L R B v Berggren & Sons, Inc, 406 F 2d 239, 246 (C A 8) "The mere disbelief of testimony establishes nothing " N L R B v Joseph Antell, Inc, 358 F 2d 880, 883 (CA 1) "Negative evidence above cannot supply the proof which must underlie the [Board's ] order if it is to stand " Portable Electric Tools v N L R B, 309 F 2d 423, 426 (C A 7), N L R B v Audio Industries, Inc, 313 F 2d 858, 863 (C A 7) I do not regard N L R B v Walter Manufacturing Co, 369 U S 404, 408, as requiring a contrary result In addition, I find that because of the smallness of Respondent's plant, it is reasonable to infer and I do so that Respondent was aware of the union activity occurring at its plant and had knowledge as to who engaged in such conduct N L R B v Abingdon Nursing Center, 80 LRRM 3232 (C A 7, 1972), Angwell Curtain Company, Inc v 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N L R B, 192 F 2d 899, 903, (C A 7), American Grinding & Machine Co, 150 NLRB 1357, 1358 At this point it is desirable to mention that I am conscious of, and have followed, the principle that union membership or activity neither confers immunity, nor is a guarantee, against being terminated for cause (Hawkins v NLRB, 358 F 2d 281, 283-284 (CA 7), Whitcraft Houseboat Division, 195 NLRB No 189), and that the Board may not "substitute its judgment for the Respon- dent's business judgment" in dismissing an employee Thurston Motor Lines, Inc, 149 NLRB 1368, Portable Electric Tools v N L R B, 309 F 2d 423, 426 (C A 7) Notwithstanding the foregoing principles, I find as a fact that under "all the circumstances surrounding [the termi- nations described herein], particularly [their precipitate nature and] the timing" indicate that such terminations were "a power display to discourage union activity" (Rosen Sanitary Co, 154 NLRB 1185, 1187 fn 2) Such termina- tions demonstrate "a hostile reaction to information [Respondent] had just received concerning incipient union organizational activity of its employees and was calculated to chill such activity [Respondent] would not have instituted any reduction in force but for such activity, and its [termination] of employees thereby discriminated against all of them as a group " Lloyd's Ornamental Fabricators, Inc, 197 NLRB No 71 See D H Farms Co, 197 NLRB No 47 I do not regard Tarrant Manufacturing Company, 196 NLRB No 119, as requiring a different result Accordingly, I find that all of said terminations were motivated by discriminatory motives and that the reasons advanced by the Respondent to justify them are pretexts to disguise the real motive I proceed briefly to discuss each termination separately to show that it infringed upon the protections safeguarded by the Act 1 The termination of John Burress In arriving at the findings made in this subsection I have credited the General Counsel's evidence and have not credited Respondent's evidence inconsistent therewith I find that Burress was laid off on January 4, 1972, because of his union activity and that the reason given him, i e , that a layoff was necessary, even if true, was a pretext For I find that Respondent selected union adherents for such layoff Thus I credit Burress that Patten laid off Burress because Patten had been instructed to "lay off men that had anything to do with the Union or even was suspicious with having anything to do with the Union" even though a layoff had been ordered In addition, again crediting Burress, I find that Patten fired him on January 8, 1972, for allegedly filing a charge against Patten Such conduct transgresses Section 8(a)(4) of the Act N L R B v Scrivner, 40 U S, Law Week 4203 The fact, which I find, that Burress had not filed such a charge does not require a different result Although Respondent recalled Burress on January 12, 1972, Burress was again laid off on January 17 assertedly for lack of work and because he had a run-in with his foreman, Johnson I find the real reason was his union activity and that such lack of work and run-in, even if true, was a pretext, because (a) Burress was abruptly laid off without prior notice or announcement This has probative value to show union animus Harper & Row, 196 NLRB No 50 (b) Some work still remained to be done, so that the layoff was not immediately necessary Further, Respon- dent did not lay off according to seniority In addition, Respondent had not laid off employees in the past when work was slow but assigned them to yard work or maintenance work (c) Although I have not placed much reliance thereon, I find that the abruptness of the layoff indicates that his union activity was known to Respondent Texas Industries, Inc, 156 NLRB 423, 425-526 (d) Direct evidence of a purpose to discriminate is rarely disclosed in such cases, especially as employers acquire some sophistication about the rights of employees under the Act But absence of direct evidence is not fatal, as such purpose may be established by circumstantial evidence Corrie Corporation v NLRB, 375 F 2d 149,152 (C A 4) "Nowadays it is usually a case of more subtlety " "NLRB v Neuhoff Bros, 375 F 2d 372, 374 (C A 5) Consequently it is not unusual for an employer to state that he is terminating an employee for cause when in fact antiumon motives prompted such action On this aspect of the case the record is devoid of evidence that Respondent sought to obtain the version of Burress about said run-in Failure to ask an employee's account of an incident resulting in disciplining him is evidence of a discriminatory intent Service Technology Corporation, 196 NLRB No 160, Norfolk Tallow Co Inc, 154 NLRB 1052, 1059 (e) The abruptness of the layoff, especially when made contemporaneously with a union organizing campaign, has probative value It is true that such abruptness does not prevent a layoff from being genuinely effected for cause Cf Miller Electric Mfg Co v N L KB, 265 F 2d 225, 226-227 (C A 7), Whttcraft Houseboat Division, 195 NLRB No 189 But it may be evaluated along with other factors in ascertaining the actual reason behind the layoff Cf NLRB v Symons Mfg Co, 328 F 2d 835, 837 (C A 7) (f) Respondent entertained union animus and committed unfair labor practices as found elsewhere herein (g) Finally, in order to find that a discriminatory intent induced the layoff of Burress it is not necessary to find that his union activity be the only motivation responsible for his termination His layoff will be found to be unlawful if his union activity was a substantial ground therefor notwith- standing that a valid ground also existed for it Sinclair Glass Company v NLRB, 465 F2 d 209 (C A 7, 1972), N L R B v Symons Manufacturing Co, 328 F 2d 835, 837 (C A 7), N L R B v Whttin Machine Works, 204 F 2d 883, 885 (C A 1) I expressly find that the union activity of Burress was a substantial-but not necessarily the only-ground for releasing him 2 The termination of Vernon Lelm In my opinion Lelm was laid off for engaging in union activity and the reason given for his lay off, r e, "work's getting kind of slow," is a pretext I so find In making said finding I have credited the pertinent evidence of the General Counsel and have not credited Respondent's evidence not consonant therewith MAPLE CITY STAMPING CO 755 In general the reasons above assigned for finding that Burress was discrumnatorily laid off on January 17, 1972, are applicable to Lelm's layoff, and I so find But there are additional reasons why I find that Lelm's layoff was discriminatory They are delineated below (a) If, as President Mandel testified, he told Moore not to lay off anyone "right before Christmas," then it is difficult to understand why Lelm was disnussed practically on Christmas eve, i e , December 21, 1971 It is reasonable to infer-and I do so-that Lelm's being an outstanding union advocate contributed materially to the decision not only to lay him off, but also to do so abruptly Thus the fact that he was singled out to be released just before Christmas, in spite of Mandel's apparent concern not to lay off anyone before Christmas, convinces me, and I find, that, under all the circumstances, including the abruptness of the action taken without prior notice or announcement, and the contemporaneousness of the union movement, Lelm was released because he was a vigorous protagonist of the Union (b) Lelm was an active leader in espousing the Union at the plant This alone does not immunize or shield him from being laid off for legitimate reasons N L R B v McGahey, 233 F 2d 406, 413 (C A 5), Hawkins v NLRB , 358 F 2d 281, 283-284 (C A 7) Nevertheless the elimination of a leading union advocate tends to discourage other employ- ees from manifesting interest in a union's organizational campaign Lelm's dismissal "could constitute an effective weapon against the union , since it occurred during the height of the organizational campaign in which he played a key role Obviously the [release] of a leading union advocate is a most effective method of undermining a union organizational effort" N L RB v Longhorn Trans- fer Service, 346 F 2d 1003, 1006 (C A 5) This factor may be evaluated in arriving at the actual reason inspiring a termination N L R B v Georgia Rug Mz14 308 F 2d 89, 91 (C A 5), Maphis Chapman Corp v N L R B, 368 F 2d 298, 304 (CA 5) 3 The termination of Ernest Leggans I find that Leggans was terminated on January 4, 1972, because he engaged in activity on behalf of the Union, and that the reason given to him therefor, m e, that work was slack, is a pretext As in the case of the layoff of John Burress on January 17, 1972, I find that identical reasons lead me to the foregoing conclusion In arriving at this ultimate finding I have credited the General Counsel's evidence and have not credited Respondent's evidence not congruous therewith But there are two additional reasons why I find that Leggans was discriminatorily laid off They are briefly set out below (a) If work was as slack as Respondent claims, then it has not been satisfactorily explained why a new employee was hired the day before Leggans was terminated While not conclusive, this fact, when appraised in conjunction with other facts found in connection with the layoff of Leggans, convinces me that lack of work was not the motive behind his dismissal but, rather, that he was released because of his union activity (b) No satisfactory reason has been advanced why some notice or announcement of the impending layoff was not given to Leggans I am unable to accept as satisfactory the contention of President Mandel that he did not desire to inform employees of such misfortune until after Christmas But in at least one instance, i e , the layoff of Lelm, a layoff occurred on December 21, 1971, thus exposing as not convincing the so-called wish to withhold such knowledge from employees till after Christmas Further, the mere announcement of a coming layoff, as distinguished from actually effectuating it, before Christ- mas is not so harsh, for then an employee is alerted to the fact that he should seek employment elsewhere But the abrupt declaration, not of a layoff to come, but of an immediate layoff is much more severely rigorous Hence I am convinced, and find, that Mandel's spirit of generosity is clouded by the fact that no notice was given immediately after Christmas, so that employees could look for work elsewhere, and also by the abruptness of the layoff of January 4 It is reasonable to expect some advance notice of a layoff, and the failure to give such notice undermines the alleged reason given by Mandel for postponing the layoffs Such abruptness, along with other facts found herein, persuades me to find that the layoffs of January 4, 1972, were substantially motivated by antiunion hostility 4 The termination of L T Howell In my opinion Howell was laid off because of Respon- dent's antiumon hostility and the reason given to him, i e, that work was slack, is a pretext I so find The reasons set out above which led me to find that Burress was unlawfully laid off on January 17, 1972, are equally applicable to Howell's termination, and I so find They need not be repeated here In making said finding concerning Howell, I have credited the General Counsel's evidence and have not credited Respondent's evidence to the extent it is contrary thereto An additional reason for finding that Howell was discriminatorily terminated is that, in late November, 1971, he was assured by President Mandel that there was "plenty of work you're not going to leave Maple City" Patently this assurance was not intended to last for but 5 or 6 weeks Surely Mandel would not have uttered this statement if work was on the verge of being slack Further, according to Mandel, in early December accountants expressed a dim view as to the immediate outlook for Respondent's business If this is true it is difficult to understand why Mandel, who gave a different version to Howell, did not correct such version after the accountants reported to hum In any event I find that Mandel's statement to Howell cannot be ignored, and I have assessed it, along with other facts found herein, in determining the actual reason for laying off Howell precipitately on January 4, 1972 Also, employee Lee, whom I credit, asserted (1) that the job Howell was working on was completed by Chaney and Green, neither of whom normally worked on this type of job, (2) Respondent continued to manufacture other machines which Howell was able to work on, and (3) Lee worked overtime during the period of Howell's being unemployed by Respondent Manifestly this tends to 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrate, and I find, that Howell was not laid off for lack of work 5 The termination of Bruce Hedden The facts surrounding Hedden's layoff are practically indistinguishable from those leading to the layoff of Burress on January 17, 1972, and I so find Accordingly, I further find that Heddens was laid off on January 4, 1972, for his union activity, and that the alleged reason for his dismissal, i e, "work was getting slack," is a pretext An additional reason which supports this finding is that Respondent hired a new employee, Darwin Baker, on January 3, 1972, to work as a laborer Since it was Respondent's policy to assign its regular employees to laboring work during slack periods, it was incumbent upon Respondent to account for the fact that Hedden was not, pursuant to past practice, assigned to the laboring work performed by the newly hired Baker No such explanation appears in the record In arriving at the above findings I have credited the General Counsel's evidence and have not credited Respon- dent's evidence to the extent it does not correspond therewith 6 The termination of Raymond Layton For the reasons set out more fully in connection with the layoff of employee Burress on January 17, 1972, I find that Layton was laid off on January 4, 1972, because of his union activity and that advising him he was dismissed because work was slack was a pretext to disguise the actual reason An additional reason pursuading me that the foregoing finding is warranted is the fact, which I find, that a new employee was hired on January 3, 1972, and that Layton complained about this to Foreman Bennett Hiring a new employee only the day before Layton was laid off destroys the contention that work was unavailable the very next day, and I so find It is true, and I find, that Layton was twice informed, once by Moore and once by Bennett, that he should come to work more regularly This occurred in about August, 1971 But I find that, assuming that this was a warning, his irregular work habits were overlooked or condoned In any event, I find that he was not laid off because of his irregularity in coming to work In arriving at the foregoing findings, I have credited the pertinent evidence of the General Counsel and have not credited that part Respondent's evidence not harmonious therewith 7 The termination of Clifford Oary On the record unfolded in this case I conclude, and find, that Oary was laid off on January 13, 1972, because of his union activity, and that the reason given to him for taking this action, i e, missing 3 consecutive days of work without calling in, is a pretext While this ultimate finding is based on the entire record, it is also derived from the following subsidiary findings, which I hereby find as facts (a) Oary was a union member and engaged in some union activity Respondent had knowledge thereof not only because the small number of Respondent's employees makes operative the small plant rule, but also because Oary displayed a union button on his hat (b) Respondent entertained hostility towards unions (c) Oary was hastily laid off contemporaneously with the union organizational campaign "The abruptness of a [termination ] and its timing are pursuasive evidence as to motivation " N L RB v Montgomery Ward and Company, 242 F 2d 497, 502 (C A 2), cert denied 355 US 829 Accord Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-1086 Of course I recognize that abruptness of a layoff during a union campaign will not save an employee from being terminated for cause But in Oary's case I find that the summary manner of his layoff, when appraised together with the other facts found herein , points to the conclusion that he would not have been laid off if he had not engaged in union activity Cf N L R B v Symons Mfg Co, 328 F 2d 835, 837 (C A 7) (d) At no time had Oary been alerted to the fact that his absenteeism exposed him to the risk of losing his job In fact at no time was he reprimanded for absenteeism Failure to warn, under the circumstances, not only constitutes condonation of his conduct , but indicates that a discriminatory motive prompted his layoff E Anthony Sons, Inc v NLRB , 163 F 2d 22, 26-27 (C A D C ), NLRB v Melrose Co, 351 F 2d 693, 699 (C A 8) (e) Other employees with absentee records as bad as or worse than Oary's were not laid off This disparate treatment of Oary tends to confirm the inference and I draw it that it was not his absenteeism which displeased Respondent but, rather, his unionism (f) Finally, it is sufficient to support the finding that Oary was unlawfully terminated if his unionism was a substantial cause therefor I so find Hence it is no defense that another, but legitimate, cause also existed for laying him off In arriving at the above findings I have credited the General Counsel's evidence and have not credited so much of Respondent's evidence in conflict therewith 8 The termination of William Charlton On the record developed in this case I find that Charlton was terminated on February 14, 1972, because he engaged in union activity, and that the reason given him for such action, i e , "a lot of absenteeism and lack of production" is a pretext To the extent that he was fired because of a lack of production, I find, as shown elsewhere herein, that Respondent used this, if true, as a pretext Those reasons need not be repeated here Insofar as Charlton was fired because of a lot of absenteeism I also find that this is a pretext and that the true reason was his union activity This finding is based on the entire record and the following subsidiary findings, which I hereby find as facts (a) Respondent was cognizant of Charlton's union activity not only because of the small plant rule but also because supervisors observed him wearing a union button and Charlton had union stickers on his lunch basket (b) Respondent manifested opposition to unions and committed unfair labor practices as found elsewhere herein (c) Others with absentee records equal to or exceeding MAPLE CITY STAMPING CO 757 Charlton's were retained (See G C Exh 21-43) This disparate treatment of Charlton warrants the inference and I draw it that conduct other than absenteeism accounted for his discharge I find that such other conduct is his union activity (d) Although Charlton had been warned that his absenteeism would result in disciplinary action taken against him if he persisted in it, nothing was done about it notwithstanding that he repeated this type of dereliction Hence I find that his absenteeism had been overlooked or condoned by Respondent (e) Charlton was discharged during the Union's cam- paign Timing is thus significant evidence as to the motivation of Respondent in dismissing Charlton Such motivation was "a hostile reaction to information [Respon- dent] had received concerning incipient union organizational activity of its employees and was calculated to chill such activity " Lloyd's Ornamental and Steel Fabricators, Inc, 197 NLRB No 71 See D H Farms Co, 197 NLRB No 47 (f) Even if Charlton's absenteeism contributed to the decision to discharge him, such termination is nevertheless unlawfully imposed if a substantial reason for such action was his union activity I find that such substantial cause was his union activity Accordingly, I find his discharge was unlawful "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity " N L R B v Symons Manufacturing Co, 328 F 2d 835, 837 (C A 7) The foregoing findings as to Charlton are based on evidence of the General Counsel which I have credited Respondent's evidence inconsistent therewith is not credit- ed 9 The termination of Robert Miller I find that Miller's layoff from January 14 to January 18, 1972, was prompted by his being a member of the Union and not because of a lack of work This finding is based on the entire record and also the findings made in conjunction with the layoff of Burress However, the following additional findings relating to Miller also support the fact that his layoff was discriminatory and that the asserted reason, i e , lack of work, is a pretext (a) Respondent had actual knowledge of Miller's union membership as he informed Superintendent Patten of it (b) When Miller asked Foreman Bennett why the former was being laid off Bennett replied that he did not know Failure to give a reason for a layoff "supports an inference that the layoff was discriminatory " N L R B v Griggs Equipment, Inc, 307 F 2d 275, 278 (C A 5), N L R B v Plant City Steel Corp, 331 F 2d 511, 515 (C A 5), NL R B v American Casting Service, 365 F 2d 168, 174 (CA 7) It is true that Plant Manager Moore, when later asked by Miller, stated that the layoff resulted from a lack of work But this does not alter the crucial fact that Foreman Bennett, who laid off Miller, was unable to announce a reason therefor (c) Miller enjoyed seniority over those retained in preference to him When asked why those junior to him were retained, Miller was informed that it cost less to keep them employed But I do not credit this reason as the actual one, especially since in the past employees were given other work during slack times and were not laid off N L R B v American Casting Service, 365 F 2d 168, 174 (C A 7) Cf Bogart Sportswear, 196 NLRB No 1, where the employer laid off the lowest paid employees first in a reduction in force and the Board found that this showed no union animus In making the above findings I have credited the General Counsel's evidence and have not credited Respondent's evidence inconsistent therewith 10 The Section 8(a)(1) violations On January 8, 1972, Patten made some antiumon remarks to Yancick and Burress in the presence of employees at the Villa Tap While such utterances may be looked upon as intemperate, I find that none of them, except that discharging Burress, is coercive and, therefore, none of them collides with Section 8(a)(1) of the Act On this occasion Patten also fired Burress As found below, this violates Section 8(a)(4) of the Act I further find that derivatively it contravenes Section 8(a)(1) Patten on this occasion also told employees at the Villa Tap that there would be some layoffs because of the union meeting and that he could close the plant before he would allow a union to come in Since this is a threat of reprisals, it violates Section 8(a)(1) of the Act Additionally I find that Patten's presence on this day at the Villa Tap amounts to unlawful surveillance About December 20, 1971, Dorwin Meyer, whom I have found to be supervisor under the Act elsewhere herein, asked Lelm if the latter had a card Even assuming this alluded to a union card, I find this interrogation not to be coercive A few days later Meyer asked Leggans whether the latter had any more petitions which Leggans wanted signed This, too, is not coercive, and I so find In December 1971, Meyer also asked employee Lee if Lee had a card which Meyer could sign I find this is not unlawful interrogation as it is not coercive Shortly before January 4, 1972, Meyer asked Hedden if Hedden was part of the union business going on I find that this is not coercive interrogation as it does not contain an implication of reprisals On another occasion Meyer told Lee that Respondent would fire Lelm if Lelm tried to organize the plant Patently this runs afoul of said Section 8(a)(1), and I so find Meyer said about the same words to employee Charlton This also violates the said Section of the Act At about the last week of December 1971, Respondent abolished unscheduled coffeebreaks, i e, breaks taken at will by employees (as distinguished from scheduled coffeebreaks, which were still retained) and the leaving of an employee's work area to talk to employees in other work areas, and ordered a "speed up" in work I consider this action to be within the sphere of management's prerogative invoked to expedite production and, therefore, find that it does not violate Section 8(a)(1) of the Act This is because I find that "working time is for work" (Republic Aviation Corp v NLRB , 324 U S 793, 803 fn 10), and that an 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer may lawfully insist that employees perform their duties on company time About January 6, 1972, Foreman Roan told employees Charlton and Revord that a union would do them no good Since this was not accompanied by a threat of reprisal I find it does not violate Section 8(a)(1) of the Act Roan also referred to Charlton's union stickers as junk and asked what Charlton expected to gain from the Union I find this is not coercive and, therefore, is protected by Section 8(c) of the Act And Vice President Slighton once asked Charlton about a union button on the latter's hat This is not coercive, and I so find Cf Birdsall Construction Co, 198 NLRB No 20 In making the findings here and elsewhere herein on the issue of whether Respondent violated Section 8(a)(1) of the Act I have credited the General Counsel's evidence and only that part of Respondent's evidence consistent there- with 11 The status of Dorwin Meyer I am of the opinion, and find, that even on the Respondent's evidence, Meyer is vested with authority to responsibly direct employees and to effectively recommend that employees working under hurt be transferred or discharged Accordingly, I find that he is a supervisor within the meaning of Section 2(11) of the Act, and that Respondent is accountable for his statements uttered to employees earnings suffered by each by reason of his being terminat- ed In making whole the nine aforesaid employees Respon- dent shall pay to each a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period Such backpay, if any, is to be computed on a quarterly basis in the manner established in F W Woolworth Co, 90 NLRB 289, with interest thereon at 6 percent per annum calculated according to the formula promulgated in Isis Plumbing & Heating Co, 138 NLRB 716 It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and ascertaining whatever backpay may be due Finally, it will be recommended that Respondent post appropriate notices The above discriminatory terminations go "to the very heart of the Act" NLRB v Entwistle Manufacturing Company, 120 F 2d 532, 536 (CA 4) Accordingly, the Board's Order should be comprehensive enough to prevent further infraction of the Act in any manner by the Respondent, and I shall so recommend Cf R & R Screen Engraving, Inc, 151 NLRB 1579, 1587 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce VI THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act In view of the fact that Respondent unlawfully terminat- ed Lelm, Hedden, Howell, Layton, Leggans, Charlton, Oary, Miller, and Burress, it will be recommended that Respondent be ordered to offer to each (except Miller, who has already been recalled to work) immediate and full reinstatement to his former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privileges of each It will further be recommended that each (including Miller) be compensated for any loss of 1 The Union is a labor organization within the meaning of Section 2(5) of the Act 2 Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act 3 By engaging in threats of reprisals, coercive interro- gations, and surveillance, as found above, Respondent committed unfair labor practices forbidden by Section 8(a)(1) of the Act 4 By discriminating in regard to the tenure of employment of Lelm, Hedden, Howell, Layton, Leggans, Charlton, Oary, and Miller, thereby discouraging member- ship in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act 5 By discharging Burress for allegedly filing a charge against one of its supervisors, Respondent has engaged in an unfair labor practice proscribed by Section 8(a)(4) and (1) of the Act 6 The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act 7 Respondent has not committed any other unfair labor practices as alleged in the complaint Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issued the following recommend- ed i 1 In the event no exceptions are filed as provided by Sec 102 46 of the said Rules and Regulations be adopted by the Board and become its Board s Rules and Regulations the findings conclusions recommenda- findings, conclusions and Order and all objections thereto shall be deemed lions and recommended Order herein shall, as provided in Sec 102 48 of waived for all purposes MAPLE CITY STAMPING CO 759 ORDER Respondent, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in the Union, by laying off or terminating employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment (b) Discharging or otherwise discriminating against employees who have or are believed to have filed charges under the Act (c) Coercively interrogating employees concerning their union membership, activities, and desires (d) Threatening to close its plant or take other reprisals if its employees chose a collective-bargaining representative (e) Engaging in surveillance of the union activities of its employees (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer Lelm, Hedden, Howell, Layton, Leggans, Charlton, Oary, and Burress immediate and full reinstate- ment each to his former position, or, if such no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges previously enjoyed by each, and make each, together with Miller, whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, with interest at the rate of 6 percent, as provided in the section above entitled "The Remedy " (b) Notify said Lelm, Hedden, Howell, Layton, Leggans, Charlton, Oary, and Burress, if presently serving in the Armed Forces of the United States, each of his right to reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended (c) Preserve and, upon reasonable request, make availa- ble to the Board or its agents, for examining and copying, all payroll records and reports and all other records necessary to ascertain and compute the amount, if any, of backpay due under the terms of this recommended Order (d) Post at its premises at Peoria, Illinois, copies of the notice marked "Appendix "2 Copies of said notice, to be furnished by the Officer-in-Charge for Sub-Region 38, after being signed by a duly authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Officer-in-Charge for Sub-Region 38, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith 3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein 2 In the event the Board s Order is enforced by a Judgment of a United 3 In the event this recommended Order is adopted by the Board after States Court of Appeals, the words in the notice reading Posted by Order exceptions have been filed this provision shall be modified to read Notify of the National Labor Relations Board shall be changed to read Posted the Officer in Charge for Sub-Region 38, in writing within 20 days from the pursuant to a Judgment of the United States Court of Appeals enforcing an date of this Order what steps Respondent has taken to comply herewith Order of the National Labor Relations Board