Ace Tool Engineering Co., Inc.

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ace Tool Engineering Co., Inc. and District Lodge 103 "(d) Threatening employees with plant closure if of the International Association of Machinists and they choose a collective-bargaining representative." Aerospace Workers, AFL-CIO. Case 25-CA-5121 2. Substitute the attached notice for the Admims- November 8, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 30, 1973, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Decision and limited cross-exceptions with supporting brief. 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, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order as modified herein. The General Counsel excepts to the Administrative Law Judge's finding that Respondent did not violate Section 8(a)(1) by Supervisor Larry Crist's statement to employees Steinke that Mr. Milovich (Respon- dent's president) would shut down operations if the employees organized. We believe there can be no question but that the statement necessarily tended to have a chilling effect on Steinke's organizational activities, and was uttered for that purpose. The only issue is whether Respondent is responsible for Crist's statement. As Crist was a supervisor all times material herein, we find Respondent was responsible for Crist's statement, and that such statements interfered with, restrained, and coerced Steinke in the exercise of rights guaranteed in Section 7, and thereby violates Section 8(a)(1) of the Act.3 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 as modified herein below, and hereby orders that Respondent, Ace Tool Engineering Co., Inc., South Bend, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified herein. 1. Renumber paragraph 1(d) as paragraph 1(e) and substitute the following as paragraph 1(d). 207 NLRB No. 23 trative Law Judge's notice. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings 2 In the absence of specific exceptions we adopt pro forma the Administrative Law Judge's finding that Respondent violated Sec 8(a)(1) when Respondent President Milovich called employee Steinke a densive name. 3 For the reasons set forth by the Administrative Law Judge, Member Penello would not find that Respondent violated Sec . 8(a)(l) by Supervisor Cost's statement to employee Steinke. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten to close our plant if our employees choose a collective-bargaining repre- sentative. WE WILL NOT call any of our employees any vulgar, obscene, or derisive names for the purpose of interfering with, restraining, or coercing em- ployees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL NOT discharge or otherwise discrimi- nate against any employee for joining or support- ing District Lodge 103 of the International Association of Machinists and Aerospace Work- ers, AFL-CIO, or any other labor organization. The Board found that we discharged Carl B. Steinke because he was for the Union and that this violated the law. Accordingly, WE WILL offer Carl B. Steinke ACE TOOL ENGINEERING CO. 105 reinstatement to his old job or, if that job no longer exists, one substantially equivalent, with- out prejudice to his seniority or other rights and privileges, and make 'him whole for any loss of pay he suffered because we laid him off, with 6- percent interest. All our employees are free to join, or not to join, District Lodge 103 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. ACE TOOL ENGINEERING Co., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 6 ,0 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921. DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Administrative Law Judge: The amended complaint' alleged that Ace Tool Engineering Co., Inc. (Respondent or Ace) from on or about July 24, 1972, has engaged and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (the Act), among other things, by (a) on or about August 14, 1972, illegally interrogating its employees about their union activities; (b) Walter E. Milovich, president of Respondent in mid-August 1972, calling Carl R. Steinke a derisive name because of his union activities; (c) Larry Crist threatening employees in July 1972, with plant closure because they were engaging in union activities; and (d) on or about July 26, 1972, laying off and failing to reinstate Steinke because of his union activities. Respondent denied the commission of the unfair labor practices. Pursuant to notice, a hearing in this case was held in South Bend, Indiana, on November 28 and 29, 1972. All parties appeared and were represented by Counsel. They were given full opportunity to participate, adduce eviden- ce, examine and cross-examine witnesses, and present oral i The original complaint was issued October 3, 1972, upon a charge filed August 16, 1972, by the District Lodge 103 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union). During the hearing- the complaint was amended to include the allegations that Larry argument. The General Counsel and Respondent submit- ted briefs that have been read and considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent, an Indiana corporation, maintains its principal place of business in South Bend, Indiana. It,is engaged in the business of design of tool and tooling products. During a period of 12 months prior to October 1972 (a representative period) Respondent, in the course and conduct of its business at South Bend, produced, sold, and distributed at its plant, designs valued in excess of $50,000 which were shipped from said plant directly to other States than Indiana. It is found, as admitted, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION It is found, as admitted, that District Lodge 103 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background As requested by General Counsel, judicial notice is taken of the Board's decision in Summit Tooling Company and Ace Tool Engineering Co., Inc., 195 NLRB 4792 In that case, this Respondent was found to have engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the Act commencing with October 1969. Therein the complaint alleged Section 8(a)(5) violations for various actions including the unilateral discontinuous of the tool production business of Summit Tooling; and Section 8(a)(3) violations for discriminatorily laying off employees. The Board dismissed the Section 8(a)(5) allegation based on the unilateral action. In the earlier case, Ace admitted it was engaged in the business of tool design, and Summit, a subsidiary division of Ace, engaged in tool production. Summit occupied the first floor of the same building that Ace occupied. Respondent requests that the previous case be disregard- ed because (1) of the dismissal of the Section 8(aX5) allegation based on the unilateral action; and (2) Summit Tooling was a subsidiary organization in tool manufacture. The request is denied. Walter Milovich has been president of Respondent since 1952 and has been active since then in the management of Ace and Summit. In view of that fact and the fact that Ace was the Respondent in the earlier case and is the Respondent in this case, it is considered appropriate that Crist was a supervisor and uttered some threats of plant closure because of union activities. These allegations are in issue. 2 Enforced in its entirety March 30, 1973 (C.A. 7), 83 LRRM 2044. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the facts of this case be viewed against the background of Respondent's previous unfair labor practices. The union animus shown in the former proceeding is considered relevant in determining the motivation underlying the conduct of Respondent in this proceeding.3 B. Credibility of Witnesses The determination of the facts herein has not been made simple by the devious testimony of Respondent' s witnesses. The many conflicts in testimony have necessitated many credibility resolutions. Not all credibility determinations are listed herein. But in making credibility determinations the pertinent testimony of all witnesses has been consid- ered as well as their demeanor. In addition, inconsistencies and conflicting evidence were considered. The absence of a statement of resolution of a conflict in specific testimony or of an analysis of such testimony does not mean that such did not occur. See Bishop and Malco, Inc. d/b/a Walker's, 159 NLRB 1159, 1161. To the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all" of a witness' testimony. N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2), reversed and remanded on other grounds 340 U.S. 474. The demeanor of Walter Milovich, president of Ace having been observed as a witness, his testimony is found generally not creditable, except where his testimony is corroborated by creditable witnesses or documents. He was not a straightforward witness. In most instances his testimony was vague, self-contradictory, and contradicted by the testimony of other witnesses testifying in behalf of Ace. The record bears out this conclusion. Particularly incredible is his story of the events leading to the discharge of Steinke. Milovich stated that Steinke's poor and inexperienced work on a design ordered by Caterpillar Tractor gave rise to the discharge. Milovich testified he saw the design but was unable to identify the specific design with any degree of accuracy despite his many years experience in this field. At the hearing, Milovich contradic- ted his statements contained in an affidavit previously given to a Board investigator. He contended that he was pressured into making, the statements, and the affidavit contained things he had not said. But he admitted that the affidavit had been made and taken in his attorney's office; in the presence of his attorney and in the presence of his Chief Designer Homer Coy; he consulted with them with regard to the statements; the affidavit was read, changes were made, and initialed before he signed it. In some instances Milovich admitted he had been mistaken in his testimony. Marion Makowski a checker employed by Ace testified on behalf of Ace. As with Milovich, his demeanor on the stand was observed and his testimony is found to be generally not creditable. He was a voluble and devious witness who testified in a vague and general manner about items that he should have testified to in detail and with specificity. As with Milovich, the record bears out this conclusion. Makowski had 20 years experience in work on designs. Among other things he checked the work done by other employees. Makowski admitted he "had enough experience working with Caterpillar" designs, but as to this design he stated "it is just hard to explain what was wrong with the job." The poor quality of this job was supposed to have driven Makowski to tranquilizers and made him threaten to quit. It is considered reasonable to conclude that a poor job of that magnitude would have been capable of description by so experienced a designer. Makowski's inability to give such a description lends strong support that he is not creditable. Makowski's confused testimony about the times he was working on the design, his failure clearly to identify the design, his confusion about the times when and where he talked to Milovich further support the conclusion he was not a creditable witness. C. Respondent's Workroom and Employees This proceeding is concerned with Respondent's employ- ees engaged in making welding machine designs. In the period in question, Respondent's entire staff numbered 25 or 26. It included supervisors, office personnel, some of whom were relatives of Walter Milovich, tool die designers and welding machine designers. Ace's work was done in one large room 120 feet north and south and 60 feet east and west. Offices, storerooms, etc., occupied the north side and part of the east side of the room. The remainder of the room was occupied by waist high drawing boards on which the die and welding machine designers worked. The working area was not visible from the offices because the view was blocked off by file cabinets, partitions, vending machines, reference tables, etc. The open room was entirely visible to any person in it, whether sitting on a stool.or standing. Walter Milovich,4 his son George, Chief Tool Designer Homer Coy, and Supervisor Emery Szabo occupied separate offices. George Milovich and Coy worked at "designing" in their offices. Milovich and Szabo had-their own drawing board in the open room at which they worked most of the day.5 Supervisor Hatch and Larry Crist worked at drawing boards in the open room like the other employees. There were no rules in the shop governing employees talking to each other or with regard to coffeebreaks. As Steinke testified, ". . . if you wanted coffee you'd go get coffee, and if you wanted to talk briefly you could." The talk generally was about work but also "about subjects unrelated to their work." Supervisor Coy, two or three times a day, left his office to check on the employees and assist them when they needed help. D. Contact Men in Ace's Employ Milovich, Homer Coy, William Hatch, Emery Szabo, and Laurence Crist all employees of Ace were known as "contact" men. Each had his own private customers whose 3 See, e.g., Maphis Chapman Corp v. N.L.RB., 368 F.2d 298,303-304 4 Hereafter the name Milovich will designate President William Milovich (C.A. 4, 1966); N.L.R.B. v. Harrah's Club, 403 F.2d 865, 872-873 (C.A. 9, unless otherwise noted. 1968), and cases there cited. 5 Milovich testified he worked at his board up to 10 hours the day. ACE TOOL ENGINEERING CO. 107 work was serviced by and done at Ace under a private arrangement with Ace .6 The function and duties of the "contact" man and his relation to Ace follows: 7 A. Larry [Crist] will leave our plant maybe every second week and travel approximately a hundred and some miles and contact the customer. He will pick up work, new work, and he will deliver some jobs, and maybe have a few jobs approved, and he will come back, and I assign him maybe a man or two and these men ,will do the-layout work or detail work to perform the operation that he has brought back. Then he will call, the customer and tell them that he is all through with this work, he's got deliveries for approval, and the customer will prepare some more work, and then he will make a specific time and date and will leave, and he's at the doors of his customer and then he delivers jobs, approvals on this work he already obtained, plus he will pick up new work. And he has been doing this now for about eight years for me. ... Each job, regardless of who the customer is, we operate a service, and our service is industrial tooling, and every job that has to be designed to perform a certain operation, these jobs are estimated by the customer, and it is given to us, and we are to keep our time within reason into what the job pertains. Q. Now, you said he will pick up work and bring it back and then you will assign men to assist him on that particular project. * * * * A. I would like to explain this to you. Homer Coy is our chief tool engineer and he is the head supervisor. He does all the supervision. I am capable. I have my own account similar to Larry that I go out of town and pick up work and I follow through. Being short of help, that's one reason I am sitting on the drawing board trying to help to get the-work out. * * * * * Q. Homer,Coy assigns men, then? A. Larry [Crist] will ask Homer Coy if I can have a man or two, and Homer Coy will assign the men to him. Q. O.K., now, after the man is assigned by Mr_ Coy 6 There is no showing in the record that any contact man was other than an employee of Ace 8 From the testimony of Milovich, which refers mainly to Larry Crest, but is sufficiently general to apply to other contact men also. 8 This denial is made even though Milovich several times admitted on the stand that'Crist was a supervisor. For example, when testifying about the Union's letter dated August 17, he admitted that he showed it to four supervisors one of whom was Crist. A little later he testified: Q. Crist is a supervisor any how? A. That is right Section 2(11) defines a "supervisor" as: to work for Mr. Crist, this individual then is assigned to Mr. Crist, gets his work then from Mr. Crist? A. That is, correct. Q. And Mr. Crist then tells these individuals what work they should do on this particular project? A. He explains the operation, yes. Q. Now, Mr. Crist does this on a fairly regular basis, I presume? A. That is right .. Q. I see. And when he brings back the work from the customer, he presumably will be assigned some men under him who will work under his direction, so to speak, in working on this project or projects that he brings back from the customer? A. That is right. Q. Now, what would be the average amount of time that these men assigned to Mr. Crist would work under Mr. Crest, a week, two weeks at a time, or what? A. It can be a matter of hours, days, it might be a week. His work aren't very huge so it takes maybe two days or one day or three days. E. Larry Crist is a Supervisor Respondent denied that Larry Crist was a supervisor.8 For the, reasons hereinafter stated it is found that Crist was a supervisor within the meaning of Section 2(11) of the Act .9 As stated above Crist is a contact man who got his own jobs and worked them at Ace. His relationship to the -job and the men assigned to him has already been set out in full detail. Crist's responsibility for the job is final. To that end, Crist does not refer or defer to any supervisor or Milovich.10 It has already been stated that Hatch was Coy's assistant. According to Coy, "Hatch is one of the supervisor's working directly under me. When I am out of town he takes full charge of the place, gives supervision to all design and detailing the checkers too." Though Milovich testified that neither Hatch nor Crist had the authority to hire men or lay them offal he did state that Hatch and Crist had the same authority "vis-a-vis the men" and Hatch and Crist both fell into "the same category." Coy testified that there were instances where Coy gave Crist the choice of selection of employees to work for him. Coy testified further that he accepted and acted on Crist's recommendations (1) as to employees that should be assigned to Crist, (2) the exchange of an employee if he proved unsatisfactory to Crist, and (3) whether employees should be let off or not. It is clear from the foregoing that Milovich in the ... any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but regwres the use of independent judgment. io It is noted that only supervisors are contact men. ri But note Coy's testimony above quoted about Hatch taking "full charge" in Coy's absence. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation of his shop considered Crist a supervisor with certain limited authority. The record shows clearly that Crist used his independent judgment in responsibly directing the work of the men assigned to him.12 Further, it is clear that he effectively recommended to Coy that employees be assigned to or taken off his work. These facts are 'sufficient basis for a finding that Crist was a supervisor.13 The record contains other evidence of Crist's supervisory status. In light, however, of N.L.R.B. v. Metropolitan Life Insurance Co., 405 F.2d 1169 (C.A. 2, 1965), it would only lengthen this decision unnecessarily to list them. Metropoli- tan Life and Board Decisions14 hold that Section 2(11) of the Act speaks in the disjunctive; that to constitute a person a supervisor it is sufficient to show that the person performs any one of the functions, or in the performance of his duties, possesses one of the enumerated powers and responsibilities, set forth in that section. Crist's responsibil- ities and duties as above stated come clearly within these holdings. F. Steinke's Previous Employment and Experience Carlton R. Steinke, 27 years old, married, was employed by Respondent on June 5, 1972, as a welding tool designer.15 His previous experience in the design field started with his attendance in 1969 at the Acme Tool and Die Design School in South Bend, Indiana. He completed a year's course there in 9 months. His grades were 91 out of a possible 100 and he received a certificate of completion. While at school he worked as a general machinist. Afterward, he worked as a designer for the Hyster Company, Danville, Illinois, from February 1970 to January 28, 1972. In February 1972 he went to work for Niles Engineering Company, Niles, Michigan, and left them in June to work for Ace because he wished to work in South Bend. The personnel director of Hyster testified that Steinke's work had been satisfactory; and when Steinke left he recommended to his firm that they rehire Steinke if the opportunity arose. In Danville, there were three levels of designers: trainee, junior, and senior. According to the Hyster director Steinke fitted into the junior category.16 G. Steinke's, Employment and Discharge By Respondent Milovich interviewed Steinke for employment about June 1, 1972. Steinke showed Milovich some samples of his work on welding machine designs. Milovich stated that the work was similar to that- done by Ace. They agreed that Steinke would start as a welding machine designer at a salary of $4.50 per hour.lr They also agreed that if 12 Cf. Trailmobile Division v. N.L.R B, 379 F.2d Q9,422 (C.A. 5, 1967); N.L.R.B v. Big Three Welding Equipment Co., 359 F.2d 77, 80-81 (C.A. 5, 1966). is This takes into consideration Steinke's testimony that he was unaware that Crist was a supervisor. 14 See Great Central Insurance Company. 176 NLRB 474 15 The equivalent to a welding machein designer. 16 His testimony as to the qualifications for the different levels was for the junior level 2 or 3 years experience plus some college math courses; senior designers 5 or more years of experience with approximately 2 years of college and possibly a mechanical engineering degree. Ace did not similarly Steinke's work was satisfactory, he would get an increase to $4.60 per hour in 30 days. Steinke started work on schedule. The first job he was given was to redesign or do over a weld fixture design done by Durben, another employee. The record does not show what Steinke did thereafter. The record does show that Coy checked Steinke's work periodically-while employed. In the early part of July, Steinke thought that there might be a shortage of work at Ace.18 He spoke to Coy who told him he didn't have to be concerned. In early July Steinke spoke to Milovich about his raise. Milovich told him he would get the raise saying, "You're doing pretty good work, and don't be afraid to ask questions, ...." On July 10, Steinke received the promised increase to $4.60 per hour. On July 25 Steinke came to work at the usual time. He left at noon telling Coy he was going to a funeral.19 On July 26, he came to work at 7 a.m. Milovich met him on the way to the timeclock. Together they went to Milovich's office. There Milovich told Steinke his work was poor and insufficient; that Ace could no longer afford to employ him and had to lay him off. Milovich left the office and went with Steinke to the latter's board. Steinke packed his tools with Milovich standing by. Milovich then led him to the stairs. Steinke received his final check through the mails.20 Up to the time of his discharge Steinke had received no adverse comment nor any complaint about his work or anything else. At the time of his discharge Steinke was working on a design for a "trunnion drill jig" and was about half finished with it. H. Steinke's Union Activities In the first week of July 1972, Steinke spoke to two employees (weld machine designers) about having a union in the place. Both thought it might be a good idea.21 The conversation took place in the open at their drawing boards. Several days later, Steinke spoke to Crist about the Union, not knowing at the time that Crist was a supervisor. Crist told him it had been tried before and had failed. He also told Steinke that "he thought that Mr. Milovich would close down if they were to organize." After checking around, Steinke was advised to contact Robert Downey, business representative of the Union. Downey visited Steinke Monday night, July 24, 1972. After some discus- sion about aspects of union organization and union benefits, Downey gave Steinke 50 union authorization cards and 50 union pamphlets for distribution. The next morning, July 25, Steinke took the 50 pamphlets and cards to work and put them in the drawer of his drawing board. He gave a pamphlet and card to Strahla, who said he would sign the card "if it looked like grade its designers. 17 The same salary Steinke was making when he left Niles. 18 Caterpillar Tractor was one of Ace's chief customers. It was their custom to give all their employees a vacation in July Steinke thought this would effect the flow of work to Ace adversely and might affect his job. 19 Actually Steinke took the afternoon off, but his doing so is not asserted as a cause for discharge. 20 It is noted that Durben, the employee whose design Steinke redid in early July, was still in Ace's employ. 21 The employees were Strahla and Flis. The latter said it might not go through because it had failed once before. ACE TOOL ENGINEERING CO. we could get a majority." Within the next 10 or 15 minutes Steinke went through the same procedure with employees Greg Meuninck and Gene Durben. About 15 minutes later he approached employee Glover who replied he "didn't believe in Unions" and would not sign. Steinke left him. About 5 or 10 minutes later Steinke spoke to employee Flis who said the same thing as Strahla "he would. sign if Steinke could get a majority." Flis took a pamphlet and a card. Within the next 45 minutes or so Steinke spoke to Crist22 and another employee called Pinter. Crist refused to sign a card or take any material. He repeated to Steinke what he had said the first time; that it has been tried before and he "felt as though Mr. Milovich would shut down operations if we do that, organize." 23 Pinter told Steinke to go away he didn't want to hear anything about it. The next morning on July 26, Steinke was discharged. All of the foregoing conversations and action took place at the drawing boards of the different employees. Steinke was unable to testify that Milovich, Coy, or Szabo were in the room on July 25. His testimony was that, "More than likely they were." Steinke did state that Hatch was present. 1. Ace's Reasons for Discharging Steinke Are Fretextual 1. President Milovich's account of the discharge The record shows as testified to by Milovich that he alone discharged Steinke. In response to questioning by his counsel, Milovich testified to the events that caused the discharge. A summary follows: Monday, July 24, Makowski (a checker) was nervous and upset because he was correcting a design of Steinke's. The job was urgent but out of scale, full of mistakes, and behind time. So Coy assigned the job to Makowski to complete and correct. While Makowski was working on the job he did not complain to Coy. On the 24th, he showed the job to Milovich who told him -he would speak to Steinke about it the next day. Tuesday morning, July 25, Milovich spoke to Coy who told Milovich that Steinke had a lot to learn yet; that the job was all screwed up. Milovich intended to speak to Steinke Tuesday afternoon, but Steinke had left for the day. Sometime Tuesday Makowski told Milovich he was "ready to quit" because the job was terrible. Milovich took the job from Makowski and spoke to Coy. He told Coy he couldn't keep Steinke because, "I am overpaying him for the type of work he is doing as a beginner. He is not an expert on design of welding fixture." Wednesday morning, July 26, Milovich met Steinke about 7 a.m. He told Steinke, "I have a lot of complaints about your work. Your work is very bad . . . you haven't got the knowledge as an expert welding designer. I have to lay you off . . . I can't tolerate this type of work that you are giving me." Steinke said nothing. He walked to his board, took all his equipment, and walked off a few steps. Milovich was with him. Steinke said "Can I talk to you." Milovich answered "Why don't you get more experience 22 Steinke at this time was still unaware of Cast's supervisory status. zs Crist admits to one conversation with Steinke in the early part of July 1972, at which he told Steinke that at Ace a few years back ". . . there was talk of organizing, and there was trouble involved, that some fellows were 109 and I'll talk to you." Steinke walked out and Milovich never saw him again. 2. The record does not bear out Milovich's account of the discharge a. Milovich before the hearing gives an affidavit to a Board examiner On September 8, Milovich was interviewed by a Board investigator at his attorney's office. The result of the interview was typed up in an affidavit form. Milovich read it and made corrections that he initialed. His attorney also read it. Milovich then executed the affidavit. Paragraph 7 of the affidavit was received in evidence for impeachment purposes. The paragraph detailed the events preceding and during the discharge of Steinke. In summary the pertinent parts of that paragraph stated: On July 24, Makowski came to Milovich and told him that he was working on a design job done by Steinke that was "very poor"; that 90 percent of the job needed redesigning. The design was of a large welding fixture for Caterpillar. Makowski had been working on the job for several days and had taken three tranquilizers in the past 3 days because of it. On July 25 Milovich spoke to Coy, discussed the poor design, and told Coy he would have to lay Steinke off that day. b. Coy's testimony about the events preceding the discharge Coy testified about his part in the events leading to Steinke's discharge. Coy is second in command at Ace under President Milovich and has been with Ace 22 years. A summary of his testimony follows:, On direct testimony Coy stated that Milovich was the only person at Ace that he spoke to about Steinke's work. This occurred Monday, July 24. He knew the day because Makowski had complained about Steinke's work. Makow- ski showed him a design for a radial drill' jig fixture that Makowski was reworking. The design had originally been done by Steinke. Coy after studying it over decided Steinke was not a "top notch" designer. Late that afternoon or Tuesday, July 25, Coy told President Milovich about the job. Milovich told Coy that if Steinke wasn't any good, "We'll lay him off." Coy said, "O.K." On cross-examination Coy amplified and changed his story. He testified he gave the job to Makowski the morning of July 24. At that time he went over it with Makowski "a little bit." Makowski pointed out no errors at this time because "you can't find errors these errors that were found in that drawing just like that. You have to make projections . . . to find out all the mistakes. It is impossible to look them over and find them." Within an hour Makowski had another conversation with Coy and complained about the items wrong in the design. Further, according to Coy, that morning Makowski was completing another job and did not start working on the Caterpillar design until "within a day or two." fired." On a repeat of the question as to what the conversation with Steinke was, Crist stated "I told him [Steinke) a few years ago that was tried before, and some fellows lost theirjobs." 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time Coy spoke to Milovich he had already held the second conversation with Makowski. Coy did not know the extent to which Makowski would be compelled to do the design over. The bulk of the work was done after July 27, the day Steinke was discharged. During the Milovich conversation, Coy stated that Milovich wanted to know how he (Steinke) was doing on the job and Coy "told him it was pretty fouled up." Coy identified the design that Makowski was working on as a radial drill fixture.24 Finally, Coy denied that he had any knowledge about the 10-cent increase Milovich had promised Steinke until after Steinke had received it.25 c. Makowski's testimony about the events preceding the discharge Makowski testified about his part in the events leading to Steinke's discharge. He was a "checker and lay- out" man. As a checker he reviewed the designs that had been laid out by other employees. He had been doing this type of work with Ace for 12 years. A summary of Makowski's direct testimony follows: On Monday, July 24, Makowski received a job from Coy on an "index drill jig." Makowski then unrolled the design and "laid the job out." While he was looking at it, President Milovich came by and said, "What are you moaning about." Makowski said, ". . . this job here is not too good . . . I can find better things than this to work on." He rolled it up and put it aside, deciding to finish up another job that he had. Tuesday, July 25, he started on the design again. He called Hatch over and showed it to him. Hatch said he had only one excuse for Makowski, "here's an eraser." Makowski listed a number of specific items that he found wrong on that day with the drawing, such as bushings, flippers, and other items. Then, Makowski stated: A. Well, I laid the thing out there, and you got a long straight edge that you can project lines over, and I couldn't find any lines to match up! I couldn't even figure out what his ideas were there, and it was just mumbo jumbo there all thrown in, and I just couldn't figure it out and I have been in the business for 20 years, and for 20 years if you can't figure out a drawing, it's pretty hard. Makowski then proceeded to erase about 90 percent of the drawing and to redraw it the way he thought it would be right for the customer. He spent between 55 to 60 hours reworking the design. Later in direct examination, Respondent's counsel referred Makowski back to the conversation with Milovich, 24 Coy was specific about this designation. He denied the design was a welding fixture design. 25 This testimony and Coy's testimony about a "fouled up" job is not credited. 26 According to Ace terminology "hot" meant a rush job. 27 The colloquy on the dates went as follows: Q. Well, at any rate, on September the 8th, you testified you received this job from Mr. Coy on or about July 15th? A. Yes. Q. Now you are telling me it wasn't July 15th at all? A. Well, it is hard to remember dates . When he said July 15th, I couldn't even tell you what day that was, when this was discussed. Q. Well, the calendar indicates it was Saturday, but what you are Makowski repeated the "moaning" part quoted above and added the following: ... And I says, "Well, I just don't need a job like this," and I got pretty well shook up over the job and everything like that, and his boy went out and got me a bottle of tranquilizers. ... . Makowski stated that after he checked the design it went back to the detailer. Makowski's direct examination terminated with the following question and answer: Q. Do you remember having any further conversa- tion with any members of supervision about Mr. Steinke's work. A. No. On cross-examination Makowski amplified and changed his story. He testified the job was given to him by Coy not for checking purposes but "to design it the right way. I dimensioned it all up and ran the stock list on it, and added two more sheets to the job, and then it went to the detailer." But in contradiction to the foregoing, Makowski said he got the job from Coy "in the regular course of the operation of the shop." Coy walked over to Makowski's table, gave him the drawings, and said "Fix this up, finish it up . . . its hot." 26 Coy said nothing else, and nothing to the effect that "the job was screwed up or something was wrong with it, or anything like that." According to Makowski until Coy gave him the job, the design was either lying in Coy's office or on a table in the back of the room. Before that time Steinke had worked on it, and Caterpillar had seen the designs, looked them over, and signed them as being approved. Coy had the drawings because the work was being done under Coy's supervision, and according to Makowski insofar as Coy was concerned the drawings were all right. When Coy gave the job to Makowski it was for the purpose of finishing it up. The design was rolled up when Makowski got it; he didn't know what needed to be done; nor did he know before he got it what needed to be done on it. Makowski was interviewed by a Board Field Examiner on September 8, 1972. Then he stated that he had received the design from Coy on or about July 15, 1972, for further work. At the hearing, he stated that after giving his affidavit he went back to Ace, and went over sheets he had added to the job, "the dates and stuff like that." At the hearing he changed his position to say that the job was given to him 2 days before Steinke was fired. But when asked immediately afterward if "now you are telling me it wasn't July 15th at all?" Makowski stated, "it is hard to remember dates."27 Makowski volunteered the informa- tion that the drawings as amended were unavailable for now telling me in effect, regardless of what the dates was, was that now you are saying you were given the job two days before Mr. Steinke was fired. A. Yes. Q. And in your previous testimony you indicated you were given the job eleven days before Mr. Steinke was fired , is that correct? A. Yes, and the job was never even finished at that time, I would say; Carl was still working on it. Q. But don't you think it is a little unusual that you would have that much of a mistake, regardless of the dates? A. I couldn't even tell you the date he was laid off, to tell you the truth. Q. Well, as a matter of fact, you just now testified that you got the ACE TOOL ENGINEERING CO. 111 production at the hearing because unaccountably they had disappeared. Makowski asserted positively the designs were of a radial drill jig; and that if President Milovich stated they were of a welding fixture, it would not change Makowski's testimony but probably Milovich "didn't know what the job was." Makowski insisted that Steinke's drawing was all "mumbo jumbo" and that on July 24, he couldn't figure out any of Steinke's ideas. Nevertheless, he did not go to talk to Steinke about it, even though Steinke was within 30 feet of him and it was customary at Ace for the employees to talk to each other about the work during working hours. It was suggested to Makowski that he started using the eraser without speaking to Steinke. He denied that. He stated that he had only looked at the drawing on Monday, July 24, but that he had started erasing "a couple of days" later; it could have been as late as July 27, after Steinke had been discharged. Makowski on further cross-examination testified that his "moaning" conversation [with Milovich] occurred on July 24; but changing his direct testimony stated that the tranquilizer conversation took place on or about the 26th. When reminded that he had testified he had only one conversation with Milovich, he stated he didn't remember how many conversations he had with Milovich. Again he testified he told Milovich about the tranquilizers but could not remember when. Makowski knew, however, he had not taken the tranquilizers on July 24 as testified to ' by Milovich. Makowski later testified that he did not take the radial drill fixture design to the detailer after he was done with it. He stated that that was what happened to the welding fixture design. When reminded that he had earlier testified that he had taken the drill fixture design back to the detailer he stated he would have to "rephrase" his testimony. He did so by saying "I fixed the job, a detailer did the job, and it went to a checker. Then when the checker got checking the job, he gave it back to the detailer Again on redirect Makowski repeated his opinion that the design was "weak, and it is just hard to explain what was wrong with the job." Also on further questioning Makowski stated that Steinke had been working on the design on July 15 because it had been approved on July 21. d. Milovich's additional testimony about the events preceding the discharge Milovich during his examination stated he did not know when the drawing was given to Makowski to work on. He also testified that the design was not in Ace's possession job on the 24th. A. A couple of days before he got laid off. (In the transcript the date in the first line of the above quoted testimony appeared as the "28th." This is error and has been corrected to the "8th" as it appears above.) zs Milovich stated that Coy had never said anything to him. zs The implication here is that Milovich is correcting his testimony to refer to the drill fixture design and not the welding fixture design 30 There is no shown connection between the job application, the affidavit, and the design. 31 In his affidavit Milovich had stated: because it had been sent to Caterpillar. He repeated that Makowski came to Milovich's board and said, "Take a look at what I have here." Milovich also stated that Makowski had complained to Coy before he had com- plained to Milovich.28 On July- 25, Makowski again complained to Milovich about the design. Later, on questioning from Respondent's counsel, Milovich testified: On July 24 Makowski called him to his board and told him what a mess the job was. After being told that Steinke had done it, Milovich walked over to Coy to complain. The next day Makowski called Milovich to his board again and threatened to quit. Milovich then told Coy "I might as well discharge Steinke for lack of experience." On cross-examination, it was pointed to Milovich that he had heard Makowski testify that Milovich was passing Makowski's board, heard Makowski moaning and groan- ing, and asked him "What's the matter." Milovich said that Makowski was confused. Milovich insisted he was called over to Makowski's board Monday afternoon. Milovich on cross-examination changed his testimony as to the nature of the drawing and the time it took Makowski to make up his mind about its poor quality. He stated: A. It's fixture,29 which I just found out today, because I didn't get into the detail to look at this here job to spread out. He just mentioned it to me, I didn't stay over his board maybe 15 seconds before he told me it's a mess and I went over to Homer Coy's office. The General Counsel referred Milovich to his testimony in the Board affidavit where he had said the design was a welding fixture. Milovich hedged by stating that he "wasn't sure at the time' that he "didn't see the job complete"; that he mentioned welding fixture to the Field Examiner, because Steinke had "applied for the job as a welding expert ...:.30 The General Counsel asked Milovich again if all that Makowski said was the job was a mess. Milovich answered "I don't know what he said ... I was just there a couple of seconds and walked away." Milovich wound up this questioning by saying "I suppose it was" all that was said. Milovich then reiterated that he was at Makowski's board again on July 25 when Makowski repeated "the job was messy and he took some pills." 31 At this point Milovich testified that he had given and signed the affidavit "under pressure trying to answer questions. It is very hard to state what is what." Milovich agreed that the affidavit was given at his attorney's office, in the presence of his attorney and Coy; that before he signed the affidavit his attorney and he had read it and conferred about it; that he (Milovich) initialed all corrections and then executed the document. The General Counsel then read the portion of the Makowski approached me on or about July 24, 1972, and told we that the job Steinke had done was a very poor design job and that it was necessary to redesign about 90 percent of the job. .. Makowski told me he had taken three tranquilizers during the past three or so days while he was working on the design . . . . On the following day, July 25, 1972, I spoke to Homer Coy .. and told Coy that I would have to lay off Steinke the same day. On cross-examination, Milovich volunteered, "You can put in an addition, if you want, I spoke to 1Coyl on Monday night and also on Tuesday morning." 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affidavit contained in footnote 31, to Milovich who denied that he was saying it was incorrect. Milovich stated the affidavit "is correct." Immediately afterward he stated he had held a first conversation with Makowski on July 24 and a second conversation with Makowski on July 25 when Makowski told him about the tranquilizers. The General Counsel then pointed out to Milovich that he was testifying to two conversations with Makowski, one on July 24 and another on July 25, while the affidavit mentioned only one conversation on July 24. Milovich responded "Okay, there can be a mistake. I'm a human being; I buy pencils with erasers; I make a mistake. The 24th or the 25th." He repeated the affidavit "is a mistake." Conclusions with Regard to Ace's Account of the Discharge The testimony of Milovich, Makowski, and Coy has been set out at length to show the contradictions, inconsistencies and confusion contained in them. This applies not only to each individual's testimony but as the testimony relates to each other. There is no intention here to detail all the inconsistencies and contradictions that existed in the three stories. What follows will be a listing of some of the more patent discrepancies. Milovich's account of the events leading to the discharge is -discredited.- Milovich in response to his Counsel's question- ing testified to the events leading to Steinke's discharge. A summary of that testimony is set forth in section I, 1 above. An analysis of that account sentence by sentence in the light of the testimony of Makowski and Coy shows that Milovich's account is not creditable. This analysis yielding flagrant discrepancies follows: On "July 24 Makowski was nervous and upset." This testimony is amplified by Milovich's statement contained in the September affidavit that Makowski on July 24 required and obtained tranquilizers. However, the state- ment is completely contradicted by Makowski who states he did not check the drawings fully on Monday, July 24; that after he examined them he rolled them up, put them aside, and worked on another job that he had on hand.32 Makowski further testifies that he took no tranquilizers on Monday, July 24, but if he did it may have been on July 25 or July 26. "The job was urgent but out of scale, full of mistakes and behind time. So Coy assigned the job to Makowski to complete." Neither Coy nor Makowski were aware of any errors in the design when it was given to Makowski nor did either know what had to be done when Coy gave it to Makowski. Makowski testified he received the design "in the regular course of the operation of the shop" when Coy walked over to his board, gave him the drawings, and said "Fix this up, finish it up. . . its hot." 33 Makowski testified that insofar as Coy was concerned the drawings were all right. The drawings had already been approved by Caterpillar 34 and as Makowski testified what still had to be 32 Coy makes a surular statement in his testimony. 33 Seefn.26 34 This testimony is particularly significant in light of Makowski's subsequent testimony about designs that have been approved by Caterpillar. He stated, "Flus is a drawing with his (Steinke' s) initials signed on it, and that is the way it went to Caterpillar after he finished the Job. And then from done was to insert items to take care of what Caterpillar had indicated was necessary and put the finishing touches to the design. There was no indication up to the time of the delivery to Makowski that there was anything wrong with the design. "While Makowski was working on the job he did not complain to Coy." This does not agree at all with the testimony of Coy. The latter and Milovich both stated that on Monday afternoon, July 24, or Tuesday Coy told Milovich about Makowski's complaint about the design. "On the 24th, he (Makowski) showed the job to Milovich who told him he would speak to Steinke about it." Makowski does not corroborate this. He testified that on July 24 he unrolled the design and while he was looking at it, Milovich passed by and said "What are you moaning about "35 Makowski answered "this here job is not too good, etc." Makowski rolled up the job, put it aside, and decided to finish another job. Makowski testified he held only one conversation with Milovich. "Tuesday morning July 25, Milovich spoke to Coy who told Milovich that Steinke had a lot to learn yet; that the job was all screwed up." Coy testified that on Monday, July 24, he held two conversations with Makowski about the design. In the first one, Makowski made no complaints. About an hour later Makowski complained about items wrong in the design. Then Makowski put the design aside and worked on it in a day or two. After these two conversations, Coy did not know the extent to which Makowski would have to do the design over. He spoke to Milovich the morning of July 24 and not on Tuesday. "Sometime Tuesday (July 25) Makowski told Milovich he was `ready to quit' because the job was terrible." As stated above Makowski testified he had had one conversa- tion with Milovich on July 24. On July 25 he spoke to Hatch but does not testify that he spoke to Milovich. Makowski also testified he looked at the drawings on July 24 but did not really start working on them till a couple of days later. Also, on this point, Makowski testified he spoke to Milovich on the 24th and the tranquilizer episode happened on the 26th. "Milovich took the job from Makowski and spoke to Coy." Makowski and Coy testified the job remained with Makowski. Makowski testified he continued working on the job in a couple of days and Coy testified that Makowski was completing another job and started on the Caterpillar design within a day or two. The remainder of Milovich's testimony does not deal with causes of Steinke's discharge. The remainder of this section deals with other discrepancies and contradictions in the testimony of Milovich, Makowski, and Coy which are pointed up in support of the conclusion that their testimony had been discredited. Other discrepancies and contradictions in the testimony of Milovich, Makowski, and Coy: The chief point of disagree- ment is the inability of Makowski, Coy, and Milovich to then on nobody touches this, you can't touch this here, you can't erase on that . . we erase the original drawings to fix it up." 35 In his affidavit to the Field Examiner Milovich stated that by July 24, Makowski had already been working on the design 3 days and had taken three tranquilizers because of it ACE TOOL ENGINEERING CO. 113 agree on the design that Steinke messed up. Milovich said it was of a welded fixture.36 Makowski and Coy said it was a radial drill press design. Each of these three has sufficient experience in the field to recognize the one or the other design from the alleged contact they had with it. Their inability to agree raises doubt about the existence of a messed-up design. This doubt is strongly supported by the failure of Ace to produce the design and the inability of Ace to account for its disappearance. Makowski stated it disappeared from the shop. Milovich stated that it was at Caterpillar. This contradiction. in the two stories raises doubt that the design could not have been produced. This doubt is fortified by Makowski's testimony that after he gave the affidavit to the Board Field Examiner on September 8, he checked the amendments to the designs, for dates, etc. The failure of Ace to produce the design gives rise to the inference that had it been produced it would have given information adverse to Ace. Makowski's story about the time he spent working on the design has holes in it. He stated he worked on it on July 24 and again on July 25 when he showed it to Hatch for the second time. When faced with the facts of the taking tranquilizers he changed his story and said he had not worked on the design on the 25th but on the 26th after Steinke had left. Makowski admitted that he had told the Board Field Examiner on September 8 that Coy had given him the radial drill design to work on July 15. He did not deny that this had been his statement to the Field Examiner but changed his story at the hearing to place the date on July 24. His excuse for changing his statement was it was hard to remember dates. But he did testify later in the hearing that Steinke was still working on the drill fixture design on July 15. Makowski testified that he only had one conversation with Milovich on July 24; that he "didn't discuss this job at all anymore" thereafter; 37 further that the discussion occurred at his drawing board. Makowski testified that he did not take tranquilizers until the 25 or 26 of July. Milovich on the other hand testified in the affidavit to the Field Examiner and at the hearing that Makowski came to his board several times to complain about the design and that Makowski took the tranquilizers on July 24. Milovich asserted that Makowski was confused when the latter testified that Milovich came to Makowski's board. Makowski also changed his testimony about what he did with the design after he corrected it. His manner of changing his testimony was to make the facts fit with his changed testimony. First he testified that after he had checked the Steinke job it went back to the detailer. On cross he denied that this is what had happened. Then when reminded of his first testimony Makowski said, "Well, I will have to rephrase that." He then proceeded to do so by giving a long winded and involved process whereby the 36 Milovich toward the end of the hearing made a weak and mconvincmg attempt to change his testimony to say he was mistaken; that he now knew it was a radial dull fixture design. This attempt only added to his discreditation. 34 Makowski hedged on this statement immediately afterward by saying "I don't remember if I talked to him once or twice or three times. I mean, I know I talked to him once, and I mentioned to him that `I don't need a job like this.' " design went from one person to another in series to be worked on. Finally the design came back to Makowski. He wound up this bit by repeating that when he finished with his job it went to the detailer. Milovich in his story of the discharge of Steinke makes no mention of a messed-up design, either drill fixture or welded fixture. It is considered reasonable that he would have been the usual thing to say under the circumstances had the messed-up design existed. Milovich's flexibility as a witness, his ease in changing his testimony to suit the situation are shown by his treatment of the conversations with Makowski about the tranquilizers and the question of whether Makowski came to him or vice versa as well as other instances shown above. The foregoing analyzes reinforces the conclusion that the testimonies of Milovich, Makowski, and Coy are not credible. The analyzes of Milovich, Makowski, and Coy plus the facts in the record as a whole yield insufficient basis to conclude that there existed on July 24 and thereafter a design done by Steinke in such an inept fashion as to be all "mumbo jumbo" and "screwed up." From the foregoing and the record as a whole it is concluded that the story of the messed-up design is a fabrication, that such a messed-up design did not exist. It follows that a messed-up design was not the cause of Steinke's discharge. J. Steinke Was Discharged Because of His Union Activities Having concluded that Ace's stated reasons for discharg- ing Steinke are shown and pretextual, it is further concluded that Ace discharged Steinke for his union activities. Ace had knowledge of Steinke's organizing efforts The General Counsel makes no showing of direct knowledge on the part of Ace of Steinke's union activi- ties.38 But it is well established that knowledge on the part of Ace may be inferred from circumstantial evidence or in appropriate circumstances absent direct evidence of knowledge. N. L R B. v. Schill Steel Products, Inc., 340 F.2d 568 (C.A. 5, 1965); A. J. Krajewski Manufacturing Co. v. N. L. KB., 413 F.2d 673, 676 (C.A. 1, 1969); N. L R B. v. Mid State Sportswear, Inc., supra, at 539; Wiese Plow Welding Co., Inc., 123 NLRB 616, 618. On this point it is considered that the following facts constitute such circum- stantial evidence. Crist had knowledge of Steinke's attempt to organize the plant. It has been found that Crist is a supervisor and on that basis undoubtedly passed this information on to Milovich.39 It is so found. The discharge followed immediately after the distribu- tion of union cards by Steinke and his solicitation of union 38 It is now well established that knowledge by Ace of Steinke's union activity is essential to a finding of Section 8(a)(3) violation- See N L R.B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5, 1969). 39 This finding is not altered in the event it should be decided that Cnst is not a supervisor Cnst's peculiar position with Ace as a contact man aligns him and his interests necessarily with management This is supported by Milovich's testimony when he named Cnst one of the four supervisors in the plant. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership. The cards were distributed on July 25. Milovich was going to let Steinke go the same day but could not do so because Steinke took the afternoon off. Milovich fired him at 7 a.m. on July 26, the first thing in the morning.40 This unreasonable haste to get rid of Steinke taken together with the facts (1) that Steinke worked for Ace for a little over a month and a half without any criticism of his work; (2) during which time the agreement to give him a 10-cent increase if his work was good was carried out; (3) that Steinke was used to redesign the work of other employees; and (4) the absence of any other cause for discharge, all combine to yield the conclusion that Ace had knowledge of Steinke's union activities 41 To the factor that Ace had knowledge of Steinke's union activities, add the factor of Milovich's known antipathy to the Union and to union activities and the stated absence of any legitimate reasons for the discharge. The sum of these equals the conclusion that Ace discharged Steinke for his union activities.42 It is so found. K. Milovich Interrogates the Employees The complaint alleges that Milovich illegally interrogat- ed Ace employees shortly after August 14, 1972. As shown hereafter the allegation is correct. Respondent contends that the questioning was legal; that Milovich spoke to the employees on September 8, 1972, the day Milovich was going to his attorney's office to be questioned by a Board Field Examiner; that the questions were to determine if the charges filed had any bases whatsoever; that Milovich was taking "a reasonable opportunity to prepare for his defense." The facts do not bear out Respondent's conten- tions. Accordingly it is found that by its interrogations, Ace violated Section 8(a)(1) of the Act. By letter dated July 26, 1972, signed by Downey, union business representative, the Union advised Ace that Steinke's discharge was for his union organizational activities and therefore illegal under the Act. The letter demanded reinstatement with backpay. By letter dated August 14, 1972, signed by the union grand lodge representative, the Union enclosed a copy of the charge against Ace filed by the Union in this proceeding. There was received in evidence paragraphs 9 and 10 of 40 Such haste combined with Miiovich's known antipathy to union activities destroys the possibility that the two events occurring on succeeding days is no more than a coincidence- Cf. White's Gas & Appliance, Inc., 202 NLRB 494, where the Board finds an illegal discharge based on "the precipitate timing and the circumstances" of the discharge- 41 The General Counsel suggests that the application of the small plant doctrine to show knowledge by Ace prior to the discharge. In view of the conclusion drawn above based on other appropriate circumstances than the small plant doctrine it is considered unnecessary to apply that doctrine here. If the small plant doctrine were considered, it would support the conclusion of the illegal discharge. In that context, the comparative smallness of the plant is noted, as well as the fact that at least three of the supervisors and President Milovich were almost continuously with and among the designers at all times. Famet, Inc, 202 NLRB 409 42 Cf. Santa Fe Drilling Co. v. N.L.R.B., 416 F.2d 725, 731 (CA. 9, 1969). 43 These paragraphs and paragraph 7 of the affidavit were received in evidence for impeachment purposes. Paragraphs 9 and 10 were also received for admissions contained therein made by Milovich. an affidavit dated September 8, 1972, given by President Milovich on that day to a Board Field Examiner.43 Paragraphs 9 and 10 in pertinent part stated as follows: 9. On or about July 27, 1972 1 received a letter from Robert Downey, the Local Agent for the IAM. This letter stated that I had discharged Steinke for his efforts in trying to organize the designers of the shop. I showed this letter to Coy, Makowski, Emery Szabo, the Chief Die Designer, and Bill Hatch, the Assistant Supervisor under Coy . . . . Approximately ten days later, I received a letter from Wiggins, from the IAM, from their Washington, D. C. offices. This letter informed me that charges were being filed with the NLRB over Steinke's discharge . . . . Then I went to Emery Szabo, and then to all of the other employees, and asked them if they had been approached by Steinke while he was working there to join the Union, the IAM. Szabo said that he had no knowledge of this matter, and when I talked to all of the other employees, and there are 27, only six (6) of them said that Steinke had approached them. The six men that said that Steinke had talked to them are: Greg Minich,44 Gene Durbin, Ted Fliss, Bud Stragia,45 Larry Crist, and John Pinter. I asked all of these men if they were given, or had signed cards for the Union, and that all told me that they had not gotten a card for the Union and had not signed a card for the Union. They all told me that they had given Steinke a negative answer when he approached them. I assured all of them that if they wanted to organize, that they were free to do so. 10. A few days later, I received copies of the instant charge with the NLRB and took these copies to my attorney, Jim Oberfell ... . At the hearing Milovich at first denied that he ques- tioned the employees about Steinke's union activities.46 Immediately afterward he admitted questioning the four supervisors and later that he spoke to 10 employees on September 8.47 At the hearing Milovich denied that he spoke to all the employees shortly after receiving the August 14 letter as stated in the affidavit. He admitted that on August 17 he spoke to Coy, Makowski, Szabo, and Hatch and no one else.48 At the hearing Milovich admitted that he spoke to 10 employees on September 8, 197249 Milovich listed the 44 Correct spelling Meuninck. 45 Correct spelling Strahia. 46 The question and answer were: Q. Did you at any time question your employees, or any of them, concerning the Union activities of Mr. Steinke? A. I never questioned them. 47 See fn. 49. 48 A little later he changed his testimony and listed Cnst for Makowski 49 Milovich identified the day by date and event. He testified When I received a call from my attorney, Mr. Oberfell, that the field examiner from the National Labor Relations Board wanted us in his office for questioning to fill out an affidavit, that morning about eight o'clock, which was September 8th, I walked up to Emery Szabo and said, "I am going to ask your designers if anybody has been approached by Mr. Steinke." It is noted that it was being prompted by his counsel that Milovich recalled telling the men he questioned "that he was going to give an affidavit that day to a field examiner." ACE TOOL ENGINEERING CO. 115 names of 7 of the 10 men. Included among them were Meuninck, Strahla, Durben, and Flis.50 He stated that 5 of the 10 men admitted that Steinke had approached them about the Union. Meuninck testified on behalf of Respondent. He stated that Milovich spoke to him about September 1, 1972, and 11 .. said that, he had received a letter in the mail about ... Carlton Steinke was trying to form a union ... he asked me if I was approached; and I said `Yes' and that's all." On cross-examination Meuninck stated that the conversation occurred a few weeks after, Steinke's dis- charge and could have been as little as 2 weeks afterward. Further he stated that Milovich had said "he had received a letter through the mail accusing him . . . of dismissing Steinke of union activities ...." Strahla testified on behalf of Respondent and stated that Milovich spoke to him on September 151 Milovich asked if Strahla had been "spoke[n] to, or approached," for a union. Strahla answered "yes. " There was no mention in his testimony of a letter or a charge or examination by a Field Examiner. Durben testified on behalf of the Respondent. He stated that Milovich spoke to him the "first part of September." "[He] wanted to know if I was approached by Carl about the Union, and I said I was ..... "He said that he had received a letter or something where he had to appear Milovich testified emphatically he did not speak to Crist about Steinke's union activities. Crist testified on behalf of Ace. He stated he "was walking behind Makowski's board. Milovich was there talking about having to go to court because of the Union or something and [he] asked me if Mr. Steinke had said anything about a union, or ap- proached me about joining a union, and I said yes. And he said `Oh, when?' and I says, `Some time back,' and that was all.,, Milovich testified he spoke to employee Anderson on November 17, 11 days before the hearing. Milovich stated that he spoke to Anderson on that date because Anderson was on vacation on September 8 when he was speaking to the Mother employees.52 Anderson testified to a conversa- tion with Milovich that occurred about 2 weeks before the hearing: 53 A. Well, he just said that he had a letter from-I don't know whether it is the,union, Board, or who right now-but I know he said he got a letter from them, and he wanted to know if I had been approached by Mr. Steinke and I said, "Yeah." Milovich testified he asked all 10 men the same question, "to-wit" "I understand that Steinke was organizing the designers. Is it true?" In each case he said he received the same response, "He approached me and I told him I wasn't interested, to keep away." To which Milovich replied, "I wasn't aware that you men were approached and I just wanted to know how many men or what was going on." Milovich also testified that he told the men "they had a right to organize if they wanted to, and they all gave me a negative answer they told me they didn't want any part of it or Mr. Steinke." Milovich modified the foregoing when he testified concerning five of the employees who admitted to him that Steinke had approached them. On questioning from his counsel he stated that the five had responded negatively to Steinke. On cross-examination, Milovich stated he did not recall making the last statement. Then the following colloquy occurred: Q. You testified to your attorney here that each of these five men's response to Mr. Steinke was in the negative... . A. It was negative, that is true. Q. So there was some process by which you found out what each of these men's response to Mr. Steinke was concerning the Union? A. Yes. Q. So you must have asked them the question, `Well what did you tell him,' or something like that. A. My approach was that the field examiner is coming today and I want to know if the men are being approached or not by Mr. Steinke and I wanted to know, so they told me they were, and I said, `What's your reaction?' And they said in the negative, that's it. Q. O.K., so you then went ahead and asked each one of the five that were approached what their reaction to Mr. Steinke was? A. All right, yes. Milovich did not deny at the hearing that he asked the employees whether they had signed cards or not. His testimony on this point follows: Q. Are you denying at this point in time that you asked these employees if they had signed cards for the Union? A. I don't know. The only time I know anything about cards is when Mr. Downey sent me a letter that cards were given out and the men told me they never received any cards. Q. Then you must have asked the men. A. Well they told me afterwards, see. I mean, this is just last week or so. Q. Your affidavit says ... `I asked all of these men if they were given or had signed cards for the Union?' A. I must have asked them, I don't remember.54 50 He did not name the other three men. He denied that he spoke to Pinter though that name was listed in the affidavit. st On' cross-examirtation, Strahla changed this to "around the first of September." 52 This is another instance of Milovich's contradictory statements. It was stipulated by counsel that Anderson was on vacation from August 5 to August 26, 1972. There is no evidence that he was on vacation on September 8, 1972. It is noted that Anderson's vacation period contained the August 14 date when the second union letter was received and August 17, the date when Milovich stated he had shown the letter- to four men only. Anderson being on vacation in August would more likely account for Milovich not speaking to him. 53 Anderson was asked if he had talked this matter over with counsel for Respondent. He answered in a rather incomprehensible manner. "yes sir, two weeks ago when Walt [Milovich I got the letter, that's when he talked to me." sa That Milovich's memory is very selective is shown by the answer to questions put by his Counsel as follows: Q. (By Mr. Oberfell) All right, Mr Milovich, if you can recollect, each of these five men, however many there were, what answers did they give to you when you asked them if they had been approached by Mr. Steinke) A. Should I give the individual of each person Q. If you can remember, certainly. (Continued) 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. O.K., so you are not denying that you asked them. A. I don't know, the only thing I asked them is they have a right to organize if they wished. Conclusions as to Interrogation of Employees The foregoing shows clearly the contradictions and vagueness contained in Milovich's testimony concerning his interrogation of the men. These contradictions strongly support the conclusion that Milovich's testimony is generally not creditable. Meuninck, Strahla, and Durben testified they were questioned by Milovich on September 1 or thereabouts. None of them mentioned that Milovich had told them he was to see the Field Examiner. Their testimony is direct refutation of Milovich's statement that he questioned them on September 8. Some doubt is raised about the September 1 date by reason of the testimony of Meuninck and Durben. In their testimony they state that Milovich referred to a letter from the Union. The letters in question were either the July 26 one or the August 14 one. The allusion to the letter and the time involved make it appear reasonable that Milovich spoke to them (and probably other employees) on or about August 17 as he stated in paragraph 9 of the affidavit. Milovich admits that he asked a number of employees about Steinke's approach to them to join the Union and that he probed further to find out what the employees reactions were. Such questioning is improper under the Act. The record shows that Meuninck, Anderson, Strahla, Durben, Crist, and Makowski do not admit that Milovich asked them about union cards. Their testimony is not considered conclusive on this point. Milovich's statement contained in paragraph 9 of the affidavit is considered a valid admission of the type of interrogation that Milovich had carried on. This admission receives full support from Milovich's failure to deny that he had asked such a question. From the foregoing and from the record as a whole it is concluded that Milovich on or about August 17, 1972, illegally interrogated employees about their union activities and interests; that the questioning was not an attempt to procure information in preparation for his defense in a future unfair labor practice proceeding. Nothing in the record shows that Milovich gave any of the employees questioned any assurances of freedom from reprisal as is required by law.55 Such questioning was an interference with the rights guaranteed to employees by Section 7 of the Act and this violative of Section 8(a)(l) of the Act. It is so found. L. Crist Did Not Threaten the Employees The General Counsel contends that Ace violated Section A I can remember very good. Durben said that he didn't want no part of Steinke, he was a troublemaker. That was Durben's reaction His said that he worked at Bendix and the Union somehow pushed him out, and he didn't have any use for it. I told him I wasn't interested in his statement. Meuninck said that he was causing a lot of trouble in talking, and I even asked Bud [Strahla ] what he reaction was, and he told me he wasn't interested, and he said he was always pestered by Steinke turning around 8(a)(1) of the Act when in July 1972 Larry Crist threatened employees with plant closure because they were engaging in union activities. According to Steinke he spoke to Crist on two occasions. Each time, the latter stated that organizing the plant had been tried before and had failed; and that he (Crist) thought "Mr. Milovich would shut down operations if we do . . . organize." As stated above, Crist admits that he made a not too dissimilar statement to Steinke on one occasion. Whether he .did so on one or two occasions is of no significance. It is found that under the circumstances under which Crist spoke to Steinke, his statements were neither coercive or threatening within the meaning of Section 8(a)(1) of the Act. The record clearly shows Milovich's opposition to the organization of . Ace. The record is devoid of any information about Crist's attitude on that subject. The testimony clearly shows that Crist was doing two things in the statements he gave to Steinke: (1) he was giving Steinke some past history; (2) he was stating an opinion of what Milovich might do if organization occurred. Normally, Ace is responsible for the actions of its supervisors. However, here an isolated instance of conversation occurred that the General Counsel has not sufficiently nor significantly tied into Milovich's and Ace's attitude toward the Union. When Steinke held the conversations, he did not know that Crist was a supervisor.56 Nor is there any evidence that the conversation occurred in the presence of any other employee. It is concluded that Crist's statement or statements were informational and conversational; that as a statement made from one employee to another they had no tendency to interfere with, restrain, or coerce employees with regard to the rights guaranteed them under Section 7 of the Act. Accordingly, the Crist statements were not violative of Section 8(a)(1) of the Act. M. Milovich called Steinke an Obscene Name The General Counsel alleges that in mid-August, Milovich called Steinke a derisive name because of his union activities thereby violating Section 8(a)(1) of the Act. The facts are simple. Steinke and his wife and two children were in their automobile going north on Walnut Street in South Bend approaching the intersection of Sample and Walnut Streets. At or about the same time, Milovich was going South on Walnut Street approaching the same intersection . In the Milovich car were his son George and Michael J. Polovina, both employees of Ace. As the cars passed each other Milovich called Steinke a "f-khead." A question was raised at the hearing as to whether that was the word used by Milovich. It is concluded that it was. Steinke testified he said, "you f-khead or something like that-you f-khead." Mrs. Steinke confirmed the word. Milovich's son testified he didn't think it was "f-khead." and talking to him, and he was very moody many, many times. Milovich did not testify to what the fifth man said. The Board has said, "Questioning of selected employees about their union sympathies ... without any assurance against reprisal , by its very nature tends to inhibit employees in the exercise of their right to organize." Engineered Steel Products, Inc., 18& NLRB 298. 56 There is no evidence in the record to show that he knew Crist was a supervisor before the discharge ACE TOOL ENGINEERING CO. 117 He thought the word was "hot head." Polovina testified he heard Milovich say, "Look at the hot head." Milovich did not testify on this subject. It is concluded from the foregoing and particularly in light of the failure of Milovich to testify that he did call Steinke a f-khead. The writer has heard many words derisive, obscene, corrosive, etc. This is the first time in his experience that he had heard this one. There is no question in the writer's mind that the word is uncomplimentary and was meant to be scorching, belittling and derisive. The General Counsel states that "the fact that it took place away from Respondent's plant, on the city streets, and in the presence of Steinke's wife and small children makes this incident all the more reprehensible." But the question we are dealing with here is whether the incident is violative of the Act. The answer is in the affirmative. Steinke, having been discharged in violation of Section 8(a)(3), is still under the Act an Ace employee. Milovich's use of the word accents the antipathy that Milovich had for Steinke because of his union activities. It is concluded that Milovich was telling Steinke that insofar as Ace was concerned Steinke could never work there again if he were an active union supporter. It is concluded further that Milovich' s son and Polovina who were in Milovich's car at the time must have received the same impression. It is considered that such an impression becomes circulated among the other employees at Ace. Such language under such circumstances constitut- ed interference with, restraint, and coercion of employees of the rights guaranteed them under Section 7 of the Act. It is found that Milovich calling Steinke a f-khead was a violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Ace set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the foregoing findings of fact and upon the entire record I make the following: with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 4. By discriminatorily laying off Carl R. Steinke and refusing to rehire him, Ace had interfered with, restrained, and coerced its employees in the exercise of their right to self-organization and to engage in concerted activities for their mutual aid or protection, in violation of Section 8(a)(1) of the Act, and has engaged in discrimination in regard to tenure of employment and terms and conditions of employment which discouraged membership in a labor organization, in violation of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in unfair labor practices, violative of Section 8(a)(l) of the Act, the recommended Order will direct that Ace cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that Steinke was discriminatorily dis- charged in violation of Section 8(axl) and (3) of the Act, the recommended Order will direct that the Company offer to Steinke immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and to make the above-named employee whole for his losses resulting from Ace's discrimination against him, by payment to him of the sum of money he would have normally earned from the date of his discharge until the date on which Ace offers him reinstatement, less his net interim earnings during such period. Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because the discriminatory layoff goes to the very heart of the Act,-57 in view of Ace's other unfair labor practices, the recommended Order shall be a broad cease-and-desist Order, considered necessary and appropriate to protect employee rights and to effectuate the purposes of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: CONCLUSIONS OF LAW 1. At all times material herein Ace Tool Engineering Co., Inc., was engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein District Lodge 103 of the International Association of Machinists and Aerospace Workers, AFL-CIO, has been a labor organization within the meaning of Section 2(5) of the Act. 3. By various acts and conduct spelled out above including interrogation of employees about their union activities and calling Steinke a f-khead Ace has interfered 57 N.L.R.B. v Entwistle Mfg., Ca, 120 F.2d 532 (CA. 4), enfg. as modified 23 NLRB 1058. 58 In the events no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, ORDER58 Ace Tool Engineering Co., Inc., its officers, agents, sucessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge 103 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by laying off employees or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees about their union activities. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Calling its employees "f-khead" or any other obscene or derisive names for the purpose of interfering with, restraining, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain therefrom. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Carl R. Steinke immediate and full reinstate- ment to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for loss of pay in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 59 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in South Bend, Indiana, copies of the attached notice marked "Appendix." 59 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to the allegations not found herein to be unfair labor practices. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. "