North Star Refrigerator Co.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry Magnusen d/b/a North Star Refrigerator Co. and Hector Padron and James A. Dyche. Cases 31-CA-3556 and 31-CA-3567 November 20, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO California, on May 10, 11, 14, 15, and 16, 1973. The charge in Case 3I-CA-3556 was filed January 30, 1973, by Hector Padron, an individual (herein called Padron). The charge in Case 3l-CA-3567 was filed February 6, 1973, by James A. Dyche, an individual (herein called Dyche). The consolidated complaint issued April 10, 1973, alleging that Harry Magnusen d/b/a North Star Refrigera- tor Co. (herein called Respondent) violated Section 8(a)(1) and (3) of the Act. On July 10, 1973, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Harry Magnusen d/b/a North Star Refrigerator Co., Sun Valley, California, and his agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. I 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, 1951). We have carefully examined the record and find no basis for reversing his findings. Likewise, we find without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge. We perceive no evidence that the Administrative Law Judge prejudged this case, made prejudicial rulings, or demonstrated a bias against Respondent or its counsel in his analysis or discussion of the evidence. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: These consolidated cases were tried before me in Los Angeles, I Respondent argued at the trial and in its brief that Mann improperly was named in the complaint because he did not file a charge. It is elementary that a person alleged in a complaint as unlawfully aggrieved need not have filed the underlying charge. E.g., Brophy Engraving Company, 94 NLRB 719, 720, In. 3. 2 Respondent, although admitting in its Answer all of the jurisdictional allegations of the complaint, argues in its brief that "the charging parties have failed to offer any evidence to support the allegations in Paragraphs Issues The issues are whether Respondent: 1. Discharged Padron December 4, 1972; William Mann, January 22, 1973; and Dyche, January 31, 1973, because of their union or concerted activities, in each instance violating Section 8(a)(3) and (1) of the Act.' 2. By statements of Cyrus (Jack) Holt, its general foreman, and Harry. Magnusen, its owner, interfered with, restrained, or coerced its employees in violation of Section 8(a)(1) of the Act. The parties were given full opportunity at the trial to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs, which have been carefully considered, were filed for the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a proprietorship located in Sun Valley, California, engaged in the manufacture and installation of commercial walk-in refrigerators. In the 12 months preceding issuance of the complaint, Respondent sold goods valued in excess of $50,000 to firms located within California which in turn sold and shipped goods valued in excess of $50,000 directly to customers outside California. I find that Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7) of the Act .2 H. LABOR ORGANIZATION INVOLVED United Furniture Workers of America, Local 1010, AFL-CIO (herein called the Union), is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2(a) and 3 of the complaint . . . . Therefore, Respondent contends that he cannot be found in violation of Section 2(6) and (7) of the Act." To now entertain this argument would prejudicially subvert the issue-narrowing function of pleadings. The argument therefore shall be disregarded. 207 NLRB No. 85 NORTH STAR REFRIGERATOR CO. 501 III. THE ALLEGED UNFAIR LABOR PRACTICES3 A. Chronology of Events Respondent had approximately nine production and maintenance employees at all relevant times. In late October 1972, Padron and two other of the employees, James Wilia and alleged discriminatee, William Mann, met at Padron's house to explore ways to improve their working conditions. This led to Padron's telephoning Apolinar Espuda, the Union's business manager, about November I to inquire about union representation. Espuda and Rudy Ybarra, also an official of the Union, met with Padron at his home Saturday, November 4, leaving with him several blank authorization cards. The following Monday, November 6, at work, Padron divided the authorization cards with Dyche, and the two began to distribute them among the employees. Dyche gave cards to Bobby Henderson and Frank Kauffman, Jr.; Padron to the remainder of the employees. Four signed cards were returned to Padron in the next couple weeks, which, together with his own, he delivered to the Union's Ybarra Wednesday, November 22. While the cards were in circulation, Padron, Dyche, and Mann frequently talked among themselves and with the other employees about the need for some kind of union. Dyche and Mann each specifically asked Henderson and David Peevy if they were going to sign cards. Both replied that they had doubts about the suitability of the Union for Respondent's operation, because of the distance of its office from the plant and because its name did not connote sufficient craft kinship-doubts with which Dyche and Mann expressed some sympathy, On Monday, November 27, the next work day after Padron's delivery of the cards to the Union,4 Jack Holt, Respondent's general foreman,5 inquired of him, "Hector, do you belong to any union?" Padron replied that he did not, but that he had belonged to the Union at one time. He then showed Holt his old membership card. Holt asked Padron when he had been a member, to which Padron answered that it had been in 1960, when he worked for a firm named Meadowcraft. Holt next commented, "I have problems here." Padron asked, "What kind?" Holt said, "Oh, nothing," and the conversation ended .6 3 Effort has been made in this decision explicitly to resolve all germane conflicts in evidence. It should be assumed, where conflict is not indicated, that evidence from all sources is in substantial agreement. 3 Thursday, November 23, was an off day because of Thanksgiving. Friday, November, 24, was an off day because Respondent had in effect a 4- day workweek, Monday through Thursday. 5 Holt was the immediate supervisor of all production and maintenance employees. His personnel and production recommendations almost invari- ably were implemented. I find that he was a supervisor within the meaning of the Act B Holt did not expressly deny that this conversation occurred. The closest he came was when Respondent's representative, reading almost verbatim from paragraph 8 of the complaint, asked him, "Did you ever interrogate any employee regarding his union sentiments and activities?" Holt answered, "No" In view of Padron's detailed and plausible recital, and further in light of the self-servingly vague, ambiguous, and exaggerated character of Holt's testimony in other respects , I regard Holt's negative answer on this occasion to be more of an evasion than a denial of Padron's version, and credit,Padron. 7 Holt did not expressly deny that this conversation occurred. The closest he came was when Respondent's representative, reading almost The following Thursday, November 30, Holt showed Padron a blank authorization card of the sort Padron recently had distributed, and asked if, he knew anything about it. Padron answered that he did, prompting Holt to say, "You are a very good worker. The best kind of painter we have had here ... good luck." The next work day, Monday, December 4, when Padron arrived at the plant, Holt said to him, "I am sorry, but the Union is never going to be here." Padron: "Why? I have all the cards signed." Holt: "That's not true. You don't have the majority." 7 At the end of that same day, Holt told Padron that he was laid off, citing lack of works When Padron returned to the plant to get his things, 2 days later, he and Holt had further conversation about the Union. Holt said that he did not believe that the Union had a majority; that he knew, "more or less, those who could be with me and those who could not be with me." Padron reminded Holt that he had obtained the signed cards and Holt conceded that he knew that .9 On his way through the shop after this conversation, Holt commented to Mann, "What's this, Hector claiming to be a union organizer?" Sometime in early December-whether before Padron's layoff cannot be determined from the record-Holt said to Dyche, "Gee, I hope this union thing doesn't go through," prompting Dyche to ask, "What's going on with the union?" Holt elaborated: "We have a union organization going on here. Harry [Magnusen] can't stand it. We can't have anything like that. We will go out of business. I am not going to stand for any talk of it and I am not going to listen to any more stories about Bill Mann. If I catch Bill Mann or any other son-of-a-bitch talking about the Union, they are going to be out the door." 10 The Union filed for an election among Respondent's production and maintenance employees on December 15.11 On December 20, Holt, Owner Magnusen, and John Lannon, Respondent's engineer, held an employee meeting to deflect support from the Union. Magnusen used a paper obtained from a manufacturers' association, captioned "What Management and Supervisors Can and Cannot Do During a Union Organizing Drive," as a guide for his comments, reading portions of it and using other portions as lead-ins for comments of his own Ys Magnusen stated, among other things, that if the Union were voted in, the present 10-hour day, 4-day week would be replaced by a verbatim from paragraph 9 of the complaint, asked him, "Did you at any time create the impression that the company ... had employee union activities ... under surveillance?" Holt answered, "No." Padron is credited on the reasoning contained in the preceding footnote. X Padron's layoff is treated in detail below. 9 Holt's and Padron's versions of this conversation are in substantial accord. 70 Holt did not expressly deny that this conversation occurred. The closest he came was when Respondent's representative, reading almost verbatim from para. 10 of the complaint , asked him, "Did you at any time during the month of December. at your place of business, threaten any employees with discharge if they tried to organize a union in your plant?" Holt answered, "Definitely not." Dyche is credited on the reasoning applicable to Padron and contained in fn. 6, supra. 11 Case 31-RC-2305. 12 Magnusen originally testified that his remarks were limited "exclusive- ly" to the paper, and that he made no "side remarks " Holt confirmed that Magnusen hewed "exactly as . . written" to the paper. Their later testimony removed any doubt, however, that the paper was merely a loose guide- 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conventional 5-day, 40-hour week; and that the economics of the situation would compel layoffs, whereas without a union it was Respondent's policy to keep the employees on the payroll year around, slack times included. Magnusen also commented, "A guy works his life to get business and a union comes in and screws it up." Holt added that the Union, would require the employees to be reclassified and would prohibit work across classification lines, the result being that they would lose compensable hours.13 After a time, the meeting was opened for comments from the employees. Mann and Dyche were particularly vocal. Mann complained that the employees needed family health insurance, sick leave, and higher wages; and suggested, in light of Respondent's history of broken promises in those areas, that a union likely would be the only way to get results. Mann urged the others to speak up as well: "Now is your time to speak. You have a chance." At one point, Mann challenged Magnusen and Holt why Padron had been released. To their reply that Padron's job had been "phased out," Mann said, incredulously, "Come on!" Dyche strongly echoed Mann's sentiments. At length, Mann asked the management officials to leave the meeting. They obliged, whereupon Dyche raised the issue of the Union's suitability to the employees, and proposed a company union as an alternative. He related that he once had belonged to the Carpenters Union and suggested that, should a company union not succeed, the Carpenters Union might be appropriate. The employees voted whether to deal with Respondent through the Union, or through -a company union. The latter prevailed, and Magnusen and Holt were summoned back to the meeting to be told the-to them-good news. Holt said that Respondent could not make any promises because of the pendency of the election, but that itwould try to deal with the employee group. The employees decided that they all should- sign a petition disavowing their support of the Union, and send copies to the NLRB and the Union. Dyche prepared such a document, all the employees signed it; and the next day Magnusen drove Mann to the post office to-nail it.14 On December 20, after the meeting, Holt asked employ- ee Bobby Henderson, in a tavern conversation, if he had known that the employees wanted a union. He then told Henderson that Respondent could not afford a union, and would fight having one.15 NLRB processing ' of the representation case continued despite the employee petition disavowing the Union. Respondent and the Union entered into a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director for Region 31 of the National Labor Relations Board on January 5, 1973. The election ensued Thursday, January 18. The tally was I vote for the Union, 5 against. The result was certified by the Regional Director January 29. The morning of the election, Mann and Holt got into a tiff whether Jay Blair and Frank Kauffman, Jr., should 13 Magnusen and Holt both denied mentioning what might happen were the Union to get in, asserting that their stress was a positive one on conditions then in existence. Dyche, Mann, and David Peevy all testified, contrarily, that Magnusen and Holt spoke in the manner above set forth. They are credited because the weight of probability supports their version, and because of the self-serving vagueness, ambiguity, and exaggeration that vote. Mann argued that they were not qualified because they had not bothered to attend meetings to acquaint themselves with the issues. Holt, in Mann's words, became "very indignant." That same morning, Dyche circulated maps among the employees giving directions to his house. The employees planned to meet at Dyche's that evening further to formulate plans for a company- union. The meeting never materialized because of a street flooding rainstorm. Mann was discharged January 22; Dyche, January 31. About the time of Mann's discharge-"shortly before he left there," to quote Magnusen-Mann told Magnusen that the employees needed, and would work better if they had, more money and improved insurance coverage. Holt, when asked his attitude toward the Union, testified, "Naturally, we were not in favor of it at the time .... [we] didn't feel that a union was applicable to our trade." He added that he and Magnusen on occasion had discussed the standards of the Cabinet Makers Union, which apparently is common in the refrigeration industry, deciding to, strive to "have our standards and goals equal to that as fast and rapid as we could." , B. The Discharges Examined Padron. As stated earlier, Padron was laid off by Holt at the end of the workday, Monday, December 4, 1972. He was hired in June 1972, primarily to spray paint wood refrigerator boxes. Painting did not occupy all his time, however, so he also did sundry other things: making deliveries, doing janitorial work, assisting in carpentry and in the installation of refrigeration boxes, etc. Holt told Padron, at the time of the layoff, that Respondent was "absolutely satisfied" with his work, but there just was not enough for him to do. Padron's response is in dispute. Holt testified that he said, "I understand." Padron testified, that he argued that there was plenty of work and accused Respondent of an antiunion motivation. He said that Holt made no reply to the antiunion accusation. Padron later asked -Magnusen for a letter explaining the layoff. Magnusen declined on the ground that such letters are against company policy. The decision to lay Padron off was a joint one of Holt and Magnusen. Holt testified that it had been under consideration for three or four days, and was prompted by a diminished need for a painter. This diminution of need, they explained, was because of the advent of the rainy season and because Respondent was shifting from wood to metal refrigeration boxes. Painting, which was done outside, could not be done in the rain; and the metal boxes do not require paint. The shift to metal was precipitated in large part by the soaring cost of plywood, according to Magnusen. In the 6 months beginning with August 1972, he testified, Respondent produced approximately 4 wood boxes and 27 of metal. The number previously was about evenly divided. Magnusen testified that it takes from 2 to 5 characterized certain of Magnusen's and Holt's testimony in other respects. ii The General Counsel neither alleged nor argues that a violation occurred regarding this petition. 15 The General Counsel neither alleged nor argues that a violation occurred regarding this conduct of Holt. NORTH STAR REFRIGERATOR CO. 503 hours to paint a wood box. Such painting as has been required since Padron's departure has been done by the several employees on a catch-as-catch-can basis. Holt and Magnusen testified that, before deciding to lay off Padron, they tried him out doing tasks other than painting, but that he did not show enough promise, relative to others, to be retained in preference to them. Both Holt and Magnusen testified that different people Padron worked with in this fashion complained about him, Holt attributing complaints to Jesus Andina, to David Peevy that Padron could not saw 2 x 4 boards within tolerance, and to Bud Xander that Padron "wasn't much help" in applying plywood "skins" to wood refrigerator boxes. Holt did not describe the character of Andina's complaint. When Andina later testified to the point, as Respondent's witness, he in no way corroborated Holt either that Padron's work was inadequate or that he ever complained about it. Neither Peevy nor Xander was called by Respondent in corroboration of Holt and Magnusen. Padron's role as spearhead of the Union's organizational drive, and Holt's three prelayoff conversations with him-November 27 and 30, and the morning of December 4-during which the topic narrowed from a seemingly innocuous inquiry whether Padron had ever belonged to a union to a discussion whether Padron had obtained a card majority for the Union, already have been described. Mann: Mann, as previously mentioned, was fired Monday, January 22, 1973-the first workday after the election. Holt summoned him to the office at the end of the day, where, in Magnusen's presence, he informed Mann that he was a good man, but would have to be let go "for talking too much." Holt did not reply when Mann countered that his union activities were the real reason. Mann was hired by Holt to be a sheet metal mechanic in April 1972. The two earlier had worked together for another employer. Of Mann's job competence, Holt testified:. "When he was on the ball and working, he is a hard man to beat. As far as accuracy and conscientious- ness; things of that nature." 16 Magnusen opined that Mann was a good craftsman, but that his output had been unsatisfactory for perhaps 6 or 7 months preceding the discharge. Mann received a raise from $3.25 to $3.50 per hour 4 to 5 months before the discharge. Holt and Magnusen both participated in the discharge decision. Holt testified that it had been under considera- tion for 2-3 months, initially because of Mann's excessive talking and wandering about the plant, and that three additional factors finally prompted the' decision: Mann wasted material, failed to keep the area around the shear he used clean, and was insubordinate. Magnusen attribut- ed one more reason: "It is no good to have a prima donna around just because [he's I an accurate man." Mann's insubordination regarding the placement of an A-frame storage rack "tipped the scales," according to Holt. The afternoon of the discharge Holt directed Mann to move the A-frame closer to Mann's shear. Two men were needed to do this. Mann and James Wilia were working together cutting sheet metal , Mann operating the shear and Wilia the brake. The two then would carry the tailored sheets to the A-frame for storage. Holt said that the placement of the A-frame wasted too many steps and presented a safety hazard. An hour or so later, noticing the A-frame in its original location, Holt confronted Mann. Mann explained that Wilia did not want it moved. Willa verified to Holt that this was so. Holt nevertheless asked Mann again that it be moved , and it was. Holt then went to the office, obtained Magnusen's concurrence that Mann be fired, and told the bookkeeper to prepare his final check. Holt testified that the A-frame may have been at the place from which he wanted it moved for "a number of days" before he asked that it be moved. Regarding Mann's excessive talking and , wandering about the plant, Magnusen testified that, two or three times a day "throughout his tenure there ... you could almost pick your date," Mann caused production slowdowns by leaving his shear and talking to other employees. Holt estimated that Mann in this fashion curtailed the prod- uction capabilities of the other employees by one or two percent. Holt added that Mann talked too much "over his whole entire employment . It became more at the last." Holt continued that "there was very few days that went by that he wasn't asked and pleaded with not to disturb other people and not to talk " Elsewhere in his testimony, as if in recognition that talking is a multiple-person phenomenon, Holt conceded that the great bulk of such admonitions-he fixed the figure at 75 percent-were not aimed specifically and solely at Mann. Holt testified that he "many times" warned Mann and Wilia, who frequently worked together on the shear as above described, about too much talking.17 Mann credibly testified, on the other hand, that while Holt repeatedly admonished the employees generally about excessive talking and congregating-a fact confirmed by several employee witnesses-he directed his remarks to Mann and Wilia only once.18 That was the day of the election, after the ballot count, when Holt said, "I am warning you guys, no speaking . . . I will do something about it this time." Mann in effect admitted, as did other employee witnesses, that he and the others talked of nonproduction concerns and congregated for social and union organizational purposes from time to time. But he also credibly testified, as did others, that a certain amount of talking was essential to a proper coordination of production functions, and that some "floating" around the plant was necessary to obtain blueprints and tools, which were in short supply. Mann's failure to keep the shear area clean and his wastage of metal, as Holt and Magnusen explained it, were related considerations. The longer salvageable metal was left on the floor around the shear, they said, the greater the likelihood of its being walked on and ruined for future use, and of its causing injury. There is no evidence of an injury so caused . Magnusen said he talked to Mann 2 or 3 weeks before the discharge about keeping his area cleaned up. Mann's espousal of collective bargaining from the time 16 Further in this vein, Holt testified that Mann's "work was good as far admonitions, and "did keep on working" when Mann talked to him as tolerances and things of this nature is concerned, and . . . he was iR Mann is credited over Holt because his testimony almost invariably dependable, . . he was there all the time " was straightforward and internally consistent, whereas Holt, in his zeal to 17 Ostensibly in explanation why Wiha had suffered no discipline for his bulwark Respondent's position, sometimes was vague or self-contradictory, part in this, Holt testified that Willa "tried ... at times" to heed Holt's and frequently resorted to patent exaggeration 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union cards were in circulation; Holt's having told Dyche in December that if he ever caught "Bill Mann or any other son-of-a-bitch talking about the Union, they are going to be out the door"; Mann's outspoken prounionism at the December 20 employee meeting; Hoit's tiff with him the morning of the election over the qualification of two other employees to vote; and Mann's telling Magnusen shortly before his discharge that the employees would work better with more money and increased insurance coverage, have been detailed above. Dyche: Dyche, as noted above, was fired January 31, 1973. He had worked for Respondent for about a year in 1968-69, and from March 1970 until his discharge. His primary job was to install refrigerator boxes on customers' premises. His hourly pay when discharged was $4.25. As Respondent's senior and most knowledgeable installer, he generally was the leadman on installation jobs, the crew consisting of one or two additional persons. Holt conceded that Dyche's work "generally speaking ... was accepta- ble." The assessments of Dyche's fellow employees were more generous. Bobby Henderson stated that Dyche "had knowledge of lots of operations"; Frank Kauffman, Jr., observed that he "knew what to do when he was on a job"; Frank Kauffman III said that he "could handle jobs most of the installers couldn't"; and David Peevyjudged that he had "superior knowledge" of installation techniques. Magnusen told Dyche, at the end of the day, January 31, that he was not to report for work the following day, a Thursday, and should check with Holt the next Monday. Dyche went to the plant the next day anyway to talk to Holt. Holt told him that he was through, and that the "official company reason"-Holt used this phrase, accord- ing to Dyche's credited testimony-was lack of work. Dyche argued that this was a "ridiculous" reason, and asked if union considerations were involved. Holt or Magnusen, also present, said no. Dyche then asked if it had anything to do with the "ladder incident," discussed below, which likewise was denied. Holt testified that he never was satisfied with the installation times of Dyche's crews; that they frequently exceeded his and Magnusen's estimates. "Expectations" perhaps would be a better word, for such estimates never were put in writing, were not necessarily communicated to the installers beforehand, and of necessity were inexact because of complications, often not perceived until on a job, that demanded spur-of-the-moment customizing. Holt added, without specifics or documentation, that his dissatisfaction with Dyche's installation times was vindi- cated because times have reduced markedly since he left. Contrary to Holt, Bobby Henderson testified that installa- tions he was on went much more satisfactorily with Dyche than with Jay Blair, Dyche's successor as head installer. 19 Holt's testimony of the improved installation times after Dyche's departure is given no credence because of its vague and general nature, Holt's previously mentioned penchant for self-serving exaggeration, the failure of Respondent to bring forth documenting business records on an issue uniquely amenable to documentary proof, and because of Henderson's contrary and eminently plausible testimony. Henderson was a painfully conscientious witness, and plainly would have preferred not to say anything negative about Blair, whether in the abstract or relative to Dyche. Respondent made much during the trial and in its brief of Dyche's having indicated on a timecard for a San Diego job that he had worked the Henderson stated that while Blair "tried mighty hard," he was slow because of inexperience.19 Blair's experience dated from December 18, 1972, which was his first day of employment with Respondent. Holt further testified that he was displeased with Dyche's judgment, explaining that Dyche sometimes worked through the night to complete an installation rather than take time off to sleep, and that on one job he purchased 200 feet of extension cord when 100 feet would have sufficed. Concerning working through the night, the installers are given a subsistence allowance when on an out-of-town job. The plain import of Magnusen's testimo- ny, however, is that the employee has the option of working through and pocketing the allowance. Holt first suggested to Magnusen that Dyche be fired shortly after a Santa Monica job, in which Dyche assertedly took too much time in transit to and from, and a fire on a Camarillo job. It is not contended that the fire was Dyche's fault. The date of both these events was about December 18, 1972, which happened to be the Monday after the Friday on which the Union filed its petition for a National Labor Relations Board election. Holt said that he and Magnusen then decided to discharge Dyche "as soon as we could make other arrangements." Magnusen previ- ously had urged Dyche's discharge, according to Holt, but Holt always demurred, "No, we need him." Holt testified that Dyche's discharge was "actually triggered" by the ladder incident. This had its inception the day of the election. Dyche was leadman on an installation crew also consisting of Frank Kauffman, Jr., and David Peevy. As the crew prepared to leave the jobsite at the end of the day, a violent rainstorm erupted. In their haste to load their equipment on the truck, the crew loaded a ladder belonging to the customer. This was not discovered until the crew arrived back at the plant. Peevy decided to appropriate the ladder, told Dyche of this, and took it home. The following Monday, the customer asked Holt about the ladder and Holt quizzed each of the crew. Dyche, when asked, denied any knowledge of it. Peevy confessed when Holt later asked him. The ladder eventual- ly was returned to the plant, where it remained without return to the customer for at least 4 or 5 weeks. Explaining the significance of the ladder incident to the discharge decision, Holt testified that, if Dyche "lies about that, I wonder what else he lied about." Peevy apparently went undisciplined for his part in the matter. In the deliberations between Magnusen and Holt resulting in the discharge, Magnusen admitted that Holt "could have" argued against firing Dyche. Holt admitted that he "was somewhat a little reluctant to let him go," and that he "felt that Jim had some good points that we might be able to use Dyche did not perform any installation work after night of January 2-3. 1973, when he in fact had taken time off to sleep. Respondent did not discover this irregularity until shortly before the trial, and concedes that it could not possibly have figured in the discharge decision. If this were other than an isolated incident-there is no evidence that this sort of thing happened more than the one time-it of course would be corroborative that Dyche's installation times were inflated. But, as things stand, its only possible value is as a negative counterweight in assessing Dyche's credibility. Jay Blair, who was with Dyche in San Diego. did the same thing. To the time of trial, he still worked for Respondent, and had not been docked or disciplined in any way over it. NORTH STAR REFRIGERATOR CO. 505 election day, being assigned by Holt to more menial tasks-sanding, painting, working in the foam room, etc. In early 1972, while working in the foam room, he became "deathly ill," missing 3 days of work because of an allergy. Holt has a similar allergy, so never enters the foam room. As previously chronicled, Dyche played a lead role in the distribution of union cards, in expressing a need at the December 20 employee meeting for improved benefits and some kind of collective bargaining, and in furthering the idea of an effective company union by promoting a meeting to that end at his house on election night. C. Analysis I. The alleged independent violations of Section 8(x)(1)20 The General Counsel alleged in paragraphs 8, 9, and 10 of the complaint, respectively, that Respondent, acting through General Foreman Holt, "on or about November 30, 1972, . . . interrogated an employee regarding the employee's union sentiments and activities"; "on or about December 4, 1972, . . . created the impression that Respondent had the union activities of its employees under surveillance"; and "on or about December 1972, .. . threatened employees with discharge if they tried to organize a union in Respondent's plant." Having found as fact, in substantial conformity with those allegations, that Holt on November 30, 1972, asked Padron, while showing him a union authorization card, if he knew anything about it; on December 4, 1972, told Padron that "the Union is never going to be here," and that it was not true that the Union had a card majority; and another time in December 1972 told Dyche, "If I catch Bill Mann or any other son-of- a-bitch talking about the Union, they are going to be out the door," I conclude that Respondent in each instance violated Section 8(a)(1). The General Counsel further alleged, in paragraph i 1 of the complaint, that Respondent, acting through Holt and/or Owner Magnusen "on or about December 20, 1972, .. , at a meeting with Respondent's employees, .. . threatened employees with reprisals if they -selected the Union as their collective-bargaining representative." Hav- ing found as fact, in substantial conformity with that allegation, that Magnusen told the employees at the December 20, 1972, meeting that there would be layoffs and that the 4-day week would be eliminated if the Union were voted in; and that Holt told them in the same meeting that union-compelled enforcement of job classifications would deprive them of compensable hours, I conclude that 20 No conclusions are reached concerning the legality of conduct outside the scope of the complaint. 21 "[Ain employer is free only to tell `what he reasonably believes will be the likely economic consequences of unionization that are outside his control: and not `threats of economic reprisal to be taken solely on his own volition.' " N.LR.B. v. Gissel Packing Company, Inc., 395 U.S. 575, 619 (1969). The consequences forecast by Magnusen and Holt would not be totally outside Respondent's control unless Respondent's role in a subsequent bargaining relationship were one of abject docility-a supposi- tion without warrant on the present record. 22 Holt testified that he first learned of Padron's union activities-in- deed, that an organizing campaign was underway-during his conversation with Padron 2 days after the layoff. Magnusen testified that he never learned of the organizing drive, let alone Padron's part in it, until Respondent by each of these utterances additionally violated Section 8(a) (1).21 2. The alleged unlawful discharges I conclude that Padron, Mann, and Dyche all were discharged because of their union and other protected activities, in violation of Section 8(a)(3) and (1). My reasoning is as follows: Padron: Padron, to the time of his discharge December 4, 1972, was the Union's most prominent adherent in the plant; Respondent knew of his activities before the discharge as evidenced by Holt's three conversations with him, the first a week before, the last the morning of, the discharge; 22 and Respondent betrayed considerable hostil- ity to the Union, by the above-found 8(a)(l) violations and in various other utterances of Holt and Magnusen as well. Unlawful motive is further indicated by Magnusen's refusal, at Padron's request, to put the reasons for the discharge in writing; and by the lack and failure of corroboration of Padron's alleged job deficiencies when not painting. But most telling of all, Respondent's stated reason for letting Padron go-lack of painting-is egregiously trans- parent. As Magnusen himself testified, Respondent prod- uced only four wood boxes in the 6 months after August 1972 and it takes from 2 to 5 hours to paint a box. This means that, in the 4 months preceding his discharge, Padron spent at most 20 hours--or roughly 3 percent of his working time-painting. Obviously, then, the need for him as a painter ceased months before the layoff. Yet, by Holt's admission, Respondent first considered laying Padron off just 3 or 4 days before its occurrence, which coincided remarkably with Holt's initial conversations with him about his union membership and activities. Mann and Dyche: Among the factors underlying my conclusions that the discharges of Mann and Dyche violated Section 8(a)(3) and (1), in addition to Respon- dent's union animus and its earlier unlawful elimination of Padron, were their active participation with Padron in distributing cards or otherwise advocating improved conditions through collective bargaining while the cards were in circulation; their emergence at the December 20 meeting as vigorous spokesmen for the cause of bargain- ing; and the failure of the Union's election defeat to quell their quest for improved conditions and collective bargain- ing, as witness the storm-aborted meeting to be held at Dyche's election night and Mann's persisting with Magnu- Respondent received correspondence from the National Labor Relations Board about the Union's petition. Magnusen later altered his testimony, conceding that he may have learned of Padron's involvement "shortly after" the discharge Holt testified that he discussed the matter with Magnusen after the discharge. In light of the findings made above that Holt conversed with Padron about Padron's union activities three times before the discharge, it is only natural to assume-and I find-that Magnusen as well as Holt had knowledge of those activities before the discharge. The pretextuousness of Respondent 's explanation for the layoff, the smallness of Respondent's shop, and the other surrounding circumstances would support a finding of predischarge knowledge, however, even if none of the Holt- Padron conversations had occurred. See, e.g.. The Circle K Cnrporauon, 173 NLRB 713. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sen shortly before his discharge that the employees needed improved wages and other conditions 23 Other circumstances suggestive that Mann's discharge was unlawful were his superlative talents as a mechanic; Holt's earmarking him for discharge in December by telling Dyche that if he ever caught "Bill Mann or any other son-of-a-bitch talking about the Union, they are going to be out the door"; Mann's verbal affray with Holt over voter eligibility the morning of the election-the last workday before Mann was fired; and the insubstantiality and contradictions in Respondent's stated reasons for Mann's discharge. Concerning those stated reasons, Holt's testimony that Mann's A-frame insubordination "tipped the scales" smells of pretext, for Mann alone was incapable of moving it and, as Holt ascertained before the discharge, it was not Mann but his colleague, Wilia, who resisted its being moved. Moreover, that the A-frame had been in its original position for an indeterminate but perhaps considerable length of time before Holt directed it moved would indicate that its placement was not of such critical import as to precipitate the discharge of a person of Mann's talents, even if he were the resisting employee. Holt and Magnusen cited as additional grounds Mann's excessive talking and wandering around, yet the weight of evidence establishes that talking and moving around sometimes were necessary to the proper performance of work in the plant and that Holt, although time and again issuing oral reprimands to the crew in general for unnecessary indulgence in both, issued only one specifically to Mann-and that, significantly, right after the election. That excessive talking by Mann, as opposed to talking protected by the Act, truly was an element in his discharge is further discredited by Respondent's long-term tolerance of it-"throughout his tenure there," to quote Magnusen; and by Mann's having received a raise 4 to 5 months before the discharge despite Magnusen's contention that his excessive talking had curtailed production for the last 6 to 7 months. Nor is Respondent's position bulwarked by Holt's "calculation" that Mann's abuses regarding talking and walking around impaired the productive potential of other employees by I to 2 percent, which is to say 6 to 12 minutes in a 10-hour day. This kind of precise figuring so plainly is beyond the realm of human possibility, given the informal and unprogrammed nature of Respondent's plant and the welter of Holt's responsibilities besides monitoring Mann, as to bespeak a pseudo-technical "snow job." Finally, as to Respondent's other alleged reasons for discharging Mann-material wastage, failure to clean around his machine, and his being a "prima donna"-the first two are of so makeweight a character, remembering Mann's technical excellence, that they betray Respondent's lack of faith in the persuasiveness of its other stated reasons for Mann's discharge; and the third, together with the objections to Mann's talking, would seem in the circumstances to be an ill-disguised reference to his engagement in protected activities. As there are circumstances unique to Mann indicative of unlawful discharge, apart from those mentioned at the start of this section common to him and Dyche, so too are there circumstances special to Dyche. Dyche was a long-term, key employee; his work, by Holt's own admission, "generally speaking ... was acceptable"; and Holt admittedly "was somewhat a little reluctant to let him go." Dyche was removed from installation work the first workday following the election, being relegated to assorted unskilled and onerous tasks including work in the foam room that was known to make him ill; and was discharged a few days later. Respondent could not settle on a reason for the discharge or when the discharge decision was made, Holt telling Dyche at the time that the "official company reason" was lack of work and that the ladder incident on election day had nothing to do with it, yet testifying variously that the ladder incident was the triggering event; that the discharge decision was made long before that incident on about December 18, 1972; that Dyche's poor judgment was a material reason; and that his poor installation times were foremost. . To the extent that the multiplicity and inconsistency of Holt's sundry explanations of Dyche's discharge do not carry their own "death wound," even a cursory examina- tion of their substance does. Thus, just as Mann was singled out over the A-frame incident while a coworker more at fault was excused, so Dyche was singled out over the ladder incident while far the larger offender went unchastised. That Holt's stated reason to Dyche for the discharge-lack of work-was not a significant factor was revealed by Holt's labeling of it as the "official company reason," a virtual acknowledgement of dissemblance; and by the prompt replacement of Dyche with another head installer. Holt was able to specify, in support of his assertion that Dyche's judgment was wanting, only Dyche's inclination to work through the night, a practice that Respondent plainly condoned; and Dyche's once buying too much extension cord, a mistake so isolated and trivial that its mention can only be termed flyspecking. As for Dyche's allegedly poor installation times, Dyche's coworkers uniformly expressed high respect for his talents and Holt's testimony that times improved under Dyche's successor as head installer-a person of only a few weeks' experience-has been discredited.24 Holt's testimony in explanation of Dyche's discharge betrayed pretext not only in the flimsiness of its underlying substance, but perhaps even more so in its revelation of timing critical to Dyche's fate. First there was the decision on about December 18, 1972-the Monday after the Friday in which the Union filed its election petition-to discharge Dyche "as soon as we could make other arrangements"; then there was the "triggering" occurrence of the ladder incident, which had its inception on the day of both the election and the scheduled meeting at Dyche's house about a company union. Respondent's impulse to jettison Dyche thus seemed to "spike" at times of acute anxiety about the prospect of collective bargaining-times that Dyche as much as anyone was instrumental in bringing about. 23 1 find that Mann's predischarge protest to Magnusen about condi- tions, in the context made, was protected, concerted activity. Carbet Corporation, 191 NLRB 892. 24 See fn. 19, supra. NORTH STAR REFRIGERATOR CO. 507 CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing em- ployees as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By unlawfully discharging Padron, Mann, and Dyche as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section, 2(6) and (7) of the Act. 4. Respondent did not violate the Act in any other manner. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practices found, and from in any other manner interfering with, restraining, coercing, and discrim- inating against its employees. Affirmatively, it is recommended that Respondent be ordered to offer Hector Padron, William Mann, and James A. Dyche immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges; and to make them whole for any loss of earnings and other benefits suffered because of Respondent's discriminatory discharges of them. Their losses of earnings shall be computed as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W. Woolworth Company, 90 NLRB 289. 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: ORDER25 Respondent, Harry Magnusen d/b/a North Star Refrig- erator Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concerning their or other employees' union sympathies and activities. (b) Threatening employees with discharge because of their support of any labor organization. (c) Engaging in, or giving the impression of engaging in, surveillance of the employees' union activities. (d) Threatening employees with layoffs, elimination of the 4-day workweek, and enforcement of job classifications that would deprive them of compensable hours in the event that they select a union to represent them. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of any right guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Hector Padron, William Mann, and James A. Dyche immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges; and make them whole, as set forth above in the section entitled "Remedy," for any loss of earnings and other benefits suffered because of the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Sun Valley,' California, copies of the attached notice marked "Appendix." 26 Copies of the notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 25 All outstanding motions inconsistent with this recommended Order hereby are denied In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 26 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in Los Angeles, California, on May 10, 11, 14, 15, and 16, 1973, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition to these rights, we hereby notify our employees that: WE WILL NOT unlawfully interrogate employees concerning their or other employees' union sympathies and activities. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with discharge because of their support of any labor organization. WE WILL NOT engage in, or give the impression of engaging in, surveillance of the employees' union activities. WE WILL NOT threaten employees with layoffs, elimination of the 4-day workweek, and enforcement of job classifications that would deprive them of compens- able hours in the event that they select a union to represent them. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in - the exercise of any right guaranteed them by the Act. WE WILL offer to Hector Padron, William Mann, and James A. Dyche immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other 'rights and privileges; and make them whole for any loss of earnings and other benefits suffered because of the discrimination against them. Dated By HARRY MAGNUSEN D B A NORTH STAR REFRIGERATOR Co. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard , Los Angeles, California 90024, Telephone 213-824-7357.