Riverside Industries, Inc.

RIVERSIDE INDUSTRIES , INC. 311 Riverside Industries, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 16-CA-5015 January 10, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 24, 1973, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answer. 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 her 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, Riverside Industries, Inc., Tulsa, Oklahoma, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order. 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 her findings The Administrative Law Judge has dismissed certain allegations of violations of Sec 8(a)(3) and (1) of the Act In the absence of exceptions, we adopt these findings pro forma DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon charges and amended charges filed on December 20, 1972, and January 29 and March 30, 1973, by United Steelworkers of America, AFL-CIO-CLC, referred to herein as the Charging Party or the Union, the General Counsel, by the Regional Director for Region 16 (Fort Worth, Texas), issued a complaint and notice of hearing on March 30, a first amendment to complaint and notice of hearing on April 9, and a second amendment to complaint and notice of hearing on April 16, 1973. The complaint, as amended, alleges in substance that Riverside Industries, Inc., herein called the Respondent, by various acts and conduct, interfered with, restrained, and coerced its employees in violation of their Section 7 rights; transferred to less desirable work assignments, and later discharged, employees Kelly, Linnet, and Darnell, because of their union and concerted activities; and by such conduct engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. The Respondent, in its duly filed answers to the complaint and to the amendments to the complaint, admits some of the factual allegations of the complaint as amended, but denies that it has committed any of the alleged unfair labor practices. Pursuant to due notice, a hearing was held before me at Tulsa, Oklahoma, on May 23, 24, 25, and 29, 1973. All parties appeared at the hearing and were afforded full opportunity to be heard, to cxamine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, the General Counsel and the Respondent presented oral argument, and the Respondent made various motions to dismiss on which ruling was deferred. Subsequent to the hearing, briefs were filed by the General Counsel and the Respondent on or about June 29, 1973, which have been fully considered. The Respondent's motions to dismiss, renewed in its brief, are granted in part and denied in part for the reasons explicated hereinbelow. Upon the entire record in this proceeding and from my observation of the witnesses who testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Texas. It is engaged at its operation in Tulsa, Oklahoma, the only operation of the Respondent herein involved, in manufacturing and wholes- aling transmission towers primarily for the electrical industry. During the preceding 12 months, which period is representative of all times material herein, the Respondent, in the course and conduct of its business operations at its Tulsa, Oklahoma, facility, sold and distributed products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from its Tulsa facility to points outside the State of Oklahoma. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the Respondent in its answer admits, that United Steelworkers of America, AFL-CIO-CLC, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 208 NLRB No. 48 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES management, are required to wear hard hats in the plant, that the color of the hat indicates the position held by the wearer, and that categories of personnel are frequently referred to in the record by their hat colors. The managerial staff and all the foremen wear white hats, the leadmen green hats, the maintenance employees red hats, and the production employees yellow hats. With regard to the leadmen, the General Counsel presented some evidence as to their apparent exercise of supervisory authority, and argues that there would be a highly disproportionate ratio of employees and supervisors in some departments unless the leadmen are supervisors. The ratio varies considerably, however, in different departments and areas of the operations. Moreover, while the leadmen apparently stand one step above other employees in the Respondent's hierarchy, the credited testimony shows that they make only routine work assignments, transmit directions as conduits of the foremen or management, make changes in employee status with the approval of or clearance by a higher ranking individual, and make recommendations as to changes in employee status that are independently investigated by the foremen, the personnel director, or Hampton. Some employees earn as much as leadmen. Furthermore, the employees indicat- ed in their testimony that they considered the foremen, not the leadmen, to be their supervisors. 'i3ox, the vice president and regional manager of the Respondent until he resigned in July 1972, called as a witness for the General Counsel, testified credibly I that at the time of his resignation green hats did not have authority to hire, discharge, or exercise other forms of supervisory authority, and that this was done by the salaried foremen with the approval of the superintendent. Hampton, who had been away from the Respondent's employ for about 2 years, returned in August 1972. On August 7, apparently immediately after he returned, and prior to the union organizing activity, he issued a memorandum addressed to all foremen and leadmen on the subject of personnel actit ns involving hourly employ- ees, which provided as follows: Effective immediately, only foremen will have the authority to discharge an hourly employee. Only white- hats have the authority to discharge an employee for any reason. All hiring will be done through the Personnel Depart- ment only. Hourly employees, leadmen, and foremen may recommend applicants for hire, but the final selection decision is to be made by the Personnel Manager. All rate increases and status changes affecting the rate of pay of ANY employee must be approved by me personally. These may be recommended by leadmen and foremen, but the final decision is reserved by top management. When DeGraffenreed was promoted from leadman to foreman, he received a letter from Parrish, president of the Respondent, dated February 5, 1973, pointing out that he had acquired as a foreman the authority to hire (through personnel), terminate, approve overtime, recommend the A. The Issues The complaint, as amended, alleges (1) that certain named individuals, including a number of leadmen, are agents of the Respondent, acting on its behalf, and supervisors within the meaning of Section 2(11) and (13) of the Act; (2) that the Respondent, by such named individuals, on certain dates in December 1972 and January 1973, interrogated employees concerning their union membership and activities, threatened employees with discharge and warned employees that the Respondent would close its plant if they joined or assisted the Union, instructed employees not to engage in union activity or give any support or assistance to the Union, attended meetings called by the Union for the purpose of engaging in surveillance of the employees' union or concerted activity, promised employees it would eliminate undesira- ble overtime work if they refrained from membership in or activity on behalf of the Union, and maintained employee rules prohibiting solicitation during working hours or work stoppages on penalty of discharge; (3) that the Respon- dent, on specified dates, issued a warning notice to employee Linnet, transferred employees Kelly, Linnet, and Darnell to less desirable work assignments, and terminated these three employees because they joined or assisted the Union or engaged in other union or protected concerted activities; and (4) that the Respondent has by the foregoing conduct violated Section 8(a)(1) and (3) of the Act. The individuals alleged in the complaint to be agents of the Respondent and/or supervisors within the meaning of the Act are: Hampton, vice president of production; Ruth, personnel manager; Stever, superintendent of day shift; Miller, superintendent of maintenance department; Ste- phens, galvanizing department supervisor; Barr, leadman in maintenance department, Cox, leadman in trial assem- bly department; Husong, leadman in galvanizing depart- ment; Austin, leadman in tank shop; Hamilton, leadman in punch department; DeGraffenreed, leadman in tank shop department; Messick, leadman in shipping depart- ment; and Anglin, leadman in pole shop. The Respondent, in its answers to the complaint and to the amendments to the complaint, denies generally the allegations that the named individuals are supervisors or agents of the Respondent; admits that it issued a. warning notice to Linnet; admits that it promulgated and main- tained the employee rules referred to; but denies that it has engaged in any conduct violative of the Act. B. The Respondent's Hierarchy Parrish is the president of the Respondent. Hampton, the vice president and general manager, is in overall charge of plant production and operations. Ruth is the personnel director, with the responsibility of recruiting and hiring personnel. The record shows, and the Respondent admits, that foremen can and do discharge employees and possess and exercise other indicia of statutory supervisory authori- ty. The record also shows that all persons, including The Respondent states in its brief that Box "appeared to be entirely credible with absolutely nothing to gain one way or the other by his testimony " I agree RIVERSIDE INDUSTRIES, INC. moving of individual work schedules, and recommend pay increases. I find, on the basis of the evidence in its entirety. that Hampton, Ruth, and the foremen, all of whom wear white hats, are supervisors within the meaning of the Act, but that the leadmen, who wear green hats, have not been shown to be supervisors or agents of the Respondent within the meaning of Section 2(11) or (13) of the Act.2 I shall, therefore, recommend dismissal of the allegations of the complaint that the Respondent violated the Act by certain conduct of the leadmen. C. The Terminations After the Respondent acquired the operation here involved from a predecessor company, it moved to this location the work previously performed at its facilities in Fort Worth, Texas, and terminated the Fort Worth employees As the Tulsa operation had been losing large sums of money totaling, Hampton testified, about a million dollars, he was directed when he returned to the Respon- dent's employ in August 1972 to cut costs to the extent possible in an attempt to change the financial situation to one where the operation was showing a profit. He testified that he succeeded in showing a profit by May 1973. His changes included reducing the supervisory complement by termination and demotion, and phasing out certain operations. Some employees were transferred to different jobs and, in the course of the usual substantial personnel turnover, some who quit were not replaced. Hampton also maintained a close personal check on operations. He had four inspectors who reported to him directly, and he walked through the plant, which covered a vast area, several times a day, checking on the work being done in every department. Organization of the Respondent's employees by the Union began on about December 1, 1972. The Respon- dent's management learned of this activity about the time it began. On or about December 7, as Hampton testified, the Respondent, at the direction of Parrish, its president, distributed to all the employees with their paychecks the following notice: NOr1CE To ALL EMPLOYF,ES DON'T SIGN UNION CARDS UNLESS YOU WANT TO: 1. Risk payment of dues, fees, fines and assess- ments. 2. Risk being a witness in labor cases. 3. Risk being hound to outsiders without a free vote election. 4. Risk losing your independence and rights as an individual. 2 N L R B v Cast-A-Stone Products Co., 479 1- 2d 396 (C.A. 4. May 1973), N.L.RB v Houston Natural (,as Corp., 478 F 2d 467 (C A 5. May 1973), Gyrodyne Company of America, Inc, 203 NLRB No. 164, The Cavern THINK BEFORE YOU SIGN ANYTHING. ASK YOUR SUPERVISORS ABOUT THIS. DON'T BE TRICKED 313 Participation in the organizing activity appears from the record to have been limited to a very small proportion of the Respondent's employee complement. The weekly meetings were attended by about 10 or 12 out of about 200 hourly paid employees. The General Counsel contends that the conduct here in issue with regard to Kelly, Linnet, and Darnell, occurred because of their activity on behalf of the Union, while the Respondent maintains that the transfers of these employees resulted from the cost-cutting cam- paign, and their terminations from opposition to a transfer, failure to perform satisfactorily after a transfer, or refusal to accept a transfer. 1. Lucian Kelly Kelly was employed by the Respondent on January 26, 1970. He performed different jobs but for a period of time had been driving a forklift and a winch truck. When the Union began organizing in December 1972, Kelly signed a card on December 1, and was given some additional cards at the December 7 meeting of the Union. He as well as employees Linnet and Buller distributed the cards during a lunch break in the employee lunch area. Linnet testified that Stephens, a white hat, observed the card distribution. After the lunch break, Stephens asked if Kelly would help in the galvanizing department as it was shorthanded, Kelly said he would be glad to do so, and he worked there on a Friday. On the following Monday Kelly was told he was being transferred to the job of tending kettle in the galvanizing department. This job involved knocking excess zinc off metal which had been dipped into a vat of 840 degree zinc chemicals. Box, former vice president and regional manager of the Respondent, described it as the most disagreeable job in the plant as it was heavy manual work performed in extreme heat and "slightly dangerous" because of the possibility of a burn if splashed with hot zinc. Kelly protested the transfer as he had quit this job once before because of the heat and fumes in that work area. Stephens went with Kelly to see Hampton, who said the transfer was being made as part of the cost-cutting program. Kelly offered to do any other job in the plant, but Hampton told him there were no others available unless he took a helper's job at a cut in wages. Hampton also offered him 2 or 3 days off to find another job. Kelly went back to the galvanizing job instead, but on February 12 left to take another job because, he testified, he could not stand this work any longer. The Respondent's personnel record shows that Kelly called personnel director Ruth and said he was quitting because he found another job paying considerably more money. The complaint alleges that Kelly was transferred on December 7 to a less desirable job immediately after he Supply Company, Inc, 203 NLRB No. 97. cf Sports Coach Corporation of America, 203 NLRB No. 24 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributed union cards, and was discharged on February 13 because of his activity on behalf of the Union. The evidence shows that the galvanizing job to which Kelly was transferred was undesirable because of the intense heat, smoke, and fumes, and the danger of burns. On the other hand, Kelly did the work for months; other employees held this job for longer periods, one of them for about 5 or 6 years, with no injury as far as the record shows; and a number of employees performed their jobs in the immediate area, Kelly being one of a crew of about 12-15 men . There was apparently some physical hazard in working anywhere in the plant as everyone was required to wear a hard hat and safety glasses, and some employees were also required to wear safety shields. Furthermore, the Respondent showed that other employees were being transferred about this time because of completion of the work in building a dam gate , that after that project was completed there was not a full-time job operating a forklift and winch truck, and that this equipment was used thereafter only occasionally. Both of the employees who passed out cards on December 7 with Kelly were later discharged . Buller, a crane operator, was discharged on December 14, but his discharge is not alleged to be discriminatory. Linnet's transfer and discharge, discussed below, are in issue. There are some suspicious factors in the timing and circumstances of Kelly's transfer to the galvanizing job and the refusal to grant his request for any otherjob except at a wage reduction . On the other hand, the evidence does not establish that there were other jobs to which Kelly should have been transferred, or that Kelly had some particular physical sensitivity to the galvanizing work .3 I find, therefore, on the basis of all the relevant circumstances, that the General Counsel has not established by a preponderance of the evidence that the Respondent transferred Kelly to a more onerous job, and thereby caused Kelly, months later, to leave the Respondent's employ, because of his union or protected concerted activities.' I shall, therefore , recommend dismissal of these allegations of the complaint. 2. Charles J. Linnet Linnet was hired by the Respondent on October 4, 1972, to work in the tower shop , where Stever was the white hat and Hamilton was one of the green hats. Linnet attended the December 7 union meeting, and was one of the employees given cards for distribution. He was also given a union button which he wore in the plant. Linnet passed out cards in the employees' lunch area on his lunch break when Buller and Kelly did so. He testified that Stephens, a white hat, was present although foremen did not ordinarily use that lunch area . Neither Buller nor Kelly referred to Stephens being present. On the other hand, Stephens, who testified that he had seen Linnet wearing a union button at times, did not contradict the testimony that he was present and observed the distribution of union cards in the employees' lunch area . I credit the testimony of Linnet, who testified in a candid and straightforward manner, and whose testimony was in large part corroborat- ed by witnesses for the Respondent. I find, therefore, that Stephens observed the card distribution in which Linnet participated. Linnet testified that Siever asked him later that day if he was for the Union; that he said he was, and asked if Siever was; and that Siever responded that he was not, that it did not matter for him but he would just as soon the Union did not get in, and that Linnet was one of only 3 or 4 out of 170 for the Union. Linnet testified also that Siever thereafter asked him constantly if he was for the Union. Siever testified, as a witness for the Respondent , that he saw Linnet wear a union button on or about December 1; that "someone earlier in the morning had told me that Linnet was wearing a badge and I made a point to see that he was"; that later in the afternoon when Hamilton and some others were near Linnet's machine , Hamilton remarked that he wondered if Siever had seen the button yet, and "of course, I had"; that "I think Linnet asked me if I didn't need one of the buttons. It wouldn't hurt me any to wear one. And I told him that I didn't need one"; that "I may have made a remark that it looked like he was pretty well alone with it or in the minority group or something like this. Words to that affect [sic ]"; that he did not recall asking during that conversation if Linnet was for the Union, but did comment to the effect that Linnet "was only one or two or three . It is pretty poor odds or you are in the minority," and that "that's when I am sure that I told him that he is in the minority group , it looked like." Stever testified further in this regard as follows: Q. After this conversation, Mr. Siever, did you ever see Mr. Linnet again with a union button? A. Yes. Q. You did? A. Several times. Q. Did you make any comments to him when you saw the button? A. No. Q. Did there ever come an occasion when you saw him without a button? A. Yes. Several occasions . And one time I men- tioned it too, but he assured me that it was on his coat or he still had it and he wasn't wearing his coat at the time. And it was in his area . He still had the button. Q. Did you ever ask him when you saw the button "Are you still for the Union?" A. No. I'd say I didn't. Q. Or did you say a remark that he was still a union man? A. Well, that's a possibility, but I certainly don't remember it. That would have been at the same time probably, if I did, I'd make a remark like that when he didn't have a button and I asked if he lost his button or something. I really don' t recall the exact conversation. But I do know that on one other occasion I did mention it. Siever testified that, because of Linnet's experience in a previous job, he set Linnet's wage rate as a top machine operator at $3.25. As Linnet had not operated any of the 3 Cf Packerland Packing Company, Inc, 203 NLRB No 39 4 Anderson Plumbing and Healing Company, 203 NLRB No 5 RIVERSIDE INDUSTRIES, INC. 315 particular machines in the tower shop, however, Siever assigned him to the manual rack punch . Stever testified that it is a simpler machine to operate and requires less physical exertion than the Pulaski automatic punch, and is used to train inexperienced operators, the line of progres- sion being from helper on the manual , to operator on the manual, to operator on the automatic. At that time the Pulaski was being operated by Carnell Allan, who had been employed by the Respondent about 3 years. He had transferred to different jobs for a time , then to helper on the manual punch, to operator on the manual punch, and a year later to operator on the Pulaski. Both the manual and the Pulaski machines punch holes in metal angles. The manual is run by an operator with a helper, the Pulaski by an operator alone, the functions performed on the manual by the helper being automatic on the Pulaski. The Pulaski operated by Allan handled larger angles and more complicated work than the manual. There was another Pulaski punch which handled the largest angles. It was run by Jerry Adams, who had been employed in Siever's department 3-1/2 years and had operated this large Pulaski about 2 years. Linnet testified that he averaged 2,000 to 3,000 holes a day on the manual rack punch, and that Stever had complimented him on his work and his production. Allan was averaging about 1,000 to 2,000 holes a day, which was evidently satisfactory performance on the Pulaski. The union meeting at which Stever received cards and a button was held on December 7, a Thursday. On Friday, Linnet distributed the union cards in the lunch room, wore the union button, and had the conversation about the button with Siever. On Monday Siever told Hamilton to transfer Linnet to the Pulaski punch and Allan to the manual rack punch. Siever testified that he had decided a week earlier to do so, that he had "no particular reason" for waiting a week to carry out this decision, and he gave no explanation as to why it was put into effect on this particular day. Hampton testified that he directed Siever to make the transfer in order to put the more highly paid operator on the Pulaski, and Linnet was being paid considerably more than Allan. The Respondent's witnesses differed from one another, however, in their testimony as to the pay rates of Linnet and Allan, and both Hamilton and Allan testified that they did not know if Linnet was earning more than Allan. Hampton also testified that he made the transfer to give the lower-paid man more experience on the manual. Allan at that time, however, had had far more experience than Linnet on the manual. Moreover, Hamilton, the green hat in this area, testified that he had run the manual 2 years but the Pulaski very little, and that he knew very little about the Pulaski. This fact evidently did not prevent his advancement to the green hat job. Allan testified that he asked Hamilton why he was being transferred , and was told it was because Linnet was the number one operator whereas he was just number two. Linnet testified that he did not ask why the transfer was being made, and that he thought it would be "a good deal." He experienced considerable difficulty in operating the Pulaski, however, and complained frequently to Siever about this machine. On some of these occasions Siever called a maintenance man to work on the machine, and at others he told Linnet to make the necessary adjustments, some of which Linnet conceded an experienced Pulaski operator could make. Linnet testified to a number of specific problems he had with this machine. Allan, who had operated it for a year, maintained that he had virtually none of the difficulties with it that Linnet described . Siever, however, in his testimony, admitted that Linnet com- plained about "numerous things . And some were legiti- mate"; that "sure enough, he did have problems with the machine"; that the problems included freezing up in cold weather "quite often and it has to be thawed out. And it won't function right until it is thawed out which is a problem"; that there was a gear problem once on which the maintenance department had to work; that Linnet said "the track itself was out of square, out of alignment"; that he did not recall the exact complaints and they were not "that numerous"; that he did not recall any complaint that the air motor fans were worn out; that he believed Linnet did complain that the blades that fall and cause the buggy to stop up against the pegs were worn, that he checked into it, and that "I am sure they are worn some"; that Linnet might have said the peg board was warped but he did not recall; that Linnet probably did tell him the air driven piston was not working right ; that he was not sure, but Linnet may have complained that the buggy would vibrate and was falling apart ; and that he did not believe he ever told Linnet any of the complaints Linnet made were unjustified . Stever also testified, on cross-examination by the General Counsel, that Allan complained about the freezing problem and, while he did not recall them, that he was sure Allan would have complained about other problems also from time to time ; that these machines require frequent adjustments which the operators learn to do themselves if minor; and that, if an operator cannot take care of the problem , "we have to call the maintenance department." Siever testified that Linnet, after his transfer to the Pulaski, was mispunching too many holes which then had to be welded and repunched. It is clear, however, and the Respondent's witnesses admitted, that all the employees engaged in such operations , including Adams on the large Pulaski, sometimes mispunch holes, and spend part of their time welding, grinding, and repunching. In fact equipment for such welding and grinding is maintained at locations where it will be readily available to each operator. Siever, who testified that Linnet's production on the Pulaski was "below average," also testified : "But this being new, now, the first week or so on this machine, it would be understandable. He never run a machine like this before and it would be understandable that it would be a little low." Nevertheless, within 4 weeks of the transfer, a written warning was issued to Linnet, dated Friday, January 5, "1972," (an apparent typographical error), stating that Linnet in the last 3 weeks mispunched an excessive number of holes, requiring welding, grinding, and repunching; that Siever had the week before, which would be within 3 weeks of the transfer, issued a first verbal warning; and that, if improvement was not shown, "disciplinary action and/or permanent replacement may be the result." The copy of this warning form which is in evidence contains no 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signatures in the spaces designated for the person who prepared the Warning and for the supervisor , but is signed by Ruth, personnel director, as the one approving the warning, and bears a handwritten notation that "Linnet refused to sign" initialed by Ruth. In this regard Linnet testified, without contradiction, that Siever walked up to him at his machine and asked him if he was going "to sign this"; that he read it and said he was not ; that when Siever asked why not, he "said, `It is wholly unfair . . . You can take any man on this shop and put him on this machine and he is going to make a lot of mistakes"; that Siever "said, `that might be right , but .. . you were hired in here to operate this machine' "; that Siever asked if Linnet was sure he was not going to sign it and, when Linnet said he was sure, ended the conversation with, "Well, we will talk about it on Monday"; and that nothing further was said to Linnet about it on Monday or thereaf ter. It was evidently not the Respondent's practice to issue a written warning for poor work . Box testified that , while he was vice president and regional manager , such warnings were used only in situations involving tardiness or absenteeism, and that poor production would be orally criticized by the foreman and then, if repetitive, could lead to transfer, discipline, or discharge . Hampton testified that such warnings are issued for serious faults, that the one issued to Siever was for mispunching an excessive number of holes, and that, while he reviews all such notices, and while the record is clear that mispunching occurs frequent- ly, he knew of no warning issued to any other employee for this fault . In addition, a change of status form , placed in evidence by the General Counsel , shows that the employee named thereon was "warned several times" by the Respondent about his work derelictions over a period of several months and was finally terminated because these derelictions continued . There are in evidence, however, no written warnings issued to this employee, and Hampton testified that he told the leadman of this employee that "He should talk to the man several times" before the employee was discharged. Siever testified that he had not discussed Linnet's production on the manual rack punch with Hampton prior to the transfer, but did discuss Linnet's production on the Pulaski with Hampton ; that Hampton at times questioned him about Linnet's work on the Pulaski ; and that when Hampton criticized Linnet's performance on the Pulaski, "I believe I told him that he did do a good job on the manual rack and which he did. But he was having a lot of difficulty running this Pollaski [sic ] rack." Siever testified further that Linnet's work on the Pulaski did not improve and that his production on the day of his discharge was especially poor ; that Linnet was discharged because of his poor showing that day "that ran hand in hand with the past couple of three weeks"; at another point, that he considered Linnet's poor performance on his last day justification for discharge and this was the reason why he discharged Linnet ; and that he told Linnet "pretty well that he wasn't earning his money . That we were paying him as much as we were paying any operator on a rack there in the plant and he wasn't producing for me. So I was going to let him go that day at the end of the shift and it was just about the end of the shift" Siever admitted there was no suggestion or consideration given to transferring Linnet back to the manual rack or to any other job. Hampton testified that Siever reported to him that Linnet was discharged for poor production on the day of the discharge. Linnet admitted that his production on his last day had been very low, and that he had also punched the wrong side of an angle. He testified that some of the mispunches were not his fault, but admitted that drilling the wrong side was his mistake . Siever testified, as to the nuspunching, that it is "fairly common" for an operator to mispunch holes, that some mispunches occur on every shift , that all operators spend some time welding mispunches, and that operators have on occasion spent an entire shift welding, grinding, and repunching work that had been mispunched. He also testified, as to Linnet's punching the wrong side of an angle that day, that "it is not common , but it does happen . . . too often, but I guess we are liable to get one angle a week." Box, however, testified that this was "a frequent occurrence . . . as much as several times per day perhaps," and that he did not recall any employee being disciplined therefor. After testifying about the errors Linnet made on his last day of work, Siever was asked whether he talked to Linnet about his low production . He answered, "No, I don't believe I did. Not until, well, I am sure I would have when I told him to take the angle back to the back end of the plant, but I don't recall the conversation, I really don't. And I don't know whether it was a specific warning or not. It may not have been." Hampton also testified that he criticized Linnet for doing too much welding on the day of his discharge, but said nothing to Linnet about discharge. Linnet testified without contradiction that about 5 minutes before the closing whistle, as he was completing an angle, Siever told him to pick up his check which was ready for him; that he asked if he was discharged , and Siever said he was; and that Siever gave him no reason for the discharge. Siever testified that he put Allan back on the Pulaski the next morning. Asked about Allan's performance , Siever replied, "Well, other than, I'd say his performance was good. He still had freezing problems on cold mornings the same as Linnet would have had. . . . We have three machines of that nature and we 've got the same problem with all three of them. . . . It is not going to be frozen all day . . . as much as an hour, I suppose, at the most." Allan testified that his pay was not cut when he went back on the manual but that he got a 25-cent raise when he went back on the Pulaski ; that he had a little trouble with it and found that a spring was loose and had to be tightened for the blade to go down; and that , while he had been operating these machines for years and this particular Pulaski for a year, his production when he went back to the Pulaski was lower "at first. I had to get adjusted to the machine again , you know." He did not indicate how long this period of adjustment was, nor how it compared with the entire period of Linnet's operation of the Pulaski. The Respondent prepares records showing the daily production of the operators, but retains them for a limited time only, and asserted it had none available at the time of the hearing on which a comparison could be made as to the RIVERSIDE INDUSTRIES, INC. production of Linnet, Allan, or others on the manual rack and the Pulaski punches. The complaint as amended alleges that the Respondent transferred Linnet to a less desirable work assignment on December 11, 1972, issued a warning notice to Linnet on January 5, 1973, and discharged Linnet on January 26, 1973, because of his union membership and activities. The Respondent maintains that the transfer was made for reasons of plant efficiency, and that the warning notice and discharge were based on Linnet's poor work perform- ance. Concluding Findings It is apparent from the evidence in its entirety and I find that, immediately after Linnet made his union sympathies known, Stever questioned Linnet about his union button when he was wearing it and, on occasion, about why he was not wearing it, and repeatedly pointed out to Linnet that the proponents of the Union were a very small minority of the Respondent's employees. Siever transferred Linnet immediately after his union sympathies became known from a machine on which he was doing a good job to a machine that was more difficult to operate, and thereafter maintained, as did Hampton also, a close check on Linnet's performance. Further, the Respondent gave Linnet a written warning for poor production on this machine although it was not the Respondent's practice to issue such warnings for deficiencies in production, and although Linnet at the time had been operating this machine for a shorter period than the Respondent's evidence indicates was required to become proficient on it. Finally, the Respondent terminated Linnet precipitately at the end of a day on which Linnet admittedly had low production, with no consideration given to transferring Linnet to a machine on which he had been proficient or to another job,5 although the credited testimony of witnesses including Box shows that other employees on occasion had very low or poor production and were not summarily discharged. It is apparent from all the relevant circum- stances, and I find, that the Respondent was motivated, in its treatment of Linnet, not by considerations of efficient operations, but by its hostility to the union organizing activity engaged in by a very small number of its employees and by its desire to "nip that activity in the bud." 6 I find, in conclusion, that the Respondent abruptly transferred Linnet to a more difficult machine to operate when it learned he was one of the few employees actively advocating union organization; issued a written warning to Linnet about his production on this machine, contrary to its usual practice, in order to pave the way for his discharge in the event he persisted in his adherence to the Union; and discharged Linnet because he continued his union activities, and not because of his poor production on the day of discharge or while he was operating the Pulaski 8 See Bill's Coal Company, Inc, 203 NLRB No 35 6 Lloyd's Ornamental and Steel Fabricators, Inc, 197 NLR B 367 7 Scott Gross Company, inc, 197 NLRB 420 8 See N LR B v. Montgomery Ward & Co, 242 F 2d 497, 502 (C A 2, 1957), cert denied 355 U S 829 (1957) (holding that "The abruptness of a discharge and its timing are persuasive evidence as to motivation "), Bill's 317 machine. I find further that the Respondent's asserted reason for the discharge of Linnet is pretextual,7 and that Linnet was in fact transferred, warned, and then dis- charged on January 12, 1973, because of his membership in and activities on behalf of the Union. I find, therefore, that the Respondent, by such transfer, warning, and discharge, discriminated in regard to the hire or tenure of employ- ment or the terms or conditions of employment of Linnet to discourage membership in and activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act .8 In addition, as set forth above, Siever frequently questioned Linnet about his interest in the Union and emphasized that Linnet shared this interest with only a small minority of the Respondent's employees. This questioning began immediately after Siever learned of Linnet's union sympathies, and continued in the context of the Respondent's discriminatory treatment of Linnet culminating in his unlawful discharge . I find that these questions and remarks by Stever were designed to compel Linnet to surrender his Section 7 rights, and that the Respondent thereby engaged in coercive interrogation, in violation of Section 8(a)(1) of the Act .9 3. Robert T. Darnell Darnell had been employed at the Respondent's plant from February 1966 to June 1970. During that time he did X-ray work, repaired tools, and drove a truck. The X-ray work, which involves pictures of welds to check for defects, averaged about 2 hours a week and was done on an overtime basis. Darnell was called on for X-ray and other work by any one of several supervisors. Foreman Miller in October 1971 asked Darnell to come back to work for the Respondent because Miller needed someone to set up and run a toolroom and was convinced Darnell was qualified to do so. Darnell was reluctant as he felt he had been wrongly discharged by the Respondent in 1970, but he agreed to come to the plant at Miller's urging to discuss the matter. Darnell finally agreed he would come back on certain conditions. Miller checked these condi- tions with Box, at that time vice president and regional manager of the Respondent, and agreement was reached. The agreement included a provision that Darnell would work under only one supervisor, Miller, and that, after 6 months of satisfactory service, his seniority would be restored to his original date of hire. Upon his return, Darnell set up and operated the toolroom, and later undertook also to perform bench repairs on tools in the machine shop, all under Miller's supervision. On April 12, 1972, Darnell's seniority was restored effective to February 22, 1966. The personnel change form noting this seniority date also contains a performance evaluation on which Darnell was rated excellent or good, the two highest ratings, on eacb item listed. The form, which is signed by a then superintendent, Wilson, and Personnel Director Ruth , as well as Miller, Coal Company, Inc. supra, PacAerland Packing Company, Inc, supra, Graneto-Datsun, a Graneto Company 203 NLRB No 90 (discharges of Cupples and Evans), Knits and Tweeds, Inc, 203 NLRB No 155; Red Line Transfer & ,Storage Company, Inc, 204 N LRB No 3 9 David E Weber, d/b/a State Radiator Company. 202 NLRB 335, Universal Fuel, Inc, 204 NLRB No 10 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also contains a question whether the employee is being used at his capability, to which the answer, apparently written by Miller, was that Darnell was not as he was considered to be supervisory material. At some point after Hampton returned to the plant in August 1972, he became concerned about the cost of operating the toolroom, including the time spent by employees in obtaining and returning tools. He sent the supervisors a memorandum dated September 14, 1972, commenting on this matter and asking for their sugges- tions. Miller discussed this memorandum with Darnell, who made some suggestions that were submitted to management. On January 3, 1973, Parrish, president of the Respondent, wrote the following letter to Darnell, with a copy for the personnel file: Dear Bob: This letter is written to express my personal apprecia- tion for your suggestion on Consumable Supplies Station. We are, as you may know by now, in the process of eliminating to some degree the tool room which has previously been used to house small hand tools. Your suggestion falls in line with our thinking and will certainly be considered as a possible step to that program. Bob, allow me to compliment you on the very obvious time that went into preparing this recommendation. It is through the efforts of people like yourself that Riverside Industries, Inc. will not only succeed through the critical period in which we are now working, but will continue on to the degree of greatness that I feel is feasible with this kind of effort. Your efforts, Bob, shall not go un-rewarded. Miller testified, as a witness for the Respondent, that he was told by an employee that Darnell was helping to organize the Union; that he went to the toolroom and told Darnell, "During your duty hours here in the tool crib I do not want you to help organize or have any conversation about the Union. I want you to take care of your business and do not do that"; and that Darnell "assured me that he was not." In a later conversation, Miller further testified, Darnell complained that certain individuals were trying to bait him into discussing union activities at work, asserted that he was not engaging in such discussions, and appealed to Miller to try to put a stop to this baiting. Miller told Darnell he would see what he could do to stop it, but admitted he did nothing about it. Asked by counsel for the Respondent if, in that conversation, he told Darnell to "Keep your mouth shut about this Union business," he replied: "I believe not. I believe not in that conversation." Miller was directed to close down the toolroom opera- tion, and reported this to Darnell. They agreed that they thought it was a mistake, but that, as the order came from Miller's superiors, they had to comply with it. Darnell then asked Miller what would happen to him. Miller testified that "I told him to the best of my knowledge that there would always and forever be a full time job for a bench man and someone to take care of the tools and grinding drill bits and that sort of thing." and, when Darnell asked about X-ray work, ". . . once again I told him that it certainly wasn't in my plans since x-ray was not in my department." Miller also testified that Darnell "worked some week ends for me cataloging machinery logging machinery in preparation for putting together a machinery file. And I had in mind some other OSHA work that I had hoped to use him for, yes." On the day prior to Darnell's discharge, Miller testified, there was some talk about the Union `just before going home. Up to this point I had heard nothing from Bob except he was having nothing to do with the Union organization, you know, in each and everyone of our conversations and I was thoroughly convinced it was just like this, you know. But on this particular evening he made some statements to me like `This thing is going in the direction where a Union would be desirable here. I've changed my mind.' Something of that nature. . . . I believe he said yes, Tony [Hampton ] is being a real tyrant these days or something of that nature. These things are a little tough to quote." On cross-examination by the General Counsel, Miller testified that Darnell may also in this conversation have referred to Hampton as "a slave driver," and made a statement to the effect that "Union organization was the only answer to such a situation in the plant." Hampton issued a memorandum dated January 25, 1973, on the subject "X-RAY" which provided as follows: Effective Monday, January 29, 1973, Bob Darnell will set up and maintain the Dark Room and will do all of the X-Ray work that is possible for us to do under the supervision of Lloyd Miller. We will operate as we have in the past. By copy of this memo, the Pressure Vessel and Pole Shop can start planning the up-coming work load with Lloyd Miller. Miller testified that he thought he had not yet received this memorandum at the time of the above conversation with Darnell about the Union, that whatever he might have heard along the line of Darnell being assigned to X-ray work "was only hearsay around the plant," and that he was given a copy of the memorandum after he heard about it and requested one, although he and Darnell are among those listed on the memorandum for distribution. On cross- examination by the General Counsel, Miller testified that, when Hampton gave him this X-ray directive, "I pointed out to him that in all times past it had been quality control. The inspector took the X-rays and I very frankly tried to get out from under the thing." Miller also pointed out to Hampton that he did not want the assignment and that he thought Darnell would refuse the assignment. Miller testified that he had assured Darnell at the time of his rehire agreement that he did not have X-ray work in mind for Darnell and, each time the question was raised thereafter, assured Darnell "it was not my intention to take on X-ray," but that "Now, we don't have any hard fast document on that, no." Miller testified that, after his conversation with Hampton RIVERSIDE INDUSTRIES, INC. and receipt of this memorandum, he showed it to Darnell; that he told Darnell to proceed immediately to "make sure the dark room was in good order . . . to X-ray film, go out and expose them and report to me as to whether the machines was exposing film"; that Darnell asked if this was to begin on Monday as the memorandum required or .,are we going to bring it to a head now"; and that "I said, `Bob, I've had my orders. I see no reason to wait until Monday morning. I want to do it now.' Bring it to a head now, sort of speak. If that is the terminology we want to use"; and that, when Darnell refused to do the X-ray work, he told Darnell, "I've got no recourse at this point but take you down to Personnel and get your check." Darnell was thereupon taken to the office and discharged for his refusal to do the X-ray work. Hampton testified that an employee named Kennedy, who had quit in December, was hired to do the bench tool repair work on the Monday after Darnell's termination on Friday; that he had talked to Kennedy about the job prior to Darnell's discharge; and that another employee did the X-ray work until Hampton later phased out this operation. He did not state how long after Darnell's discharge this work was phased out, or how the economic situation requiring Darnell to do X-ray work had changed. The complaint as amended alleges that Darnell was transferred to a less desirable work assignment and discharged on Jaiuary 26, 1973. The Respondent main- tains that the toolroom closing was done for economic reasons; that that left Darnell with time for another assignment; that the X-ray work was not a full-time job; that Darnell has experience in X-ray work in 1966, although the work had been done more recently by quality control personnel and then was later contracted out until the Respondent decided it was more economic to do the work itself; that the X-ray machines had been repaired at considerable expense and were in good, safe working order; that the work was to be done under Miller's supervision; and that Hampton did not know about the Darnell-Miller-Box rehire agreement, but would have made this assignment even if he did.10 Hampton testified, in fact, that he had decided on this transfer in October 1972. He did not explain why it was never mentioned to Darnell until January 1973, nor did Miller explain why it was suddenly so urgent that the work had to be undertaken by Darnell even before the date specified in Hampton's memorandum. Concluding Findings I am not in this case passing upon the obligation, if any, 10 On the basis of demeanor, the evidence as a whole, and the probabilities of the siteation here in issue, I do not credit Hampton's testimony that Miller did not tell him of this agreement in discussing the transfer of the X-ray work to Darnell or at any other time. In any event, the agreement was known to Miller. an admitted supervisor. I likewise do not credit Hampton's testimony that he did not know anything about Darnell's Union sentiments when he assigned the X-ray work to him . In any event, there is no question that Miller did have such knowledge, and that such knowledge is imputable t:) the Respondent. See Red Line Transfer & Storage Company, Inc. 204 NLRB No. 3 li The Respondent urged at the hearing and in its brief that Darnell's testimony should not be credited. Darnell in the course of his testimony appeared prone to exagg rate as to some matters; he evidently resented the fact that the Respondent induced him to return to work and then violated 319 the Respondent had as a result of the agreement Box and Miller entered into with Darnell to induce him to return to work for the Respondent, or of Miller's repeated promises that Darnell would not have to do X-ray work, or of Parrish's written promise that Darnell's efforts "shall not go un-rewarded." I am likewise not passing upon the Respondent's right to assign Darnell to whatever job seemed to management best suited to its operational efficiency. I am convinced, however, and find, largely on the basis of evidence presented by the Respondent,ir that Darnell, a highly qualified employee considered by management to be supervisory material, was abruptly transferred and discharged because he expressed prounion sentiments to Miller, to Miller's admitted surprise because Darnell previously always indicated "he was having nothing to do with the Union organization . . . and I was thoroughly convinced it was just like this, you know." It was on the day after this revelation that Miller advised Darnell he was being transferred to X-ray work. Miller insisted, moreover, that Darnell begin this work even before the date required by Hampton's memorandum, and, when Darnell refused, as Miller admittedly expected Darnell to do, he discharged Darnell immediately and stated he had no other recourse. In conclusion, therefore, I find, on the basis of the record as a whole, that, immediately after Darnell told Miller he favored union organization, he was transferred to a job Miller and Hampton expected him to reject, and he was summarily discharged when he rejected it rather than assigned to one of the several other tasks he had performed commend- ably.12 It is apparent from the totality of the evidence, and I find, that the Respondent's assertion that it discharged Darnell for refusal to accept a transfer based on efficiency considerations was pretextual,is that in fact the Respon- dent transferred and discharged Darnell on January 26, 1973, in retaliation for his assertion that he favored union organization and to "nip that activity in the bud," 14 and that the Respondent by this conduct discriminated in regard to the hire or tenure of employment or the terms or conditions of employment of Darnell to discourage membership in the Union, in violation of Section 8(a)(3) and (1) of the Act.15 I find further that Miller had at times admittedly warned Darnell not to talk "about this Union business"; that the Respondent, by such remarks, in the context of the unlawful discrimination against Darnell, was instructing Darnell not to engage in union activities in a manner designed to compel Darnell to surrender his Section 7 its commitments and discharged him; and he admitted he had been convicted in 1961 of a felony. Darnell later received a pardon, however. from the then Governor of Oklahoma. and the Respondent knew of the conviction prior to the first time it employed Darnell in 1966 . Darnell's testimony as to the events here in issue was presented in a forthright and convincing manner, and his testimony was in large part corroborated by the testimony of witnesses for the Respondent. After careful review of the Respondent's contentions in this regard. and on the basis of the record as a whole, I credit Darnell's testimony as to the matters indicated in the findings above relative to his transfer and termination. 12 See Bill's Coal Company, Inc., supra. 13 Scott Gross Company, Inc, supra. 14 Lloyd's Ornamental and Steel Fabricators, Inc., supra. i5 See cases cited in fn. 8, supra. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights; and that the Respondent thereby further violated Section 8(a)(1) of the Act. D. Interference, Restraint, and Coercion 1. Surveillance Union activity among the Respondent's employees began about December 1, 1972, and became known to the Respondent at or about that time. Weekly meetings were held by the Union during December. Although the witnesses were at some variance in stating the numbers of employees present, the attendance was apparently very small, about 10 or 12 out of almost 200 hourly paid employees. A few of the leadmen attended some of the meetings. At one of the meetings the union representative demanded that they leave. One left voluntarily but a couple of others remained until the police were called and required them to leave. The complaint alleges that the Respondent, by attend- ance at union meetings of named "supervisors and agents," engaged in surveillance of the union or concerted activity of its employees in violation of the Act. I have found above that the leadmen are not supervisors or agents of the Respondent within the meaning of the Act. Moreover, the testimony of the General Counsel's witness- es on this issue is confused, contradictory, and inconsis- tent. Some of this testimony is to the effect that the green hats were required to leave because the Union prohibited attendance by those with authority to hire and discharge and the leadmen were believed to have such authority. The record as a whole establishes, however, and I find, that the employees and the union representative present at the meeting 16 demanded that the leadmen leave because they were not members of the Union and were asking numerous questions about, and expressing opposition to, union organization. An employee who was not a green hat but was raising such questions was directed to leave with the green hats. The green hat who left the meeting voluntarily but who later signed a membership card was invited by the union representative to resume attending the meetings.17 And the employee who first demanded that the green hats be ousted testified that they were barred then for causing confusion and were welcome otherwise. In all the circum- stances, therefore, I find that the General Counsel has not established that the Respondent engaged in surveillance of the union and concerted activities of its employees, and I shall, accordingly, recommend dismissal of this allegation of the complaint. 2. The Respondent's rules The complaint as amended alleges that the Respondent has, since on or about June 20, 1972, maintained in its "Employees Handbook" a set of rules providing for automatic dismissal for certain conduct including: "(7) Solicitation during working hours or job interruption of any kind"; and "(19) Deliberate slowdowns, delays, or 18 The union representative at the meeting appeared as the representative of the Union at the hearing herein but was not called as a witness 17 DeGraffenreed was the green hat who left the meeting voluntarily because, he testified, he thought he had authority to discharge, and who was invited to come back to the meetings after he signed a card He had been work stoppages." After issuance of the amendment to the complaint alleging these rules to be violative of the Act, the Respondent, on advice of counsel, amended the rules by changing the word "hours" to "time" in (7), and by deleting "or work stoppages" in (19). Booklets with these changes have been issued to new employees hired since then. The Respondent asserted that the booklets were going to be reprinted with these and other changes, and the reprinted booklets would be distributed to the old as well as new employees. The Respondent's answer admits that the rules in question were promulgated, and counsel for the Respondent, in his closing argument, conceded that the changed wording did not eradicate the past effect of such prohibitions. Moreover, there is no evidence that the changes had been announced to the old employees as of the time of the hearing. I find that the Respondent, by maintaining rules prohibiting employees, on penalty of automatic dismissal, from engaging in solicitation at any time during working hours and from engaging in work stoppages, has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.18 3. Other 8(a)(1) violations I have found in section C, above, that the Respondent discriminated in regard to the hire and tenure and the terms and conditions of employment of Linnet and Darnell, in violation of Section 8(a)(3) and (1) of the Act. I have also found that the Respondent, by the conduct of Stever in questioning Linnet about his continued adher- ence to the Union, and of Miller in instructing Darnell not to talk about the Union, in the context of the discrimina- tion against Linnet and Darnell, was seeking to compel employees to surrender their Section 7 rights, and thereby further violated Section 8(a)(1) of the Act. The complaint alleges in addition that Hampton and certain named foremen interrogated employees and made threats and promises of benefits constituting further violations of Section 8(a)(1) of the Act. The record shows that there were conversations, initiated by employees, in which they told Hampton they were going to a union meeting and he replied they had a right to do so, and that in some instances remarks were made about the Union which I find were not shown to be coercive. On one occasion an individual thought Hampton was asking what occurred at a union meeting, but it appears from all the evidence that Hampton was asking what occurred as a result of a change in work orders. In other instances, remarks made in the course of Hampton's frequent conversations about the Respondent's economic problems seem to have been understood as job threats although I am convinced, from the context of the conversations, that the remarks in question did not contain such threats. Certain employees who testified to coercive remarks gave consider- ably different versions of the alleged conversations each employed for a number of years. became a green hat in 1967 and a white hat in February 1973. and was laid off by Hampton in April 1973 for lack of work I find, on the record in its entirety , that his authority to discharge was acquired at the time he became a white hat Is Glassmaster Plastics Company, 203 NLRB No. 147 RIVERSIDE INDUSTRIES, INC. time they repeated them, or their uncorroborated testimo- ny about such remarks was denied and the evidence does not, in my opinion, establish that the alleged remarks were made, or the remarks in issue constituted a lawful exercise of the Respondent's right of free speech protected by Section 8(c) of the Act 19 Accordingly, after a careful review of all the relevant evidence, and in consideration of the demeanor of the witnesses in question and the nature of their testimony, I am convinced and find that, except as to the conduct specifically found herein to be violative of the Act, the General Counsel has failed to establish, by credible or probative evidence, the allegations that the Respondent engaged in further conduct constituting independent violations of Section 8(a)(1) of the Act. I shall, therefore, recommend dismissal of such allegations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l) and (3) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees ' Section 7 rights,20 and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent transferred employees Linnet and Darnell to less desirable work assignments and discharged Linnet on January 12 and Darnell on January 26, 1973, in violation of Section 8(a)(3) and (1) of the Act. The Respondent will therefore be ordered to offer to each of these employees immediate and full reinstatement to his formerjob, or, if thatjob no longer exists, to a substantially equivalent position, or transfer to another job on a nondiscriminatory basis, without prejudice to his seniority or other rights and privileges , and to make each of these employees whole for any loss of pay he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discharge to the date of reinstatement, less his net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accordance with 19 East Side Shopper, Inc, 204 NLRB No 125 20 N L R B v Express Publishing Company, 312 U S 426, 437, N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941), Bob Henry Dodge, Inc, 203 NLRB No I 21 in the event no exceptions are filed as provided by Sec 102 46 of the 321 the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Riverside Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily transferring, warning, and dis- charging Linnet, and by discriminatonly transferring and discharging Darnell, in order to discourage union member- ship and activities, the Respondent has discriminated against employees in regard to their hire and tenure of employment and their terms and conditions of employ- ment, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By maintaining employee rules prohibiting solicita- tion during working hours and work stoppages on penalty of discharge, by interrogating employees about their union membership and sympathies, and by instructing employees not to engage in union activities, in a manner designed to compel employees to surrender their Section 7 rights, and by other conduct interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 The Respondent, Riverside Industries, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Transferring to less desirable work assignments, warning, discharging, or otherwise discriminating against any employees in regard to their hire or tenure of employment or their terms or conditions of employment because of their membership in or activities on behalf of United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. (b) Maintaining employee rules prohibiting solicitation during working hours or work stoppages on penalty of discharge, interrogating employees about their union membership and sympathies, or instructing employees not 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 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to engage in union activities, in a manner designed to compel employees to surrender their Section 7 rights, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Charles J. Linnet and Robert T. Darnell immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, or transfer to another job on a nondiscriminato- ry basis, without prejudice to their seniority or other rights and privileges. (b) Make Linnet and Darnell whole for any losses of pay each of them may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its operation in Tulsa, Oklahoma, copies of the attached notice marked "Appendix." 22 Copies of the notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain employee rules prohibiting solicitation during working hours or work stoppages on penalty of discharge, interrogate employees about their union membership and sympathies, or instruct employ- ees not to engage in union activities, in a manner designed to compel employees to surrender their Section 7 rights, or in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL NOT transfer to less desirable work assignments, issue warnings to, or discharge Charles J. Linnet or Robert T. Darnell, or any other employees, or otherwise discriminate against any employees in regard to their hire or tenure of employment or their terms or conditions of employment, in order to discourage membership in or activities on behalf of United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. WE WILL offer to Charles J. Linnet and Robert T. Darnell immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, or transfer to anoth- er job on a nondiscriminatory basis, without prejudice to their seniority or other rights and privileges, and WE WILL make these employees whole for any losses of pay each of them may have suffered as a result of the discrimination against him. RIVERSIDE INDUSTRIES, INC. (Employer) IT IS FURTHER ORDERED that the complaint as amended be dismissed insofar as it alleges violations of Section 8(a)(1) and (3) of the Act not specifically found herein. 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.