Formed Tubes, Alabama

FORMED TUBES, ALABAMA 509 Formed Tubes, Alabama and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 10-CA-10366 June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 27, 1974, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, 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, Formed Tubes, Alabama, Haleyville, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION HERZEL H. E. PLAINE, Administrative Law Judge: The complaint charges Respondent, a manufacturer of automo- bile exhaust systems, with having discharged employee Dodd in August 1973, after 9 years of employment, because of Dodd's prounion sympathies and activities, and with having earlier interrogated employees concerning their union membership and desires, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act).' In its defense against the discharge, Respondent's managerial witnesses offered two differing reasons for discharge: (1) that employee Dodd caused his own discharge automatically by refusing to sign a written "final warning notice" acknowledging that his work was unsatis- factory and that he had received earlier warnings, thereby I The charge was filed by the Charging Party (the Union) on September 4, 1973, and the complaint was filed on October 2, 1973. 2 The transcript of the record, particularly the first half, has a considerable number of garbled words and sentences, largely reflecting either inaccurate reporting or transcription. Fortunately, the meanings at these places come through, notwithstanding the garbles , and I have refrained from attempting any larger task of correction than several activating an alleged plant rule that failure to sign the notice resulted in automatic dismissal ; and (2) that employee Dodd was discharged because his work was slow and required too much supervisory help. Respondent conceded knowledge of employee Dodd's union affiliation and activity on behalf of the Union, but denied that such had anything to do with the discharge, and denied any interrogation of employees concerning their union activi- ties or desires. The case was tried in Haleyville, Alabama, on November 14-16, 1973. None of the parties has filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following:2 FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation with an office and place of business at Haleyville, Alabama (and in Michigan and Indiana, which places are not directly involved in this case), where it is engaged in the manufacture and sale of replacement automobile exhaust systems and tailpipes. In the calendar year prior to the complaint, a representative year, Respondent sold and shipped finished products in excess of $50,000 directly to customers located outside Alabama. Respondent is, as the parties admit , engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. As the parties also concede, the Union is a labor organization within the meaning of Section 2 (5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations At the Haleyville plant, Respondent is in the business of manufacturing and selling replacement exhaust systems for passenger cars. Included in the systems are exhausts, tailpipes, and intermediate pipes. According to Plant Manager Toby Yarborough, the manufacturing process starts with large coils of steel that are split and rolled into tubing of various diameters. The tubing is cut into required lengths by Respondent's department 1. Then the tubes or pipes are bent and flattened appropriately in department 2. Ends are finished or flaired in department 3. Crossover parts, brackets, and flanges are welded in department 4. The finished products are stamped, taped, and loaded in trucks for shipment in department 5. The total operation employed 285 employ- ees, according to Plant Superintendent Donald Morrow, working two shifts, with about 165 employees on the first or morning shift, and about 120 employees on the second or afternoon shift. Plant Superintendent Morrow was directly in charge and changes, requested by Respondent and not objected to by General Counsel, that appear necessary to avoid misunderstanding. A few other changes, requested by Respondent, appear unnecessary in the light of my judgment that a general revision of the language of the transcript is not required. Accordingly, it is ordered that the transcript of the proceedings be corrected. 211 NLRB No. 87 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsible for operation of the first shift. In department 2, the bending department, with which this case is directly concerned, the first shift had 34 employees of whom 17 were hydraulic press operators and 7 were setup men for the hydraulic presses. (The other 10 employees worked on air presses and in other capacities not involved in the case). There were also hydraulic press operators and setup men on the second shift, who not infrequently might wind up jobs begun on the first shift, or start work completed on the first shift. In department 2, the bending department, the hydraulic presses take the straight lengths of exhaust pipes and tailpipes and stamp them out with the variety of predeter- mined bends, tilts, and flat spots that permits the finished pipe to fit the chassis of the automobile and avoid interference with other parts of the car, and to be welded into and onto other parts where required. Before the hydraulic presses are ready to do their jobs, they must be set up individually for the shape and style exhaust or tailpipe required on the make and model car with which the individual job is concerned. Since the orders of Respondent's customers are for replacement exhausts, they go back over the years, according to Plant Manager Yarborough and Superintendent Morrow, from current to 1948 models and even involve some earlier model A cars. Because cars are everchanging by makes, and by models within makes, the variety of exhausts and tailpipes is thus enormous and numbers some 2,500 or more different setups, said Morrow, for the mostly American and some foreign cars for which Respondent's customers place orders. The customers are approximately seven equipment manufacturers who provide automobile manufacturers with the original equipment for which Respondent pro- vides some of the replacements. According to setup man Robert Pickard, orders may run from 250 to 12,000 pipes per order. The job of the setup man, said Pickard, is to set up the hydraulic press so that the press operator can crank out the pipes on each order in the desired shape. The setup man sets the several stops on the press, each of which when properly set, will produce the respective bends, tilts, or flat spots needed in the pipe. The setup man works from a blueprint transferred in two drawings onto each side of a thick sheetrock like board, called a template. The drawings on the template simulate in lifesize the bends, flat spots, and tilts of the desired finished pipe, and with the aid of blocks the setup man measures and fits to the template the sample pipe he develops and corrects, as he adjusts the press. His job is to make sure that the bend or degree of bend is set up right. Some of the jobs call for as many as thirteen bends per pipe and frequently the bend requires a tilt to put the right angle into the bend. When satisfied that he has a setup that will run a suitable pipe, the setup man obtains supervisory approval from the assistant foreman or the leadman, one of whom checks out his sample pipe for measurements within the allowable tolerances and for machine flaws and, where necessary in his opinion, directs further adjustments in the setup or aids the setup man in making the adjustments. Once the setup is approved, the hydraulic press operator runs the pipe through the press which, at each successive stop, puts a bend or tilt in the pipe and trips over to the next bend or tilt, until completion. Each setup requires several hours' work, but on a varying scale, depending on the complexity of the job, quality of the steel, the amount and quality of help the setup man may get from an operator in making the setup, need for retrim or other adjustments, and readjustments or correc- tions ordered by the floor supervisors. On an occasional repeat job, the setup man may have available a previous setup card and a completed sample which will reduce his time, but this is not a frequent occurrence. B. Union Organization and Activity Respondent's employees are not unionized. The Union began an organizing campaign in late 1968, and employee Dois Dodd who, in previous employment at International Harvester of Indiana, had been a UAW member, helped with the organizing. Employee Dodd, of the first-shift bending department, came to work for Respondent in September 1964, first as a cutoff press operator, then became a hydraulic press operator, and then became a hydraulic press setup man in July 1967, at which job he remained until his discharge in August 1973. Dodd obtained signatures on employee authorization cards and served as union observer at the Board-conducted election in February 1969. The Union lost the election. In April or May 1972, according to employee Dodd, a group of employees asked him to get in touch with the Union about organizing again. He did, and a second union campaign took place, culminating in a second election on November 9, 1972. In the course of the campaign, Dodd helped obtain employee authorization card signatures, took part in union meetings, and served as union observer at the election. Another employee on the second shift, Bayard Shelnutt, served as a second union observer. Again, the Union lost the election. Respondent conceded awareness of employee Dodd's union activities and sympathies. C. Demotion, Interrogation, and Discharge of Employee Dodd On the morning of the day of the second election for union representation, November 9, 1972 (the election was held in the afternoon), setup man Dodd had started to set up the presses of hydraulic press operators Rogers and Ellie Walker. Press operator Lawson Raper came over from his nearby hydraulic press to ask Dodd a question when Foreman Ike Rasbury, at a distance from the four men, yelled to get back to work, there was too much talking, according to employee Walker. Rasbury came down to where the men were and ordered employee Raper back to his machine. Raper complied and Rasbury then told Raper (out of the hearing of the others) that there were two or three of them he (Rasbury) would make it rough on if that Union didn't come in. Raper, an employee of 8-1/2 years' standing at the time of teal, further testified that Foreman Rasbury had made known to the employees his opposition to the Union prior to this occasion. Foreman Rasbury then turned to employees Dodd, FORMED TUBES , ALABAMA 511 Walker, and Rogers and, addressing Dodd, told him that his order to Raper (to get back to work) applied to Dodd too. Dodd complied, but said he didn't think it was necessary for Rasbury to jump all over them. Rasbury replied if Dodd felt that way why not just quit, according to the testimony of employees Walker and Dodd, and then added that Dodd had better hope the Union comes in, because if it did not he (Dodd) had had it. Dodd answered he didn't see what his job had to do with it since he was doing his job, to which Rasbury retorted the point was that his work was not satisfactory. According to employee Dodd, this was the first time there had been any intimation to him that his work was not regarded as satisfactory. He added he was hurt because he thought Rasbury and he were friends. He recalled an earlier conversation with Rasbury in connection with the first election when Rasbury asked him why he wanted a union, and he had said for job security; whereupon Rasbury had commented that a good worker like Dodd had no need for job security, the company would never get rid of a man like him. A few minutes after the discussion on the morning of November 9, 1972, involving the four employees, Foreman Rasbury, who said he was disturbed as a result of the discussion, talked to employee Willis Adamson whose hydraulic press was nearby the others. He told employee Adamson, as Adamson testified, that if the Union did not come in employee Dodd had better pack his stuff and get out or he (Rasbury) would fire him. Adamson was a hydraulic press operator at the time of trial, training to be a setup man. Foreman Rasbury admitted the conversation with employee Adamson, including the reference to Dodd and to the Union; but denied mentioning the Union in his conversations with employees Raper and Dodd. However, I credit the testimony of employees Raper, Walker, and Dodd over Foreman Rasbury's denials. In the case of employees Raper and Walker, particularly, who were in the vulnerable position of current employees testifying ad- versely to their employer, their credibility was entitled to added support; Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961); Wirtz v. B.A.C. Steel Co., 312 F.2d 14, 16 (C.A. 4, 1963); Marine Welding and Repair Works, 174 NLRB 661, 666, fn. 9 (1969), enfd. 430 F.2d 395 (C.A. 8, 1971).3 General Counsel has not cited these conversations of Foreman Rasbury on November 9, 1972, as direct violations of the Act, but as background for the subsequent demotion of employee Dodd in February 1973, followed by his discharge in August 1973. In 1973, Respondent embarked upon a process of plant expansion, according to Plant Superintendent Morrow, to keep up with its expanding business ; and, among other things, it began training additional setup men from among the operators with the object of increasing by 10 or 12 the number of setup men by March 1974. Each prospective trainee needed at least 2-1/2 months' preliminary training and additional training thereafter. Notwithstanding the need for trained setup men, on February 28, 1973, Foreman Rasbury informed setup man Dodd that as of March 5, 1973, he was being demoted from setup man to hydraulic press operator. According to Dodd, Rasbury told him he had been pressured to demote Dodd (the change entailed a loss in pay from $3.40 per hour to $3.15 per hour), but Rasbury claimed he said only that he had discussed the demotion with Manager Yarborough and Superintendent Morrow. Dodd said it was a dirty deal, in retaliation for his union activity, to which Rasbury made no direct response, but did say, if it were he, he'd quit. Employee Dodd immediately protested the demotion to Plant Manager Yarborough, to no avail, and the Union took the matter to the Board on an 8(a)(3) charge, filed April 30, 1973, on behalf of both Dodd and employee Bayard Shelnutt, the second union observer at the previous November election, who was discharged by Respondent 10 days after Dodd's demotion, see G.C. Exhibit 2(a), complaint filed June 7, 1973. Respondent restored employee Dodd, who had contin- ued working as an operator, to his job as setup man, on June 6, 1973, after advising him, in a meeting on June 5, that he would be reinstated with back pay for the loss of the pay differential he incurred (testimony of Personnel Manager Ernest Hulsey). By stipulation of counsel, it appeared that discharged employee Shelnutt received a money settlement and the complaint of June 7, supra, as to both Dodd and Shelnutt was dismissed on July 13, 1973, at the request of the Union, G.C. Exhibit 2(b). In the meeting of June 5, 1973, attended by Plant Manager Yarborough, Foreman Rasbury, Personnel Man- ager Hulsey, and employee Dodd (Plant Superintendent Morrow was absent from the plant and did not attend), according to Hulsey and Rasbury, nothing was said to employee Dodd about his setup work or improvement or speed, only that he would be put back on setup work the following Monday, June 11 (this was moved up to June 6, see Resp. Exh. 3). According to Yarborough, Dodd said he accepted, that he felt going to the Board was the only way he and employee Shelnutt had for correcting the wrong done them. Yarborough said Shelnutt was not involved in this discussion, and asked if anyone else had anything to say. Foreman Rasbury asked a question. According to employee Dodd, the question was, why did he, Dodd, want a union? Dodd answered, he said, he wanted a union mainly for job security. According to Rasbury, his question was, why wasn't Dodd satisfied working there, and, had he, Rasbury, treated Dodd wrong? According to Rasbury, Dodd answered, Rasbury hadn't mistreated him, but he thought we would be better off organized by a union.4 Foreman Rasbury's explanation of his version of the question is revealing. He said, when he asked employee Dodd, why he was dissatisfied, it was because it seemed that Dodd was working against the company and working 3 That employee Walker was related by marriage to employee Dodd did 4 Plant Manager Yarborough was generally corroborative of Rasbury, not detract from his credibility or the value of his testimony, which derived but Personnel Manager Hulsey didn't remember whether Foreman Rasbury support and corroboration from the testimony of the others , the surround- mentioned the Union in asking his question , and recalled Dodd answering ing circumstances, and other admissions of Foreman Rasbury, infra. that he wanted a union for job security. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union; Dodd had his mind on the Union instead of his job, to the point where he couldn't improve anymore, said Rasbury. I am satisfied that the truth was on employee Dodd's side, and that he was directly questioned by Foreman Rasbury, in the presence of the plant's top management, as to his (Dodd's) union preference and desires, as charged in the complaint. Employee Dodd returned to setup work on June 6, 1973. On August 1, 1973, he was called to Plant Superintendent Morrow's office and told by Morrow that his work was below par, and that he would have to improve. Dodd said he did the best he knew how, and, according to Morrow, added this was a frameup, because of his union activities. Morrow replied that he didn't agree. On August 24, 1973, employee Dodd was called to a meeting with Plant Superintendent Morrow and Personnel Manager Hulsey. Morrow told Dodd he had seen no improvement in his work, that Dodd had been warned twice before, counting the June 5 reinstatement meeting (which Morrow did not attend) as a first warning and the August 1 meeting as the second warning, and he was now being given a final written warning to perform his setup job satisfactorily or be discharged. The warning, Respondent's Exhibit 1, reciting the two alleged verbal warnings of June 5 and August 1, had to be signed by Dodd said Morrow or, as was typed on its face, Dodd was subject to automatic dismissal. Dodd refused to sign, saying that signing would merely be a brief delay, and his acquiescence, in their firing him later. Moreover, he did not regard the June 5 meeting that restored him to his setupjob as a warning. Dodd having refused to sign the warning notice, Morrow told Dodd that he was discharged and directed Hulsey to get Dodd's final paycheck. D. Respondent's Explanations of the Discharge Plant Manager Yarborough, who disclaimed any knowl- edge of employee Dodd's ability to do his job, saying that this information came from Dodd's immediate supervisors, stated that he had nothing to do with the decision to terminate Dodd. Yarborough said he discussed Dodd's future on August 24, 1973, with his two top assistants, Plant Superintendent Morrow and Foreman Rasbury. They thought he ought to be discharged forthwith because he could not do his job, said Yarborough; but, because he, Yarborough, thought Dodd ought to have a final warning, agreed to the final warning handed Dodd late that day. Dodd caused his own dismissal by failing to sign the warning, said Yarborough. Yarborough claimed that Respondent inaugurated the written warning system, coupled with automatic dismissal for refusal to sign, in 1964, by a posting of notice for 2 weeks on the plant bulletin board and a subsequent similar posting in 1968. However, he offered no evidence of such rule or its posting, and conceded, as did Personnel Manager Hulsey, that though Respondent has written rules for employees in an employees' handbook, there is no such rule relating to a warning system in Respondent's written rules. In addition, Hulsey, who has been Respondent's personnel manager for the past 5 years, testified that he had not notified Dodd of the alleged rule concerning written warning notices, and that, at the terminal meeting on August 24, neither he nor Morrow told Dodd that he might not necessarily be discharged and would continue working if he signed the warning notice. In his initial testimony, Plant Superintendent Morrow, who handled the dismissal of employee Dodd, took the same position (as Yarborough and Hulsey) that Dodd caused his own automatic dismissal, in accordance with the typed legend on the warning notice, by refusal to sign the notice. On cross-examination, Morrow reversed his initial testimony, and stated flatly that Dodd was no longer with Respondent because of his work, that his jobs took excessive time and excessive time of his supervisors, that this was the reason for his discharge, and that his failure to sign the warning notice, Respondent's Exhibit 1, was not the real reason for the discharge. On redirect examination, though Respondent sought to rehabilitate Morrow's initial testimony and reason for the dismissal of Dodd, Morrow persisted that Dodd was terminated "because his setup [sic] was inadequate." In demonstrating the alleged inadequacy, more particu- larly described by Plant Superintendent Morrow as being slow or taking excessive time to complete setups, and requiring excessive time of the floor supervisors to approve setups, Morrow placed great reliance upon a comparative time analysis of the seven morning shift setup men over a 12-week period from May 31 to August 23, 1973, (Resp. Exh. 5). The figures came from timesheets kept by Respondent for each setup job in a periodic time-cost study. The time for each job ran from start by the setup man though approval by the floor supervisor, with clockout only for major interruptions. Morrow and the supervisory witnesses brushed aside the variety of differ- ences in jobs, and time-consuming causes that affect each job and its time differently, on the ground that these tend to level or average out similarly for each man over a period of time. Respondent's analysis (Resp. Exh. 5) showed that, for 97 setups performed by employee Dodd in the period, he averaged 2.66 hours per setup, or 2 hours and 40 minutes per setup. Comparing Dodd with employee Robert Pickard, rated by Respondent's supervisors as a good setup man, Pickard did 94 setups in the period for an average of 2.51 hours per setup, or 2 hours and 31 minutes per setup. The average difference between the two men was only 9 minutes per setup longer for Dodd than for Pickard (testimony of Assistant Foreman Guy Berry, and Resp. Exh. 5). From Respondent's exhibit 5, it appears that employee Gurstel Gardner (who was rated by Respondent's supervi- sors as in the same category as employee Dodd) did 82 setups in an average 2.60 hours per setup, or 2 hours and 36 minutes per setup, which was an average 4 minutes per setup less than Dodd's time. On cross-examination of Plant Superintendent Morrow, as the significance of the figures in the comparative analysis, became apparent, Morrow conceded that employ- ee Dodd was not materially slower than three or four of the setup men on his shift. Morrow contended that the jobs these other setup men had been doing involved more severe bends and were more complicated than the jobs FORMED TUBES, ALABAMA 513 performed by Dodd (something that neither he nor others could tell from the analysis), and suggested that the floor foremen had , bn, giving Dodd easier jobs to speed production. The contention and suggestion were contradic- ted and eliminated by the later testimony of Assistant Foreman Berry, who testified that he had worked with all seven setup men, checked at least half of Dodd's jobs, had not given Dodd any different jobs than he gave the other setup men, and that the jobs for all averaged out to the same degree of difficulty. Superintendent Morrow fell back to his ultimate conten- tion that while he could live with a setup time average of 2.66 hours per job (employee Dodd's average on Resp. Exh. 5), the main complaint against Dodd was that he needed excessive time of the leadmen or floor supervisors for approving his setups. Admittedly, no separate figures of this time were kept, in any fashion. The time spent by the floor supervisor in approving a setup was lumped in with the total job time of the setup. The two floor supervisors who performed this function for the seven setup men in department 2, along with performing their other duties of aiding the other 27 employees in the department and speeding production, were the assistant foreman, Guy Berry, and the group leader or leadman, Gerald Corsbie. They testified that each had approved about half of employee Dodd's setups over the past several years and said that they spent far greater amounts of time in assisting with and approving Dodd's setups than with any other setup man. Assistant Foreman Berry claimed he spent 4 hours per day with Dodd and Leadman Corsbie claimed he spent 1-1/2 hours to 2-1/2 hours per setup with Dodd (or about the same time per day as Berry). Several circumstances suggest that these claims were exaggerated out of all proportion, if indeed there was any special problem with Dodd. Looking at the time spent with just the seven setup men of the department, it was conceded that the two floor supervisors had to spend time with each of them, from the very best performer, whose work was right 90 percent of the time, thru the good or average performers whose work was right 70 percent of the time, to the bottom performers whose work was right 40-50 percent of the time. As jobs became more complicated, said Leadman Corsbie, he was spending from 1/2 hour to 1 hour with the average setup man on a setup. Since Berry and Corsbie were together assisting on and approving daily between 14 and 21 setups (2 to 3 per setup man), it is hardly likely that each was spending half of his day with 1 setup man and still getting his work done with the others. This becomes even more evident in the light of Berry's testimony that he and Corsbie assist all 34 employees in the department, operators as well as setup men, and Berry sometimes must substitute for Foreman Rasbury. Berry and Corsbie testified that they each complained about having to spend excessive time with employee Dodd to Foreman Rasbury, but never said anything to Dodd directly, though he was directly in their charge. Although this was a daily intolerable situation, from their description of it, Berry thought he complained twice to Rasbury, the first time a year or a year and a half before trial, which was prior to or around the November 1972 election; and Corsbie said he complained to Rasbury several times mostly in 1972. Interestiltgly, Foreman Rasbury said he talked to Dodd about the matter of his performance only twice (Dodd denies there were any such conversations), once before the November 1972 election, once after. Rasbury said he told Dodd he was a little too slow and to try and speed it up, and that the leadmen were spending a little too much time with him and try to improve. Rasbury carefully noted in his testimony that he did not say to Dodd that he was too slow, and he did not say the leadmen were spending way too much time with him. These circumstances, put together, suggest that the alleged time of floor supervisors spent on employee Dodd was neither excessive nor the problem with Dodd that Respondent sought to make it at trial in justification of his discharge. Employee Dodd began his work as a setup man in July 1967, and, as Foreman Rasbury testified, he was an acceptable setup man who did a pretty fair job. Respon- dent's witnesses testified that beginning in 1969-70 with the motor car trend to larger and more complicated engines and emission controls, the business emphasis for Respondent began to shift from tailpipes (pipes going from muffler to rear end of the car) to exhaust systems (pipes coming from manifold back to muffler), which, it was said, were more difficult to set up than the pre- 1969 jobs.5 It was also said by Plant Superintendent Morrow and Foreman Rasbury that with the 1969-70 changeover, employee Dodd was not able to keep up, hence his alleged time problem and need for help. Significantly, the alleged complaints about Dodd's performance did not arise in 1969 or 1970 or 1971 or the first half of 1972. Dodd appeared to become a problem 3-1/2 years after the changeover began, during the campaign for union repre- sentation and the election of November 1972. Foreman Rasbury said he was moved to talk to employee Dodd before and after the election because Dodd didn't seem to have his mind on his job, his mind was on something outside the plant-1 figured, said Rasbury, that Dodd had his mind on the Union. The one hard piece of evidence on the question of employee Dodd's ability to keep up with the current work came in with Respondent's Exhibit 3. This was a summary of Dodd's setup jobs after his reinstatement as setup man in June 1973. One portion of the summary goes up to July 31, after which Dodd was given the warning of August 1 by Plant Manager Morrow. The second portion covers August 1-24, 1973, the last 3 weeks of Dodd's work. Morrow offered the exhibit to demonstrate jobs he had marked as showing excessive time on Dodd's part. It turned out that in the period August 1-24, 1973, after the warning of August 1, and prior to discharge on August 24, the only jobs that Morrow marked as excessive were jobs partly done by Dodd and partly done by another setup man on the second shift. Every job done by employee Dodd alone in that period was done without excessive time, and 5 There was also testimony from the same witnesses, however, that many of the pre-1969 jobs were as complicated and difficult as the later jobs. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morrow conceded this at trial. However, Morrow never took this fact into account when he discharged Dodd on August 24, 1973, because by his own admission Morrow made no personal study of Dodd's work until after August 24, 1973.6 E. 8(a)(1) and (3) Findings In my view, Respondent's explanations for the discharge of employee Dodd are a tissue of pretense to disguise the antiunion motivation that was the real cause for his discharge. The shifting explanations, described under heading "D" above, undermine Respondent's denial of discrimination, N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965), particularly since Respon- dent's claims of Dodd's inadequacy as an employee were unsubstantiated. Dodd was an employee of 9 years' standing with Respondent. By 1972, Dodd apparently had emerged as the employee leader in the movement for unionization at the plant, following defeat of the first attempt at unioniza- tion in 1968-69 . He was active in obtaining employee support through authorization cards , organizing and attending meetings in the 1972 campaign, and acted as union observer at the election of November 9, 1972. Respondent was opposed to the Union , and Foreman Rasbury, an admitted statutory supervisor , served notice on Dodd and his fellow employees, on the morning of the November 9, 1972 , election, that Dodd (and possibly other union adherents) were slated to be fired . Following the second defeat of the Union, Respondent moved in that direction in March 1973 by demoting Dodd to a lesser job (and suggesting he resign), supposedly because he could not handle the setup man's job he was in and had been in since 1967, and firing another employee, Shelnutt, who had been a second union election observer. Following the filing of a charge by the Union with the Board (on behalf of employees Dodd and Shelnutt) and concomitant with the filing of a Board complaint, in June 1973, Respondent restored Dodd to his former job as setup man (also settling out the discharge of Shelnutt and obtaining dismissal of the then pending complaint). Preliminary to his reinstatement as setup man, employee Dodd was called into a meeting with the plant manager, personnel manager, and his foreman, Rasbury, on June 5, 1973, to be told that he was being restored to his former job with backpay . His past or future performance was not discussed but Foreman Rasbury questioned him on why he wanted a union in the plant. Such interrogation was coercive and in violation of Section 8(a)(1) of the Act. In the mind of the employee it would naturally be associated with Respondent 's active opposition to the Union. The questioning was conducted in the presence of the top plant management . There was no explanation of its purpose, nor was any legitimate purpose apparent. It had the appearance of a warning or attempt to intimidate, and employee Dodd was offered no assurance against reprisal or retaliation. N.L.R.B. v. Varo, Inc., 425 F.2d 293, 298 (C.A. 5, 1970). 6 There was also testimony by several of Dodd's fellow employees indicating that he was performing comparably with the other setup men and At this point, if not earlier, the pattern of future company action respecting employee Dodd was set. As Foreman Rasbury said, he was already of the view that Dodd was working for the Union and against the Company. This view was apparently shared by the plant management. Employee Dodd was let in on the game when he was warned by Plant Superintendent Morrow on August 1, 1973, that his work was substandard and he would have to improve or go. (As Morrow noted, Dodd cried "frameup.") The game was played out on August 24, 1973, when employee Dodd was given and declined the opportunity to sign a written warning that his work was substandard, and that he had been warned twice before , though he had only been warned once . He was dismissed forthwith on a claim that he had breached a plant rule, refusal to sign the warning notice, although that was not a plant rule among the written rules governing employee conduct , but only a inscription on the notice. Respondent switched from this claim to the claim that Dodd was fired because he was an inadequate employee by reason of slowness, and taking too much of his floor supervisors' time. As analyzed under heading "D" above , these claims concerning Dodd were not substantiated, and some of Respondent's exhibits and testimony, as well as testimony of Dodd's fellow employ- ees, provided affirmative evidence that Dodd had been performing his job comparably to the performance of his colleagues. Thus his discharge, in these circumstances and at a time when Respondent was expanding and needed more, rather than less, well-trained setup men, can be explained only by the fact that employee Dodd continued to openly espouse union organization of Respondent's employees, which Respondent would not abide. Respondent's real reason for the discharge of employee Dodd was to be rid of the employee leader for plant unionization and to discourage unionization of its employ- ees, in violation of Section 8(aX3) and (1) of the Act. Respondent's claimed reasons for discharge were pretexts to conceal the real reason and the unlawful object. N.L.R.B. v. Iron City Sash and Door Co., 352 F.2d 437, 438-439 (C.A. 6, 1965); N.L.RB. v. Schnell Tool and Die Corp., 359 F .2d 39, 44 (C.A. 6, 1966); and see holdings in N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393 F.2d 871, 872 (C.A. 2, 1968), that the stated ground was not the real ground for the discharge; and Shattuck Denn Mining Corp., 362 F.2d 466, 470 (C.A. 9, 1966), that the stated ground was designed to conceal the unlawful motive. CONCLUSIONS OF LAW 1. By coercively interrogating employee Dois Dodd on June 5, 1973 , concerning his union sympathies and desires, Respondent engaged in an unfair labor practice within the meaning of Section 8(aXl) of the Act. 2. By discharge of employee Dodd on August 24, 1973, because of his support of, and activities for, the Union and in order to discourage such activities or union membership of its employees Respondent engaged in an unfair labor was helpful to the press operators. FORMED TUBES, ALABAMA 515 practice within the meaning of Section 8(a)(3) and (1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In connection with the unfair labor practices, it will be recommended that the Respondent: (1) Cease and desist from its unfair labor practices. (2) Offer to reinstate employee Dois Dodd with backpay from the time of discharge, backpay to "mputed on a quarterly basis as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.LR.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888 (1964). (3) Post the notices provided for herein. Because the Respondent violated fundamental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be further recommended that the Respondent: (4) cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918 (1969); N.L.R.B. v. Bama Company, 353 F.2d 323-324 (C.A. 5, 1965). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDERT (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Order. (d) Post in its plant at Haleyville, Alabama, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 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, recommendations, and 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. 8 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant 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 Respondent, Formed Tubes, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sympathies and desires. (b) Discharging employees because they engage in or support union activities. (c) Discouraging employees from support of or member- ship in the Union or other labor organization by discharge or other discrimination affecting their tenure and condi- tions of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make employee Dois Dodd whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings incurred by him as a result of his discharge on August 24, 1973. (b) Offer to employee Dodd immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. The National Labor Relations Board having found, after a trial, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT coercively interrogate you concerning your union sympathies and desires. WE WILL NOT discharge you because you engage in or support union or other lawful concerted employee activities. WE WILL NOT discourage you from support of or membership in the Union or other labor organization by discharge or other discrimination affecting tenure and conditions of your employment. WE WILL NOT in any other manner interfere with your rights to belong to or be active for a labor union, or to refrain therefrom. because the Board found that we unlawfully dis- charged employee Dois Dodd on August 24, 1973, wE WILL offer Mr. Dodd his former or like job. WE WILL give him backpay with interest from August 24, 1973. FORMED TUBES, ALABAMA (Employer) 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concerning this notice or compliance with This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, anyone. Peachtree Building, Room 701, 730 Peachtree Street, NE This notice must remain posted for 60 consecutive days Atlanta, Georgia 30308, Telephone 404-526-5760.