Kent Corp.

KENT CORPORATION 595 Kent Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and John W . Sailors andThom- as E. Roberts. Cases 10-CA-10091, 10-CA-10272, 10-CA-10099, and 10-CA-10179 July 30, 1974' DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 27, 1974, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.' The General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor- Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and affidavit and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 1. Respondent argues that improprieties in the Re- gional Director's investigation violated constitutional standards of fair play. It points to two incidents. The first is the General Counsel's introduction as evidence of slips of paper that Respondent had given to four employees, which contained the Board's local office address and telephone number. It states that it gave this information to its employees, at the suggestion of a Board agent, to clear up confusion in the unfair labor practice charges naming or misnaming the al- leged discriminatees. These slips, together with other evidence, were relied on by the Administrative Law Judge in finding that Respondent unlawfully solicited four employees to withdraw the charges concerning them and discharged three of them (Thomas, White, and Nesmith) when they would not carry out its in- struction. Respondent contends that, in view of the 'Respondent also filed an affidavit alleging bias of the Administrative Law Judge, which we discuss in the body of this Decision and Order. 2 we correct these inadvertent errors in the Administrative Law Judge's Decision. The "Statement of the Case" section refers to charges filed by the Union. It should also reflect that charges were separately filed by employees John Sailors and Thomas Roberts. In sec. III, "Unfair Labor Practices," B, "Discrimination Cases," we cor- rect errors in the following,paragraphs discussing the named discnmmatees: Eddie Thomas-in the fourth paragraph, first sentence, the case number should read "10-CA-I0077 ." Calvin Wright-in the second paragraph, sec- ond sentence, "Foreman Deaton" should read "Manager Deaton ." Charles Archer-in the fourth paragraph, fifth sentence, the second word should read "Morrison." Board agent's suggestion in the matter, the use of paper slips as probative evidence was entrapment. There' is no merit to this argument. The record shows that Respondent's officer (McGinnes, assis- tant to President Oztekin) testified to talking to the Board agent the first week of May 1973 about the confusion in names in the unfair labor practice charges. It also shows that Respondent gave the slips to the employees 2 or 3 weeks earlier, between April 17-19. In view of the fact that Respondent' s illegal conduct, passing out the slips and discharging those who would not withdraw the charges, preceded its alleged conversation with the Board agent, the claim of entrapment is baseless. The second incident in the investigation which Re- spondent asserts was unfair to it was an alleged occur- rence in the Board's local office, as testified to by employee Miles Blackman. Blackman said that he went to the Board's office to withdraw his name from the unfair labor practice charge; that a Board employ- ee in the office told Blackman he would remove his name but Blackman was liable to lose his job; that employee Sailors, who was also present, tried to dis- suade Blackman; and that the Board agent told Sailors to leave. Respondent states that the Adminis- trative Law Judge prevented further examination of witness Blackman, did not mention the incident in his Decision, and that the threats by the Board agent and employee Sailors taint the proceeding and de- prived Respondent of a fair hearing. The record shows that Respondent represented to the Administrative Law Judge that the purpose of Blackman's testimony was to show that Respondent's subsequent actions, in giving employees the name and address of the Board office and assuring employees that they would not be fired if they withdrew their names from the charge, were not coercive. While counsel for the General Counsel objected to the line of testimony on grounds that It was extraneous to the issues, the Administrative Law Judge overrules the objections, and, in fact, Respondent' s counsel contin- ued his direct examination of the witness. The witness gave further testimony on the subject in cross-exami- nation by counsel for the General Counsel. Toward the end of the direct examination, this colloquy oc- curred between the Administrative Law Judge and Respondent's counsel: JUDGE WINKLER: Well, in any event, I think this witness has given you all the information that you need for purposes of this case. MR. STELZENMULLER: I believe he has. JUDGE WINKLER: Continue. MR. STELZENMULLER: That's all my questions of this witness. 212 NLRB No. 88 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record thus shows that the testimony was received for the purpose it was offered, and Respondent's counsel acknowledged that he had no need to question the witness further on this. 2. Respondent argues that the Administrative Law Judge was prejudiced against its case, as shown by several events at the hearing, which deprived it of a fair hearing. It contends that it was misled by the Administrative Law Judge's statements both on and off the record to the effect that, if Respondent pre- sented a defense to the unlawful assistance evidence introduced by the General Counsel, the Administra- tive Law Judge would order disestablishment of the Association 3 because he was satisfied that domina- tion existed, although not alleged. Respondent states that it therefore did not put on a defense as to unlaw- ful assistance rather than have the Association dises- tablished. There is nothing in the Administrative Law Judge's on-the-record remarks that could be interpreted to preclude Respondent from contesting the General Counsel's evidence as to unlawful assistance. The Ad- ministrative Law Judge indicated only that if the evi- dence showed unlawful domination in the administration of the Association and if Respondent litigated the issue, it would be consenting to try the domination issue and a finding could result in dises- tablishment of the Association. The Administrative Law Judge referred to an off-the-record discussion, and his statements on the record were apparently made to show what the parties had talked about at that time. Respondent's brief to the Administrative Law Judge did not contend that the Administrative Law Judge had made any different remarks off the record on the point it now raises. It does not now set forth any evidence which it had and did not present at the hearing. Nor has it indicated which of the Ad- ministrative Law Judge's findings would be refuted by facts which it desired to present. We find no therit to Respondent's contention that it was precluded from presenting a full defense on the 8(a)(2) issue. Respondent further argues that the Administrative Law Judge decided the case on an incomplete record, closing the record without notice to Respondent after he had agreed to keep it open for additional docu- ments which Respondent had requested from the General Counsel. The documents requested are the subject of a proceeding now pending on appeal to the Court of Appeals for the Fifth Circuit. Kent Corpora- tion v. N.L.R.B. (Civil Action No. 74-1710). Respondent did not request delay in the hearing of evidence on the complaint allegations, but, at the end of the presentation of all the evidence, asked that the record by kept open for the production of the docu- ments previously requested. The Administrative Law Judge asked why Respondent wanted the information and Respondent's counsel said it "may show some- thing" about "rather peculiar occurrences in connec- tion with the issuance of this charge and the investigation of it. . . ." The record shows that the Administrative Law Judge said "Okay" to this reply to his question . It is not clear that the Administrative Law Judge was agreeing to Respondent 's request. However, in its brief to the Administrative Law Judge, Respondent said only that it would submit the documents, which it was seeking through court action, as additional exhibits if it obtained them . We hold that Respondent has not been prejudiced by the clos- ing of the hearing. Sears Roebuck & Co., 473 F.2d 91 (C.A.D.C., 1972). We have carefully considered the contentions ad- vanced by Respondent in its brief and affidavit of bias with respect to improper and prejudicial conduct by the General Counsel and the Administrative Law Judge, and we are mindful of the gravity of the allega- tions. We are satisfied that they are totally without merit. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as ammended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Kent Corporation, Pinson Valley, Jefferson County, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 3 The complaint and notice of hearing and order consolidating cases, is- sued on August 22, 1973, was served on the Employees Association of Kent- Supermatic The Administrative Law Judge gave the Association, through its attorney, who appeared at the trial as an observer, an opportunity to inter- vene, but the Association did not make a formal appearance DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: This is a consolidated proceeding based upon charges and amended charges filed by the Union on and after April 11, 1973, and complaints issued by the General Counsel on June 20 and August 22, 1973, alleging violations by Respondent of Sec- tion 8(a)(1), (2), (3), and (4) of the Act. Respondent's an- swers deny the alleged violations, and a hearing thereon began on September 10, 1973, and ended on October 4, 1973. All parties, including the Association, were repre- sented by counsel and were afforded full opportunity to participate in the hearing. KENT CORPORATION e Upon the entire record in the case, including my observa- tion of the demeanor of witnesses, and upon consideration of briefs, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT Kent Corporation is an Alabama corporation engaged in the manufacture and sale of steel shelving and grocery checkout counters at Pinson Valley, Jefferson County, Ala- bama. Respondent's yearly interstate shipments exceed $50,000, and I find, as all parties agree, that it is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers (herein called the Boilermakers or Union) and Employees Association of Kent-Supermatic (herein called the Association) are labor organizations within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues involved here are whether Respondent violat- ed Section 8(a)(3) and (1) of the Act by discharging 15 employees,' and Section 8(a)(4), as well, as to 5 of these employees;2 Section 8(a)(2) and (1) by assisting and sup- porting the Association; and Section 8(a)(1) by other speci- fied conduct. The Association was organized in 1969 or 1970 as an unaffiliated labor organization with membership limited to Respondent's employees, and at material times herein it was the recognized bargaining representative under contract with Respondent. (This contract expires by its terms on March 1, 1974.) Employees evinced an interest in the Boiler- makers in 1973,3 and about March 13 of that year the Boil- ermakers began an organizing campaign by openly handbilling and distributing union leaflets and designation cards outside the entrance to Respondent's plant. This handbillmg continued until May 17. On March 22, 1973, the Boilermakers filed a representation petition with the Board (Case 10-RC-9556). A decision and direction of election issued on April 18, and an election was held on May 17, with Boilermakers and the Association on the ballot. Of approxi- mately 87 eligible votes, 26 ballots were cast for Boilermak- ers, 25 for the Association, and 26 ballots were challenged. The Association and Respondent filed objections to con- duct of the election, and these objections were unresolved as of the hearing in this unfair labor practice case. The General Counsel contends that Respondent under- took a two-pronged campaign to defeat the Boilermakers' organizational efforts and to assure its own control over the Association. The 8(a)(2) allegations of the complaint are 1 The complaint was dismissed at the hearing respecting Robert Hallman's discharge 2 Edward Blakiey, Mary Nell Dyer, Mary Lee England, Wayne Neely, and Beverly Nesmith. 3 All dates herein are in 1973 unless otherwise stated. 597 addressed to assistance and interference with, but not domi- nation of, the Association. The alleged cases of discharge and other discrimination as well as other independent acts of interference, restraint, and coercion are alleged by the General Counsel as further ingredients of Respondent's ef- forts to keep the Association in and the Boilermakers out. A. Association Elections An election to select new officers for the Association was held in the plant cafeteria on March 2. Calvin Wright was elected as president, Ricky Morgan as vice president, Mazel Finney as recording secretary (or secretary-treasurer), and Robert Hallman as a member of the board of directors. Shortly thereafter, some of the newly elected officers were summoned to a meeting with Company President M. A. Oztekin. Oztekin told them, according to Wright's credible testimony, that the election was "illegal" and that another election would have to be held because Morgan was too young to hold office 4 and because Hallman had not been in the Association long enough. Company Vice President Turner Duke contemporaneously called employees Sam Mitchell, C. A. Smith, and Charles Archer into his office, these three being among the past year's association officers. Duke told these employees, according to Archer's credible testimony, that some employees who were not qualified to vote had cast ballots in the March 2 election and that the election was therefore "irregular." Duke further told them that Respondent would continue recognizing the old offi- cers until a new election was held and that they should meanwhile devise a method to avoid "irregularities" in an- other election. Duke left the office and the three employees discussed the matter. Duke returned and then invited the employees to Oztekin's office where Oztekin was being vis- ited by a state legislator, Bobby Timmons. Oztekin an- nounced that "we're having a new election" because of "voting irregularities," and he asked Timmons to give the employees " a few pointers." Timmons then said that voting by unqualified voters "automatically" made the election results "null and void." Everyone present discussed the situ- ation and the employees agreed with Archer' s suggestion that a checkoff list of association members be used in any future election. Meanwhile, there were rumors in the plant that another election would be held, and a second election was held on March 9. A few days before March 9, according to Charles Archer's credible testimony, Plant Superintendent Melburn Gardner 5 told Archer there would be a new election and that "you old hands should get together and decide who you want into office." Archer indicated his 'disinterest in such discussion with Gardner. About this same time, Archer was approached by DeWayne Deaton, manager of the electro- coating division. Deaton referred to the upcoming second election, according to Archer's credible testimony, and sug- gested that Archer "run for President of the Association" and that he, Deaton, would "see that you'll get it." Archer would have no part of it. The Association's bylaws do prescribe a minimum age of 21 for its officers 5 Gardner's testimony leaves much to be desired as far as credibility and trustworthiness is concerned on this and all other issues 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wright and Finney were again elected at the second asso- ciation election held in the plant cafeteria on March 9, and this time Donald Moore was elected vice president. Charles Archer credibly testified that during the election Superin- tendent Gardner and Company Vice President Jerry Alba- no stood outside the door to the cafeteria and had an employee roster in hand, and they checked off the names as each employee entered the cafeteria to attend the election meeting. Wright met only once with management representatives in his capacity as association president. This occasion in- volved an inquiry by Wright of Superintendent Gardner why one Foster was not on the Association's membership list. Gardner took Wright to Vice President Duke's office, President Oztekin being present at the time. Wright men- tioned the Foster matter to Oztekin and, according to Wright's credible testimony,6 Oztekin "got warm " As dis- cussed hereinafter, Wright was "laid off" on March 23 and the General Counsel also contends that Respondent did not properly recall him Moore resigned the vice presidency about a week after the March 9 election, and Respondent discharged him on March 23. On or about March 24, Association Recording Secretary Finney was called at home by E. T. Simrell. Simrell was then a company vice president and its secretary-treasurer. Finney credibly testified that Simrell told her that Wright was no longer with the Company and Moore had resigned his office and that "all this falls on your shoulders." Simrell "advise[d]" Finney "to call a meeting and elect officers to fill the vacancies" and that the names of new officers had to be turned in to the Company at once. Finney replied that the employees still recognized Wright as their President and that she did not know whether she could arrange a meeting.? Within a few clays Sam Mitchell (a former president of the Association), and later two other employees, suggested that Finney call an Association meeting to elect new officers Finney replied that Wright was still the president and that the Association's toard had not determined he was not. Wright, meanwhile, had appointed Travis Mitchell to re- place the resigned Moore as vice president. A meeting to conduct a third election of association offi- cers was held on March 31. This meeting was not called by any association officer It was held, rather, pursuant to a notice on a company bulletin board. The notice was from "The Management" to "Hourly Employees," and it an- nounced, in part, that an election meeting would be held in the plant cafeteria on March 31 at 4 p.m. to fill vacancies in association offices. About 18 of the approximately 65 association members attended this March 31 meeting and Sam Mitchell presided although, as indicated, he was not an officer of the Association. The floor was opened for nomi- nations and an election was conducted by a show of Lands. Approximately nine employees actually participated in the voting. Mitchell received five votes and became association president. John Goodwin was elected vice president and 6 Wright was a wholly trustworthy witness 7 While recalling having several phone conversations with Finney concern- ing association checkoff lists, Simrell denied discussing association elections with her Finney's version of the conversation is completely credible, in my George Praytor a board member In the company conference room the following week President Oztekin congratulated Mitchell, Goodwin, Pray- tor, and Finney on the election and said the Company rec- ognized each of them as association officers. Finney declared she did not recognize either Mitchell or Goodwin as such. Sometime during this period Finney rejected the applications of David Gardner and Violet McCay for mem- bership in the Association, Gardner is the son of Superin- tendent Gardner and McCay is an office employee. Finney was called to the office and Oztekin asked her about these applications in the presence of Company Vice President Duke and other management representatives Oztekin told Finney that Gardner and McCay could file a charge against Finney for "discriminating" against them. B. Discrimination Cases The Respondent correctly states that an employer "has the right to discharge an employee for any reason, whether it is just or not, as long as the discharge is not in retaliation for union activities or support . . . . The Board cannot substitute its judgment for that of employer as to what constitutes reasonable grounds for discharge. The question of proper discipline of an employee is a matter left to the discretion of the employer." N.L.R.B v Ogle Protection Service, Inc., 375 F.2d 497, 505 (C.A. 6, 1967), cert. denied 389 U.S. 8433. The General Counsel asserts, in effect, that President Oztekin is a strict disciplinarian and therefore brooks no opposition to his allegedly anti-Boilermakers stance. The Respondent also asserts that Oztekin is a strict disciplinarian and contends, in effect, that the individual cases of discrimination must therefore be evaluated "in terms of hiw own personal makeup" 8 and his right to run in effect, as "tight a ship" as he desires. Each party there- fore asserts the personality of various Respondent repre- sentatives is relevant to their respective approaches to this case. While there might have been what I deem a semanti- cal-though unintentional-awkwardness in phrasing the contention on one or two occasions, no party in my opin- ion has engaged in racism or aspersion of nationlality of any sort. I consider, moreover, that it is a responsibility of an attorney not to inflame the emotions or exploit the mis- understandings of a client or a witness at least so far as a hearing is concerned. Counsel for the Respondent urges that this proceeding be dismissed on the ground that Re- spondent has been deprived of constitutional rights. A fair reading of this record affords no basis for such contention, and I shall not discuss this matter further except the avun- cular advice that all parties treat each other fairly, at least at hearing as well as in briefs. I shall now take up the individual cases of discrimination. I have considered each discharge situation on the basis of its own facts and in the context, as well, of the entirety of this case, and keeping in mind the chronology of events relating both to the Association and to the Boilermakers campaign and the processing of the aforementioned repre- sentation case. The record in the case is fairly large and this Decision is long and on occasion I have omitted details opinion, based on their testimony and my demeanor observations 8 Hemingway Transport, Inc, 200 NLRB 245, TXD (1972) KENT CORPORATION 599 when it seems fair and prudent to do so. All parties should be aware, however, that this Decision is based on the entire record in the case. Wayne Neely was hired on March 8, 1973, and laid off on March 23. The complaint alleges that Respondent unlawful- ly discharged Neely on or about June 8. Respondent was notified on April 13 that the Boilermakers had filed an unfair labor practice charge (Case 10-CA-10091) on April 11 and that such charge alleged in effect that Neely and other employees were unlawfully laid off on March 23 and on various other dates. Respondent mailed Neely a recall letter dated April 17, giving him 3 days within receipt to notify Respondent of his intentions to return; the letter also stated that unless Respondent heard from Neely Respon- dent would offer thejob to others on a seniority basis. Neely had meanwhile moved his residence without notifying Re- spondent and he did not receive the recall letter until on or about April 27. Neely went to Respondent a day or two later, but was informed that the job had been given to someone else. Early in June Respondent placed a newspaper advertise- ment for journeyman machine operators. Neely saw the advertisement and went to the company office seeking em- ployment although he was not qualified for the mentioned job classification. He spoke to Vice President Duke and President Oztekin on this occasion and, after being told that Respondent had no job for him because it was hiring only in the mentioned category, Neely mentioned something to the effect that Respondent had said it would rehire on a seniority basis. At this point, according to Neely's credible testimony, Oztekm lost his temper and said "what in the hell's the matter with you; are you stupid or something." Neely thereupon left. The next day, Duke called Neely and said Respondent had a job for him. Neely went to the plant and Duke in- formed Neely he would be required to fill out a new applica- tion form and he could only return as a "new" employee. Neely completed the application and one of the questions on the form required the applicant to identify any union affiliation. Neely answered "no" affiliation.9 Neely accordingly resumed employment in the shipping department on Monday, June 4. A day or so later, according to Neely's credible testimony denied by Superintendent Or- soy,10 Orsoy approached Neely with a "piece of paper" which he asked Neely to sign but would not show him. Orsoy told Neely that the "paper" stated that Neely had no 9 Neely had signed a Boilermakers authorization card, but did not under- stand this to mean "affiliation." Indeed, his testimony shows that he did not know the meaning of the word Respondent claims it has since deleted this question from its questionnaire. '()The Boilermakers began open handbilling at Respondent's plant en- trance on March 13 and continued such activity until May 17 Vice President Duke testified to Respondent's awareness of this organizational drive and that he sent a letter to the Boilermakers dated March 14 stating that "your solicitation of our employees has been brought to my attention " Orsoy, the plant superintendent on the night shift, testified-and I am fully satisfied that he deliberately misstated-that he did not learn of the Boilermakers activities until May 2, when the Board election notice was posted. This is a very intelligent witness I am satisfied on the basis of his entire testimony and demeanor and on the testimony and demeanor of all other witnesses and upon consideration of all other evidence that this witness is not entitled to be believed in matters of evidentiary conflict grievance against Respondent and that Neely wanted to "drop" the aforementioned April 11 charge filed with the Labor Board. Neely told Orsoy it wouldn't be "right" for him to sign the paper and he refused to do so. Orsoy dis- charged Neely at the end of the week. Respondent claims that it discharged Neely for "disobe- dience, insubordination" and it also claims he was a "slow, poor" worker and talked "loud and incessantly" on the job (Resp. Br. 138-139). As to the insubordination claim, it appears that during the few days of his employment after he refused Orsoy's request to sign the "paper," Orsoy "jumped all over" Neely, according to Neely's testimony, for wearing a regular shirt with the sleeves cut off and told Neely not to wear such sleeveless shirts. (It is recalled that Neely was working in the shipping department.) Neely told Orsoy he had once seen a woman employee wearing, a shirt with rolled-up sleeves and he also mentioned something about his "Constitutional rights." Neely wore the same sleeveless shirt the next day and Orsoy told Neely that he had already warned him about such shirts. On Friday Orsoy called Neely into the office and fired him. Respondent ad- duced the testimony of one Steve Staley " on the "loud and incessant" talking charge, and it also adduced a memoran- dum purportedly written by Orsoy to Albano on June 5 recommending. that Neely be replaced "as soon as possible" for talking and not being "productive," and for "poor work attitude" and lack of "interest." The record also contains two memoranda, each dated June 8, from Orsoy to Albano, requesting Neely's termination for "talking" and not being "productive." 12 President Oztekin owns Respondent, and Vice President Duke testified that Oztekin "knows just about everything that goes on" and that as to "practically all discharges, he knows exactly what's going on at the time." Respondent was strongly anti-Boilermakers, so far as this record establishes, and the record documents the widespread efforts and lengths to which Respondent went to implement this ani- mus. An employer is entitled to be antiunion or to be anti- particular union in his feelings and beliefs and an employer is also entitled to insist on any mode of dress or uniform for his employees and even to require shipping room employees to wear formal attire if he desires. The question, however, as to Neely's discharge is whether that is the real reason for the discharge. It will appear in the discussion of some other discharge cases here that Respondent recalled employees and then got rid of them a few days later and that it mean- while set out to establish a pretext for such termination. Later on, too, we discuss the situations of other employees who also refused Respondent's request to withdraw from unfair labor practice cases pending against Respondent. I am satisfied, and find, that Respondent discharged Nee- ly for his refusal to sign the "paper" tendered to him by Orsoy, and not because he wore sleeveless shirts or for any other reason asserted by Respondent. Eddie Thomas began working for Respondent in June 1972, and left after several months to enter college that fall. Vice President Albano told Thomas at the time that he was i I consider Staley an untrustworthy witness and not entitled to belief. iz These memoranda, being substantially hearsay, do not establish the truth of their contents. This was the limitation placed on exhibits when received in evidence. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a "good worker" and that Albano could arrange to have Thomas return for summer employment during succeeding college years. Thomas shortly dropped out of college, and Duke and Albano rehired him on a permanent basis in February 1973. Thomas and other employees were laid off on or about March 23 and, with Thomas' knowledge, an unfair labor practice charge was filed by the Boilermakers on April 3 alleging these layoffs to be unlawful.13 Thomas was recalled to work on or about April 18 (he was previously employed in fabrication on the day shift; he was recalled as a night janitor), and 2 days later he was terminated. There is a surface ambiguity as to whether it was a discharge or a layoff. Respondent's answer admits, as the complaint alleges, that Thomas was discharged and Su- perintendent Orsoy identified Respondent's termination slip as a "discharge" which he testified he signed after con- sultation with Vice President Albano and Foreman Arthur Pugh. The slip recommends Thomas' rehire, however, and also mentions layoff for steel shortage and states that Thomas was a 90-day probationary employee. Thomas was employed as a night janitor after his recall, as stated above, and Pugh testified that Thomas "couldn't handle the job," and Pugh stated in explanation that on one occasion Thomas picked up an electric drill in a sweeper he was operating and that on another occasion he got an elec- tric cord wound up in the sweeper. On April 18, the day Thomas was recalled to work, Fore- man Arthur Pugh 14 gave Thomas a slip of paper, included in the record herein as GC 15, containing Thomas' name, Case 10-CA-10077, and the Regional Office address and telephone number in Birmingham. Pugh told Thomas, ac- cording to Thomas' credible testimony, to advise the Labor Board's Regional Office, by either a visit or telephone, that he was withdrawing his charge in the aforementioned case. Thomas refused to do so, whereupon Pugh told Thomas to go home and think it over and to let Pugh know the next night. Thomas informed Pugh the following night that he had not withdrawn his charge whereupon Pugh went into Superintendent Orsoy's office. At the end of the shift that night Thomas was summoned to Orsoy's office, and Orsoy read Thomas his termination slip referring to a steel short- age and saying he was being laid off. Pugh admitted that he wrote out GC 15 and gave it to Thomas and that he wrote out and gave similar pieces of paper to other employees, including Beverly Nesmith. Pugh testified that he heard employees discussing the location of Federal Building, where the Board's local office is located, and that one Miles Blackman told him in effect, that a charge had been filed as to him but that he (Blackman) had no complaint against the Company and that he didn't know the Labor Board's local address or what to do about it.15 13 Case 10-CA-10077 This charge was later withdrawn 14 Pugh is another management representative who testified that the first time he heard of the Boilermakers was on May 3. when the election notice was posted (See In 10, supra, as to Orsoy, In 17, infra, as to Morrison, In 23, infra, as to Deaton, In 29, infra, as to Thrasher) I cannot accept Pugh's veracity for the same reasons I discredit Orsoy and the others 15 Blackman testified concerning his inclusion within a charge Whatever the situation was as to him , does not mitigate Respondent's actions as to what Respondent actually told Goodwin and alleged discriminatees Thomas, Nee- ly, White, and Nesmith Pugh testified that he then discussed the Blackman matter with President Oztekin but did not inform the latter that Blackman had purportedly said his name was on a com- plaint against the Company. According to Pugh, Oztekin instructed Pugh to give such address to all employees and Pugh testified that he did so whether or not they requested it. Pugh also testified that the information written by him on the slips of paper he handed out, was obtained by him from the company office and that he wrote out the informa- tion exactly as he received it from the office. Pugh also testified that he had no knowledge of unfair labor charges against Respondent at the time and that he didn't know the significance of the aforementioned case number that he wrote on the slips 16 Oztekin did not testify concerning these slips or about having a conversation with Pugh regarding Blackman Respondent recalled Thomas from a layoff and fired him 2 days later. In my opinion there is only one explanation for this latter action, and I accordingly find that Respondent terminated Thomas for rejecting Pugh's request or instruc- tion to seek withdrawal of his name from the unfair labor practice charge. Beverly Nesmith began working for Respondent in March 1972, being primarily employed in the fabrication depart- ment. She quit and was rehired after a week in June 1972 and was employed continuously until a layoff of about a week beginning on or about April 1, 1973 The April I1 charge in Case 10-CA-10091 was filed after Nesmith re- turned from the April layoff and Respondent learned on April 13 that the charge included her April 1 layoff among the discriminatory acts alleged therein. It is not denied that, upon her return from the April 1 layoff and after filing of the aforementioned charge, Fore- man Pugh told her to call the Labor Board and have her name removed from the charge Pugh gave her a slip of paper reading as follows: "Beverly Nesmith, Case No. 10- CA-10091, Kent Corp., April 11, 1973, City Federal Bldg or Phone 325-3877." Nesmith did not comply with Pugh's instruction to contact the Labor Board Pugh's testimony respecting these slips is discussed above in connection with Eddie Thomas' discharge. Nesmith was laid off a second time for a week or so on or about April 25, and on her return Respondent started assigning her and other female employees to various heavy jobs she had not done before, such as spot welding and grinding, shipping, and paint department. Vice President Duke and Duncan McGinnes (assistant to the company president) discharged Nesmith on July 6, purportedly for excessive talking after being warned and for poor produc- tivity, and Respondent adduced the testimony of other management representatives respecting her purported defi- ciencies . McGinnes testified that he did not know who made the decision to terminate Nesmith Nesmith admitted that Foreman Pugh had warned her "about twice" as to 16 Claude E Goodwin left Respondent's employ on April 25 He had been laid off in late March or early April and participated in the filing of the charge on April I I alleging the layoff to be unlawful (Case lO-CA-10091) He was recalled on April 11, and the following day Foreman Pugh gave him a slip of paper with similar information given to Thomas Pugh advised him that "if I was you, I'd [withdraw the charges] " KENT CORPORATION talking and had "turned her in" for such reason after her April recall late from her second layoff. There is no credi- ble showing of any other warnings. I conclude that Respondent terminated Nesmith for her inclusion on the unfair labor practice charge and for not complying with Pugh's instructions in that connection. Sherrie Neely worked for Respondent from August 1971 until she quit for personal reasons in January 1972. She was rehired in January 1973 and was fired on or about April 11, 1973. Foreman Dick Morrison was her supervisor during both employment periods. Early in April an employee, James Goodwin, circulated a petition in the plant to the effect that the signers wanted to keep the Association and didn't want any outside unions coming in. (It is recalled that the Boilermakers representa- tion petition had been filed by that time.) Neely refused Goodwin's request that she sign the petition. On or about April 9, Vice President Duke told Neely he was transferring her from the shipping department to the paint department purportedly for lack of work. Neely thereupon asked Morri- son whether the reason for the transfer was her refusal to sign the petition circulated by Goodwin and because she was for the Boilermakers Union. Morrison said that was not the reason and that work in the paint line was actually easier than her former shipping work, and Neely testified that it was in fact easier . Neely began her new work the following evening, and during her first shift in the paint department she was instructed to report to Momson. She did so at the end of the shift and Morrison told her that she had started on a 90-day trial period, that her work had started out bad, and that she had not shown any improvement. Morrison accordingly discharged Neely and Respondent contends that it discharged her because she was a "poor worker." (Resp. Br. 143.) Neely's termination slip says "Probationary employee for 90 days. Unsatisfactory work and no sign of improvement." Neely testified that she had never received any complaints about her work during her entire period of employment beginning in 1971, and Morrison, her supervisor during that entire period, testified to a similar effect. 17 Morrison, a Re- spondent witness, testified that he and Superindentent Or- soy made the decision to terminate Neely. The only reason to which Orsoy testified was that Neely was a probationer. Morrison at first testified that Neely was fired because she was an unsatisfactory employee, and later he said it was because of a "steel shortage." Morrison testified that "she was a fair worker, I mean she did her job"; she was also "talkative," according to Morrison, but Mornson also testi- fied that she was not particularly more so than other em- ployees and that this gave him no problem. Morrison testified he transferred Neely to the paint department be- cause of a steel shortage, and that he "initiated" her dis- charge upon discussion with Orsoy. On cross-examination Morrison's attention was directed to his prior testimony that he and Orsoy had decided to terminate Neely after transfer- n Mornson testified most positively that he neither knew nor had even heard any rumors of any Boilermakers organizational efforts , including handbilling until immediately before the election on May 17 This is unbe- lievable, and as in the situations of Pugh and Orsoy, among others, a deliber- ate misstatement, 601 ring her to the paint department . Morrison then was asked to explain why she was transferred out of the shipping de- partment if "you decided to fire her within a half day." Morrison either could not or would not answer this ques- tion; one thing is certain , he did not answer. Superintendent Gardner and Foreman Foster, as herein- after discussed in Glass' discharge case, participated in circulating the petition which Neely refused to sign. Con- sidering the circumstances of her situation, the evidence preponderantly establishes that she was discharged for re- fusing to sign the petition and not for the palpably baseless reasons claimed by Respondent. Darnel! White worked for Respondent from August 1971 until his discharge on April 20, 1973. He had been laid off twice-in late March and again in early April 1973. After the latter recall in April, White worked only 3 days when Respondent discharged him. White signed a Boilermakers card which he had received when union literature was being distributed outside the plant and he thereafter attended a Boilermakers meeting. The day following the meeting, according to White's credi- ble testimony denied by Foreman Mike Joiner, Joiner ap- proached White at work and said he had heard of the union meeting and he asked whether White had attended. White replied that he had. Joiner then noticed a piece of paper in White's pocket and inquired what it was. White said it con- cerned seniority and the Union. White's layoff in March was among the unfair labor prac- tice allegations in the April 11 charge filed, with his knowl- edge, in Case 10-CA-10091. Shortly upon White 's second recall in April, Foreman Joiner admittedly gave him a slip of paper which read "Case 10-CA-10091, Kent Corp. April 11, 1973. Go to National Labor Relations Board, City Fed- eral Building, 22nd Floor, or phone 325-3877 and advise you have reported to work at Kent Corp." Joiner testified that the handwriting was his and that he had copied it from something Superintendent Orsoy had. While Joiner gives a somewhat differing version,18 I credit White's testimony that Joiner told White that he "wanted" White "to go down and take my name off the charge ." Joiner inquired the next morning whether White had been down to the Labor Board, as Joiner had instructed him, and White replied he had not. Two or three days later Orsoy discharged White and stated to White as reasons therefor, according to White's testimo- ny, that "there was a steel shortage and that I was talking too much on the break, you know, about the Union and also , , , that I was disturbing the other workers out there." Respondent introduced internal reports respecting White in connection with testimony by Joiner and Orsoy. Of these reports, two were dated December 1972 and February 1973, respectively, one was dated April 18, one April 19, and two April 20. Orsoy testified, in part, that White was "a good worker, hard worker" but had "bad working habits," and among the "bad habits" were joking, shouting one time during working hours, singing too loud, and throwing gloves on one occasion, etc. I have considered the entire record in this regard and do not consider it necessary to spread out i8 Joiner's testimony is that Orsoy told him to inquire of some employees whether they had filed charges with the Board and that Orsoy explained to him that the reason for the inquiry was because the Board and the Company were trying to get the list of employees on charges "straightened out" 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this decision all the details of Orsoy's and Joiner's testi- mony as to Respondent's claim for its discharge of White. Respondent twice recalled White from layoff status, and after the second recall Respondent unsuccessfully solicited White to withdraw his name from unfair labor practice charges. Meanwhile, Respondent created a "record" against White tojustify White's discharge a scant 3 days after recall- ing him to work. I conclude that Respondent discharged White for White's pro-Boilermakers sympathies and for re- fusing Joiner's request that he remove his name from the unfair labor practice charge. Ricky Morgan started with the Company in June 1971 and worked in the shipping department until his discharge on March 23, 1973. About a month before his discharge, Foreman Morrison informed Morgan he was the new lead- man taking the place of a leadman who had quit. Superin- tendent Orsoy denied that Morgan was a leadman; Morrison, however, did not, nor did he deny Morgan's testi- mony in this connection. It is recalled that Morgan was elected vice president of the Association at that organization's March 2 election but that Donald Moore was thereafter elected to the office on March 9 after Respondent President Oztekin told the newly elected officers that the March 2 election was "illegal" and that another election would have to be held because Morgan was too young to hold office. Morgan signed a Boilermakers authorization card about mid-March, and during that organizational period, accord- ing to Morgan's credible testimony, Morgan asked Fore- man Morrison's opinion of the Boilermakers and Morrison replied that he "thought that anybody thatjoined the Boil- ermakers Union, he thought they would be discharged or fired." It is recalled that the Boilermakers filed its represen- tation petition on March 22. Respondent claims that it initially selected Morgan for layoff on March 23, but that it decided to fire him instead for misconduct on that occasion. On the evening of March 23, Superintendents Orsoy and Gardner and Foreman Morrison informed Morgan he was being laid off because of a purported steel shortage. (Morri- son first testified that Morgan's selection for layoff was made on a seniority basis; he later admitted on cross-exami- nation that less senior employees were retained and he testi- fied that he did not know why this was so. Orsoy, on the other hand, testified that Morgan's selection for layoff was made on a merit, rather than a seniority, basis and Orsoy testified that Morgan was chosen for layoff because of "too many warnings" and "too many complaints"; Morgan's supervisor-Morrison-gave no supportive testimony as to any warnings or complaints.) Morgan then asked Orsoy and Morrison why less senior employees were being preferred in a layoff situation and they finally said it was because he talked too much. Tempers flared, according to Morgan, as he protested what he told them was their "unfair" action in selecting him for layoff under the circumstances. Gardner testified that Morgan began to "curse and start- ed swinging his hands with raised up fists and it looked like he was going to attack Orsoy." Morgan denied making physical threats or threatening gestures on the occasion. Morrison testified that Morgan got mad and moved around and raised his voice, but that Morgan was not directing his words at anyone in particular. That is all that happened, according to Respondent witness Morrison, when Orsoy and Gardner "just decided to terminate Morgan." Orsoy testified that he considered Morgan to have been disre- spectful of his (Morgan's) plant superiors by shouting and arguing with them, and that Morgan's conduct offended the "authority" of management Hence, according to Orsoy, Morgan was discharged. A month after his designation as leadman, Morgan is selected for "layoff" out of seniority on a supposed " merit" basis, and when Morgan protests he is advised of his termi- nation . The circumstances recounted above convince me that the layoff was a completely contrived situation and that Respondent intended getting rid of him all the while and I find that it did discharge Morgan because it suspected his pro-Boilermakers sympathies. Morrison did not mislead Morgan when he told the latter that he thought discharge would be the price for joining the Boilermakers. Donald Moore had continuous employment with Respon- dent from September 1971 until his discharge on or about March 23, 1973. Except for Foreman Joiner he had the greatest seniority in the automation department. It is re- called that Moore was elected vice president of the Associa- tion on March 9 and that he resigned such office about a week later because, as he testified, he didn't like the way it was being run. On or about March 15, according to Moore's credible testimony, Moore was called into President Oztekin's office on the occasion of his recent selection as an association officer, and he had a lengthy meeting with Re- spondent officials Oztekin and Duke. Oztekin asked what Moore thought about unions, and Moore replied that some were "good" and others were "bad" and that he had lost a formerjob because of a union. Duke and Oztekin then told Moore he was a "fine" worker and had made "real good progress" as indicated by his interim raises and the fact that he had been promoted to a leadman trainee job after only 9 months of employment. Moore mentioned to Oztekin dur- ing this conversation that he was interested in becoming a draftsman and had been visiting the drafting room, and Oztekin said he would help with Moore's schooling and give him "first priority" should a vacancy arise in Respondent's drafting room. (Oztekin testified that he did not tell Moore that Moore was welcome in the engineering office.) Oztekin also showed Moore a cassette tape rack that the Company was thinking about producing. About March 13, Moore had a conversation outside the plant gate with Hoover Wilson, a Boilermakers Internation- al Representative . Wilson on this occasion was handing out Boilermakers literature, and Moore told Wilson he would help in that organizational campaign. On an occasion a few days later, Moore and another employee were working at a machine and talking "like most people do." This time the conversation concerned the Boilermakers. Moore credibly testified that his foreman, Mike Joiner, overheard the con- versation and inquired what Moore was saying to the other employee. Moore replied that he had been telling the other employee that "we ought to get the Boilermakers in, even call a legal strike or shut the plant down." Joiner comment- ed that he didn't care what they did. On March 23 Moore was called to the office; Vice Presi- dents Albano and Duke, Superintendent Gardner, and KENT CORPORATION Foreman Joiner also were present. Gardner notified Moore that a steel shortage made some layoffs necessary and that seniority would be followed except in case of unsatisfactory employees. Gardner then discharged Moore purportedly because "a lot" of complaints had been made by fellow employees and supervisors against him . Moore inquired who had made the complaints, but Gardner replied he couldn't tell Moore. Superintendent Orsoy testified that he participated with Albano and Joiner in the decision to terminate Moore and that, so far as he knew, the main reason was that Moore, without permission, visited the engineering room at lunch periods and also during working hours. Moore was a "good worker," according to Orsoy, but he had "bad habits," which Orsoy testified were Moore's mentioned visitations and that he had observed Moore talking during working hours "a few times." Orsoy testified, however, that he had never cautioned or spoken to Moore about the visits. Alba- no testified that he and Vice President Duke 19 made the decision to fire Moore on the basis of Joiner 's reports. Join- er identified several reports he had made concerning Moore : one, dated December 19, 1972, concerning a pur- ported spreading of personal "gossip"; one, dated March 6, 1973, involving Moore's purported talking to employees and leaving his work station during working hours; another, dated March 12, as to Moore leaving his work station; and another, dated March 20, about talking to other employees during working hours. Moore, who was a wholly ,credible witness, recalled hav- ing received management complaints on only two occa- sions, the first about 6 months before his discharge (which could be the subject of Joiner's December 12 report) and the second on March 16, on which occasion, according to Moore, Duke told Moore that four or five purported com- plaints had been turned in against Moore for talking or being out of his department and that this was his final warning. Duke either would not or could not tell Moore who had made these purported complaints. Moore further testified that his work required him to leave his department on frequent occasions, and there is no substantial, if any, basis for finding that he interfered with his own or other employees' work. As for alleged unauthorized visits to the drafting or engineering department , the company drafts- man had told Moore he was welcome to visit anytime and I find these visits did not occur during his own working time. Without setting forth all the record testimony on this matter, I also find upon consideration of all the circum- stances of such visits that Respondent did not consider Moore's visits to involve any breach of company security or otherwise to violate any plant 'regulations. Respondent fires an admittedly "good" leadman trainee with top seniority, primarily, if Orsoy's version is accepted, because Moore visited the drafting or engineering room without permission even though Orsoy testified that he had seen Moore on such occasions and hadn 't cautioned or even spoken to Moore about it. If Albano's testimony is accept- ed, the main complaint against Moore was talking and leav- 19 Duke first testified that he processed personnel actions , such as dis- charges and layoffs, but did not make or participate in such decisions. Later he testified that he does play a decisional role in such matters 603 ing his work station even though the record is lacking in credible substantial support for such complaint. The rea- sons offered by Respondent for discharging Moore are pre- textual and the pretextual explanations are themselves without substantial foundation. I conclude that Respondent terminated Moore because of his pro-Boilermakers senti- ments and also because of his demonstrated disaffection with the Association. Thomas Roberts started with Respondent in October 1970 and was discharged on or about May 18, 1973, allegedly for unexcused absences . Foreman Arthur Pugh was his imme- diate supervisor and Gardner was his shift superintendent. Roberts signed a Boilermakers card in mid-March 1973 and attended the Boilermakers meeting on March 25. Rob- erts testified that he considered Superintendent Gardner to be his friend. At the plant the day following the March 25 meeting, according to Roberts' credible testimony denied by Gardner, Gardner imquired whether Roberts had signed a Boilermakers card and Roberts replied that he had; Gardner then told Roberts that Respondent had been "good" to Roberts and he told Roberts not to tell anyone about this conversation. About a week before the May 17 Labor Baord election, according to Roberts' credible testi- mony, Gardner approached Roberts in the plant and in- quired how Roberts would vote in that. election; Roberts said he hadn't thought much about it, whereupon Gardner again reminded Roberts "how the Company had been good to me and that I was a pretty good worker there at Kent, and they thought a lot of me." On May 2, meanwhile, Gardner and Company Vice Pres- ident Duke came to Roberts' work station and told Roberts how much they appreciated his work and good attendance and that he deserved an award which they gave him at the time. They then presented him a billfold and ruby tie clasp and a copy,of a memorandum from Company President Oztekin to Duke. The memorandum stated in part that Respondent desired to "recognize " named employees, in- cluding Roberts, for their "enviable records" of '"demon- strated good work habits and excellent attendance." Roberts had been absent from work several days immedi- ately before May 18 (a Friday) and he went to the plant on May 18 ,to pick up his salary check. The office personnel gave him a termination check instead and in effect notified him he was discharged for three unexcused absences on April 26, May 16, and May 17, and that such action was purportedly pursuant to the association contract and com- pany policy. Roberts' credible testimony shows as follows : Roberts became ill at work on the Tuesday night shift and he in- formed Foreman Pugh of that fact. Pugh asked whether Roberts might be able to complete the shift; Roberts said he could, and he did. Roberts was ill on Wednesday night, and did not call in-he had no telephone. The Labor Board election was held at the plant during the daytime hours on Thursday, and Roberts-still sick-did go to the plant to vote. At the plant before voting that day, Roberts reported to Pugh that he was ill, and Pugh replied that he had thought Roberts still was sick and he told Roberts that "I don't think you have nothing to worry about." Pugh then escorted Rob- erts to Superintendent Gardner, and they told Roberts to bring in a doctor's excuse when he came to work the follow- 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing day (Friday). Roberts then voted, and after the election he lingered in the parking lot talking for a short time with some of his friends who were on layoff status at the time. Gardner observed, but did not overhear, these conversa- tions. Roberts had obtained some medication from a drug- gist before Friday, but had not seen a doctor-Roberts had only a dollar or two at the time. He did visit a doctor Friday evening, but the doctor could not see him until Saturday. Roberts had the flu, and the physician gave Roberts a note saying so. (I sustained Respondent's objection to the Doctor's certification to this effect, absent production of the Doctor as a witness.) Upon notification of his discharge on Friday, Roberts went into Vice President Duke's office; Albano and Fore- man Thrasher were also present. According to Roberts' credible testimony, Duke asked whether Roberts had a doctor's "excuse," and Roberts said he did not but that he would get one. Duke told Roberts an excuse would not do Roberts "any good" because he was terminated. Duke testified that he customarily signs termination no- tices when the papers are given him for approval and that he thus had approved Roberts' termination slip. According to Duke,20 decisions on such personnel actions are made by the head supervisor or plant manager. Duke further testified that he did not make the decision to fire Roberts and that he was unfamiliar with the reasons for the discharge. Alba- no testified that he had discussed Roberts' termination with Foreman Pugh "more or less briefly" before preparing the termination papers. Pugh testified that he has not seen or talked with Roberts at any time since Roberts completed the Wednesday night shift, that he has no knowledge that Roberts returned to the plant at any time since that Wed- nesday night, that he was not consulted about Roberts' termination, that he made no recommendations to any other management representative respecting the termina- tion , and that he didn't know when Roberts was fired or why Roberts was fired or who made the decision to fire him However strict a disciplinarian Respondent may be-and Respondent urges that it is very much so-I cannot accept Respondent's claim that, in the circumstances of Roberts' case, it terminated Roberts for unexcused absences some 2 weeks after giving him an award, in recognition for "demon- strated good work habits and excellent attendance." I can draw only one conclusion, and I accordingly find that Re- spondent discharged Roberts because he signed a Boiler- makers card and, even though ill, showed up to vote in the Labor Board election. Roy Glass was hired in August 1971 and fired on April 17, 1973. He was a leadman in the electrocoating department under DeWayne Deaton, the foreman of that department. Glass was a wholly trustworthy witness Some 2 or 3 months after Glass entered Respondent's employ, Deaton asked him about joining the Association. Glass expressed some hesitancy at the time, whereupon Deaton told him that "they practically force you into join- ing if you want to keep your job.,, 21 Glass joined, and he was elected to the association grievance committee in 20 See In 19 21 This incident is outside the Section 10(b) period, and is mentioned for background purposes only March 1973 Shortly before the second of the aforemen- tioned March 1973 elections of the Association, Deaton summoned Glass and told Glass he (Deaton) had heard Calvin Wright was going to run for the president of the Association and that Glass should tell the men under him not to vote for Wright "because the Company was afraid he (Wright) would speak up and cause trouble, and they want- ed a man that's been around for a good number of years that they could count on " 22 Glass did as he was instructed. Wright was again elected president at the second associa- tion election in March, as heretofor stated, and Wright was soon terminated, as is hereinafter discussed. The first Boilermakers organizational meeting for Respondent's employees was held on Sunday, March 25, and it had begun handbilling on March 23. Deaton sum- moned Glass the day before the meeting and told Glass he had heard that some employees were going to call a "wild- cat" strike for Monday and he inquired whether Glass knew anything about it or about a Boilermakers meeting the fol- lowing day.23 Glass replied he had no information. Glass testified that Deaton "then told me, he said, `I know you can use more money'; he said, `how's $150 a week salary sound,' and I didn't know what to say. I told him it sounded pretty good, and he told me he knew I was on that grievance committee, and I could help the Company out by going to the Union [Boilermakers] meeting and coming back and telling them-telling the Company what went on." Glass responded that he was supporting the Boilermakers and he refused Deaton's proposition. When Deaton then men- tioned a figure of $200 a week, Glass told Deaton "they didn't have enough money to buy me off" and Glass re- turned to his work. Glass attended the March 25 meeting of the Boilermak- ers Deaton met Glass in the parking lot the next morning and he told Glass he "got word" Glass had been at the meeting. Glass said he had attended, and Deaton24 inquired where and at what time the meeting was held and which other employees were there. Glass would not divulge the requested information, and Deaton then called Glass "a damn liar" for having told Deaton the previous week that he knew nothing about the mentioned meeting The conver- sation concluded with Deaton's statement that Glass would lose his job if he didn't cease his "involvement" with the Boilermakers. On or about April 4, at a time the Boilermakers was handbilling outside the plant, Deaton told Glass to tell the men under Glass that Superintendent Gardner would be taking down the names of every employee who stopped to take a leaflet or even to talk and that they would be fired the next day. Also in April, as mentioned in connection with 22 Deaton denied Glass' testimony in this and other respects Glass was clearly the credible witness of the two, and 1 shall not otherwise set forth- although I have carefully considered-Deaton's conflicting versions 23 Deaton testified that his first knowledge of the Boilermakers activities was not until May 2 when the notice of the Board's election was posted I am unable to credit his testimony on any controverted issues of fact, not only on the inherent implausibility of his testimony but on my demeanor observa- tions of him as well 24 Deaton also asked John Archer about the meeting, which Archer had attended, and also as to Archer's opinions about the Boilermakers Deaton told Archer that "our Union [Association] is a better union" and he hinted at a possible promotion for Archer if Archer would "use your head" KENT CORPORATION Sherrie Neely's discharge, Goodwin approached employees to sign a petition in support of the Association and against the Boilermakers. About the second week in April, employ- ee Sam Mitchell (who was elected association president at the third March election) asked Glass whether Glass had signed a paper "backing" the Association, and Glasss said he had not. Later that day Deaton sent Glass to Plant Manag- er 25 Gardner. Gardner asked why Glass had not signed the petition, to which Glass replied that the Boilermakers would be a better representative. Then stating that the Association was the better union, Gardner handed Glass the same paper circulated by Mitchell and Gardner said that Glass should think about it for he might be "picking up his paycheck" that afternoon unless he signed the paper. Glass again re- fused to sign the petition. The heading on this petition states, in substance, that the signatory employee agree that the Association represents all employees as bargaining rep- resentative and that they want no outside union to interfere with their present relationship with the Company. Gardner also inquired of Glass on this occasion how employee Rich- ard Holland felt about the Boilermakers. Respondent conducted an employee meeting on Friday, April 13, at which McGinnes, assistant to President Ozte- kin, mentioned a steel shortage and a need for some layoffs. Oztekin also spoke on this occasion and, in the course of his remarks, he stated that employees with any grievances should take up such matters with Association President Sam Mitchell. Oztekin called for questions from the floor, and Glass then asked whether employees should contact Sam Mitchell or Calvin Wright as association president. Oztekin lost his temper, according to Glass' credible account of the meeting, and said that Mitchell was the association presi- dent and that Glass was "going against the government!'in suggesting otherwise 26 Glass began responding something about "the majority of the people," and Oztekin told him to "shut your damn mouth." Oztekin continued speaking through the 4 o'clock whistle, and he announced that any- one could leave who wanted to; John Sailors arose and was the first to leave followed by Glass and other employees. Glass was summoned by Oztekin the next morning, Sat- urday, April 14. Oztekin told Glass he would have Glass thrown in jail, that Glass was a "communist" and "going against the government," and that he (Oztekin) had sworn out a warrant for Glass' arrest 27 Oztekin then said he would 25 Employee Ada Murphree credibly testified and Superintendent Gardner denied that early in April 1973 Gardner inquired whether she had signed a "paper" that Mitchell was circulating to the effect "that we didn't want anyone else outside having anything to do with our business ." Gardner told Murphree that' everyone should sign the document . Murphree further credi- bly testified that Foreman James Foster had also brought such paper around I find that such "papers" were the same or substantially the same as the Goodwin petition discussed in Sherrie Neely's case Employee Harold Acton credibly testified that Gardner also inquired on or about April I whether Mitchell had submitted a "paper" for his signature as to "keeping the Com- pany Union in and the Boilermakers out" and that Gardner told Acton that Acton's foreman would get his neck "sliced off" unless Acton signed the paper. 6 McGinnes testified that Oztekin apparently referred in this connection to the Labor Board hearing in the aforementioned representation case and to the fact that Mitchell purportedly had participated in that hearing as president of the Association. 27 Oztekin was referring to a matter involving one Ralph Wilson, as herein- after discussed 605 tear up the warrant and forget the entire matter if Glass would "come back to Kent's side and not mess around with the Boilermakers anymore." Oztekin mentioned that he knew Glass could use more money and that he would either put Glass on a $150 weekly salary or on the clock at a higher rate. Glass said he would not discuss changing union sides, at which point Sam Mitchell walked in. Oztekin thereupon told Glass that the latter could now talk union business because his union president was present to which Glass responded that Calvin Wright was his president, not Mit- chell. The following Tuesday, April 17, Glass was summoned to Vice President Albano's office. Albano told Glass that Glass was an exceptionally good worker and Respondent would therefore start him off at a weekly (supervisory) sal- ary of $150. Glass replied that he had started school and couldn't put in the hours of salaried personnel, and that he preferred a raise "on the clock." Oztekin entered the room and attempted to change Glass' mind; Glass said he liked "the clock" and that he was also involved in union activities. Oztekin then summoned Vice President Ed Simrell who told Glass, in effect, that the Company had gone through gov- ernment channels for a year and a half to obtain a salary for Glass and that there now was no way the Company could retain Glass if Glass refused a salary. Oztekin sent Glass back to work and admonished him not to talk to other employees or to take a break with them because he was a "bad influence." As Glass was clocking out that day, Alba- no discharged him purportedly "for refusing salary and playing games with the Company." Glass commented that Respondent was firing him for union reasons whereupon Superintendent Gardner told him "to get [his] damn ass out of that plant." Respondent adduced testimony to the effect that Glass had been on a training program, which he had, and that by refusing the salaried position Glass in effect had prejudiced Respondent and that Respondent accordingly discharged Glass for rejecting a promotion to a salaried supervisory position. The record as to Glass is so overwhelming, that I consider it unnecessary to recite the purported evidentiary support for Respondent's contention, all of which I have, of course, considered. The General Counsel urges "that the trauma which Roy Glass endured presents a classic and glaring example of an 8(a)(3) discharge." I agree, and I also adopt the General Counsel's further statement that "Glass was interrogated, threatened and bribed on numerous occasions and as a result of his standing fast for the principles which he be- lieved in he was ultimately discharged." Referring to the fact that Glass has since been reinstated, Respondent further asserts that even if Glass was improper- ly fired, he nevertheless has forfeited any right to backpay because "on the undisputed facts of this record, Roy Glass was also guilty of a felony." Respondent refers in this con- nection to testimony of one Ralph Wilson, a former employ- ee of Respondent. Wilson pleaded guilty and apparently was convicted of telephoning an anonymous bomb threat to Respondent's plant. Respondent called Wilson as a witness, and began examining him about the bomb threat and also 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about purported conversations with the Boilermakers busi- ness representative as well as with an attorney who has represented or may presently represent the Boilermakers. I indicated reservations concerning Respondent counsel's ex- amination of this witness and inquired concerning the rele- vancy of Wilson's testimony. Counsel responded that the purpose of Wilson's testimony was to defend against an allegation of company surveillance. Counsel further ques- tioned Wilson about conversations with the aforementioned attorney, and I stopped the questioning because, in the cir- cumstances as I explained to counsel, I thought it inappro- priate, among other reasons, to pursue the subject in the attorney's absence or at least without notice to him and also because I still had questions as to relevancy. Respondent counsel then made an offer of proof. After all of the above, and still wondering about the relevancy of Wilson's testimony, I had the following collo- quy with counsel: JUDGE WINKLER: I understand. Now we brought in this whole subject you say because it related to surveillance. Now you please tell me how it relates to surveillance. MR STELZENMULLER: I think it relates to credibility of witness. JUDGE WINKLER: Of this witness? MR STELZENMULLER: No, Sir. JUDGE WINKLER: Of what witness? MR STELZENMULLER: Of other witnesses. JUDGE WINKLER: Very good. Anything further of this witness? MR DAVIS: Nothing further, Your Honor. Counsel said nothing as to Glass. In testifying about the bomb threat Wilson mentioned having had a conversation at work with Glass and another individual and "they got to talking and said we ought to call down here and make a bomb threat, you know , just as a joke. And after I left them up there, I got to drinking one day and called back up there [the plant] and made a bomb threat." The General Counsel did not recall Glass for fur- ther examination as to Wilson's testimony, for, as shown above, Respondent raised no such issue in that connection. The charitable thing to say as to witness Wilson is that he was pitiable, as to both appearance and testimony. Apart from all of that, however, and mindful of the purpose ex- pressed by Respondent's counsel for examining him, I must say in all candor that I was somewhat surprised that Re- spondent would now raise in its brief for the first time an issue as to Glass' purported complicity in a bomb threat claiming that Glass was guilty of a felony for "putting an ignorant co-worker onto making the bomb threat." More on this matter need not be said, except that I reject Respondent's contention as to Glass' backpay. Calvin Wright was hired in August 1970 and was laid off on March 23, 1973. Respondent asserts that it laid off Wright because of a steel shortage and that on April 4, 1973, Wright refused Respondent's offer to recall him to another job. The General Counsel contends that the circumstances of the layoff and recall are such as to establish that Respon- dent unlawfully discriminated against Wright. As already indicated, Wright was elected president of the Association at each of the first two elections held in March 1973 and Sam Mitchell was elected to that office at the third Association election on March 31 after Wright's layoff. Respondent's efforts in causing a rerun of the first election and then of the second election have also been recounted, as have Foreman Deaton's instructions that Glass should tell employees not to vote for Wright because of Company "fear" that Wright "would speak up and cause trouble" if elected president and that Respondent "wanted a man that's been around for a good number of years that they could count on." Also related above, is President Oztekin's reaction when Glass suggested at the April 13 meeting that employees take up grievance matters with Wright rather than Mitchell as president of the Association. Wright's case thus presents, in part, the following chro- nology: Wright is elected president on March 2 and again on March 9; Wright is laid off on March 23; Vice President Simrell calls Finney on March 24 urging her to call another association election meeting and turn in at once the names of newly elected officers; a notice from management to employees appears on the plant bulletin board on or about March 26 announcing a third association election on March 31. The next chronological item occurred on April 4, when Respondent was called back to another job by Respondent. Before his March 23 layoff, Wright had always been em- ployed as a janitor on the day shift. Vice President Duke offered Wright a job on the night shift and he told Wright that the job would require Wright to operate a forklift and a power sweeper. Wright replied that he couldn't operate such equipment and that he would not take "the chance of trying to tear up something," and he also truthfully testified, contrary to Duke, that no mention was made about training him to use this equipment. Wright accordingly turned down the recall offer. Vice President Albano testified that he, Duke, and Ozte- kin made the decision to lay off Wright on March 23 be- cause the day janitor job was abolished as being least productive. He testified that a night janitorial job also was abolished at that time and that he participated in that deci- sion as well. Albano did not explain why Respondent decid- ed to restore the night job offered to Wright so soon after abolishing it; he did testify that he did not know who made the decision to restore that night job. Duke, Albano, and Mitchell signed Wright's March 23 layoff notice. (The cir- cumstance of Mitchell's signing is itself an interesting mat- ter, for Mitchell was not a supervisor, but I shall not discuss all the minutiae of the case.) Contrary to Albano's testimo- ny, Duke testified that he (Duke) did not participate in the decision to layoff Wright or to abolish his job and, also contrary to Albano, Duke further testified in effect that Albano made the decision to recall Wright, and contrary to credible testimony and Respondent's stipulation Duke testi- fied that Wright had worked on the night shift. Oztekin did not testify concerning Wright's termination or, indeed con- cerning any of the other actual discharge situations, even though Duke testified, as stated above, that, Oztekin "knows just about everything that goes on" and that as to "practically all discharges, [Oztekin] knows exactly what's going on at the time." Much more can be written about the KENT CORPORATION testimonies of Respondent's witnesses as to Wright, all of which has been considered. But enough is enough for pur- poses of this Decision. Respondent contends that alleging only Wright's layoff on March 23 to be discriminatory, of all the layoffs made by Respondent on or about that date, is arbitrary as lacking rational basis. But Respondent admittedly did discharge other employees on that date (Morgan and Moore) and I am satisfied that Wright's layoff was in fact a discharge, no matter what Respondent called it. (Indeed, as appears in the case of Thomas' admitted discharge, the termination Shp mentions "layoff" as well as recommending his rehire.) The record clearly establishes, in my opinion, that Respondent wanted to be rid of Wright as,, president of the Association and that it accomplished this feat by a "layoff." The recall, I find, was but the second step in the termination process, when it tendered him a job on the night shift which he was not equipped to handle. I find that Respondent unlawfully discharged Wright on March 23. John Sailors was continuously employed by Respondent from 1964 until discharged on April 16, 1973, except for a 5-hour period in 1965. He worked in the fabrication depart- ment under Foreman Wayne Thrasher. Respondent claims that Sailors "had about the worst disciplinary record in the place" (Resp. Br. 126) and that it discharged him for such reason. The Boilermakers, as hereinbefore stated, began hand- billing in front of Respondent's plant in March 1973 and continued,such activity until the May 17 election conducted by the Labor Board. It is also recalled that in early April Foreman Deaton had told Glass to warn employees that Superintendent Gardner would be taking the names of any employees who accepted any Boilermakers literature or who even talked to the individuals distributing the literature. It is further recalled that Sailors was the first employee who walked out of the April 13 meeting while Oztekin was still speaking. Sailors signed a Boilermakers card in March and he there- after spoke to other employees in behalf of the Boilermakers during lunch and other break periods. Sailors accepted union literature outside the plant gate each time it was passed out, and he also credibly 28 testified that various supervisors and company officers were in the vicinity on such occasions, including Thrasher, Pete Foster, Gardner, Duke and McGinnes. Sometime in late March, employee Tressie Barrett was told by a foreman that she would have to wear a hairnet for safety reasons in the plant in compliance with a notice to this effect. Sailors and several other employees thereupon teased Barrett, about the matter. Barrett became upset by this "kidding" and shortly thereafter she left Respondent's employ. Foreman Thrasher called Sailors into the office on or about March 26; Oztekin and McGinnes were present. Oztekin discussed the Barrett matter, and Oztekin then be- gan talking about various "problems" he was having, in- cluding a "sewer" matter, and said he could move to another state and even another country. (Oztekin denied 28 Sailors was wholly credible and trustworthy as a witness 607 this "moving" testimony.) Oztekin, during this conversa- tion, asked Sailors' opinion on "what the trouble was in the plant" and he asked for Sailors' suggestions. Sailors replied that Respondent was enforcing plant rules disparately. Re- ferring to the "hairnet" rule, Sailors then mentioned that Superintendent Gardner's son had long hair but was not requested to wear such article. Sailors also mentioned to Oztekin as another instance of disparate enforcement that Respondent had discharged one or two hourly employees for parking in the salaried employees' more convenient parking lot rather than in the hourly employees' parking lot while permitting Superintendent Gardner's son, an hourly employee, to use the salaried lot. Sailors informed Oztekin that some of the young employees felt so strongly about the parking matter that they might want to "beat up" on Gardner's son, whereupon he recommended to Oztekin that Gardner's son be required to park with the other hourly employees. (Superintendent Gardner had had a heart attack and his son-an hourly employee-drove his father to work in the father's car because of the elder Gardner's heart condition and it was for this reason of accommodating Su- perintendent Gardner that the son parked in his father's parking spot directly, in front of the plant.) Thrasher called Sailors to the office the following day (March 27); Oztekin and Vice President Duke were present. Duke told Sailors, in effect, that Sailors "was interfering in the Company business" and that this was his last warning. Duke had some papers which he referred to at the time and which Duke said had been written by Oztekin and witnessed by McGmnes. Duke told Sailors the papers dealt with the meeting with Oztekm the day before, but he did not let Sailors read them. The next day, March 28, Sailors was called into Superintendent Gardner's office, and Oztekin came in. Oztekin mentioned Gardner's heart condition and referred to Sailors' earlier comment that some of the youn- ger employees might assault young Gardner. Sailors ex- plained to Oztekin that the "young guys there might not understand and might jump on the boy. . . that that might bring on another heart attack for Mr. Gardner if he might see this going on." Oztekin stated at this point that Sailors was repeating the threats he had rhade on Superintendent Gardner's life at the March 26 meeting, and Oztekin asked whether Gardner wanted to swear out a warrant against Sailors. Gardner said he had no desire to pursue the matter. Sailors thereupon strongly denied to Oztekin that he, Sailors, had made any threats against Gardner and that not even Oztekin was going to tell such "damn lies." Sometime dur- ing this meeting, Oztekin remarked to Sailors that the Com- pany "didn't need a bigger outside organization in there" and that Sailors was "a troublemaker and a leader" and that Sailors had "the worst record of anybody in the plant " Foreman Thrasher 29 gave Sailors some friendly advice on several occasions contemporaneous with these Septem- ber 26-29 meetings. According to Sailors', trustworthy testi- mony, Thrasher "told me to watch what I was doing and be careful, not to give them any reason to fire me because they was out to get me." Sailors was discharged on April 16, 1973, and the only 29 Thrasher was another management representative who disclaimed any knowledge of Boilermakers activities until May 2 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explanation given him by Albano at the time was that "they didn't need him anymore." His termination slip was signed by Thrasher, Albano, and Duke. Duke testified that he approved the notice and had previously discussed the mat- ter with Oztekm but could not remember the "incident." Duke testified that he had not made any independent deter- mination respecting Sailors' discharge because he had given Sailors warning "of some things" and because he was "fa- miliar with the case" which he explained to mean "just general plant knowledge that he 'd [Sailors] never been a good employee"; Duke never did explain what warnings he had given Sailors. Thrasher testified that there were com- plaints about Sailors during Sailors' entire employment pe- riod since 1964 and that these complaints "started off small" and "got worse." Thrasher mentioned the Barrett "hairnet" incident-which occurred a month earlierbutwhich he testi- fied as having occurred 3 or 4 days before Sailors' dis- charge-and then testified that the "hairnet" incident was "all" he knew about what Sailors had done.Thrasher finally testified that he did not make the decision to fire Sailors but that Albano had done so because of "very poor work." Albano testified that Sailors was terminated because of re- peated warnings "of leaving his machine , talking with others ... and pleaded with by his foreman [Thrasher]." As ap- pears hereinafter, Oztekm thereafter told employee England that he fired Sailors for being a "trouble maker in the plant," and I find Respondent did so for union considerations. Edward Blakley began working for Respondent in May 1971; he was either discharged or laid off in June 1972 and recalled 2 weeks later and he remained on his job as night janitor until laid off in the latter part of March 1973; he was recalled early in April, and Respondent fired him 3 days later (April 11). The General Counsel alleges that Blakley 's discharge was unlawfully motivated. The March layoff was included in the aforementioned charge in Case lO-CA-10077, but is not now alleged as an unfair labor practice. Blakley's experience respecting the layoff charge was similar to that of Eddie Thomas, Wayne Neely, Beverly Nesmith, and Darnell White, as discussed above. Oztekin and Superintendent Orsoy called Blakley to the office on April 9, the first night he returned to work from layoff. Oztekin asked whether Blakley had signed the men- tioned Labor Board charge as to the March layoff; and Blakley said he had . Oztekin thereupon told Blakley to go back to the Labor Board offices and advise the Labor Board that "you got your job back and take your name off [the charge]." Blakley said he would do so. Blakley was unable to visit the Labor Board offices the next day and, because he was afraid to report to work without having following Oztekin's instructions, Blakley called in sick that night, April 10. Before reporting for work on April 11, Blakley did go to the Labor Board offices but decided not to withdraw his charge. At work that night (April 11), Orsoy inquired about Blakley's absence the previous day and Blakley re- plied he had been ill . Orsoy then inquired about a doctor's excuse and Blakley replied that he had no money and was therefore unable to visit a doctor. Orsoy fired Blakley at the end of the shift that night . Blakley's termination slip was signed by Foreman Pugh , Vice President Duke, Orsoy, and McGinnes (Oztekin's assistant). Blakley testified that some 4 months before his March layoff he had been admonished for going into the kitchen to fill his cleaning bucket and that he nevertheless continued doing so because the cook told him to do so and because Sam Mitchell, the day Janitor and a purported leadman, also did so and had instructed Blakley accordingly; Blakley tes- tified that about 4 months before the March layoff he was also told that he talked too much. He received no com- plaints about his Job performance after returning from lay- off. Orsoy testified that Blakley was discharged for talking too much and for having been frequently late and absent before his layoff, that he did not have a doctor's excuse for his absence on April 10, and that he talked too much and didn't perform satisfactorily in the period following his re- call. Foreman Arthur Pugh testified that he participated in the decision to discharge Blakley and that Blakley was fired for receiving "a lot of [personal] phone calls" and for "going into the cafeteria without washing his hands " Pugh further testified that it was on Monday and Tuesday that Blakley received the mentioned phone calls and he testified that three calls were on Monday and two calls on Tuesday. (It is recalled that Blakley worked on Monday and Wednesday and not on Tuesday.) Respondent discharged this employee of 2 years' standing for a purported variety of reasons, and this was 3 days after having recalled him from layoff. One wonders why Respon- dent recalled him if he was so unsatisfactory. I conclude that Respondent terminated Blakley because he failed to withdraw his name from the unfair labor practice charge. Mary Nell Dyer started employment with Respondent in September 1969 and, with exception of a 6-day voluntary quit in 1969 and another voluntary quit of approximately a month in 1972, she was continuously employed until she was laid off on April 3, 1973, purportedly because of a steel shortage . She was recalled on April 18, and laid off again on April 25, again purportedly for a steel shortage; she was recalled on May 1, and laid off a third time on or about May 6; she returned on May 15, and quit at the end of the June 19 shift. The General Counsel alleges that the June 19 termi- nation was a constructive discharge unlawful under the Act. Until her first layoff, Dyer had worked on the day shift as a leadwoman trainee in the automation department; upon returning on April 18 she was assigned to the night shift under Foreman Mike Joiner. Dyer signed a Boilermakers card in March and distribut- ed such cards to fellow employees , and Oztekin and other management personnel were present when she appeared in behalf of the Boilermakers at the Labor Board representa- tion case hearing in mid-April. On the basis of her April layoff, Dyer was included as a discriminatee in the first amended charge filed in Case 10-CA-10091, and Respon- dent received notice of such charge on May 4. President Oztekm came through the plant on Friday, June 15 , and went over to Dyer and had a long conversation with her. Oztekin opened the conversation , according to Dyer's credible account of the incident, by inquiring why she wanted "to get messed up with a union." Oztekin asked "why if we as employees wanted a Union why didn't we come to him , that he would have helped us to get a Union, or he would have gotten one for us; that we didn 't have to KENT CORPORATION 609 get messed up with the Boilermakers." Oztekin told Dyer that he "had" more on her in her personnel file than he "had" on any other employee and he accused Dyer at the time of harassing other employees by calling and threaten- ing them with their jobs if they didn't vote for the Boiler- makers 30 Oztekm named two employees, Liz Goodwin and Ruth Weeks, whom Dyer had purportedly so threatened. The next morning at work, Saturday, June 16, Oztekin called Dyer to the plant area where Weeks and Goodwin were employed, and Oztekin began speaking to them about Dyer's calls. Dyer had called these individuals but she de- nied to Oztekin that she had made threats and she asked Weeks and Goodwin to confirm this. (The record does not establish or even suggest any harassing calls by Dyer.) Meanwhile, another employee, Ben Mullins, came by, and Oztekm called Mullins to the group. Oztekin asked Mullins to tell Dyer that Oztekin had in fact asked the older em- ployees several years ago whether they wanted a union. Oztekin also prompted Mullins to tell Dyer that Mullins had been told by Oztekin at the beginning of the Boiler- makers campaign that Mullins could not clean-and would have to say out of-Oztekin's office if Mullins be- came a Boilermaker. Oztekin again approached Dyer at work on Monday, June 18, and once more engaged her in lengthy conversation throughout the shift. Oztekin asked whether she had attend- ed a Boilermakers meeting the previous meeting and, when she said she had not, he called over employees Lane Coving- ton and Steve Staley to tell her about that meeting. These employees then told her in Oztekin's presence, according to Dyer's credible account, that "the employees were saying let's fight fire with fire, clubs, and all that sort of thing, and that Mr. Wilson didn't try to stop them, and that when Mr. Wilson introduced Calvin Wright to the group he called him Brother Wright, and after that they laughed and called each other Brother Wright or Brother." Oztekin on this occasion also asked Dyer about various employees, including Lee England and Beverly Nesmith (both of whom are alleged discrimmatees in this case), and he told Dyer that Nesmith "was trouble" and Dyer should stay away from her. Dyer became ill at work that night and Oztekin offered to have her retransferred to the day shift because this was the sec- ond time she had been ill on the job because of heat and lack of sleep. The next day, June 19, Oztekin called to Dyer as she was reporting for work and told her to sign but not to read a paper he handed her, which paper he said related to her retransfer to the day shift. Oztekin came "back and forth" to Dyer's machine the entire shift that night, as he had the previous two work shifts, and he called various individuals to tell Dyer "things," as Dyer testified, "that he thought I should know." The first such individuals he called were Foremen Pete Foster and Mike Joiner, and in their presence he inquired of Dyer, according to her credible testimony denied by Oztekin, whether she knew if either was involved with the Boilermakers. Oztekin said, according to Dyer's completely trustworthy testimony, that "all that I had to do was just to say that they were, and he would fire them. I told him, no, that I didn't know of any supervisor that was 30 Oztekinn testified that he had no knowledge of any harassing phone calls by Dyer and he denied saying anything to her about such calls involved." (Neither Foster nor Joiner denied or otherwise testified concerning this incident.) Oztekin remarked that employees should come to him if they want a union. Oztekin repeated the "Brother Calvin business" and once again he told Dyer that he had more on her than on other employees in personnel files and that she would be unable to obtain other employment because he would not give her a recom- mendation; Oztekin then told her that he would "clear" her personnel file if she "behaved" herself for some 6 months while working for Respondent. Oztekin mentioned to Dyer that she was "the best lady employee" he had and that he "hated" that she "had gotten mixed up with the [Boilermak- ers] Union." Oztekin also told her that Mazel Finney was her only friend in the plant 31 Dyer went home that night and testified that she couldn't sleep and that she knew she could not continue working for the Company and "put up" with the "interrogations and the harassments that he [Oztekin] was dishing out to me." She did return to the plant on Friday, June 22, but only to pick up her check. Dyer saw Duke at the plant that Friday night and asked her whether she was afraid of being fired. She told him she wasn't, because she had quit because she "couldn't take anymore." "I just quit," Dyer testified, "I couldn't take any more." Respondent claims that Dyer quit in order "to be paid for not working," and it denies that there was anything, even on the basis of her own version of Oztekin's conversations with her, that was abusive or could force anyone's resignation. Referring to an occasional use of vulgarisms and to a re- mark she made to Duke on June 22 that she hadn't been afraid of being fired, Respondent asserts that Dyer was in effect a hardy individual to whom Oztekin's discourse "must have sounded straight out of Emily Post." Respon- dent further refers to Oztekin's solicitude toward her in suggesting a return to the day shift and it also refers to testimony of Dyer that she had fainted in the plant in April as a result of exhaustion caused by working at night and that she had a young child and a sick husband. Respondent was aware of Dyer's union sympathies and that a charge had in fact been filed by the Boilermakers respecting her layoff. And the record makes manifestly clear in my opinion that during the 3 or 4 last days of her employ- ment Oztekin sought to change her union position by a never ending barrage of interrogation and harassment. Dyer had been ill, and Oztekm was aware of it, and she was therefore particularly vulnerable to these constant pres- sures. Dyer was finally beaten down and she quit, and this was to be reasonably foreseen. I conclude that Dyer was constructively discharged and therefore unlawfully termi- nated because of her Boilermakers sympathies and for the filing of the charge respecting her layoff. Mary Lee England was employed by Respondent from September 1971 until June 15, 1973, mainly in the fabrica- tion department under Foreman Wayne Thrasher. Twice in April 1973 she was laid off for purported economic reasons, 2 weeks the first time and 3 days the second. England knew that her first layoff was included among the unfair labor practice allegations in Case 10-CA-10091. The General 31 Oztekin testified that he had had several long conversations with Dyer but he denied the substance of the matters attributed to him by Dyer on those occasions Dyer's testimony, as I have already indicated, was trustworthy. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel contends that Respondent unlawfully terminated England on June 15; Respondent claims that England quit rather than be fired for violating a rule against socializing with supervisors. England had joined the Association in 1971, and in April 1972 she told Sam Mitchell-the association president at the time-that she wanted to withdraw from the organiza- tion. She thereafter discussed the matter with Thrasher who advised her to remain in the organization because, as he told her, according to her credible testimony, "they had a list in the office of people who had tried to get out of the Union, and he was afraid that . . . Mr Oztekin is going to fire everybody on the list." 32 England signed a Boilermakers card in March or early April 1973 and attended the Boiler- makers meeting on March 25. She also accepted union liter- ature distributed at the plant entrance, and she testified that various management personnel were present at various times observing the distribution-Gardner, McGinnes, Thrasher, Foster, and Duke. The night of her return from her first April layoff, Fore- man Pugh gave her a slip of paper with a telephone number on it and told her without further explanation to call the number and that he would check with her the next day concerning the matter. She did call the number-it was the Labor Board's local office-and they asked what she want- ed and whether she wanted to drop any charges. She replied, in effect, that she didn't know why she was calling but that she would come down and testify in support of the charge. The record does not show any further conversation between Pugh and England concerning this matter. Upon returning from her 3-day layoff England was called to the office and notified by Albano and Gardner that there was going to be another layoff but that Respondent would transfer her to another department instead of laying her off. England was thereafter assigned work "all over the plant." One occasion during this period she was called into Oztekin's office. Oztekin showed her the plant's closed-cir- cuit television equipment by which, as he explained, he "could watch people and see if they was doing their work." He asked her whether she had any complaints against the Company, and she said she had none because she was work- ing. England credibly testified: Q. Okay, now. What else did he say, directing your attention on anything that he might have said concern- ing the Union? A. Well, he asked me if-well, he asked me if I had-what complaint I had against the Company, and I told him right then I was working and didn't have one. And he said that the Boilermakers thought that the people thought that the Boilermakers could get their jobs back for them, but that the National Labor Rela- tions Board was just an agent of the government and could not give them their job back. And he asked me if I went to the meeting that the Boilermakers had, and I told him yes And he asked me what was said at the meeting, and I told him that I could not tell him be- II This is outside the 10(b) period, and is recounted for background pur- poses only. cause I didn't recollect what it was. And he asked me what the Boilermakers had promied me, and I told him they hadn't promised me anything. And then he started telling me about the steel shortage and played a re- cording to me which was supposed to have been from a man at Republic Steel, but I don't remember his name. Oztekin then mentioned John Sailors to her, and he told England he had to fire Sailors for being a "trouble-maker in the plant." The following night England was again summoned to Oztekin's office. England's credible testimony of this inci- dent is as follows: A Well, I was working in automation, and Mike Joiner told me that I had a personal telephone call in the front office, and I told him that I didn't, that I didn't believe that I had one, but he said as far as he knew and as far as he was concerned I had a telephone call in the front office. So nobody went in with me. I went on through, and when I got there Mr. Oztekin was standing in the conference room door, and he told me to come on in and sit down. And whenever I went in he told me if he had known the people wanted a bar- gaining agent that he would have went out and hired a bargaining agent, that we didn't need to get the Boil- ermakers in there because we didn't make boilers, and that they had no part in our plant. And he asked me when had I first heard about the Boilermakers, and I told him that the only time that I first heard about it was when they passed out their literature. That same night, Foreman Pugh also questioned England about the Boilermakers and he also inquired whether Mazel Finney or Mary Dyer had anything to do with bringing the Boilermakers in the plant. England was working in the plant on May 16, the night before the Labor Board election. Oztekin approached Eng- land and one or two other employees at "break" time. Eng- land credibly testified that: .. . Mr: Oztekin came back there and walked up with us. And he said he was allowed to campaign the night before the election and wanted to know if I was going to vote for him, and I told him I would make up my own mind, that I had already told him I would make up my own mind on who I was going to vote for. And he said-about that time we had got to the break area, and there was other people sitting there, and he started talking about there might be a strike if the Boilermak- ers got in there, that if they couldn't reach an agree- ment on a contract that there might be a strike, and that he would just go on a vacation and leave the country. On four or five occasions after the election, Oztekin ap- proached England on the plant floor and conversed with her. He told her, among other things, that the Boilermakers had job classification clauses in their contracts and that KENT CORPORATION 611 women machine operators would either lose their jobs or be demoted for lack of experience if the Boilermakers came in.33 Sometime following the election, England was assigned more physically arduous work (see Nesmith's case in this connection) and about 2 weeks before her termination she was transferred back to her former fabrication work. On June 15, England was escorted to the office; Duke, Albano, Oztekin, Simrell, and McGinnes were present. They in- formed her that Foreman Thrasher had helped her move a television set and some dishes to her new house and that she had thereby broken a company rule that prohibited off-duty socializing between hourly employees and salaried employ- ees. Thrasher was a friend of hers and he had helped her move some household items, but she protested to this as- semblage of corporate officers that-she had ever heard of such rule. Later that day Duke advised England that she could quit or be fired. Duke handed England her termina- tion checks, and she left. England openly supported the Boilermakers and Oztekin apparently considered it important to him to continue the pressures on her, even after the Labor Board election, to persuade her to his point of view. (It is recalled that that election is still unresolved.) Whether there is a rule against fraternizing, England had never been informed of it, and I conclude that Respondent used such purported rule as a pretext to rid itself of a Boilermakers supporter in whose behalf a charge was filed. Her discharge was discriminatory. Charles Archer started working for Respondent in 1965, and he remained in the shipping department until Respon- dent had directed Archer's transfer from the day shift to the night shift. (Archer had been on the night shift until about 1970 when, at his request, he was moved to the day shift.) Archer refused the transfer to the night shift and his em- ployment was thus ended. The General Counsel contends in effect that Respondent's insistence on transferring Archer was unlawfully motivated, and that the effect and purpose of such insistence was to remove Archer from Respondent's employment because it knew he would not accept the trans- fer. Except for Sailors, Archer had more seniority than any of the other discharged employees involved herein. It is recalled in connection with the then upcoming March 9 election of the Association, that Archer had reject- ed Superintendent Gardner's suggestion that Archer and other "old hands should get together and decide who you want into office." And about the same time, as is also re- counted above, Archer told Foreman Deaton that he would have no part of Deaton's suggestion that Archer run for president of the Association with Deaton's assurance of his election. Archer signed a Boilermakers card and Gardner and Foreman Thrasher saw him accept Boilermakers litera- ture openly distributed at the plant gate. The day after the Boilermakers first meeting on March 25, Gardner inquired whether Archer had been notified by telephone to attend the meeting. Archer replied he had attended the meeting, but had not received a telephone call, and Gardner then asked whether Archer had signed a union card. Archer said 33 Oztekm denied having having asked England to vote for him or having told her that women employees would get less money if the Boilermakers were elected. he had, and Gardner shrugged his shoulders and walked away. On April 19, McGinnes and Gardner came out to ship- ping department and spoke with Foreman, Speegle. Archer was Speegle's leadman. A few minutes later, McGinnes in- formed Archer he was being transferred as leadman on the night shift and then asked whether Archer would accept the transfer. McGinnes testified that he did not participate in making the transfer decision. Archer does not like night work and he said he would not transfer on seniority grounds and he told McGinnes he was the senior man in the shipping department on both day and night shifts; he also explained at the time that such transfer would require him to drop out of a school which he was attending 3 nights a week and that James Goodwin was as qualified as he was to operate the night shift. The record establishes on the basis of Archer's completely credible testimony that Duke, Albano, and Speegle knew long before the events under consideration that Archer was attending school to become an electronics technician. The record further shows that there would have been two leadmen, he and Goodwin, on the night shift had he taken the transfer. Duke 34 testified that Archer had been leadman on the night shift some 3 years earlier and that that was the reason "we wanted to transfer him to the night because he was familiar with the operation." Duke testified that James Goodwin, is the present leadman on the night shift, but wasn't the "ideal" man for lack of leadership qualities. Goodwin had in fact worked alongside Archer at the time Archer had been on the night shift as leadman and Good- win replaced Archer, as leadman when Archer transferred to the day shift 3 years earlier. Goodwin has thus been night leadman for 3 years. John Morris, presently a foreman on the electrocoating line, was foreman of night shipping for 2 years, having begun in that position sometime after Archer had transferred to the day shift. Moms testified that Good- win was his leadman during this 2-year period and that Goodwin was a "capable" leadman with "good" work per- formance. Archer chose to leave Respondent's employ rather than take a transfer to the night shift, itnd the record preponder- antly establishes, in my opinion, that that was precisely the way Respondent planned and foresaw the situation. The issue is not whether, as Respondent claims, the association contract permits Respondent to transfer regardless of se- niority. Rather the question is why Respondent insisted on that action when it was aware of Archer's dislike of night work and that he was taking electronics courses at night and when it therefore had every reason to believe, ^ and then actually to know, that Archer would not acceptthe transfer. It means only that Respondent sought to be rid of Archer, a senior leadman, because of Archer's Boilermakers senti- ments, as outlined above, and I so find. C. Further Comments This record establishes that Respondent has engaged in a massive assault on the rights of employees under the Act 34 Duke's testimony generally, and on the Archer matter in particular, is evasive, hardly candid, and not credited. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of keeping the Association in and the Boil- ermakers out. The record further establishes that Respondent's conduct respecting the Association went even further as it sought to intrude and did in fact intrude in the internal affairs of that organization. The complaint alleges assistance to and interference in the internal affairs of the Association, but it does not allege domination of that orga- nization. Interference may add up to domination, depend- ing on the quality and degree of the conduct. Yet parties are entitled to fair notice on the matter, and while I vacillated a bit at the hearing, I finally did advise all parties that I did not consider the complaint to encompass allegations that could result in a disestablishment order. The parties are entitled to rely on that statement to them. For this and other procedural circumstances unnecessary to relate here, and also for reasons as to Section 10(b) of the Act, and mindful of a difference between domination and interference in the language of the Act, I say again that this case involves interference and assistance under Section 8(a)(2) of the Act, and not domination, and that it was tried on such basis. A usual format of these decisions is to identify, in a final summation , the evidentiary items in support of each ulti- mate conclusion of law. I do not believe such collation of evidence or incidents is necessary in this case, for there is nothing novel in the unfair labor practices alleged and each such conclusion is amply supported. One further item. The General Counsel adduced a fair amount of testimony respecting alleged surveillance at the plant entrance and also with respect to the alleged use of television equipment in this regard. In the context of this case, I consider it unnecessary to consider and therefore do not resolve this matter, for, in any event, there is substantial evidence to support a finding of "giving the impression of surveillance." CONCLUSIONS OF LAW 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. Boilermakers and the Association are labor organiza- tions within Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) and (3) by discharging the following employees: Wayne Neely, Eddie Thomas, Beverly Nesmith, Sherrie Neely, Darnell White, Ricky Morgan, Donald Moore, Thomas Roberts, Roy Glass, Calvin Wright, John Sailors, Edward Blakley, Mary Nell Dyer, Mary Lee England, and Charles Archer. 4. Respondent has violated Section 8(a)(4), as well, by discharging Blakley, Dyer, Thomas, England, Wayne Nee- ly, and Nesmith. 5. Respondent has violated Section 8(a)(2) of the Act by: (a) Interfering with the internal affairs and administra- tion of the Association by, among other things, seeking to influence or control the selection of association officers, including checking off the names of employees attending election meetings, and by interfering with admissions to membership in the Association. (b) Assisting the Association in vanous respects enu- merated under Conclusion 6, below 35 35 1 do not consider, and therefore do not find, that it was unalwful to 6. Respondent has further violated Section 8(a)(1) of the Act in the following respects: (a) Interrogating employees concerning their own, and other employees', membership, sympathies, and activities in behalf of the Boilermakers, and also interrogating employ- ees how they would vote in Board-conducted elections. (b) Soliciting employees to report back concerning mat- ters relating to Boilermakers meetings and activities. (c) Soliciting employees, by petition and otherwise, to support the Association and to keep out the Boilermakers and threatening employees with discharge and other eco- nomic reprisal unless they complied with such solicitation. (d) Threatening employees with discharge and other eco- nomic reprisal for engaging in protected concerted activi- ties, including their sympathies for and in behalf of the Boilermakers, and in the event Boilermakers succeed in organizing the plant. (e) Promising benefits to employees to withdraw their support from the Boilermakers and to support the Associa- tion. (f) Soliciting and instructing employees to withdraw their names from unfair labor practice charges. (g) Creating the impression of-if not actually engaging in-surveillance by telling employees it knew of their atten- dance at union meetings and by telling them their names would be recorded by Respondent should they accept Boil- ermakers literature outside the plant. 7. The aforesaid unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1), (2), (3), and (4) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action including reinstating and making whole the afore- named 15 discriminatees, in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Order provides that reinstatement be offered, in the first instance, to the discriminatees' former jobs. This means to his janitorial job on the day shift as to Wright, to his job on the day shift as to Archer, and to his hourly rated job as to Glass-for these are the jobs from which they were unlaw- fully discharged. Respondent asserted at the hearing that all discriminatees have been offered reinstatement. If it has done so fully in the terms of reinstatement as prescribed in the Order, Respondent will not be required to repeat such offer. If any questions arise in regard and if Board interces- sion is necessary, such matters can be determined at a com- pliance stage of this proceeding. The unfair labor practices in this case were widespread, pervasive, and aggravated. Even though reinstated, it is rea- sonable to believe that the employees discriminated against might be apprehensive of retribution from Respondent, par- ticularly in a situation where layoffs and discharges have permit the Association to conduct organizational meetings on plant premises However, I shall deal with a future aspect of this matter in the Remedy section KENT CORPORATION 613 been made on a wholesale basis. I am mindful, of course, that the various layoffs have not been alleged as violations of the Act and I therefore presume them to be lawful. None- theless, in the context of this case and to remedy the dis- crimination suffered by them, I believe the discriminatees are entitled to a further measure of security from a repeti- tion of Respondent's conduct in regard to their organiza- tional rights. I shall therefore require that for a period of a year from the start of compliance the Respondent advise in writing the Regional Office in Atlanta or, if the Regional Office prefers, the Resident Office in Birmingham and the Boilermakers (the Charging Party) of any adverse personnel actions taken as to the returned discriminatees , such as layoff or discharges. Respecting the 8(a)(2) aspect of the case, the Respondent will be required to withdraw all recognition from the Associ- ation upon termination of the current contract on March 1, 1974, and not to again recognize the Association as bargain- ing representative of its employees until and unless the As- sociation be certified by the Board as the statutory bargaining representative. Moreover, because of Re- spondent's conduct vis a vis the Association, and, to pre- serve the rights of employees in securing the independence of that organization, it will also be required that Respondent not make available to that organization the use of plant facilities for meeting purposes unless and until such time as the Association be certified as bargaining representative by the Board. In view of the gross interference with employees' organi- zational rights in this case, it will also be required that Respondent mail copies of the notice in this case to all of its employees, and that for a period of a year it provide the Boilermakers with reasonable access to plant bulletin boards for the posting of union notice, bulletins, and other organization literature . Cf. Heck's Inc., 191 NLRB 886 (1971), and cases cited therein ; enfd. sub nom. Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters v. N.LR.B., 476 F.2d 546 (C.A.D.C., 1973), enfd. 414 U.S. 1062 (1973). Upon the foregoing findings, conclusions , and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER36 Respondent Kent Corporation, Pinson Valley, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, threatening to discharge, or otherwise discriminating against employees because of their sympa- thies or activities on behalf of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, or any other union. (b) Discharging or otherwise discriminating against em- 36 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. ployees because of the filing of unfair labor practice charges or for refusing to withdraw from such charges. (c) Soliciting and instructing employees to withdraw, un- fair labor practice charges. (d) Soliciting employees to support Employees Associa- tion of Kent-Supermatic and threatening to discharge or otherwise to discriminate against employees for refusing such support. (e) Granting any assistance to the Association and inter- fering in any respect in the affairs of the Association or any other labor organization. (f) Coercively interrogating employees concerning their own, or other employees', union or other protected concert- ed activities. (g) Creating the impression of, or engaging in, surveil- lance of employees' union activities, and requesting employ- ees to report on such activities. (h) Recognizing beyond March 1, 1974, the Association as a bargaining representative of employees and permitting the Association the use of plant facilities for meeting pur- poses, unless and until such time as the Association may be certified as the bargaining representative in an election con- ducted by the National Labor Relations Board. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer the following employees immediate reinstate- ment to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole as set forth in "The Remedy" section above, for any loss of earning suffered as a result of the discrimination against them: Wayne Neely Roy Glass Eddie Thomas Calvin Wright Beverly Nesmith John Sailors Sherrie Neely Edward Blakley Darnell White Mary Nell Dyer Ricky Morgan Mary Lee England Donald Moore Charles Archer Thomas Roberts (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due and the right of rein- statement under the terms of this Order. (c) Advise Regional Office 10 of the Board (or the Resi- dent Office in Birmingham if the Regional Office so indi- cates) and the Boilermakers for a period of I year from date of reinstatement of any adverse personnel action respecting any of the aforenamed employees. (d) Withdraw recognition from the Association on March 1, 1974, and withhold recognition of the Association as a bargaining representative unless and until the Associa- tion be certified in an election conducted under Board aus- pices. (e) Grant to the Boilermakers and its representatives, upon Boilermakers request, reasonable access for a 1-year 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period to its bulletin boards and all places where notices to employees are customarily posted. (f) Post at its plant in Pinson Valley, Jefferson County, Alabama, copies of the attached notice marked "Appen- dix," 37 and mail a copy thereof to each of its employees. Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respon- dent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including, all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the receipt of this Order, what steps have been taken to comply herewith. 37 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government join or assist the Boilermakers or any other union, and that our employees have a right to solicit or discuss union matters on plant premises during lunch and break periods, and at any other time they are not actu- ally working. WE WILL NOT discharge, threaten to discharge, or take any other discriminatory or retaliatory action against employees for filing unfair labor practice charges or for joining or assisting or supporting the Boilermakers or any other union. WE WILL NOT solicit employees to sign petitions to keep the Association in and the Boilermakers out. WE WILL NOT interrogate employees or ask them to report on other employees or spy on them or indicate we have spied on them regarding union membership or meetings or any other union activity. WE WILL NOT interfere in any way in the affairs of the Association or of any other union, and WE WILL NOT assist the Association in any respect. WE WILL NOT recognize or deal with the Association as a union or representative of our employees and WE ALSO WILL NOT permit the Association to hold meetings at the plant, unless the Association wins a Labor Board election. Dated By WE WILL reinstate the following employees and make them whole for earnings lost since their discharges: Wayne Neely, Eddie Thomas, Beverly Nesmith, Sher- rie Neely, Darnell White, Ricky Morgan, Donald Moore, Thomas Roberts, Roy Glass, Calvin Wright, John Sailors, Edward Blakley, Mary Nell Dyer, Mary Lee England, and Charles Archer. WE WILL permit the Boilermakers to use plant bulle- tin boards for union notices. WE ADVISE our employees that they have a right to KENT CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.