Weatherford/DMC, Inc.

WEATHERFORD/DMC, INCORPORATED Weatherford/DMC, Incorporated and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 23-CA-268 November 17, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 27, 1977, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Weather- ford/DMC, Incorporated, Houston, Texas, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed on October 26, 1976, by ] Respondent's name appears as amended at the hearing. 2 At the hearing, a tape recording of a conversation made by Michael Lewis was received in evidence subject to withdrawal for expert analysis and preparation of a transcript. After the close of the hearing, the parties entered into a joint stipulation as to the findings of a technical expert and as to the accuracy of a transcript prepared after the heanng. The joint stipulation and the transcript are received as G.C. Exhs. 4A and 4B in place of G.C. Exh. 4 which was rejected at the hearing. 3 Voglino was terminated in May 1976 and was replaced by Mike 233 NLRB No. 93 International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter referred to as the Union. The complaint issued on December 14, 1976, alleging that Respondent,' during October 1976, unlawfully interrogat- ed an employee, threatened an employee with loss of benefits, and discriminatorily discharged two employees. In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me on February 22 and 23, 1977, at Houston, Texas. At the conclusion of the hearing, the parties waived oral argument. Briefs have been received from counsel for the General Counsel and Respondent.2 Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is engaged at Houston, Texas, in the manufacture and sale of parts for oil field equipment. During a representative 12-month period, Respondent sold products valued in excess of $50,000 which were shipped directly to points outside the State of Texas. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. I1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The employment of Mason and Lewis a. Mason's employment and work record Charles Mason started to work at Respondent's plant on October 16, 1975, as a line inspector under the supervision of Attillio Voglino.3 Mason's starting wage rate was $5 an hour. After 3 months of employment, he received a merit increase of 25 cents an hour, and on March 1, 1976,4 Mason received another merit increase of 50 cents an hour, raising his hourly rate to $5.75. On April 12, Mason transferred to the first shift. In adjusting his wage rate to remove a 15-cent shift differential which he had also received, he was inadvertently reduced to $5.50 an hour which he was paid until August 1.5 On August 2, Mason was moved from a line inspection job to a final inspection job, which had been filled by Pastusek. Pastusek became quality control manager on August 1. and Allen Pettigrew became quality control supervisor at that time, working under Pastusek. 4 All dates herein are in 1976 unless otherwise indicated. 5 Respondent's personnel file for Mason indicates that after the April 12 transfer he continued to receive $5.75 an hour. However, that figure was written over what appears to be $5.50. and Mason's check stubs show that he was paid at the lesser rate from April 12 until August 2. 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pettigrew until he was promoted to supervisor. At that time, Mason's 25-cent-an-hour decrease was restored and he was given an additional 10-cent increase to $5.85 an hour.6 On September 20, Mason received a further merit increase raising his hourly rate to $6.05 an hour, after he had requested it, telling Pettigrew that he did not think the August increase was enough. At that time Pettigrew told Mason that he would seek an increase for him and that he felt that Mason deserved it. Around October 10, Mason was reassigned to line inspection. Pettigrew said nothing to Mason about the quality of his work at that time, but told him that he wanted a recently transferred inspector to work in final inspection for a while. In April, Mason was evaluated by former supervisor Voglino as to 10 factors 7 using a three-step grading system under which an employee was rated as "An excellent employee, clearly superior to competent employees and capable of advancement," "A competent employee, who performs satisfactorily the duties assigned to him," or "An employee who has weakness in ability, efficiency, and or attitude." Voglino rated Mason on the highest step with respect to conduct, adaptability, attendance, safety, and dependability. Voglino placed him in the middle step with respect to the remaining factors, which gave Mason a composite numerical rating between the highest and middle steps. As Mason's strongest qualification, Voglino wrote on the form "Dependability - Desire to Obtain more Knowledge" and under "Remarks" he wrote "Charles is very reliable and a very conscientious employ- ee." On July 23, Mason's then supervisor, Pastusek, again evaluated Mason. He placed Mason in the highest step with respect to conduct, attendance, safety, and depend- ability, and placed him in the middle step with respect to remaining qualities. Pastusek entered no written comments on the form. Mason's composite numerical average was again between the highest and middle steps. In early or mid-September, Respondent discovered that it had shipped a large quantity of parts known as charge cases to a customer that had been improperly plated, and Respondent recalled the parts. The parts had been fabricated by Respondent and sent to an outside vendor for plating. It was the duty of the final inspector to check the parts after they came back from the outside vendor to make certain that they were properly plated before they were shipped to Respondent's customer. The misplated parts had been shipped to the customer from time to time over a period of 2 or 3 months. During that period, others, including possibly Pettigrew, as well as Mason, had finally inspected the parts before they were shipped. Pettigrew told Mason about the recall at the time it happened. At or around the same time, some screw parts were shipped with Mason's approval as final inspector which had the wrong part number on the paper work. Respon- 6 At the time of the August increase, Mason's supervisors were under the impression that he was being paid $5.75 an hour and told him orally that he would receive a 10-cent-an-hour increase. 7 Respondent periodically evaluates its employees' performance during and after completion of their probationary periods. R In November, after Lewis' discharge, Reeves placed a memo in Lewis' file describing their May conversation. There is no evidence, however, that any disciplinary action was taken against Lewis based on this incident. dent later discovered that it had shipped the wrong size part to the customer. b. Lewis' employment and record Michael Lewis started to work for Respondent in September 1974 as a machinist at the rate of $4.75 an hour. He stayed in that classification until March 30 and during that period received seven merit increases raising his rate to $6.15 an hour. On March 30, he transferred to a line inspector's job at the same rate of pay. He received no further increases during his employment. Lewis was evaluated twice as an inspector. On July 23 his then supervisor Pastusek rated him in the lowest step (having weakness in ability, efficiency, or attitude) with respect to adaptability, initiative, and job knowledge. Pastusek rated him on the middle step with respect to the other evaluated factors, giving Lewis a composite numeri- cal rating of 1.7 on a scale of from I to 3. Pastusek wrote under "Remarks" that Lewis seemed to feel he was too good for the job. On September 27 Pettigrew again evaluated Lewis using a revised 5-step form on which the steps were outstanding, definitely above average, doing an average job, substandard but making progress, and definitely unsatisfactory. Pettigrew did not rate Lewis in either extreme with respect to any factor. He rated him as definitely above average in attendance and substandard but making progress with respect to quality of work, dependability, and job knowledge. Pettigrew rated him as doing an average job with respect to other listed factors. Lewis' composite numerical average was 2.8 on a scale from I to 5. Pettigrew noted as Lewis' strongest qualifica- tion that he had the desire to learn the job and made no further descriptive comment. On one occasion in May, Lewis had some alcoholic drinks at lunch before reporting for work. When he arrived at work, he spoke to the chief inspector and left for the day. The next day, Lewis spoke to his former machine shop supervisor, Reeves, and apologized for coming to work drunk the previous day, explaining that as a result of a recent shift change he had been spending a lot of time in lounges for lack of a better place to spend his time. Reeves told Lewis that he would have terminated Lewis if he was working for Reeves at the time.8 On September 2, Pastusek and Pettigrew gave Lewis a 1- day suspension for approving a setup using a gauge which he did not check for accuracy which resulted in running a number of parts out of tolerance. They told Lewis that they held him entirely responsible for the error and that it was inexcusable.9 At the time of the suspension, Lewis asked what it would do to his work record, and he was told that it would not 9 An exhibit was offered purporting to show that Chief Inspector Barr had also checked the parts while the job was running without noticing the error. Respondent disputes the authenticity of the exhibit. Although I am inclined to believe that the document is authentic, as Barr acknowledged that his handwriting appeared on it, I find it immaterial, as there is no contention that the suspension was discriminatory, and Lewis conceded that he had failed to check a dimension on the setup. 594 WEATHERFORD/DMC, INCORPORATED amount to anything on his record if he went for a fairly extended period of time without other mistakes.'0 2. Union activity at the plant Union activity among the employees at Respondent's plant started sometime in early September when Lewis, who was on the second shift, started to talk to people whom he knew and trusted throughout the shop about their feelings about a union. Lewis enlisted the aid of Mason on the day shift who talked to at least a dozen others in his immediate work area and to others in the lunchroom at break and lunchtimes on his shift. On September 22, Lewis contacted Union Representa- tive Vernon McKimmey, and arranged to meet with him on September 26 to learn from him the procedure to follow in organizing a union. At this meeting, McKimmey suggested that Lewis contact three or four people on each shift who were willing to take an active role to act as a committee, and McKimmey gave Lewis an authorization card for him to show others so that they could see what they would be asked to sign. Thereafter, Lewis, whose duties took him throughout the shop in the course of his rounds, continued to canvass other employees as to their interest in having a union. In early October, Respondent's President W. E. Booker visited employee Collis Wade while Wade was working and asked him if it was true that he had worked in a lot of shops. Wade replied that was not really the case and that he worked at his previous job for almost 13 years. Booker then asked him why he left it, and Wade replied that he was fired for strike activities. Booker asked him how they had fired him for that, and Wade replied that he was blamed for something that happened because he was an officer of the union in that shop and he was fired for it." Booker asked him what part he had played with the union, and Wade told him that he had been a grievance committeeman and a member of the contract negotiating committee. Booker asked if there were a lot of grievances at his former plant, and Wade said there were quite a few. Booker asked if the grievances were legitimate, and Wade replied that about half of them were. Booker then said that he had heard something about complaints in Respondent's shop, and asked Wade if he knew anything about them. Wade replied that he had not heard of any complaints back there but that he did not know everybody in the shop. Booker said he had heard that there were a lot of complaints in the shop and asked Wade what Respondent could do to make things better. Wade said that he did not know and commented that he knew that some companies paid their employees' insurance and retirement benefits but that it had cost them at least a dollar an hour more per man. Booker indicated agreement, and then said that he thought Respondent's wages were the highest in the area. Wade said that he suspected that they probably were and that he suspected some of the employees were making $6 or $7 an hour. Booker had never spoken to Wade in this fashion before.'2 10 Lewis so testified without contradiction. 11 Wade had stated on his employment application that he had been fired from his previous job for strike activities. 12 Wade's testimony as to this conversation was uncontradicted. In October, Lewis and Mason decided that there should be a meeting attended by union representatives and employees, and Lewis arranged with McKimmey for such a meeting on Sunday, October 17, at Denny's Coffee Shop near the plant. Lewis notified most of the employees on his shift about the scheduled meeting and urged them to attend. On the day of the meeting, Lewis was asked to work overtime on the day shift and reported for work that morning. While there, he tried to persuade others at work to take time off to go to the meeting. During the morning, George Lee, a friend who was not scheduled to work, came by the plant, spoke to Lewis, and asked him if he planned to attend the meeting. Lee left shortly before 11 a.m. At II a.m., Lewis punched out for lunch and went to the Denny's restaurant which was across a freeway from the plant but not directly opposite it.'3 McKimmey and six or seven of Respondent's employees, not including Mason, were there. McKimmey discussed with them what was required to organize the shop and asked those present to try to obtain employee signatures on authorization cards as quickly as possible and with as little publicity as possible so that the Company would not find out about it too soon. McKimmey distributed approxi- mately 100 blank authorization cards to those present, giving approximately 25 to Lewis. The meeting ended after about 20 or 25 minutes, and Lewis returned to the plant. During Lewis' absence from the plant, Wayne Reeves, the only supervisor at the plant that day, paged Lewis over the plant intercom system once or twice. Shortly after he returned to the plant, Reeves asked Lewis what George Lee had been doing there. Lewis answered that they had been discussing things of interest. Reeves then asked Lewis if he had left the premises, and Lewis replied that he had left to get something to eat. Later that day while at work, Lewis started to hand an employee an authorization card. Another employee who was standing nearby told him that Dick Garrett, a vice president of Respondent, was approaching, and Lewis put the card back in his shirt pocket. At the time Lewis had six or seven authorization cards in his pocket. From half to three-quarters of an inch of the end of a card was visible at the top of the pocket. After work that day, Lewis went to a convenience store a mile or so from the plant across the freeway where several employees had stopped for a drink. There Lewis handed about six authorization cards to them telling them they could return them later. On Monday, October 18, Mason was scheduled to start work at 6 a.m. and arrived at the plant at or about 5:30. Shortly thereafter, a fellow employee gave him a number of authorization cards which he had brought from the Sunday meeting for Mason. Before work Mason passed out three cards in the lunchroom and signed his own card. One employee returned a signed card to him and the other two said they would sign and return them later. After Mason started work at 6, he did not hand out any more cards but he spoke to approximately 10 employees as he visited their 13 According to Lewis, it is about 60 yards to one side of the plant across the freeway. There is no contention that Respondent engaged in surveillance of Lewis or other employees at the meeting. 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machines to check their work and told them that he had authorization cards which he would give them later. At the time of these events, the total employment at the plant was approximately 200, of whom 20 to 30 were supervisors and approximately 150 were hourly paid production and maintenance employees.' 4 3. The termination of Mason On Friday afternoon, October 15, Respondent's Presi- dent Booker informed Quality Control Manager Mike Pastusek that he was going to replace the manufacturing manager with Pastusek who was to take over the following Monday morning. Booker told Pastusek that then Shop Superintendent Crabb would replace Pastusek as quality control manager. On Monday, October 18, between 9:30 and 10 a.m., Mason's immediate supervisor, Allen Pettigrew, told Mason that Pastusek wanted to talk to him and they joined Pastusek in the conference room. Pastusek told Mason that he was performing his last official act as manager of quality control, that he felt that Mason's work was deteriorating, and that he was going to let him go. Mason asked why, and Pastusek replied that two jobs had been sent back from Dresser Industries and mentioned the misplated charge cases and the wrong size screw ports of which Mason was previously aware. Mason sought to explain that he followed the directions of Pettigrew in checking the jobs. Pastusek became angry and told Mason that no one had told Mason to falsify any records and asserted that that was what Mason had done. Mason said, "Okay," 15 and the meeting ended.t 6 After Mason's termination a personnel form was put in his file stating that he was discharged "for continuous unsatisfactory performance." 4. The conversation between Pastusek and Neal On the same day, between the end of the morning break at 10 a.m. and lunchtime, Pastusek approached Joyce Neal at her work station and spoke with her. Neal had attended the meeting at Denny's Coffee Shop with Union Represen- tative McKimmey on the previous day. Neal had also previously expressed dissatisfaction to her immediate supervisor with her working conditions. Pastusek asked her if she knew anything about the Union. Following the advice McKimmey had given, she replied that she did not, and she asked Pastusek if he knew anything about it. Pastusek said that he did. The conversation then turned to problems at the shop, and Pastusek told Neal that if a union came in, his hands would be tied and he would not be able to give raises or other added benefits and would be unable to do anything for the people. Pastusek told her that he did not think a union would do the employees any good 14 Homer Smith so testified. Lewis testified that he estimated that there were 50 to 60 employees on the night shift and 70 on the day shift at this time. is According to Mason, he made no further response because he saw no reason to argue after Pastusek had raised his voice and had already fired him. '6 These findings are based on uncontradicted testimony. 17 These findings are based on the testimony of Neal. Pastusek testified that he had a conversation with Neal on that day around lunchtime but denied that it concerned the Union. According to him, he only questioned and that he thought he could help them more without a union. Pastusek told Neal that if she would give him 2 months, she would see an improvement and that he could make things better.'7 5. The termination of Lewis On October 18, Lewis was scheduled to start work at 3:30 p.m. At noontime, an employee called him to tell him that Mason had been terminated that morning, and when Lewis reported for work that afternoon, he had concealed on his person a miniature tape recorder which he had just purchased. Immediately after Lewis clocked in, Pettigrew approached him and told him that Pastusek wanted to talk to him. They went to Pastusek's office where they waited for approximately 30 minutes. Pettigrew then told Lewis that Pastusek was in a meeting and that they would go to the personnel office to wait. After an additional short wait there, Employee Relations Manager Homer Smith called them into his office. Initially, Lewis started to discuss the theft of his wallet the previous week and what responsibili- ty the Company might have for it. Smith told him that they were not there for that reason, and Pettigrew said that a persistent thing had built up and that it had come to the point that they had decided rather than continue further with it, they were going to let him go. Pettigrew said that it stemmed from various things in the performance of Lewis' duties, that he knew that Lewis would ask what it was, and that he had part of it there. Pettigrew then showed Lewis several line reports which had accumulated in one of the departments signed by Lewis. Pettigrew pointed out that after jobs were finished, he had left paperwork at the machines instead of returning it to the office. Lewis sought to justify his failure to return the paperwork to the office, and although Pettigrew conceded that there were occasions when jobs were interrupted before completion, he said it did not mean that the paperwork was to be left lying at a machine for extended periods of time. Lewis then said that on the previous Saturday, he had asked Pettigrew if he was doing his job and that Pettigrew said that he was. Lewis asked if that was right, and Pettigrew said that they had been discussing a setup on a drill press. Lewis interrupted him, and said "but I asked you if, do I do my job?" Pettigrew did not answer directly and said that it got down to a lot of little things and gave as an example that a number of times he had seen Lewis wandering about where he did not belong and that it took Lewis 2 hours to get anything done in the automatic shop before he even got going in the afternoon. Pettigrew then said "It's a conglomeration of things, that it's hard to sit down and say yes, you are doing your job, or no, you are not doing your job." Lewis again questioned Pettigrew as to whether he told him on Saturday that he was doing his Neal on that occasion about problems in the shop and made no mention of the Union to her until a second conversation later that week. I have credited Neal rather than Pastusek as she was employed by Respondent at the time of the heanng and as her manner in testifying impressed me as sincere. Pastusek's testimony as to his alleged second conversation with Neal was vague both as to its content and timing and did not impress me as having the force of conviction behind it. As set forth below. I am persuaded that Pastusek's testimony in other respects is also not credible, and I have concluded that he lacked candor in his testimony as a whole. 596 WEATHERFORD/DMC, INCORPORATED job and Pettigrew replied, "Now, no, I can't say that I said you were doing your job totally," and that they were talking about the drilling of these holes on a particular job and that he learned later that Lewis had failed to note variations because of the fixturing on that job. Pettigrew then said "So we've just - we have made the decision, and I think that we are right in what we are doing. I don't think that you would make us a good inspector, in the long run. We have just run across too many problems. Some of them are little, some of them are big." Lewis again interrupted to ask Pettigrew what some of the big problems were, adding that there had to be a reason for him to be let go. Pettigrew replied, "That's it, just not performing your job the way we would like to have it done." Lewis argued that he had done the job the way he had been told, and Pettigrew said not entirely. Lewis then asked if he had not told Pettigrew that he wanted Pettigrew to tell him anytime he was not doing his job. Pettigrew said that Lewis had, and Lewis then asked had Pettigrew ever told him that he was not doing his job. Pettigrew answered, "I don't believe so. I haven't had the occasion to this point, up and until now. But I have constantly had reminders that Mr. Lewis is not doing this or this, and I believe that we have talked about things that needed to be checked or haven't been checked also, that has been missed, that you have missed." Lewis said he could not recall anything, and Pettigrew said, "That's the situation." After brief conversation about Lewis' wallet, Lewis again asked Pettigrew what some of the big things were which he had done for which he was to be dismissed. Pettigrew replied "I would have to go back to the exact times and specifics. I don't have that right now," but that he knew one was that a number of screw ports had been run with an undersized drill. When Lewis replied that he had noted that fact on the report, Pettigrew said that he did not think so but that if it was noted, it should have been brought to someone's attention. Lewis then said he had noted it and had mentioned it to the line inspector and the operator. Lewis asserted that supervision had told the inspectors in meetings that what the operators ran was not up to the inspectors but that it was just their job to tell the operators if it were right or wrong. Pettigrew said that Lewis was supposed to take the matter beyond the operators, and Lewis said that they told the leadmen. Pettigrew said that if that does not accomplish anything, he should at least tell Pettigrew or the chief inspector about it. Lewis said that he had gone as far as telling the operator and the leadman, that they said it was all right, and that because of what supervision had told him, that was what he did. Pettigrew said that if it continued to run, he had to tell someone else. Lewis then asked if he was the only inspector who had checked the screw ports. Pettigrew replied that he was not as far as he knew, but that he would have to go back and check the line reports to see what was involved. Lewis then charged that they were firing him because of something that he might have done without knowing 18 These findings are based on the transcript of the recording of the interview and the stipulation of the parties with respect thereto. Pettigrew and Lewis also testified as to the substance of this interview. As might be expected, Lewis, who possessed the tape, more closely paraphrased what was on the tape than did Pettigrew. Pettigrew's testimony in several respects conflicts with that of Lewis and is not supported by the tapes. In particular, I do not credit him that he told Lewis that he had made incorrect entries and whether or not he did it. Pettigrew said that was not true, that Lewis was involved in it. Lewis agreed that he was involved but that he noted it, and Pettigrew again said that when it continued to run, Lewis should have told someone in inspection. During the interview, no mention was made of any prior disciplinary action against Lewis and there was no further discussion of the reasons for Lewis' termination. 8s Upon Lewis' discharge, a form was placed in his file stating that he was discharged "for continuous unsatisfactory job performance." 6. The interrogation of Hunt After Mason and Lewis were discharged, the Union distributed leaflets at the plant gate and scheduled a second meeting for employees on October 23. On that day, employee Ethan Hunt and his supervisor, Ken Harris, were in the cafeteria drinking coffee when Harris asked if Hunt planned to attend the union meeting that afternoon. Hunt told Harris that he had not planned on it, and Harris commented that he "was kind of hoping I could find out what was going on" or "I kind of wanted to know what was going on." They then talked about other things and did not discuss the meeting further. 7. Respondent's explanation for the discharges According to Pastusek and Pettigrew, on several occa- sions during August and September they discussed the job performance of Mason and Lewis and concluded in mid- September that both should be terminated as soon as adequate replacements for them were available. According to Pastusek and Pettigrew, after they decided that Lewis and Mason should be terminated, they advertised for additional inspectors. Three additional inspectors were hired on September 20, 27, and 29. Pettigrew testified that his reasons for considering Lewis' termination were that Lewis did not stay in his proper work area and on occasions had not done his paperwork right or did his work incorrectly. Pettigrew testified that his discussions with Pastusek resulted from indications and reports from others that the performances of Mason and Lewis were not up to standard and were causing problems. According to Pastusek, he decided to discharge Mason and Lewis on October 18 because he was taking over a new position that day, the man who was replacing him had not been with Respondent long, and he felt it was better to take care of problem areas he had had before turning the job over to his replacement. He testified that he was also instructed by Company President Booker on Friday afternoon, October 15, to clean up whatever needed to be cleaned up before taking over the new position. He testified that he told Pettigrew of his intentions first on the morning of October 18. 19 Pastusek also testified that he reviewed the that he showed Lewis some inspection reports containing such entries as the tape supports Lewis' testimony that the reports he showed and discussed with Lewis related only to his claim that Lewis had left papers at machines which should have been returned to the office. i9 Pettigrew testified that Pastusek called him on Friday afternoon and told him they would clean up the two problems they had been talking about. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD files of Mason and Lewis on the previous Friday afternoon, having been aware that they were problem areas. According to Pastusek, he had supervised Mason before Pettigrew became a supervisor, and he had had several complaints about Mason not getting around to check work adequately from leadmen and supervisors. According to Pastusek, Mason's transfer from line inspection to final inspection was not a promotion but was occasioned by the complaints they had about him not getting to the jobs in line inspection and was designed to make it easier to isolate and check his work. According to Pastusek, Mason was transferred back to line inspection from final inspection because there were too many returns from customers and they were on the verge of losing a couple of accounts. Pastusek testified that Monty Tyson was terminated on the same day as Mason and Lewis for substantially the same reason. Tyson was a leadman on the second shift who was still on probation, and Pastusek had knowledge of problems on the second shift in that area. Pastusek testified that the October 18 date was picked for Tyson because his probationary period was ending, there was a change in management, and because he was directed to clean house in the quality control department and felt it would be good to clean up what areas could be cleaned up in manufactur- ing as well. Pastusek testified that he also reviewed Tyson's file on the previous Friday afternoon. B. Concluding Findings 1. The alleged violations of Section 8(a)(1) I have found above that on the morning after the union meeting at Denny's, Pastusek asked Neal whether she knew anything about the Union and then continued to talk with her about problems in the shop, threatening that he would be unable to make improvements if the Union came in and stating that if she would give him 2 months she would see improvements. I cannot dismiss Pastusek's questioning of Neal as idle inquiry given the fact that Neal had attended the meeting at Denny's, that Pastusek had just become manufacturing manager, and that the questioning was followed by a discussion in which Pastusek threatened to withhold improvements if the Union came in. I find that the interrogation and the threat violated Section 8(a)(1) of the Act. The questioning of Hunt by Supervisor Harris was more abbreviated and was unaccompanied by any threat or promise. Despite its brevity, however, it conveyed clearly Respondent's interest in knowing not only Hunt's possible union activities but those of any employees who attended the meeting. I find that this interrogation also violated Section 8(a)(1) of the Act. 2. The discharges of Mason and Lewis The General Counsel contends that the reasons ad- vanced for the discharge of Mason and Lewis were pretexts and that the true reason for their discharges was their union activity. Respondent contends that there is no evidence to show that it had any knowledge of their union activity before they were discharged and that they were discharged for cause. There is no direct evidence of Respondent's knowledge of the union activity of Mason and Lewis, but there is sufficient evidence to warrant the inference that by the day of their discharge Respondent became aware of it. The General Counsel contends among other things that Respondent's knowledge can be inferred from the size of the plant, the activity within the plant over an extended period of time, the questioning of Wade by Booker in early October, the questioning of Lewis by Reeves about his absence from the plant on October 17, the location of the October 17 union meeting in relation to the plant, and the evidence as to the visibility of union authorization cards in Lewis' pocket where they could have been observed by supervisors or management officials. Whether or not these factors by themselves would warrant an inference of Respondent's knowledge, I find the inference warranted in the light of the additional factor of the interrogation of Neal on the morning of October 18 between the two discharges. That interrogation and the accompanying conversation clearly warrant the inference that Pastusek knew generally of union activity at the plant. The selection of Neal to be questioned indicates that Pastusek knew more and went to her as one of the small number who had attended the Denny's meeting. Although Pastusek, Petti- grew, and Reeves all testified for Respondent, they were not asked about their knowledge of the union activities of Mason and Lewis, and the inference of knowledge stands unrebutted. I find in these circumstances that Respondent knew of the union activities of Mason and Lewis at the time they were discharged. The evidence as to Pastusek's conversation with Neal also establishes that Respondent entertained animus toward the organization of its employees by the Union. The question remains whether the evidence establishes that the reasons given for the discharges were pretexts. The strongest factors militating against a finding of pretext are that three additional inspectors were hired between September 20 and September 29, and that no explanation for their employment has been advanced other than the testimony of Pastusek and Pettigrew that they were hired to replace Mason and Lewis. In addition a third employee was discharged on October 18 for the same stated reason as Mason and Lewis, and no contention is made that his discharge was discriminatory, albeit the evidence shows that unlike Mason and Lewis, he had not yet completed a probationary period with Respondent. However, when one turns to analyze the explanation given by Pastusek and Pettigrew for the discharges, substantial reason appears to reject it. The explanation given by them places the decision to terminate them subject to obtaining adequate replacements at sometime before September 20, as the first of the alleged replace- ments for them was hired on that date. Yet the record shows action by Pettigrew with respect to Mason and Lewis after September 20 inconsistent with the claim that the decision to terminate them had been made except as to effective date. In the case of Mason, on September 20, the very date the first of the alleged replacements was hired, Mason was given a merit increase after he had requested it of Pettigrew and Pettigrew sought it for him, telling him he thought he 598 WEATHERFORD/DMC, INCORPORATED deserved more. Pettigrew's testimony does not even purport to explain how he could have considered Mason's job performance at one and the same time as so substandard as to warrant discharge and yet so good as to merit a 20-cent hourly raise. In the case of Lewis, inconsistency is less glaring but no less telling. On September 27, the day the second alleged replacement was hired, Pettigrew filled out an evaluation form for Lewis. Despite the fact that he had allegedly already reached a conclusion with Pastusek that Lewis should be discharged, there was no factor as to which he rated Lewis as definitely unsatisfactory, and the lowest rating Pettigrew gave Lewis was substandard but making progress which he applied to three factors. In six others, he rated Lewis as average, and in one definitely above average. His only descriptive comment was affirmative, that Lewis had the desire to learn the job. Despite the fact that this form was for Lewis' file, Pettigrew wrote nothing on it to indicate that Lewis was virtually out the door. There are other factors as well that persuade me that the explanations for the termination of Mason and Lewis were fabricated. In the case of Mason, Pastusek and Pettigrew testified that Mason's deficiencies extended back into his employment through the times when Voglino and Pastusek supervised him and that there had been complaints and reports about his deficiencies at those times. Pastusek characterized Mason's transfer to final inspection not as an upgrading of his responsibilities, but as an effort to put him more in the spotlight to isolate his performance because of those complaints. To bolster these contentions, Respon- dent introduced testimony through Pettigrew about reject tags and line inspection reports purportedly showing that Mason had missed defects later picked up by other inspectors which Mason should have caught. The period covered by these reports was from January through early June 1976. Not only did Pettigrew, who had little direct knowledge of them, extract these documents from the files and correlate them after Mason's discharge, but during the very period which they covered and which according to Pastusek and Pettigrew brought reports and complaints which caused them to isolate Mason at work, Voglino and Pastusek each evaluated Mason as an above average employee. On July 23, a week before Mason was trans- ferred to final inspection, Pastusek rated Mason as excellent in conduct, attendance, safety, and dependability and competent in all other respects. It is impossible to reconcile Pastusek's evaluation that Mason was excellent in dependability with his testimony that he transferred Mason a week later because of complaints that Mason was not getting to the jobs. Indeed it is impossible to reconcile Pastusek's entire evaluation of Mason and the grant of a merit increase to him at the time of his transfer with Pastusek's testimony. Voglino's earlier April evaluation in which he singled out dependability as Mason's strongest qualification and remarked that Mason was very reliable and very conscientious is confirmatory of the conclusion that Pastusek's testimony as to Mason's past record is not credible. Apart from Mason's past record, at this termination interview, Pastusek relied on errors he attributed to Mason with respect to the misplated charge cases and the wrongly identified screw ports and charged Mason with falsifying company documents. As for the latter, the only indication of support is the claim that the mistakes Mason made with respect to the shipment of charge cases and screw ports amounted to falsification of company documents, thus making two offenses out of one. With respect to the screw ports, the only evidence presented was Mason's testimony in which he conceded that an error was made and did not disclaim responsibility for it, but there is nothing to indicate the seriousness of the error beyond Pastusek's bare testimony as to its impact on the customer. Moreover, this error like that involving the charge cases was known and called to Mason's attention before Pettigrew helped him obtain his last merit increase. With respect to the charge cases, Pettigrew's testimony as well as that of Mason's indicates that Mason was not the only final inspector who approved their shipment and that the mistake was made over a period of 2 or 3 months, during only I month of which Mason was final inspector and during the remainder of which Pettigrew was final inspector. It is impossible to escape the conclusion that the importance of Mason's role in these shipments became greatly magnified on the morning of his discharge. The conclusion that Pastusek and Pettigrew were not credible in their testimony as to when and why they considered Mason's discharge is warranted here not simply because the contradictory testimony of an interested participant is deemed more credible but because the testimony of Pastusek and Pettigrew conflicts with undis- puted facts. Indeed, the evidence that the reasons given by them for Mason's termination were pretextual is sufficient- ly strong enough that it adds further support to the inference of Respondent's knowledge of Mason's union activities, as it is clear that the true reason for his discharge was one which Respondent sought to conceal. In the case of Lewis, the evidence is less strong but also persuasive. Lewis' evaluations by Pastusek and Pettigrew placed him somewhat below average and below other inspectors in the department. There is little dispute that he was responsible for the error which led to his September suspension and that whether or not suspension was justified, no improper motive entered into the decision to suspend him. Lewis, unlike Mason, received no merit increases during the entire period he served as an inspector, although pay records show that when he transferred to inspection his pay rate was higher than that received by most other inspectors and considerably higher than the pay rate of newly hired inspectors. Nonetheless, despite Lewis' less impressive record, as already noted above, the alleged decision to terminate Lewis before the additional inspectors were hired is inconsistent with the evaluation given Lewis on September 27. Lewis was concededly never warned that he faced discharge if his work did not improve. The record of alleged errors attributable to him developed at the hearing, and, as in the case of Mason, was developed after his discharge to bolster the decision and pertained mostly to the first half of the year. Moreover, the evidence as to the termination interview between Pettigrew and Lewis bears out the contention of the General Counsel that Pettigrew was evasive and vague in responding to Lewis' questions as 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the reasons for Lewis' discharge and Pettigrew's past statements to Lewis that Lewis was doing the job right and that he would tell Lewis if anything was wrong. Finally, the testimony of Pastusek and Pettigrew was that the decision to discharge both men was made at the same time for the same reasons. I cannot conclude that their testimony as to Lewis was true while also concluding that their testimony as to the concurrent disposition of Mason was so thoroughly discredited, particularly in the light of the independent considerations as to Lewis set forth above. In these circumstances I reject the testimony of Pastusek and Pettigrew that they had determined to discharge Mason and Lewis several weeks before October 18 and that Pastusek made the decision to effectuate the discharges on October 15 for the reasons he and Pettigrew advanced. I find that the reasons advanced for both discharges were not the true reasons and that these discharges which occurred on the day that distribution of authorization cards began at the plant were caused by the union activities of Mason and Lewis and violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully discharged Charles Mason and Michael Lewis, I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of the amounts they normally would have earned from the dates of their discharges until the dates of Respondent's offer of reinstatement, less net earnings to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Weatherford/DMC, Incorporated, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By questioning employees about their union activi- ties and by threatening to withhold improvements in benefits and working conditions if they chose to be 20 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. represented by a union, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging Charles Mason and Michael Lewis because of their union activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 20 The Respondent, Weatherford/DMC, Incorporated, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities. (b) Threatening to withhold improvements in benefits and working conditions if employees choose to be represented by a union. (c) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because they become members of or engage in activities on behalf of Internation- al Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Charles Mason and Michael Lewis immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings they may have suffered as a result of discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraph (a) above. (c) Post at its Houston, Texas, place of business copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 21 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 600 WEATHERFORD/DMC, INCORPORATED Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees about their union activities or those of other employees. WE WILL NOT threaten to withhold improvements in benefits and working conditions if our employees choose to be represented by a union. WE WILL NOT discharge or otherwise discriminate against our employees in regard to their hire, tenure, or any term or condition of employment because they become members of or engage in activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. These activities include the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL offer Charles Mason and Michael Lewis immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have lost as a result of the discrimination against them. WEATHERFORD/DMC, INCORPORATED 601