P. B. and S. Chemical Co.

P B AND S CHEMICAL CO P. B. and S. Chemical Company and International Chemical Workers Union, AFL-CIO. Case 6-CA- 7894 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 13, 1975, Administrative Law Judge John M Dyer issued the attached Decision in this proceeding Thereafter, General Counsel filed excep- tions and a supporting brief to which Respondent 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 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith We agree with the Administrative Law Judge that by announcing that employees would not be granted pay raises until the union matter was cleared up Re- spondent violated Section 8(a)(1) of the Act While we also agree that the evidence herein is insufficient to establish that the discharges of em- ployees Rick and Jack Brookover and Raymond Starkey violated Section 8(a)(3) of the Act, we dis- agree with his conclusion that the discharges did not violate Section 8(a)(1) Before these employees were discharged on No- vember 5, 1974,1 the Brookovers had taken an active part in two incidents wherein they left the plant in protest, once over the rescission of their break peri- od, and later over what they considered unfair treat- ment concerning a prior termination of Raymond Starkey The Administrative Law Judge appears to find that the first incident was not protected concert- ed activity and the second was neither protected nor a central cause in the discharges We note with re- spect to the latter finding that if the employees' walk- out over Starkey's prior termination was protected concerted activity and constituted any part of the motivation in their discharges such discharge violates Section 8(a)(1) of the Act All dates hereafter are in 1974 unless otherwise indicated I A Protected Activity The first incident involving a walkout began with a request by the Brookovers 2 to take their morning break an hour early They were given permission by their foreman inasmuch as they had started work early that day, but they were cautioned that they would not be entitled to a second break at the usual time When Plant Manager Harpley saw the men not working, he questioned them about what they were doing, even though the foreman had just explained what had occurred and that he had given them per- mission Two of the brothers went immediately back to work upon being questioned, but Rick remained sitting and got into an argument with Harpley, after which Rick got his brother Steve to leave the plant with him According to Harpley's credited testimony, when he told them they could not have two breaks they said they were going to quit The next day they returned to work and were immediately put to work by Harpley The second incident occurred in October Starkey had been cleaning the floor in the warehouse using a scraper with a handle when Harpley told him to re- move the handle and use the scraper on his hands and knees Starkey refused and Harpley told him that if he did not do the job he was no longer an employee Starkey then went into the plant, told the Brookovers and others what had happened, and was taken home by Harpley The employees decided to strike over the incident and Jack Brookover announced their decision to the foreman After the lunchbreak they refused to return to work When Harpley returned, he spoke first to Jack Brookover and then the other employees and agreed to take Starkey back In both of these incidents the employees walked out in protest over their complaints These employees obviously did not intend to abandon their jobs and in fact all returned to work Under such circum- stances, we do not pass on the reasonableness of their decision to engage in concerted activity N L R B v Washington Aluminum Company, Inc, 370 U S 9, 16 (1962) We therefore find that the walkout constituted protected concerted activity which, if shown to be a cause in the discharges here, requires a finding that Respondent's action violated Section 8(a)(1) of the Act B The Discharges On November 1, Harpley phoned Respondent's district manager, Arlene Dunn, telling her that he 2 A third brother Steve Brookover, was employed briefly by Respondent but was not alleged to be a discrimmatee 224 NLRB No 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was resigning because he could not control the em- ployees and that it was affecting his health A few days later Dunn came to the plant to investigate the situation The following day she met with Harpley at a restaurant to discuss what should be done Harpley testified that Dunn raised various questions about occurrences at the plant over the previous months, including the walkouts, and that he agreed with her that these employees should be discharged because of their actions in leaving the plant Although Harp- ley agreed to effect the discharges, when he did not return to the plant Dunn terminated the men herself Before actually making the discharges, Dunn pre- pared a memo listing seven "reasons for dismissal" which did not specifically refer to the walkouts The list did refer, however, to "taking unauthorized breaks, or taking longer time than permitted " The record shows that the reference must be to the inci- dent which precipitated the first walkout, as it was the only one that involved a break Dunn directed that all the employees, except the Brookovers and Starkey, be assembled in the ware- house She informed the three men that they were terminated and then met with the others in the ware- house, explained the action she had taken, and enter- tained questions concerning matters of general inter- est to the employees Later that day she had a statement prepared listing seven incidents involving the discharged employees, including protected activities She read the statement to a group of employees at the afternoon break, ask- ing them to sign it, verifying its accuracy On the basis of the above undisputed facts, we find that Respondent's action in discharging Rick and Jack Brookover and Raymond Starkey on November 5 was motivated, at least in part, by their protected concerted activity, and therefore violated Section 8(a)(1) of the Act In reaching our conclusion, we find, contrary to the Administrative Law Judge, that Respondent's de- fense fails to overcome the evidence of illegal moti- vation set out above Thus, while Respondent makes much of the fact that each of the three discriminatees was involved in numerous incidents of horseplay at the plant, it is undisputed that all of Respondent's employees engaged in such activity, which had a long history at the plant, predating the employment of these three employees In addition, the fact that no other employees were discharged or even disciplined for similar acts of horseplay, and the further fact that the incidents listed as causes for the discharges were not considered sufficiently serious to warrant dis- charge at the time they occurred render them sus- pect Finally we note that Respondent's disavowal of the walkouts as a basis for the discharges is inconsis- tent with other evidence which was not discredited by the Administrative Law Judge and that these inci- dents did contribute to the decision In this regard, several employees testified, and Dunn did not deny, that when she read the statement, which included the walkouts, at the afternoon break to the employees, she said that these were the reasons for the dis- charges 3 Dunn also admitted that she had not made a final decision to discharge these men until she spoke with Harpley on the morning of November 5, and that she took his recommendation into account in making her decision Harpley's testimony was that he did not view any of the activity cited by Dunn as sufficient to warrant discharge, except the walkouts C Dunn's Interrogations We also disagree with the Administrative Law Judge's finding that Dunn's interrogation of each of the employees did not violate Section 8(a)(1) of the Act These admitted interrogations occurred shortly after the discharges and were occasioned by a report to Dunn from an employee that he felt that he had been coerced by the discharged employees into sign- ing a union authorization card After receiving this information, she questioned each employee individu- ally as to whether, where, when, and why they had signed union cards The Administrative Law Judge notes Dunn's testi- mony that she explained to each employee why she was asking the questions and that the appropriate assurances of no reprisals were given He then con- cludes that although her manner in asking the ques- tions may not have been "the most legalistic " her motivation was not improper and the questioning did not have an inherently coercive effect on the employ- ees We disagree In reaching this conclusion, we first note that the basic premise in situations involving the questioning of employees by their employer about union activi- ties is that such questions are inherently coercive by their very nature We have, however, held that in cer- tain circumstances employers may have a legitimate purpose for making a particular inquiry of employees which may involve, to some limited extent, union conduct See, e g, Johnnie's Poultry Co and John Bishop Poultry Co, Successor, 146 NLRB 770 (1964), enforcement denied 344 F 2d 617 (C A 8, 1965) 3 Even were we to find that protected concerted activity was not a signifi- cant factor motivating the discharges, the announcement to the remaining employees that it was would violate Sec 8(a)(1) in any event The impact of an announcement that employees have been discharged for activity protect- ed by Sec 7 of the Act, even if untrue, interferes with, restrains , and coerces employees in their exercise of those rights P B AND S CHEMICAL CO 3 We find it unnecessary, in the circumstances of this case, to decide whether the evidence before the Administrative Law Judge was sufficient to justify his finding that Respondent was warranted in its al- leged belief that employees may have been coerced into signing union cards by threats and whether this belief justified its questioning of the employees We reach this conclusion based on the undisputed evi- dence that Dunn went far beyond any permissible scope of inquiry in asking her questions, even assum- ing the validity of the Administrative Law Judge's preliminary findings Retired Persons Pharmacy, t/a NRTA-AARP Pharmacy, 210 NLRB 443 (1974) If Respondent was concerned about whether its em- ployees had been threatened by union adherents, the only arguably legitimate inquiry would have been whether they had, in fact, been threatened We find that Respondent had no legitimate purpose for ask- ing its employees, where, when, and why they may have signed union cards Indeed, it is immaterial to the existence of the alleged threats to know whether the employee actually did sign a card In light of the above, we find Respondent's actions in interrogating its employees concerning their union activities violative of Section 8(a)(1) of the Act REMEDY Having found that the Respondent discriminatori- ly discharged Rick Brookover, Jack Brookover, and Raymond Starkey, on November 5, 1974, and has since failed and refused to reinstate them, because of their protected concerted activities, in violation of Section 8(a)(1) of the Act, we shall order the Respon- dent to offer them immediate and full reinstatement to their former positions or, if those positions no lon- ger exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they may have suffered as a result of this deter- mination against them by payment to them of a sum of money equal to that which they would have earned as wages, from the date of discharge to the date of reinstatement, less their net earnings during such period, in accordance with the formula pre- scribed in F W Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum to be added to such backpay, such inter- est to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Having further found that the Re- spondent has interrogated employees concerning their union activities, in violation of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and post the appropriate notices In view of Respondent's multiple violations of the Act, including unlawful discharges, we find that a broad order is warranted and we shall so provide ADDITIONAL CONCLUSIONS OF LAW We make the following Conclusions of Law in ad- dition to those made by the Administrative Law Judge "4 By discharging Rick Brookover, Jack Brook- over, and Raymond Starkey on November 5, 1974, because of their protected concerted activities, Re- spondent has engaged in unfair labor practices with- in the meaning of Section 8(a)(1) of the Act "5 By interrogating its employees concerning their union activities, Respondent has violated Sec- tion 8(a)(1) of the Act " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, P B and S Chemical Company, Proctor, West Virginia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Telling its employees they will not be granted pay increases until the union matter is cleared up (b) Discharging employees because of their con- certed activity (c) Interrogating employees concerning their union activity (d) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Rescind its announcement that pay raises will not be granted to employees until the union matter is cleared up (b) Offer to reinstate Rick Brookover, Jack Brook- over, and Raymond Starkey to their former positions or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges (c) Make whole Rick Brookover, Jack Brookover, and Raymond Starkey for any loss of earnings they may have suffered by reason of the unlawful action taken against them in the manner set forth in the section of this Decision entitled "Remedy " (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay due under the terms of this Order (e) Post at its Proctor, West Virginia, plant and warehouse copies of the attached notice marked "Appendix " 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material (f) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with 4In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading `Posted by Order of the National Labor Relations Board' shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties participated and offered evidence, the National Labor Relations Board found that we violated the law and ordered us to post this notice WE WILL cancel our announcement that em- ployees will not be given pay raises until the union matter is cleared up WE WILL offer to Rick Brookover, Jack Brook- over, and Raymond Starkey immediate and full reinstatement to their former positions or, if suchjobs no longer exist, to substantially equiv- alent positions, without prejudice to their senior- ity, or other rights and privileges previously en- joyed by them, and WE WILL pay them for any loss of pay they may have suffered as a result of their being discharged on November 5, 1974 WE WILL NOT tell our employees they will not receive pay increases until the union matter is cleared up WE WILL NOT discharge our employees be- cause of their concerted activity WE WILL NOT interrogate employees concern- ing their union activities WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the International Chemical Workers Union, AFL- CIO, to bargain collectively with representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities All our employees are free to become or remain union members P B AND S CHEMICAL COMPANY DECISION STATEMENT OF THE CASE JOHN M DYER, Administrative Law Judge The Interna- tional Chemical Workers Union, AFL-CIO, herein called the Union or Charging Party, filed an original charge on November 18, 1974,1 alleging violations of Section 8(a)(1) and (3) and filed an amended charge on December 18, against P B & S Chemical Company, herein called the Company or Respondent On January 27, 1975, the Regional Director of Region 6 of the National Labor Relations Board issued a complaint which alleged that Respondent had violated Section 8(a)(1) and (3) of the Act by discharging employees Raymond Starkey, Jack Brookover, and Rick Brookover on Novem- ber 5, and violated Section 8(a)(1) by interrogating employ- ees concerning union membership, warning them that eco- nomic benefits would be withheld if they supported the union, and by threatening employees that Respondent would close its plant if the employees supported a union Respondent's timely answer admitted the requisite ser- vice and commerce allegations and that it had discharged the three employees and refused to reinstate them but de- nied that it violated the Act At the hearing in this matter held on March 17 and 18, 1975, at Wheeling, West Virgin- ia, Respondent admitted the supervisory status of Arlene Dunn as its district manager but denied that Foreman Ed- mond Ankrom was a supervisor within the meaning of the Act General Counsel pursued alternative theories that the discharges were caused because of the union activities of the employees or because of their concerted activities There are some conflicts in the testimony of the witnesses concerning whether certain remarks were made but most of the testimony is uncontradicted The situation presented in this case is rather unusual and in assessing the facts I have concluded that the complaint must be dismissed in regard to the discharge allegations and all but one of the 8(a)(1) allegations General Counsel and Respondent have filed briefs which have been carefully considered At the hearing, all parties had full opportunity to appear, to examine and cross-examine witnesses, and to argue orally On the entire record in this case including my evaluation of the reliabili- 1 Unless specifically stated otherwise all dates herein occurred in 1974 P. B. AND S. CHEMICAL CO. 5 ty of the witnesses based on all the evidence received, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Kentucky corporation with its principal office and place of business in Henderson, Kentucky, and it maintains other facilities and locations including the fa- cility at Proctor, West Virginia, which is the facility in- volved in this proceeding. Respondent is engaged at its Proctor plant in filling cylinders with chlorine gas and dis- tributing them and packaging and distributing various chemicals. From its Proctor plant and warehouse during the past year, Respondent sold and shipped to points di- rectly outside the State of West Virginia products valued in excess of $50,000 and during the same period received di- rectly from points outside the State of West Virginia goods and materials valued in excess of $50,000. Respondent admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Ralph Harpley was the plant manager of the Proctor plant from the time he came there in 1970 until he left in November 1974. This plant was a part of one division of Respondent and was under a district manager named Ut- berg until he left the Company in May 1974. Utberg's of- fice was at the Opalco Laboratories located in McKees- port, Pennsylvania, which facility is the biggest customer of the Proctor plant for its chlorine gas. Arlene Dunn was the assistant district manager and she had responsibilities in arranging for shipments of ton-cylinders of gas to the Opalco plant from Proctor and for scheduling the truck transportation. She testified that there were a number of occasions when there was an evident lack of communica- tion between her and Harpley as to what had to be done to maintain the schedules and she said that Harpley would not get shipments out on time or fail to have overtime work performed in order to meet the shipping schedules. When Arlene Dunn became the district manager on June 11, 1974, after Utberg resigned, she telephoned Harp- ley and asked him to come to McKeesport, Pennsylvania, to meet with her because they had had a lack of good communication and she wanted to start out on the right foot. She testified that she gave him a choice of 3 days to come up during the week of June 16, and he said that he would come up on one of those days. However, he failed to come up on any of the days, giving what she considered were poor excuses. She sent a letter to him stating that she expected him to be in her office on Tuesday, June 25, or she would consider that he wanted to be terminated. Harp- ley reported and they discussed the situation and she told him she wanted to be kept informed of each and every problem that he had at the plant. Harpley agreed to keep her apprised of all problems including sales problems, cus- tomer problems, or personnel problems and thereafter they were in almost daily contact by telephone. She visited the Proctor plant in August for a day and inspected the plant. She testified and Harpley confirmed that, from June until November 1, Harpley never informed her of any personnel problems except on one occasion and indicated to her that he had all the problems well in hand. The Proctor plant had approximately 10 employees en- gaged in production work in addition to Denny Swords, a salesman, and a secretary named Susie. Whenever Harpley was absent from the plant, Swords would take over for him. Edmond Ankrom has had the title of foreman for the past 4-1/2 years of the 9 years he has been with the Com- pany. Both Harpley and Ankrom assigned work to the em- ployees depending on what needed to be done at a particu- lar time. Ankrom had no disciplinary authority whatsoever and was unable to hire or fire or effectively recommend such. His direction of the employees was strictly of a rou- tine nature and he did not exercise any true independent judgment in his duties as a foreman. He was a working foreman and I do not find that he was a supervisor within the meaning of the Act. Harpley reserved all true supervi- sory authority to himself during the time that he was the plant manager. Respondent gave the designation of lead- man to Joe Ebert who was a longtime employee but had no supervisory functions of any type. Ralph Harpley was a personal friend of the Brookover family for more than 10 years. During the summer of 1974, on separate occasions he hired three brothers, Stephen, Rick, and Jack Brookover. Stephen Brookover was em- ployed from May until August 1974, when he left. Rick Brookover was hired towards the end of March and Jack was hired in May. Raymond Starkey was hired in early August, although he testified that he thought he had start- ed work earlier than that. The normal work hours at tl:e Proctor plant were from 8 a.m. to 4:30 p.m. Cleanup was supposed to start at 4:15 p.m. and since some of the cleanup involved using water hoses to wash out parts of the plant, there were occasions through the years when some employees were sprayed with water hoses. The employees admitted that there had always been a small amount of horseplay in the plant which con- sisted usually of occasional hose sprayings, throwing valve packing or plastic washers, and on one occasion greasing the handlebars of two motorcycles. There was also an old abandoned house on the premises and there were occa- sions through the years when employees would throw rocks or endcaps at birds roosting on the house or possibly at the house windows. The house has since been torn down. In addition to their cleanup time the employees had a 15-minute break in the morning at 10 a.m. and a 10-minute break around 2 p.m., in addition to their regular lunch period. The plant did not have a lunchroom. According to the Brookovers the plant did not have heaters which one of the Brookovers asserted were needed during the summer because the plant was occasionally wet and damp in the morning. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Events Up to November 5 All the employees , including all General Counsel wit- nesses except the dischargees themselves , agreed that horseplay increased dramatically after the employment of Jack Brookover and ceased with the discharge of the Brookovers and Starkey on November 5. There was testi- mony that, in addition to regular plastic washers being thrown, both lead washers and metal endcaps, which screw on to the chlorine cylinders , were thrown in the plant. Most of the witnesses agreed that the Brookovers and Ray- mond Starkey were the instigators of these activities and even the Brookovers agreed that on occasion they started such activities in the plant. Employee Joe Ebert testified that he was struck in the back by a lead washer which came from the vicinity where Jack Brookover was working and he left his work station and started to go to the office to protest about being hit. On his way Jack Brookover shook his fist at him and Ebert decided not to complain to the office about it. There were several incidents of employees being sprayed with paint while the Brookovers were employed and one of the inci- dents involved one brother spraying the other . There was some attempt to show that prior to the Brookover's em- ployment there were occasions when paint was sprayed on persons' gloves or shoes while they were spray-painting the chlorine cylinders but such would be incidental to the work itself and not a deliberate attempt at horseplay. Ed Ankrom testified that he spoke to the three discharg- ees on several occasions about their misconduct in the plant, and they might improve for a short period of time but then they were right back into it as much , if not more than ever. Among other things he told the three not to throw things and stated that on one occasion grease was applied to the restroom doorhandles and to office doors. Ankrom said that the office secretary had a few words with Jack Brookover over this and he later talked to Jack about it. He testified he asked Brookover whether he had done it and Brookover denied doing it. Brookover testified that Ankrom said that whoever was doing it should quit and when he denied doing it, Ankrom again stated that who- ever was doing the greasing should quit . At that point Brookover asked Ankrom to step outside. Ankrom testified that after the first question he told Brookover to speed up, that the next man on the production line was waiting for him, and at that point Brookover asked him to step outside and he told Brookover he would not fight with him. Brook- over said something about going to O.S.H.A . and getting the plant closed down. Ankrom reported this incident to Denny Swords, the plant sales manager, since Harpley was on vacation. When he returned, Harpley called Jack Brookover into the office and said he would not tolerate any behavior like that and if necessary they would put Brookover under a peace bond. Harpley testified that Brookover did not deny any of the accusations made against him. During the hearing Brookover stated he did not mean the invitation to step outside the way it sounded but there is no other rational interpretation of such an invi- tation. Harpley did not advise Arlene Dunn of this episode. On one occasion a ton-cylinder rolled off the concrete ramp behind the plant out into soft ground . Rick Brook- over got on the tow-motor and drove to the edge of the concrete, attempted to pick up the ton-cylinder with the forks, and according to Starkey a piece of the concrete broke off and the tow-motor went further out into the yard and sunk in the mud. They tried to pull the tow -motor out with a car belonging to one of the men but were unable to do so and had to use a truck . By that time Foreman An- krom was out there and assisted in getting the tow-motor out of the mud. He told them to leave the cylinder in the mud and they would wait until the ground firmed up and get it later. Despite this admonition, after putting down some boards Starkey drove the tow-motor out to pick up the ton-cylinder and got it part way back when the boards slipped and the tow-motor sank in the mud again. They had to get the truck again and pull it back out. Ankrom testified that he thought the second time it was done delib- erately since they treated it so lightly, laughing and car- rying on, and he had told them not to mess with it further. One day during August the employees reported to work early and the three Brookovers asked Ankrom if they could have a break about 9 a.m. Ankrom told them they could only have one break and at 9 a.m. the three Brookovers took a break. Harpley came out of the office about that time and asked Ankrom what they were doing. Ankrom told Harpley that he had told the Brookover brothers that they could take a break either at 9 or 10 but could only have one break . Harpley went back and asked what they were doing and Jack and Steve immediately went back to work, but Rick Brookover continued sitting there and got into an argument with Harpley . Harpley felt the Brook- overs were insisting on taking an extra break in addition to the normal 10 a.m. break and the two Brookovers return- ing to work tends to confirm that idea. Rick Brookover testified that Harpley used some vulgar language in telling them to get back to work saying he was not going to lose his job over one of them. Rick Brookover said he was going to get the place "straightened out." According to Brook- over, Harpley told him if he went home not to come back and Brookover said he was not going home but was going to get it "straightened out." Rick started to leave, his broth- er Jack asked where he was going and he told him that he was going to get the place "straightened out" and walked out through the office. He stated that Harpley asked him again what was wrong and he said that there were no heat- ers or water fountains in the place, no place to eat, the back wall was caving in and they were leaving. He said that as they were leaving the secretary mentioned the bath- room. This may have been a facetious remark on her part in that Jack Brookover apparently poked holes in the wall between the men's and women's bathrooms . Jack Brook- over stated he told Harpley that he was leaving for person- al business as they went out through the office. Harpley testified that as near as he could recall when he told them they could not have two breaks they said they were going to quit, and Jack and Rick left the plant. According to the Brookover brothers they went to the local unemployment office and asked if they knew where to get in touch with O.S.H.A. and were told they knew nothing about it, but were given a telephone number in Wheeling. When they got to Wheeling they found out that it was not the proper number. They came back to work the P B AND S CHEMICAL CO 7 next day According to both of them Harpley apologized to them and immediately put them back to work Harpley testified that they returned the next day and he put them to work The General Counsel argues on the basis of this testimo- ny that the Company was put on notice that the Brookover brothers were leaving to go and complain to 0 S H A and that this was protected concerted activity He further refers to this leaving the plant by the two brothers as a walkout and states that since when they were discharged some ref- erence was made to walkouts, that the discharges for this and the later walkout violated the Act as being a reprisal for concerted protected activity The General Counsel's brief states Before the first, [walkout] the Brookover brothers complained of the working conditions (lack of water fountains and lunch tables, etc) and announced their intention to get the place straightened out This state- ment put Respondent on notice that the brothers sought to enlist the aid of some governmental agency in their effort to secure better working conditions If motivated in part as a protest against the curtailment of the previously approved break the activity was nonetheless protected [citations omitted] And if moti- vated in part as a protest against derogatory, abrasive and tactless treatment, the activity was protected It is clear that the walkoff was a concerted work stoppage and not a quit Thus, Rick Brookover told Harpley that he was not going home, but was going to get the place straightened out Indeed, Respondent did not regard the walkout as a quit These statements are made in the absence of any real proof to back them up and in contradiction of what Gener- al Counsel's witness Harpley expressly testified, that the Brookovers told him they were quitting It was his friend- ship for their parents that allowed them to return to work the following day Even if one were to credit the Brook- overs, and I do not, their leaving the plant during the mid- dle of the shift to go complain to 0 S H A was merely a matter of them deciding to take leave of the plant at their own convenience to do wha't they wished Whether they left to go complain to 0 S H A or to go home did not give them a right to leave the plant on this occasion There was no dangerous condition at the plant which would have just- ified them in refusing to continue work They walked out of the plant to suit their own convenience and all Harpley knew was that they were quitting Even if they did try to contact 0 S H A, Respondent did not know this was their intention when they left, as Jack Brookover admitted when he said he told Harpley he was leaving for personal rea- sons They were simply seeking to obtain information at their own convenience and at the expense of their job du- ties Clearly they were trading on Harpley's friendship with their parents and their return the following day was a fur- ther demand on Harpley which he granted Certainly un- der the circumstances Harpley could have discharged the two if they had not told him they were quitting Harpley did not report this event to Arlene Dunn appar- ently because, as he admitted, he never thought about fir- ing the Brookovers until November 1 During her visit to the plant in August, Arlene Dunn commented to Harpley on the messy condition of the floors and the necessity to clean and scrape them before painting Around the first of October, Harpley started Star- key (who was the mostjunior man at the plant at that time) scraping the floors with a putty knife During the first day Harpley worked off and on with Starkey for about 4 hours in cleaning the floors and assigned Starkey to scrape the floors the next day Starkey had the putty knife tied to a long stick and the stick either broke or Harpley comment- ed that the job was not being done well enough and told Starkey to squat down and scrape as they had done the previous day Starkey said that he was not going to get down on his hands and knees like a girl and clean the floor Harpley told him that he would do the assigned work or quit Starkey testified that he was faced with a choice of quitting or being fired, and he quit rather than do the job and told others in the plant that he had quit Harpley who was leaving the plant gave Starkey a ride home in his truck and went on to Wheeling, West Virginia Arlene Dunn recalled Harpley telling her on the tele- phone that he had assigned an employee to scrape the floors and that whenever he left the employee was walking off and talking to other employees and was not working and he might have to fire him She told him that if the employee was not working he did not have much of a choice She heard nothing further and assumed the em- ployee had been fired At that time copies of personnel actions were not going to her Harpley did not recall the conversation According to Jack Brookover, Edward Cunningham told him that they ought to go on strike at breaktime and get the place straightened up and get Starkey back to work At breaktime they agreed that they had better wait until lunchtime, when the plant was closed down to make sure that nothing would happen since chlorine is a dangerous substance At lunchtime they all went outside to eat and when the bell rang to start back to work they did not go back in Jack Brookover testified that he and Tom Raber told Ankrom that they were going to stay out until Starkey got back to work and they got some "good facilities " An- krom told them that Harpley was in Wheeling and for them to talk to him when he got back They decided to stay outside There was some talk about joining a union and some of them chipped in and a call was made to the Team- sters Union, but they did not have anybody available to come and talk to them They started to prepare a strike sign but it was never posted before Harpley returned According to Jack Brookover, Harpley said he did not know whether Brookover started this and Brookover told him that he did not, but that they were out on strike Brookover claimed he told Harpley that they did not get the raises when they were supposed to get them, and that they had no heaters in the plant, no water fountain, and no place to eat They started to talk about Starkey and about that time Starkey came up and Harpley patted him on the back and said go back to work and he would try to get the thing straightened out within a few weeks They all went back to work Harpley stated that, when he was called in Wheeling and told that the people were out, he returned and talked to 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them and was told that they would not go back to work unless he agreed to bring Starkey back, and that nothing was said about conditions in the plant at that time He said he agreed, Starkey returned, and the men went back to work Harpley did not inform Arlene Dunn of these events In regard to the initiation of this walkout, Edward Cun- ningham preceded Jack Brookover as a witness for the General Counsel and nothing was elicited by the General Counsel from Cunningham regarding the walkout With Harpley stating that nothing was said about conditions in the plant and with no effort being made to have Cunning- ham testify about the walkout, I have doubts that it oc- curred as Jack Brookover testified and I credit Harpley's version of the conversation Again the General Counsel argues that the walkout over Starkey's "discharge," as he terms it, was concerted pro- tected activity and claims that concerted activity in protest of a discharge, albeit a lawful one, was protected The General Counsel does not cite any cases concerning such activity over an employee quitting Here there could be no question as to a constructive discharge Starkey told Harpley and the plant employees that he had quit rather than work as a girl This could not be a discharge Harpley testified that although he was informed that someone had cut holes in the wall between the men's and ladies' restrooms again after he had such holes plugged up once, he did not make any investigation to find out who did it Further, he acknowledged receiving increasing num- bers of reports from Ankrom between early October and November 1, that the Brookovers and Starkey were en- gaged in uncontrollable horseplay, which led other employ- ees to engage in it, and that Ankrom pleaded with him to do something about it and he did nothing, although realiz- ing that there was a serious situation in the plant The three Brookover brothers testified that on an occa- sion which they put as ranging somewhere between May and July a driver from Eaton and Colby, a customer of Respondent's, talked to them about their wages and indi- cated that with a union they would probably do better They testified to somewhat different versions as to how Ed Ankrom got into the conversation, but each of them stated that Ankrom said that if the union were to come in the Company probably could not stand union wages and might close the plant Jack Brookover and his brothers tes- tified that on a number of occasions thereafter and contin- uing up to November, Ankrom repeated this statement, but they could not put it in any sort of context nor give any dates or occasions on which such a statement was repeated Ankrom testified that sometime around April, shortly after Rick Brookover was hired, Rick asked him why the Company did not have a union and he replied that he did not think the Company was interested in a union Rick asked what Ankrom thought would happen if the Compa- ny did get a union and Ankrom replied that he did not know, that the Company might close down rather than pay union wages Ankrom testified that he had never talked to any member of management concerning a union or what would occur if a union were to come into the plant and was never asked about a union after that, nor did he ever make any statements concerning unions after that one occasion He added that he did not hear employees talking about the Union thereafter Since I have previously stated that Ankrom was not a supervisor within the meaning of the Act, and I find that by his answer to a question propounded by Rick Brook- over in April he was not acting as a conduit of information from top management but merely giving his personal opin- ion, there was no 8(a)(1) violation committed by Respon- dent by Ankrom's statement and I will dismiss that com- plaint allegation I further credit Ankrom that he was not asked about, nor did he make, any further statement about a union after that time and I discredit the Brookovers' con- trary testimony After hearing nothing further from the Teamsters Union, Jack Brookover mentioned a union to his father who procured some authorization cards from the Charging Union Jack and Rick Brookover signed authorization cards, picked up Raymond Starkey in their car, and pro- ceeded to drive to the homes of Arthur Moore, Dave and Everett Cunningham, and Starkey Moore and the two Cunninghams all signed union authorization cards, on the evening of October 26 These cards were then returned to the Charging Union The Brookovers made a point of keeping the organization a secret They discussed it with one or two other people but were careful to see that no mention of it was made to Harpley or Ankrom It is clear that neither Harpley, Ankrom, nor any member of Respondent's management knew anything about the Union until sometime after the three discharges Harpley testified that he never gave any thought to dis- charging the Brookovers or Starkey even though he was getting constant complaints from Ankrom concerning the uncontrollable horseplay in the plant On November 1, he called Arlene Dunn and said he was resigning because he could not get materials, customers were complaining about deliveries, and he could not handle the employees He ac- knowledged he was talking about the horseplay in the plant when he was talking about controlling the employees This was about all he recalled of that telephone conversation Arlene Dunn testified that on the morning of November 1 she received a call between 10 30 and 11 from Harpley who in a quivering voice said he was going to have to quit his job When she asked what the problem was, he said he could not handle his people anymore She told him to put Ed Ankrom in charge and go home for the weekend and she would come down on Monday unless he wanted her to come down then He told her that she did not need to come that day She called back about a half hour later and find- ing Harpley still there she asked what the problem was He said he just could not handle the people anymore and the product shortages and just could not cope She asked if he was going home and he said yes She told him she would be down on Monday Harpley said he called Denny Swords on Sunday and told him he had quit, and he would be there on Monday at 8 a in to tell him what he had done and that Swords could look over the situation and take over Arlene Dunn arrived at the plant about 10 30 a in on Monday, November 4, and met with Ankrom and Swords Swords told her that Harpley would not be there, that he P B AND S CHEMICAL CO had called and said he was going to the doctor because his nerves were really bad and had asked that she call him She asked Ankrom what seemed to be wrong and he told her that Harpley was in a very bad state on Friday, that the employees had dust gotten out of hand and he had told Harpley that if something was not done he (Ankrom) was going to have to quit because it was affecting him on the job and at home Ankrom and Swords then told her of various incidents of people throwing objects, spraying paint and water, leaving early, and taking breaks when they desired, and laid the blame for the initiation of these activities to Jack and Rick Brookover and Raymond Star- key Ankrom said he wanted her to talk to some of the employees and they could confirm what had been going on She talked to Joe Ebert who said he had been threatened by Jack Brookover after Jack hit him in the back with a lead washer and he had started to the office to complain about it As she was going through the plant, Arlene Dunn was insulted by an unflattering call or whistle and turned and went to the area it came from and there were the two Brookovers and Raymond Starkey After introducing her- self as the district manager she asked each of them if they had anything to say and they each replied they did not, and she left They corroborated the event, but each denied making the sound that prompted her questions She next talked to truckdriver Bill Riggs, who corrobo- rated the stories about the Brookovers and Starkey engag- ing in horseplay in the plant He told her that not much work was being done and that Ankrom and Harpley were doing as much physical work as the Brookovers and some of the other employees She also talked to Arthur Moore and Dave Cunning- ham, and they corroborated the amount of horseplay being engaged in by the Brookovers and Starkey and told her that things needed to be straightened out before the plant could really get back to work She called Harpley that afternoon and told him she found things in a bad state and that she needed to talk to him and asked to meet him that night or the following morning He agreed to meet her the following morning at a local restaurant C The Events of November 5 and Thereafter Harpley's memory of his meeting with Dunn was not particularly good and he did not recall whether he met with her the evening of November 4 or the morning of Novem- ber 5 He testified that from the questions she asked he assumed that she had talked to Ankrom and some of the others at the plant She asked his opinion as to whether the three should be discharged and he said they should She then asked if he wanted to discharge them or if she should and he did not answer He testified that it was his feeling that the Brookovers should have been discharged because of the walkouts they had engaged in but did not say that he told her that Asked why he had not discharged them he merely replied that his heart was bigger than his mind and that he did not do so because of his friendship with their parents Harpley stated that he had never reported any 9 personnel difficulties to Arlene Dunn, although he had re- ported some occasional difficulties on sales or problems with customers Arlene Dunn testified that when she met with Harpley on the morning of November 5 his hands were shaking and his lips were quivering She told him that she had found some shocking things at the plant, such as parts being thrown, people being sprayed with paint guns, breaking windows out of the old house, washing up early, and taking breaks when they were not supposed to be taken, and he confirmed that all these things were true Harpley said he could not fire the Brookovers because they were personal friends, although he knew that they should have been fired He said they came from a nice family and he could not understand why they did those things in his plant She told him that the situation could not continue He said he thought ne could come back to work after he got to feeling better and she told him that if he was going to remain at the plant as a supervisor she thought he should do the discharging since if she did so, she would be jeopardizing the employees' view of him as a supervisor He agreed to come back and discharge the three men, but as they were leaving the restaurant he got in his truck and went in the opposite direction She then went to the plant and wrote out a list of the reasons she had for terminating the three men Her memo which she used at the termination inter- view was as follows I Ricky Lee Brookover 2 Jackie Ray Brookover 3 Raymond Leonard Starkey The above named people were dismissed at 10 00 A M, November 5, 1974, for the reasons listed below Reasons for dismissal 1 Slow down on job Failure to complete job as- signment on time 2 No respect for supervisors 3 Abuse company equipment 4 Taking unauthorized breaks, or taking longer time than permitted 5 Cause dissension among co-workers 6 Misconduct on job 7 Threaten bodily harm to Supervisor and fellow employees Arlene Dunn, District Manager She had Ankrom take the other men into the warehouse at the 10 a in break while she met with the two Brookovers and Starkey in the plant She told the three that it had been brought to her attention that over the past several months there had been a number of incidents in the plant which could not be tolerated, that Harpley was off sick and might be out for a week or so and because of their abuse of company equipment, taking unauthorized breaks, threaten- ing fellow employees, and threatening their supervisor, that they were terminated She stated that Jack Brookover and Ray Starkey stood up and started to go but Rick Brook- over took a step or two towards her and asked if she meant they were fired She said yes, and Rick Brookover took a few more steps towards her with his fist clenched and she thought he was going to hit her, and she backed away Rick 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brookover said they wanted their pay right then She told him that the pay was not made up at that office and that it would be mailed to them by special delivery within 24 hours She turned and started to leave and he followed her several more steps and said the Labor Board had said that they could have their pay right then She said that they might say that but their pay was not made up at that office and would be sent to them as she said She left and went on into the warehouse The version given by the Brookovers and Starkey is simi- lar in that they stated that she came out in the plant after Ankrom had taken the other employees to the warehouse and told them that Harpley was sick and might not be back and she was relieving them of their duties They said that Jack and Starkey got up to leave and she asked if they wanted to hear why they were being discharged and they sat down She told them that they were being discharged for threatening bodily harm to the foreman, for slowing down their work, for taking too long a break, and for walk- ing off their jobs According to them she also said there was no need for them to go to the Labor Board, because she had a letter signed by all the employees about ev- erything that they had done and there was no need to try to do anything to the plant or to Ankrom's house because she would have guards patrolling Rick Brookover said that they got up to leave and he asked if he could have his check, and she said that the check would be sent to them from Kentucky and they would have to wait until the end of the pay period I credit the version of the discharge conversation as giv- en by Arlene Dunn There was no indication to her or any other management official that there was any union orga- nization going on in the plant and she would have had no reason to refer to the Labor Board at the time of these discharges I believe that Rick Brookover mentioned the Labor Board or some similar agency in talking about their checks I do not believe that the Brookovers leaving their jobs was mentioned in that conversation since it did not appear in her memo The fuller statements in the document signed by the other employees that afternoon mentions these events Arlene Dunn went into the warehouse and met with An- krom and the other men and informed them that she had discharged the three and gave them her reasons She said that the men all nodded in agreement She told them she had been remiss in not coming down there sooner and asked if they had any questions or comments while she was there The men asked her various questions concerning the Company's benefits Dave Cunningham asked about being passed up for a pay increase, Everett Cunningham wanted to know whether his sister was a dependent on his hospital- ization plan and about savings bond deductions, and other questions were asked She told them she did not know the answers to all their questions but would find out and when she got the answers she would get back to them She con- cluded the meeting by telling them that she knew they did not get up at 8 a in to come to the plant to fool around and they were as important to the plant as the plant was to them and they expected a fair day's work for a fair day's pay Later that day she had a statement prepared of the events and at the 2 p in break she read it to them and asked them to read it over again and if they agreed with the contents of the document to sign it The document 2 was signed by the employees who were present After the 2 p in meeting Arlene Dunn called her home office and reported what she had found and what she had done She was asked if there was any chance that the dis- chargees might become angry and attempt to vandalize the plant, that chlorine gas could be dangerous She said she did not know and was advised to take safety precautions and get police protection It would appear that the Brookovers learned of these things later and transposed them into the discharge conver- sation Since this document refers to the walkout, General Counsel insists that this was part of the reason for the dis- charges, and that the discharges were in violation of Sec- tion 8(a)(1) since the three employees were being dis- charged for engaging in protected concerted activity These "walkouts" have been discussed above, and I have con- cluded that their nature was not such as to have prevented Respondent from disciplining those who engaged in them Further they were not the central causes of the discharges here I reject General Counsel's theory of an 8(a)(1) viola- tion here The General Counsel argues that there was no real rea- son for Arlene Dunn to have this document prepared and to send it on to company headquarters and that this was merely done to bolster the discharges and was not merely used as a basis for the discharges When we consider that Arlene Dunn had been in this job for less than 6 months and that there was a real up- heaval in the Proctor plant, which was under her jurisdic- tion, with a plant manager resigning and three employees being discharged, it is simple enough to understand a per- son being new in a responsible management position doing 2 The document is as follows The following events occurred on the approximate dates and were wit- nessed by the signers below 1 July, 1974, Demanded a break at 8 A M when they were refused and told if they took it at 8 A M they would not get one at 10 A M The Brookover brothers walked off the job, they were permitted to return to work 2 August or September, 1974, Decided to quit at 4 P M and refused to return to work 3 September, 1974, Threw washers and other cylinder parts around the plant when Joe Ebert told Supervisor Ankrom, Ebert was threat- ened with bodily harm 4 September 18 1974 Put axle grease on doorknob 5 September 18, 1974, Knocked or cut hole in ladies room wall, when patched, they repeatedly knocked it open again Hole put in ladies room ceiling 6 September 19, 1974 When told to speed up on cylinders, Jack Brookover said he was doing as much as everyone else and invited Ankrom outside to fight 7 October, 1974, Starkey dismissed for not properly cleaning ware- house floor prior to painting He had been shown how twice and Ralph Harpley worked with him for over 1/2 hour to demonstrate He refused to do properly When he was dismissed, Ralph took him home, when Ralph returned to plant Brookovers had walked off with others and did not return to work until Starkey was permitted to come back The above statements are true and correct [Signatures by eight employees] P B ANDS CHEMICAL CO I I everything that she could think of to explain the situation and her handling of the events to her superiors I do not find it unusual in these circumstances for Arlene Dunn to have secured every bit of information she could about what had been going on in this plant unknown to her so that she could explain to her superiors why the events had gotten as far as they did before something was done Joe Ebert testified that, several days after the three were discharged, he was stopped by them and a fourth man a short distance from the plant He said he was forced to pull over to the side of the road to keep from hitting them and because of oncoming traffic, and one of the men put his hands on the handlebars of his motorcycle and Jack Brookover "shoved" a union card towards him and asked him to sign it He said that Jack Brookover had been drink- ing, and he could smell beer on his breath and, when he said he had to hurry home to a sick wife, he was told to sign the card He said he did not have a pen and was given a magic marker and told to sign it He testified that, since Jack Brookover had previously threatened him and there were four of them standing around, he decided to sign the union card and did so and immediately left He reported to Ed Ankrom that he had been forced to sign the union card and Ankrom reported this to Swords who was to pass it on to Arlene Dunn She returned to the Proctor plant on the morning of No- vember 11, since by that time Harpley had made it clear that he was not going to return as plant manager That morning she was told that Ebert had been stopped and forced to sign a union card and wanted to talk to her about it She had a conversation with Ebert who told her that when he left work on his motorcycle on November 8, he had gotten just around the bend of the road beyond the plant when he was stopped by the Brookovers and Starkey and a fourth person He told her they surrounded him, thrust the union card at him, and told him to sign it and when he said he wanted to hurry home because his wife was sick they told him to sign it and had their hands on his motorcycle handlebars at the time When he said he did not have a pen he was given one, and he signed the card and was allowed to leave After receiving this information she asked Ankrom if he knew whether anybody else had been forced to sign a union card and he replied that he did not know She decid- ed to find out and called in the employees singly Accord- ing to her testimony, Bill Riggs came to the office and she told him how Joe Ebert had been forced to sign a union card and that in view of that she was concerned that per- haps some of the other employees had been forced to sign cards She said he did not have to talk to her about it and it would have no effect on his job whether he did so or not, that it would be voluntary if he wished to tell her anything along that line Riggs said that he had been pulled over by the group and asked to sign a card He told them that he was not signing He was told if he was a man he would sign it, and he replied that he was a man and was not going to sign it Dunn then talked to each of the other employees in the plant starting the conversations in the same way, reciting what Ebert had said and that the employees did not have to talk to her if they did not want to and that it would have no effect on their jobs at the Company but she wanted to know whether they had been coerced into signing union cards General Counsel's witness Arthur Moore indicated that Arlene Dunn spoke to him on two occasions and on one occasion with no preamble asked whether he had signed a union card, who had given it to him, and where and when it occurred However, on cross-examination his testimony changed somewhat and most of what would be considered 8(a)(1) aspects of interrogation were no longer left in his testimony He testified that he was told it was entirely vol- untary whether he talked to Mrs Dunn or not and that she did tell him about Ebert being coerced and wanted to know whether others had been coerced into signing Moore was a very suggestible witness and no violation of the Act could be predicated on his testimony Everett Cunningham originally testified that Dunn had questioned him on two occasions, but on cross-examina- tion his testimony was changed, and he testified she only questioned him on one occasion, and on that occasion had advised him about Ebert being coerced into signing a card and told him that he could talk to her on a voluntary basis if he wished, and whether he did or not it would not affect his job in any way Although according to her testimony she talked to all the employees in the plant about this problem, General Counsel's witness David Lee Cunningham was not asked about it and did not testify concerning it Arlene Dunn's questioning of the employees was not de- signed to find out whether they had signed union cards or not on the basis of the Blue Flash doctrine, but rather was based on a verified report to her of an employee being coerced into signing a union card The manner in which she went about asking the employees whether others had been coerced in a similar manner may not have been the most legalistic manner in which to ask such questions, but was properly motivated and did not have an inherently coercive effect on the employees insofar as I can de- termine I do not find that Arlene Dunn's conduct in making this inquiry as to whether employees were coerced into signing union cards by the discharged employees violated Section 8(a)(1) of the Act and I will dismiss that allegation In early December Arlene Dunn returned to the plant, met with the employees, and gave them some answers to the questions they had asked of her following the discharge of the three employees Among the things she admitted saying was the following "As far as your wages are con- cerned or your pay increases, I don't know why Mr Harp- ley did not put in for his reasons, his reasons are only known to him Until this was settled I couldn't agree on any pay increases because it could be interpreted as trying to buy your vote " Some of the employees stated that she referred to this Brookover thing or this union thing stating that the Com- pany could not give pay increases until this thing was over General Counsel urges that the pay increases were an automatic pay increase and that by making this statement the Respondent was denying proper pay increases to em- ployees and thereby violating Section 8(a)(1) of the Act Respondent takes the position that pay increases were 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not automatic but were periodic wage reviews done by the supervisors, with recommendations made after specific pe- nods of time as to whether the employees should receive wage increases or not It was clear that the Brookovers received wage increases as their time periods came up with one possible exception It is also clear from the testimony that some of the employees did not receive their periodic review with Harpley or get wage increases which they felt were due them in midsummer Whether the wage increases would be considered auto- matic or semiautomatic or applicable only upon review by a supervisor, Arlene Dunn's statement or announcement was tantamount to withholding all wage increases and re- views until the "thing" was over, which would have the effect of suspending any wage increases until the question of union representation or the charges brought by the Union against the Company had been resolved Whether as an automatic or singly determined increase, suspension of wage increases on this basis would have the natural ten- dency of placing the blame on the Union for the suspen- sion of wage increases Certainly Respondent was entitled to proceed either in granting wages in an automatic man- ner, if that was what it was, or a semiautomatic review and recommendation, since that was their practice and proce- dure and suspending a legitimate practice was error In either event Respondent should have proceeded on its reg- ular course of business and not suspended wage increases as Arlene Dunn said Respondent was going to do at this point This comment of hers violated Section 8(a)(1) of the Act A petition had been filed by the Union with the Na- tional Labor Relations Board for an election prior to De- cember 12, when she was at the plant and made this state- ment It is unknown whether Respondent has withheld any wage increases on that basis or not If it has, then it may have violated the Act by doing so, but such has not been alleged in a charge, and such was not litigated in the hear- ing Respondent might urge that this is an isolated violation of the Act since it occurred once, but this was a statement that was made to all of the employees in the plant at that time and as such this is not an isolated incident, but rather one incident which affects all employees and until or unless that statement was reversed and the employees were told precisely what their rights were and what would happen with their wage increases, it represents a deprivation of their rights under the Act, and I so find and conclude In regard to the 8(a)(3) allegation, there is no evidence that Respondent had any knowledge of the Brookovers' union activities prior to their discharge From the evidence it is clear that they strenuously sought to keep Respondent from learning of their activities and in this they were suc- cessful The "small plant theory" cannot supply the knowl- edge in this case under the circumstances extant here I find and conclude that Jack and Rick Brookover and Raymond Starkey were discharged for dust cause and that their discharges did not violate either Section 8(a)(3) or 8(a)(1) of the Act III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's December 1974 announcement that em- ployees would not be granted raises until the union matter was cleared up which I have found constitutes a violation of Section 8(a)(1), occurring in connection with Respondent's business operations as described in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY I recommend that Respondent rescind its announcement concerning pay raises for employees and that it be ordered to cease and desist from violating the Act in the same or similar manner On the basis of the foregoing findings and the entire record in this matter I make the following CONCLUSIONS OF LAW I P B & S Chemical Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By announcing that employees would not be granted pay raises until the union matter was cleared up, Respon- dent engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act [Recommended Order omitted from publication