D & E Tool Co.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D & E Tool Co. and United Steelworkers of America, AFL-CIO. Case 9-CA-10002 December 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 16, 1976, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting brief, and Respondent filed cross-exceptions. 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, as modified herein. 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, as modified below, and hereby orders that the Respon- dent, D & E Tool Co., Lesage, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Add the following after paragraph 2: "IT IS FURTHER ORDERED that, as to all alleged unfair labor practices not found herein, the complaint be, and it hereby is, dismissed." I The Respondent and the General Counsel have 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 DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case was heard in Huntington, West Virginia, on June 16, 1976, pursuant to a charge filed on February 2, 1976, and a complaint issued on March 31, 1976. The complaint alleges that at various times between November 1975 and January 1976, Respondent violated Section 8(a)(1) of the Act by threatening employees, coercively interrogating them, and engaging in surveillance of their union activities. The complaint further alleges that the discharge of James Larry Mayes on January 21, 1976, was caused by Mayes' activities on behalf of the Charging Party, in violation of Section 8(a)(3). Briefs were received from the parties on or about July 23, 1976. Upon the entire record,' and my observation of the witnesses, I make the following: FINDINGS 1. JURISDICTION Respondent is a West Virginia corporation engaged in the manufacturing of mining drills and equipment at its Lesage, West Virginia, location. During the 12 months prior to the issuance of the complaint, a representative period, Respondent had a direct outflow of products valued in excess of $50,000 which it sold and caused to be shipped directly to customers located outside the State of West Virginia from its plant in West Virginia. The answer admits, and I find, that Respondent is, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find, that United Steelworkers of America, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. IIL THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The record shows that a union organizational campaign began, at the initiative of some employees, at Respondent's plant in November 1975. The Union eventually won a representation election held on January 16, 1976, and was certified on January 26, 1976. The complaint alleges that subsequent to the advent of the Union in November, and prior to the election, Respondent engaged in conduct violative of Section 8(a)(1). The complaint further alleges that on January 21, 5 days after the Union won the election, Respondent discharged James Larry Mayes for his part in having brought the Union into the plant. B. The Facts As indicated above, Respondent manufactures drills and equipment. It has a complement of about 40 employees. Ronald Morrison, an employee, testified that in Novem- ber 1974, Respondent initiated an employee representation committee. Morrison said that Jack Klim, Respondent's general manager, told the employees that "he was going to Certain errors in the transcript have been noted and corrected. 227 NLRB No. 103 D & E TOOL CO. get something like a little union of our own started, so that we wouldn't have to pay union dues, and have another man to come in and tell us how to run our shop. So if we had any gripes or anything we could tell our representative, and he would tell Jack Klim, and then he would bring the answer back to us." The committee elected employee Joe Smith as its leader, but the employees were not pleased with his performance, and in June 1975, they ousted Smith and replaced him with Larry Mayes, the alleged discnminatee in this case. Mayes testified that the employees met in committee once a month, that he circulated among them to hear their complaints, and that he talked to Plant Manager Klim at least once or twice a week to discuss those complaints with Khm. Khm appeared to Mayes not to be very pleased with Mayes' persistence.2 According to Mayes, around November 1, 1975, he told the employees that he had been unable to make any progress with Klim about securing an insurance plan and a written retirement program. They decided to contact the Union. The record is somewhat hazy about who participat- ed in the union activity and to what extent. Mayes attempted to portray himself as the primary union instiga- tor. Internal contradictions in his testimony leave some doubt whether he was in fact the principal organizer, 3 but it would appear that he was at least one of the five chief organizers. Mayes testified that, after contact was made with the Union, he talked to "probably 15 or 20" employees, mostly those on the first shift with him, and that, at some point, he distributed "about five" authorization cards during the lunch period. Other employees who passed out cards, according to Mayes, were Morrison, Holland, Purdue, and John Mount. After the cards were signed, sometime in November, the Union sent a letter to Respondent demand- ing recognition. Respondent was thus on notice, as of November, that the Union was on the scene. John Mount testified that, about mid-November 1975, Foreman Donald R. McDowell, conceded to be a supervi- sor, asked Garry Holland "how Larry Mayes and Harold Purdue was [sic] getting along with the union." Holland answered that as far as he knew, Larry and Harold "was [sic] going all the way with it." McDowell replied that "he didn't figure they'd be there long enough to see it through." Holland substantiated Mount's testimony.4 McDowell denied the foregoing testimony, stating that he did not even know about the union organizational effort until mid- December. Mount and Holland appeared to be trustworthy witnesses ; I cannot say the same for McDowell, whose testimony seemed unlikely. I credit Mount and Holland and find that Respondent thus engaged in coercive interro- gation, gave employees an impression of surveillance of their union activities, and indicated to employees that union activities could result in termination, conduct clearly violative of Section 8(a)(1). Employee Ronny Hoover testified that around the latter part of December, Foreman Frank Stewart, an admitted 2 The foregoing is not alleged to constitute a violation of the Act, but was admitted as possibly relevant background material. Khm did not testify as to the genesis or the operation of the committee , and I credit the testimony of Morrison and Mayes on this point. 3 For example, his testimony that he "was the first to know" of the date of the election was followed, on cross-examination , by the statement, "I'd say I 637 supervisor, asked him how he was going to vote. Hoover said that he would vote for the Union. Stewart said he "was making the wrong move." Jerry Mount, brother of John Mount, testified to three alleged unlawful acts by Foreman Stewart. Mount said that, in the first part of January 1976, Stewart asked him "how I felt about the union, and how I was going to vote." Mount replied that he "felt that the union should come in, and I was going to vote for it." A week before the election, Mount testified, Stewart said "he seen [sic ] my car parked down by Purdue's house, and he asked me what part I had to play in the union." Support for this testimony was given by Ronny Hoover, who said that he overheard a conversation between Jerry Mount and Stewart in which Stewart "asked Jerry what he was doing up at Purdue's house, was he planning the union." Finally, Mount testified that, on the day of the election, while he and Stewart were talking, Stewart "told us there was going to be 14 of us fired over this." Mount responded that his brother, Ivan Mount, another employee, had been talking to General Manager Klim, who had said that no one would be fired because of the union activity. Stewart replied that Klim was "the biggest liar in the state of West Virginia." Mount asked Stewart for a list of the 14 employees; Stewart named "Larry Mayes, Johnny Mount, Ivan Mount, Ronald Morrison, and Harold Purdue." Stewart told Mount that he would bring the list to Mount's house. Employee Gregory Shepard testified in support of Mount's testimony in this latter respect. He says he heard part of the conversation between Stewart and Mount in which Stewart said "there was supposed to be a list of people that we're trying to get rid of." On cross-examina- tion, Shepard said that what Stewart said was "that they had so many people that, you know, they thought was involved in the union that they thought they'd try to get rid of before the election." The reference to getting rid of people "before the election" seems peculiar, since the incident was supposed to have taken place on the day of the election. However, Shepard was some 6 to 8 feet away from the primary conversants, a machine was running, and he may not have understood the statement correctly. Stewart generally denied the foregoing testimony. Al- though he appeared only briefly on the witness stand, I was unfavorably impressed with Stewart. While the testimony of the employees recited above contains some minor discrepancies, I thought that their demeanor showed them to be credible witnesses. I credit the employee witnesses and find that Respondent, by its Supervisor Stewart, violated Section 8(a)(1) by threatening an employee, by telling employees that the employment of other employees was in jeopardy because of their union activities, and by was one of the first to know," even though his account on direct of how he acquired the information would seem to leave no question that he was "the first" to know. 4 Although Holland appeared to be nervous at the beginning of his testimony, and at first omitted the final alleged threat by McDowell, he added it almost immediately thereafter. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercively interrogating them, in November and December 1975 and January 1976. 5 Certain of the 8(a)(1) violations discussed above are directly relevant to the discharge of Larry Mayes on January 21, 1976. I discuss the other testimony relating to the Mayes' case hereafter. Larry Mayes was employed by Respondent on April 4, 1974. The record is unclear as to what position he was hired into, or what he did for the first year of his employment. It shows only that on May 27, 1975, he became what is referred to as a class I welder, the sole employee working full-time in that classification as of that date and thereafter. As set out above, Mayes became the head of the employee committee in June 1975 and, according to his uncontradict- ed testimony, actively pursued the duties of that position. According to the testimony of General Manager Klim, Respondent moved into a new building in January 1975. In April 1975, and prior to the appearance of the Union, Respondent purchased some meters designed to measure the usage of welding machines. 6 According to Klim, the purchase of these meters was part of a management control program designed to ascertain flaws and bottlenecks in the production process. Khm testified that Respondent was using other kinds of counters in connection with other types of machines in the plant for the same purpose; although he did not specifically so state, I would assume that these devices were purchased along with the meters in the spring of 1975. 7 According to Klim, the meters were put on the welding guns, at least tentatively, in June 1975 and some sort of effort was made to keep production records. Apparently this did not work out. A more formal program was initiated, he testified, on October 27, 1975, at which time two welding machines had meters on them. 8 Thereafter, according to Morrison, one of the employees who operated welding machines to which the meters were attached, the foreman on each shift kept a record on the amount of use of the machine by the welders on a "pretty regular" basis. 9 Beginning in May 1975, Mayes, as discussed, became the class I welder in the plant and was primarily responsible for the welding of augers. Morrison, as previously indicated, had been the class I welder from April 1974 until July 1975, and then became a forging machine operator; however, he did some welding on the night shift. A part-time class I welder named Guy Martin was also working; there is no S The fact that Jerry Mount believed that General Manager Klim had said that no employees would be discharged because of their support of the Union does not remove the sting from Stewart's remarks to him on January 16, especially since Stewart called Khm a liar. a While Respondent did not introduce into evidence the purchase order for this equipment, Klim testified that he had shown it to the Board agent General Counsel did not attempt to rebut Klim 's testimony as to when the meters were purchased, and I do not think that he would lie about the date of their purchase, a matter easily ascertainable. 7 It also appears that records were not just kept on the two welding machines. Asked if records were "maintained on all the welders," Production Manager Gerald Urffer testified, "Certainly . All the welders, every job " 8 Ronald Momson testified that a meter was installed on his welding machine "about November" 1975. Momson testified that he had been the class I welder until July 1975, when he became a forging machine operator Thereafter, according to Urffer, the production manager, Momson "some- times would work the welding job in the evening " To what extent he did so during the summer of 1975 is undisclosed . The memory of most of the indication as to how much welding work he did. An employee named Barton was being trained to weld. Mayes' job was to weld "flight" on the augers. "Flight" is a material which is wrapped, apparently in a circular fashion, around an auger, which is a rod of varying lengths. Mayes' job entailed not only the actual operation of a welding gun, but also a number of other manual functions. The augers produced by Mayes accounted for about 10 percent of Respondent's annual volume. According to Production Manager Urffeer, while an accurate assessment of employee performance on other types of welding could be made by counting the number of pieces produced by the employee because each piece required the same amount of weld, on Mayes' job, where "you're welding scroll on augers. . . depending on the pitch of the scroll, the actual amount of weld metal laid down would be difficult to tabulate, just from the number of pieces, so the best way to get an indication of what was happening at that job was with the meter." Apparently, there were no formal complaints about Mayes' performance from the time a meter was installed on his welding machine in October until sometime in Decem- ber. However, Mayes indicated that there had been complaints on the work floor by testifying, in answer to the question whether he had ever been counseled pnor to his first session with Urffer, to be discussed below, "No-not in the office I wasn't." Later, he testified that, pnor to being called in the office the first time, "I was criticized on different dates." Prior to his first counseling by Urffer, Mayes testified, in. a discussion with Klim around Decem- ber 2 in which Mayes was acting as the representative of the employee committee, Klim said that the employees had "tried to get a union in 7 1, and he said he was going to do his best to prevent it." Klim also said "the union's on the bad side of me yet." Klim testified but did not deny this conversation. Sometime in December, Mayes was called in by Urffer for a counseling session . The date of this incident is in question, as is the date of a second counseling session between Mayes and Urffer. Mayes testified that the first session occurred on December 11, and the second on December 19. Urffer testified that the first occasion was December 19 and the second occasion was January 9. I am inclined to accept the dates given by Urffer. Aside from the fact that Mayes was not a very convincing witness, particularly in discussing these two sessions, it would employee witnesses as to dates was not impressive , and I tend to accept Klim's testimony that the meters were used, at least to some extent , prior to November 1975, and that the present system of recording the measurements was introduced on October 27, 1975, prior to the advent of the Union. 9 Although Momson was a partisan witness, he gave testimony damaging to Mayes, and I would think that his testimony in general was trustworthy However, I am not so sure about this with respect to his testimony regarding the use of the meters. Momson said that the himself.13 each shift recorded the usage of the welding machine as shown by the meter beginning in November 1975 but that this was not "done every day," "that I could see " He went on to say that after Mayes was fired, "I never seen [sic ] anyone read them." He then testified, however, that his foreman, McDowell , stopped taking readings "shortly after" Mayes was fired and, asked whether pnor thereto readings were taken "on a daily basis," Morrison answered, "Yes, sir." In any event, since Morrison was on a different shift from that of the full-time class I welder , he was in no position to testify whether the readings continued to be taken on that shift after Mayes was discharged D&ETOOL CO. appear that he based his recollection of the dates of the two sessions on notes he kept in a diary. The diary was offered into evidence by General Counsel without any attempt to explain the mysterious notes contained therein. The proffer was rejected, with an indication to counsel for the General Counsel of a more appropriate method for putting the diary into evidence. The invitation was never followed up. However, Respondent put into evidence two pages of the diary. The diary was represented by Mayes and counsel for General Counsel to be just what the name imphes-a chronological listing of daily events.10 The pages entered into evidence by Respondent contain the following consec- utive entries: Arrowood - went home earley [sic] Friday - 12- 12-75. Carl - went home early Friday 12-19-75- I was call in office about my work - 12-11-75. Call again [sic] on - 12-19-75. He Jerry said I was getting better. The above sequence, which has an entry referring to December 11 subsequent to entries of December 12 and 19, indicates that the two notations made by Mayes regarding when he was called into the office were entered together and probably at some time after both instances occurred, rather than as they occurred. Mayes testified that, when he was called into the first counseling session with Urffer, the latter told him that he was not putting in enough time welding, as disclosed by the records being kept on the meter readings. Mayes' testimony is very unclear as to whether Urffer referred to a single day's work or a week's work, but he finally agreed that the records shown to him by Urffer were "an indication of your production for a period prior to December 11." According to Mayes, Urffer also "brought up about the Union," saying "he wasn't afraid of the Umon. He said he wasn't worried about the Umon. He said they had records to show up in court, that proved that he was right." Urffer testified that at the first session he told Mayes that "he was not performing up to an acceptable level," and showed him the records on his performance. He also said that he told Mayes that he expected him to spend somewhere between 3-4 hours of a 7-1/2 hour day in actual welding. He further testified that Mayes "immediately blew up, accused us of trying to get him, and it was very hard to talk to him." Mayes conceded that, at the first counseling session, he told Urffer that he "could produce more work but that [he] dust [wasn't] obliged to do so." 11 When asked why he had stated that he did not feel that he was "obliged" to do more work, Mayes gave unsatisfactory testimony. First, he referred to the fact that he could not get a new cable and 10 There is some conflict in the record as to when Mayes began keeping the diary. General Counsel, in attempting to explain what the diary consisted of, said that it was "a daily diary compiled by Mr Mayes from prior to this meeting of December II, and the diary becomes more detailed after December 11th" Shortly thereafter, however, Mayes, when asked if he recalled keeping "a record of your daily activities at the plant," said that he did and that he "started right after I was called in the office for the first time " 639 therefore spent a lot of time working on his welder when he could have been welding. When it was pointed out to him that the foregoing problem had no relationship to his expressed feeling that he was not "obliged" to produce more, Mayes said he did not feel obliged to do more "at the time, when they describe me the way they were doing me." He went on to say that what they were "doing me" at the time was to require him to use a very thin wire to do the welding while the part- time welder was allowed to use a heavier wire, giving him less trouble. Urffer testified, on the other hand, that when Mayes said that he did not feel obliged to perform more work than he was getting out, he explained by saying that Morrison, who was doing some welding, was receiving the bonus that all forging machine operators received, and that Mayes thought that he also should receive such a bonus. Urffer presented a very favorable appearance; his testimony makes sense to me, especially in view of the alternative explanations given by Mayes, neither of which satisfactorily explains his state- ment that he could, in fact, have produced more, but did not feel obliged to; and I credit Urffer on this point. I further believe that Urffer did not, as Mayes testified, bring up the subject of the Union. The context does not logically support that claim. I think it more likely, given Mayes' apparent temperament, that, as Urffer testified, Mayes "accused us of trying to get him" because of the union effort, and that some discussion of that assertion followed. The next counseling session, according to Urffer, oc- curred on January 9. Urffer testified that he showed Mayes his production records from December 19 to January 8 and "showed him that his average had not improved, but that there were several days in there that he had made over 3 hours, he was working over 3 hours, his welder was running, and to me that indicated that he could do it, and I told him if he would just change his attitude and do what he was capable of, everything would be all right." Mayes merely said "OK," and left. According to Mayes, the second session occurred on December 19, when Urffer called him in, said, "I was getting better," and nothing more. Mayes thanked him and left. Mayes' version of this second session is difficult for me to reconcile with the real world. At a small manufacturing plant, I do not believe that production managers call employees in 1 week after they have been chastised for poor production simply in order to inform them that they are doing better. Furthermore, Respondent's compilation of Mayes' per- formance between December 12, 1975, and January 16, 1976, would not objectively support such a conclusion. 12 On the 4 days between December 12 and 18 during which II Mayes seemed somewhat taken off guard when asked about this on cross-examination 12 This summary was admitted into evidence without objection from General Counsel General Counsel had prior access to Respondent's basic records The transcript strongly suggests that the figures shown on the compilation do not differ materially from the figures which Mayes himself had been keeping in his diary 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records were kept on Mayes, he used the welder 36.6 percent of the time. On the 12 days between December 19 and January 9 during which records were kept, he used the gun 37.3 percent of the time. Thus, regardless of the dates of the two sessions, Mayes' performance would not likely satisfy an employer who had set a standard of 50-60 percent as the proper amount of time to be spent operating the welding machines. Only one reason comes to mind which might explain Urffer telling Mayes nothing more than that he was doing better. That would be that Urffer was deliberately trying to lull Mayes into a false sense of security. Having observed Urffer and Klim, I reject the suggestion that they conceived such a diabolical ploy. Even if this counseling session were part of an overall plan to set Mayes up for a fall, it seems much more consistent with human nature to have spoken to Mayes on the basis of what the record showed-that his performance had not materially improved and that he had better watch himself.13 I think it more probable that, as Urffer testified, Mayes was not called in again until January 9, after Respondent had compiled 12 more workdays of experience on Mayes, and at that time was told what Respondent's compilation shows: that Mayes was continuing to operate his machine at an average below 50- 60 percent.14 On January 12, when the buzzer rang for the start of Mayes' shift, he was in the bathroom. When he came out, he was dressed down by Foreman Adams for having failed to be at his station before the buzzer rang. Mayes and employee Holland testified that this was an unannounced change in policy; they said that prior to this date it had been Respondent's policy that employees awaiting a shift change would not report to their stations until the buzzer rang. When Adams reproved Mayes, an argument ensued. At the hearing, Mayes testified that he became "hot" during this argument and admitted, "I got madder than he did." Adams reported the incident to Klim, who came out to see Mayes. Klim, saying, according to Mayes, "Ralph didn't get as mad as you did, and you go home," suspended Mayes for I day. Neither the criticism nor the suspension is alleged as a violation of the Act, and I take it that the basis for this suspension was, as Mayes conceded, that he "got madder than [Adams] did." 15 The election, won by the Union, was held on January 16. On January 21, according to Urffer, Klim approached him and said, "It's about time we checked. It's been a couple of weeks since the last time. It's about time we checked out Larry's progress." Urffer and Klim looked over the figures derived from the meter, discussed the fact that Mayes' performance had not improved, adverted to his "flareup" with Adams and his earlier statement that he could perform 13 Mayes, in fact, testified that subsequent to December 19 Foreman Adams "complained about my welding on different occasions." Thereafter, however, he testified that after December 19 "nobody said anything about my work . until the day I was fired." 14 During that period, Mayes did not on any day operate the welding machine for more than 48.5 percent of the time. 15 Mayes insinuated at the hearing that there had been some skulduggery afoot in the matter of the starting position . He said that, prior to the Union's demand letter, employees on his shift would go to their positions before the more but did not feel obliged to, and decided that they should terminate Mayes . One other management represen- tative was present at the meeting. His name is Riley Brothers. At the time in question, Brothers was the purchasing agent. Urffer referred to him as one of the three top management personnel , the other being Urffer and Klim. 16 At quitting time that day, according to Mayes, Brothers called Mayes in, told him that he had been called into the office twice, that he was not improving in his work , and that he therefore had to be discharged. According to Mayes, Brothers told him to leave the plant . When Mayes told Brothers that he had to wait for employee Holland, who rode with him, Brothers "told me to go right on out of the plant, and if I didn't he was going to call the law on me." Brothers did not testify at the hearing, and no reason was given for his failure to testify. On April 1, 1976, apparently after some bargaining had taken place, the employees went on strike. The complaint does not allege that the strike was an unfair labor practice strike. The question of what really motivated the Respondent to discharge Mayes is not easily answered. After careful deliberation, I have concluded that, despite the fact that there is ground for suspicion, this is one of those cases in which I cannot second-guess the Respondent's claimed reasons for its conduct. Respondent's knowledge of Mayes' union activity is, I think, likely. The plant is a small one. I have credited the testimony of John Mount and Gary Holland that, in mid- November 1975, Foreman McDowell asked how "Mayes and Purdue" were getting along with the Union . I have also credited the testimony of Jerry Mount that Foreman Stewart, on January 16, named Mayes as one of the "14" employees who would be fired because of the union activity. Although I am not certain from this record that Mayes was, as he claimed, the principal instigator of the Union, it is apparent that he was one of them . I think the testimony of McDowell, admitting that probably sometime in December, another supervisor told him that "there was a meeting at Purdue's house and they signed cards," suffi- ciently indicates that Respondent was aware of what was going on and who was involved. Motive, however, is considerably more of a problem. As an original matter, I had difficulty understanding why it was necessary to measure Mayes ' performance by the use of a meter; it would seem that his production could have been adequately evaluated merely by keeping an account of the number of various sized augers produced by him each day. The General Counsel's brief, however, makes no attack on that score; he argues, rather, that the production standard buzzer rang, but once the letter was received, "they stopped me from going back-nobody was allowed to go back to work until after the buzzer rang." The implication is that Respondent intended to prevent Mayes from visiting the employees on the preceding shift If this were so, it seems unlikely that the policy would have been changed back just 4 days before the election, thus allowing Mayes to contact the other employees at a critical time 16 At the time of the hearing , Brothers had become the production manager D&ETOOLCO. 641 of 50-60 percent is suspect. This sparse record simply gives me no basis for concluding that use of a meter to assess Mayes' performance was not appropriate. Indeed, the fact that such devices are manufactured suggests that there is a valid use for them. Klim's testimony that the meters were purchased in April 1975 refutes any claim that the whole measuring system was installed simply as a reaction to the organizational effort, since the latter did not begin until November 1975. I also accept Klim's testimony that some preliminary efforts toward measuring performance were made in the summer of 1975 and that the system which eventually led to Mayes' termination was instituted on October 27, 1975.17 This date is of significance, since the organizational effort did not begin until the first part of November 1975. The 50-60 percent standard adopted by Respondent for Mayes' performance was determined, according to Urffer, "from past experience, and from a few instances where we had checked before on other welders," including Mayes. Klim, who had been present during Urffer's testimony, added that the figure had been reached after some discussion with Foreman Adams, who had worked as a welder in the shop. The most important testimony on this issue, from Respondent's point of view, came from employ- ee Morrison, who acknowleged that he was "one of the Union's leaders" and a member of the two-employee bargaining committee. Morrison, who was the class I welder from April 1974-May 1975, testified that his experience had been that an average of 50-0 percent of his time spent in actual welding would be a "reasonable" requirement and that he had "probably" worked at that average in the time that he worked as the class I welder. Moreover, Morrison conceded that he had sometimes complained to Foreman McDowell about the fact that Mayes was not performing adequately.18 Mayes testified that Morrison was a "capable" welder who knew "how much work a person ought to put out in a day." It seems to me that I must regard Morrison's testimony as important substantiation both of the propriety of the standard applied by Respondent and of its claim that Mayes was not performing adequately. The case for finding discriminatory treatment is also considerably weakened by Mayes' admission that, at the iT Khm testified, "Through the questioning of Mr . Crane [the Board agent ], we found out that the format we had at the date that we presented in those exhibits, were instituted on October 27, 1975 " This sounds reliable October 27 was a Monday Urffer testified that the system started "in rough form, in November " He then went on to say that the 50-60 percent standard was based on past experience and "from a few instances where we had checked before on other welders, and actually Larry's time was before." This seems to support Klim's testimony that there had been some preliminary attempt to use the system prior to November. I note that General Counsel apparently subpenaed the relevant records and did not offer to prove to the contrary 18 The transcnpt shows that the following exchange took place on cross- examination• Q. (By Mr. Schaub) Mr. Morrison, did you ever complain to Mr McDowell about the fact that Mr. Mayes wasn't getting out much production, wasn't welding very many augers? A. Some days, if I'd have to go in, I'd have to go in- While Momson's response, in cold punt, is cryptic, it was very clear at the hearing that he intended to answer the question in the affirmative My own first counseling session, he told Urffer that he could perform more productively, but did not feel obliged to do so. As stated above, I found Mayes ' explanations of why he made such a statement to be unacceptable, and I have credited Urffer's testimony that Mayes explained that he was failing to perform at maximum efficiency because he thought he was entitled to a bonus which was being received by Morrison. By making such a statement, Mayes displayed an attitude which Respondent might, most properly, hold against him. The record of Mayes' perfor- mance between the first counseling session and the second one does not show any meaningful improvement in Mayes' performance, and a reasonable employer might well have assumed that Mayes was continuing to cling to his belief that he was not "obliged" to perform at the higher standard of which, he agreed, he was capable. On January 12, Mayes had an argument with Foreman Adams. He conceded, as discussed above, that he "got madder than Adams." He was suspended by Klim for 1 day. 19 Although I feel somewhat uneasy about Klim's approach to Urffer on January 21 to check into Mayes' performance as recorded since the last counseling session, it cannot be considered an unreasonable thing for him to have done, especially in the light of Mayes' demonstrated attitude to- ward Adams on January 12, shortly after Urffer had last spo- ken to Mayes (Urffer had reported the session to Klim). 20 On the 5 days shown in the record in which Mayes had welded between January 8 and 21, his average was 34.65 percent, which does not approach the 50-60 percent standard deemed acceptable. It was therefore not without some reasonable warrant that Khm decided that Mayes could not be brought to a satisfactory level of production and concluded that he should be terminated. One might wish that the record had been more fully developed along certain lines. It would be up to General Counsel to establish that Mayes had been disparately treated; by the end of General Counsel's case, it was suggested, but not established, that Mayes was the only one singled out for recording and counseling. However, Klim then testified, without rebuttal, that there were counters on other machines besides the welding notes on his reply read, verbatim, as follows - "Morrison some times complained about Mayes' production " Subsequently, in the cross-examina- tion of Mayes, the following question and answer occurred without objection- Q. Did you hear Mr Momson say earlier that he complained some times because he didn't think you were putting out enough work? A. Yes 19 This was Mayes' second recent argument with Adams. The prior one had occurred on the morning of his first counseling session His affidavit states that he had lifted his mask "for a few moments" when Adams told him to stop standing around Although Mayes testified that he told Adams that he, Mayes, "wasn't womed about it, because I was doing my work," his affidavit states, "I told Ralph that if I was him, I wouldn't worry about it " 20 Klim also testified that Urffer had spoken to him before Urffer talked to Mayes on December 19, Urffer saying that Adams "was complaining he was having trouble with him " In addition , he testified that Mayes, to his knowledge, had acted rudely during the December 19 interview with Urffer "[on] December 19th, the secretary asked me to go in Mr Urffer's office, because of the shouts and screaming coming out of there " 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machines, and Klim also indicated that other employees have been discharged in the same manner as Mayes.2i Thus, there is no basis in the record for a conclusion that Mayes received special treatment. Mayes himself indicated at the hearing that Respondent had, in the past, not been reluctant to discharge employees. He testified that one of the reasons he told employees a union was needed was "the way they went about firing several people." He also mentioned "the incident when Joe Smith got fired and the men wanted to find out about it, and Jack Khm told me he had his reasons, he had good reasons for firing him." I deduce from this that Respondent had, prior to the advent of the Union, a history of discharging employees in circumstances where an outsider might disagree with Respondent's reasons for doing so. Of considerable significance is the fact that Mayes was not discharged until 5 days after the Union had won the representation election. Thus, although in November, McDowell had opined that "he didn't figure [Mayes and Purdue would] be there long enough to see it through," the fact is that Mayes was not discharged until the Union had won the election (and Purdue was never discharged). It seems to me that for any substantial value to be realized from, as General Counsel alleges, constructing a plan for the eventual termination of Mayes-the creation of a spurious production standard, two counseling sessions, etc. - it would be necessary to discharge Mayes before the election. This rather elaborate scheme would not yield much fruit if the Union had already won the election. And yet Mayes was not discharged until after the election. It is true that I have found that, on the day of the election, Foreman Stewart stated to Jerry Mount that 14 employees, including Mayes, would be fired "over this thing." Stewart had been a foreman for 3 years at the time of the hearing and, in my judgment, probably was not very close to the seat of power.22 Furthermore, as Jerry Mount testified, he told Stewart his brother Ivan had talked to Jack Klim and that Klim had told Ivan that "there was not going to be no one fired over this." This latter statement reported by Jerry Mount was not developed; Ivan Mount did not testify. The indication from Jerry Mount's testimony (sponsored by the General Counsel) is, however, that Klim was making something of an effort to assure the employees that there would be no reprisals taken for their union activity; he was, i.e., not merely maintaining a studied silence, but w;; making an active effort to assure employees-at least, employee Ivan Mount-that no serious consequences would flow from instigation or selection of the Union. There are matters which give me pause. For example, Mayes, as indicated, testified, without contradiction, that in December Klim told him he was going to "do his best" to prevent the Union from coming in. While this indicates a determined opposition, the fact is that Mayes could have been discharged before the Union was elected, thus putting to best advantage the record of his counseling sessions with Urffer and his confrontation with Foreman Adams; Mayes, however, was not discharged until after the election. There is, as well, the uncontradicted testimony of Mayes about the hostile manner in which Riley Brothers treated him on the day of his termination. There is the testimony-uncer- tain, to be sure-of Morrison that Respondent stopped recording his welding performance when Mayes was fired, or shortly thereafter; Respondent did not bother to answer this assertion. There are other items, previously discussed, such as my own doubts about the utility of the meter system in checking on Mayes' performance. But when these bits and pieces of adverse material are set against the admissions made by General Counsel's witness- es and are viewed in the light of my preference, from a demeanor standpoint, for Urffer and Klim over Mayes, I am constrained to conclude that the evidence favoring General Counsel, at the very best, is not enough. The Board has recently repeated that the Act "does not require that an employer act wisely, or even reasonably; only, whether reasonable or unreasonable, that it not act discriminaton- ly." Paramount Metal & Finishing Co., Inc, 225 NLRB 464 (1976). Since the General Counsel has the burden of proving his case by a preponderance of the evidence, I must accordingly recommend dismissal of the 8(a)(3) and (1) allegation relating to the discharge, on January 21, 1976, of James Larry Mayes. Indeed, taking into account the concessions made by General Counsel's witness Morrison and by Mayes himself, and given the timing of the discharge, I do not see how I could convincingly rationalize a conclusion to the contrary. CONCLUSIONS OF LAW 1. D & E Tool Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in coercive interrogation of employees, by threatening an employee, by indicating that participa- tion in union activities could result in termination, and by giving employees the impression that their union activities were under surveillance, in November and December 1975 and January 1976, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Other than the foregoing, Respondent has not violated the Act as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. 11 "When they weren't up to an acceptable level, we brought them in and can say, at least to my knowledge, everyone that had been counseled, we always counseled them twice before they were discharged for not working at were never met with an aggressive response until December 19." _ an acceptable level. Often times we found there was other problems where a zz In December 1975, he supervised only five employees on the night fellow had health problems or home problems or other things And I think I shift. D & E TOOL CO. 643 Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this case, I hereby issue the following recommended: ORDER23 u In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order Of The National Labor Relations Board" shall read "Posted Pursuant To a Judgment of The United States Court of Appeals Enforcing an Order of The National Labor Relations Board." The Respondent, D & E Tool Company, Lesage, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening and coercively interrogating employees with regard to their union activity, sympathies, or member- ship, and giving employees the impression that their union activities are under surveillance. (b) In any like manner, -interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its place of business in Lesage, West Virginia, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent, 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. za 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. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargain- ing with us To act together for your common interest or protection And to refuse to participate in any or all of the foregoing activities. WE WILL NOT coercively interrogate or threaten you because of your union membership, sympathies, or activities, or give you the impression that we are spying on those activities. WE WILL NOT in any like manner interfere with, restrain, or coerce you in the exercise of your right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. D & E TOOL Co.