Electric Hose & Rubber Co.

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electric Hose & Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Cases 17-CA-6777 and 17-CA- 6940 March 22, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On November 16, 1976, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, Charging Party filed a brief in support of the Administrative Law Judge' s Decision, General Counsel filed a motion for modification and clarification of the Administrative Law Judge's Decision, and Respondent filed an opposition to the General Counsel's motion. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. We agree with the Administrative Law Judge's finding that Respondent terminated employees Leon- ard O'Dea and Steven Goldsberry because of their activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. We do not adopt, however, his finding that O'Dea's discharge was also violative of Section 8(aX4). His Decision contains no analysis of evidence which would lead to such a finding and we fmd nothing in the record to support the finding of such a violation. We therefore dismiss the complaint insofar as it alleges a violation of this section of the Act. The complaint also alleged that Respondent creat- ed the impression of surveillance of, and economic reprisal for, employees' participation in activities on behalf of the Union, and that it threatened employees The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 . We also find totally without merit the Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge . Upon our full consideration of the record and the Decision of the Adnumstrative Law Judge, we perceive no evidence that he prejudged the case, made prejudicial rulings, or demon- strated a bias against the Respondent in his analysis or discussion of the evidence with economic reprisal in the event the Union won the then-pending election. Based on the credited testimony of employee Dorwart, the Administrative Law Judge found that Respondent had violated Section 8(a)(1), substantial- ly as alleged in the complaint, and we agree that the record supports such findings. However, in his Conclusions of Law and recommended Order, the Administrative Law Judge erroneously states that Respondent unlawfully questioned employees about their union activities and orders it to cease and desist from such activities. At the same time, he failed to mention that Respondent had created the impression of surveillance, nor does he order it to cease such activity. We will therefore correct this apparent inadvertence and correct the Conclusions of Law and the recommended Order. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 2 and 4. "2. By creating the impression that Respondent was engaging in surveillance of employees' union activities and by making threats to employees con- cerning their activities on behalf of the Union, the Respondent violated Section 8(a)(1) of the Act. "4. By discharging Leonard O'Dea, the Respon- dent violated Section 8(a)(3) and (1) of the Act." 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, Electric Hose & Rubber Company, McCook, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order as modified herein. 1. Substitute the following for paragraph 1(a): "(a) Unlawfully creating the impression that em- ployees' activities on behalf of the Union are being kept under surveillance or threatening them with reprisal for engaging in union or protected concerted activities." In the second paragraph of sec. II, A and in the first paragraph of sec. C of his Decision, the Administrative Law Judge attributes to Foreman Gavers the remark pertaining to the Union's losing the upcoming election-having to wait a year before it could campaign again-and that there would be no union supporters left working at Respondent's plant by that time. In other sections of his Decision, he attributes this remark to Plant Manager Bergeron. The record is clear that the remark should be attributed to Bergeron. It appears that the Administrative Law Judge was in error when, in the 22nd paragraph of sec. B of his Decision, he attributed to the testimony of Goldsberry the statement that Bergeron was in the lunchroom when Goldsbeny was soliciting on behalf of the Union. 228 NLRB No. 109 ELECTRIC HOSE & RUBBER COMPANY 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT create the impression that we are engaging in surveillance of employees' union activities or threaten employees with reprisals because of their union activities. WE WILL NOT discharge or otherwise discrimi- nate against any employee for joining or assisting a labor organization or engaging in other activity protected by the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of any right guaranteed under Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such right may be affected by an agreement requiring membership in a labor orga- nization as a condition of employment, as autho- rized in Section 8(a)(3) of the Act. WE WILL offer immediate reinstatement to and make whole Steven H. Goldsberry and Leonard O'Dea for any loss of earnings each may have suffered by reason of our discrimination against him. ELECTRIC HOSE & RUBBER COMPANY DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Administrative Law Judge: The hearing in this consolidated proceeding was held on 5 days in McCook, Nebraska, commencing on May 20 and concluding on June 11 , 1976, based on charges filed by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, herein called the Union, on October 6, 1975, in Case 17-CA-6777, and a further charge filed by the Union on January 28, 1976 , in Case 17-CA- 6940. On March 5, the Regional Director for Region 17 issued a complaint in Case 17-CA-6777 and, under date of March 11, the Respondent, Electric Hose & Rubber Company, filed its answer. The complaint in Case 17-CA- 6940 was issued by the Regional Director on March 19. Under date of March 25 , the Respondent filed its answer. On March 26 the Regional Director issued an order consolidating the cases and rescheduling the hearing. i The unopposed motion of counsel for the Respondent to correct the record is hereby granted. 2 In the Respondent's brief, reference is made to a Charles Gavers, 967 Briefly stated, the complaint in Case 17-CA-6777 alleged that the Respondent, on or about September 29, 1975, discharged Steven H. Goldsberry, an employee, and, at all times thereafter, failed and refused to reinstate him. By these acts, the complaint alleged that the Respondent had discriminated with respect to the hire and tenure of employment of Goldsberry and thereby violated Section 8(axl) and (3) and Section 2(6) and (7) of the Act. In Case 17-CA-6940 the complaint alleged that the Respondent had engaged in further violations of Section 8(a)(1) and had, by terminating Leonard O'Dea, violated Section 8(a)(3), (4), and (1) of the Act. The Respondent, in its answer dated March 25, denied these allegations. Upon the entire record in the case, and my observation of the demeanor of the witnesses as they testified, and after consideration of the briefs filed with me by counsel for the Union and the Respondent on July 30 and August 2, respectively, I make the following: I FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, is engaged in the manufacture of rubber hose and related products at its plant in McCook, Nebraska. Admittedly, the Respondent, in the conduct of its operations at its Nebraska plant, annually sells in excess of $50,000 worth of products directly to customers located at points outside the State of Nebraska and annually purchases in excess of $50,000 worth of supplies from concerns outside the State of Nebraska. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is now and has at all material times been a labor organization within the meaning of Section 2(5) of the Act. It is also admitted, and I find, that the following persons at all material times were agents and/or supervisors of the Respondent within the meaning of Section 2(13) and (11) of the Act: Tom Bergeron, plant manager; Steve Peres, foreman; and Rex Poore, foreman. However, the Respon- dent denies that Charles Graves 2 occupied the position of foreman. The complaint alleged that the following individuals, on the dates indicated, created the impression of surveillance of, and economic reprisal for, employees' participation in activities on behalf of the Union: Charles Gavers, January 30, 1976 and Rex Poore, February 11, 1976. It is also alleged that Bergeron, on February 10, threatened employ- ees with economic reprisal in the event the Union won a then-impending election in Case 17-RC-7907, and that, on or about January 23, the Respondent discharged Leonard O'Dea and thereafter failed and refused to reinstate him. By the foregoing conduct, it is alleged that the Respondent violated Sections 8(axl) and (3) and 2(6) and (7) of the Act and, in addition, it is alleged that the Respondent discrimi- nated against an employee for giving testimony under the Act, thereby violating Section 8(a)(4). shipping and warehouse foreman. It thus appears that these refer to the same person, and that the correct name is Gavers. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES had told him that the Respondent "didn't have a leg to stand on in the matter of the discharge of Leonard O'Dea," and that Poore remarked that, in his own view, if O'Dea "don't get back to work then the N.L.R.B. is on the take," and further stated that Dorwart should watch his step and, in his words, said "that they were keeping track of me and trying to find something out on me so that they could fire me," because of his union activities , and that the Respon- dent "didn't want me around by next year, they figured that I would be an organizer again." On or about April 15, 1976, Dorwart received a letter from the Respondent warning him about absenteeism. In a conversation concerning that letter with Supervisor Poore in the warehouse office, Poore inquired whether he had received a letter. Poore asked Dorwart why he had been absent 5 days during the preceding 3 months, to which Dorwart replied that he had taken 2 days off for the funeral of his father-in-law, which Gavers stated was an excused absence; on another occasion, he had had chest pains and was sent home, which Gavers stated was an excused absence. Dorwart stated that the following day he had to go to the doctor and did not come in that night to work, but that he did call in, and Gavers commented that that also was an excused absence. He then stated that on a previous evening he had had the flu and called in sick and, on another occasion, he ran out of gas and had to go home. On this occasion, so he testified, he had stopped at a farmhouse but no one was home so he could not call his residence and had to walk home and, when he reached his residence, he called the plant and was advised that that was another excused absence. On the matter of being tardy, Dorwart stated that he had never been tardy since he had been on the night shift and that Poore responded to this that he could not figure out the matter and gave him a sheet to fill out. Dorwart asked Poore whether that was a warning, and Poore responded by saying, "Well, who knows, I see a lot of people have gotten them, got letters pinned on their timecards." To this, Dorwart said that he would like to know whether it was a warning, because he was not late. Dorwart further related a conversation he had with Supervisor Gavers, during the early part of May 1976, in which Gavers mentioned that, if the Union had gotten in, the Respondent would have closed the plant in McCook and moved to some other area, and, so Dorwart testified, Gavers stated, in Dorwart's words, "that they had been wanting to get rid of me but they could never find anything wrong on me and so, but they said they would keep on until they did." In his brief, counsel for the Union considers the alleged violations of Section 8(a)(1) that have been summarized above. Concerning the December 1 meeting in Supervisor Poore's office, he notes that Poore was asked whether he ever told Dorwart that the Respondent was trying to get rid of him and that, in response, Poore stated, "Boy, I don't believe it was just point blank, Yule, they are trying to get you gone." Union counsel states that, while this testimony "may fall short of an admission, it is far from a denial and, in fact, implied that a similar statement was made." He further points out that Poore, at a later point in the hearing, admitted that Dorwart was an excellent worker and that Bergeron "offered to replace him with two men." In A. Interference, Restraint, and Coercion Yule Dorwart, who first went to work for the Respondent on November 29, 1971 , when the McCook plant opened, and who at the time he testified was still employed by the Respondent as a warehouseman, testified to a number of conversations and incidents involving supervisors of the Respondent, which counsel for the General Counsel and counsel for the Union contend were violative of Section 8(axl) of the Act. Dorwart was a member of the in-plant organizing committee and the Union furnished the Respon- dent with the names of the membership of that committee. Dorwart also related that he was active in the organization- al campaign and served as the Union's observer during the election held on May 3, 1976. It is clear, therefore, that the Respondent was well aware of Dorwart's union activities. On December 1, Dorwart met with Supervisor Poore in the warehouse office, during which they had a conversation concerning the Union. According to Dorwart, Poore told him "that I would have to watch my step , that Mr. Bergeron had told the foremen at the foremen meeting , had told Charles Stowers to try to get something on me to fire me, that if he did he would give him two men to replace me." Dorwart related that Poore stated this meeting of supervi- sors had occurred in November, and Dorwart related that, when he inquired why the Respondent desired that he be terminated, he was told that it was because of his union activities. On or about June 30, Dorwart had a conversation with his then foreman, Charles Gavers, during which they were outlined what the employees were to do that night. Dorwart testified that he spoke to Gavers about the warehouse opening that had been posted on the bulletin board and on which he bid and, shortly thereafter, the Respondent postponed the bidding. Dorwart testified that he told Gavers he had seniority in the warehouse and inquired why he did not get the job, to which Gavers replied, "the reasons you did not get that job is because you're a union agitator." On February 10, Dorwart attended a meeting conducted by Bergeron with some other employees, who came from various portions of the plant . Dorwart related that Berger- on "was talking about the Union, about the election that was coming up" and stated that the McCook facility was "a real crucial plant operation" and that it could be moved at any time without notice. Some employee, so Dorwart testified, asked whether, if the Union came into McCook, another Electric Hose plant in Nebraska would go union. The response was that it would. Dorwart further related that Foreman Gavers discussed the termination of Golds- berry and O'Dea, stated that the talk about Goldsberry returning to work was a be, and that Goldsberry and O'Dea would never again work at the Respondent's plant. Gavers also stated that the Union would lose the up-coming election and a year would have to elapse before the Union could campaign again and, by the end of the year, no union supporters would be left working at the McCook plant. About the same time, approximately February 10, Dorwart had a conversation with Supervisor Poore regard- ing the termination of O'Dea. Dorwart testified Poore stated that William Sitzman, a quality control supervisor, ELECTRIC HOSE & RUBBER COMPANY 969 counsel's view, the significance of this testimony is twofold: first inasmuch as it was "communicated to an employer by a supervisor it constitutes a threat and at least created the impression of surveillance." Further, he asserts that, "it contradicts Respondent's extensive testimony that Mr. Bergeron had instructed the foremen to remain fair and impartial during the campaign" and, in addition, "renders the credibility of the Respondent's witnesses questionable, especially when it is noted that Poore is the only company witness not still employed by Respondent." With respect to the meeting Bergeron held with employees on or about February 11, in which he told the employees that the McCook plant was critical in the Respondent's operations and could be moved at any time without notice, counsel asserts that, when viewed in context, "this comment can be interpreted only as a threat to close the plant should the Union win the impending election," and that "the impact of this statement on employees cannot be overemphasized, since the plant manager returned to the plant on the midnight shift solely to meet with employees concerning the Union." With respect to the statement attributed to Bergeron that the Union would lose the election and would, in consequence, have to wait a full year before another election could be held and that, in the meantime, no union supporters would be working in the plant, counsel contends that this observation, coming "on the heels of the discussion of the discharged" employees, Goldsberry and O'Dea, "was obviously intended to coerce employees into abandoning support for the Union out of fear for their jobs," and that these statements "again put in issue the credibility of company witnesses who testified that Mr. Bergeron in- structed all supervisors to be impartial" and, in addition, constituted violations of Section 8(a)(1) of the Act. Concerning Dorwart's testimony about the conversation he had with Poore on or about February 10, which has been related above, counsel contends that this "clearly indicates union animus by Respondent," and that in view of the fact it was "communicated to the employee by his supervisor, it undoubtedly created the impression of surveillance" and, consequently, is violative of the Act; and, moreover, "if credited, this testimony renders the testimony of Respon- dent's witness suspect since it is again in clear conflict with testimony that Mr. Bergeron was instructing the supervisors to remain impartial and treat everyone equally." With respect to the testimony given by Dorwart concern- ing his conversation with Foreman Gavers on or about January 30, as to the possible change of shift for him, it is the contention of counsel for the Union that the foreman admitted that Dorwart was denied the position because of his activity in behalf of the Union. He points out that, inasmuch as the Respondent did not call Gavers as a witness, this circumstance "raises an inference that his testimony would have been adverse to Respondent," and that, in consequence, "it must be found that Respondent violated Section 8(a)(1) of the Act by both denying Yule Dorwart a change of shifts and by communicating to him such statements which can only be interpreted as threats to deny other economic benefits to him in the future should he persist in his actions.", Moreover, counsel asserts that the foregoing testimony relates to the credibility of Bergeron and other witnesses for the Respondent because it not only "contradicts their testimony that Mr. Bergeron instructed all supervisors to remain impartial, but also because the record indicates that Mr. Bergeron makes the job assign- ments . . . and, accordingly, his knowledge and coopera- tion would be needed to deny Dorwart his transfer" and that, accordingly, "Bergeron's testimony that he was continually insisting on total impartiality during the cam- paign is impossible to credit" and that, as a result, "either the uncontested testimony of Yule Dorwart or the self- serving statements of Tom Bergeron must be discounted." With respect to Dorwart's testimony concerning the conversation he had with Foreman Gavers on May 11, which was not disputed by Gavers, it is the contention of counsel for the Union that the effect of this "is many faceted." He states that, "If an employee is informed the company would have moved the plant at a prior date to avoid unionization, there is an implied threat that this will happen in the future should the employees organize," and that such threats are obviously violations of Section 8(a)(1). In addition, he notes that Gavers told Dorwart that the Respondent was attempting to get him and would continue to do so, which, he asserts, "creates the impression of surveillance and is also a veiled threat," and, therefore, violative of Section 8(aXl) of the Act. Finally, _ counsel for the Union adverts to Dorwart's testimony concerning his receipt of a warning letter on April 15, and the ensuing conversation he had with Supervisors Poore and Gavers. Concerning that conversa- tion, in which Dorwart testified that all his absences had been excused, with which Poore agreed, Poore stated that the Respondent's motive might be revealed as, in his words, the Respondent "could just be camouflaging your letter in giving out a bunch of them and retaining yours on file and when they want to get rid of you, all they have to do is give you two more letters." Poore further stated, according to Dorwart, that the latter would "have to watch your step all the way. They're out to get you." Counsel for the Union contends that the foregoing "not only illustrates another example of the Respondent creating the impression of surveillance," but "also illustrates the impression of Super- visor Poore that Respondent was capable of deception to achieve its goals. Coming from an individual such as Mr. Poore who was privy to all the high level supervisor meetings, such an observation is most persuasive." Counsel for the Respondent, in his brief, argues that there is no substantial evidence disclosed by the record to establish that the Respondent engaged in a pattern of conduct violative of Section 8(a)(1) of the Act, and that counsel for the General Counsel offered the testimony of only one witness, Dorwart, in support of such allegations. He asserts that it is particularly significant that counsel for the General Counsel "was not able to come up with even one additional witness to corroborate with support Dor- wart's testimony concerning 8(a)(l) statements by foremen or supervisors, even though the Union's preelection cam- paign lasted approximately five or six months in a plant of nearly 300 employees" and "even though there was an in- plant committee of employees actively engaged in organiza- tional activities almost all of this time." Counsel for the Respondent argues that the testimony of Dorwart is uncorroborated and, further, that it is denied 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and contradicted by other witnesses and, in addition, it is "inherently unbelievable." In support of this assertion, counsel states that Dorwart testified that about December 1 he had a conversation with Foreman Poore in which Poore told Dorwart that he should watch his step, that Bergeron had told Foreman Stowers to try to get something on Dorwart as a basis for terminating him, and that Bergeron would give Stowers two men to replace Dorwart. In addition, Dorwart testified that in another conversation with Poore, about February 10, Poore told Dorwart that he should watch his step as "they" were keeping track of him and trying to find something on him in order to terminate him. Poore, under subpena, testified on behalf of the Respon- dent.3 He said he never had told Dorwart at any time to watch his step; indeed, he testified that he had spoken to all the warehouse employees on various occasions about their work performance and had told them that not only they, but he himself, ought to watch their steps or they would be "going down the line." According to counsel for the Respondent, the "context of these admonitions, in Mr. Poore's own words was `the warehouse is a variety of jobs that you have to stay on top of to keep it halfway cleaned up, to keep it appearing where you can get flow of equipment to and from, loading trucks, unloading, and I can honestly say that was the feeling I had ... let's put out a little extra.' " According to counsel, "Clearly, such statements were not intended to, nor did they, relate to the union activities of Dorwart or any other employees. By using the phrase `watch your step' Poore meant'do a good job.' " In addition, he points out that Poore testified that he was not either for or against the Union but that he "wanted the job done. I've told these people that and that's how I feel about it." It is the contention of counsel for the Respondent that Dorwart, in his testimony, "twisted and misrepresented for his own reasons what actually were nothing more than the normal day-to-day exhortations of a foreman to his employees such as occur in every industrial environment with or without a union campaign in progress." " In addition, he points to the further testimony of Poore that, while the latter did in fact attend a meeting of supervisors in which the replacement of Dorwart was discussed, Bergeron, so he testified, never gave Foreman Stowers a "direct order" to discharge Dorwart nor did Bergeron tell Stowers to find a way to terminate Dorwart. Counsel acknowledges that Poore did say that Bergeron made the offer to replace Dorwart with two men, but asserts that this comment, "far from indicating a desire to discharge Dorwart," was made in the context of considering Dorwart for promotion to a supervisory post. He argues that Bergeron, as the latter testified, was looking for someone to become a foreman and asked for comments from other supervisors, and that Dorwart's name was put forward and Foreman Stowers said that Dorwart was a good worker and that he hated to make hun a foreman because it would probably take two people to replace him. Bergeron agreed to give Stowers two men to replace Dorwart if he did become a foreman and then told the department manager, McGee, to offer the 3 Poore, who had been foreman in the warehouse and shipping depart- ment poor to the time he voluntarily left the Respondent's employ on April foreman's position to Dorwart which in fact occurred. After thinking it over, Dorwart refused the promotion. It is the position of counsel for the Respondent that the testimony of Poore and Bergeron to the effect that no orders were ever given to discharge Dorwart but, to the contrary, that he was considered for an offer of promotion, is supported by the objective facts and the testimony of other witnesses. In support, counsel points out that Dor- wart conceded that he had been offered and declined a position of foreman; moreover, he refers to the testimony of other witnesses, including Production Manager Bauer and Quality and Waste Control Manager Sitzman, as well as the testimony of Foreman Peres, to the effect that they attended the meeting of the supervisors and that no statement was made by Bergeron concerning the discharge of Dorwart. With respect to the testimony of Dorwart that he, on April 15, had a conversation with Poore regarding the letter concerning his absenteeism record and that Poore observed that the Respondent had given other employees similar letters, counsel for the Respondent states that such "testi- mony is utterly incredible." In support of this , counsel points out that April 15 was Poore's last day at work and that all he said to Dorwart was "good-bye." Moreover, he states that, as Bergeron testified, Dorwart was "only one of approximately 40 employees who received identical form letters the same day . . . due to the fact that the overall plant percentage of absenteeism had become excessive." Moreover, he states that Dorwart testified, incredibly, that although the letter was paper-clipped to the timecard, he did not notice that letters were also clipped to the timecards of other employees. Accordingly, he submits that "Dor- wart's testimony with respect to this alleged conversation is unreliable and should be rejected." Alluding to the testimony of Dorwart that he attended a meeting of employees conducted by Bergeron on February 10, in which Bergeron made statements to the effect that the mixing facility at the McCook plant was a crucial opera- tion, that it could be moved at any time, that another plant depended on it, and that, if the Union came into the McCook facility and went on strike, with the result that the other concern would be subjected to difficulties , counsel asserts that, even if made, these statements by Bergeron were nothing more than "noncoercive observations and predictions of some possible economic consequences which could flow from a union strike at McCook, containing no threats of reprisal," and that they were legitimate observa- tions protected by Section 8(c) of the Act. Indeed, counsel asserts that this statement by Dorwart was "an utter fabrication" and suggests that, in view of Dorwart's testimony that there were some 19 employees at the meeting, if Bergeron had actually made the statement attributed to him by Dorwart, "then the General Counsel had a selection of 19 potential witnesses any of whom could have been called to substantiate the truthfulness of Dor- wart's testimony," and he observes that "not a one of these numerous employees was called to corroborate Dorwart's story," and comments that this failure to call corroborative witnesses "creates a compelling inference that no such 15 in order to return to his prior occupation as a salesman, had been acquainted with Dorwart since they were youngsters. ELECTRIC HOSE & RUBBER COMPANY 971 statement was ever made." However, it may at this point be observed that counsel for the Respondent could have called these persons as witnesses who, so far as appears, were equally available to him. Counsel for the Respondent further asserts that "the largely uncontested testimony of the circumstances sur- rounding the alleged conversations indicate that Dorwart's testimony is inherently improbable." In support, he notes that Dorwart was active in the union campaign, served as the Union's observer in the election, solicited employees to sign union cards, and made calls at the homes of employ- ees. On this basis, counsel suggests that Dorwart's testimo- ny "was unquestionably slanted and biased in support of the Union's cause." With respect to Poore, on the other hand, counsel points out that he was no longer employed by the Respondent when he testified, and thus "had no reason to be other than candid in his testimony." Respondent's counsel also argues that, even if Dorwart is credited, the comments he attributed to Poore were not violative of the Act, under the circumstances. He suggests that the statements of Poore were made in a casual conversation between two lifelong friends and "can be only characterized as plant gossip. " Concerning the uncontradicted testimony of Dorwart involving Shipping and Warehouse Foreman Gavers, counsel urges that, even accepting Dorwart's testimony, "these statements are so minor and isolated as to contain no coercive impact," and further points out that Gavers was a department foreman, "the lowest level of supervision." Regarding the statement attributed to Poore in a conver- sation Dorwart had with Poore on or about February 10 to the effect that Sitzman, the quality and waste control manager, had told Poore that the Respondent did not have a leg to stand on in regard to the discharge of O'Dea, and that if O'Dea did not get his job back the N.L.R.B. was on the take, counsel states that this "is utter hearsay and has no probative value whatever since it was not attributed to a management representative having the authority to formu- late labor policy or even having the responsibilities of day- to-day supervision over production employees such as O'Dea."4 In addition, counsel calls attention to the fact that Stizman testified that he never made such a statement to Poore or anyone else, and Poore testified that he did not tell Dorwart that Sitzman had made such a statement. B. The Termination of O'Dea and Goldsberry O'Dea was first employed by the Respondent on May 15, 1975, having been hired by Bergeron, the plant manager. O'Dea, who stated that he was 49 years of age at the time he testified, was hired on the second shift, which was from 3 p.m. until 11 p.m. O'Dea went to work as an air charger, the main duties of which were to help the cover operator in putting the cover on the hose and also to supply the hose in the work area, inflate it according to specifications both as to inside and outside diameter, and then to tie the pans of hose together so that there would be a continuous flow of hose to the cover machine. O'Dea related that he worked on various types of hose and that, when he first went to work, his foreman, Bob Petit, took him to another operator, one Don Mackey, who would show him how to perform the job to which he was assigned. According to O'Dea, Mackey worked with him for 3 days, after which he was told that he was fairly proficient as an air charger. Following that, he was an inspector-bailor for approximately 2 weeks and then became a cover operator, pursuant to bidding for the job, at approximately the first part of September. Upon obtaining that job, he received a raise in pay to $3.60 per hour. Until the time he became a cover operator, he had received no reprimands nor had he been informed by any supervisor that his work was unsatisfactory. Sometime in September, or, as O'Dea testified, about August, he contacted a representative of the Union to set up an organizational meeting and, in consequence, rented a meeting room for Saturday, September 27. His initial contact was with the Retail Clerks, but he was later informed that he should get in touch with a representative of the Union, for the reason that the Union had conducted a campaign among the Respondent's employees in 1973. About 2 weeks prior to September 28, O'Dea attended a meeting conducted by Bergeron at the plant. At that time Peres was O'Dea's foreman and Peres stated to one Bill Kahler, who was training O'Dea, that they probably would have to make a changeover about quitting time and that O'Dea would have to do it himself because Kahler was going to a meeting. At that time, Peres told Kahler that O'Dea would have to finish the changeover. O'Dea accom- panied Peres to a meeting in the plant conference room in which Bergeron conducted a session concerning the Equal Employment Opportunity Act and, after concluding his talk on that subject, stated, according to O'Dea, "there is a rumor going around the plant that there is union activities starting up again," and further said that, in his view, "Unions are no good for anyone, they don't do anything except collect dues and they bring the gangsters, the crooks, and the Jimmy Hoffas into town and we have a nice clean little town in McCook and we would like to keep it that way." Thereafter, Bergeron asked if any of the employees had any complaints or suggestions of how the plant or working conditions could be improved. On September 28, an organizational meeting of the Union was held at the lunchroom of the Royale Hotel. Union Representative Zanoni conducted the meeting and some 10 employees from the hose plant were present. According to O'Dea, Zanoni informed them of facts concerning the conduct of union activities and, in conse- quence, the employees voted that they would have an open organizing committee and several of them signed up to be members thereof. During the course of that meeting, so O'Dea testified, Zanoni told the employees that if they engaged in any union activity they could do it outside the plant, in the lunchroom on coffeebreaks, or on any occasion where they were not assigned to work, and he gave them organizational or committeeman buttons and stated that probably 2 days or so would elapse before the Respondent received the Union's letter naming the mem- bers of the organizational committee. On September 30, Zanoni directed a letter to Bergeron listing the names of the 4 In support of his statement that the Board has "rejected such indirect and remote attempts by the General Counsel to establish questionable admissions," counsel cites Ben Hur Produce, 211 NLRB 70 (1974), and Orenduff& Kappell, Inc., 118 NLRB 859 (1957). 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the organizing committee, including the name of O'Dea. On September 25, O'Dea met with Goldsberry, who came to his home and told O'Dea that he had a problem with alcohol. O'Dea, so he testified, told Goldsberry that he was aware of this and Goldsberry said that he would like to have some assistance in connection with this problem. O'Dea said that, if Goldsberry really desired help, it would be available through Alcoholics Anonymous . O'Dea and Goldsberry then arranged to go down to the plant to speak to Bergeron. O'Dea testifed that when he and Goldsberry met with Bergeron the latter stated, in response to Goldsberry's remark that he had a problem with alcohol , that he was aware of that fact. Goldsberry said that he needed a job and he wished to get his drinking problem straightened out. Bergeron stated that Goldsberry was a good worker but that he was not dependable, and his absences affected everyone on the production line. He asked O'Dea how he felt about Goldsberry's problem and O'Dea expressed the view that Goldsberry should go into a treatment center. Bergeron told Goldsberry that if he would straighten up his life he would have his old job back and that , since the dismissal papers had not been sent to the main office in Wilmington, New Jersey, he would take them from the file and there would not be "anything in your file as to this dismissal, you will go right back to work on your same job with your same seniority." He told Goldsberry that if he decided to go to a treatment center he would be given a 30- day leave of absence. Goldsberry then said that he would like to have the evening off and he would call Bergeron the following morning and tell him what he had decided to do. The following day Goldsberry came to O'Dea's home and telephoned Bergeron and told him that he would be in to work that day and that he had decided not to go through a treatment center but was going to help himself through Alcoholics Anonymous. O'Dea testified that Goldsberry had no problems at work on September 26, a Friday. He and Goldsberry attended the union meeting on Sunday , September 28. The following day, September 29, O'Dea and Goldsberry went to the plant together and before worktime sat in the lunchroom with several other employees, some of whom asked O'Dea if he had been at the Union's organizational meeting the previous day. O'Dea replied that he had. O'Dea and Goldsberry were both wearing union committee pins. O'Dea, whose work station is approximately 15 feet from Goldsberry's, testified that that day at work Goldsberry had one Walter Warburton as his air charger and Carl Hanger as his water charger . According to O'Dea, Foreman Peres stood by a post some 20 feet from Goldsberry "all evening," observing Goldsberry. O'Dea further related that he observed Peres assisting Goldsberry. At 7 p.m., the normal lunch break, O'Dea started to shut his machine down and at that time Goldsberry called to him and said that he was not going to lunch because he had to finish a run of hose first. At that time Peres was air charging and Hanger was water charging for Goldsberry. When O'Dea returned from lunch Goldsberry called his attention to the fact that Foremen Peres was air charging for him while another worker, Ed Curtis, "is sitting back on his butt drinking coffee on overtime" in plain view of Peres. After Goldsberry and Hanger returned from lunch, O'Dea observed them make several trips on a jack truck to the stock supply area, bringing braid hose to the cover machine. He also observed Goldsberry assisting Hanger in air charging hose. O'Dea related that about 10 p.m. Goldsberry told him that he had just been discharged. O'Dea was terminated on January 23, for the stated reason of poor workmanship. With respect to his own employment, O'Dea testified that early in September, the first day that he ran some hose by himself, Foreman Peres spoke to him the next day or so, stating that he had run something like 1,000 feet of hose that was offcenter, but that his reference to this matter was not a warning or a reprimand and that, according to O'Dea, Peres said, "this isn't really bad for a new operator" but that he wished to call the matter to O'Dea's attention. On December 2, O'Dea received a note from Peres which reads as follows: This is a written warning referring to your excessive change over, due to lack of initiative, and failure to contact your foreman for assistance to resolve proce- dural problems. If these problems continue and can't be corrected through self discipline, I will have no alternative but to use stricter measures leading up to and including possible dismissal. O'Dea related that the circumstances which prompted the note occurred on December 1. He stated that he was making a changeover from one type of hose to another and, after making the changeover and starting the machine, Foreman Peres came into his work area and asked for O'Dea's work notes and the breakdown on the changeover. O'Dea, when he finished writing up the notes, spoke to Peres, who stated he would have to write up O'Dea because it had taken him too long to make the changeover. O'Dea asked Peres, "Have you or anybody else in this plant ever seen me screwing off on a job?" Peres replied, so O'Dea testified, "No, not until tonight." O'Dea asked Peres how long it should take to make a changeover and Peres replied that it depended on what the operator was changing from and changing to. O'Dea inquired how long it should have taken him to make the particular changeover, and Peres replied, "I don't know but you took too long." The following day, December 2, O'Dea related that, as he came into the plant and was going to his machine, Peres was there and handed him the above-quoted letter and asked him to read it. On December 3, Peres wrote a note to O'Dea stating that on the preceding day he ran 3,654 feet of large outer diameter hose and that in addition "there was also 634 feet of offcenter and 3,314 feet of destripe." He further stated that this constituted "the second warning in one week in which I have asked [sic] you to follow the correct procedural operations when running a cover extrud- er. This is the last warning," and that "other problems in the future will lead to immediate dismissal ." O'Dea testified that on the evening in question Foreman Peres came to his work area and had with him another employee, Rod Coetter, who was another cover operator. O'Dea testified that Peres told him to allow Coetter to take over the ELECTRIC HOSE & RUBBER COMPANY 973 machine and he should accompany Peres . They went to the vulcanizing area where Peres pointed out some hose that had just come out of the vulcanizer . Peres told O'Dea that he had "ruined all of my hose" and asked what he should do with it. O'Dea asked, so he testified, what was wrong with the hose and Peres stated that all of it was too large. O'Dea stated that the hose was not in that condition when he was laying it on the pans. Thereupon Peres laughed and O'Dea went back to the machine and ran it until his shift ended at 11 o'clock. In leaving, he saw the third-shift quality control man, one Craig Francis, and asked him what the dimensions of the hose was supposed to be after it came out of the "cooker." Francis responded that he did not know, whereupon O'Dea asked him what the specifica- tion sheet called for, stating that he did not know what the specifications called for on the finished product but did know what it called for when he was running it. The following day he came to work and all that evening ran hose until aproximately 9 o'clock when Maxine Wickhiser, another cover machine operator , came to his area and told him that she was supposed to take over his machine and that Peres wanted to see O'Dea in the office . Thereupon, O'Dea went to the office and Peres told him, so O'Dea testified, "I called you up here because I don't want another scene on the floor," and said he was going to give O'Dea another letter because of the hose he ran the previous evening. According to O'Dea, Peres said, "I tried to talk Mr. Bergeron out of it. I said you had gotten a letter the day before and two letters in 2 days was too much." Peres further stated that if the assistant plant manager, Bauer, Bergeron, and Sitzman got together they might be able to work something out. O'Dea testified that he was in Foreman Peres' office for about an hour that evening and Peres "kept repeating himself that him and I and Mr. Sitzman, Mr. Bergeron, should get together and work something out to see about lifting those reprimands from my record"; and further stated that O'Dea "had been a good operator and they thought that they had things pretty well lined out on the second shift with operators." The following day, O'Dea went to the plant somewhat early for the purpose of speaking to Bergeron , inasmuch as he felt that the letters of reprimand were not justified. When he saw Bergeron, he told him that he had "gotten two letters in the last 2 days and I don't feel they were warranted or I don't feel that they were justified." He quoted Bergeron as saying, "Well, my notice was pat." O'Dea further related that he had been endeavoring to think of anything he could have done that would have made the hose too large, but that he had been unable to do so. O'Dea related that he told Bergeron that he "did have a little trouble making that changeover because of the fact that one of the operators the day before had something happen to the machine and the pressure from the compound had forced the torpedo backwards out of the head of the machine and sheared off the shear pins . They had put a different torpedo and new hold key pins in the machine. I didn't have any water pump pliers. I told the foreman ever since I have been there I need a pair of water pump pliers but he never did get them for me. I did have trouble with lock pins on the torpedoes that night. They kept turning with the handle so I couldn't get the slot lined up with the slot in the torpedo to lock it in place." To this, Bergeron replied, "Well he would see to it that I got proper tools that I needed to do my work out there." Bergeron later did so and, concerning the hose, he stated, so O'Dea testified, "Well, perhaps the cover ma- chine is too much for you? Perhaps you can't handle the cover machine." He also said that is was the most critical job in the plant, which accounted for the fact that it was one of the higher paid jobs. O'Dea further related that Bergeron said that in the past he had had employees that could not operate the cover machine and had placed them in different jobs and perhaps he could do the same for O'Dea. O'Dea replied that he realized that he was not "the fastest man in the world" and did not claim to be. He further told Bergeron that, in connection with making the changeover, he had not wasted any time . Peres then turned to Bauer and asked him what he thought and Bauer replied that he saw no reason to take O'Dea off the cover machine at that time and that they should wait and see what happened . This was at approximately 3 o'clock and O'Dea then went to his machine and worked the balance of the shift without incident. After O'Dea left Bergeron's office on December 4, he went back to his machine and continued working; a quality control man, one Jeff Gorley, came in and checked his hose and, according to O'Dea stated that the hose "looks good." O'Dea related that he asked Gorley "how bad an operator am I really?" Gorley replied that "there was some of that hose was pretty bad the other night" and the fact that the hose was too large was caused by too much rubber. O'Dea inquired what, aside from the hose that he ran the previous evening, Gorley's assessment of him as an operator. O'Dea testified that Gorely said, "Well, Leonard, you was a good operator up until a week or two ago and something seems to have happened." O'Dea responded by saying that he had been thinking that he was a good air charger and had been considering bidding back onto that job, and that Gorley replied, "Oh, no, don't do that. There is no need for that." O'Dea further related that during the course of the conversation Bergeron several times voiced the view that his work had been good but something apparently had happened in the last 2 weeks. Shortly after going to work on January 23, Foreman Peres came to him and stated that Bergeron wished to see him. O'Dea went into the office and Bergeron stated that on the previous evening O'Dea had run a considerable amount of offcenter hose and asked if there was any reason for that. O'Dea replied that there was a reason, that he knew when the hose went offcenter, but that it had been running properly theretofore and that the quality control man had been in and checked his samples and said that they were all good. As the quality control man left, O'Dea cut another sample from another pan of hose that he was then finishing and noticed that it was offcenter. Thereupon he started to adjust his center by moving dies and then it occurred to him that he was running a compound which , so he testified, "had a tendency to thin down on us after it ran a while. So I started backing off the torpedo and thickening up my extrudi." O'Dea started to change to specification sheets with his pen but Gorley, the quality control man, told him not to do that because any such changes had to be made by the office. Bergeron then inquired of Sitzman what he 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought about the matter and Sitzman, according to O'Dea, replied, "Our spec sheets aren't all just exactly right ... . they are more or less just a guide sheet to go by to set up." Bergeron then stated that he had no alternative but to dismiss O'Dea for making offcenter hose , and reminded O'Dea that in the last warning letter he had stated that the next letter would be final . O'Dea inquired if he had made other bad hose and Bergeron replied in the affirmative. O'Dea retorted, "Yes, but I have proved since that that was not my fault . That was caused by water pressure in the hose." Bergeron said, "No, that was the hose that you and Bruce [the prior operator ] made." O'Dea replied that if Bergeron would look at his worksheet of December 5 he would see that he had written at the bottom that the water pressure was expanding the hose before it went into the vulcanizer. Bergeron replied that that was beside the point, that they were discussing the hose he had made the previous day which, according to Bergeron, was over 30 percent bad and, consequently, he had no alternative but to discharge O'Dea. According to O'Dea, Bergeron added that his action had nothing to do with O'Dea's union activities. O'Dea inquired if there was another job in the plant that he could handle and Bergeron replied , "No. Not now, not under the circumstances." O'Dea related that on January 12 he was running number 3764 hose and the previous operator , Bruce Watts, stayed overtime and water charged for him. O'Dea testified that the hose seemed to be running well. After lunch break, Gorley, the quality control man, shut down O'Dea's machine. O'Dea inquired what the trouble was and Gorley stated that the first batch that had come out of the vulcanizer was no good, and that that batch had been produced by Watts. The batch produced by O'Dea was still in the vulcanizer and Gorley stated that they would not run anymore until that batch came out of the vulcanizer and they could ascertain its condition. The following day, O'Dea found that the hose he and Watts had run, some 48,000 feet, was not number one hose. The next day the hose produced by O'Dea was satisfactory and he and Gorley concluded that the problem had been caused by water pressure. Subsequently, water pressure valves were installed which apparently corrected the problem. O'Dea related that the last warning he received was concerning 21021 hose, which was the first time he ever ran that type. That hose was one-eighth of an inch in diameter, and O'Dea testified that the smaller the diameter "the harder it is to hold center." He ran 15,484 feet of the 21021 type hose, of which 4,971 feet were seconds, 10,332 feet were first quality, and 89 feet were scrap . The finished goods inspection report for January 23-25 shows that the operator following O'Dea ran a total of 11,025 feet of number 21021 hose of which 3,826 feet were seconds, and scrap amounted to 6,759 feet. That operator was Watts. O'Dea testified that he asked Watts if he,had gotten a letter for producing defective hose, and Watts replied that he had not, stating that the hose had collapsed in the vulcanizer and the Respondent did not know what had caused that to happen. Goldsberry began working for the Respondent in June 1975, having been hired by Bergeron as an air charger. In August, he was successful in bidding for the job of cover operator, which increased his salary by approximately 80 cents an hour, to the rate of $3.50. He testified that he had no formal training for the job of cover operator. In that capacity, he worked on the same shift as O'Dea, under the supervision of Peres. Goldsberry testified that in the latter part of August or early September he informed the production manager, William Bauer, that he was slow on the cover machine because, in his view, he had not been properly trained to operate it, and that he was aware that he took too long in running orders but that, as far as he knew, his work on the machine was good. According to Goldsber- ry, Bauer replied that Bergeron and Peres understood the matter. Goldsberry further related that an employee, Bill Kahler, did stay over, or come in early, and assisted him for some time. Goldsberry testified that during his period of employ- ment he had not been warned or reprimanded, either verbally or in writing, for poor workmanship. He admitted that during the period of his employment he had a substantial number of absences and that in consequence the Respondent gave him a letter, dated August 3, concern- ing this matter. However, he testified that, after a conversa- tion with his foreman, one Kotschwar, this letter was to have been taken off his record and, according to Goldsber- ry, this statement was made to him on the night he received the letter, approximately August 4. Goldsberry related that he received another letter for chronic absenteeism on September 8 and that he failed to appear for work on September 22 and 23. Goldsberry testified that on Septem- ber 4 he had not been informed that he was going to be discharged but that he believed he had been terminated at that time because he had, as he testified, "been on about a three-day drunk and I hadn't been to work in these days and I am not sure, I couldn't swear to it, but I think I did call in the first day but I hadn't since. I am not even sure about the first day." Goldsberry met with O'Dea concerning his problem and testified that it was O'Dea's suggestion that they contact Bergeron. When they did contact Bergeron outside the plant, Goldsberry told Bergeron that he had "a severe drinking problem" and added that he "may have even told him that I was an alcoholic, which I believe I am." He further testified that he told Bergeron that he had heard that he had been discharged, but that he did need a job and asked Bergeron for another chance. According to Golds- berry, Bergeron replied that he had been terminated but that the papers pertaining thereto had not been sent in. Bergeron further stated, so Goldsberry testified, "that if I was willing to try to help myself that he would be willing to give me another chance and take me back to work." According to Goldsberry, Bergeron further stated that Goldsberry was a good worker, although he did miss too much work, and observed that he needed someone who would be punctual. Goldsberry further related that Berger- on had spoken to O'Dea and solicited his advice, and that O'Dea advised that if he were Goldsberry he would "go to a hospital or institution of some kind for a period and get dried out ...." According to Goldsberry, Bergeron stated that he would give him a 30-day leave of absence if he wished to embark upon a program of rehabilitation and attend meetings of ELECTRIC HOSE & RUBBER COMPANY 975 Alcoholics Anonymous. Goldsberry testified that, follow- ing this conversation, he was to call Bergeron to advise him of his decision . Goldsberry testified that during the course of his meeting with Bergeron it was mutually recognized by both that he was ill and "shaking," and they agreed that he would take the evening off and advise Bergeron Friday morning what he had decided to do . Goldsberry did telephone Bergeron on Friday morning and, as he testified, "told him that I had decided to try to take care of my problem through AA and with the help of Mr. O'Dea and other alcoholics, and that I would be in to work that evening. This was agreeable with him . I went to work that afternoon." He worked his shift without incident and further testified that , at that time he was aware of a union organizational campaign in progress, but had not thereto- fore attended any union meetings . However, he related that on Sunday, September 28, he did attend a union meeting and volunteered to become a member of the union committee. He further testified that in a letter sent to the Respondent, under date of September 30, his name was included as a member of the Union's organizing committee. On September 28, Goldsberry received a union button and, during the morning of September 29, he and O'Dea "got together," before going to work, and called on Union Representative Zanoni, concerning a program for launch- ing and implementing the Union's organizational cam- paign. Goldsberry testified that he and O'Dea did make some seven house calls that day . On the afternoon of September 29, Goldsberry arrived at the plant for work about 2 :40, in company with O'Dea. He testified that on that occasion he was wearing the union button on his shirt, and that he and O'Dea went to the lunchroom and sat down with some other employees to have a cup of coffee. Goldsberry testified that he "started talking to the employ- ees of the meeting we had had Sunday and offered cards to the employees" if they were interested in signing , and also stated that if any were interested in talking to Zanoni "that they could meet him at the hotel room that Monday night after work." Goldsberry further related that Bergeron was sitting at another table in the lunchroom. On that day, so Goldsberry testified , he went to his machine at approximately 2:55 in order to relieve the other operator, and that, when he arrived at his machine, it was "shut completely down," that the compound in the ma- chine was cold, and that during the ensuing 4 hours he had "considerable trouble," inasmuch as he had no one to assist him in air charging. He further related that Peres "finally got me an air charger," one Warburton. According to Goldsberry, Warburton left shortly thereafter, with the result that Goldsberry was left alone and experienced more trouble during the first 4 hours with the machine , particu- larly with the vacuum, and that he obtained some assis- tance in that regard from maintenance employees . He also related that Peres "was standing around my machine making me very nervous and which was a very uncommon thing for him to do." Goldsberry stated that he did make out a worksheet for that day and that, after Peres "got the air charger and water charger over there to me , he stood right directly back of my machine watching me the whole shift." He further testified that Peres did not say that the trouble he was experiencing with his machine was his fault, but that it was due to mechanical difficulties. Goldsberry's normal lunch break was 7 o'clock, but on that day he did not take it because Peres told him not to shut down for lunch but to keep the machine running until he finished the order, which would involve some additional 40 minutes of running time. He testified that normally, if an operator had "very little to go he would finish the order," but if he had 30 minutes or more running time the normal procedure was that the operator would shut down the machine and go to lunch. Goldsberry testified that, pursuant to the instructions given him, he kept running the machine and at 7 o'clock Warburton went home because he had worked the previous shift and had accumulated 4 hours of overtime. Thereupon, so Goldsberry testified, Foreman Peres began air charging for him. Goldsberry testified that, while Peres was air charging, one Carl Hanger was water charging, and that he believed that that was Hanger's first day on the job. At or about 7:40, Goldsberry and Peres finished the run and he and Hanger then took their lunch break. While in the lunch- room, with a number of employees also present, Goldsberry discussed with them the meeting he had attended and asked if any ofthem would be willing to sign union representation cards, and further stated that, if any were interested in meeting after work, they could do so at Zanoni's motel room. He told them the location. At or about that point, one of the employees told him to "watch it because this other guy was the foreman, which I didn't know at the time, which really didn't make no difference to me." Goldsberry stated that he was told that the foreman was one Don Verbas, from the mill, and that Verbas was approximately 5 feet away from him as Hanger and Goldsberry were talking to other employees in a normal tone of voice. Goldsberry then was wearing his union button. At approximately 8 o'clock, before he went back to work, Goldsberry called Zanoni and told him , as he related, that he thought he was in trouble because Peres had been watching him all evening and Verbas had been in the lunchroom while he was speaking to the employees. When he returned to work, he had to make a changeover, inasmuch as he had finished the prior order on which he had been working. On his way back to work he passed Bergeron who, according to Goldsberry , "was observing my union button," which he was wearing on his belt. Goldsberry stated that when he came to his machine at approximately 8 o'clock it was necessary for him to run the compound out of his machine and start to make his changeover. Hanger, who was working with him, did not know anything about the job and asked Peres what he was supposed to get in the way of stock. Peres told him the number of the stock and thereupon Hanger asked Golds- berry about the matter and Goldsberry stated he would go over to the stockroom and help Hanger bring it. Goldsberry then went with Hanger and with the lift truck helped him to bring several loads of material. Goldsberry related that he had a "considerable amount of trouble getting my head cleaned out on the machine because of the compound I was using, which was colored compound and it was one of the stickier colored compounds," and that the compound had "cooked on the head of the machine during this lunch 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period" and that it was sticky and it was necessary for him to clean the compound with a scraper which, so he related, "takes quite a bit of time" Having been shown has worksheet for that day, Goldsberry related that, after cleaning out the machine and the heads and dies, he put the dies back in at approximately 8:15 and began running the new compound. In the process, he had some difficulty looking for tools and his foreman went to get the dies for him and said a quality control man did in fact get the dies while Peres was watching him. It is Goldsberry's testimony that, by reason of Peres "standing there watching me," he became nervous because he was wearing a union button and further related that he "had a feeling that the man was out to get me for my union activities , for wearing this union button." Upon completing the changeover, neither Hanger nor Warburton was assisting him, and he further related that he told Peres Hanger did not know what he was doing and did need someone to help him. However, Peres did not offer to help Hanger but Goldsberry did. Upon completing his changeover Goldsberry, referring to his worksheet for that evening, stated that it appeared that he had completed his changeover by approximately 9:15, which he stated would have involved an hour and 15 or 20 minutes. He further stated that he assisted Hanger and that Peres was still standing in back of his machine and could observe what he was doing and that, if he had been doing something incorrectly, Peres would have told him. He then went back and helped Hanger and explained to him how to air up the hose. He related that he attempted to show Hanger how to check the outer dimension measurement and the inner dimension measurement and in other respects endeavored to assist him in the production process. He testified that shortly he was called by Peres who stated that it had taken him too long to make the changeover. To this, Goldsberry testified he replied, "Under the circumstances, I don't think it did take me too long to make the changeover," and that he was assisting the air charger during that period . Peres, according to Goldsberry, replied, "Well, it still took you too long to make the changeover." Goldsberry responded that he was then ready to run his machine, and thereupon he walked over to his machine and started to activate it. Then Peres said, according to Goldsberry, "Don't start that machine," and when Goldsberry inquired the reason for that, Peres responded, "Punch your card and get out of here." Goldsberry inquired if he was fired and Peres answered that he was. When Goldsberry asked for the reason, Peres replied, "Well, it took you too long to make this changeover." Thereupon Goldsberry punched out his timecard and left. In general, witnesses for the Respondent denied or gave different versions of the statements and actions attributed to them by witnesses for the General Counsel. Poore, who had been a foreman until he resigned on April 15, testified that, with respect to the statement attributed to him by Dorwart that the latter had better watch his step and that the Respondent was trying to get rid of him, he did make a statement to the effect "that we all better be damn careful or we're going down the line" and that he was referring to production, work habits, and "everything." As to whether that conversation had any connection with union activities, he replied, "Well, union activities were involved at that time, you know." Poore testified that he did not recall making a statement to Dorwart to the effect that the reason he didn't get a job that had been posted was because he was a union agitator. He also said that he did not recall making a statement to Dorwart to the effect that if O'Dea did not get his job back the Board must be on the take. Production Manager Bauer testified that the Respondent, prior to September 19, 1975, had had problems with offcenter hose. On May 13, 1975, he issued a memorandum to production foremen, in which he made the following statement: FURTHER I AM OF THE OPINION THAT OUR AMOUNT OF OFF CENTER HOSE AT COVER IS COMPLETELY UNACCEPTABLE. I EXPECT EACH OF YOU TO TAKE WHATEVER ACTION IS NECESSARY TO BRING THIS PROBLEM UNDER CONTROL. IF IT IS NECESSARY TO REMOVE OR TERMINATE AN OPERATOR, I FULLY EXPECT THIS TO BE THE ACTION TAKEN. Concerning the December 4 meeting with O'Dea, which was also attended by Bergeron, Bauer made the following summary for the file: O'DEA CAME TO US CONCERNING THE TWO RECENT REPRIMANDS THAT HE HAD RECEIVED. O'DEA'S GENERAL COMMENTS INDICATED THAT HE WAS UNDESERVING OF THE CITATIONS AND FELT THAT HIS PERFORMANCE WAS NOT SUBSTANDARD. BERGERON REVIEWED O'DEA'S PERFORMANCE FROM 12-1-75 AND FOUND THAT HIS PERFORMANCE WAS DETERIORATING RAPIDLY DURING THAT TIME AND PREVIOUSLY O'DEA HAD BEEN A GOOD OPERATOR. IN REVIEWING THE RECORDS WE FOUND THAT O'DEA WAS RUNNING APPROXIMATELY 20% OR BETTER DEFECTIVE HOSE . AT THIS POINT O'DEA GAVE THE IMPRESSION THAT PERHAPS HE SHOULD BE REMOVED FROM THE COVER MACHINE. BERGERON THEN STATED THAT SINCE O'DEA HAD BEEN PERFORMING SATISFACTORILY IN THE PAST THAT IT WOULD HAVE TO BE O'DEA'S DECISION. AT THIS POINT IT WAS DECIDED BY ALL CONCERNED THAT O'DEA WOULD CONTINUE ON THE MACHINE AND IF PROBLEMS DEVELOPED HE WOULD CONTACT HIS FOREMAN AND/OR QUALITY INSPECTOR AFTER HE HAS RUN TWO PANS only OF DISCREPANT HOSE AND CANNOT STRAIGHTEN THE MACHINE OUT. O'DEA INDICATED THAT HE NEEDED WATER PUMP PLIERS WHICH HE HAD NOT BEEN ISSUED, BAUER WILL SEE THAT HE GETS THEM IMMEDIATELY. Bauer testified that, when he received the finished goods inspection report for the night of January 22, he noticed "that someone had run an excessive amount of offcenter and large ID hoses on one of the machines and in this case it was 21021 and I wanted to know who and why." Bauer related that he consulted with the waste and quality control manager, who stated that as far as he knew there was no quality control report showing mechanical deficiency or anything else. Bauer expressed the view that the offcenter hoses, if not attributable to "some overbearing mechanical reason," could only have been caused by "direct operator deficiency." He then contacted Foreman Peres and asked him to investigate. Thereupon followed the meeting of ELECTRIC HOSE & RUBBER COMPANY 977 January 23, in Bergeron's office. According to Bauer, O'Dea, when questioned as to why he had such a large amount of offcenter hoses , stated that he had had no problems. Bauer testified that the matter was discussed and stated that, inasmuch as O'Dea "had received two previous warnings and that this was his third one and under the circumstances there was no alternative but to dismiss him." Bergeron thereupon told O'Dea that he was terminated. Concerning Goldsberry, Foreman Peres wrote him a memorandum on July 21, 1975, stating that his absence on July 18 was unexcused and that if "further problems such as this happened again, stricter action will be taken to control the problems." Goldsberry was also charged with an unexcused absence on August 3. On September 8, Foreman Peres wrote a memorandum to Goldsberry stating that he had "been previously warned about chronic absenteeism, as well as not informing your foreman about being absent"; he advised Goldsberry that he was being placed on probation for 30 days and that the terms thereof provided "that if you are late or miss any working days for 30 days you will be immediately terminated." Goldsberry was given a separation notice on September 23, but this was rescinded by Production Manager Bauer, who testified that Bergeron called him and told him that he had talked to O'Dea and Goldsberry and he was going to give Goldsberry a second chance and allow him to come back to work, but that his attendance and work would have to be satisfactory. On September 29, Bauer issued a memorandum to Goldsberry, advising that he had previously been warned "about excessive changeover time," and that on September 29 he "had a two (2) hour plus changeover." The memorandum further recited that Goldsberry had been notified on July 21 of the unexcused absence on July 18 and again on September 8 concerning "a similar absenteeism problem," and had then been placed on probation for 30 days. The memorandum further stated that, during the week of September 22, he violated his probation by being absent for 3 days without a medical excuse. Bauer concluded by stating that because of Goldsberry's "excessive changeover time, your absenteeism, your general poor work perfor- mance, and your complete disregard for company policy including previous warnings you had received, you are hereby terminated." Peres related that, on the night of September 29, Goldsberry was serving as a cover operator and had been assigned a new air charger, Carl Hanger , to assist him, and had asked Walter Warburton, another air charger, to stay over and help Hanger. Goldsberry, so Peres testified, was running a compound for some 4 hours and 20 minutes. At 7 o'clock, the usual shutting down time for lunch, Goldsberry wanted to shut down but Peres, so he testified, "informed Steve that he was to run the three pans ofhose that was left on the floor that had already been aired up by 7, and he stated to me that it would take probably another 30 or 40 minutes to run it, and I informed Steve that it would save us time rather than starting back up again" after shutting down. According to Peres, Goldsberry "completed the run, and he did not clean out or anything. He just walked off and went to the lunchroom, whereas it was probably 22 after when he finished the run." Goldsberry returned from lunch at 7:45 or 7 :50, so Peres testified, and started his changeover. Goldsberry began cleaning out his machine and Peres got the dies for him, at approximately 8 p.m. according to Peres; he noticed that Goldsberry's machine was still down at approximately 9:15, and he asked if there was anything wrong; Goldsberry replied in the negative. Peres denied that during this entire shift he was standing within a few feet of Goldsberry and stated that he was throughout the production area during that period. At or about 9:30, so Peres testified, he noticed Goldsberry talking to Hanger and told him to discontinue that and "to continue his changeover and he better hurry up." At or about that time, Peres telephoned Bauer at home and told him that he was having a problem , that Goldsberry "was taking excessive changeover, and that I just wanted him to know that I was having a problem in that production cover area." Peres acknowledged that the compound Goldsberry had to remove from his machine might take somewhat longer than ordinary compound because, as he testified, it was "a little more sticky." However, he testified that he still felt that Goldsberry was taking an excessive amount of time to make the changeover. Peres acknowledged that on that day he was aware that Goldsberry was wearing a union, button but stated that "made no difference to me." At or about 10 o'clock Bauer called Peres and asked him how production was running and Peres testified that he told Bauer that Goldsberry was not completing the changeover and Bauer instructed that he should clock Goldsberry out. Thereupon Peres told Goldsberry "that he might as well pack up his tools and check out, and he told me that it was ready to run, and he walked back to his extruder and was ready to start it up, and I walked up behind him, and I said, `Steve, don't bother. Go punch out. You are fired.' " Wickizer, employed by the Respondent as a cover operator on the 3-to-11 shift, testified that she was ac- quainted with Goldsberry and Hanger and that, on the evening Goldsberry was discharged, Foreman Peres asked her to assist Hanger, a new air charger, at approximately 7:30 or 8 o'clock in the evening. She related that she did help Hanger for 1-1/2 or 2 hours and that she did not notice Goldsberry assisting Hanger. She testified that Foreman Peres went through the area but that she did not notice him standing next to Goldsberry . She denied that Peres stayed in that general area, as O'Dea had testified, during the entire shift. She further denied that she observed Goldsber- ry and Hanger take a jack truck and make several trips to the stock supply area. She also testified that she was familiar with the matter of running hose number 21021 and, from her experience in running that type of hose, it was no harder than any other. She further stated that about a week after O'Dea was discharged she took over running the cover machine that he had operated and that she found no mechanical problems with that machine that would cause excessive outer diameter, excessive inner diameter, or offcenter hose. She testified that she did not observe Foreman Peres, prior to lunch, air charging at the machine Hanger was operating and further stated that it was not customary for a supervisor to air charge although on occasion that did occur. She stated that she had had changeovers that exceeded an hour and that she never had received a warning letter. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanger, who went to work for the Respondent on September 29, and later was assigned the job ofair charger on the 3-to- 11 shift, testified that he was trained by Walter Warburton from 3 to 7 in the evening and, thereafter, Wickizer helped him . According to Hanger, Goldsberry did not help him or show him where the stock was, and he denied that Peres stood in his work vicinity but that he was in and out. He further denied that Peres assisted him in the performance of his duties .5 Hanger stated that on the evening of September 29 he observed Goldsberry and O'Dea each wearing a union button, but that he did not notice any other employees doing so. He also testified that Supervisor Don Verbas had asked him if O'Dea was wearing a union button and that he said O'Dea was. He also related that Bergeron asked him if O'Dea and Goldsberry were wearing union buttons and that he replied in the affirmative. C. Concluding Findings I am persuaded that the Respondent engaged in conduct violative of Section 8(a)(l) of the Act, substantially as alleged in the complaint. Much of the testimony of Dorwart, still employed by the Respondent, is uncontra- dicted; moreover, he impressed me very favorably as a witness. As set forth above, Dorwart was active in behalf of the Union, a fact well known to the Respondent. I credit his testimony to the effect that, on December 1, Supervisor Poore told him that he would have to watch his step and that Plant Manager Bergeron had told foremen at a meeting that Foreman Stowers should try to get something on him in order to fmd cause to discharge him. About June 30, in a conversation with Foreman Gavers, the latter told Dorwart he had not gotten a job opening because he was a union agitator. At a meeting on February 10, Bergeron spoke about the Union and the up-coming election and remarked that the McCook facility could be moved at any time without notice. Foreman Gavers also stated that the Union would lose the election - and a year would have to elapse before it could campaign again and, by that time, no union supporters would be left working at the McCook plant. Supervisor Poore, in a conversation with Dorwart about February 10, stated that Sitzman, a quality control supervisor, had said that the Respondent did not have a leg to stand on in connection with the discharge of O'Dea, and further stated that Dorwart should watch his step because the Respondent was endeavoring to find something on Dorwart for which he could be discharged, inasmuch as it was felt that, if another election were held, Dorwart would again be an organizer. Early in May 1976, Foreman Gavers told Dorwart that if the Union had gotten in the Respon- dent would have closed the plant in McCook and moved to some other area. As we have seen, Foreman Gavers was not called as a witness. In his brief, counsel for the Respondent states that Bergeron's offer to replace Dorwart with two men, "far from indicating a desire to discharge Dorwart, the comment was made in the context of considering Dorwart for promotion to a supervisory position." However, counsel for the Union points out that Dorwart was not offered a position as foreman until April 1976, which "is some four or five months after the conversation of December 1, 1975, thus making it impossible for Poore to have been referring to this conversation in December." Concerning Dorwart's testimony that, on April 15, he had a conversation with Poore about the letter he received on the subject of his absenteeism record, and that Poore suggested that the Respondent may have given other employees such letters in order to camouflage the one given Dorwart, counsel states that this testimony "is utterly incredible" and argues that since this was Poore's last day at work all he said to Dorwart was "good-bye." Counsel also urges that, as Bergeron testified, Dorwart was only 1 of approximately 40 employees who received identical letters and that it is incredible that Dorwart, who stated that the letter was paper-clipped to his timecard, "didn't even notice that letters were also clipped to the timecards of other employees." Counsel further argues that, even if Bergeron, on February 10, made statements to the effect that McCook plant could be moved at any time, such comments, if made, "were nothing more than Mr. Bergeron's noncoercive observations and predictions of some possible economic consequences which could flow from a union strike at McCook, containing no threats of reprisals . As such, they were legitimate observations protected by Section 8(c) of the Act." With respect to the statement Dorwart attributed to Bergeron to the effect that the Union would lose the election and a year would elapse before it could campaign again and prior thereto there would be no union supporters left working in the plant, counsel asserts that "this alleged statement is an utter fabrication by Dorwart." He contends that, since Dorwart testified that about 19 employees attended this meeting, counsel for the General Counsel had these persons as potential witnesses to substantiate Dor- wart's testimony, and that the failure of the Government "to call such easily available corroborative witnesses creates the compelling inference that no such statement was ever made." However, as pointed out previously, these potential witnesses were equally available to the Respon- dent. Finally, the uncontradicted testimony of Dorwart concerning the statements he attributed to Foreman Gavers, that the Respondent would have moved the plant if the Union got in and had been attempting to get rid of Dorwart but couldn't find anything against him, consti- tutes, first, an implied threat that the plant would be moved if the employees attempted to organize in the future and, secondly, created the impression of surveillance and constituted a veiled threat. We turn now to a consideration of the termination of O'Dea and Goldsberry, and the reasons therefor. Counsel for the Union asserts that while there "is a maze of conflicting and tangently related testimony concerning the 8(aX3) violations," these "can be resolved rather simply by examining" certain exhibits and "some relevant testimony." He notes that the Respondent was aware of the union activity of O'Dea and Goldsberry and that, while all parties agree that they were discharged, "they disagree as to the S Hanger testified that an agent of the Board took a statement from him, read it to him, but that he refused to sign it. ELECTRIC HOSE & RUBBER COMPANY motivation and as to whether or not reprimands were discriminately issued." He further states that, even assum- ing that these employees "did take excessive time to make changeovers, and in O'Dea's case produce substandard hose on two occasions, their discharge is still violative of the Act." Initially, counsel for the Union notes that Production Manager Bauer's letter of August 27 deals, in part, with excessive changeover time, which was "the exact problem which precipitated Steven Goldsberry's discharge and Leonard O'Dea's first warning letter." He then calls attention to the letter written by Bauer in May 1975, which related to the matter of offcenter hose, which precipitated the discharge of O'Dea. Next, he calls attention to the letter written by Foreman Peres on November 11, which again related to the subject of offcenter hose. He then asserts that these writings "clearly indicate that Respondent was experiencing a problem with excessive changeover time which predated either of the instant discharges. When viewed in this light, these letters and some portions of the testimony become dispositive of the proceedings." Counsel for the Union calls attention to the November 11 memorandum issued by Foreman Peres to all cover operators, which states, in part: ALTHOUGH A GREAT DEAL OF EMPHASIS HAS BEEN PUT ON THE MATTER OF OFF CENTER HOSE THERE STILL SEEMS TO BE A SIZABLE QUANTITY OF IT PRODUCED. I WILL AGREE THAT SOME OF THE FACTORS CONTRIBUTING TO THIS PROBLEM ARE AT TIMES BEYOND YOUR CONTROL. WHEN THESE APPEAR IT IS YOUR RESPONSIBILITY TO SHUT DOWN THE OPERATION AND SEEK ASSISTANCE FROM YOUR FOREMAN, QUALITY CONTROL, OR BILL SITZMAN BEFORE A SIZABLE AMOUNT OF AN OFF CENTER PRODUCT IS PRODUCED. ALSO, IT IS YOUR RESPONSIBILITY TO SEE THAT YOU ARE AS NEAR ON CENTER BEFORE STARTING A COVERING OPERATION (CHECKING OF FREE EXTRUDATE), AND DOUBLE CHECKING THE HOSE ON YOUR FIRST ONE OR TWO PANS BEFORE YOU ATTEMPT TO SPEED UP THE COVERING PROCESS ON ANY SPEC. I ALSO WANT MORE EXTENSIVE USE OF THE THICKNESS GAUGES AND LESS EYEBALLING. IT IS ONLY FAIR AT THIS TIME TO WARN YOU THAT IF THIS PROBLEM PERSISTS I WILL HAVE TO TAKE ACTION AGAINST THE PARTY OR PARTIES INVOLVED WHICH WILL RESULT IN SEVERE REPRIMAND OR REMOVAL FROM YOUR POSITION AS A COVER OPERATOR. THERE WILL BE NO MORE VERBAL WARNINGS! Counsel for the Union contends that the foregoing indicates that the Respondent "had available to it the option of removing an unsuccessful operator from his position as a cover operator without discharging him, yet immediately upon discovering problems by O'Dea and 8 Two other incidents of alleged disparate treatment of O'Dea are referred to by counsel. He notes that Bauer testified that, when Bill Hams, an employee, was having some difficulty with the cover machine , his foreman wrote him a letter suggesting he bid on another job. Whereas, when O'Dea encountered similar difficulties, he did not receive such a letter but was advised there was no need to move him . When employee Craig Francis bent some dies in a cover machine in January 1975, he was given a letter which 979 Goldsberry Respondent elected to discharge them." Coun- sel further notes that the Respondent admits that it had never previously discharged any other cover operator for having similar problems, and therefore, he asserts that "it becomes apparent that Respondent's alleged reason for their discharge was pretextual." " In addition, he calls attention to the fact that Bauer testified that in the past he had had experience with other employees who had been unable to produce satisfactorily on the cover machine, but that they had not been discharged. In consequence, counsel argues that this testimony "makes it apparent that O'Dea and Goldsberry were singled out for disparate treatment," and that the record establishes that their terminations were violative of the Act inasmuch as the Respondent "admits having a problem with these areas of production but admits it discharged only the two leading Union adherents for it." Moreover, he calls attention to the fact the Respondent admitted that "it has a policy of issuing a verbal warning before any letter of reprimand is issued, but the evidence indicates that neither Goldsberry or O'Dea ever received such a verbal warning." Finally, he points to the fact that the Respondent destroyed all relevant records involving the time period in question, except the records of Goldsberry and O'Dea, thus precluding a comparison of their treat- ment with that of other employees who took similar times to make changeovers. In consequence, he contends that "we are left with two facts of record which indicate disparate treatment": First, a search of the Respondent's records revealed only three warning letters sent to other employees for similar conduct which, he contends, indi- cates that, although the Respondent was experiencing a substantial number of excessive changeovers, in the case of other employees the Respondent did not reprimand or dismiss them; secondly, the Respondent produced records for a 2-week period which it represented to be a representa- tive sample and which contained some 10 incidents of employees taking over 1 hour to make a changeover and, in addition, contained a number of documents which did not indicate the total time elapsed .6 In summary, it is the position of counsel for the Union that the record shows that the Respondent had a continuing problem with excessive changeover times and defective hose but, despite this, the Respondent took no action against O'Dea and Goldsberry "until their Union activities became apparent." Then, Goldsberry was terminated and O'Dea began receiving letters of reprimand which, he asserts, "were not adminis- tered according to the procedure Respondent followed with other employees and despite the fact that his supervisors categorized him as a good air charger." The circumstances relating to Goldsberry's employment and the incidents that immediately preceded his termina- tion have been related above and need not be repeated here. The record clearly shows that Goldsberry had not been a model employee, a fact conceded by counsel for the Union. He had received three letters of reprimand for stated that "the only alternative if this continues is to remove you from the cover machine." Counsel notes that, in O'Dea's case, he was advised that the alternative was discharge. Counsel argues that since Hams and Francis are still employed, but in different positions, "evidences Respondent's policy of moving, rather than discharging, persons unable to handle the cover machine job." 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absenteeism and had been terminated because he missed 3 consecutive days of work without reporting. It seems clear that no question could have been raised about the propriety of his termination on that occasion, but the Respondent rescinded the discharge and permitted Goldsberry to return to work. On Friday, September 25, Goldsberry worked without incident. The following Sunday he attended his first union meeting and appeared at work on Monday, September 29, wearing a union button. During his lunch break on that day Goldsberry discussed the union meeting that he had attended with several employees in the lunchroom, asked them if they would be willing to sign authorization cards, and told them where they could meet with Union Representative Zanoni if they were interested. Present on this occasion was a foreman, but Goldsberry did not know he held that position. As has been related, after Goldsberry returned to his work station he experienced some difficulty in making a changeover and, as he testified credibly, assisted a new employee in performing his job. Although I am of the view that O'Dea and Goldsberry exaggerated to some extent in testifying that Foreman Peres spent a substantial amount of time in their area during that shift, I am convinced that Peres did, in fact, observe them more closely than customary. It seems somewhat odd to me that Foreman Peres found it necessary to call Bauer at home and report to him that Goldsberry was taking an excessive amount of time to make a changeover, and about a half hour later for Bauer to call Peres and order that Goldsberry be terminated. Counsel for the Union, in his brief, asserts that the testimony of Peres "is rendered suspect by several matters." He noted that Peres apparently was able to remember the exact time, 7:22 p.m., that a run of hose was completed and the exact time, 8 p.m., that he picked up a set of dies, "but he is unable to remember talking to the plant manager who was in the plant" and, further, "unable to remember telephoning the plant manager at home when Bergeron testified he had called to assure that Goldsberry would not be reinstated again" and, "unable to remember who was there water charging the hose, but remembers everyone else involved and the relevant times." Further, he notes that Peres at one point asserted that Goldsberry never com- pleted his changeover but thereafter stated that Goldsberry was ready to start up his machine when he was terminated. In addition, he observes that, while Peres stated he called Bauer because production was tight at that time, he nevertheless permitted employee Wickizer to "stand around for one and one half hours and then sent her back to assist another operator run twin hose, a job admittedly one man can do, and left Goldsberry's machine down for an hour until shift change." He also calls attention to the fact that Peres allowed another employee to "sit around, drinking coffee on overtime." Finally, he points out that Peres testified that he took Goldsberry to task for unneces- sarily talking with Hanger, but both Wickizer and Hanger testified that they did not recall that Goldsberry talked to them. Plant Manager Bergeron was admittedly in the plant that evening about 9:15, to see Foreman Peres and asked the latter if he had any problems, to which Peres replied in the negative. However, approximately 15 minutes later Peres called his supervisor, as related above, and reported concerning Goldsberry. For the foregoing reasons, counsel for the Union takes the position Peres was not a credible witness. Hanger, as a witness, admitted that the day in question was his first day and that he had had no prior training. He further admitted making prior inconsistent statements to a Board agent but he refused to state why he refused to sign these statements, even after having been apprised by me that his refusal might adversely reflect upon the believability of his testimony. I was not favorably impressed with Hanger and, therefore, where his testimony differs from that of witnesses presented by counsel for the General Counsel, I do not credit him. While the matter is by no means crystal clear, I am persuaded that the Respondent's attitude towards Golds- berry changed markedly after it became aware that he was a union supporter. Prior thereto, it had tolerated his absenteeism and had reinstated him after he had been terminated for reasons that could not properly be ques- tioned. I am convinced that on the day he was terminated he experienced difficulty with making a changeover and also assisted Hanger, a new employee, in the performance of his job. Moreover, the timing of his termination in relation to his discussion of the union meeting he had attended the previous day, which was overheard by a foreman, cannot be overlooked. During the course of the workday, he was observed by Foreman Peres more closely than customary, and the latter seized upon the fact that Goldsberry took longer than usual to make a changeover as a pretext for discharging him, whereas the record clearly shows that it was not unusual for other cover operators to take longer than normal to make a changeover. According- ly, I conclude and find that the Respondent terminated Goldsberry because of his union activity. Maxine Wickizer, who was employed by the Respondent as a cover operator on the 3-to-1I shift, testified that she was acquainted with Goldsberry and Hanger and that, on the evening Goldsberry was discharged, Foreman Peres asked her to assist Hanger, a new air charger, at approxi- mately 7:30 or 8 o'clock. She related that she did help Hanger for 1-1/2 or 2 hours, and that she did not notice that Goldsberry assisted Hanger. She testified that Fore- man Peres went through the area but that she did not notice him standing next to Goldsberry. She denied that Peres stayed in that general area, as O'Dea had testified, during the entire shift. She further denied that she observed Goldsberry and Hanger take a jack truck and make several trips to the stock supply area. She also testified that she was familiar with the matter of running hose number 21021 and from her experience in running that type of hose it was no harder than any other. She further stated that about a week after O'Dea was discharged she took over running the cover machine that he had operated and that she found no mechanical problems with that machine that would cause excessive outdiameter, excessive innerdiameter or offcenter hose. She further testified that she did not observe Foreman Peres, prior to lunch, air-charging at the machine Hanger was operating, and further stated that it was not customary for a supervisor to air charge although that on occasion did occur. She also stated that she had had changeovers that exceeded an hour and that she never had received a warning letter. ELECTRIC HOSE & RUBBER COMPANY 981 Hanger, who went to work for the Respondent on September 29 and later was assigned the job of air charger on the 3-to-11 shift, testified that he was trained by Warburton from 3 to 7 in the evening and, thereafter, Wickizer helped him. According to Hanger, Goldsberry did not help him or show him where the stock was, and he denied that Peres stood in his work vicinity, but that he was in and out; he further denied that Peres assisted him in the performance of his duties. On cross-examination, Hanger testified that an agent of the Board took a statement from him, read it to him, but that he refused to sign it . He also stated that, on the evening of September 29, he observed Goldsberry and O'Dea each wearing a union button but that he had not noticed any other employees doing so. He also testified that Supervisor Don Verbas had asked him if O'Dea was wearing a union button and that he replied in the affirmative, and that Bergeron asked him if O'Dea and Goldsberry were wearing union buttons and that he replied in the affirmative. The termination of O'Dea occurred on January 23, some 4 months after he appeared in the plant wearing a union button and after the Respondent had been informed by the Union that he was on the in-plant organizing committee. O'Dea received his first warning letter on December 2, allegedly for taking too long to make a changeover. O'Dea discussed this matter with Foreman Peres and asked how long it should take to make a changeover , to which Peres replied that it depended on what he was changing from and what he was changing to. When O'Dea asked how long it should have taken him to make that changeover, Peres stated that he did not know but in any case O'Dea took too long. O'Dea asked Peres whether anyone in the plant had ever seen him "screwing off" on a job, Peres responded in the negative except for that evening, and added that normally O'Dea was "a damn good operator." He further stated, "We have been watching tonight and we thought you were screwing off." Counsel for the Union points out that his conversation was not denied by Peres, and that it indicates that the reprimand O'Dea received was not issued in "the normal course of business." He further contends that Peres and someone he did not identify "were admitted- ly watching O'Dea," and suggests that the purpose was "to find something to reprimand O'Dea for," noting that "why else would at least two people be watching someone who is admittedly `a damn good operator?' " Counsel calls attention to the fact that Bauer in effect testified that he may have overlooked excessive changeovers in reviewing the worksheets and argues that the Respondent was so unconcerned about the changeover times "that it allowed documents indicating excessive times to slip through its fingers, but took the time to watch the only man in the plant wearing a union button." The following day O'Dea received his second warning letter, which stated that he had produced large outerdiame- ter hose. While this was not disputed by O'Dea, the Union contends that the defect was not due to operator error and that the Respondent was aware of this fact when it sent O'Dea that letter. As previously related, O'Dea produced some 3,654 feet of oversize hose on this occasion. Accord- ing to the Respondent, the defect was caused by too much rubber, whereas O'Dea took the position that it was caused by excessive water pressure expanding the hose . It is the position of counsel for the Union that these divergent views make it critical "to determine whether the inside as well as the outside diameter were expanded." In this connection, he observes that the Respondent has destroyed all records relevant to the hose in question, "leaving us with conflicting testimony." Although the Respondent's witnesses claimed that they remembered the hose as being only larger outerdiameter, counsel points out that the plant produces some 600,000 feet of hose per day, of which approximately 23,000 feet is either seconds or scrap . He further calls attention to the fact that O'Dea related that he measured the hose and found that it was within tolerance and that the quality control man, Gorley, checked the hose and made no comment about large outerdiameter or excess rubber. In addition, Foreman Peres had seen the hose and made no comment about too much rubber, and Quality Control Operator Sitzman reviewed the reports for December 2 and admittedly found nothing out of the ordinary . Counsel calls attention to the fact that on January 12 the quality control man told O'Dea that a run of hose produced by the previous operator had come out of the vulcanizer and was no good, and commented that no more water-charged hose would be run until the problem was located . The following day, Sitzman personally supervised the water charging of the hose and thereafter water pressure valves were installed. Counsel for the Union asserts that the evidence establishes that the Respondent was aware of a problem with the water-charged hose and that "the only logical explanation is that O'Dea's hose was expanded by water pressure after it was produced and despite all this, Respondent seized the opportunity to give O'Dea his second warning letter." According to counsel, this theory is supported by a conversation O'Dea had with Peres on January 13, in which O'Dea asked if he had run all that hose by himself he probably would have been fired and that Peres replied "most likely." Counsel contends that this statement "clearly evidences an attempt to get O'Dea since the other employee received not even a reprimand." Counsel for the Union calls attention to the fact that on cross-examination O'Dea admitted that he ran the hose and that the quality control man informed him it was both large outerdiameter and large innerdiameter, which he contends clearly indicates that one of the Respondent's employees whose job it was to measure the hose reported that it was both large innerdiam- eter and larger outerdiameter, a condition caused by excess water pressure. He further notes that, after having elicited this testimony, the Respondent did not put the quality control man on the stand, thereby giving rise to an inference that his testimony would be adverse to the Respondent. The third and final reprimand O'Dea received was on January 23 and dealt with the production of offcenter hose. On this occasion O'Dea produced only 89 feet of scrap and some 3,000 feet of offcenter hose. While O'Dea admittedly produced the hose, there is testimony that the quality control man checked the hose and found nothing wrong with it, and that Sitzman reviewed the reports of the quality control man for January 22, and noticed nothing out of the ordinary. Foreman Peres first testified that Bauer asked him if he had had any problems running number 21021 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hose and he indicated to Bauer that they had not had any problems. However, shortly after so testifying Peres then testified that after he looked at the hose it "was more or less unbelievably offcenter, no cover on one side." In this connection, counsel states that either Foreman Peres "was so negligent in his supervision that he did not notice one of his five operators producing hose with a cover on only one side, or something happened to the hose after it was produced." He suggests that, out of deference to Foreman Peres, the latter possibility occurred. He further calls attention to the fact that about 12 days after O'Dea was discharged a bearing was replaced on the machine he had operated, the function of the bearing being to keep the drum turning evenly and smoothly, and that other defective hose was produced on that machine the night following O'Dea's discharge. Counsel for the Union states that, while the Respondent sought to explain the second incident as a vulcanizer problem, it had previously attributed it to a power failure. He argues that the possibility of mechanical failure causing both defective runs is a strong one but that, "for the second time Respondent chose not to reprimand one employee who produced defective hose, but chose to discipline O'Dea for having problems with the identical hose within a single day's time." The testimony of Plant Manager Bergeron to the effect that supervisors had been instructed to remain impartial and treat everyone fairly has not been overlooked. How- ever, this is contradicted by the fact that as previously pointed out, Dorwart was told by Foreman Gavers that he did not get a job on which he had bid because he was a "union agitator." In addition, Bergeron, as O'Dea testified, at a meeting on December 8, Bergeron stated that the Respondent's Wilmington, Delaware, plant would soon be completely closed because of the Union, and also said that unions were no good for anyone, did nothing but collect dues and bring gangsters and crooks into town. Such statements are scarcely intended to insure impartiality and fairness. In my opinion, they indicate hostility toward unions. To conclude, I am of the view that the Respondent was motivated in substantial part by O'Dea's union activity in terminating him. O'Dea was originally hired in May as an air charger at $2.65 per hour; within 4 months he had progressed to $3.60 per hour and had become a cover operator. He had not, during this period, received a warning or reprimand and from all that appears he was considered a good employee. O'Dea impressed me very favorably as a witness, and I find it very difficult to believe that his work performance deteriorated to such an extent that it was necessary for the Respondent to issue written reprimands to him . I note that, in the meeting concerning his termination, O'Dea inquired if there was not some other job he could do and Bergeron replied , "No, not under the circumstances." Counsel for the Union asserts that "this is a strange response when viewed in light of Peres' testimony ... wherin he testified that some individuals with three reprimands are still working in the plant and that the reprimands were for absenteeism and not doing their job properly." Accordingly, he argues that the "circumstances" must have "referred to something other than O'Dea's reprimands." Upon considering all the evidence and the reasonable inferences to be drawn therefrom , I conclude and ford that the Respondent terminated O'Dea because of his union activity and because he gave the Board an affidavit in connection with the investigation of Case 17- CA-6777, thereby violating Section 8 (a)(3), (4), and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Electric Hose & Rubber Company, McCook, Ne- braska, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By making threats to and questioning its employees concerning their activities in behalf of the Union, the Respondent violated Section 8(a)(1) of the Act. 3. By discharging Steven H . Goldsberry, the Respon- dent violated Section 8(a)(3) and (1) of the Act. 4. By discharging Leonard O'Dea, the Respondent violated Section 8(a)(4) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Goldsberry and O'Dea immediate and full reinstatement to their former positions and, if not available, to an equivalent position, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings each may have suffered by reason of the discrimi- nation against him, by payment to him of a sum of money equal to that which he would have earned from the date of his discharge to the date of the offer of reinstatement, consistent with Board policy set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest on backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these proceedings and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ELECTRIC HOSE & RUBBER COMPANY 983 ORDER? Respondent, Electric Hose & Rubber Company, McCook, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully questioning employees concerning their union activities or desires or threatening them with reprisals for engaging in union or protected concerted activities. (b) Unlawfully discharging or otherwise discriminating against any employee or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Steven H. Goldsberry and Leonard O'Dea immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Make the said employees whole for any loss of earnings each may have suffered by reason of Respondent's 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 obj ections thereto shall be deemed waived for all purposes. unlawful discrimination against him, in the manner set forth in the section of this Decision entitled "the Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its premises in McCook, Nebraska, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms to be provided by the Regional Director for Region 17, after being duly signed by a representative of the Respondent, shall be posted by the Respondent 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 custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."