Old Western Mfg., Co.

OLD WESTERN MANUFACTURING COMPANY Kenneth Jones d/b/a Old Western Manufacturing Company and Shopmen's Local Union No. 624 of the International Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO). Cases 20-CA-11338, 20-CA-11123, and 20-RC-13375 August 8, 1977 DECISION, ORDER, AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On November 12, 1976, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party, hereinafter called the Union, filed exceptions and supporting briefs. 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, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent, herein also called the Company, is engaged in the production of ornamental iron products at its places of business located in Fresno, California. At material times Respondent operated two facilities herein called respectively the Butler Street and G Street plants. In January 1976,2 some of Respondent's employees began discussing unionization among themselves during their lunch breaks and eventually contacted the Union and signed authorization cards. The Administrative Law Judge found that during one of these lunchtime discussions a number of employees, including Floyd Cruz, signed a paper indicating that they desired unionization. In the course of another discussion, Earl Maxwell, lead welder at Butler Street, asked Cruz how he felt about unions. Cruz made an equivocal reply.3 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. All dates herein are 1976 unless otherwise indicated. :' On February 5, Cruz was discharged. allegedly for failing to call in sick the previous day. The Administrative Law Judge found that Respondent's asserted reason for Cruz' termination was pretextual and that he was discharged because of his union activity. We agree with this finding and 231 NLRB No. 42 The Alleged Violations of Section 8(a)(1) of the Act The Administrative Law Judge found that on February 5, after Cruz was discharged, Bart Camare- na, Respondent's general foreman at Butler Street,4 told an employee, "I hate to see the guy go. He is a good welder. He is a good worker. But I got suspicions he's involved with the Union." The Administrative Law Judge failed to make any conclusions with regard to the complaint's allegation that this statement violated Section 8(a)(1) of the Act. We find merit to the General Counsel's exceptions to the Administrative Law Judge's failure so to conclude, inasmuch as Camarena's comment could reasonably be construed by other employees as a threat that they would receive similar treatment if they became involved with the Union. On February 13, the Union filed a petition with the Board's Regional Office seeking a representation election. On February 18, Camarena called a meeting of unit employees at which he told them that Respondent would not allow itself to go union; that Respondent would have to "close up" if it had to pay what the Union demanded; that the wages demand- ed by the Union were those of certified welders and if Respondent had to pay certified welders wages it would lay off welders who were not certified; and that if the Union became the employees' representa- tive and there were a strike Camarena would use guns and dogs if necessary to cross a picket line and would run over strikers with his truck. The Adminis- trative Law Judge found that the threat to close the plant violated Section 8(a)(1) of the Act but failed to make any conclusions regarding the other above- described statements which he found were made by Camarena at the same meeting and which were also alleged in the complaint to violate Section 8(a)(1). We find merit to the General Counsel's and the Union's exceptions to the Administrative Law Judge's failure to conclude that these comments were unlawful. These statements were clear threats of reprisal against employees for engaging in protected concerted activity and, as such, violated Section 8(a)(1) of the Act.5 The complaint further alleges that either at the February 18 meeting or at some time thereafter adopt the Administrative Law Judge's conclusion, to which no exceptions were taken, that Respondent violated Sec. 8(aX3) and (1) of the Act by discharging Cruz. 4 The complaint alleged that Camarena was a supervisor within the meaning of Sec. 2(11) of the Act and Respondent's answer admitted that Camarena was a foreman but denied that he was a supervisor. The Administrative Law Judge failed to make a specific finding as to his supervisory status. Inasmuch as Camarena testified without contradiction that he had the power to hire and fire employees, we conclude that, at matenal times herein, he was a supervisor within the meaning of Sec. 2( 1) of the Act. 5 We further conclude, as the Administrative Law Judge apparently did, (Continued) 193 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent announced that it was instituting a new warning system, and that the purpose of this announcement was to discourage employees from supporting the Union. The Administrative Law Judge found that the warning system constituted evidence of Respondent's union animus but failed to make any findings as to whether the announcement of the new procedure constituted an unfair labor practice. We agree with the General Counsel and the Union, as argued in their respective exceptions and the General Counsel's brief to the Board, that the purpose of announcing the new warning system, under which an employee would be automatically terminated after receiving three written warnings, was to discourage union activity. In so concluding we rely on the evidence that the new system was not announced until after the Union filed its petition; that it was announced at a time when Respondent was in the process of committing other unfair labor practices; and that, although Respondent at the hearing asserted a business justification for the new procedure, it is undisputed that its implementation was, at best, haphazard. Accordingly, we conclude that the announcement of the warning system violated Section 8(a)(1) of the Act. The Discharge of Daniel Cox Daniel Cox began working for Respondent as a production and maintenance employee in the spring of 1975 and acted as the Union's observer in the election. The Administrative Law Judge found that Camarena expressed surprise at learning that Cox was the Union's observer. On an unidentified date in April, Cox received a written "Notice of Second Warning" citing his "lack of attendance" on two dates during the preceding month. Although Cox was still working at the G Street plant, the slip was signed by Camarena, the Butler Street foreman. Despite the statement on the slip that it was a "second warning," the Administrative Law Judge found that Cox had never previously received a written warning6 and no exception was taken to this finding. Furthermore, Cox's timecards for the dates specified on the warning, which were admitted into evidence, indicate that the disavowal notice posted by Respondent sometime after the February 18 meeting was insufficient to constitute a repudiation of the threats. After the meeting Earl Maxwell, Respondent's lead welder, asked employee Ralph Benavides how he was going to vote in the election. Benavides replied that he was going to vote "no." In addition, on April 8, as Benavides was waiting in line to vote in the election, Maxwell approached him and told him that he could not vote and that, if he did, he would do "straight time." an apparent reference to the fact that Benavides was on parole. As discussed below, the Administrative Law Judge failed to make any findings as to Maxwell's alleged supervisory status. Such a finding requires resolutions which we are unable to make as to the credibility of witnesses. that he in fact worked 8 hours on each of the 2 days in question.7 On Friday, April 30, Cox arrived for work at G Street and was told by the foreman there to go over to Butler Street. When Cox replied that his car had broken down and he therefore had no transportation, he was told to catch a ride with another employee. Cox was also told to gather up his belongings, but was not instructed to take his welding equipment. When Cox arrived at the Butler Street facility, Camarena asked him where his welding helmet was and Cox replied that other employees had been using it and he had not had time to look for it. After some further discussion, Cox borrowed a helmet and went to work. At lunchtime, Cox told Maxwell that he was going to go pick up his car and would try to make it back to work. Maxwell told Cox that he would relay this information to Camarena but did not do so until Cox failed to return from his lunch break. Cox did not return to work that day but a friend informed Respondent that Cox would not be back. On Monday, May 3 (Cox's next scheduled work- day), he was ill and did not report for work. A friend, however, called Camarena and told him that Cox would not be in that day and that he would try to see a doctor. Camarena responded that Cox was not to bother coming in unless he had a medical excuse. The following day, when Cox reported for work, Camarena asked for his medical excuse. When Cox replied that he had not been able to see a physician, Camarena told him he was discharged and prepared a termination slip stating as the reason for the discharge "lack of attendance 10 days in 2 months and lack of working." The Administrative Law Judge found that "Ca- marena gave shifting reasons for the separation of Cox and viewed in its totality Camarena's testimony is not credible and I do not credit it," and that "at the very least it must be said that the discharge of Cox is surrounded by suspicious circumstances." The Administrative Law Judge further found, however, that "viewing the evidence in its totality Cox was principally discharged for cause" and, therefore, concluded that the discharge did not violate Section 8(a)(3) and (1) of the Act. We disagree with this conclusion. Assuming Maxwell's conduct discussed above constituted a threat and interrogations in violation of Sec. 8(aXl) of the Act, such violations are remedied by our Order herein, which requires Respondent to cease and desist from violating the Act "in any other manner." We therefore find it unnecessary to determine at this time whether Maxwell was a supervisor within the meaning of Sec. 2(11) of the Act. 6 G.C. Exh. 9 is a "Notice of First Warning" addressed to Cox and signed by Camarena. The notice is undated, the line for the employee's signature acknowledging receipt is blank, and there is no evidence that Cox in fact received the warning. 7 The Administrative Law Judge noted, however, that "no reliance can be placed on the Company's timecards or on its other records which were poorly kept." 194 OLD WESTERN MANUFACIURING COMPANY Neither the record nor the Administrative Law Judge's own findings support his conclusion that Cox's discharge was not motivated at least in substantial part by his union activity. Thus, although Camarena testified that employee attendance was a problem and that Respondent had consequently posted new attendance rules in January, and al- though one of the two reasons asserted for Cox's termination was his lack of attendance, he had not in fact violated any of the posted attendance rules. Indeed, although Cox was terminated on May 4 after he failed to provide a medical excuse for his absence the previous day, Respondent's attendance rules only required such an excuse if an employee failed to call in for 2 consecutive days. Further, as noted above, Respondent's recordkeeping was so haphazard that it apparently would have been difficult, if not impossi- ble, to ascertain the precise number of days Cox had been absent during any given period. As to Camarena's notation on Cox's termination slip referring to "lack of working," there is no evidence in support of this assertion other than Camarena's discredited testimony, nor is there any indication that Cox was ever warned or disciplined for failure to work prior to his discharge. The other violations of Section 8(a)(3) and (1) of the Act found above clearly establish that Respon- dent was adamantly opposed to any union activity in the plant. It is also clear that Respondent was aware of Cox's support of the Union, inasmuch as he acted as the Union's observer at the election. Further, Cox was not disciplined for his alleged lack of attendance until after his union activity became known to Respondent. In view of these findings and the Administrative Law Judge's discrediting of Camare- na's testimony as to the reason for discharging Cox, we conclude that the General Counsel has shown by a preponderance of the evidence that the asserted reasons for Cox's termination were pretextual and his discharge was at least in substantial part in reprisal for his union activity," and therefore violated Section 8(a)(3) and (1) of the Act.9 The Objections and Challenges in Case 20- RC-13375 The election in Case 20-RC-13375 was conducted on April 8. The tally of ballots served on the parties after the election showed that there were approxi- mately 32 eligible voters, that 33 ballots were cast, of which 13 were cast for, and 15 against, the Union, and that there were 5 challenged ballots, a sufficient number to affect the results of the election. Thereaf- 4 The Administrative Law Judge found that "Cox did in fact tell the Company to discharge him." However. we find that even ifCox made such a statement it was not the reason for his termination. I The Youngstown Osteopathic Hospital Association, 224 NLRB 574 (1976) ter, the Union filed timely objections to the election. The Administrative Law Judge, through inadver- tence, failed to discuss the merits of either the challenges or the objections, both of which are discussed below. The Board agent challenged the ballot of Floyd Cruz because his name was not on the list of eligible voters submitted by Respondent pursuant to the Stipulation for Certification Upon Consent Election approved by the Regional Director on March 12. The Union challenged the ballots of Earl Maxwell and Frank Padilla on grounds that they are supervi- sors, and the ballots of Dale Neal and Richard Ripley on grounds that they are not unit employees and, further, that they do not share a community of interest with the employees in the unit stipulated by the parties to be appropriate. The Union's objections to the election allege that Respondent "did threaten, discharge, and coerce employees of the Company during the course of the Union's organizing campaign." The Regional Direc- tor, in her Report on Challenged Ballots and Objections, Order Consolidating Cases, and Notice of Hearing, issued May 20, concluded that the challenges and objections could best be resolved by being considered jointly with the unfair labor practice allegations, and therefore consolidated Cases 20-CA- 11123 and 20-RC-13375 for hearing.10 As to the challenged ballot cast by Floyd Cruz, as discussed above, we agree with the Administrative Law Judge that Cruz' discharge violated Section 8(a)(3) and (1) of the Act. Accordingly, we shall order that the challenge to his ballot be overruled. However, inasmuch as Cruz' ballot alone is not determinative, we shall order that his ballot not be opened until the remaining challenges are resolved, as set forth below. With respect to Maxwell, Padilla, Neal, and Ripley, we conclude that on the present record we are unable, in the absence of any credibility resolutions by the Administrative Law Judge, to determine whether or not any of these four individu- als were eligible to vote in the April 8 election. Accordingly, we shall remand this proceeding to the Regional Director for the purpose of conducting a further hearing on these issues. With regard to the Union's objections to the election, we have found above that Respondent committed violations of Section 8(aX)() of the Act during the critical period preceding the election. Several of these unfair labor practices involved the same conduct alleged by the Union to constitute i° Case 20-CA-11338 was consolidated with Cases 20-CA 11123 and 20-RC 13375 by order of the Regional Director dated June 30. 195 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interference with the election. Having found that certain of the conduct alleged in the Union's objections occurred during the critical period and constituted violations of Section 8(a)(1) of the Act, we also conclude that there is merit to these objections; we shall therefore not adopt the Adminis- trative Law Judge's recommendation that the objec- tions be overruled and a certification of results issue in Case 20-RC-13375. On the contrary, we shall withhold any certification pending a resolution of the challenged ballots and, if the revised tally of ballots issued, pursuant to the Order and Direction herein, shows that a majority of the valid ballots were not cast for the Union, we shall set aside the election and direct a second election. CONCLUSIONS OF LAW I. Kenneth Jones d/b/a Old Western Manufac- turing Company is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Shopmen's Local Union No. 624 of the International Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with discharge, plant closure, and layoff if they chose to be represented by a labor organization for purposes of collective bargaining and by threatening to use violence against strikers or picketers if they engaged in protected concerted activity, Respondent has violated Section 8(a)(1) of the Act. 4. By discharging employees Daniel Cox and Floyd Cruz because of their union activity, Respon- dent has violated Section 8(a)(3) and (1) of the Act. 5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Remedy Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged employees Daniel Cox and Floyd Cruz because of their union activities, we shall order that Respondent offer them full and immediate reinstate- ment to their former jobs or, if such jobs no longer exist. to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that it make them whole for any losses they may have suffered by reason of the discrimina- tion against them. Any backpay found to be due them shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Additionally, because Respondent's unfair labor practices go to the very heart of the Act, we shall issue a broad order requiring Respondent to cease and desist from violating the Act "in any other manner." Springfield Dodge, Inc., 218 NLRB 1429 (1975); N.L.R.B. v. Entwistle Manufacturing Compa- ny, 120 F.2d 532 (C.A. 4, 1941). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Kenneth Jones d/b/a Old Western Manufacturing Company, Fresno, California, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge, plant closure, or layoff if they choose to be represented by a labor organization. (b) Threatening employees that violence will be used against strikers or picketers if they engage in protected concerted activity. (c) Discharging or otherwise discriminating against employees because of their union or other protected concerted activity. (d) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Shopmen's Local Union No. 624 of the International Association of Bridge, Structural and Ornamental Iron Workers (AFL- CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection, as guaran- teed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Offer reinstatement to and make whole employ- ees Daniel Cox and Floyd Cruz in the manner set forth in the section herein entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 196 OLD WESTERN MANUFACTURING COMPANY all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. (c) Post at its Fresno, California, facility copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by 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 customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the challenge to the ballot cast by Floyd Cruz in the election held on April 8, 1976, in Case 20-RC-13375 be overruled, and that Case 20-RC-13375 be, and it hereby is, severed from this consolidated proceeding and referred to the Regional Director for Region 20 for further processing, including issuance of a notice of hearing, in accordance with the Direction below. DIRECTION It is hereby directed that a hearing in Case 20-RC- 13375 be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the challenges to the ballots cast by Earl Maxwell, Dale Neal, Richard Ripley, and Frank Padilla in the election conducted on April 8, 1976. The Hearing Officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the challenges. Within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed to the Hearing Officer's report, the Board will adopt the recommendations of the Hearing Officer, and, thereafter, in the event the revised tally of ballots shows that the Petitioner did not receive a majority of the valid ballots cast, the election shall be set aside and a new election directed. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To join, form, or help unions To bargain collectively with representa- tives of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT threaten employees with dis- charge, plant closure, or layoff if they choose to be represented by a labor organization. WE WILL NOT threaten employees that violence will be used against strikers or picketers if they engage in protected concerted activity. WE WILL NOT discharge or otherwise discrimi- nate against employees because of their union or other protected concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights described above, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer reinstatement to Daniel Cox and Floyd Cruz to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any losses they may have suffered by reason of our discrimination against them, with interest at the rate of 6 percent per annum. KENNETH JONES D/B/A OLD WESTERN MANUFACTURING COMPANY 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case came on for hearing before me in Fresno, California, on September 2, 1976, based on a complaint issued by the General Counsel on June 30, 1976. This case was consolidated with the representation case. The initial charge was filed by Shopmen's Local Union No. 624 of the International Association of Bridge, Structural and Orna- mental Iron Workers (AFL-CIO), herein called the Union, on April 20, 1976, and a first amended charge was filed by the Union on May 17, 1976. The complaint alleges that the Company violated Section 8(a)(l) and (3) of the Act, and the answer, while admitting certain allegations, denies the commission of any unfair labor practices. Briefs have been received from the General Counsel and Respondent, which have been carefully considered. Upon the entire record in this proceeding and having observed the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Kenneth Jones d/b/a Old Western Manufacturing Company, herein called Respondent, is a sole proprietor- ship engaged in the production of ornamental iron products at its places of business in Fresno, California. During the past calendar year Respondent sold goods and materials and supplies valued in excess of $50,000 to Safeway, Inc. During the same period of time Safeway received gross revenues in excess of $500,000, and during the same period of time purchased goods and materials and supplies valued in excess of $5,000 directly from suppliers located directly outside the State of California. Respondent admits, and I find, that it is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2 (2), (6), and (7) of the Act. II. THE UNION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent, by Earl Max- well, warned an employee that if he voted in favor of the Union in a Board-conducted election he would be terminated or suffer other economic reprisals. On or about May 4, 1976, Respondent discharged its employee Dan Cox because of his membership in, or activities on behalf of, the Union. It is also alleged in the complaint that the Respondent unlawfully terminated the employment of Floyd Cruz also because of his activity on behalf of the Union. Respondent operates two plants, one located at Butler Street and one located at South "G" Street in Fresno, California, where he employed approximately 36 employ- ees, including 12 welders. Respondent's general shop foreman at Butler Street is Bart Camarena, who testified without refutation that he had the power to hire and fire employees. Directly under Camarena is Earl Maxwell, Respondent's lead welder and its instructor for Respon- dent's on-the-job welding trainees. Camarena testified that the employees' attendance during the preceding months had been bad and that, during the Christmas vacation, he, Kenneth Jones, the owner of Respondent, and John Lumsden, Respondent's general manager, had discussed methods of improving employee attendance. As a consequence of these discus- sions, Respondent adopted the following attendance rules: (a) An employee who missed 2 days of work would either have to call in and notify Respondent that he was going to be absent, or he would have to submit a written medical excuse for the days he missed; (b) An employee who missed three consecutive days and who did not notify Respondent would be automati- cally terminated; and (c) An employee who missed three consecutive Mondays would have to submit a written excuse for each of the missed Mondays. It is not disputed that Camarena posted the above rules at the timeclock on January 5 and on the following day personally informed each employee of the existence of the new attendance rules. Although the written posted rules did not indicate what would happen to an employee who missed 2 days of work and who neither called in nor provided a medical excuse, Camarena testified that he informed employees on January 6 that they would be terminated under these circumstances, and that this was a firm policy that would apply in the future. In the month of January, the Butler Street employees began holding meetings among themselves to discuss the possibilities of organizing Respondent. In January employ- ees met approximately four times during their lunch break to discuss the matter of unionization. These meetings took place in the Butler Street parking area and attracted anywhere from 10 to 20 of the approximately 36 employees working at Butler Street. Both Cox and Cruz attended these employee meetings. During one of these meetings, the employees passed among themselves a paper which they signed if they desired unionization; Cruz was one of the employees who signed that paper. At another of these meetings Maxwell approached the employees and intruded himself into the conversation. Maxwell informed the employees that he had once before gone through unioniza- tion, and that he did not feel that they, the employees, were qualified to stay together. During this discussion Maxwell asked Cruz what he felt about unions; Cruz responded "If it comes, it comes." The record also shows that on Wednesday, February 4, Cruz was sick and unable to report for work and he had another employee, Camacho, notify Camarena of this fact. Cruz was well and reported for work the following day. As Cruz approached the timeclock to punch in, he was stopped by Camarena. Camarena told Cruz that he had been missing too many days, and that if he did not have a doctor's excuse for the day he had just missed, he could not come back to work. 198 OLD WESTERN MANUFACTURING COMPANY Cruz informed Camarena that he did not have a doctor's excuse and was in turn told by Camarena that he was fired. Later that afternoon, Camacho overheard Camarena telling another employee "I hate to see the guy go. He is a good welder. He is a good worker. But I got suspicions he's involved with the Union." On February 13, after having secured a sufficient number of authorization cards from employees, the Union filed a representation petition seeking a unit of Respon- dent's production and maintenance employees. On Febru- ary 18, Camarena notified all the Butler Street employees that he was calling a meeting that morning, to be held during the morning break at the timeclock. Approximately 30 employees attended this meeting, including Cox, Camacho, Benevides, and Maxwell. The meeting was admittedly called because Camarena wanted to talk to the employees about the Union. The General Counsel alleges that Camarena then told the employees that Respondent would not allow itself to go union, that Respondent could not afford to pay the Union's wages, and that Respondent would have to close up if it had to pay what the Union demanded. Camarena further told the employees that the wages demanded by the Union were certified welders' wages, and that, if Respon- dent had to pay certified welders' wages, it would lay off its employees and hire certified welders. None of Respon- dent's welders, with the exception of Camarena and one other employee, were certified welders, and Camarena pointed this out to the employees by telling them that they were unskilled laborers and lucky to have a job of any kind. Camarena went on to say that the employees' chances were 90 to 100 percent certain that they would have to go out on strike to obtain their demands. Camarena continued by saying that he would use any means necessary to cross a picket line, that he would use guns and dogs if he had to, and that he would run striking employees over with his truck. It is also alleged that when the meeting was over, Maxwell approached Benevides and asked him how he was going to vote in the upcoming representation election. Benevides replied he was going to vote no. The complaint alleges that Earl Maxwell is a welding supervisor which allegation is denied by Respondent. The testimony in the record shows that, while Maxwell did instruct welders and assigned them to their jobs, he did not have the authority to hire or fire employees and he also had no authority to recommend such action. The only persons in the Company's employ who had the authority to hire and fire were the owner of the business, Jones, and Camarena. Respondent contends that he posted a disavowal notice on the timeclock in which he said, among other things, that certain statements, such as Union would use guns and sticks to prevent any employee from going to work, were not authorized and certain things should not have been said and do not represent the position of the Company. The notice also stated that, if a strike or picketing occurred in connection with union organization, Old Western Manufacturing Company would in no way engage in any physical confrontation with those on the picket line, nor condone such action by any other person. However, should the Union resort to physical means of preventing any employee from working, it would pursue any and all legal remedies available to prevent such conduct. The notice concludes with the statement "The law prohibits the use of violence by either side engaged in a labor dispute, and Old Western Manufacturing will abide by the law." The notice was signed by Kenneth Jones. On April 8 a representation election was conducted among Respondent's production and maintenance employ- ees. The election took place at both the Butler Street and "G" Street locations and Cox served as the Union's observer at both places. When Camarena noticed that Cox was acting as the Union's observer, he stated his surprise to Cox. At the Butler Street location Benevides was waiting to vote when Maxwell approached him. Maxwell then told Benevides he couldn't vote and that if he did, he would do "straight time." This reference to straight time refers to the fact that Benevides was on parole and it is alleged by the General Counsel that this was a threat that Benevides would be returned to jail. The results of the election were 13 votes cast for the Union, 15 votes against it, and 5 challenged ballots which are determinative of the election. Immediately after the election Respondent advised all of its G Street supervisors and foremen to "go easy" on Cox. Sometime in the month of April, Cox received his first warning slip; although Cox was still working at G Street at the time the slip was issued by Camarena, Respondent's Butler Street foreman. Cox testified that the warning slip was brought over to him at G Street by Ripley, salesman for the Company, and that, although the warning slip itself indicated that it was Cox's second warning, it was in fact the first warning. He had never received any other written warning. On Friday, April 30, Cox reported to work at G Street where he had been assigned for the past 2 months. When Cox arrived at G Street, he was told by Jay Higbee, Respondent's construction crew foreman at G Street, to pick up his things and to go over to Butler Street. Higbee did not tell Cox to take his welding equipment with him. When Cox informed Higbee that his car had broken down that morning and that he did not have any transportation to Butler Street, Higbee told him to catch a ride with Richard Ripley. Cox gathered up his belongings and rode with Ripley over to the Butler Street plant. When Cox arrived at Butler Street, he reported to Camarena and asked him what work he was to do. Camarena asked Cox where his welding helmet was and Cox replied that other employees at G Street had been using it and he did not know where it was that morning and that he had not had time to look for it since he had to hurry to catch a ride with Ripley. The General Counsel further alleges that Cox then asked Camarena if he was being permanently transferred back to Butler Street. Camarena replied that he was and that if he didn't like it, to quit. Cox allegedly informed Camarena that he was not going to quit, and that Camarena would have to fire him if he wanted to get rid of him. Camarena also told Cox that, if he found out that Cox had been absent the previous Tuesday, he would be fired. Camarena did not discharge Cox that morning, however, and Cox borrowed a welding helmet from Maxwell and 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to work. Cox did not complete his workday that Friday. At lunchtime he informed Maxwell that he was going to pick up his car which had broken down that morning and he would try to make it back to work if he could. Maxwell told Cox that he would tell this to Camarena. However, Maxwell did not tell Camarena where Cox had gone until Cox had failed to return to work during the lunch period. Cox did not return to work that afternoon, encountering more difficulties with his car than he had expected, and, when he realized he would not be able to return to work, Cox had his girl friend inform Respondent of this fact. Monday, May 3, was Cox's next scheduled workday. On that day, Cox was ill and could not report for work. Cox had his girl friend contact Camarena to inform him that he would not be in that day and he would try to see a doctor. Cox's girl friend telephoned Camarena and delivered this message. Camarena told her to tell Cox, unless Cox had a medical excuse, not to bother coming in. Cox was given this message by his girl friend. Cox reported to work the following day. As soon as he arrived at Butler Street, Camarena approached him and asked him for a medical excuse. Cox explained to Camarena that he did not get to see a doctor the day before. Camarena told Cox that he was terminated and told him to wait in his office while he prepared a termination slip. Camarena then prepared a termination slip which stated as the reason for Cox's termination, "Lack of attendance, 10 days in 2 months, and lack of working." Daniel Cox began working for the Company on April 15, 1975, and was let go May 4, 1976. Early in February, the Company called a meeting at which Bart spoke, "warning all the employees that if the Union came in, they were not offering the things we really wanted and the Company would not go union. He would not allow the Company to go union. If he had to pay employees what the Union would ask for, he would get certified welders." Bart also said "if we ever went on strike he would cross picket lines no matter what he had to do." He also said that he was going to bring his dogs and a gun across picket lines, even if he had to run employees over with his truck. "The Company would not be able to afford what the Union would ask for and as a consequence they would have to go out of business and close the shop." The General Counsel elicited from witness Benevides testimony concerning the talk given by Bart. Benevides corroborated what Camarena said and also stated that Earl Maxwell asked him how he was going to vote. Cruz started to work for Respondent on November 12, 1975, and was discharged on February 5, 1976. The reason for the discharge was that he was out sick and did not bring a doctor's excuse. Cruz testified that another employee, John Gutierrez, who was also out sick, had no doctor's certificate. He was at first fired and then called back to work and told that in the future that if he was out sick to bring a doctor's excuse. By this testimony Cruz was in effect saying that the rule with respect to absences was disparately being applied in the plant. There is considerable testimony in the record that Cruz built a table on his own time and with some of the Company's material in the shop. He had permission to do this but the Company charged him $25 which was taken out of his paycheck. Cruz was very exercised about this withholding from his salary and made a considerable fuss over the matter. The Company took the position that if Cruz wanted his $25 back they would give it to him but he had to bring back the table that he had made on their time and with some of their materials. The Company was faced with a serious absentee problem. As a consequence of which, a meeting was called among Camarena, Lumsden, and Jones. This meeting resulted in the rules which were posted above the timeclock and which are itemized supra. Camarena testified that neither Maxwell nor Padilla are supervisors. He also testified that he first found out about the Union on February 9, 1976, when the men passed around a sheet with signatures of those in favor of the Union. Camarena further testified that Cruz was away 2 days in succession. When asked if he had an excuse he said "I don't have to give you nothing. The other guys aren't giving you no excuse." Camarena also testified that Cruz, in addition to the fact that he would not produce an excuse, told Camarena to go to hell. At which point Camarena testified that he said, "Well, you can come to work any time you want, start any time you want, when I have a written excuse." Camarena testified that Cox was never fired. Dan Cox asked to be fired. He went on to say that Dan Cox told him that he was tired of working and asked the Company to fire him. He wanted to collect unemployment insurance because he was tired of working. This fact was testified to by employee Throop. The General Counsel produced witness Jay Higbee who testified that he was a foreman and that he was fired for too many absences. He was not involved in union activity. Cox was in Higbee's crew. Higbee described him as a poor worker. He would leave his job without permission. Further, Cox was late or absent 50 percent of the time. He was very unreliable and the Company could not depend on him. Employee Ripley, the Company's salesman, testified that he was in the office when Floyd Cruz came in. Cruz asked for his job back. A discussion ensued about the iron table. Cruz said $25 was too much money and at this point the Company said bring the table back and we'll give you your $25 back. Cruz asked about getting his job back. He was told he could have his job if he would apologize to Bart Camarena. He said he would not apologize to him. At this point Cox allegedly said "Why don't you fire me. Go ahead and fire me." The testimony of Ripley was corroborated by employee Walter Bispo. He testified that Jones offered Cox his job back. Further that no one knew that Cox was interested in the Union until the day of the election when he appeared as an observer for the Union. With respect to reporting to work on time Ripley testified that in a 5-day week Cox would come to work about 3 out of every 5 days. It should be remarked at this juncture that discipline in the plant was rather lax and that recordkeeping was very casual. Also that the timeclock was out of order for a while and many of the timecards were punched with the date 200 OLD WESTERN MANUFACTURING COMPANY February when it really should have been March. No reliance can be placed on the Company's timecards or on its other records which were poorly kept. Credibility There are significant conflicts between the testimony of the General Counsel and Respondent's witnesses, particu- larly with respect to what was stated at the February 18 meeting, and with respect to the circumstances surrounding the termination of Cruz and Cox. For example, Camarena, according to the General Counsel, specifically denied that he had ever stated to an employee that another employee had been discharged because of his suspected union involvement or that he threatened employees with plant closure, layoff, and strike violence at the February 18 meeting. I do not credit Camarena with respect to the threats about violence because, unless he made the statements which he allegedly did make, there would be no reason for the Company to post a disavowal notice. In addition, the General Counsel's witnesses testified that Cruz was absent on Wednesday, February 4, and notified Respondent of this fact and was discharged the following day for failing to provide a medical excuse which Camarena had demanded. Camarena also testified that Cruz had been absent not I but 2 days, that it was only after Cruz had returned from his 2-day absence that he asked for a medical excuse and attempted to start an argument with him in front of the entire crew. Cruz was not terminated, but merely told that he could come back anytime that he had a medical excuse. Camarena also denied that Camacho had ever notified him that Cruz was to be absent. Both Cruz and Camacho testified that Cruz was absent only I day, and that Cruz returned to work on Thursday, not Friday as Camarena asserted. As between Cruz and Camacho they told a more convincing story than Camarena. They both testified in a direct and forthright manner in response to questions asked not only by the General Counsel but also by Respondent. In addition, Camarena's basic assertion that Cruz was never discharged is in complete contradiction to an earlier position taken by Respondent. Thus, in a letter dated April 26, 1976, sent by Respondent's then attorney to the Regional Director for Region 20, Respondent stated the following with respect to the employment status of Cruz whose vote in the April 8 representation election had been challenged by Respondent: The Company has challenged a single vote, namely Floyd Cruz, Jr. On February 13, 1976, Mr. Cruz was terminated as a result of his failure to provide a written medical excuse for absence from work, as required by an announced and posted Company policy .... It is clear from the quotation which appears above that Respondent's position clearly contradicts Camarena's assertion that Cruz was never terminated. It is the contention of the General Counsel that Camarena omitted a conversation he had with Cox on a Tuesday in which he said that Cox would be fired if Camarena found out that he had been absent on that Tuesday. The General Counsel points out that, since Camarena had already been informed by Ripley that Cox was being sent back to the Butler Street location because of his alleged attendance problem, there is no apparent reason why Camarena would tell Cox he was going to check up on his prior attendance. Camarena's omission of the Tuesday references and the attempt, according to the General Counsel, to conceal the already clear implication in his statement implies he was looking for a reason to discharge Cox. There is also considerable confusion in the testimony of Camarena as to when he actually fired Cox. Camarena's explanation was that he did not fire Cox but that he had checked his attendance and he found out that he was frequently away from work. He informed Cox that if he didn't want to work, that he would have to let him go. From this conflict in the testimony it appears that Camarena was unsure of the reason for Cox's discharge or that he was concealing the real reason. Camarena gave shifting reasons for the separation of Cox and viewed in its totality Camarena's testimony is not credible and I do not credit it. Furthermore, Camarena's testimony with respect to what he stated to the employees at the February 18 meeting cannot be credited because of the statements of Camarena with respect to his insistence that if the Union put out a picket line he would go through it even if he had to run pickets over with his truck. Camarena denied that he had made any such statement but Cox's testimony was corroborated by Benevides and also by Camacho. I credit the testimony of Benevides and Camacho and am persuaded that Camarena did in fact threaten to run over employees who were blocking the entrance to the plant if there was a strike and if pickets were surrounding the plant. Furthermore, it should be again mentioned that if Camarena did not make any of the threats which he has been charged with having made there is no explanation whatever for the Company's posting of a disavowal statement. With respect to the disavowal notice it should be pointed out that it is vague, speaks in general terms, and there is no evidence that it was posted shortly after the meeting of February 18 when Camarena apparently made the threats. I am also persuaded that Cox did in fact tell the Company to discharge him because this statement was corroborated by a fellow employee who overheard the comment made by Cox. Concluding Findings and Analysis There is some question about the supervisory status of Maxwell. Employees who worked under him testified that he was in charge of Respondent's welders and did little production work of his own, assigned them their work, decided which of them would do what jobs, was responsi- ble for seeing that they performed their work properly, and would inform them if their work was unsatisfactory. The General Counsel takes the position that Maxwell's authori- ty to direct the work of other employees and to use independent judgment in assigning them work is sufficient to establish him as a supervisor. This argument was advanced by the General Counsel and in any event it must be said that Maxwell appeared to be clothed with apparent authority to act as a supervisor. In any event it is clear that so far as the employees who worked under his supervision are concerned they regarded him as a supervisor and any 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements made by him were similarly regarded as the expression of the attitude of Respondent. Be that as it may, there is sufficient other evidence in the record to show that Camarena did in fact threaten employees with the closure of a plant and this statement standing alone is sufficient to find Respondent guilty of a violation of Section 8(a)(l). I so find. With respect to the discharge of Cox and Cruz, there is some doubt in my mind that either of these men were discharged because of engaging in union activities. As to Cox, it is clear that he had demonstrated his interest in and sponsorship of the Union by virtue of the fact that he was the Union's observer during the election that took place in the plant. Furthermore, there is uncontradicted evidence in the record to show that at the time the employees passed around a sheet of paper upon which appeared the names of the employees who were interested in the Union that this kind of activity either was known or should have been known by Respondent. The Company had noticed that a union was trying to get into the plant. The Company also demonstrated its animus toward union activity by the comments made by its admitted supervisor, Camarena. It is equally true and I am convinced that this fact has been demonstrated in the record that Cox did goad the Company into discharging him. He was frequently absent, frequently tardy, and oftentimes left the plant without permission before the end of the day's work. From these facts it is clear that the Company had good cause to discharge Cox. However, it is a well-settled principle of law that where a discharge is motivated by mixed reasons, some having to do with union activity and some having to do with his failure to perform his job properly, such mixed motives do provide the basis for finding the discharge was for union activities. If a substantial part of the reason for his discharge related to his union activities, then his discharge has been held to be due to union activities. I am not persuaded that based on the preponderance of the evidence in the record he was discharged because of his interest in and sponsorship of the Union. Certain it is that frequent absences, arriving at work after the starting time, and failure to perform his duties satisfactorily together constitute good cause for his discharge. I find that viewing the evidence in its totality Cox was principally discharged for cause and I therefore recommend that the allegations concerning him be dismissed. As to Cruz, much of the evidence revolves around the fact that he made a table out of metal on the Company's property with their permission and with the use of their material. The Company's charging him $25 which was withheld from his pay because of this table incident seems to indicate that he was disaffected from the Company. There is some evidence in the record that at the time of his termination Camarena told an employee that "the guy" had been terminated because of his suspected involvement with the Union. As a defense to Cruz' discharge, Respondent variously asserted that Cruz was absent for 2 days and never notified Respondent, Cruz was never discharged, and, in any case, Respondent had no knowledge of Cruz' union activities prior to his discharge. Respondent's assertion that Cruz missed 2 days was not only contradicted by the more credible testimony of Cruz and Camacho, but also makes illogical Respondent's contemporaneous assertion that Cruz was never terminat- ed, which itself conflicts with another earlier position taken by Respondent. Finally, Respondent's assertion that it was unaware of Cruz' union activity prior to his discharge is not only belied by the knowledge acquired by Maxwell, and by Camarena's postdischarge statement, but is not plausible. The record establishes that Cruz' activities were neither concealed nor secret; he attended at least three open employee meetings, at one of which Maxwell was also in attendance and one at which he openly signed a prounion petition. These employee meetings attracted well over half of Respondent's 36 employees. Camarena himself admitted that he had friends in the shop, that these employees had spoken to him about the Union, and that one employee went so far as to disclose the identity of union supporters. Camarena had four brothers working for Respondent and at least one of them spoke to him about the Union. Respondent seeks to have the Administrative Law Judge believe that it did not know of Cruz' activities prior to his discharge, and did not learn this until 4 days after Cruz had been discharged. From all of this information the General Counsel takes the position that Respondent's purpose in discharging Cruz was to rid itself of a known union supporter and to stem organizational activities among its employees. The General Counsel contends that Cox's alleged requests to be fired were not relied on by Camarena. The record shows that Respondent had knowledge of Cox's union activity. Respondent's animus is demonstrated by a history composed of threats, interrogations, and the newly installed warning system which had never previously been established prior to the commencement of union activities in the plant. At the very least it must be said that the discharge of Cox is surrounded by suspicious circumstanc- es. However, I am not persuaded that the substantial evidence on the record considered as a whole establishes that Cox was discharged because of his union activities. Therefore, I recommend that the discharge of Cox be dismissed. The General Counsel did not sustain his burden of proof that Cox was discharged because of his union activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the interstate operations of the employer, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices proscribed by Section 8(aX 1) and (3), I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 202 OLD WESTERN MANUFACTURING COMPANY CONCLUSIONS OF LAW 1. Kenneth Jones d/b/a Old Western Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Shopmen's Local Union No. 624 of the International Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees that the plant would close down if the Union came in and making unreasonable demands, Respondent is guilty of having violated Section 8(aX 1) of the Act. 4. The discharge of employee Cruz since it has all the earmarks of a discriminatory discharge supports my finding that Cruz was in fact discharged because of his organizational activities in support of the Union in violation of Section 8(aX3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 203