Big Three Industrial Gas& Equipment

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Big Three Industrial Gas & Equipment Co. and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 23-CA-6190 June 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 18, 1977, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief and General Counsel filed limited exceptions and a brief in support thereof. 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 modified herein. We adopt the Administrative Law Judge's finding that Messrs. Park, Alexander, Richardson, Osborn, Reddoch, Lindsay, and Fagan are supervisors within the meaning of Section 2(11) of the Act. In support of that finding, we note that, in addition to the evidence relied on by the Administrative Law Judge, the record shows that the above-named individuals possess the independent authority to terminate and discipline employees, and effectively recommend such actions. Secondly, we adopt his findings that Supervisors Park, Richardson, Osborn, Lindsay, and Peters violated Section 8(a)(l) by interrogating, threatening, and promising benefits to employees to discourage union activity. We further adopt his finding that, in August 1976, the Respondent terminated 34 employ- ees, its entire maintenance work force, in violation of Section 8(a)(3), in order to dissipate support for the Union. In doing so, however, we disavow the Administrative Law Judge's conjectures in regard to whether union activity was discussed at a manage- ment meeting immediately preceding the termina- tions. These conjectures are without support in the record and are, in any event, completely unnecessary to a finding that the terminations violated Section 8(a)(3). Finally, we have determined to reverse the Admin- istrative Law Judge's finding that the suspension of employees Fairless and Coryell did not violate Section 8(aX3) of the Act, as contrary to the preponderance of the uncontroverted evidence. On August 17, 1976, Coryell, Fairless, and another employee, Lee Judd, all left the company grounds to have dinner in violation of an announced company rule. The Administrative Law Judge found that Respondent knew that Coryell and Fairless had signed authorization cards, but that Judd had not; that Supervisor Richardson knew that all three had left the plant that night; and that Richardson was present when Plant Maintenance Superintendent Borey suspended Coryell and Fairless. The Adminis- trative Law Judge, however, found no violation on the grounds that the record did not show that Borey personally knew that Judd had also violated the rule. We conclude, however, that such knowledge by Borey is not necessary for a finding of an 8(a)(3) violation here. As found by the Administrative Law Judge, Richardson knew that all three had violated the rule. He reported to Borey the misconduct of Coryell and Fairless only, and the following day they were suspended by Borey in his presence. Further, Richardson told Judd on the day of the suspension, as credited by the Administrative Law Judge, "Lee, don't leave the plant any more without punching out.... Don't worry about it though, we're not after you." This statement and the preceding events warrant the inference that Richardson effectively recommended Coryell's and Fairless' discipline or played a part therein. It also establishes his wrongful motive in doing so. It is well established that such unlawful motive is attributable to Respondent even if the latter was not aware of the reason for its agent's conduct or even if Respondent, in fact, was merely acting to implement a lawful policy.' Accordingly, we find that Respondent, through Richardson's actions, violated Section 8(a)(3) of the Act when Borey suspended Coryell and Fairless. To that end, we will modify the Administrative Law Judge's recommended Order. AMENDED REMEDY As we have found that Coryell and Fairless' 3-day suspensions were undertaken in violation of Section 8(a)(3) of the Act, we shall order that they be reimbursed for those suspensions, with interest to be computed in the usual manner, as set forth in the Remedy section of the Administrative Law Judge's decision dealing with the unlawful terminations. i Sears, Roebuck and Co.. 172 NLRB 2222, fn. I (1968). 230 NLRB No. 48 392 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. 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, Big Three Industrial Gas & Equipment Co., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order, as so modified. 1. Substitute the following for paragraph l(e): "(e) Discouraging membership in or activities on behalf of, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization of its employees, by discharging and/or suspending employees because of their activities on behalf thereof or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees." 2. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Make employees Coryell and Fairless whole for any loss of pay due to their unlawful 3-day suspension, in accordance with the manner set forth in the Remedy section." 3. 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 After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and we have been ordered to post this notice. The Act gives the employees the following rights: To engage in self-organization, to form, join, or assist any union To bargain collectively through represen- tatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT interrogate you regarding your union activities or sentiments or regarding the union activities or sentiments of your fellow employees. WE WILL NOT threaten you with reprisals because you chose to engage in union activities. WE WILL NOT promise benefits or better working conditions to dissuade you from partici- pating in union activities. WE WILL NOT create the impression that the union activities of our employees are under surveillance by management. WE WILL NOT discharge or suspend employees for engaging in union activity on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer T. T. Aldridge, Thomas All- bright, James Bowlin, Jesse D. Burleson, Gary Carrico, John E. Coryell, Richard A. Dickman, James L. Ellis, William Fairless, Alan E. Fowler, Robert M. Fox, Kenneth Gatlin, Tom Hurt, Louren Lamb, Daniel G. Leggett, Jesse Lopez, Richard McBride, Steve McKnight, Robert Mol- is, Robert Rhoades, Richard Michael Robb, Charles Rodriguez, Talmadge F. Smith, Jeff Stevenson, Ricky Talent, J. K. Trojanowski, Fred Walker, Johnnie M. Williams, Marvin J. Wil- liams, Steve Wylie, Ken Tadlock, Mike Vickery, Lee Judd, and Floyd Williams immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to a substantially equivalent position of employment, without prejudice to their seniority or other rights, and WE WILL make each of these employees whole for any loss of pay he or she may have suffered by reason of our discrimination against them. WE WILL make whole employees John E. Coryell and William Fairless for any loss of pay due to their unlawful 3-day suspension. BIG THREE INDUSTRIAL GAS & EQUIPMENT Co. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: Upon a charge and an amended charge filed by the above-named Union on August 31 and September 7, 1976, respectively, a complaint was issued on October 4, 1976, alleging that Respondent Big Three Industrial Gas & Equipment Co., herein called Big Three or the Respondent, had engaged in and is engaging in unfair labor practices within the meaning of Section 8(aXI) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying that it had engaged in the alleged unfair labor practices. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A hearing in this proceeding was held before me in Houston, Texas, on December 8, 9, and 10, 1976.1 Following the close of the hearing, Respondent and General Counsel filed briefs with the Administrative Law Judge. On the entire record in the case, the briefs, and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleged and the answer admitted that the Respondent, a Texas corporation, has, at all times material herein, maintained its principal place of business at Houston, Texas, with an office and place of business located at 11400 Bay Area Boulevard, Pasadena, Texas, where it engaged in the manufacture of oxygen, acetylene, and nitrogen. During the past 12 months which is a representative period, it manufactured, sold, and shipped products valued in excess of $50,000 from its Pasadena, Texas, facility directly to States of the United States other than the State of Texas. Upon these admitted facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union herein has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues presented in this case are: I. Whether Joe Park, Gerald Alexander, John Richard- son, Ray Osborn, Lynn Reddoch, Albert Lindsay, and A. J. Fagan are supervisors within the meaning of Section 2(11) of the Act. 2. Whether the Respondent engaged in specific viola- tions of Section 8(a)(1) of the Act alleged in the complaint. 3. Whether the Respondent suspended employees William Fairless and John Coryell for 3 days on August 18, 1976, for reasons violative of Section 8(a)(1) and (3) of the Act.2 4. Whether the Respondent terminated 34 named employees on August 25, 1976, for discriminatory reasons within the meaning of Section 8(a)(1) and (3) of the Act. At the hearing, General Counsel was permitted to amend the complaint as follows: Par. 6 - H. R. Smith, chairman of the board rather than president; Sid Peters, general manager rather than maintenance manager; and change A. J. Fayan to A. J. Fagan. Par. 15 - strike "discharge" and substitute therefore "terminated." Respondent was thereafter permitted to amend its answer as follows: Par. 6 - change denial to admission that H. R. Smith, Sid Peters, Tom Beville, and Roland Borey are supervisors within the meaning of Sec. 2(11) of the Act; pars. 19(c) and (d) - strike "company B. Background Big Three operates plants at various points in Texas and elsewhere. The only plant directly involved in this proceed- ing is the plant located at Pasadena, Texas, which is known as the Bayport plant. Prior to the end of October or beginning of November 1975, Respondent accomplished the maintenance work at its Bayport plant by utilizing a small utility crew and by subcontracting most of the work to Brown & Root, a large nonunion contractor. On occasion, a team of specialists called the SMAT team or group,3 employed by Respon- dent and utilized as a traveling troubleshooting force would perform limited work at the plant. The record reveals various Respondent officials became disenchanted with the state of maintenance at the Bayport plant in late 1975. To remedy the situation, the SMAT group was taken off the road and assigned to Respondent's maintenance department at the Bayport plant. The mem- bers of the SMAT group were told that Respondent intended to hire its own maintenance force and phase Brown & Root out at the Bayport plant. Additionally there was indication that once the maintenance situation was under control again at the Bayport plant, the SMAT group would go on the road again. Effectuating its plan, Respondent hired many mainte- nance employees (i.e., millwrights, pipefitters, welders, and helpers) during late fall of 1975 and early 1976. Thus, by mid-July 1976, Respondent's maintenance force at the plant was overstaffed to some extent and it sought to reduce it by eliminating some so-called dead- wood. Accordingly, four employees from Respondent's maintenance crew and two Brown & Root maintenance people were informed they would be laid off on Friday, July 16, 1976. C. The Union Campaign Respondent's above-mentioned layoff plans triggered a union organization campaign at the Bayport plant. Thus, employees Richard Robb, Thomas Hurt, and several other employees, upon learning a layoff was to occur, went to the office of Respondent's assistant maintenance supervisor, Joe Park, and complained that they had understood that in event of a layoff Brown & Root maintenance personnel would be removed before Respondent's own personnel. The matter was thereafter adjusted by Respondent as it agreed to refrain from laying off three Respondent employees, but laid off a fourth man who cussed out his supervisor when informed he was to be laid off. After talking to Park, Hurt contacted Mr. L. Q. Black, Interna- tional representative of the Union, and inquired what the employees should do to organize the Bayport plant. Black indicated the first step would be to acquire the signatures of 51 percent of the employees on union authorization and supervisors" and substitute therefore "John Richardson"; and par. 19( 0f) - strike "leaderman and supervisors" and substitute therefore "maintenance members." 2 General Counsel was permitted to amend the complaint to allege the correct date of suspension at the hearing. 3 SMAT is the abbreviation of Special Maintenance and Technician Team. 394 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. applications for membership cards. Employee Richard Robb obtained a number of cards from the Union on July 14, 1976. Robb and Hurt thereafter distributed the cards among Respondent's maintenance employees, utility em- ployees, and operations or production employees. By August 25, some 38 cards had been signed, most within the maintenance department. Operations employees were reluctant to sign. Respondent's maintenance and utility groups were terminated on the above-mentioned date. At that time, the signatures of 51 percent of the production, maintenance, and utility employees had not been obtained. D. The Supervisory Issue The complaint alleges that I 1 named individuals were, at all times material herein, agents of Respondent and supervisors within the meaning of Section 2(11) of the Act. Respondent admits that H. K. Smith, chairman of the board; Sid Peters, general manager; Tom Beville, plant manager; and Roland Borey, plant maintenance superin- tendent, are agents and supervisors as alleged, but denied the allegation as to the following: Joe Park, assistant maintenance superintendent; Gerald Alexander, personnel director; John Richardson, maintenance supervisor; Ray Osborn, maintenance supervisor; Lynn Reddoch, mainte- nance supervisor; Albert Lindsay, maintenance supervisor; and A. J. Fagan, maintenance supervisor. The record reveals that, with exception of Park and Alexander, the persons whose status is disputed are persons whom the employees regard as their immediate supervisors. These individuals, Richardson, Osborn, Reddoch, Lindsay, and Fagan, all wear white hats worn by other management personnel and, with exception of Fagan, who is paid an hourly rate, are salaried employees. During the times material herein, each of the line supervisors had office space in or conducted business in a separate building located at the front of the plant which was called the "White House" and they were designated as supervisors in Respondent correspondence. The record clearly reveals that the line supervisors, as well as Park, had an exercised authority to: interview applicants for employment; direct their subordinates in the performance of their work tasks; change employees from one work task to another in situations wherein supervision was also changed; grant requests for time off; determine who worked overtime and how long they would work; and recommend that employ- ees receive wage increases. Alexander, Respondent's personnel manager, is in charge of training and personnel at the Bayport plant, and is supervised by Gerald Dowman, Respondent's corporate director of personnel. Park, the assistant maintenance superintendent, supervised the line supervisors. I conclude that Respondent's conten- tion that the above-named individuals are not agents of Respondent to be spurious as they each possess multiple indicia of supervisory authority. Accordingly, I find that Park, Alexander, Richardson, Osborn, Reddoch, Lindsay, and Fagan were, and have been at all times material herein, agents of Respondent and supervisors within the meaning of Section 2(1 1) of the Act. 4 M.J Pirolli & Sons, Inc., 194 NLRB 241, 246 (1971), enfd. 80 LRRM 3170, 68 LC Para. 12.843 (C.A. 1, 1972). cert. denied 409 U.S. 1008, and cases cited therein. E. The Alleged 8(aX)(1) Conduct General Counsel called some six witnesses to prove the independent allegations of Section 8(aXI) of the Act alleged in paragraphs 7, 8, 9, and 10 of the complaint. These witnesses attributed certain acts and conduct to Supervisors Park, Richardson, Osborn, Lindsay, and Peters. Respondent failed to cause any of the named supervisors to testify, although the record reveals that they were still in the employ of Respondent or their wherea- bouts were known. Such inaction virtually eliminates any question of credibility in this case as I conclude the testimony of General Counsel's witnesses was plausible and I infer that had Respondent produced the supervisors as witnesses, their testimony would have been adverse to the interest of Respondent.4 Discussion of the testimony pertaining to each of the named supervisors is set forth below.5 1. By Assistant Maintenance Superintendent Joe Parks Employee Lee Thomas Judd testified he conversed with Park about July I in the latter's office concerning a raise. Judd observed he had been put in for a raise and stated he felt he deserved it. Park replied, "there's no doubt about it. If it was left up to me, I'd bring you up to $7.50. .... I can't do it right now." Judd then stated, "As far as the Union is concerned" and Park interrupted him to observe "We know, you haven't signed a card." I find that by indicating, in the above-described context, that Respon- dent knew Judd hadn't signed a card, Park's comment suggested that Respondent was maintaining surveillance of the employees' union activities and, accordingly, I find the remark constituted a violation of Section 8(a)(1) of the Act. Thomas Hurt, who was the only employee to actively assist Mike Robb in the solicitation of union authorization cards, testified he had occasion to visit the maintenance supervisor's office on July 23. When he walked in, Park said, "Tom, what is all this union bullshit about?" Hurt replied, "Well, everyone is talking about the Union" and Park said, "That's not what I'm referring to - who's passing out the cards?" Hurt answered that he didn't know and Park then asked, "Who are the agitators?" Hurt told him he couldn't tell him that. Thereupon Park asked what the problems were and inquired whether maintenance could block the Union. Hurt replied he felt maintenance could block the Union and Park then informed him if they could they could have anything to satisfy their gripes and bitches. I find Respondent, through the actions of Park, violated Section 8(a)(1) of the Act on July 23 by interrogating employee Hurt concerning the union activi- ties of employees and by promising to remedy gripes and bitches if the employees would block the Union. Employees Richard Michael Robb and Thomas Hurt both gave testimony concerning a conversation which they had with Park in an office at the White House in late July. Robb placed the conversation as having occurred on July 22 and Hurt testified it occurred on Sunday, July 25. Regardless of the actual date, both employees indicated the I All dates are in 1976 unless otherwise indicated. 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation took place after they had completed work and that employee Talmadge Smith accompanied them to the office pursuant to Park's previous request that they stop by after work so they could go have a beer. Hurt, corroborated by Robb, testified Park greeted them by saying he was ashamed of them because they didn't tell him they were going to organize the Union so he could help them - to use this as leverage to get more benefits and better working conditions at the plant. During the conversation, Park asked how much time they had, indicating they wanted to straighten out some things. He concluded stating he had worked with unions before and they had done nothing but take money from the people; he had never seen a union that did anything for the working man. I find that Park clearly sought during the conversation in question to cause Robb and Hurt, who he then knew to be the leaders of the union campaign, to abandon or slow down their union activities, by, in effect, promising that Respondent would grant better benefits and improve working conditions to avoid unionization. I find that such conduct violated Section 8(a)( ) of the Act as alleged. 2. By Maintenance Supervisor John Richardson Shortly after Richardson had been introduced to em- ployee Robb and others as their "new mechanical supervi- sor," the employees freely discussed the Union with him. Employee Hurt explained the relationship as follows: John Richardson had come up there. He was a new man with the company. He was trying to get in good with the men, which like I explained to him, I hated to see a new man come into the company at this time because of the problems we were having. Mr. Richardson, we got to talking to him, and he would tell us what was going on in the supervisor's meetings. I mean this was a "big leak" from the White House. He told us that at the last supervisor meeting he had heard that Tom Hurt and Mike Robb would never go anywhere with this company because [we] had tried to get a union in there, and that he felt that if we needed to get a jump on trying to find another job, this would be the time to do it. We went ahead and talked about other things in the union and the problems the company was having. * * At this particular meeting, he had stated that one of our big leaks was Mr. Bowlin, carrying tales over to the White House. General Counsel contends that Richardson, by engaging in the above conversation, which is set forth in the witnesses' words, threatened Robb and Hurt by telling them they would never be promoted and they should seek other jobs and intimidated them by giving the impression 6 Allbright claimed he saw a piece of paper indicating operators were to receive $7.90 per hour several days before the conversation. Respondent's witnesses denied the operators received a raise before November. I find the record evidence insufficient to show that operators were actually given a 40- cent-per-hour raise. their union activities were under surveillance. Richardson's motivation remains unknown as he did not testify at the hearing. Review of case law concerning the speaker's intent or motive when making statements which arguably constitute violations of Section 8(aXl1) reveals that, in circumstances such as are presented here, the test as to whether employer statements are violative of Section 8(aXl) turns not on the motive for the conduct, as in a discriminatory discharge case under Section 8(aX3), but on its reasonable effect on the employees. Impact Die Casting Corporation, 199 NLRB 268, 271 (1972); and N.LRB. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946). In agreement with General Counsel, I find Robb and Hurt could have reasonably concluded, upon hearing Richardson's comments, that Respondent was going to punish them for engaging in union activities and that Richardson gave them the impression their union activities were under surveillance. Accordingly, I find the comments violated Section 8(aXl) of the Act. On August 17, Richardson spoke with employee All- bright. During the conversation, Allbright observed some- one was telling management what was going on in connection with the Union. Richardson thereupon in- formed Allbright that employee Jim Bowlin was going to the White House and giving all the names of people who had signed cards so the White House knew who had signed and who hadn't. Richardson also informed Allbright that he had attended a supervisors' meeting earlier and that Bowlin had been the only employee in attendance. At or near the same time, Allbright told Richardson the employ- ees had been able to sign up all of maintenance, but were having trouble signing up the operators and getting 51 percent of all the employees signed up. Richardson stated the reason the operators wouldn't sign was the Company had offered them a 40-cent raise.6 I find that Respondent, through the above-described conduct of Richardson, sought to create the impression that the employees' union activities were under surveillance and I find that it sought to deter union activities among the operators by indicating they were to receive a 40-cent-per-hour raise. Both actions constitute violation of Section 8(aXl) as alleged. On August 20 Richardson and employee Trojanowski discussed the Union and Richardson informed the employ- ee "John, you'll all get fired ... you're going to get fired, just as sure as the world goes around . ... They're going to run everybody out and bring in contract maintenance." I find that Respondent threatened Trojanowski and other employees by the above-described conduct and therefore violated Section 8(aXl) of the Act. I further find that no evidence was offered at the hearing to prove the allegation set forth in paragraph 8(f) of the complaint and, according- ly, I shall recommend dismissal of the allegation.7 Supervisor Richardson had a similar conversation with employee James Ellis around August 23. He told this employee that Bowlin was a company snitch and that he ran to the White House with all information he had I Par. 8(f) alleged that Richardson "on or about August 20, 1976, threatened an employee by telling him that he had seen Respondent terminate employees once at another location as a result of the Union, and that Respondent could do it again at its Pasadena, Texas, facilities." 396 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. concerning the Union. Richardson suggested the employ- ees drop him or give him the "silent treatment" if he came around. He went on to say that Supervisor Ray Osborn had promised Bowlin a white hat if he would give the office any information he had regarding the Union. I find that Respondent sought, through this conduct by Richardson, to create an impression that the employee's union activities were under surveillance and that such conduct violates Section 8(a)(1) of the Act. 3. By Maintenance Supervisor Ray Osborn Approximately July 15, Osborn approached employee Trojanowski and asked him how everyone's pulse was beating. The employee replied "not too good, before you know it there's going to be a bunch of people talking union around here." Osborn replied, "Oh, you damn old Pollock, you know good and well everyone's talking union already - it's nothing new." Trojanowski testified that Richardson thereafter told him if the union talk kept up they were all going to get fired, asking what good a bunch of supervisors would be to Big Three if they didn't have anyone to supervise. I find that Respondent unlawfully interrogated an employee and unlawfully threatened to discharge employees if they continue their union activities through Osborn's remarks, and find that such conduct violated Section 8(a)(1) of the Act. During the week of July 22, Osborn conversed with employee James Ellis. At that time, Osborn stated if the employees didn't forget about the union bit, they were going to run off the whole damn bunch, especially if they continued to get operations people to sign cards. Thereaf- ter, Osborn told the witness that the jobs of him and his buddy were secure, but that Respondent intended to get rid of five "bad apples" named as Mike Robb, Thomas Hart, Bill Fairless, John Trojanowski, and Mike Allbright. I find that Osborn's comments threatened employees in violation of Section 8(a)(l) of the Act. 4. By Maintenance Supervisor Albert Lindsay Employee John Trojanowski visited Supervisor "Chief' Lindsay at his trailer on June 29. During the conversation between the two, Lindsay commented on the union talk that was occurring at the plant and informed Trojanowski that the Union was a good way for all of them to get fired. He referred to a situation at Respondent's Beaumont plant and said, "It happened there, and it will happen here too. ... The old man will just run you all off. He'd close the plant down if he had to before he would go Union." Trojanowski testified he understood the reference to the "old man" to be a reference to H. K. Smith, Respondent's chairman of the board. I find that Respondent threatened employees with discharge if they engaged in union activity through the above-described comments and find that such conduct violated Section 8(a)(1) of the Act. Subsequently, around July 15 Lindsay had a conversa- tion, much like the one set forth above, with employee I Other meetings were held, with about the same number of employees attending and those meetings were conducted in much the same manner as the meeting under discussion. 9 Robb placed the conversation as having occurred on July 30 and Thomas Allbright. "Chief' told Allbright he had better leave the Union alone because he had seen it trying to get started in the Beaumont plant and there was a layoff. Lindsay went on to say people would be called in from other plants to run the operations part of it (Bayport plant) and outside contractors would be called in to do the maintenance work. Lindsay concluded saying he had better leave it alone or he'd run off the whole maintenance crew there and do the exact same thing. Allbright testified he understood Lindsay to be predicting what H. K. Smith would do. I find that Respondent unlawfully threatened employees for engaging in union activities through the above remarks and that such conduct violated Section 8(aX)(1) of the Act. 5. By General Manager Sid Peters Some 2 weeks after the employee union activity began in earnest, General Manager Peters decided to see what he could do about ascertaining and curing the matters which were bothering employees. Thus, on July 26, he held a meeting in the conference room at the White House, where some 20 employees were summoned and remained for about 4 hours.8 Peters indicated to the employees that he wanted to bring them back together; that he felt they had some problems they needed to work out. Thereafter the gripes and complaints of the employees were solicited and the noteworthy ones were put by Peters on a blackboard. Matters mentioned included a new shop, a decent lunch area, and hospitalization insurance. At the conclusion of the meeting, Peters indicated he would take some of the complaints up with Respondent's corporate headquarters and would report feedback to the employees. On August 2, employees Robb and Hurt sought out Peters. Hurt had laid the groundwork for the ensuing conversation several days earlier by telling Peters his meetings with the employees had not been well received; that they wanted quick action and felt they were being messed around by the Company. Hurt testified that he and Robb approached Peters on August 2 because they had been unable to get 51 percent of the employees to sign union cards and they wanted to get Peters to agree to an interim measure which would permit them to continue to organize. Hurt asked Peters what he thought of a company union at the outset of the conversation and Peters indicated he didn't think a company union would work. Hurt then suggested a committee and Peters' reaction was that probably wouldn't work either but if a committee was used it would have to be small. When it appeared Peters was not going to make any definite commitment, Robb told him "Sid, you know we hold the cards?" Peters then asked the employees if they could cool things down in the field and get them to back off the Union. Hurt and Robb indicated they could so as Peters suggested.9 The complaint alleges, and I find, that Respondent violated Section 8(aX)() of the Act by attempting to cause employees Hurt and Robb to "cool down" the union activity of employees until Peters and Respondent could testified Peters rather than Hurt suggested a committee. Hurt's recollection was much better than Robb's and Hurt impressed me more while on the witness stand. I credit Hurt's version. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eliminate the source of some of their discontent. I further find that Peters' conduct of meetings with employees, under the circumstances, including his request that Hurt and Robb "cool down" the union activity, was violative of Section 8(a)(1) of the Act, as Peters was obviously promising employees additional benefits and improved working conditions to cause them to cease their union activity.10 F. The Suspensions of William Fairless and John Coryell William Fairless and John Coryell were suspended for 3 days without pay on August 18. Respondent contends it suspended these employees because they knowingly violat- ed a company rule by leaving the plant for dinner without clocking out. General Counsel asserts the action was motivated, in part, by the union activities of the employees. I find no violation in connection with these suspensions for the reasons set forth below. John Coryell was hired by Respondent as a millwright at $7.20 per hour on March 23, 1976. Osborn was his supervisor. William Fairless was hired approximately 3 weeks later, on April 12. He was also hired as a millwright at $7.20 per hour. Fairless was originally supervised by "Chief" Lindsay, and later by Osborn. Although there was considerable overtime work at the plant for maintenance employees during the entire period of their employment, neither of these employees liked overtime work. Due to the fact that they frequently refused to work overtime, Roland Borey, the plant maintenance superintendent, suggested in June or early July that each of them find another job where they would be required to work only 40 hours per week. Coryell and Fairless both signed union authorization cards on July 15. They engaged in no other union activity. Neither was particularly friendly with other employees because the employees were unfriendly towards them, as they refused to perform what others felt was their fair share of the overtime work. In addition to the fact that they refused to work overtime when possible, Coryell and Fairless ate their lunch off company property each day. Maintenance Superintendent Borey testified he had been informed in March that many of the maintenance employ- ees were leaving the plant for lunch without clocking out (and back in on returning), and that they were taking longer than the time allowed for lunch. Accordingly, he caused a notice to be posted at the timeclock on March 22 providing: At any time an hourly employee leaves the plant, he or she must punch out, and punch back in upon returning. This includes (I) during his regular shift, (2) on overtime for personal reasons, or (3) during lunch- breaks. This is necessary for the safety procedures of this plant and the employees. Thank you for your cooperation. 10 In brief General Counsel urges such a finding although the violation was not alleged in the complaint. The issue was fully litigated without objection at the hearing and does not materially vary from the complaint allegations. Accordingly, I conclude such a finding is clearly appropriate. California Bake-N-Serv Ltd., 227 NLRB 548 (1976), and cases cited therein. The record reveals that Coryell and Fairless as well as other employees clocked in and out at lunchtime as directed for a short time after the notice was posted. Thereafter the more skilled craftsmen ignored the notice, leaving for meals without punching out or in, while their helpers normally clocked out and in. On August 17 the employees in the maintenance department, including Coryell and Fairless, were required to work overtime. It is undisputed that assistant mainte- nance superintendent informed them during the afternoon that no one was to leave the plant that evening; that they were to eat on the premises. However, at approximately 6 p.m., Coryell and Fairless, who testified they did not like the TV dinners served by Respondent to employees working overtime, left the plant without clocking out and returned from their dinner at approximately 6:40 p.m. Supervisor Richardson observed them leave and upon their return they were summoned to Park's office where they were informed they had been signed out at 6 p.m. - to return at 8 a.m. the following day. The same evening, Lee Thomas Judd, another mainte- nance employee, left the plant for approximately 25 minutes to eat at his home. He did not punch out or punch in upon his return. He credibly testified that no supervisor mentioned the situation to him that night, but Richardson came to him the following day, and said, "Lee, don't leave the plant any more without punching out.... Don't worry about it though, we're not after you." Judd had not signed a union card and, as indicated hereinabove, Assistant Maintenance Superintendent Park and, presum- ably, Richardson were aware of this. On the morning of August 18, Coryell and Fairless reported to the maintenance office at 8 a.m. Alexander, the personnel manager, Richardson, and Borey were in the office. Borey informed the employees they had violated a company rule by failing to clock out when leaving the plant the evening before and asked if the employees knew this. They indicated they did and were suspended for 3 days (August 18, 19, and 20) without pay. They were asked to sign completed forms entitled "Notice of Personnel Record Entry" which documented the rule, the infraction, and noted the punishment." General Counsel's argument that Coryell and Fairless were suspended for discriminatory reasons is persuasive if the doctrine of respondent superior is utilized to the fullest extent. The picture which would evolve is that Respondent was aware that Coryell and Fairless had signed union cards; it was aware that two union adherents and one nonunion employee violated the clock out-in rule on August 17, and it punished the union adherents and refrained from punishing the nonunion employee and told him Respondent wasn't after him. The difficulty with this argument is the fact that the record does not reveal that Borey, the man who decided to discipline Coryell and Fairless, knew that Judd had left the plant without clocking out or in on return on the evening in question. Due to the " The forms both indicated the employees had been previously warned. There was a dispute as to whether the warning came orally from a supervisor or via the notice posted at the timeclock. In my view, the dispute need not be resolved as both employees admitted they were aware of the rule. 398 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. fact that Richardson was close to the employees and kept them informed as to what was going on in the White House, I seriously doubt that he made Borey or Park aware of Judd's actions on August 17. 1 am not disposed to infer that he did. Thus, I am convinced that the issue presented with regard to the suspensions is whether Respondent can discipline known union adherents when they knowingly violate a company rule. The answer, of course, is that participation in union activity does not insulate an employee from discipline or discharge for misconduct in connection with his work. Considering all the circumstanc- es, I find General Counsel has failed to prove by a preponderance of the evidence that Coryell and Fairless were suspended for discriminatory reasons. Accordingly, I shall recommend dismissal of those allegations of the complaint which refer to their suspensions. G. The Alleged Discriminatory Discharge of 34 Employees on August 25 On August 25, Respondent discharged all of the employees in its maintenance department at the Bayport plant. It contends this action was taken solely to remedy a disruptive situation which then existed at the plant. General Counsel contends the reasons assigned for the discharges are pretextual and that Respondent was motiva- ted to discharge the employees by their union activities. A summary of the evidence relating to the discharges and the manner in which they were effectuated is set forth below. A few remarks should be made to explain the setting in which the layoff occurred. Thus, the union organizational campaign was initially quite successful, particularly in the maintenance department, and, as revealed by the record, at least 33 cards were signed by employees by July 21.12 The campaign was impeded severely by Respondent's instanta- neous opposition, most of which was unlawful. Conse- quently, by early August the principal union adherents, Robb and Hurt, who recognized the difficulty they would experience in obtaining majority support of the hourly employees, attempted to get Respondent to agree to a lesser form of representation - a company union or a committee. Respondent, on the other hand, was seeking to stop the campaign by engaging in the unlawful activity described above. With matters at somewhat of a stalemate, acts of violence, threats, and disruption were experienced at the plant and elsewhere. The first series of incidents involved machinery in the plant. Plant Manager Beville testified a 2- by -4 was jammed in a water pump in July or August resulting in repairs which he estimated at a cost of $1,200 or $1,300. Next, the internals of a boiler were ripped out in August, with repairs costing $2,000 to $3,000. Thereafter, three parts to a turbine, then disassembled and under repair by the maintenance department, were missing. One part, a 12 G.C. Exhs. 2-5. 7, 9, 11, and 13-38. The latest date on cards admitted in evidence was July 21, 1976. Five cards signed by production employees still employed by Respondent at the time of the heanng were not placed in the record. a3 Respondent has a written bomb threat procedure in the record as Resp. Exh. 8. It contains instructions regarding report of threats to police. instructions concerning the manner in which such calls are to be handled. and instructions regarding personnel actions including search methods. thrust ring, was never found and machining of a new part cost Respondent several thousand dollars. On August 19, the incidents experienced became more severe. At approximately I a.m. on that date, Supervisor Richardson received an anonymous telephone call during which his life was threatened. Shortly thereafter, three shots were fired at his house and later investigation revealed three 38-caliber bullets in the roofline of his house. Additionally, both of the gas tanks of Richardson's private automobiles were sugared the morning of August 19. Plant Manager Beville testified the incidents were reported to him after Richardson came to work on the date in question. At 8:30 p.m. on August 19 the first of a series of bomb threats, which were to cause consternation at the Bayport plant until 6 a.m. August 20, was received by Respondent. Duwayne Harman, a temporary supervisor at the plant, answered the phone and an anonymous caller stated: Listen close, motherfucker, and listen close to me. You Beville, and you Durbin, there's a bomb set to go off now. Get your ass out. Harman reported the threat to his supervisor, Norman Dunnham, who in turn called Plant Manager Beville. At the time some six of Respondent's maintenance men, led by Hurt, some Brown & Root maintenance personnel, and the 4 p.m. - 12 midnight production employees were working. Pursuant to Respondent's bomb threat proce- dure,13 police and fire units were called, and nonproduc- tion employees, including the maintenance force and transportation employees, were evacuated to the gate area of the plant. The threat was investigated by the Harris County sheriffs office and search of the plant by plant personnel and the authorities failed to reveal the presence of any explosive device.1 4 Respondent's maintenance crew, with exception of Hurt, clocked out and went home at 9:30 or 10 p.m. Hurt remained to assist in the search for a bomb until approximately 11 p.m.15 At the time of the hearing, the sheriff's investigation file was still open as the caller remained unknown and no arrest had been made. Mainte- nance work was interrupted by the bomb threat, but production work was not. Later in the evening on August 19, Beville's wife received a phone call at their home at approximately 10:30 p.m. Mrs. Beville testified the caller was anonymous and the conversation was as follows: Caller: Is Mr. Beville there? Witness: Who's calling? Caller: There's a bomb going to go off at 6 o'clock tomorrow morning. Make sure his ass is out there. Mrs. Beville immediately reported the call to her hus- band, who was still at the plant. As the plant was then 14 The report prepared by the sherifls office, which merely documents the occurrence, appears in the record as Resp. Exh. 2. s1 Beville testified he didn't think Hurt assisted in the search. I credit Hurt because he left an hour after the other maintenance employees and Beville didn't appear to have actual knowledge as to Hurt's activities. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operating pursuant to its bomb threat procedure, this threat simply prolonged the situation that then existed. The record reveals that at least two additional bomb related calls were received at the Bayport plant during the early morning hours on August 20. Thus employee Jeff Gerber testified he received and taped two calls made by an unknown person. The first was as follows: 16 Caller: The second one will go off at 3 o'clock sharp. Gerber: What was that? Caller: The first one was funny. The second one will go off at 3 o'clock sharp. Gerber: 3 o'clock sharp? Caller: Right here. The second call was received about an hour after the first. It was as follows: Caller: Let me speak to A. J. Fagan. Gerber: Gerber speaking. Caller: You have about ten minutes. Gerber: Where is it? Gerber reported both calls to his supervisor, and Respon- dent's bomb alert procedure, which was already in effect, was continued. The record fails to indicate whether the maintenance employees who worked the 12 midnight to 8 a.m. shift were evacuated after Gerber received the above- described calls. Respondent's production employees con- tinued to work.l7 The final anonymous call during the 24-hour period under discussion was made to Marjorie Borey, Roland Borey's wife, at 8 a.m. on August 20. When she answered the phone at her home on that occasion, an unknown person said calmly and deliberately "tell him to be careful. Be careful." Mrs. Borey reported the call to her husband at the plant immediately.' 8 Beville testified that the bomb threats experienced on August 19 and 20 caused Respondent to add an additional Burns security guard to each shift immediately. Additional- ly, Respondent posted a notice at the plant which stated that utterance of bomb threats constituted violation of the Hobbs Act (Resp. Exh. 10). Employee K. O. Dreymala, a class B operator, testified that upon hearing of the bomb threats received at the plant on August 19, he felt on August 20 that he should bring to Plant Manager Beville's attention a situation in which he was involved earlier. Thus, on August 20, Dreymala informed Beville that earlier in the summer he was policing a work permit requiring employees to wear lifelines while replacing fan blades on top of a tower in the plant. Maintenance employee Allbright was in charge of the operation and maintenance employees Dill and Hurt were working with him. None wore lifelines as required and Dreymala told them to correct the situation, and they put the lines on. Feeling the employees might take the lines back off, Dreymala went half way down the tower and then '6 The record does not clearly reveal the time this call was received. The witness described an alleged call which was received at approximately 12:30 a.m. and Respondent's log reveals the call was received at 2 a.m. l? Although I have no reason to disbelieve the testimony regarding the bomb threat made to Mrs. Beville and the two calls made to Gerber during ascended again and hid where he could observe. The employees had removed the life lines so he reported them to his supervisor, who in turn contacted their maintenance supervisor. The next day, after the three maintenance employees had been reprimanded for their conduct, Dreymala went to the top of the tower in connection with another hazardous work permit. He informed Beville that on the second occasion Hurt, Allbright, Dill, Randal Bell, and Mike Robb surrounded him on top of the tower and told him they had gotten in trouble over the incident the previous day, and while standing on the edge of the tower told him if he had anything further to say about a violation of a permit he had better come to them or else. The above-described events, according to Beville, led him to prepare a memorandum which he delivered to his boss, Glen Wheat, Respondent's vice president in charge of plant operations, on August 23. Beville testified he gave the memorandum to Wheat, explained he felt the observations therein indicated the maintenance department personnel were the source of the difficulties recently experienced, and he recommended that the Respondent's maintenance employees be terminated and that maintenance at the Bayport plant be subcontracted to Brown & Root. The memorandum, which was admitted in evidence as Respon- dent's Exhibit 9, is set forth in its entirety, minus pencil notations: Events prior to 8-19-76 bomb threat directed towards Big Three: I. Maintenance Supervisor, John Richardson, was threatened by phone at approximately I AM. 2. John Richardson's house was shot three times by a .38 caliber slug. 3. John Richardson's personal automobiles (2) were sugared (gas tanks). 4. Maintenance Manager, Roland Borey, was threatened by phone through his wife. 10 AM (watch it) Possible suspects responsible for above are William Fairless and John Coryell. Possible reason was these two men were suspended for three days for disciplinary action by Roland Borey and John Richardson. There is no definite proof of this. It is my understanding that John Richardson's incident was handled by the Baytown Police. The next event was the bomb threat to Big Three Bayport plant at approximately 8:45 PM. This call was received by acting Shift Supervisor, Duwayne Harman. The voice was a deep male voice with no noticeable accent. The message was, "Listen to me close, mother fucker, close. You, Durbin, you Beville, there is a time bomb set to go off. Get your ass out now." At 10:30, my home was called (Tom Beville), at which time my wife answered the phone. A male voice asked for Mr. Beville (pronounced wrong), to which my wife replied, "Who's calling?", again asked for Mr. the morning of August 20, it should be noted that no evidence was offered to show that Respondent reported these alleged threats to the police pursuant to its bomb threat procedure. 18 A second anonymous call was received at the Borey home on the evening of August 20. The callerjust laughed and hung up. 400 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. Beville, at which my wife replied, "He's not available." A voice then said, "Tell him the plant is going to blow up at 6:00 in the morning. Tell him to get his fat ass out there." and then hung up. As per our safety procedure, I was immediately notified by my Shift Superintendent, Norman Dunnam. Mr. Chuck Curtis, Driver Trainer, immediately execut- ed our bomb threat procedure. The Harris County Sheriffs Department was notified, the Pasadena Fire Department was notified, plant supervision was noti- fied, and evacuation of all unnecessary personnel was made. When sufficient supervision arrived, a three and one-half [hour] search was made of the plant. There were no findings. Normal operation was resumed at approximately 12:00 midnight. A good majority of our plant maintenance at this time felt that it was unsafe for them to continue to work, at which time I consented for them to leave. The majority of plant operators remained as did the majority of the contracted Brown & Root personnel. Big Three plant maintenance, except for Talmadge Smith, A.J. Feagin, and several Big Three laborers, left. At this time, the remaining plant personnel were informed of the 6 AM bomb threat and were advised we would take the same procedure of the 8:45 PM bomb threat. At 2:10 AM another bomb threat was received by Jeff Gerber. This bomb threat was recorded and is on tape. Briefly, it stated that a bomb would go off in the plant at 3 AM. At 2:50 AM another call was received and recorded. It said that we had ten more minutes before it would go off. At this time we proceeded with the same procedure used at the 8:45 PM threat. No other bomb threats were received after 2:50 AM. During the early AM, I played the last two tape recordings of the bomb threats to various plant personnel in an attempt to identify the caller. The following facts became available: 1. Kale Dreymala made possible identification of this voice from certain terminology used in the first taped threat as the voice of Mike Robb, a maintenance mechanic. He recalled an incident approximately four to five months previous where Mike Robb, Jim Bowlin, Bob Dill, Tom Hurt and Fred Walker failed to comply with a HWP permit. At that time he requested them to comply, which they failed to do and he then reported them to his immediate supervisor. The following night in the same area and approximately same person- nel led by Jim Bowlin and Mike Robb surround- ed him on top of # I cooling tower. They told him in effect, anytime he had any complaints they had better come to them and not to supervision. During this conversation, terminology that Mike Robb used was similar to the terminology of the first tape recording (Right here). 2. Albert Lindsey, when he was requested to listen to the tape, made possible identification of Mike Robb. 3. Joe Park, when he listened to the tape, identified the voice as Jim Bowlin. 4. Mike Robb and Jim Bowlin were on duty until 10 PM on the 19th, at which time they left the plant in a 1967 white pickup, license #GH9800. Shortly thereafter, they were ob- served driving back and forth in front of the plant by the Burns guard service. Several of Burns detectives followed the white pickup which finally stopped on Fairmont Parkway. Burns detectives observed from a distance and radioed their dispatcher to notify the Harris County Sheriffs Department. When the Harris County Sheriffs Department arrived, the people were gone. At approximately 6:30 AM this vehicle reappeared in the parking lot, driven by Mike Robb, accompanied by Jim Bowlin. Jim Bowlin went into the plant for approximately ten to fifteen minutes then he returned to the pickup. While Bowlin was out of the pickup Harold Riese, Safety Supervisor, asked Mike Robb if he had driven by the plant several times and he told him that they had driven by the plant. They left around 10:00 PM and had gone to get a few beers to have a party. He said they were driving someone home and his truck vapor locked and that they had to walk to get another vehicle. I informed him that the Harris County Seriffs [sic] Department were looking for a truck with his license number. Jim Bowlin came out of the plant and got into the truck. They informed Harold Riese they would not stay and search for a bomb last night and that is why they left. (Possibility they could have made the 10:45, 2:10, and 2:50 phone threats.) After the conversation they left the parking lot at a high rate of speed. Beville, who was operations manager at the Bayport plant for some 9 years before he was elevated to plant manager during the first week of August, denied that union activities of employees had anything to do with his recommendation that the maintenance crew be terminated. To bolster this denial, Beville testified he was on vacation from July 8 or 9 to August 2; that he was unaware of any union activities at the plant during August; that none of his supervisors had reported who had signed cards; that he was unaware of who had signed cards; and he specifically did not know before they appeared at the hearing that Coryell and Fairless had signed cards. Glen Wheat, who testified he called the Bayport plant every morning to obtain a status report from his plant manager, did not indicate the extent of his knowledge of union activities at the plant, if any, and failed to mention the Union as being a matter which was discussed at the corporate offices at any time. Beville testified he recommended that Respondent's maintenance force be replaced because of the bomb threats, and the threats or violence experienced by supervision, including John Richardson, Borey, and him- self. He attributed these acts to persons in the maintenance department because the bomb threats started immediately after two maintenance employees were laid off (Fairless and Coryell); Richardson, who was threatened, had his house shot at, and auto gas tanks sugared, was employed in 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the maintenance department; and other supervisors threat- ened were from the maintenance department. After Wheat received Respondent's Exhibit 9, complete with Beville's recommendation that Respondent terminate its maintenance employees, he indicated a meeting with undisclosed persons was held at Respondent's Houston headquarters the morning of August 24. Thereafter, Wheat contacted Beville and arranged a meeting at the latter's home for that evening. The meeting at Beville's home was attended by Sid Durbin (in charge of operations at Bayport plant), Skip Beuttner (position unknown), Dowman (Re- spondent's director of personnel), Glen Wheat, and Beville. They discussed the matters in Respondent's Exhibit 9 and reportedly sought alternatives to Beville's recommendation that the situation should be cured by terminating Respon- dent's maintenance force. No alternatives were forthcom- ing.19 The next day, August 25, Wheat attended a meeting at Respondent's Houston office. Present were H. R. Smith, chairman of the board, Bill Borey, Charlie Glasier, Bob Moore, Jerry Dowman, Sid Peters, and Beville - by speaker phone. At this corporate meeting, Beville's recom- mendation was adopted. Although the decision to terminate the Bayport mainte- nance crew was made early on August 25, Respondent did not effectuate the decision until approximately 10:30 p.m. because it wished to announce the decision at a time which would minimize the possibility of sabotage by employees in the maintenance department. Accordingly, commencing at approximately 10:30 on August 24, Dowman and Bayport Plant Personnel Director Alexander called maintenance employees and read them the message set forth in Respondent's Exhibit 5 which provides in pertinent part: TO ALL EMPLOYEES Effective midnight, August 25, 1976, Big Three Indus- tries, Inc., is discontinuing all maintenance shifts. Maintenance will be subcontracted because Big Three has determined this is a safer, more reliable, more efficient and flexible way to accomplish the necessary maintenance. You will be paid for all hours worked through August 25th, plus 16 hours for Thursday and Friday, August 26th and August 27th, plus 40 hours pay in lieu of notice. GROUP I Arrangements have been made for you to report to the Bayport Guard Building 9 AM - Thursday - Aug. 26 where you will be met and given your paycheck for all monies due. You will also be given the opportunity to 19 Roland Borey, who was in charge of the maintenance department at the Bayport plant, was apparently not invited to attend the meeting although his counterpart, Durbin, who was in charge of the production department, was in attendance. The record reveals Borey was available, but fails to reveal why he was not invited to this important meeting which concerned his subordinates. 20 Mechanically, Respondent divided the maintenance department into three groups. Group I was told to come to the plant for final processing at 9 pick up your personal belongings and tools from the Plant area at that time. You will be expected to turn in your Identification Badge prior to receiving your paycheck.2 0 Both Alexander and Dowman testified that when stating the reasons for termination they did not give any reason except those stated on Respondent's Exhibit 5. If the person they talked to asked questions not answered by that document, they simply answered they did not know.21 To demonstrate the validity of its decision that its maintenance employees were responsible for the predis- charge acts described hereinbefore and that its decision to subcontract the maintenance work was sound, Respondent offered evidence relating to the postdischarge period. Thus, employee Wayne Lamson, a salesman employed in Respondent's sales office which is located outside the fenced area of the plant, testified that on August 26 he answered the phone at the office and an unknown person stated "It's going up in 10 minutes." Lamson asked the caller to repeat and the caller again said, "It's going up in 10 minutes." The call was immediately reported to the employee's supervisor and the sales office was evacuated for about 15 minutes.22 Between I and 1:30 p.m. on the same day a second call was received at the sales office by employee Allen Jones. On that occasion, the anonymous caller said, "It's going up at 2:30." Asked to repeat, he did, stating "2:30, 2:30, 2:30." This call was also reported to the employee's supervisor immediately and the building, housing some six sales persons, was evacuated for about half an hour. The call was reported to the sheriff's office, and the official report was placed in evidence as General Counsel's Exhibit 46. No explosive device was found on either occasion and no arrests were ever made in connec- tion with the incidents. Beville testified no bomb threats or other incidents of threat or violence have occurred at the plant or among its personnel since August 26. With respect to the success or failure of the switch from its own maintenance personnel (assisted by Brown & Root) to a subcontract situation wherein Brown & Root accom- plished all maintenance at the Bayport plant, the record reveals the normal maintenance force contingent (all inclusive) has been reduced from 73 employees as of August 25 to 50 as of the time of the hearing, while payments to Brown & Root have risen from an average of $50,000 per month to $80,000. Additionally, Beville testified that Respondent kept statistics measuring the utility or reliability of machinery and the report for the months of June, July, and August showed reliability of 91.9 percent, while the next report (for a period when Brown & a.m., Thursday, August 26; Group 2 was to report at 2 p.m. on August 26; and Group 3 was to report at 9 a.m., Friday, August 27. 21 While Alexander indicated that persons who were informed of their termination at the plant were not given the "stock" message, the record indicates nothing beyond the fact that they were terminated when they appeared. n The sheriffs office was called, but no report concerning the incident was placed in evidence. 402 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. Root was performing all maintenance) showed a reliability figure of 96.2 percent.2 3 Analysis Respondent asserted as an affirmative defense in this case that it terminated the employees in its maintenance department on August 25 because they engaged in unprotected activity and/or it had reason to believe they did. In my view, no evidence was offered at the hearing which remotely tended to prove either assertion. In point of fact, the only evidence bearing on the subject was Respondent's Exhibit 9, which was not offered or admitted in evidence to prove who committed the acts of August 19 and 20, and the testimony of employee Dreymala, which did no more than demonstrate that several employees in the maintenance department voiced dissatisfaction with the way young Dreymala performed his duties. Accordingly, Respondent's assertion that maintenance employees com- mitted the August 19 and 20 acts or it had reason to believe they did remains a bare assertion unsupported by any facts whatsoever. On the other hand, there is a virtual wealth of evidence in this record which supplies an unlawful motive for the mass discharges on August 25. As indicated above, the employee organizers caused a large majority of the maintenance employees to sign union cards during the month of July. Through extensive interrogation of employees and surveil- lance of their union activities, Respondent became fully aware of the identity of the leading adherents and learned who had signed cards by late July or early August. It was fully aware of the fact that the union activity was localized in the maintenance department and that, as of August 25, the production employees had not wholeheartedly joined the campaign. Contrary to Respondent's contention, the union organization drive had not harmlessly run its course by August 25. At the very least, the maintenance employ- ees were then insisting on representation in the form of a company union or an employee committee. Robb and Hurt had put the latter proposition to Peters in early August and they had not, by August 25, been given a reply. Thus, any lull that existed in the union campaign had been caused by Respondent and the record reveals it was merely tempo- rary. Ignoring the above facts, Respondent offered evidence falling into three categories at the hearing to prove that it lawfully discharged its maintenance force. It offered evidence concerning alleged sabotage of machinery for the dual purpose of casting suspicion on the maintenance employees and justifying its layoff or discharge procedure, i.e., calls to employees at their homes late at night and use of security when they reported to pick up their checks and personal belongings. Secondly, it offered evidence reveal- ing the August 19 and 20 incidents to justify the decision to discharge the maintenance force. Finally, it offered evidence of postdischarge events and statistics to prove the 13 Cross-examination of Beville and Wheat by General Counsel revealed the Bayport plant underwent a "turnaround,." defined to be a penod of concentrated work on machinery to make it more relable and productive, in September 1976. Admittedly, additional maintenance personnel are hired for "turnarounds." Wheat admitted reliability would naturally be a lesser percentage immediately before a "turnaround" than immediately afterward. wisdom of its decision to terminate the employees in question. Respondent would have me consider this evi- dence in isolation thus causing me to conclude it had good and valid reasons for discharging its maintenance force on August 25. Respondent's position is unrealistic and untenable. The union situation was unresolved in August and I infer that Respondent's top management remained concerned with the union activity of the maintenance employees on August 25. The inevitability of such concern makes the testimony of Beville and Wheat exceedingly suspect. Respondent would have me believe that despite repeated threats to run off the maintenance force because of their union activity, the union activity of these employees was not a matter of consideration or discussion during meetings which led to the decision to discharge them. I do not accept this assertion. To the contrary, I find that Beville and Wheat carefully avoided any mention of the union activities of employees in connection with the August 25 terminations to mask the fact that those activities were a motivating reason if not the sole motivating reason, for the termination of the maintenance force. General Counsel contends that the legal principals set forth in N.LR.B. v. Burmnup & Sims, Inc., 379 U.S. 21 (1964); and Hyster Company, 195 NLRB 84 (1972), are applicable in the instant case. In those cases the issues concerned the legality of discharge of union adherents who the employer reasonably believed had engaged in unpro- tected activity. That situation is not presented in this case. Instead, the situation here is more closely analagous to the one before the Board in American International Aluminum Corp., 149 NLRB 1205 (1964). In the latter case, the employer had reasonable cause to believe that certain employees had instigated and directed slowdowns. Rather than terminate those involved in the unprotected activity, it terminated the entire production crew, and thereafter terminated its contract with their collective-bargaining agent. As the motive for the termination of the employees who had engaged in unprotected activity was tainted by the unlawful intention to terminate the contract, the guilty employees as well as the innocent were ordered reinstated. Here, the situation differs only in that Respondent has failed to prove that it had reasonable cause to believe that members of the maintenance crew engaged in unprotected activity. Respondent merely suspected some employees may have engaged in unprotected activity and chose to terminate all of them to end the union activity and to possibly end the bomb threats and allied behavior. The pretextual nature of the reasons assigned by Respondent for the mass terminations on August 25 is revealed in part by the fact that it terminated all the maintenance employees rather than-just those it suspected in connection with the August 19 and 20 activities. Respondent knew that almost everyone in the maintenance department had signed union cards and it suspected that only a few employees in this department had been involved This fact was borne out by reliability reports placed in evidence by General Counsel which revealed: June 1976 - 90.6 percent; July 1976 - 90.9 percent: August 1976 - 94.3 percent; September 1976 - 98.4 percent (turnaround month); October 1976 - 96.3 percent; and November 1976 - 93.9 percent. 403 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the unprotected activity experienced. Beville and Wheat both testified that unspecified alternatives to the mass discharge of all maintenance employees were discussed. One is left to conjecture as to whether termination of suspects only was discussed, and one is left to conjecture as to why all employees in the maintenance department were discharged. In my view, these matters are left to conjecture because they were discussed by top management and revelation of the discussion would reveal the unlawful motivation which served as a basis for the decision to discharge the entire maintenance crew. For the reasons stated, I find that Respondent was motivated to discharge the 34 employees named in the complaint on August 25 by its desire to chill the union activities of employees at its Bayport plant. Accordingly, I find that the discharge of these employees violated Section 8(a)(3) and (1) of the Act.24 Although some of the employees were not shown to have engaged in union activity, such proof is unnecessary as they were terminated to end the union activity, California Bake-N-Serv Ltd., 227 NLRB 548 (1976), and cases cited therein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations de- scribed in section I, 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. CONCLUSIONS OF LAW 1. The Respondent, Big Three Industrial Gas & Equipment Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and sentiments and the activities and sentiments of other employees; by threatening employees with discharge or lack of promotion in order to discourage them from joining or assisting the Union; by promising benefits to employees in order to encourage them to forgo their support of the Union; and by creating the impression that the union activities of its employees were under surveil- lance, I find that Respondent has violated Section 8(aXl) of the Act. 4. By discharging the 34 employees named in the complaint on August 25, 1976, I find Respondent has discriminated in regard to the hire or tenure of employ- ment, thereby discouraging membership in a labor organi- zation in violation of Section 8(a)(3) and (1) of the Act. 24 Employees Judd and Burleson credibly testified Supervisor Richard- son told them on August 26 that a reason for the terminations was the Union. I do not base my finding of discrimination upon this testimony as Richardson did not attend the meetings leading to the decision to terminate and it appears his utterances constituted a statement of opinion rather than known fact. Similarly, I have considered the credible testimony of employee 5. All other allegations of the complaint that Respon- dent has violated Section 8(aX3) and/or (1) of the Act have not been sustained by a preponderance of the evidence and are to be dismissed. 6. Joe Park, Gerald Alexander, John Richardson, Ray Osburn, Lynn Reddoch, Albert Lindsay, and A. J. Fagan were, at all times material herein, agents of Respondent and supervisors within the meaning of Section 2(11) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Respondent will be required to offer: T.T. Aldridge Thomas Allbright James Bowlin Jesse D. Burleson Gary Carrico John E. Coryell Richard A. Dickman James L. Ellis William Fairless Alan E. Fowler Robert M. Fox Kenneth Gatlin Tom Hurt Louren Lamb Daniel G. Leggett Jesse Lopez Richard McBride Steve McKnight Robert Molis Robert Rhoades Richard Michael Robb Charles Rodriguez Talmadge F. Smith Jeff Stevenson Ricky Talent J.K. Trojanowski Fred Walker Johnnie M. Williams Marvin J. Williams Steve Wylie Ken Tadlock Mike Vickery Lee Judd Floyd Williams reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which they had been performing; and to place said employees for whom jobs are not immediately available pursuant to the above, on a preferential hiring list according to seniority, to the extent possible. Additionally, Respondent will be ordered to make these employees whole for any loss of earnings they may have suffered by reason of their unlawful termination with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Allbright which reveals Supervisor Park told him in September that he had been instructed to refrain from recommending former maintenance employees to other employers and Park informed Allbright that none of the former maintenance employees would be permitted back in the Bayport plant, even when working for a subcontractor. I make no findings concerning this testimony as no violation was alleged. 404 BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. Upon the foregoing findings of fact, and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 5 Respondent Big Three Industrial Gas & Equipment Co., Pasadena, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and sentiments and the activities and sentiments of other employees. (b) Threatening employees with discharge or lack of promotion if they engage in activities on behalf of the Union. (c) Promising employees benefits including wage increas- es, or better working conditions to induce them from becoming or remaining members of the Union or to refrain from giving assistance or support to it. (d) Creating the impression that the union activities of employees are under surveillance to discourage member- ship in or activities on behalf of the Union. (e) Discouraging membership in or activities on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization of its employ- ees, by discharging employees because of their activities on behalf thereof or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer the 34 employees named in the section of this Decision entitled "The Remedy" immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previous- ly enjoyed, and make each of them whole for any loss of pay due to the violation against them in accordance with the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Pasadena, Texas, Bayport plant, copies of the attached notice marked "Appendix."28 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. :2 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." 405