United Electrical & Mechanical, Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Electrical & Mechanical, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 469, AFL-CIO. Case 28-CA-8053 9 April 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 22 November 1985 Administrative Law Judge James M. Kennedy issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in response and cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, fmdings,2 and conclusions3 as modified4 and to adopt the recommended Order as modified.5 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 2. "2. The Respondent violated Section 8(a)(1) of the Act when on the dates shown in the decision it created the impression that the union activities of its employees were under surveillance, threatened I After review of the Respondent 's motion to file an answering brief to the General Counsel's brief in response or, in the alternative , to strike certain portions of the latter's brief, we deny the motion 2 The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 The judge found that the Respondent, through leadman Robert Ostrom, unlawfully threatened job loss and created the impression of sur- veillance by making certain comments regarding the "outside activities" of employees Nunez and O'Brien in a meeting with them on 30 January 1985 In light of our adoption of other findings of violation of Sec 8(a)(1) identical in nature to such conduct, we find it unnecessary to pass on whether this conduct of Ostrom was unlawful because such a finding would be cumulative and would not affect the remedy In adopting the judge's finding that the Respondent , through leadman Sonny Osborne, did not violate the Act, we find it unnecessary to pass on whether Osborne is a supervisor within the meaning of Sec 2(11) of the Act 4 The judge inadvertently omitted from his formal conclusions of law the Respondent's violation of Sec 8(a)(1) by asking an employee to ques- tion other employees regarding their union sentiments, a finding which he had made in a sec IV,(A),(3) of his decision We shall modify the judge's conclusions of law, Order , and notice accordingly We shall also modify the notice to conform to the Order by including proscriptions against unlawful interrogations 5 Any backpay arising from the Respondent's unlawful failure to grant routine pay increases shall be computed as set forth in Ogle Protection Service, 183 NLRB 682 (1970) employees with loss of their jobs either by direct discharge or by business closure because of their union activities, promised employees pay raises to influence their votes in an NLRB election, with- held wage increases which should have been rou- tinely granted in order to influence the outcome of that election, interrogated employees regarding how they intend to vote in the NLRB election, and asked an employee to question other employees concerning their union sentiments." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Electrical & Mechanical Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Creating the impression that the union ac- tivities of its employees are under surveillance, threatening employees with loss of their jobs either by direct discharge or by business closure because of their union activities, promising employees pay raises to influence their vote in an NLRB election, withholding wage increases which should have been routinely granted in order to influence the outcome of that election, interrogating employees regarding how they intend to vote in the NLRB election, and asking employees to question other employees regarding their union sentiments." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. 279 NLRB No. 34 UNITED ELECTRICAL 209 WE WILL NOT create the impression that the union activities of our employees are under surveil- lance. WE WILL NOT threaten our employees with loss of employment either through discharge or through business closure because of their union ac- tivities. WE WILL NOT promise employees pay raises or withhold routine pay increases in order to influ- ence the manner in which they intend to vote in any NLRB-conducted election. WE WILL NOT interrogate employees concerning how they intend to vote in an NLRB election. WE WILL NOT ask employees to question other employees concerning their union sentiments. WE WILL NOT discharge employees because of their union activities, membership, sentiments, or desires. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Ruben Felix, Alan Parfitt, and John Lehner immediate and full reinstatement to their former jobs, dismissing, if necessary, any em- ployee who replaced them or, if those jobs no longer exist, to substantially equivalent jobs, with- out prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for an loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL make whole, with interest, any em- ployee who should have routinely been granted a pay increase during the pendency of the election petition filed by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 469, AFL-CIO. WE WILL notify Alan Parfitt, Ruben Felix, and John Lehner that we have removed from our files any reference to their discharges and that the dis- charges will not be used against them in any way. UNITED ELECTRICAL & MECHANI- CAL, INC. Kenneth D. Meadows, for the General Counsel. James P. Hendricks (Kaplan, Jocobowitz, Hendricks & Bosse), of Phoenix, Arizona, for the Respondent. Michael J. Keenan (Ward & Keenan, Ltd.), of Phoenix, Arizona, for the Charging Party. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried before me in Phoenix, Arizona, on June 18 through 21 and July 11, 1985. It is based on charges filed by United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 469, AFL-CIO (the Union) on April 3, 1985.1 It was originally consoli- dated with Case 28-RC-4277 for the purpose of issuing a Report on Challenges and Objections. That case was ser- vered and a separate Report on Challenges and Objec- tions was issued on September 30. The complaint alleges that United Electrical & Mechanical, Inc. (Respondent) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. All parties have filed briefs and they have been carefully considered. Based on the entire record, as well as my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. INTERSTATE COMMERCE Respondent admits it is a Colorado corporation having an office and principal place of business in Phoenix, Ari- zona, where it is engaged in the construction industry as an electrical and mechanical contractor . It further admits that during the 12 months preceding the issuance of the complaint, it purchased and received in Arizona prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from suppliers located outside that State . Accord- ingly, it admits, and I find, that it is and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union has been, and is now, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues There are three principal issues: First, whether I may find that three individuals are supervisors within the meaning of Section 2(11) of the Act despite a finding by the Regional Director in the underlying representation case that they were not. These individuals are all styled as "leadmen." They are Bob Ostrom, Sonny Osborne, and Art Weaver. Second, if these individuals are found to be supervisors, the next question is whether they and others engaged in activity which can be characterized as violations of Section 8(a)(1) of the Act. The third issue is whether Respondent discharged three employees in vio- lation of Section 8(a)(3) of the Act. The dischargees are Alan Parfitt, Ruben Felix, and John Lehner. I All dates are 1985 unless otherwise noted 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Background 1. Robert Ostrom Respondent is an electrical and mechanical contractor in the building and construction industry. In early 1985 its principal construction project in the Phoenix area was the installation of plumbing and pipefitting systems in a new building in Mesa, known as the A T & T project. It also had some smaller projects in the greater Phoenix area. In early 1985, approximately five pipefitters at the A T & T job decided to seek union representation. They contacted the Union. These individuals solicited authori- zation cards and on February 11 the Union filed a peti- tion for a representation election among Respondent's plumbers and pipefitters in the Phoenix area. The peti- tion was actually served on Respondent at its Phoenix headquarters on February 15. Respondent's president, Roger Wells, testified that he told only his vice presi- dent, Sackett, of the petition that day although he did immediately seek the assistance of legal counsel. He says he did not inform subordinate management until Febru- ary 21. His staff included Gary Roth, the field superintendent who had oversight of all construction projects, not simply A T & T, and Robert Martino, Respondent's gen- eral foreman at A T & T. Martino had responsibility for both the plumbing and pipefitting sides of the job. Bob Ostrom, characterized as a leadman, was in charge of the A T & T pipefitting crew while leadman Art Weaver was initially in charge of the plumbers. In March Weaver was transferred to another project. In addition, Sonny Osborne was an alleged leadman at two other projects, the Kivel Nursing Home and the Anchor Center. C. The Supervisory Issue On March 1 a hearing was conducted by the Regional Director to process the Union's election petition. On March 22, Regional the Director issued his Decision and Direction of Election. At that time , despite the fact that the parties had not taken positions with respect to the supervisory/employee status of alleged leadmen Ostrom, Weaver, and Osborne, the Regional Director believed there was sufficient evidence in the record to decide their status. He found them to be employees and thus eli- gible to vote. Subsequently, when the Regional Director issued the instant complaint, he alleged Ostrom , Weaver, and Osborne to be statutory supervisors. Respondent contends that the Regional Director is bound by his earlier determination that the three were not supervisors and that any antiunion conduct they may have committed is not attributable to Respondent. The Union asserts that the Regional Director's findings in the represenattion case were based on incomplete evidene. The General Counsel says the Regional Director is not bound by his earlier determination as a matter of law. I conclude, based on the holding in Serv-U-Stores, 234 NLRB 1143 (1978), that I am not bound by the Regional Director's decision . As Ostrom, Weaver, and Osborne are all accused of having violated Section 8(a)(1) in vari- ous respects, I must first determine their supervisory status. Ostrom testified he became a leadman of the pipefit- ting crew at A T & T in November 1984. He said his crew varied from 16 to 26 employees and that he "worked with the tools 60 percent of the time, including layout." He says he never hired or fired anybody; his principal duty was to "keep people busy." He says on occasion he has handed out paychecks when Martino or Roth were unable to do so. He agrees that on occasion he has moved employees from one system under con- struction to another based on his perception of how best to keep the employees working. He also inspected their work. These latter two functions were performed with- out any oversight by Martino or Roth. Despite Ostrom's denial that he was involved in the hiring and firing processes, four employees testified that Ostrom either directly hired them or that he was closely involved in their hiring. They are John Graff, David Jones, Alan Parfitt, and Ruben Felix. a. Graff testified that Ostrom hired him on February 15. He says he went to the company trailer looking for work where he spoke to Martino who told him to wait. Shortly thereafter Ostrom arrived saying he was hiring pipefitters. Ostrom gave Graff an application form which he filled out. Ostrom also asked Graff about his experi- ence. Satisfied, he told Graff he was hired, would be paid $10 per hour, and was to report on Monday, Febru- ary 18. Graff testified that Ostrom became his immediate supervisor and gave him daily assignments, handed him his paychecks, transferred him from task to task around the jobsite, authorized overtime, and on one occasion asked Graff to "push a crew." b. Jones testified that Ostrom hired him on February 19. His friend, apprentice Curtis Kizer, had told Jones that Respondent was hiring and recommended that he speak to Ostrom. On February 18 Jones spoke to Ostrom who said he was not hiring but that he could fill out an application. Jones did so. Shortly thereafter Jones re- ceived a telephone message to call Gary Roth. When Jones did so, Roth told him that Ostrom could use him at the A T & T job on the morning of February 19. When Jones reported, Ostrom told him he was to work in the fab shop at $7 an hour and could expect a 50-cent raise if he worked out. Ostrom later told Jones that if he became a certified welder, he would be entitled to an in- crease to $10 per hour, urging him to take the test. Roth testified that it was he, not Ostrom, who hired Jones. He remembers that he hired Jones in connection with the hire of Kizer but was unable to specifically recall the details of Jones' hire. c. Parfitt, an alleged discriminatee, testified that Ostrom hired him after an interview in the job trailer. Parfitt says he had heard about the job through another employee, Kevin O'Brien. O'Brien had told Parfitt to see Martino, but when Parfitt arrived Martino was not there. Instead he spoke to Ostrom who told him to fill out an application and who then told him when and where to start work. Martino testified that it was he who hired Parfitt, not Ostrom. Martino said he told Parfitt his rate of pay and had him report to Ostrom. He remembers Parfitt came to UNITED ELECTRICAL 211 the office with O'Brien asserting he really did not inter- view Parfitt but told him he would "try him out." He agrees Ostrom was present but says he played no role. d. Ruben Felix, another discriminatee, testified that Ostrom hired him and gave him his work assignments. He remembers that he learned of the job through his friend, pipefitter Johnny Nunez. Nunez and O'Brien had recommended him. He remembers Ostrom telling him that they needed welders. He does agree that he got an application form from Martino and did speak to Martino for a few minutes. Felix says Martino told him to tell Ostrom to put him to work. e. In addition, there are some incidents relating to Os- trom's authority. On one occasion Ostrom sent pipefitter Larry Williams home for the day when William dis- obeyed an order regarding the cutting of certain fittings. Ostrom told him that there was nothing for him to do if he did not cut them. There is also Jones' testimony that he observed a portion of the discharge interview be- tween Ostrom and an employee named "Chief' Frazier. Jones testified that on March 29 he was in the job shack at 2:30 p.m. to sign his timecard. At that time he watched Ostrom fire Frazier who apparently had only worked for 1 day. Ostrom denies giving a check after having worked only 1 day. Ostrom, however, does admit that he told Martino he was not getting his money's worth from Parfitt, that Parfitt was "hiding out," and that 2 or 3 days later Parfitt was discharged. Nonethe- less, Ostrom denies involvement in Parfitt's discharge. Based on the above evidence, it is clear to me that Ostrom was at all times a supervisor within the meaning of Section 2(11) of the Act. Clearly he had direct in- volvement in the hire of several employees. Whether he also served as the initial conduit of applicants to Martino or Roth is somewhat irrelevant. Quite clearly, he hired a number of these employees himself and was very influen- tial and closely involved in the hiring process of others. He even admits to his disciplinary authority. Moreover, he had the authority and obligation to move people around within the site in order to keep people at work. He said his duties each morning required him to discuss the day's work with Martino and then to get the pipefit- ting crew started. Thus he went around the jobsite, which was quite large, and gave employees their daily assignments Finally, I observe that his crew ranged from a minimum 16 to a maximum of 26 employees . It seems quite unlikely that such a large number could go without direct supervision. Clearly, Martino did not exercise hands-on authority over these men. If Ostrom was not their supervisor, then they were essentially unsupervised, an unlikely event.2 2. Art Weaver Art Weaver was the leadman over the plumbing at A T & T. He said he was made a lead in October 1984. 2 There is additional evidence in the record regarding Ostrom's super- visory status , including conflicting testimony with regard to whether he was entitled to a supervisor's bonus, whether he found he could not con- trol the crew after Roth testified in the representation case that he had no hiring authority and whether Roth told a "little white lie" at the repre- sentation case hearing with respect to the authority of the leadmen I do not regard that evidence as necessary to the above finding Nonetheless, he constantly referred to himself as a "fore- man" both on the job and when his ballot was chal- lenged at the NLRB election. While at A T & T he ran a crew of approximately eight plumbers . He said that he daily walked to the job with the plumbers, explained the work to them, showed them the blueprints, and then worked side by side with them. He agreed that one of his jobs was to observe their work and to see that it was done correctly. He denied that he had any hiring , firing, or disciplining authority but agrees that he was obligated to report employees' work quality to Martino. In making work assignments, he says he principally followed the di- rectives of the superintendent, Martino, who sometimes told him which employee to put on which job. When that occurred, he followed Martino's orders. If there was no such directive , he said he let the employees decide what work they wanted to do. He did not recall any quarrel among them over which work they wished to perform. Thus he never had to resolve an assignment dis- pute. It should be observed that Weaver appears to have a bias against the Union. He worked in the Denver area until he retired and began receiving a union-negotiated pension. At some point he began working in the trade again, apparently in the Phoenix area for the Bechtel Corporation at its Palo Verde Nuclear Generating Sta- tion. At some point the pension fund learned that Weaver was continuing to work in the trade and re- voked his annuity. That revocation has caused him some bitterness toward the Union. Furthermore, I found his actual testimony to be less than candid; at one point he claimed not even to know about the NLRB election. When it was revealed that he had cast a challenged ballot he had to recant his denial. Frankly, it appears to me that his testimony is shaded against the Charging Party here. Accordingly, I conclude that his testimony should be viewed carefully. I believe he tends to minimize his su- pervisory authority and I simply do not believe him on the point. Most particularly, I am unable to accept his testimony that he simply let employees choose what jobs they wished to work. Contradictorily, he testified that he assigned apprentice Jim Hendricks to work with John Lehner. He also reported Lehner's shortcomings to Mar- tino. Both acts were well within a supervisor's normal scope of authority. Finally, he testified that prior to March his job was "pretty much" overseeing, meaning that he had the authority to require work to be done correctly and to be redone if necessary. He conceded that he worked with the tools only " 40 percent of the time." I conclude, therefore, that Weaver's self-effacement with respect to his jobsite authority should be discount- ed. He obviously had the authority to make job assign- ments and he had the admitted authority to report poor workmanship to Martino for action. If nothing else, that demonstrates he had the power to set in motion the dis- ciplinary proceedings leading to discharge. Once again, if Weaver is not considered to be the supervisor of the eight plumbers in question , they must be unsupervised. As in Ostrom's case, that is unlikely. Accordingly, I con- 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clude that Weaver was at all times a Section 2(11) super- visor. 3. Sonny Osborne Sonny Osborne was hired in July 1984 as a plumber pipefitter. Roth later promoted him to leadman . He testi- fied that as a leadman he works at the trade 100 percent. He was principally assigned to jobs other than the A T & T project. He worked at the Kivel Nursing Home and at the Anchor Center. At the nursing home he had a crew of between three and six employees ; at the Anchor Center it was just him and a helper . He testified that Rogh visited those jobs about once a week. Osborne testified that he has no authority to hire, fire, or discipline employees. He says that before he assigns work, he "clears it" with Roth. Yet, Roth lets him choose the employees for particular assignments . Appar- ently Roth retains veto power over any particular job as- signment, but lets Osborne make the initial decision. He receives a pay rate of $12 an hour which is higher than the rate normally paid plumbers or pipefitters. He agreed that as a leadman he is employed to require work to be redone and that it is his obligation to be cer- tain that construction is in accordance with the building codes. He said he used his judgment to accomplish those purposes. Often he had occasion to deal with the general contractor's engineers. Usually he was Respondent's only representative on the job who had any decision-making authority, although Roth was nearby. He later tempered his testimony by noting that even before he became a leadman he was obligated to follow the building codes and to be certain that his helper's work complied with them. Furthermore, he said, prior to becoming a leadman he also had occasion to consult with the general contrac- tor's engineering personnel regarding layout. Osborne testified that he gave permission in advance for employees to be late or to leave early. Usually when that occurred he notified Roth. On one occasion he warned an employee, Mark Boughman, for his tardiness. He later advised Roth of the warning . Finally, he was el- igible for the management bonus program. Based on the foregoing, I conclude that Osborne was and is a supervisor within the meaning of Section 2(11) of the Act. Clearly he had responsible authority at any given project. He made the initial work assignments and it was his responsibility to see that the work was per- formed properly. The mere fact that the building codes may also impose that responsibility on nonsupervisory workmen does not detract from the fact that he was the individual with overall responsibility to perform that function at the site. He had the power to require work to be redone. Finally, despite his denial of having discipli- nary authority, he admitted that he had warned an em- ployee for tardiness and that he has given permission for late arrivals and early departures. Clearly, he was the in- dividual at the site with independent judgment . Again, particularly at the Kivel Nursing Home, the rest of the crew would have been unsupervised if he was not the day-to-day supervisor. In conclusion, I have found that Robert Ostrom, Art Weaver, and Sonny Osborne are all supervisors within the meaning of Section 2(11) of the Act. D. Interference, Restraint, and Coercion The union organizing began at the A T & T site in January 1985. It was accomplished principally by six em- ployees. These employees were Johnny Nunez, Alan Parfitt, Kevin O'Brien, Richard Stayeart, Doug Dalton, and later Ruben Felix. All six were pipefitters in Os- trom's crew. Some had been friends before ever being employed by Respondent. Both Martino and Ostrom were aware of these friendships . Beginning on January 17, apparently after an initial inquiry by Nunez, five of these six employees began attending weekly meetings at the union hall after work, meeting with Union Officials Rudy Rivas and Henry Ole;. Rivas testified that the first meeting was on Thursday, January 17, at 7 p.m. The fol- lowing meeting was on Wednesday, January 23, when the newly hired Felix joined them, and another was on Wednesday, January 30. In general, they discussed the likelihood of being able to organize Respondent and the means by which that might be accomplished. Ultimately, the six were given union authorization cards and assigned target employees to try to sign up. They were also told to be circumspect in the manner in which they approached others. Despite these precautions, their efforts rather quickly became known to supervisors, Ostrom in particular. The early authorization cards were signed the evening of January 30. Several hours earlier Ostrom had demand- ed that O'Brien and Nunez attend a meeting with Mar- tino at the jobsite trailer. Martino told them that he un- derstood that they and Ostrom were having problems and asked the three to iron them out. Ostrom then told O'Brien and Nunez that they had been "looking to get their checks all week." He accused them of "fucking" him. When O'Brien asked Ostrom what he meant, Ostrom replied, "Your attitudes and outside activities." O'Brien asserts that Ostrom was never more specific than that. The only outside activities which they had been engaging in, however, were attending the planning meetings at the union hall. Ostrom agrees that a similar conversation occurred but says its import was different. He says that on one occa- sion Nunez and O'Brien were giving him a bad time and he had them talk to Martino. Ostrom had accused them of "dogging the job" because they were Martino's drink- ing buddies. He explains that his reference to their out- side activities was to their drinking with Martino after work. Martino tends to agree with Ostrom's version yet has no explanation for the reference to "outside activi- ty," claiming he paid no attention to that portion of the conversation. Ostrom, however, does admit that he had earlier learned from another employee, Gilbert "Chato" Gutier- rez, that Nunez and O'Brien were talking about the Union. Nonetheless he testified that he did not report this "rumor" to anyone else in management in January. As will be seen, Ostrom is unusually vehement in his opposition to unionization, so much so that his opposi- tion appears to color his recollection. His testimony should be viewed carefully. Through March and April Respondent campaigned against union representation . It conducted several meet- UNITED ELECTRICAL 213 ings at the Quality Court Inn near the A T & T jobsite. One such meeting was scheduled for the evening of March 29. During that day, Ostrom asked O'Brien what would be happening at the meeting. O'Brien replied he did not know. Ostrom does not deny the conversation and even adds that during that time period he told O'Brien he had heard that O'Brien had had dinner with Union Official Henry Olea and that the Union appeared to have everybody signed up. On April 1, shortly before noon, Ostrom asked pipefit- ter John Graff if he intended to vote in the election. Graff replied that he did. Approximately 1 or 1:15 p.m. Ostrom told Graff that if the Union won the election, Bud Nottenberg [sic], whom he described as a high offi- cial of Respondent's parent corporation, U.S. Engineer- ing, had personally told Ostrom that he would close the Company's doors and move elsewhere.3 Although Ostrom denies certain specifics of the conversation, such as knowing anybody named "Nottenberg [sic]" and as- serting that he never talked to anyone from U.S. Engi- neering, he nevertheless admits he told other employees that if he owned the Company he would shut it down or move it. Moreover, he admits he once told Graff he hoped the Company would not go union, saying if the Company went union he would not continue to work for it. Ostrom went on to tell Graff that if he was the Com- pany he would go bankrupt and move out of town. The following day, Graff asked Ostrom if Respondent was moving and Ostrom admitted replying, "Yeah, I think we'll dust set up shop in Tucson." On April 3 a circular conversation occurred involving Ostrom, pipefitter Stan Morris, and welder Richard Fer- guson. It began at approximately 10:30 a.m. when Ostrom asked Morris what he thought but said that some of the guys were looking forward to more money and better benefits. Ostrom then told Morris, "Well, you and Richard Ferguson are due for a dollar an hour raise, but until this NLRB thing gets straightened out, we can't give it to you," adding, "but, if you'll vote no, we'll make it retroactive back to this date." Thereafter, Morris and Ferguson had lunch together. Ostrom saw them talking. Shortly after lunch, Ostrom asked Ferguson if he had read the rule in the handbook prohibiting talking about union business on company time. After Ferguson acknowledged that he had read it, Ostrom told him, "Well, you know, I can get you money for you right now because you and Stan were talking union on company time." Ferguson considered disputing Ostrom because his conversation with Morris had been during lunch and because they were not talking about the Union. Nonetheless, he thought better of it. In fact, he and Morris had been discussing Ostrom's statement that both were entitled to the dollar raise and that Ostrom had apparently offered Morris a job in the fab shop. Ostrom then told Ferguson that Morns had admit- ted to him that day that he was a union organizer. On the following day, April 4, Ostrom apologized to Fergu- 3 Two of U S Engineering's highest-ranking officials are Henry "Skip" Nottenberg and Gustaf "Gus" Nottenberg There is no evidence in this record of a "Bud" Nottenberg son saying he had been a little rough on him yesterday, but he had a job to do. In a separate incident, also on April 3, Martino and Ostrom accused Morris of soliciting authorization cards on company time. They also told him that he could be discharged for doing so. Morris simply shrugged and said, "Whatever." Ostrom does not deny that testimony. On April 4, about 10:30 a.m., Ostrom asked Kevin O'Brien how he intended to vote in the upcoming elec- tion. O'Brien replied that he intended to vote no. A little while later Ostrom quoted the company handbook to O'Brien which recites a policy of attempting to keep Re- spondent from being organized by any union.4 During that conversation Ostrom also told O'Brien that he knew who the union "infiltrators" were and that he could "have their money for them right now." That day Ostrom also spoke with David Jones who had been hired as a "flat" welder at $7 an hour. Ostrom began the conversation saying he was campaigning for the Company. He complimented Jones' work saying Jones was looking "more and more like a pipe welder." Then he asked Jones how he intended to vote in the election. Jones equivocated stating there were a few things which had been said that had not been acted on, but he did not really have anything against the Compa- ny. Ostrom responded, according to Jones, that if Jones voted for the Company Ostrom would get Jones a pipe certification test and as soon as he passed would get a $3 raise. He even told Jones that when he completed the job in front of him, Jones should go to the central plant where Ostrom would give him some test welds and have him work with some of the fitters to get ready to take the certification test. Jones also reports that Ostrom said sometime during the same day that he knew of some union advocates who were trying to campaign for the Union on company time and the he would have their paychecks right then but there was not any sense in doing that because they 4 The handbook read Open Shop Philosophy and Practices We prefer to deal with people directly rather than though a third party This means that we prefer to work directly with you as an employee without the intervention of outsiders No organization is free from day to day problems, but we believe that we have policies and practices to help resolve problems rather than fight with each other Unions have never gotten anyone their job-neither have they caused anybody to keep their job Only by all of us working together to make this a viable, healthy organization are we able to do that We encourage you to bring your problems to your supervisor or anyone else you feel can help you, and we, in turn, promise to listen and give the best possible response that we can In today's world, there are many pressures We want to keep our organization free from artificially createed tensions that can be brought on by the intervention of outsiders, such as the Union We feel that a union would be of no advantage to any of us We accept our responsibility to provide the best working conditions, pay and benefits that we can afford It is not necessary for you to pay union dues to receive fair treatment in this company Each of you is an individual and you have the right to speak for youself If anyone should come to you and ask you to sign a union authori- zation card, we are asking you now to refuse to sign it You have a right to join and belong to a union, and you have an equal right not to join and belong to a union No person or another employee has the right to coerce you into signing a union authorization card 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be able to vote anyway so he was not going to do anything about them. Later, Respondent scheduled Jones to take the weld- ing certification test given by an independent laboratory. Respondent paid the $130 test fee. Jones passed the test and reported for work on April 16. That morning Mar- tino took him for a walk telling him that the Union had employees sitting on its out-of-work bench but the Com- pany could take care of him. Martino said that if the Union won the election, the Union would phase out all Respondent's current employees and put its members on the job, thereby putting people like Jones on the out-of- work bench. According to Jones, Martino said it would take a new member 10 to 15 years to get to the top of the Union's "A list." He also congratulated Jones for passing the welding test and told him he had been writ- ten up for a $2 raise. Disappointed, Jones told Martino that Ostrom had said it would be $3. Martino said he would check on that. He then handed Jones a "vote no" flyer telling him to hang it on his bedroom wall to help him remember how to vote. Martino left but returned 15 minutes later saying Jones would have to wait for the outcome of the election to see if they would give him any pay raise. Simultaneous with Ostrom's approach to Jones on April 4 regarding his becoming a certified welder, Ostrom spoke to plumber apprentice Curtis Kizer. Ostrom told Kizer that if he bought his own helmet and leathers and practiced welding on his own time he could become a welder. He told Kizer that if the Company did not go union he would be eligible for a $1-an-hour raise. Ostrom denied Kizer's testimony. On April 10 or thereabouts in the mechanics room Ostrom asked welder Richard Ferguson what he thought about the Union. Ferguson testified that Ostrom told him that if the Company "went union" it would shut down and move to Tucson. Ostrom testified that Ferguson had started the conver- sation by saying that he had heard from Graff that Ostrom had said the Company would close. Ostrom tes- tified that he told Ferguson that he had told Graff that if he were the Company, he "would just file for bankrupt- cy, slide out the back door and forget about it all." On April 16, the same day Jones had his discussion with Martino regarding his pay increase for having passed the welding certification test, Martino spoke to apprentice Jim Hendricks in the trailer. Hendricks says Martino told him Ostrom had reported that Hendricks had been approached by the Union while working at the Madison Street Jail job and he hoped Hendricks would not be pressured into doing something that was not good for him. Martino told Hendricks he did not feel that union representation would be good for him, observing that Hendricks had a wife and new baby. He told Hen- dricks he had a good future with the Company and he would like to give him a $1 raise, but could not do so until the "union deal got cleared up " Martino did not deny the conversation, only recalling that Hendricks was due for a raise in July and telling Hendricks he would see what he could do, but all raises were "on hold" be- cause of the election. On April 17, 2 days before the election, Ostrom asked Graff if he was still going to vote "yes." Graff denied he had earlier told Ostrom how he intended to vote . At that point, according to Graff, Ostrom repeated his earlier testimony about what Bud "Nottenberg [sic]" had said- that if the Union won the election he would close the doors, move to Tucson, or go bankrupt. Also in April, Dennis Tresca, a journeyman plumber, testified that on one occasion he was riding to work with Martino when Martino asked him to find out how an- other employer, helper Matt Candler, was going to vote. Tresca did so and later reported Candler 's intentions to Martino. Martino virtually admits Tresca's version. It is true that he denies asking Tresca to approach Candler to determine how he intended to vote but concedes he asked Tresca to approach Candler to see if he could get "a general idea of how he [Candler] felt about the whole situation."s The election was conducted on April 19, but because of challenged ballots remained inconclusive . Troyce An- derson, an apprentice plumber, testified about an incident occurring about a week after the election. He worked for leadman Sonny Osborne. He was later moved to the Anchor Center . Approximately April 27, he had a con- versation with Osborne while they sat in Osborne's truck. Apprentice Mark Boughman was also there. Os- borne told Anderson he was upset because another em- ployee had not reported to work on time. Osborne said he had had some bad experiences with unions in the past and that if you were working through the Union you would be sitting on the bench more than you would be working . Anderson said Osborne then told him that Company President Roger Wells had said he would refuse to negotiate with the Union and would just as soon let the employees go on strike and bring in new em- ployees. Osborne testified that the conversation occurred at a break and involved himself, Anderson, and employees Boughman and Stayaert . He said Anderson had asked him what would happen with the election . Osborne says he replied, "Just what Roger [Wells] had said at the [preelection] meeting," that if the Union won the elec- tion "they would just have the power to negotiate with [Wells] and it was up to him whatever time it took [to negotiate a contract] . . . and if in the meantime when the Union's [area] contract came up in the summer, if they'd put up a picket line, the people that wanted to go to work could come across and go to work . And the ones who didn't, if the job required help, they may have to be replaced." E. The Discharges 1. Alan Parfitt and Ruben Felix Alan Parfitt was hired in December 1984 and worked as a fabricator-welder at the A T & T site until his dis- charge on February 11. In a sense he was a member of Ostrom's crew of pipefitters, but he principally worked 5 Martino was compiling a list of voters in an attempt to learn how they intended to vote To this end he solicited the assistance of his lead- men, as well as Tresca UNITED ELECTRICAL 215 in the fab shop. Although much of the work in the fab shop was overseen by Martino, Ostrom was active there, too. Ruben Felix was hired on January 21 and worked until February 18. He was a welder-fitter and a member of Ostrom's crew. Both Parfitt and Felix were among the original six who attended the organizational meetings at the union hall. Felix missed the first meeting because it was held on January 17. Nonetheless he attended the remaining meetings. The others were Nunez, Dalton , O'Brien, and Stayaert. It should be observed that all six of these indi- viduals were under Ostrom 's supervision to at least some extent. Moreover, Parfitt was a close fnend of O'Brien, and Felix a close friend of Nunez. Ostrom was well aware of their personal relationships. In late January, Felix asked "Chato" Gutierrez to attend the union meeting scheduled for that night. Gu- tierrez told Ostrom about the invitation . Immediately thereafter Ostrom threatened to discharge O'Brien and Nunez because of their outside (union) activities. That is discussed in subsection D, above . The union activities of Parfitt and Felix included not only attending the meet- ings, but soliciting authorization cards . The combined effort of all six resulted in the filing of the petition on February 11, 1 day before Parfitt was told he was dis- charged. Felix was discharged a week later. Parfitt testified that he did not work on Monday, Feb- ruary 11. When he came to work on Tuesday, February 12, Ostrom told him to go to the office to talk to Mar- tino. When Parfitt arrived, he says, Martino told him he was being laid off in a reduction in force. Parfitt says he asked if there was anything wrong with his work and Martino replied, "No." Accordingly , Parfitt asked Mar- tino for a reference and Martino wrote and signed Gen- eral Counsel's Exhibit 4. That document is a small per- sonnel card containing the employee 's name and the reason for his termination . It states Parfitt was terminat- ed on February 11 in a reduction in force . Parfitt said Martion told him he would have no trouble obtaining unemployment benefits. In the comments section it states, "Reliable, on time, good welder." He gave a copy to Parfitt . It did not, however, find its way into Parfitt's personnel file. Instead, an identical card signed by Roth was placed in that file . That card (R. Exh. 1) states Par- fitt was fired on February 8, the previous Friday, and that he was not eligible for rehire . In the comments sec- tion it states, "Poor productivity-warned 3 times." Martino testified it was he who made the final decision to fire Parfitt and it was he who gave his check and stated that the Company no longer needed him. He says Parfitt was fired for "lack of production"-Parfitt was simply too slow. He says Parfitt told him it was okay, that he was leaving anyway to go to work for a motor- cycle shop . Parfitt denies that ; nor did he go to work for a cycle shop. Martino asserts he let Partiff go because of lack of "his" work, not lack of work offered by the Company . He contends that General Counsel's Exhibit 4 was a recommendation for Parfitt to show other employ- ers. He was not asked to comment on Respondent's Ex- hibit 1 based on what Martino had told him . He denied ever having seen General Counsel's Exhibit 4 before. He admits, however, that he has no personal knowledge that three warnings were actually given Parfitt regarding his poor productivity as stated in Respondent 's Exhibit nor does he explain the February 8 date. With respect to Felix's discharge, Roth testified that Ostrom had advised him that an inspector had failed two of Felix's welds. According to Roth, that occurred on February 18, shortly before the actual discharge. Roth says Ostrom told him that Felix had redone the welds but they still looked just as bad . When Roth observed both joints he noticed serious weld runs on the bottom of the pipe. After he called President Wells they decided to terminate him the following morning. Felix testified that on February 18 he came to work and while getting his tools Ostrom told him to go to the fab shop where he worked all day. At the end of the day Roth handed him his final check telling him he was "not needed anymore." No other reason was advanced . Specifically, Felix says there was no discussion of the quality of any of his welds. I should note that Felix has 15 years' experience in high-pressure welding and has taught welding for 4 years at a junior college . He appears to be a highly skilled welder and pipefitter. I further observe that some of Respondent's testimony is inconsistent. Roth says Ostrom directed him to two bad welds; Martino says he heard of only one bad weld. Ostrom testified that he learned of the bad welds from the inspector and that the inspector had said , "I don't want him welding here." It was for this reason, Ostrom says, that Martino moved Felix to the fab shop before discharging him. The inspector was never called to testi- fy. 2. John Lehner John (Boomer) Lehner was hired as a plumber in Weaver's crew on March 18. He was fired on March 21. He is a long-time union member and was well known to the union membership, being a candidate for union busi- ness representative . Furthermore, he had recently worked at the Palo Verde Nuclear Generating Plant for the Bechtel Corporation . He says at that time he became acquainted with Weaver who worked there as a fore- man. In any event, on March 18 Lehner reported to Mar- tino at A T & T who assigned him to Weaver . Weaver told him he was to solder copper pipe in some restrooms. As they walked from the job trailer to the building, Lehner says Weaver told him, "You look familar. I worked with you at Pal Verde . Your name is Boomer, isn't it?" When Lehner acknowledged his identity, Weaver went on to say, "You're running for business agent. I heard you were running for business agent for the Local." He then asked Lehner what he was doing on a nonunion job. Lehner replied he needed the work. Stan Morris was with them as they walked and corroborates Lehner. However, Lehner was somewhat of a plant by the Union. The election petition was being processed and the Union was making an active effort to place its own members on the job . He agrees he was sent to Respond- ent by the dispatcher upon his agreement to sign a union 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization card . Indeed, Lehner testified that he even falsified his job application to make it sound as if he had worked for nonunion companies. He falsely said that he had worked for Brown & Root from 1976 to 1985, the last 2 years as a foreman . He omitted his Bechtel experi- ence altogether. In any event, he soldered copper for 2 days . Weaver took him off that job saying he was too slow. On the third day he was assigned to weld some cast iron, first working on underground pipes followed by some roof drains. At approximately 9:30 a .m. he was discharged. He concedes he was told by Weaver on two occasions that he was too slow on the copper and that he had been holding up the sheetrockers who were attempting to in- stall that material after the piping was completed. Lehner also concedes that on the day he was assigned to the roof drains, an employee named Murray came over and showed him what Murray thought was a better way to do it. Lehner says the upshot of their conversa- tion was that he had one way to do it which worked, while Murray had another which also worked. Weaver denies that he had ever met Lehner before that day and says he hardly knew any plumber/- pipefitters in the Phoenix area. Yet, on cross-examination he tempered his denial saying he "didn't believe" Lehner was in his crew at Palo Verde . Since his crew there was only eight at any given time, why could he not remem- ber clearly? His denial was clear on direct examination; why not the same on cross? On March 24 Martino gave Weaver Lehner's pay- check and told him to give it to Lehner on the grounds he was no longer needed . Weaver did so about 11:30 a.m. He says he had no awareness that Lehner had had any discussion with any other employee, i.e., he did not know of the Lehner-Murray conversation. He says he has been working in the trade since 1948 and has worked for Respondent's parent, U.S. Engineer- ing, in another part of the country. As noted, he has an ongoing dispute with the United Association of Plumbers regarding his revoked pension. Furthermore, I continue to note Weaver's improbable testimony regarding his su- pervisory authority as well as his claimed lack of knowl- edge about the NLRB election. Frankly, I am unimpressed with both Lehner and Weaver. Lehner admittedly falsified his application. Weaver was equally unimpressive. Neither of these two individuals are worthy of credit without reservation. The only testimony which seems common to both individuals is the fact that Weaver removed Lehner from soldering copper saying he was too slow. IV. ANALYSIS AND CONCLUSIONS A. Interference, Restraint, and Coercion With respect to the allegations involving Ostrom, I find each of them to have been proven . He is accused of interfering with employes' Section 7 rights by creating the impression that their union activities were under sur- veillance; threatening them with discharge because of their union activities; threatening them with job loss by moving the Company to another location; promising pay raises to influence employees' votes in the representation election, interrogating employees about their union ac- tivities, sympathies, and desires; and soliciting employees to interrogate others about these matters. There is little factual dispute over the Ostrom inci- dents. Ostrom recharacterizes only slightly some of the conversations. In some instances he admits his conduct and in others he admits to varying, yet still unlawful, versions. These incidents require little analysis. 1. Creating the impression of surveillance The January 30 confrontation involving O'Brien and Nunez appears to have been contrived. During that inci- dent Ostrom made a veiled reference to their "outside activities" and Martino receded from the critical part of the conversation. The only outside activities in which they had been engaging were the union planning ses- sions. O'Brien and Nunez are credited . In late March Ostrom told O'Brien that he knew O'Brien was one of the union organizers. On April 1 Ostrom told Graff that he knew who the "union guys" were. Similarly, on April 4, he said the same thing to O'Brien . In all these inci- dents Ostrom led the employee to whom he was speak- ing to believe not only that he knew who the organizers were but also even their activities were known to him. Such remarks could have only one purpose, to coerce employees to refrain from engaging in union activities by creating the impression that these activities were under surveillance. Such statements violate Section 8(a)(1) of the Act. 2. Threatened job loss With respect to the threats of discharge , the first inci- dent also occurred on January 30 in the confrontation described above . During that conversation Ostrom told O'Brien and Nunez that they "had been looking to get their checks all week" because of their attitude and out- side activities. Quite clearly Ostrom was threatening to discharge them unless their union activities ceased. On April 1 Ostrom told Graff that if the Union won the election Respondent's management through "Notten- berg [sic]," would close the doors and move somewhere else. On April 3 Ostrom repeated the threat telling Fer- guson he could fire both Ferguson and Morris for dis- cussing the Union on company time and thus violating a company rule. Ostrom did not bother to concern himself with the fact that Morris and Ferguson 's discussion had occurred during the lunch hour and the rule did not apply. Ostrom's threat exceeded the bounds of the rule itself. It therefore demonstrated to Ferguson that the sanction of discharge for union activity could be applied even when an employee abided by the rule. On the following day, April 4, Ostom told Jones he knew who was campaigning for the Union saying he could get their paychecks immediately . That, of course, qualifies both as creating the impression of surveillance as well as threatening to discharge employees for their union organizing. On April 10 Ostrom told Ferguson that if Respondent "went union" it would close its doors, change its name, and move to Tucson . That, too, is a threat of job loss for UNITED ELECTRICAL 217 engaging in protected conduct. On April 17 he repeated the threat to Graff and Ferguson. The gravamen of the threats to discharge and the threats to close is the same. In each case Ostrom told employees they would lose their jobs for engaging in union activity-either by straight, unadulterated dis- charge, by a discharge designed to conceal the real reason (such as a phony rule violation), or by the fact that Respondent would cease doing business in Phoenix and move elsewhere. There is nothing particularly so- phisticated about these threats. It is true that with re- spect to closing the business, Ostrom contends that he was simply expressing his own opinion. In these in- stances he admits the salient statement, but asserts that he prefaced it by saying that "if the business were his" he would close it, change its name, file for bankruptcy, move to Tucson, or any combination of the above. First, I cannot assume that he did in fact preface his threats with such a disclaimer; but even if he did the thrust was the same. He was a recognized supervisor and the mere fact that a supervisor attempts to soften the blow by making it appear as his own opinion does not necessarily constitute a defense. The Board is concerned with the actual or foreseeable impact the statement will have. See El Rancho Market, 235 NLRB 468, 471 (1978). Opinions are generally considered free speech and protected by Section 8(c). However, despite Ostrom's denial, I find that he claimed special knowledge about Respondent's future when he told employees that he had a personal conversation with "Nottenberg [sic]" who had threat- ened to close the Phoenix operation. Ostrom's testimony that his own similar statements were simply his opinion sounds hollow against that background. An honestly held opinion is one thing; making a threat by couching it as opinion is quite another. Without a doubt Ostrom was attempting to coerce employees from obtaining union representation by threat, not opinion. Such conduct, like the straightforward threats, violates Section 8(a)(1) of the Act. 3. Interrogation On April 4 Ostrom asked O'Brien how he intended to vote in the election. In that conversation he also created the impression of surveillance of employee union activity by telling O'Brien he knew who the "infiltrators" were. He threatened to "get the infiltrators their money" right then. Ostrom admitted the conversation and even admit- ted that he asked all the employees at one time or an- other how they intended to vote. On April 17 Ostrom asked Graff if he was still going to vote "yes" in the election. In both instances Ostrom was making an in- quiry about a private, protected matter. It was none of his business. The inquiry itself tended to restrain these employees with respect to the manner in which they in- tended to cast their ballots. Those interrogations clearly violated Section 8(a)(1). In addition to the allegations relating to Ostrom recit- ed above, the complaint asserts that Martino asked an employee to inquire into the union sentiments and desires of other empoyees. That concerned Martino's request to Tresca on April 4 that he find out how fellow employee Candler intended to vote. Although the incident is denied by Martino, there is no real reason to doubt Tres- ca's testimony. Moreover, there is evidence elsewhere in the record that Martino was compiling a list of names, with the assistance of his leadmen, to try to gauge in ad- vance the election's probable outcome. That being the case, it is nearly conclusive that Tresca's testimony is ac- curate. Accordingly, I find that in early April Martino engaged Tresca to question other employees about how they intended to vote in the election. Such conduct vio- lates Section 8(a)(1). 4. Threat to refuse to bargain The complaint also accuses Osborne, after the election, of telling an employee that if the Union won the election (then still unresolved due to challenged ballots and ob- jections), Respondent would refuse to negotiate and the refusal would trigger a strike necessitating the replace- ment of strikers by new hires. This allegation is some- what weakly supported by the testimony of apprentice Troyce Anderson. I find Anderson's testimony to be clipped and abbreviated and, although I have no doubt that Anderson was attempting accurately to recite his recollection, it was less than complete. Moreover, he agrees that Boughman was present, yet Boughman was not called to corroborate him. Osborne's version, on the other hand, seems to be complete and probable. Anderson said Osborne told him President Wells had said he would refuse to negotiate a contract with the Union and would just as soon let the employees strike so he could bring in new employees. Standing alone, that is not an improbable version of events. Nonetheless, it is undisputed that Wells had given three speeches shortly before the election in which he had accurately recited the right of an employer to continue to operate in the face of a strike by hiring permanent replacements. Os- borne says he simply responded to Anderson's question about what would happen, saying if the Union won, it would obtain the power to negotiate with Wells and that negotiations would take whatever time it took. He agrees he said when the Union's area contract came up for ne- gotiation in the summer, it seemed likely that the Union would also picket Respondent. He said if that occurred, those who wanted to work could cross the picket line while those who did not might be replaced if the job re- quired it. It seems most likely that Osborne would try to quote Wells as accurately as he could and that he did so. Accordingly, I conclude that the General Counsel has not proven this particular allegation and it should be dis- missed. 5. Pay matters The final 8(a)(1) issue to be decided is whether or not Respondent, through Ostrom, Roth, and Martino, offered pay increases to individuals in an effort to persuade them to vote against union representation. Morris said on April 3, in response to Ostrom's ques- tion, that he replied he had not given unionization much thought but that some of the employees were looking for more money and better benefits. At that point Ostrom told Morris that he and Ferguson were due for a $1-an- hour increase but Respondent could not give it until the 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB matter was "straightened out." Ostrom went on to say that if Morris voted no, Respondent would make the increase retroactive to April 3. Ostrom has a differ- ent version, but did say he told Morris and Ferguson that the NLRB had a wage freeze on everyone's money and when those two asked him about retroactivity, he told them he would look into it as he would like to see them get it. Also, on April 4, after asking Jones how he intended to vote, Ostrom told Jones if he voted for the Company he would get him a pipe certification test. If he passed, he would be entitled to a $10 rate rather than the $7 he was receiving as a flat welder . Ostrom agreed he told Jones that he should start pipe welding instead of doing flat welds. When Jones asked if he would get $10 an hour, Ostrom said he would like to see him get it. Simi- larly, on that date Ostrom told Kizer he should obtain his own welding hood and leathers and practice welding on his own time so he would be eligible for a $1 raise if the Union lost the election. Ostrom denied Kizer's ver- sion. Nonetheless on April 15 Jones, at Respondent's re- quest and expense, took and passed the welder's certifica- tion test given by the independent laboratory. On the fol- lowing day Martino told Jones he had been written up for a $2 increase. Jones told Martino that Ostrom had promised him $3 . Martino agreed to check into it. Later he reported that Roth had told him to hold off on all pay raises until the election was over so they could see the result. Roth concedes that Jones was entitled to a raise because he had passed the certification test but Re- spondent did not give it to him. Also on April 16 Martino, according to employee Hendricks, told him he would like to give Hendricks a $1 raise but could not do so until "the union deal got cleared up." Martino virtually agreed saying that he knew Hendricks was due for a raise in July and would see what he could do for him; yet he told Hendricks that all raises were "on hold" because of the election. Although there is some dispute in these incidents about whether specific promises were made regarding the wage increase as being contingent on the outcome of the election, there is no dispute that Respondent believed and operated under the belief that it could not grant normal raises during the pendency of the election peti- tion. Thus, it announced that wages were "frozen" or "on hold" until the "union deal" was over. In fact, Ostrom went so far as to say that the NLRB had put a freeze on wages. That, of course, was false; the Board had done no such thing. Indeed , during an election cam- paign an employer's obligation is simply to maintain its existing practice and to act as if the Union were not on the scene. See McCormick Longmeadow Stone Co., 158 NLRB 1237, 1242 (1966). Thus, by announcing that wages were frozen due to the Union's election petition, Respondent was coercively influencing the employees' freedom of choice, implying that the Union was respon- sible for the freeze. And, although it may seem inconsistent on the one hand to find that Respondent had frozen wages while si- multaneously offering increases, those two tactics are not inconsistent when saying the freeze would be lifted after the election. Thus, it is quite likely that offers of wage increases were made. Indeed, the offer to Jones seems specially designed for the election. Jones was a flat welder who worked in the fab shop, not a pipe welder working in the building . There was no need to have Jones certified except to justify offering him a wage in- crease shortly before the election. Certainly Martino drummed that message home when he told Jones to hang the "vote no" flyer over his bed. Jones was one of the more impressive people who testified and I fmd him to be completely credible . Similarly, the implied promise to Kizer was the same-if Kizer would practice welding, a wage increase of some sort could be expected . Accord- ingly, I conclude that Respondent, through Ostrom and Martino, attempted to influence certain voters by offer- ing wage increases . It makes little difference that the wage increases offered may have been prospective as in Jones' and Kizer's case or retroactive as in of Morris'. Either way it was an effort to purchase votes through coercion. It violated Section 8(a)(1). B. The Discharges The three discharges under scrutiny here are those of Alan Parfitt on February 11, Ruben Felix on February 18, and John Lehner on March 21 . I conclude that the General Counsel has proven that Respondent unlawfully discharged all three. 1. Parfitt and Felix Both Parfitt and Felix were members of the group of initial six employees who attended the first union meet- ings. Both were closely connected by friendship to the two actual leaders , Nunez and O'Brien. All six were members of Ostrom's crew. Ostrom knew as early as January 30 that union organizing was underway. It was then that he embarked on a long period of committing unfair labor practices . Furthermore, Ostrom was not the only individual to have committed such unfair labor practices . Martino, who actually made the decision to discharge Parfitt, and Roth who discharged Felix, com- mitted unfair labor practices of their own . Clearly, Re- spondent harbored animus against the Union and at- tempted to thwart, in an illegal fashion , the Union's orga- nizing drive . That drive was successful enough to have generated sufficient interest to warrant the filing of a pe- tition for an election on February 11, the day before Par- fitt was discharged . It is true that the General Counsel has not offered direct evidence that Respondent's offi- cials knew of Parfitt's and Felix's union activity-either their attending union meetings or their soliciting authori- zation cards. Nonetheless I think it is fair to infer knowl- edge. Ostrom was first informed by Gutierrez in January that union meetings were being held. Ostrom would not have let that matter go unreported to Martino or Roth. Furthermore, Ostrom's crew was quite small and his an- tiunion response was relatively virulent. In that circum- stance it is fair to infer that Ostrom quickly became aware of who the union activists were. Indeed, Ostrom almost immediately threatened to discharge the two lead- ing individuals, Nunez and O'Brien , who were engaged in "outside activity," i.e., union activity . And, the threat UNITED ELECTRICAL was made in Martino's presence . There is every reason to believe that the threat was carried out here. Accord- ingly, I conclude that the General Counsel has made out a prima facie case with respect to the discharges of Par- fitt and Felix. Respondent attempts to rebut the prima facie case by alerting that both individuals were discharged for poor workmanship. Parfitt's alleged poor work is unspecified. Felix's poor work involved one and possibly two sup- posedly unacceptable welds. Respondent's argument with regard to Parfitt is under- mined significantly by the fact it issued him a recommen- dation stating he was a good worker and a good welder. It may have been issued to him simply to permit him to draw unemployment insurance, as Parfitt said, but that is inconsistent with Martino's proffered reason for dis- charging him. Martino says Parfitt told him he was quit- ting to go to work for a motorcycle shop and the slip was a recommedation for future employers. If that were so, Parfitt would not need a recommendation and would not need a statement that he was leaving for reasons beyond his control. Moreover, the termination card in Parfitt's file states he was warned on three separate occa- sions for poor workmanship. According to Roth this in- formation came to him via Martino. Yet Martino never testified to any such fact. Finally, there appears to be an effort to backdate the decision to discharge him. Why is Respondent's Exhibit 1 dated February 8 rather than February 11 or 12? Was it designed to predate the peti- tion? Frankly, Respondent's assigned reasons for discharging Parfitt simply do not have consistency and their very in- consistency tends to support the accuracy of the General Counsel's allegation. I find them to be pretexts. The prima facie case stands unrebutted. With respect to Felix, similar observations may be made. In his case, of course, the knowledge factor is even stronger, because the petition had concededly reached President Wells by February 18, the date of his discharge. Given the fact that Felix was a certified welder whose credentials are reasonably good, it would appear to me that if Felix had actually failed the inspec- tor's visual test, the proof would be much stronger. I note that the only evidence in support of the bad welds was oral testimony. No records or photographs of the welds were presented. Moreover, Ostrom testified that the inspector had told him that he did not want Felix on the job any more and Martino, in response, had moved Felix to the fab shop. If that were true, surely the inspec- tor could have been called to testify both about what he saw when he inspected the welds and what he told Ostrom and/or Martino. The inspector was not called, yet there is no showing that he was not subject to the compulsion of a subpoena. And, Wells engaged in some overkill when he said he blamed Felix for the fact that the engineering firm subsequently decided to x-ray all the welds. Wells later conceded that the decision to x- ray the welds was made by an official of the engineering firm based on his misconception of some engineering re- quirements. So why blame Felix? The mere fact that Wells did so suggest that he is overreaching in an at- tempt to justify Felix's discharge. I am not persuaded by 219 Respondent's evidence here. It smacks of pretext and simply does not rebut the General Counsel's case. 2. Lehner Lehner's situation is somewhat different. Neither Lehner nor his immediate supervisor, Weaver, is particu- larly credible. The only thing which we can be sure of is that Weaver said that Lehner was a slow worker, wheth- er it was true or not. It is possible that Lehner actually was too slow. Yet, Weaver was clearly aware of Lehner's union membership and status. Indeed, Lehner's testimony that Weaver recognized him from Palo Vere and knew he was running for union office is corroborat- ed by Morris. I find, therefore, that Respondent knew who Lehner was and immediately recognized that it had unwittingly hired a "yes" voter. Of course, there is some reason to doubt Lehner's good-faith approach to this employer. He had obtained the job deceitfully by falsifying his application form. Yet the Union believed Respondent had already illegally fired Parfitt and Felix. It had undoubtedly advised cau- tion to those applicants it was sending in its effort to or- ganize.6 I therefore do not regard Lehner's lack of candor to Respondent as conclusive proof of a bad-faith effort to somehow "wobble" or slow the job down. Indeed, Respondent does not argue that his false applica- tion played any role in its decision to discharge him. It has made no effort to demonstrate that it would have fired him had it known his application was false. Accord- ingly I deem as speculative any effort to argue that Lehner hired on in order to get fired. I am thus faced with a prima facie case. The General Counsel has proven that Respondent instantly knew both Lehner's union membership and how he could be expect- ed to vote. It could not have welcomed his hire in that circumstance and most likely became frantic in an effort to remedy this hiring mistake. It may be true that Lehner was not the organizing spearheader that Parfitt and Felix were; nonetheless, he posed a danger that other employ- ees did not-Respondent knew he could not be dissuad- ed by preelection propaganda. Timing and union aminus are also present. Thus the question which I must answer is whether Re- spondent's defense rebuts the prima facie case. With re- spect to that rebuttal the Board said in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 899 (1st Cit. 1981), cert. denied 455 U.S. 989 (1982): Under the Mt. Healthy test,7 the aggrieved em- ployee is afforded protection since he or she is only required to show that protected activities played a role in the employer's decision. . . . In this context, it is the employer which has "to make the proof." Under this analysis, should the employer be able to demonstrate that the discipline or other action would have occurred absent protected activities, the e There is nothing improper in the Union's sending job applicants to an employer it is organizing or in asking job seekers to sign authorization cards as a condition of learning about the job opportunity Kroehler Mfg. Co, 243 NLRB 172, 175-176 (1979) 7 Mt. Healthy Board of Education v Doyle, 429 U S 274 (1977) 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee cannot justly complain if the employer's action is upheld. Thus . . . we shall henceforth employ the fol- lowing causation test in all cases alleging violation of Section 8(a)(1) turning on employer motivation. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. Here the General Counsel has shown that Lehner's active union membership-a perceived "yes" voter un- likely to be dissuaded and who posed some risk to Re- spondent's opposition campaign-played at least "some role" in the decision to discharge him. The burden of proof has therefore devolved on Respondent to demon- strate that it would have discharged Lehner anyway, even absent his protected conduct. To meet that burden Respondent has offered only Weaver's testimony that Lehner was working too slowly. It has not otherwise challenged his compe- tence-Weaver says the Murray conversation was un- known to him. Thus he could not have concluded that Lehner needed help to learn how to do the work. Mar- tino's input was based on what Weaver reported to him and is unimpressive as proof of Lehner 's alleged lack of rapidity. Assuming, for the moment that Lehner's speed could have been improved, neither Weaver nor Martino have made any effort to show that Lehner 's slowness would have resulted in his discharge absent his union membership. In any event Weaver is not to be trusted here. He is biased and lacks probity. I note that Lehner was given no specific production standards to meet nor was he ever told he had failed to meet any standards. Weaver only told him he was too slow on the copper. Yet, given Respondent's desire to correct its hiring mis- take, as well as Weaver's probable complicity, his warn- ings can be seen as part of a plan to conceal the true motive-to get rid of a mistakenly hired "yes" voter. It cannot be said that Respondent has proven it would have fired Lehner anyway. In conclusion, I find that Respondent violated Section 8(a)(3) and (1) in discharging Parfitt, Felix, and Lehner. THE REMEDY Having found that Respondent has engaged in various violations of Section 8(a)(1) of the Act by interfering with, restraining, and coercing employees in the exercise of their Section 7 rights and by violating Section 8(a)(1) and (3) of the Act by discharging its employees Alan Parfitt, Ruben Felix, and John Lehner because they en- gaged in union activity, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The affirmative action shall include an order re- quiring Respondent immediately to offer Parfitt, Felix, and Lehner reinstatement to their former jobs or, if they no longer exist, to substantially equivalent jobs, and to make them whole for any loss of pay they may have suf- fered by reason of the discrimination against them. Back- pay and interest thereon shall be computed on a quarter- ly basis in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Similarly, Respondent shall make whole, with interest, any employee denied a rou- tine pay increase during the pendency of the Union's election petition. In addition, Respondent shall be or- dered to remove from its records any reference to Par- fitt's, Felix's, and Lehner's unlawful discharges , to pro- vide written notice of such removal to them, and to inform them that its unlawful conduct will not be used as a basis for future personnel action concerning them. On the foregoing findings of fact and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. The Respondent, United Electrical & Mechanical, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent violated Section 8(a)(1) of the Act when, on the dates shown in the decision, it created the impression that the union activities of its employees were under surveillance, threatened employees with loss of their jobs either by direct discharge or by business clo- sure because of their union activities, promised employ- ees pay raises to influence their votes in an NLRB elec- tion, withheld wage increases which should have been routinely granted in order to influence the outcome of that election, and interrogated employees regarding how they intend to vote in the NLRB election. 3. Respondent violated Section 8(a)(3) and ( 1) of the Act by discharging its employees Alan Parfitt on Febru- ary 12, 1985, Ruben Felix on February 18, 1985, and John Lehner on March 20, 1985, because of their union activities and/or membership. 4. Respondent has not engaged in any other violations of the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, United Electrical & Mechanical, Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression that the union activities of its employees are under surveillance, threatening employ- ees with loss of their jobs either by direct discharge or by business closure because of their union activities, promising employees pay raises to influence their vote in an NLRB election, withholding wage increases which 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. UNITED ELECTRICAL should have been routinely granted in order to influence the outcome of that election, and interrogating employ- ees regarding how they intend to vote in the NLRB election. (b) Discharging employees because of their union ac- tivities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Immediately offer Alan Parfitt, Ruben Felix, and John Lehner reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or any rights or privileges and make them whole, with interest, for lost earnings, in the manner set forth in the remedy section of the decision, dismissing, if necessary, any employees who replaced them. (b) Make whole, with interest, any employee who should have routinely been granted a pay increase during the pendency of the election petition. (c) Remove from Parfitt's, Felix's, and Lehner's per- sonnel records and all other files any reference to their discharges, notify them in writing that it has done so, and tell them that their discharges will not be used against them in any way. 221 (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Phoenix, Arizona office and jobsites copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 9 If 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 Nation- al 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 "