Structural Finishing, Inc.

STRUCTURAL FINISHING 981 Structural Finishing, Inc. and General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica and Tammy L. Castrop Consolidated Marketing Network, Inc.; and Struc- tural Finishing, Inc. and General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica. Cases 31-CA-12094, 31-CA-12180, 31- CA-13075 16 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 25 May 1984 Administrative Law Judge Harold A. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an opposing brief and limited cross-exceptions. The Nacional 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, findings,' and conclusions to the extent consistent with this Deci- sion and Order and to adopt the recommended Order.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. In the absence of exceptions the Board affirms the judge's findings that employee Ronald (Ron) Ryder was lawfully discharged and that he was not coercively interrogated by Project Manager Norm Stead or former Manager Glenn Dunham Additionally, in the absence of any exceptions, we affirm the judge's findings that Dunham did not threaten Richard (Rick) Ryder or other employees with adverse consequences for continu- ing to support the Union; create in employees the impression that their activities were under surveillance or that it was futile for them to support the Union; solicit employees' grievances; or unlawfully threaten Rick Ryder with discharge for calling the Respondent's owner, Steve Porter, to complain. The Respondent excepts to the judge's drawing an adverse inference from the failure of Glenn Dunham to testify and moves that the Board reopen the record so that Dunham may now do so "[Ilf the Board be- lieves that [his] testimony is somewhat relevant to these proceedings" Since May 1982 and at the time of the hearing and this motion, Dunham has been on assignment in the Truk Islands We note that charges relating to Dunham's conduct were filed in April and May 1982 and that the hearing was held some 17 months later Thus the Respondent was fully apprised of alleged unlawful conduct involving Dunham and had ample time to arrange for his availability at the hearing. Under these circum- stances we find the adverse inference properly drawn and deny the Re- spondent's motion to reopen the record 2 The judge inadvertently omitted from the notice to employees any reference to the Respondent's offering discrimmatees Ryder and Castrop The judge found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Tammy Castrop and Rick Ryder be- cause they engaged in union activity, and that it committed numerous independent violations of Section 8(a)(1) of the Act. Specifically, he found that Project Manager Norm Stead told Rick Ryder that his brother Ron would not be rehired because of his union activities, informed employees that no wage increases would be granted because of the Union, and informed Ryder that he was being dis- charged because of "you know, the Union." The judge also found that Supervisor William Hill told Ryder that his continued employment was jeopard- ized by his union affiliation, -and that Labor Rela- tions Consultant Stephen Martin told Ryder that employees would suffer adverse consequences if they supported the Union and impliedly promised him a promotion to a prestigious position if he ceased supporting the Union. Further, the judge found that Martin conveyed to employees the im- pression that representation was futile by telling them that negotiations would last a year and that employees would have to start all over again. The judge also found that former Project Manager Glenn Dunham created an impression among em- ployees that their union activities were being watched by telling Castrop that he regretted firing Ron Ryder because he now had "all the facts" and believed that Rick Ryder was the "one who started that shit with the Union." The Respondent except- ed to all of these findings. For the reasons enumer- ated by the judge, we affirm his finding that the two discharges were discriminatorily motivated and violative of Section 8(a)(1) and (3) of the Act, and we affirm his finding that the Respondent vio- lated Section 8(a)(1) of the Act by engaging in the other conduct set forth above.3 reinstatement. Therefore we shall substitute the attached notice for that appended to the judge's decision. In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (May 28, 1987), interest will be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.C. § 6621. 3 In affirming the judge's finding that Castrop was discharged discri- minatorily we find it unncessary to rely on his conclusion that Alicia Perry, the person to whom Castrop described the inception of the orga- nizing activity, was a supervisor. In this connection, the dissent overem- phasizes the judge's finding regarding Perry's status and inversely ac- cords too little weight to the judge's finding that Dunham was cognizant of Castrop's union activity. Castroes telling Dunham that Rick Ryder was not the instigator of the organizing effort, as Dunham believed, suffi- ciently put Dunham on notice that she was integrally involved in the commencement of union activity, if not the actual "instigator" of it. Fur- ther, the Respondent's shifting explanations with respect to the identity of the person responsible for and the reasons for Castrop's discharge un- dercut its assertion that her union affiliation had no bearing on her termi- nation, Thus, we note that both Porter and Stead claimed ultimate re- sponsibility for the decision and Ste lad cited Castrop's alleged disclosure of confidential information at her unemployment hearing as the reason Continued 284 NLRB No. 108 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The judge additionally found that Stead interro- gated lead plumber Robert Wachter regarding the way employees on the plumbing crew planned to vote and that Martin questioned Rick Ryder about his union sympathies but concluded that these in- terrogations were not coercive. He also found that Martin threatened employees with adverse conse- quences if they supported the Union but concluded that finding a violation would be unnecessarily cu- mulative and dismissed the allegation. The General Counsel has excepted to the judge's conclusions. We find merit in her exceptions. Regarding Stead's interrogation of Wachter, the record reveals that a few weeks prior to the repre- sentation election conducted on 26 May 1982, Stead and Consultant Martin conferred several times on whether Wachter was a supervisor. Wachter credibly testified that they told him var- iously that he was a supervisor and a nonsuperviso- ry "working foreman." 4 One week before the elec- tion Stead summoned Wachter to his office and asked how the plumbing crew planned to vote in the election. Wachter answered that he thought they would all vote against the Union. Later that day Wachter was called a second time to Stead's office. This time Martin was present and asked how the crew would vote, and the three men went over a tally sheet. As to the interrogation of Rick Ryder, Ryder's credited testimony establishes that on 17 May Martin called him into the appliance room and asked if Ryder was "still on his side." The judge found that the questioning of Wachter was not coercive under standards set forth in Ross- more House, 269 NLRB 1176 (1984). In Rossmore House, the Board stated that it would no longer find interrogations coercive per se, and that the context in which an interrogation occurs should be examined in determining whether the conduct vio- lates the Act. Our examination of the record con- vinces us that the interrogation of Wachter was co- ercive. Wachter was asked twice how his crew would vote. Even after telling Stead that they would vote against the Union, he was summoned for her discharge, but at the hearing in these proceedings attributed the decision to poor performance Moreover, we note that the quality of her work did not become an issue until after she made Dunham aware of her role m the organizmg activity. The dissent also errs in concluding that Dunham's telling Castrop that he now had "all the facts" and his identifying the employee he thought contacted the Union did not create an impression that employees' union activities were under surveillance. Dunham's faulty deduction does not negate the fact that his comment conveyed the message that the Re- spondent was engaged in some type of investigation of the employees' union activities. That such comments tend to coerce employees in the ex- ercise of their Sec. 7 rights is especially true when, as here, the very manner in which Dunham related his new found "knowledge" also con- veys strong disapproval of the exercise of those rights. 4 Wachter was found to be an employee within the meaning of the Act in related representation proceedings. His status is not here in issue. to the project manager's office again to give a nu- merical breakdown of the upcoming vote. It is im- material, as the Respondent suggests, that it may have considered Wachter to be a supervisor for the record establishes that Wachter was an employee during this period. Significantly, Stead had the highest rank of the Respondent's personnel at the facility and was second in authority only to the Re- spondent's owner. Furthermore, the conduct was by no means isolated. The Respondent had com- mitted several other violations of the Act, thereby effectively communicating its union animus to the employees. Similarly, Martin's asking whether Ryder was still on his side was no isolated incident. On 10 May Martin had asked Ryder to speak to other employees about the Union, told Ryder that he was in line for a prestigious position, and re- ferred to employees as "a bunch of corpses walking around waiting to be buried." The latter two state- ments were found to constitute an unlawful threat of loss of employment and an implied promise of promotion. Moreover, Martin's alleged unlawful in- terrogation occurred during a conversation in which he declared that he would reject the Union's bargaining demands, that the Union would call a strike, and that the employees "would fall by the wayside." The judge similarly found this to be an unlawful threat. In this context we find Martin's probing whether Ryder was "still on his side" has a tendency to be coercive. In view of the forego- ing, we reverse the judge's conclusion that the con- duct was lawful and find that the Respondent vio- lated Section 8(a)(1) of the Act by coercively inter- rogating Rick Ryder. With respect to the judge's finding that Labor Relations Consultant Martin threatened the em- ployees with adverse consequences if they support- ed the Union, Castrop's credited testimony estab- lishes that in late April or early May Martin told employees assembled for a group meeting that they could be "fired" if the Union engaged in a strike. Martin also said that the Union "couldn't do a thing about it because he could tell them anything . . . that [the employees] didn't do good work, whatever." The judge found that the statement amounted to an unlawful threat but declined to conclude that the Respondent violated Section 8(a)(1) of the Act because he had found Martin's 16 May reference to "corpses" and Martin's 17 May remark made to Rick Ryder that employees "would fall by the wayside" to be a violation. In her exceptions, the General Counsel urges that a finding that the statement in issue violates the Act would not be cumulative. We agree. The message imparted by these statements is the same, but the threats were made independently of each STRUCTURAL FINISHING 983 other. One threat was uttered to an individual em- ployee and the others to groups of employees. In view of the fact that the incidents are not related and given the serious nature of such conduct, we reverse the judge's dismissal of the allegation as cu- mulative and find that the Respondent violated Section 8(a)(1) of the Act again when it threatened employees at the April/May meeting with dis- charge because of their union activity. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Structural Finishing, Inc., and its alter ego, Consolidated Mar- keting Network, Inc., Edwards, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. CHAIRMAN DOTSON, dissenting in part. Contrary to the majority, I would fmd that the Respondent's discharge of Tammy Castrop was lawfully motivated and did not violate Section 8(a)(1) and (3) of the Act. In concluding that Cas- trop was discriminatorily discharged, the judge im- properly finds that the Respondent knew that she was the employee who initiated contact with the Union. First the judge surmises that if Supervisor Willis Hill or employee Dave Myers did not tell Project Manager Glenn Dunham about Castrop's union activities, then he became aware of her con- duct on 22 April when she told Dunham that Rick Ryder was not the "instigator" of the organizing effort. There is nothing in the record that indicates that Myers or Hill knew that Castrop called the Union. Likewise, there is no reasonable basis for concluding that Dunham became aware of her role simply because she told him who the instigator was not. The judge also implicitly imputes knowledge of Castrop's activities from Alicia Perry to the Re- spondent by summarily finding that Perry was a supervisor. The fact that employees were told Perry was "in charge" of the books and that she may have been introduced to them as a supervisor without more does not support a finding that she was a supervisor. In the absence of evidence about Perry's responsibilities and authority, it is an error to conclude that she was a supervisor within the meaning of the Act and an error to impute any knowledge she had of Castrop's activities to the Respondent. While there is no reliable evidence in the record on which to base a finding that the Respondent had knowledge of Castrop's activities, there is evi- dence that in my view supports the Respondent's assertion that she was discharged because of the poor qualtiy of her work. In this connection the record reveals that Castrop was not qualified for her bookkeeping responsibilities and that she and Dunham did not get along. Thus, employee Nelda Salinaz testified uncontrovertedly that Castrop and Dunham argued at times, and Castrop admitted that Dunham relieved her of dispatching responsi- bilities in March and then informed her that he was considering employing someone with more experi- ence to perform bookkeeping functions well before the advent of any union activity. In the absence of evidence that the Respondent had knowledge of Castrop's role in the representa- tion campaign and in light of her questionable per- formance and unstable rapport with Dunham, I am unable to conclude that she was discharged for rea- sons proscribed by the Act and I would reverse the judge's finding that the Respondent violated Sec- tion 8(a)(3) of the Act by terminating her. The majority also finds that Dunham unlawfully created an impression that the employee's union ac- tivities were under surveillance when he informed Castrop that he had "all of the facts" and said he regretted firing Rick Ryder's brother because he now believed Rick was responsible for initiating "the shit with the Union." The statements do not convey the manner in which Dunham came by his "facts" and do not, however sharp, imply that the employees were the subject of surveillance. Fur- ther, it is clear that Dunham's remark not only lacked truth but also a coercive tendency because there is no indication that Dunharn's belief was based on unlawfully obtained information. For these reasons, I would also reverse the judge's find- ing that the Respondent by this conduct violated Section 8(a)(1) of the Act. APPENDIX NoncE 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 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge, lay off, or otherwise discriminate against any of you for supporting General Teamsters, Chauffeurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America or any other union. WE WILL NOT violate Section 8(a)(1) of the Act by informing employees that employees will not be rehired because they engaged in concerted activi- ties; interrogating employees concerning their union activities and sympathies; informing employ- ees that they will not get raises because of a union; informing employees that they are being dis- charged for their union activities and sympathies; creating an impression among employees that their union activities are under surveillance; threatening employees with discharge or other adverse conse- quences if they continue to support the Union; promising promotions to employees if they cease their support of the Union; informing employees that it would be futile for them to select the Union as their collective-bargaining representative; and in- forming employees that it would be difficult to continue their employment because of their union affiliation. 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 Richard (Rick) Ryder and Tammy Castrop immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any net in- terim earnings, plus interest. WE WILL remove from our files any reference to the discriminatory action taken against them on 17 May 1982 and 29 April 1983, and notify each of them in writing that this has been done and that the evidence of our unlawful discrimination will not be used as a basis for future personnel action against him or her. STRUCTURAL FINISHING, INC. CONSOLIDATING MARKETING NET- WORK, INC. Ann Reid Cronin, for the General Counsel. James T Winkler, of Long Beach, California, for the Re- spondent. DECISION HAROLD A. KENNEDY, Administrative Law Judge. This case was tried before me on October 26, 27, and 28, and November 8 and 9, 1983, on an amended consolidat- ed complaint issued on June 30, 1983, by the Regional Director of Region 31 of the National Labor Relations Board. / The complaint was further amended at trial and alleges that Respondents violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act). Respondent Structural Finishing, Inc. (Structural) is admittedly a California corporation that engaged in the maintenance and refurbishing of military base homes at Edwards Air Force Base in California from about March 1, 1982, until the end of April 1983. Structural main- tained an office and place of business in a large quonset structure, referred to as Building 6691 at Edwards, con- sisting essentially of a warehouse, the project manager's office, dispatch office, tool cage, and restroom. There is also a very small office or "little cubicle" (where Charg- ing Party Tammy Castrop had sat) next to the project manager's office on the south. A diagram of the facility was drawn by Charging Party Tammy Castrop and is in evidence as Respondent's Exhibit 6. The maintenance and refurbishing work performed by Structural was done pursuant to a Government contract awarded to this Re- spondent. Respondent Consolidated Marketing Network, Inc. (Consolidated) admittedly has performed the same services on base housing units at Edwards since May 1, 1983, pursuant to another Government contract awarded to this Respondent. Consolidated has operated out of the same office and place of business as Structural did, utiliz- ing the same equipment and much of the same personnel. Jurisdiction is not in dispute. It is admitted that Re- spondent Consolidated and Respondent Structural have been, at all times material, alter egos and a single em- ployer within the meaning of the Act. 2 Respondents admit that they are employers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondents admit that during "the last calendar year" they have performed re- furbishing and maintenance services for military base homes at Edwards Air Force Base valued in excess of $50,000. Such operations admittedly have a substantial impact on the national defense of the United States. Fur- ther, Respondents admit purchasing and receiving, on an annual basis, goods or services valued in excess of $2000 Charges were filed by the Charging Party Union in Case 31-CA- 12094 on April 27, 1982, and m Case 31-CA-13075 on May 4, 1983 and June 21, 1983. Charging Party Castrop filed a charge m Case 31-CA- 12180 on May 24, 1982. (The Charging Party 1LS identified in Case 31- CA-13075 as Local 986.) 2 Re4ondent's counsel disputed at the hearing that Respondent Con- solidated was established as "a disguised continuation of Respondent Structural" as averred in par. 2(b) of the complanit There is no doubt that the operation begun by Structural has been continued by Consolidat- ed and, in view of Respondents' concession, the continuation is not dis- guised, or at least not since start of the trial In view of counsel's conces- sion, the use of the term "Respondents" refers to either Structural or Consolidated or both Concerns. STRUCTURAL FINISHING 985 from California sellers or suppliers that had received such goods in substantially the same form directly from out of State. Respondents also admit that the following named per- sons, at times relevant in the case, have been agents and supervisors within the meaning of the Act and have held the positions set forth below: Glenn Dunham, project manager; 3 Norm Stead, quality assurance evaluator (and project manager since on or about May 10, 1982); Willie Hill, supervisor, and Steve Porter, owner and president. Respondents also admit that Stephen Martin held the position of labor relations representative of Respondents and at times relevant-i.e., when speaking to Respond- ents' employees-acted as an "agent" on their behalf. The case involves alleged unlawful discharges of three employees and a number of alleged violations of Section 8(a)(1). The complaint alleges Respondent discharged Tammy L. Castrop, Charging Party in 31-CA-12180, along with Ronald Ryder and Richard Ryder, for engaging in union "or other protected concerted activities" in violation of Section 8(a)(3). The complaint alleges that Ronald Ryder was discharged on or about April 20, 1982, but was rein- stated on or about June 16, 1982. Richard Ryder, Ron- ald's brother, was allegedly discharged a year later, on or about April 29, 1983. The complaint alleges, as amended at the hearing, Castrop was discharged on May 17, 1982. With respect to the 8(a)(1) charges, paragraphs 7 and 11 of the complaint allege that Respondent's representa- tive, Norm Stead, at Respondents' premises at Edwards: (a) On or about April 20, 1982, interrogated an em- ployee regarding his sympathies for and activities on behalf of the Union. (b) On or about May 10, 1982, informed an employee that Respondents would never rehire another employee because that other employee had engaged in concerted activities. (c) On or about May 19, 1982, questioned an employee about the employee's union activities and sympathies and about those of the employee's fellow employees. (d) In or about June 1982 informed employees that they would not get raises because of the Union.4 (e) Informed an employee that he was being dis- charged because of his union activities and sympathies. Paragraph 8 of the complaint also alleges that Glenn Dunham, Respondents' former project manager, made certain statements in violation of Section 8(a)(1) at Re- spondents' premises as follows: 3 The record indicates that Structural's first project manager was Bill Mitchell, who left Respondents' employ on or about February 25, 1982, and was replaced by Glenn Dunham Dunham was transferred on or about May 10, 1982, and at the time of the hearing was employed by Re- spondents in the Truk Islands. The General Counsel has alleged that Alicia Perry, who was employed for a time as a bookkeeper for Structur- al beginning around late April 1982, was a supervisor, but Respondents deny such assertion I find Alicia Perry was a supervisor while in Re- spondents employ Dunham introduced her to employees as a supervisor and employees understood her to be one 4 The allegations of subpars. (c) and (d) were added to the complaint during the trial. (a) On or about April 20, 1982, interrogated an em- ployee regarding the union activities of his fellow em- ployees. (b) On or about April 22, 1982, created an impression among its employees that their union activities were under surveillance by Respondents. (c) On or about April 28, 1982, impliedly threatened an employee with adverse consequences if Respondents' employees continued to support the Union. (d) In or about the first part of March 1982, threatened to fire an employee if the employee made concerted complaints to Respondents' owner, Steve Porter. (e) On or about April 19, 1982, at a meeting with em- ployees at Respondents' facility: (1) gave the employees the impression that their union activities had been under surveillance by informing them that he knew many em- ployees had signed union authorization cards; (2) in- formed employees that it would be futile for them to support the Union, and (3) solicited the grievances of employees.3 The complaint further alleges in paragraph 9 that Re- spondents' labor representative, Steve Martin, made cer- tain statements in the presence of their representative, Norm Stead, which constituted violations of Section 8(a)(1) of the Act as follows: (a) On or about May 10, 1982 (1) impliedly threatened an employee with adverse consequences, including dis- charge, if its employees supported the Union and (2) im- pliedly promised an employee a promotion if he ceased supporting the Union.. (b) On or about May 17, 1982 (1) mterrogated an em- ployee concerning his union sympathies, and (2) in- formed its etnployees that it would be futile for them to select the Union as their bargaining representative by telling an employee that during negotiations Respondents would refuse to accept any and all of the union propos- als. (c) In or about April and/or May 1982, at a meeting or meetings with employees at Respondents' facility, in- formed employees that they might be fired if they sup- ported the Union. Paragraph 10 of the complaint alleges that Willie Hill, acting for Respondents, informed an employee around April 25, 1983, that it would be difficult to continue to employ him because of his union affiliation and thereby violated Section 8(a)(1) of the Act. Respondents admit that General Teamsters, Chauf- feurs, Warehousemen & Helpers Local 982, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Union) is a labor organization within the meaning of Section 2(5) of the Act. An election was conducted by the General Counsel among Respondents' maintenance employees located at its facility at Edwards on May 26, 1982. The parties agree that the ballot of Ron Ryder, which remains un- 5 The allegations of subpars. (d) and (e) above were added to the com- plaint during the first day of the trial. Subpar. (e), as originally added to the complaint, contained four subparagraphs, but subpar. (e)(3) was later withdrawn by the General Counsel's attorney when the allegations of par. 7(d) were added to the complaint. Subpar (3), above, appears in the complaint as subpar. (4) 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD counted, is determinative as to whether the Union is to be certified as the employees' collective-bargaining rep- resentative. The lawfulness of Ron Ryder's discharge is determinative as to the validity of Ron's ballot, but the representative R proceeding itself, Case 31-RC-5311, is not before me. Prior to February 1982, according to the testimony of Respondents' president, the Air Force itself performed repairs and maintenance work on the residential housing at Edwards Air Force Base, utilizing 35 experienced per- sons. A Government contract was awarded to Structural effective on or about February 1, 1982, to provide "pre- ventative exterior maintenance and rehab maintenance on the interior of unoccupied housing" at Edwards. A con- tract was later awarded in March 1983 to Consolidated, which took over the repair and maintenance work at Ed- wards on May 1, 1983.6 Stephen L. Porter is the president and an owner of both Structural and Consolidated. (He testified that he was part-owner of Structural and the "full owner" of Consolidated) Porter has maintained his office at Burlin- game, California, which is near San Francisco and some distance away from Edwards. Respondents' highest official at Edwards holds the po- sition of project manager. The first project manager was Bill Mitchell, who left after being on the job for only about 6 weeks. Glenn Dunham succeeded Mitchell and remained in the position only until on or about May 7, 1982, at which time he was transferred to another post. At the time of the trial Dunham was still in the employ of Respondents, stationed in the Truk Islands near New Guinea. Norm Stead, who had worked as an assistant to Dunham, became project manager when Dunham was transferred in early May 1982. At the same time Willie Hill, who had also previously worked as a supervisor for Structural, became assistant project manager. Labor Relations Consultant Stephen Martin contacted Structural's project manager, Glenn Dunham, on or about April 21, 1982, in connection with a petition (G.C. Exh. 2) filed on that date by the Union with Region 31 of the National Labor Relations Board in West Los An- geles and was thereafter employed by the Company to assist it in labor relations matters. About the same time, on or about April 28, Alicia Perry was employed by Structural to supervise its bookkeeping activities and per- form related duties. Perry was not employed by the Re- spondents at the time of the trial, and her whereabouts are unknown., Tania "Sunny" Palmer has been the book- keeper for Consolidated since May 5, 1983. Structural had approximately 30 employees in early 1982. These proceedings are concerned primarily with Respondents' treatment of three employees-Tammy Castrop, Ronald "Ron" Ryder and his brother, Richard "Rick" Ryder. Castrop was hired in January 1982 and worked for Structural at Respondents' facility at Ed- wards until terminated on May 17, 1982. She and the General Counsel claim she was discharged for union ac- 6 Structural's contract was to run for a year, subject to renewal for 2 additional years An Air Force employee testified that Structures con- tract was extended by the Government "from February through April." All dates refer to the calendar year 1982 unless otherwise stated tivities, but Respondents contend she was terminated be- cause of her poor performance and inexperience. Ron Ryder, an exterior maintenance worker, was discharged on April 20, 1982, but rehired on June 16, 1982, on the recommendation of Labor Representative Martin. Ron and the General Counsel claim Ron was discharged for union activities, but Respondents contend he was dis- charged for being unproductive. Rick Ryder, who worked as a "jack-of-all-trades" for Structural, was let go by President Porter and Project Manager Stead on April 29, 1983, just before Respondent stopped operating at Edwards under the name of Structural and began op- erating as Consolidated. Rick and the General Counsel claim Rick was discharged because of his union "affili- ation." Respondents assert Rick was laid off as a part of a reduction in force. There is no dispute about the fact that Dunham was an unpopular project manager. The Union was contacted by Castrop on or about April 14, 1982, when Dunham and Stead were away, and on that date a union representa- tive, Danny Cortez, came to Structural's facility at Ed- wards and passed out union authorization cards. All the statements challenged by the complaint, except for two, 7 were allegedly made in April, May, and June 1982 at Respondents' facility at Edwards. Nineteen witnesses testified. Their testimony will be summarized in order of their appearance. Ronald (Ron) Bruce Ryder testified as a witness on the General Counsel's case-in-chief and was later recalled twice to testify as a rebuttal witness. 8 Ron said he was hired by Structural on January 20, 1982, as a carpenter. He signed a union authorization card on Wednesday, April 14, 1982, was discharged on April 20, and was re- hired on June 16, 1982. Around March 1, 1982, when Glenn Dunham had re- placed Bill Mitchell as project manager, Ron was as- signed to do exterior maintenance work. Ron indicated that company officials initially expressed satisfaction with his work. After being on the job for less than a week, according to Ron, Mitchell told him that he was doing "an outstanding job" and that he would be getting a raise. Ron said he had spoken to Project Manager Dunham prior to moving his family on March 26, 1982, and asked how he was performing on the job. According to Ron, Dunham patted him on the back and stated, "No problem. Go ahead and move." On another occasion at the end of March, according to Ron, Dunham remarked, "You are doing a fine job." On April 14, a day when Project Manager Dunham and Norm Stead were both away from the facility, Union Representative Danny Cortez came to Respond- ent's place of business at Edwards and passed out author- ization cards. Ron said he signed a card while sitting in Cortez' automobile. Supervisor Willie Hill "poked his 7 The exceptions: (1) the averments of par. 10 of the complaint that alleges that Supervisor Willie Hill told an employee, identified at the heanng as Rick Ryder, that it would be difficult to continue to employ him because of his union affiliation, and (2) the allegation contained in par 7(e) that Norm Stead told an employee he was being discharged for his union support 8 Ron's rebuttal testimony is summarized under Norm Stead's testimo- ny, infra STRUCTURAL FINISHING 987 head in the car and said, 'Hey what is going on here." Ron introduced Cortez to Hill and explained, "We are signing union cards to go union." Ron showed Hill the card and asked if Hill wanted to sign. Hill looked the card over, returned it and shook his head "like a no." Ron indicated that he had not engaged in any prior union activity except for some union talk he had had that day or the day before with his brother, and possibly John Goodman, in front of the toolcrib. The next day or so he discussed the Union with Tammy Castrop in the appliance room during lunch. Ron thought Hill had come through the area during such a discussion to use the bathroom. Ron testified that one afternoon on the following week, Monday he thought, he attended a company meet- ing led by Project Manager Dunham. Dunham stated toward the end of such meeting that "he knew that we had signed union cards and it wouldn't do any good."9 Ron testified that he had two conversations with man- agement personnel on the following day, April 20, the day he was discharged. The first took place around 7:45 am. as he stood in line to get material at the tool cage Stead approached Ron and asked, "Ron how many houses are you going to get out today?" Ron replied that he did not know but would "do the best" he could. No- ticing that Stead remained standing in the area, Ron asked if there was "something else?" Stead then stated that he "was just wondering how [Ron] felt about the union." Ron said his response was: "Well, if you mean did I sign a union card, yes. I signed the union card and I think it is a damn good deal." Stead indicated he had asked others and was "just wondering" what Stead thought. Stead then proceeded to Dunham's office. Shortly after lunch the same day Stead "pulled up in his El Camino" where Ron was at work on a house and asked him to report to the office." Ron explained the events that took place thereafter during direct examina- tion as follows: So I went back to the office, followed him back. I got in my truck and followed him back. He got there before I did. And when I got into the office I walked in the side door, and Tammy [Castrop] and John [Goodman] were standing in the office. I could see the look on Tammy's face, I knew some- thing was up. I went right in, followed Norm right into the office. And Glenn [Dunham] says, "I have got something that I have got to do that I really hate to do." And I looked down on his desk and saw two checks there. And that, coupled with the look on Tammy's face, I knew what it was. When he said, "I have got something I really hate to do," I just looked at him and I said, "I bet you do." And he asked for my , lock box key and my tools and any material I had, and he said he was going to have to let me go. So he handed me my checks and 9 Ron said he attended no meetings at which Steve Martin spoke. Ron did not recall Dunham saying anything about raises or grievances. 1 9 Ron testified he was nailing fascia board when Stead drove up alone and asked him to follow him in his (Ron's) vehicle. Ron later testified that he had seen Dunham drive by earlier. told me I was paid until 4:30, that I could stay and work, or I could go home, whatever I wanted.. . . When I left the office, I was mad. And maybe I should have controlled myself better, but I didn't. It was my own fault. But I walked out the front door, and I thought it over, and I said, "I am going to hit that SOB," and I turned around and I walked back in the office. And he was standing in front of the tool cage there, he kind of had his back to me. Tammy and John were standing there. . . . And I grabbed Dunham and spun him around. And I went to hit him, but I thought of it, and instead of hitting him I just grabbed him and shoved him. I shoved him up against the cage there where the entrance to the cage was, shoved him up against there—do I have to tell you what I called him? Q. Yes. A. I told him, I said, "You are a rotten chicken- shit son-of-a- bitch." He pointed his finger at me and told me, "Don't ever talk to me that way again." Q. Who was that? A. Glenn Dunham. Q. Was Mr, Stead there? A. No. Mr. Dunham told me, he said, "Don't ever talk to me that way again." And he pointed his finger at my face. I slapped his finger out of my face, shoved my fmger in his face, and repeated my first statement, "You are a rotten chicken-shit son-of-a-bitch." Ron said he then walked out and told Castrop and Goodman that he was going to Procurement, the base legal office, and the union hall. Ron returned to work for Structural on June 16, 1982, at which time Norman Stead had succeeded Dunham as project manager." He was reassigned at that time to ex- terior maintenance at which time he said others were also performing maintenance work. Dave Myers headed up "one crew." "Rudy" worked with Myers. Margaret Goodale and "two other boys" were on another crew. According to Ron, employees were about 2 weeks behind in performing maintenance work. Ron maintained that at the time of his dismissal in April 1982, the ren- ovation work was current, but that at the time of his return, approximately 2 months later, the Company was about 2 weeks behind in its work. Ron stated that when Consolidated took over the maintenance and rehabilitation work in May 1983 he was assigned to work in the tool crib where he ordered and handed out materials, a job he performed for 3 or 4 months. Ron stated that Consolidated and Structural per- formed the same work. Said Ron: "The last date of Structural was April—I think it was the 29th of '83. And " See G.C. Exh 8, Project Manager Stead's letter of June 9, 1982, to Ron Stephen Martin, Respondent's labor relations representative, who used figures of speech while testifying, stated that he recommended that Ron be rehired before the election as a means of "calming the waters." Ron had been supervised both by Norm Stead and Willie Hill since March 1982. 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then Monday was Consolidated Marketing." 12 At the time of the trial Ron was in charge of checking and re- pairing appliances. On cross-examination Ron indicated he was "pretty gung ho" for the Union. It was Tammy Castrop, he thought, who had contacted the Union. He agreed that the Union was not discussed openly before the election, but Willie Hill, Ron said, had seen him in the union rep- resentative's automobile. Also, Norm Stead had ap- proached him on the subject as he stood in line at the tool cage. Ron used a "union" pen but did not "out and out wear" a union button. Ron agreed that Stead had indicated prior to the dis- charge a concern about the amount of time Ron was taking in completing his work." Ron also indicated on cross-examination that Stead was present with Glenn Dunham at the discharge interview and that it was men- tioned at that time that Ron had turned in no houses for the month of April. Ron testified that the statement was incorrect, however. Ron said he had "turned in several houses" that month even though there had been only 14 actual workdays as of April 20, and two of these were rainy." He could not recall that the Union was men- tioned during the discharge interview. Ron explained that "a certain amount of houses, like probably 60 houses," were to be completed each month. Some of the houses were occupied, others were vacant. The amount of work to be done varied; some houses could be completed in an hour while others were a "mess" and would require 2 or 3 days' work. Ron said he performed the exterior work himself, although "some tall fellow" helped out for a short time. Dave Myers, who later replaced Ron and then became a glazier, may haVe been "out there" at that time for a short time to do the "paperwork." Also, a "Rudy" could have been working in April, but Ron was "not sure of any date." Ron testified that he had submitted "reports" on hous- ing units that he had worked on in April to the General Counsel. These reports had been attached to an affidavit given to the General Counsel (R. Exh 1) and identified at the hearing as Respondent's Exhibits 2(a)-2(yy). Such reports include an Air Force (AF) Form 1219 for each housing unit Ron said he had worked on. A street ad- dress and a job order form appear on each form. Ron ex- plained (on redirect) how he would complete the form. "I take an empty blank form and then I go through with it." Ron indicated, after examining the reports on the wit- ness stand, that he had completed 16 houses in April prior to his discharge. The reports, he said, indicated that there were other houses worked on but not complet- ed by him 12 Stead later testified that Structural's operations at Edwards actually ended at midnight April 30, 1983. 13 Ron acknowledged that Willie Hill spoke to him about housing units on Kellie Court where he had been working "for a while" Ron said he disagreed with Hill's appraisal of the amount of work necessary. Hill took the position that the houses were acceptable, but Ron Main- tamed that "there was a heck of a lot wrong with them." 14 Ron later estimated that when discharged he had turned in '44 of approximately 60 houses that were to be completed m April 1982. After looking at forms he had submitted to the General Counsel during the in- vestigation (R Exh 2), he said he had completed 16 houses Robert Wachter testified that he was employed as a master plumber by Structural. On April 14 he signed a union card in the parking lot outside building 6691. On the following day Wachter was standing outside of Dun- ham's office and overheard a conversation between Dunham and Dave Myers, another employee. Myers told Dunham that "everyone" in the parking lot had been signing the cards on the day before. Myers told Dunham that Myers was loyal to the Company and that he had not signed a card. About a week later Wachter confront- ed Myers, calling him "a snitch." At an employees' meeting held on the Monday follow- ing the signing of the cards, Dunham indicated he knew cards had been signed." He said the company was not pleased with the employees' action but stated he "couldn't discuss the Union." Dunham went on to dis- cuss company business, and as he ended the meeting stated, "there is no door [to my office] and you are wel- come to come and discuss any problems you have with me." About a week before the election was held on May 26, 1982, Norm Stead called Wachter into his office and asked how the plumbers were going to vote. Wachter said he told Stead that he thought the plumbers would all vote against the Union. Wachter said he later met with Stead and Structural's labor representative, Stephen Martin, to discuss how employees would vote. He re- called a meeting with Dunham when six or seven em- ployees who had signed union cards were called in and told they would be made supervisors." Sometime in late April 1982, as Wachter recalled it, Steve Martin was introduced by Dunham as the Compa- ny's labor representative at an employees' meeting. Martin stated at the meeting that he knew Roman Borbon, president of the Union, and that Borbon is a man who likes to strike. Martin said that if the employ- ees were to strike, it is possible that they could lose their jobs. Wachter could not recall Martin's precise words, and on cross-examination conceded that Martin could have said that the employees could be "replaced." Ac- cording to Wachter, Martin stated that employees would be better off without the Union. A week or so later, a second meeting was held with Martin present. Martin stated at that time if Borbon demanded "the moon," the contractor would "just go under" and all the employees would be out of work. Martin did indicate that if em- ployees voted the Union in the Company would have to negotiate. Thomas Faircloth testified that he was employed by Structural as a refrigeration mechanic in April 1982. (He stopped working for Structural in September 1982.) On April 14 he signed a union card in the parking lot out- 16 Wachter stated that there were company meetings on Mondays, and on cross-examination indicated that he was not certain that it was April 19 when Dunham spoke to employees Wachter testified that Dunham did not state at such meeting that raises would be denied because of union activities 16 Wachter stated that the Company "went back and forth" as to whether he was a supervisor or not. Said Wachter: "Norm told me he considered me a supervisor, but that I wasn't one, I was a working fore- man" Wachter said he voted in the May 26 election, but his "ballot was not opened for a year." STRUCTURAL FINISHING 989 side building 6691. He recalled an employee meeting on April 19 at which Dunham said he was aware that the employees signed union cards but that "it wouldn't do us much good." Dunham added that he could not talk about the Union at that time. (Fakeloth had no recollec- tion of anything being said at that meeting about raises.) Faircloth recalled at least two meetings at which Steve Martin spoke. At one of the meetings, Martin indi- cated that the employees could lose their jobs for sup- porting the union. Faircloth could not recall the precise context of Martin's remarks and acknowledged that Martin could have said that employees could be "re- placed." Margaret Goodale Henderson testified that she was em- ployed by Structural in "cooler maintenance" in April 1982. (She was hired March 16, 1982, and laid off in Jan- uary 1983.) Henderson said she signed a union card in the parking lot near building 6691 on April 14. She re- called that other employees were in the parking lot at the time. She also recalled overhearing a conversation between Stanley Hill and Stanley's father, Willie Hill. Stanley asked Willie if he were going to sign a card. Willie replied that he (Willie) could not sign as he was "management," but Willie encouraged Stanley to sign, stating "it would be a good idea." At the outset of an employees' meeting held, she thought, on the Monday following the signing of the cards, Dunham mentioned the Union. He said he was aware that employees "had called in the union" but that he was not free to talk about it. During the meeting Dunham also mentioned that his door "was always open" in the event that the employees wanted to speak to him At the next regular meeting, April 26, Steve Martin was introduced to employees by Dunham. Martin told the employees he had worked with the Union's official, Roman Borbon, before and that Borbon would "ask for some pretty outrageous things" which the Company could not give. Martin explained that if Borbon made such demands, a strike could follow and the employees "could all be replaced." Martin said the Company would negotiate with the Union, but that the negotiations could continue on until Structural's contract with the Govern- ment expired." At an employee meeting held sometime after the May 26 election, Norm Stead spoke to the employees. By this time Stead had replaced Dunham as the project manager. Stead said that a number of employees had been asking about raises but that he could not give raises because the Union would not allow it.18 Henderson testified that Dunham also introduced Alicia Perry as the Company's new head bookkeeper at an employee meeting. Henderson said she rode back and forth with Perry and that Perry had told her she was a supervisor. According to Henderson, Perry had told her of a coming "big layoff" and stated that she (Perry) had persuaded Stead to rehire Ron Ryder. 17 Henderson Indicated Martin's remarks concerning the Government contract took place at a later meeting held on May 3. 18 Following Henderson's testimony, the General Counsel withdrew the allegation of par 8(e) of the complaint but sought to add a similar allegation (par. 7(d)), which was later granted. Finally, Henderson told of Dunham speaking at an em- ployee meeting on the subject of employees calling Steve Porter in San Mateo. Dunham told the employees, ac- cording to Henderson, that the next call to San Mateo would result in an employee being terminated. Richard "Rick" Ryder testified that he started working for Structural on January 19, 1982, at $8.65 per hour and was discharged on Apnl 29, 1983. He was never em- ployed by Consolidated.19 Rick built the offices and tool crib at Edwards prior to the time Structural began performing housing renovation under its contract. On February 1, 1982, Rick was given a raise (to $10.74 per hour) and assigned to work as an appliance mechanic. He was assigned to perform tile set- ting on April 1 of that year. During his tenure with Structural he worked under three project managers—Bill Mitchell, Glenn Dunham, and Norman Stead. Rick said he placed a call to the company owner and president, Steve Porter, from a pay telephone at Ed- wards on a Friday in early March 1982 because of "the way all the employees were treated by Glenn Dunham." Rick said he placed the call after hearing Dunham say concerning another employee: "Get rid of that son-of-a- bitch . . . I don't like his looks." Rick said Porter had previously commended him for his work and had told Rick "don't hesitate to call" San Mateo if he should ever have a problem. Rick was unable to speak to Porter when he telephoned, but told a secretary that Dunham was "very paranoid." Porter did not return the call On the following Tuesday Rick was called into the office by Dunham and reprimanded for making the call. He was later told by another employee, Dave Myers, that the Company had been looking for a replacement for Rick. Dunham himself later told Rick that he planned to fire Rick but had decided that Rick was needed. According to Rick, Dunham fired people on short notice and was disliked by the employees. Rick said he first heard about the Union probably in late March 1982. He understood the leaders of the move- ment at the time to be Tammy Castrop and John Good- man, but "everyone was talking union." Rick, like others, signed a union card on April 14 when Dunham and Stead were away. Rick said he saw Willie Hill that day with a union card in his hand talking with his son. He stated on direct that Ron was in the "union rep's" car, but on cross-examination he indicated that he had not seen him in the vehicle. The Union was discussed with other employees in the appliance room where they ate lunch. The room was enclosed in part (at the top) by chicken wire, and Rick indicated that emploYees could be overheard at a drinldng fountain, in the restroom, or even in the project manager's office. Rick had not no- ticed whether supervisors were in the area, 1 however. On Monday, April 19, Dunham met with einployees. Dunham discussed problems involving company trucks and also mentioned that he knew that employees "were attempting to join a union." Dunham added, "It '9 Structural's contract with the United States Government ended about Friday, April 29, 1983, and Consolidated began rehabilitating base housing at Edwards under its contract on the following Monday, May 2, 1983 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wouldn't do you any good." At the end of the meeting, Dunham said "his door was always open," but 15 min- utes later Rick was directed by Dunham to install a door to Dunham's office. Rick stated that his brother, Ron, was discharged on the following day. He felt certain that Ron was not discharged earlier because he and Ron had stood "next to each other" at the April 19 employees' meeting. Rick thought Steve Martin, Structural's labor consult- ant, attended three, possibly four, meetings of employees. One meeting was in late April and two of the others were held, he thought, on May 10 and 17. At the first meeting Martin stated there could be no strike on a Gov- ernment installation. The strikers would have to remain outside of the gate and they would be replaced. Rick said he also had individual conversations with Martin as well as with Norm Stead and Willie Hill. On Monday, May 10, 1982, Stead apologized for getting rid of Ron. Stead explained that "Ron had put through charges against him through the Union" and he would never be rehired. Stead also stated that Ron "wasn't get- ting enough work done" and his "work wasn't up to standard." Rick then inquired of Stead why it had been necessary to replace Ron with three people (identifying Dave Myers, Danny Mayo and another person named "Rudy"). Stead did not respond to Ron's question but told Rick that he liked Rick's work.2° Rick stated that he had individual conversations with Martin on May 10, May 17, and on the day before the election. Stead was at the May 10 meeting with Martin "for a little while." Rick recalled Martin telling him on that day: The employees looked up to me and they asked me questions. And he would like to have me on his side. He would like me to talk to the employees and see if I couldn't get them to understand that the company gives the raises, the company gives the benefits, the union doesn't do it. And his exact quote was, "There is a bunch of corpses walking around out there that is waiting to be buried," and that he can and will replace very one of them, that you couldn't strike on the base. And after the union got started they would probably end up in a strike, and we would be replaced. It was for me to explain it to them. Asked if Martin had said "replaced" rather than "fired," Rick responded: He didn't say "fired" at that meeting, no. He said "replace." There was two meetings. And one of them he used the word "fired." But I believe that is the one he said he could "replace" them.21 Rick stated that in one individual meeting Martin said "he had the ball" and it was the Company that took care of employees and paid the benefits. Martin indicated he had negotiated with Union Official Roman Borbon. 20 Rick agreed on cross-examination that Stead did not state that Ron had been fired because of union activity. 21 On cross-examination Rick testified that he thought Martin had used the words "fire" and "replace" in employee meetings He said Martin had told him for certain m individual meetings that Rick was to tell other em- ployees that if they went out on strike they could be fired and replaced. Borbon would make demands, get mad, and call a strike and "people would fall by the wayside." He recalled on one occasion that Martin discussed motorcycle racing with Rick and had mentioned the possibility of calling Rick's brother back "to show the employees that the company wasn't that bad." At first, Martin "accused" Rick of torpedoing Martin. Martin asked Stead if he were "still on his side." Rick responded that he did not like the way things were going and that "he didn't know." Rick testified that Martin had told him that the meeting, the one that took place on May 17 he thought, was confidential, but that Martin later breached the con- fidence. Rick said fellow employees accused him on the following day of bargaining with Martin for the recall of his brother, Ron. Rick stated that Martin had also told him, on May 10 he thought, that Rick was "in line for a very prestigious position with the company," and "it would be beneficial for me to help them."22 On the day before the election Martin spoke to Rick and accused him of having "torpedoed" him. Martin in- dicated to Rick that he was discouraged and commented, "I thought you was on my side." Rick believed Martin had made such remarks because of what Rick had said when he intervened and took exception to the antiunion remarks Wachter was making to plumbers. According to Rick, Stead appeared with Martin at an employees' meeting the day before the election and stated that "a vote for the union is a vote against me di- rectly." While Rick had signed a union card, he indicated during his testimony that he never made up his mind "for sure" whether he wanted the Union. The Union continued to be a topic of discussion after the election, according to Rick. He stated that Willie Hill had told him in late April 1983, shortly before Con- solidated took over, that a "hit list" was being drawn up. Hill told Rick that "he was having a hard time holding [him] because of [his] union affiliation." Around 7 a.m. on April 29, 1983, Hill indicated to Rick that Rick's job was safe ("No problem, I have got you"), but in the early afternoon of the same day he was discharged by Stead." Rick went into Hill's office with a work order as he needed additional tile for a shower. Steve Porter was on the telephone in Stead's office at the time, and Stead was standing nearby. Stead took the work order from Rick and told him that he was being let go. Nothing was said about his job performance, but Rick was told he would not want to work for the wages that the Company would be paying. 24 Rick asked what the deal was, and Stead replied, "You know the Union." Stead then stated, "Just forget it. I am sorry." Rick became angry and complained about the use of his saw without any charge. Porter was off the telephone at this 22 Martin denied offering any promotion to Rick. Martm agreed that on one occasion, the day before the election he thought, he was "violent- ly angry" at Rick and accused him of torpedoing him 23 Rick stated that Hill had told lum two or three times that Stead was afraid of Rick and did not want to keep him because of his union activi- ty Rick agreed on cross-examination that these conversations were not referred to in the second affidavit he had signed during the investigation. 24 Rick said Stead liked Rick's work and asked Hill to have Rick as- signed to do work on the "Colonel's quarters." STRUCTURAL FINISHING 991 time and asked Rick how much the saw was worth. Rick stated that he had paid $300 for the saw, and Porter thereupon directed Rick be given a check for $300.25 Rick was asked about Alicia Perry. He said Dunham had "told us she was in charge of payroll, and she was a supervisor." Rick thought this occurred around the first of April 1982. Rick thought Perry had worked with Cas- trap for about a week, just prior to the time Castrop left on vacation. Tammy Castrop was hired by Bill Mitchell on January 27, 1982, and worked as an administrative dispatcher until around March 1. She explained that base residents would telephone her office concerning repairs needed on their houses. Castrop would fill out a dispatch card and then assign a worker to correct the problem. She also handled all payroll matters and supervised two women dispatchers who worked the night shift. Castrop's start- ing wage was $8.65 per hour. When Glenn Dunham took over as project manager, he cut Castrop's wage to $7.63 per hour and told her she would no longer be dispatch- ing or supervising. Dunham explained that she had too much paperwork and payroll to do. Castrop said she pre- pared about five monthly reports, did some filing, and typing and answered the phone. Castrop indicated that it was difficult to work for Dunham. There was considerable turnover of personnel at Structural because Dunham frequently fired employ- ees. The employees who remained became concerned about their job security and began to "talk union" around nid-March. On April 14, when Dunham was out of town, Castrop telephoned the Union and asked about organizing the employees. Roman Borbon, the president of the Union, with whom she spoke, sent Danny Cortez out to the Company's premises at Edwards that after- noon." While Cortez was in the parking lot that day getting union cards signed, Castrop spoke with Nelda Sa- linaz, a dispatcher. Both Castrop and another employee, John Goodman, encouraged Salinaz to sign a union card. She said Willie Hill and Norm Stead were standing nearby, and Castrop thought they overheard her conver- sation with Salinaz. 2 7 After the employees signed union cards, they would often talk about the Union while having lunch in the ap- pliance room. At that time none of the rooms in building 6691 had walls that reached the ceiling. Conversations in other rooms could be overheard. Castrop did not recall any supervisors being in the area except for Willie Hill. Castrop's office was situated immediately next door to Dunham's office. On April 15 she overheard Dave Myers 'talking to Dunham in the latter's office. Myers told Dunham of the previous day's card signing and stated that he had not signed one. Dunham responded, "Really? That's nice." Castrop stated that she took notes at employees' meet- ing for Dunham. She testified that at the meeting held on 25 Rick filed a claim for rental value of the saw in the small claims coUrt but was unsuccessful. 26 Castrop said Borbon later told her that the Union could not repre- sent her as she had been classified "a confidential employee" 27 Castrop was less certain on cross-examination that Stead was at Ed- wards on April 14 and acknowledged hearing others testify that Stead may have also been away that day. April 19, the day before Ron was discharged, Dunham stated that he knew about the Union but could not and would not discuss it. Dunham also mentioned the "pop machine" at the meeting. She said that Dunham did not say he would not discuss the Union at any other meet- ing. She agreed, however, that the minutes she took for Dunham on April 23 indicated that on that date Dunham had discussed the pop machine and stated that he would not discuss the Union (R. Exh. 5). 28 Castrop recalled at- tending only one meeting at which Steve Martin ap- peared. She thought such meeting took place during the first week of May, probably on Monday, May 5, just before she left on vacation on Thursday, May 6. Martin told the employees that they could not strike on a Gov- ernment installation. Because the employees would have to strike outside the boundaries of the military base, the employer could easily get others inside to replace the striking employees. Martin also stated that he could fire any one of the employees, and the Union would not be able to do anything about it. Martin said he could say that the employees' work was "bad, anything," and the Union would be of no help. Castrop recalled the day when Ron Ryder was dis- charged, April 20, 1982. She had already prepared his next regular paycheck that was to be given out on April 25. Dunham told her that morning to prepare a second check for Ron. Between 11 and 11:30 a.m. Ron "went into the office" with Dunham and Stead. Castrop posi- tioned herself in a "crawl space" behind Dunham's office in order to overhear the conversation. She said she could identify voices, even though they were muffled. She said she heard Dunham use the word "union." Dunham asked, she said, who had started the Union, and Ron said he did not know." Ron was the first to exit the office. As he did so he told Castrop and John Goodman that he had been fired. Dunham came out of the office and told Ron to leave the premises. ROn grabbed Dunham, called him a number of names, and shoved him. A couple of days later Dunham told Castrop that he was sorry he had fired Ron Ryder. Castrop told Dunham that she was surprised at the firing because Dunham had just previously told Ron, when Ron had moved, that he was "doing a fine job." During this con- versation, Dunham said he felt Rick Ryder was the one who "instigated the union." Castrop said she told Dunham that Rick was not the one, and she then walked out of the office." About an hour later, Dunham ap- proached Castrop and told her that he was considering hiring another woman to "check out the books" to be sure Castrop was doing everything correctly. Castrop asked if there was a plan to fire her, and Dunham re- plied, "Oh, no, not at all." Dunham indicated at that 28 After reviewing her affidavit Castrop indicated some confusion as to dates and indicated there could have been two meetings that week. "Nor- mally there was a meeting on Mondays Sometimes there would be other meetings" She said Alicia Perry took minutes at the employees' meeting held on or about May 4 29 Ron did not recall Dunham mentioning union during the discharge interview, and Castrop acknowledged that she heard Ron so testify 39 Castrop said she also talked to Willie Hill about the Union around April 23. She said Hill's son, Stanley, was mentioned in this connection, and Hill indicated that he thought the Union was "a good idea." 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time that he would be leaving Edwards to work for the Company elsewhere as a branch manager. The following day Dunham told Castrop that he had hired a new woman to do the paperwork." On Friday, April 23, Dunham told Castrop that an "older, more experienced woman" would start on Monday. Castrop said she was aware that a woman had been interviewed, but Castrop had not seen her. Castrop told Union Official Borbon that evening of the new hire but was told not to worry about her job. The new hire did not show on April 26. That morning Dunham told Castrop that she had an "attitude problem" that was showing up in her work. He stated that all of her dispatching cards had had to be redone over the weekend. Castrop told Dunham that she did not believe it could be done in that amount of time. Dunham then called in Don Keever, who told Castrop that he had in fact done over the dispatching cards. 32 Dunham also mentioned that day that Castrop had been asking for afternoons off "quite a bit." She explained on cross-ex- amination that there had been periods when she had a "lot of free time," and she had asked Dunham to send her home on two occasions. Castrop stated that this was the only time that Dunham had complained about her work. She acknowledged on cross-examination, howev- er, that Dunham had talked to her earlier about the qual- ity of her work and her lack of experience. She also con- ceded that she talked to Dunham on April 19 about quit- ting as "he was on my back so much." Dunham persuad- ed her not to quit at the time. A new hire, Alicia Perry, did start work on April 29. On the day before, Dunham had showed Castrop Perry's resume and then telephoned Perry while Castrop was in the office. Castrop voiced concern about what she (Cas- trop) would be doing, and Dunham assured her that she would still have a job. Castrop stated that Dunham told her that she could "bump" Salinaz if Castrop could not work with Perry. Castrop indicated that Salinaz worked at a "slow" rate and "messed up" telephone calls. Cas- trop had to do payroll on April 29 and had little time to work with Perry that day. Castrop took Perry to lunch at Castrop's home and explained that she had called the Union. Castrop also told Perry about others (Rick Ryder, Wachter, and Goodman) being involved with the Union and the fact that employees' morale was low. At the employees' meeting of May 3 Alicia Perry was introduced to the employees. They were told that Perry would be in charge of the accounting department and any questions in that area should be taken up with her. Castrop said she did not know Perry was to be a super- visor until that meeting. Castrop went on vacation on May 6 and did not return to work until May 17. When she returned, Dunham had 31 Castrop said Dunham had broached the idea of hiring another person earlier At the time he became project manager Dunham had told Castrop that he wanted "an older woman with more experience." Cas- trop persuaded Dunham to give her 30 days to prove she could do the job. Dunham had agreed, and within 3 weeks he had told her she was "doing a fine job" and would be getting a raise 32 Castrop testified Keever was employed in early April 1982 and she trained him as a dispatcher and also explained preparation of the payroll to him. left and Stead had become project manager, On May 17 Stead called Castrop into his office and told her, "Tammy, I'm going to have to let you go. I really hate to do it." He was very apologetic, she said, and told her that it was Dunham's idea. Stead did say at that time that while Castrop was away "they had noticed that the books were messed up." Following her termination, Castrop applied for unem- ployment insurance benefits, and a hearing was held to determine her eligibility. Stead and Keever appeared for the Company and testified that Castrop had been dis- charged for giving confidential information to the Union. She said they did not mention her work performance. Castrop denied disclosing confidential information and, on appeal, was found qualified for benefits (G.C. Exh. 11). Castrop was later called to testify as a defense witness. She thought Martin had been at the employees' meeting held on May 3 and possibly Alicia Perry was introduced at that time, but she was not certain. She identified Re- spondent's Exhibit 9 as the "minutes" she had written up under the date of May 3, 1982. The minutes read: "intro- ducing Alicia Perry" and "Lee Hicks." Castrop did not remember taking any notes on the day she heard Martin speak, but recalled that he had said "we would have to strike outside the government facility," that while "out- side they would replace us" and "he could fire every one of us, and that there was nothing that the union could do about it." That meeting took place about the time Perry was hired, which time period she described as follows: "I would say that it was between April 20 and 29 to before I left, which was May 6." Testifying on rebuttal, Castrop said she thought the walls in Dunham's office were raised to the ceiling in the last week of April 1982. She thought 'Perry started on April 29 but conceded it could have been on April 30. She agreed that Don Keever was brought in to straight- en out the dispatching operation, but she maintained that she trained him in that function for about 4 days. She also taught him to do the payroll. Stephen L. Porter testified that he is "full owner" of Consolidated and part owner of Structural. He said that they are "two absolutely different corporations," and both were incorporated in June 1980. Structural was awarded a Government contract in 1982 to provide "family housing maintenance," handling "trouble calls," and "doing exterior maintenance on exte- rior homes, as well as doing rehab maintenance on interi- ors of unoccupied housing." Structural's contract called for it to perform such maintenance for a year beginning on February 1982. The contract contained a provision for "two one-year" renewal options. (It was Consolidat- ed, however, that took over the contract at the end of April 1983, not Structural.) Asked by General Counsel's attorney whether the ending of Structural's contract had affected the timing of a reduction in force that took place at the end of April 1983, Porter replied: "It didn't have any particular bearing." Porter explained that company offices were built inside of a quonset hut (building 6691) prior to the start- up of Structural's maintenance work on February 1. He STRUCTURAL FINISHING 993 indicated that someone did "a good job" in building the offices. He said he did not know who did the work and did not recall complimenting either of the Ryders about it. Porter stated that when Structural started in February 1982 it had 35 inexperienced people and 3 quality control inspectors. Within 6 weeks the Government was threat- ening to hold the Company in default. Porter fired the project manager, Bill Mitchell, and brought in Glenn Dunham "to turn the contract around." Dunham was later replaced but, according to Porter, he was still in Respondents' employ at the time of the trial. Porter testi- fied that the workload began to decrease in April 1983, and he decided to lay off three employees. Porter stated on cross-examination, however, that he had no written evidence that there was less work. He said he had a "year's history under my belt" at that time and could look "at last year's figures." At the time there were about 25 nonoffice employees. Porter said he had been thinking about it for a week or so and told Stead about his decision on April 29. Porter stated that he let Stead decide which employees should be discharged. Porter thought that the three selected "probably were the least productive at the time." Porter and Stead were together when Rick Ryder was discharged. Porter's recollection of the discharge inter- view was similar to Rick's. Porter recalled no mention of Ryder's union activities, however. Porter recalled that Rick "got real upset" and "started discussing about rental of his saw and his wheelbarrow and one other item." However, according to Porter, Rick was agree- able to taking a check for $300 for the equipment. Porter said he made the decision to discharge Tammy Castrop. He replaced her because she was neither a qualified bookkeeper nor a good typist. He said he would mention such problems to a manager but not to an employee. Porter left it to Dunham to hire Castrop's re- placement, Alicia Perry. On cross-examination Porter in- dicated he was not aware that a typist was hired to assist Perry because she could not type. Porter said he was not involved in the dismissal of Ron Ryder but was consult- ed about his recall. Porter denied that he told Rick Ryder or any employ- ee that he could be called (telephoned) directly. He said he would not give such advice as it would "usurp" the project manager's authority. He did not recall telling Rick that he was doing a good job. Bobbie G. Daugherty testified that he is a "quality as- surance evaluator" in the employ of the United States Air Force. 17Ie is responsible for reviewing Respondents' performance as a "contractor." Daugherty's office is lo- cated in building 6690, which is adjacent to building 6691 where Respondents' office is located. Daugherty indicated he would see the contractor's representatives on a daily basis. He would inspect the maintenance work performed by the contractor and either approve or disapprove the work. If he approved it, he would sign a form known as Air Force Form 1219. If the work was not satisfactory, he would indicate what additional work was necessary. Other forms, such as Ex- terior Check List and Family Housing Maintenance forms, were also developed for use in connection with the maintenance work. Said Daugherty: "This was really a learning process for us also." Daugherty identified Respondent's Exhibits 3(a) through (yy), which included AF 1219 and Exterior Check List or Family Housing Maintenance forms used in connection with the inspection and/or work per- formed on specific housing units at Edwards. The docu- ments refer to specific base housing units by street ad- dress and code numbers (derived from a code list, R. Exh. 10, later identified by Norm Stead). Respondents' counsel explained that the documents, although contain- ing "very different" information, purport to correspond to R. Exhs. 2(a) through (yy), the documents that had been submitted to the General Counsel by Ron Ryder during the investigation. The Respondent's Exhibit 3 documents were offered in support of Respondents' con- tention that the documents submitted by Ron were fraudulent. Respondents' connsel pointed out that certain documents contained in Respondent's Exhibit 2 had no counterpart in Respondent's Exhibit 3; there are no Re- spondent's Exhibits 3(e), (w), (x), (11) or (rr). Daugherty identified initials and signatures of his own and those of another Government inspector, George Frank, indicating that specific housing units had been inspected and/or ap- proved. The contractor was expected to complete and report on approximately 60 inspections each month. "From about the start," according to Daugherty, the contractor was late completing inspection and he frequently com- plained about the problem Representatives of his office and other Government personnel (QAEs and procure- ment) would meet with the contractor on a weekly basis. At a formal meeting held on April 22, 1982, Daugherty indicated that he had mentioned that it "was toward the last of the month and we had not received any inspec- tions or completed documents on the exterior mainte- nance." Dunham responded that there was "an internal employee problem" and it "would be straightened out." The minutes of that meeting (R. Exh 7) corroborates Daugherty's testimony. 33 The minutes also indicate that the contractor was experiencing problems in keeping repair supplies in stock. The inability to keep supplies on hand contributed to the contractor's late performance. At the time of the hearing Respondents were still having some problems. Respondents had improved their per- formance by April 1983, Daugherty said, "It was behind but it greatly improved." Daugherty testified that in April 1982 he had asked Willie Hill concerning the whereabouts of documents re- lating to exterior maintenance work. Hill responded that he thought that they had been turned in, but Hill later submitted "duplicate copies." Daugherty said he would not get involved as to which contractor's employee performed the maintenance work. He said, however, he had inspected some of Ron Ryder's 33 The minutes of that meeting read, in part (R. Exh. 7). 2 QAEs noted a problem with exterior facility inspections There are 62 units scheduled for exterior inspections for the month of 82 April, however, no units have been turned over to the QAEs for m- spection The Contractor reported that this problem was an mternal employee problem which has been taken care of 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work and expressed the opinion that some of it was "good" and "some of it wasn't so good." Willie Hill identified himself as assistant project manag- er for Consolidated. He started as a maintenance me- chanic for Structural on February 1, 1982, and had become "quality control assistant for Norm Stead" in the following month. When Stead was made project manag- er, Hill became the assistant project manager. Hill recalled the day (April 14, 1982) that union cards were signed. An employee of Structural told Hill to go over to a car in the parking lot. Hill did not recall who it was that asked him to go to the car. He did not believe Stead was at Respondents' facility at Edwards that day. There were three other employees standing around the car. As he approached he asked, "What's happening?" He spoke to a man sitting in the driver's seat, a union business agent, and was asked to join the Union. Hill said he replied that he did not want to have anything to do with the Union. He said he did not recall seeing Ron Ryder or anyone else sitting in the passenger side of the car. Although Hill regarded himself as part of manage- ment, he did not tell his superiors about the incident. "It just didn't dawn on me to tell them," he said. He did dis- cuss the Union with his son, Stanley, and told him to make up his own mind about it. Hill denied telling anyone that it was a good idea to have a union at Structural. He said he had spent 23 years in the military and had no prior "dealings with unions." He was told that he was part of management and could not vote. He played no role in the election campaign. Hill stated that his superiors did not speak to him about their decision to discharge Ron Ryder, and he did not become aware of his discharge until that day and after it had taken place. He also said he learned about Tammy Castrop's discharge after it happened. He said he never talked about the Union with Castrop. He recalled that Rick Ryder and John Goodman had been let go at the end of Structures contract, on April 29, 1983. He denied telling Rick in April before the latter left that it would be hard to keep him on because Stead did not like Rick's union activity. Hill also denied having at that time a list of employees that were going to be let go. He said no one in management had told him previ- ously of the possibility of a layoff when Structural was to take over. He said Rick had told him, after his dis- charge, that he had been fired for belonging to the Union. Also, Stead told him after the discharge that Rick and Goodman were let go because "he needed a reduc- tion in force." Hill acknowledged on cross-examination that he had heard rumors about Rick Ryder and John Goodman being active in the Union. Hill said he did not recall ever assigning Rick Ryder to perform work at the "General's quarters." He admit- ted that he had referred to Rick as his "right-hand man" in a joking manner Hill recalled an employees' meeting at which Dunham said he knew employees were trying to get a union. He said he did not recall Dunham saying that it would not do them any good. He also recalled an occasion when Dunham discussed pop and candy machines and also mentioned that his door was always open. Robert E. Plunkett identified himself as an employee of the California Employment Development Department (EDD). He visits jobsites and talks with employers in an effort to find jobs for unemployed persons. Sometime in late March or early April 1982 Glenn Dunham contacted Plunkett about finding a bookkeeper. He recalled that Dunham had mentioned the name, "Tammy" Plunkett stated that he made no record of the date of Dunham's contact. Dunham asked Plunkett not to draw up a job notice order, which, according to Plunkett, was not un- common for an employer to do. Dunham also asked Plunkett for some advice about "union activity," an up- coming union vote. Plunkett said he was not qualified to comment on the subject and referred Dunham to the NLRB. 3 4 Plunkett thereafter made contact with Tania "Sunny" Palmer, who indicated an interest in the opening at Structural. Plunkett gave Dunham's home telephone number to Palmer. He learned later that Palmer had de- cided to stay with her then employer and not go for an interview with Dunham. On cross-examination Plunkett was questioned about an affidavit he had given in which he stated that he had spoken to Dunham about a vacancy at Structural "during the week of 4-5-82" and had sent a copy of Palmer's resume to Dunham on April 13. He said he "probably did not send" the resume to Dunham as Palmer had already turned the job down when she brought it in. Tania `!Sunny" Palmer has worked for Consolidated at Edwards as a bookkeeper under Norm Stead since May 5, 1983. She had been in contact with Project Manager Dunham approximately a year earlier about a bookkeep- er's job, but she had decided she did not want to work at Edwards at that time. Palmer testified that she thought it was in "the first week of April 1982" when she first talked to Dunham. A friend of Palmer's had told her of a job opening "at Housing Maintenance" at Edwards and had suggested she contact Plunkett at EDD. Palmer talked with Plun- kett and obtained Dunham's home telephone number. Palmer called Dunham and made inquiry about the open- ing. According to Palmer, Dunham was "very unhappy" with personnel at Structural and was particularly critical of a person there who "could not even" give a break- down on a telephone bill. An interview was scheduled, but Palmer canceled it, "I just changed my Hmind and de- cided not to go at that time." Palmer stated that she thereafter telephoned Plunkett at EDD and told him she did not want the Edwards' housing maintenance job. She said she told him, howev- er, that she "was still looking, so don't forget me." Plun- kett asked her for a resume, and she gave him a rough draft of one during the following week. When she pre- sented it, Plunkett criticized it as being "terrible," She revised it and presented him with a new resume (R. Exh. 8) on the following day, April 13, 1982. She had no other record of dates. 34 Project Manager Stead testified that Structural's telephone log mdi- cates that Dunham on April 19, 1982, telephoned EDD and the NLRB. STRUCTURAL FINISHING 995 Palmer stated that she and Plunkett have become friends. She said she knew Plunkett and Norm Stead to be "very good friends."35 Nelda Salinaz testified that she had been employed by Respondent as a dispatcher for almost 2 years. She re- called that when Dunham arrived on the scene he wanted all four walls around his office to be raised to the ceiling. There was an open space or vent in one wall, next to the dispatcher's office, which remained open for awhile. Rick Ryder enclosed it, but she did not recall when he did so. Salinaz said it was not possible for one who was in the dispatch office to hear conversations taking place in the project manager's office whether the door was open or not. She said she had never been back at the point where "X" is located on Castrop's diagram (R. Exh 6) Salinaz testified that she was surprised to learn that Rick Ryder had been discharged as "he was an outstand- ing worker." She said she was not surprised that Ron Ryder, Goodman, Wachter, and Castrop were let go. She said Castrop had arguments with Dunham and "knew nothing of office procedures." Salinaz denied being trained or supervised by Castrop. Don Keever learned dispatching by watching her and Castrop work— not by training of Castrop. After Ron was let go, exteri- or maintenance was performed by other employees and eventually turned over to a subcontractor named "Tex." Salinaz said she was afraid at one time that she might lose her job to Castrop. She talked to Dunham and was told that Castrop would be let go. Salinaz said she signed a union card in the parking lot around 4 p.m. one day after being encouraged to do so by Castrop and others who had just got off work. She said she worked at night at that time and had just gone on duty. She recalled seeing Hill come out of building 6691 that day. Salinaz recalled hearing Steve Martin speak at an em- ployees' meeting. She thought he was "a lot of help" to employees and gave the pros and cons of unions. She re- called that he said "we could not strike" at a Govern- ment facility, but she said he did not say employees would be fired. Norm Stead testified that he began his employment with Respondents in "Quality Control" for Structural on March 3, 1982, and became project manager about the secOnd week of May 1982, replacing Glenn Dunham. He continued to be the project manager after Consolidated took over housing maintenance at Edwards and held the post at the time of the trial. Stead identified a number of forms used in connection with housing maintenance at Edwards. Respondent's Ex- 35 Palmer was questioned about R Exit 6, the diagram Castrop had drawn of Respondents' premises at Edwards. Palmer was only familiar of conrse with the premises after certain changes had been made followmg CaStrop*s discharge Palmer identified an empty "cavity" area behind an interior wall (marked "X") which she said had been "used for storage somewhat." A 4-foot piece of plywood, "cut to the contour of the quon- set," had been placed across the cavity, she said She recalled that since she came to work at Structural, Stead and another employee had crawled in and pulled the plywood out at a time when the office was being ex- panded. Palmer stated that Norm Stead had asked her to try to locate Alicia Perry, but she had been unable to do so. hibit 10 was identified as a master list of 122 housing units assigned to Structural for inspection and repair by the Government in the months of April and May 1982- 61 in for each month. Respondent's Exhibit 10 lists the units by code number and street address and shows com- pletion dates (i.e., when approved by the Government). The units that were assigned in March are identified with a number that begins with "03," and the units assigned in April start with "04." The "F" designation appearing on the exhibit signifies that the work to be done is on the exterior. Stead explained that the information on which units were assigned each month is contained in Respond- ent's Exhibit 12. Stead testified that he compared the paper work that Ron Ryder had submitted to the Gener- al Counsel as evidence of work he had performed in April 1982 (R. Exhs 2(a) through (yy)) and the official documents maintained by Respondents on the same hous- ing units (R. Exhs. 3(a) through (yy)) and noted that none of former documents bore any signatures, initials of company supervisors. Nor did Ron's documents (R. Exh. 2) bear any government initials, signatures or stamps. The documents taken from Respondents' files (R. Exh. 3), however, do bear Government initials, signatures or stamps. Stead noted that the code numbers for housing units located on Kellie and Chamberlin Streets did gen- erally correspond on the two sets of papers (R. Exhs. 2 and 3). (Testifying on rebuttal, Ron Ryder stated that Clare Amos, who left Structural in February 1982 and was re- placed by Norm Stead, assigned him to perform exterior inspection work and, using a master form different from but "basically the same" as R. Exh. 10 (which was de- rived from R. Exh 12), explained which housing units he was to be working on and how they were to be coded. As Ron recalled it, he had sat down with Amos and placed job order numbers on a number of Form 1219's for use in March and April 1982. He thought he had put job numbers on 61 such forms for March (later stipulated by the parties to be 60). An "Exterior Check List" form for each housing unit was also used. Ron kept the forms in manila folders. He said he would note the street ad- dress on the forms when he visited a unit, although he conceded that he could have easily "transposed" the job nunibers. Ron stated that he might inspect a number of houses at one time and then go for necessary materials for repair (obtaining a work order [an "18791 for mate- rials out of stock) or he might "go ahead and patch the walls" at the time. When he completed a unit, he would sign off and staple the related forms together. The papers on completed houses would be turned in to Willie Hill (and then passed on to Air Force Evaluator Daugherty, he believed, unless the assignment was turned back to Ron for further work). Ron thought he had completed a number of houses in April and had turned the related forms over to Willie Hill or someone, although he said there was no actual requirement that such forms must be handed over before the end of the month. Ron identified R. Exits. 2(o)-(w), (jj), (ii), (e), (f), (s), (h), and (n) as the units he believed he had worked on in April 1982. Ron testified that when discharged he was not asked by Dunham to turn in any forms so he kept them in a folder 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in his possession until he turned the documents over to a Board agent. He said he sorted out the R. Exh 2 forms and put them together for the Board agent, but he insist- ed that he had not filled out any of the papers after being discharged. Ron stated that he was finishing up Kellie Court in "E" area during April and was scheduled to move to Forbes Street, "a terrible area." Steve Porter and other officials of Respondent inspected the Forbes Street units in early April and moved Ron over to Area Stead conceded on cross-examination that Ron had completed a number of units in Mara 1982, but he said he did not know how many Three employees, Rudy Ne- farrate, Dave Myers, and Dan Moya, were assigned to do maintenance after Ron's discharge, he said. Asked if Structural was still far behind when Ron was recalled on June 16, 1982, Stead professed that he did not know. Testifying later on surrebuttal, Stead explained that the assignment dates which he had placed on Respondent Exhibit 3 documents were "not necessarily accurate." He said he would "fudge a little bit" because he would be unaware of when the work had been actually assigned. Stead acknowledged that StructuraPs telephone log for April 19, 1982, showed that Dunham had telephoned EDD (Richard Plunklett's employer) at 2:40 p.m. and the NLRB General Counsel's Regional Office in West Los Angeles at 2:45 p.m. Stead stated that he did not recall any employee meeting being held that day. He said he had no knowledge of any union activity when Ron Ryder was discharged on the following day, April 20. Stead testified that on April 20 Ron Ryder had not submitted any forms for that month. He said Ron had last turned in a form on April 5, and it related to work done in March. On the morning of April 20 Stead asked Ron how many houses he expected to complete that day. Ron's response was, "I don't know." Stead said he decid- ed to discharge Ron later that day when he saw Ron sit- ting on the curb talking to a small kid instead of work- ing." Stead returned to the office, had a final check made out for Ron and then brought him into Dunham's office. Stead said he did not recall just what was said to Ron except that it concerned Ron's "work." He 'stated that it could have been Dunham who told Ron that he was being discharged. According to Stead, Dunham's office at that time— and "from the day" he arrived at the facility—was en- closed by walls that reached the ceiling except for a vent register that was located "up high" on the east side be- tween Dunham's office and the dispatcher's. Stead assert- ed that it would have been impossible for a person' posi- tioned at point "X" in the northwest corner of the stock- room or "cage," as indicated on Castrop's diagram (R. Exh. 6), to have been able to hear anyone speak in a 36 Stead identified a memo he wrote to Martin, Respondent's labor consultant, concerning Ron's discharge The memo (R Exh. l7 states that Stead had seen Ron talking with a child on April 19 and Ron was notified of his discharge by Dunham on the following day, after being called in by Stead The memo is generally supportive of Stead's testimo- ny, however. Stead testified that Ron was rehired to cut off possible backpay Ron later testified that he had seen Dunham and Stead drive by that day. He had "squatted down" to fill his thermos from a squirting sprin- kler and was responding to a question from "a little kid." normal tone in Dunham's office with the door closed. Stead said he had checked this out with a number of "different people." 3 7 At the end of Structural's contract Stead decided that he needed to reduce his forces. He testified he let go at that time Rick Ryder, Bob Wachter, and John Good- man. Stead asserted that he did not tell Willie Hill about his plans. According to Stead, Hill had no input into the decision who would be let go and had no "hit list."" Stead said he had included Rick in the layoff as he was the "least expendible" [sic]. Stead assessed Rick's work differently than did others. Said Stead concerning some of Rick's work: Yes, there were some stairs built that wouldn't work. That is walls that aren't level, plumb. The wiring wasn't done properly. Stead described Rick's exit interview, which took place on April 29, 1983, on direct examination as follows: Q. Please tell us what was said at that time. A. I called Rick in the office and said, "I am sorry, but I am going to have to let you go." Q. What else that you can recall? A. That was about it. I handed him a check. Q. Was there anything said about the union at that time? A. No.39 37 Stead said he had placed a number of employees m the project man- ager's office and then had gone to the crawl space to determine whether he could hear the employees converse. Stead acknowledged On cross-ex- amination that this crawl space had been sealed off with plywood after Ron was discharged And more recently a filing cabinet had been fitted into the area Rick Ryder testified on rebuttal that he had originally put up the walls in building 6691 "exactly" as the then project manager, Bill Mitchell, had directed. Originally the four walls of the manager's office were 8-feet high Dunham later asked the manager's office walls be brought up 18 inches higher to the ceiling "Later on," Rick thought, "Mr Stead had me bring the wall up on the dispatch" When Ron was fired, according to Rick, the top 18 inches of the wall on one side, between the project manager's office and the dispatch office, were still open. The crawl space was blocked off after Ron was fired "because Mr. Stead was aware of the fact that you could hear in his office." 38 Stead stated on cross-examination that he knew in March 1983 that Consolidated, and not Structural, had bid on the new contract. Bids were opened on March 4, but he claimed that he did not know that Consoli- dated had won the contract until late April, 4 days before the contract was to begin. At that point he said he started thinking about who might be let go and who might be kept. He agreed that both he and Hill had lists of employees, but, he said, Hill's was "a different list." 39 Stead seemed anxious not to comment favorably on the quality of Rick's work. Stead denied that Rick was fired Stead stated that he had about 20 employees performing maintenance work in Apnl 1983. After Rick left, the tile work was "subbed out." At the time of the trial all ex- terior work was being performed by a subcontractor named Bob "Tex" Pullen Rick testified on rebuttal that Dave Myers, not he, had installed the office door jamb that Stead had criticized Rick said he did work on the stairs to the stockroom which had been built at Dunham's direction A necessary "slider" had not been incorporated into the stairs, and as a result the stairs were taken out and used for firewood Rick said he per- formed a greater range of tasks than any other Structural employee. He did tile work, carpentry, roofing and worked on coolers and heaters as well He said he did no wiring in building 6691, however Rick repeated on rebuttal that at the end of his exit interview with Stead on April 29, 1983, that Stead had mentioned in response to Rick's question as to why he was being let go, "You know, the union. Oh, just forget it" STRUCTURAL FINISHING 997 Stead indicated that he was careful in discharging per- sons after Ron was terminated. He consulted Labor Con- sultant Martin in this regard, he said, so "we wouldn't get into trouble." He was aware that charges were pend- ing against Respondents when Rick was discharged and said he was sure he did not mention anything about the Union.4° Stephen (Steve) L. Martin is a labor relations consultant in the employ of Sierra Employers Association. His office is located in Bakersfield, California, approximately 2 hours' drive from Respondents' facility at Edwards. Martin said he has been involved in labor relations since 1961 and had been named only in one other unfair labor practice proceeding. The other complaint alleged an 8(a)(5) violation, but the complaint was dismissed by the administrative law judge. Martin indicated that he con- sidered his relation with NLRB to be an important asset and expressed the view that the instant proceeding has caused him considerable harm. Much of Martin's testimony was devoted to the dates that he appeared at employees' meetings apparently in an effort to contradict Castrop's claim that she heard him speak prior to the time she left on vacation on May 6.41 Martin said he became aware on April 21, 1982, while at the General Counsel's Regional Office in West Los An- geles, that Structural's employees had filed a representa- tion petition. Martin telephoned Glenn Dunham that day and told him of the petition. Martin said that this was his first contact with Respondents. Martin wrote a letter to Dunham the next day and met him for the first time on May 3 when Martin visited Respondents' premises. Martin said he spoke only at two general employees' meetings—one on May 10 and another one on May 17. Martin said he was at Respondents' premises on May 3 and met for 4 hours with Dunham and Stead to deter- mine which employees were to be considered supervisors and otherwise to prepare for the R hearing scheduled for May 5. He denied being present at the May 3 employees' Testifying on rebuttal, Rick denied that Wachter left Respondents' employ when he did Rick said Wachter, who, according to Rick, was not a friend and had voted against the Union, had told Rick that he quit Respondents the next week after Rick was let go. John Goodman was let go at the same time as Rick, but, according to Rick, Goodman was not able to stand the stress involved in pursuing charges against Respondents Stead returned to the stand as a surrebudal witness and identified three "final" paychecks (R Exhs. 30, 31, and 32) issued to Rick, Goodman, and Wachter as proof that Wachter, as well as Rick and Goodman, was let go on April 29, 1983. Stead admitted on cross-examination, however, that Structural discontinued operations at Edwards at the end of April 1983 and he had not checked the payroll records of Consolidated which took over on May 1, 1983. Stead also acknowledged that Respondents' personnel records indicate that Wachter failed to indicate why he left (i.e., whether "voluntary," "discharge," or for "lack of work") or when. Wachter did not indicate while testifying when his employment with Respondents had ended 41 Martin said he had reviewed, before testifying, a ledger card (R. Exh, 19) that lists the services that his firm had furnished Structural and when they were rendered He was also shown or referred to letters and other documents during his testimony, including R Exh 18, an April 22 letter he wrote to Structural, R Exh. 20, Structural's breakdown of de- partment heads and personnel Dunham drew up on May 3, R Exh. 21, questions to be used at the May 5 R hearing, R Exh 22, May 6 letter of Martin to Structural; R Exh 23, minutes of May 6 meeting that Martin said he did not attend, R. Exh. 24, notes made of Martin's May 17 elec- tion speech, R Exh 25, Martin's August 11 letter to the Union, and R Exh. 26, Martin's notes made following an interview with Rick Ryder meeting at which Alicia Perry and Lee Hicks were intro- duced (R. Exh 9). He also denied being present at an employees' meeting held on May 6 at which Perry at- tended and took minutes. Martin said he was in his office in Bakersfield on May 4 and 6. On May 5 Martin met with some employees in order to determine whether they should be considered supervi- sors. In the afternoon, he attended the R hearing and en- tered into certain stipulations. Dunham, Stead, and Martin were pleased with the stipulations and drank some beer at a pizza parlor in celebration. Martin "got a little lubricated" and was in no condition to speak to em- ployees that afternoon. However, he drove back to Ba- kersfield and referred to certain credit card receipts as proof of his presence in Bakersfield that day. Martin estimated that he had given between 150 and 200 campaign speeches. He said he uses a "question and answer format." Based on his experience he said he could not have told employees that they could be fired for engagmg in a lawful strike. He said he could have said that they could be "permanently replaced" if they engaged in a strike. Martin agreed he had said employees could not strike on the base. He denied saying that nego- tiations with union official Borbon would be long and hard and that a strike would be called.42 Martin said he perceived "the problem" at Structural as involving "very upset" employees The employees had started work under an "easy going" manager and then Dunham was called in as a "crisis manager." Dunham began firing employees, and his actions were perceived as arbitrary. "The key to the election was the replace- ment of Glenn Dunham with Norm Stead," Martin said. Stead would represent new management, and he wanted to rehire Ron Ryder as "a method of calming the waters," A Board agent told Martin that Ron would be a very credible witness. Possible backpay was not the main factor in bringing back Ron, Martin said. Siead did not want to bring Ron back at first, but he later changed his mind. Martin said he had three meetings with Rick Ryder. On May 10 Stead came to Martin and reported that Rick wanted to "cut a deal" to help get rid of the Union. Martin told Stead that it was "a setup" but nevertheless agreed to talk with Rick. Martin asked Rick how the Company could get in touch with his brother, Ron. Martin followed this up with a "poignant pause," but Rick did not follow through on the "original overture norm."42 Martin told Rick to tell Ron Ryder that the 42 After talking to employees on May 17, Martin said he wrote down as much as he could remember of it (see R Exh. 24) 42 Martin indicated concern over the fact that Dunham had told Ron to "go ahead and move" and then in a week or two Dye him "the ax" Martin said he prepared a memorandum after the May 10 meeting with Rick as he thought it was "hokey " Martin had it typed up and showed it to Stead It is to be noted that the memo indicates that Martin told Rick that he was "one of the best men" and "people look up to" him (R. Exh 26). The memo also indicates that Stead had indicated that Ron Ryder had not been "even trying" before his discharge but that he "can do good work" On rebuttal Rick agreed he had told Stead that he knew how to stop the Union but said nothing about cutting a deal. "I think, I said I know Continued 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company was going to bring Ron back to work. Martin denied saying anything to Rick about a possible promo- tion. The second meeting between Martin and Rick took place on May 17 in the shop area after Martin had ap- peared at the employees' meeting. Martin recalled being "very upset" at the "very quiet response" he got on that date; "something had gone sour," he said. Martin remem- bered talking about motorcycles with Rick but little else. The Union could have been referred to, and Martin ac- knowledged that "corpses" could have been mentioned as it is "one of my phrases." The third conversation Martin had with Rick was the day before the election. Martin recalled that he was un- happy that day as he had been told by a Board agent that it had been alleged that he had made improper threats and promises to an employee. Martin said he was "very angry" when he approached Rick. Martin asked Rick why he was torpedoing him Rick pleaded igno- rance, and Martin then replied: "Forget it, just stay away from me." Martin acknowledged that "it was a very stupid thing" to do. Martin was recalled later to testify on surrebuttal. He said he had no independent recollection of when he had made speeches to employees. He said he had tried to fix the dates of the speecheand had reviewed documents, including the firm's biAing sheet, Respondent's Exhibit 19, in an effort to do so. He stated that the information appearing on Respondent's Exhibit 19 had been "trans- posed almost verbatim" from work reports that firm con- sultants had filled out in handling Respondents' account. Martin identified some notes he had used in making his first speech, which he thought had been delivered on May 10. The second speech, he said, was "free lanced," and notes were made of it later. Martin stated that he could not recall making a speech to employees after being introduced by Dunham. Kenneth Brock, a current employee of Respondents, testified that he started with Structural under Mitchell in February 1982. He became ill shortly thereafter and was away for 3 weeks. When he returned to work, Dunham was in charge. Brock believed that the walls of Dun- ham's office at that time were paneled halfway up, and there was a hole for air conditioning on one wall going into the dispatcher's office. Brock later indicated that the walls in Dunham's office were "always done," and there was a door there that would close. Lewis D. Heide said he had been an employee of Re- spondents since February 1, 1982. It was his recollection that the three walls in the manager's office went "com- pletely to the ceiling" in February 1982 and that there was "a hole for a vent" on the east wall at the top. what started the union" Rick said he did not recall being asked for Ron's address or telephone number After Martin testified, Respondents recalled Stead to the stand to testi- fy (concerning par. 9(a) of the complaint) that on May 10, 1982, he nei- ther threatened an employee with adverse consequences for supporting the Union nor promised a promotion to an employee for doing so Stead stated that Rick came up to him that day and told him "he knew how to stop the union" Stead said he got hold of Martin, and the two of them then met with Rick Dave Myers began working for Respondents in Febru- ary 1982. Myers recalled that at one time Dunham's office was without a door. Also, the east wall and the south wall of Dunham's office extended only part way (8 feet high) to the ceiling. Myers had raised both walls 2 more feet to the ceiling at Dunham's request and later in- stalled the door for Stead. Myers was familiar with the cage area or the crawl space from which Castrop claimed to have overheard the firing of Ron Ryder. Myers said that a person stand- ing at that place could overhear conversations carried on in a normal tone of voice in Dunham's office "if the con- ditions were right." Such conversation he thought could be overheard whether all the walls in the office had been extended to the ceiling or not. Ron Ryder was "conscientious" about his work in Myers' view, but he thought Ron experienced frustration because there was lack of materials and cooperation of management. When Myers was assigned to help Ryder, Ryder became bitter because he thought he was doing the best he could. Myers and Ryder did not get along well in the spring of 1982, but they have since become friends. Myers recalled that Dunham was the project manager who had introduced Martin at a general employees' meeting, John Wesley Stone has been employed by Respondents since early 1982. He recalled that Dunham was at the meeting at which Martin was introduced and spoke. Stone thought that Castrop was also present at the meet- ing. In April 1982, Stone was an exterior touch-up painter. It was his opinion that Ron Ryder tried to do a good job, but was sometimes idle because he lacked materials. The week that Ron was fired Stone was "following" Ryder, i.e., Stone would paint over areas that Ron had spackled. In Stone's opinion, Ron was doing a good job of spackling. Don Keever was hired by Glenn Dunham on March 19, 1982, to straighten out Structural's dispatch office where, Dunham related to Keever, "there was a problem." Keever had worked previously as a dispatcher for the Washington Post and had served for 26 years in the Air Force. Keever denied that Castrop had trained him for 4 days or even for 1 day. He recalled she told him he should learn the job by jumping in and answering the phone. On cross-examination, Keever acknowledged, however, that Castrop did show him how to fill out nec- essary forms and get the various types of maintenance work performed. Keever agreed that Castrop had shown him how to do the payroll. Keever said he currently handles the supply room for Consolidated and oversees the dispatching. After careful review of the record, I conclude: 1. Richard (Rick) Ryder was discharged in violation of Section 8(a)(1) and (3) of the Act. 2. Ron Ryder was not unlawfully discharged. 3. Tammy L. Castrop was discharged in violation of Section 8(a)(1) and (3) of the Act. 4. Respondents, acting through Norm Stead: STRUCTURAL FINISHING 999 (a) Did not unlawfully interrogate Ron Ryder on or about April 20, 1982. (b) Did inform Rick Ryder in violation of Section 8(a)(1) of the Act, that his brother Ron would never be rehired because the latter had engaged in concerted ac- tivities. (c) Did question, in violation of Section 8(a)(1) of the Act, Robert Wachter about his union activities and the union sympathies of other employees on or about May 19, 1982. (d) Informed employees that they would not get raises because of the Union and thereby violated Section 8(a)(1) of the Act. (e) On April 29, 1983, informed Rick Ryder in viola- tion of Section 8(a)(1) of the Act that he was being dis- charged for his union activities and sympathies. 5. Respondents, acting through Glenn Dunham: (a) Did not unlawfully interrogate Ron Ryder or any other employee regarding union activities of his or her fellow employees. (b) Did create an impression, in violation of Section 8(a)(1) of the Act, among their employees, in violation of Section 8(a)(1) of the Act, that their union activities were under surveillance. (c) Did not unlawfully threaten Rick Ryder or any other employee on or about April 28, 1982, with adverse consequences if employees should continue to support the Union. (d) Did not unlawfully threaten to fire Rick Ryder or any other employee for making concerted complaints to Respondents' owner, Steve Porter. (e) Did not unlawfully give employees impression on or about April 19, 1982, that their union activities were under surveillance. (t) Did not unlawfully inform employees on April 19, 1982, that it would be futile for them to support the Union. (g) Did not unlawfully solicit grievances of employees on or about April 19, 1982. 6. Respondents, acting through Stephen Martin: (a) Did threaten Rick Ryder, in violation of Section 8(a)(1) of the Act, on or about May 10, 1982, with ad- verse consequences, including discharge, if employees supported the Union. (b) Did impliedly promise, in violation of Section 8(a)(1) of the Act, on May 10, 1982, Rick Ryder a pro- motion for ceasing his support of the Union. (c) Did not unlawfully interrogate Rick Ryder con- cerning his union sympathies on or about May 17, 1982. (d) Did inform employees, in violation of Section 8(a)(1), that it would be futile for them to select the Union as their bargaining representative. (e) Did inform employees in late April or early May 1982 that they might be fired if they supported the Union, but this allegation is being dismissed as being cu- mulative. 7. Respondents, acting through Willie Hill, did inform Rick Ryder, in violation of Section 8(a)(1) of the Act, that it would be difficult to continue to employ him be- cause of his union affiliation. Rick Ryder's discharge. I reject the notion that Rick Ryder was laid off as part of a reduction in force. There is much credible evidence indicating that Rick was dis- missed because of protected concerted activity. His "layoff" was therefore discriminatory and in violation of Section 8(a)(1) and (3) as alleged. Rick was regarded by Respondents as one of the Union's strongest supporters from the beginning—even though Castrop advised Dunham that he was not the Union's instigator as Dunham believed. Rick's telephone call to Porter in March 1982 to complain about Dun- ham's treatment of fellow employees made it plain to Porter and Dunham that Rick could be expected to speak up on behalf of employees. Labor Consultant Martin sought Rick out as a person who could speak for and be respected by Structural's employees. Willie 11111, who claimed to know little of union activities and, in spite of his supervisory position, even less about impend- ing personnel actions, indicated he understood that Rick Ryder and John Goodman were the most active support- ers of the Union. No doubt Respondents believed Rick continued to be a union supporter in April 1983. Rick testified credibly that during the last week of April 1983 Willie Hill told him that a hit list was being drawn up and suggested that Rick might not survive because of Rick's "union affiliation." Early in the day of April 29, 1983, Hill indicated Rick had been saved, but he learned otherwise later the same day from Stead and Porter. Rick also testified credibly that Stead told him explic- itly at the time why he was let go: "You know, the Union." Perhaps Stead told Rick, a fellow employee with whom he had worked for more than a year, the reason for his dismissal because he hoped Rick would understand there was no other reason. In any event, Stead apparently had second thoughts about revealing the reason for the dismissal and added, "Just forget it."44 It can hardly be disputed, in light of the statements made by Labor Consultant Martin and Respondents' offi- cials, that Respondents were opposed to the Union be- coming the employees' bargaining representative. Clearly, Respondents never explained why it was nec- essary to reduce its work force at the end of April 1983, especially in the case of Rick Ryder, a versatile employ- ee who unquestionably performed quality work for Structural. See NLRB P. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). Stead's claim that Rick was the most dispensable employee and Porter's suggestion that Rick may have been the "least productive" were not credible.45 Stead's attempt to disparage Rick's work was 44 Willie Hill impressed me as a witness who was reluctant to give tes- timony embarrassing to himself or Respondents. I specifically reject his testimony that he knew nothing of a hit list in April 1983 and did not tell Rick that it would be difficult to keep Rick on board because of Rick's union activity. Norm Stead was an uncertain witness who did not recall significant matters. I specifically reject his denial that he did not refer to the Union when Rick was let go. 45 Porter and Stead each stated that he had made the decision to let Rick go. 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unimpressive. Stead himself told Rick in May 1982, Rick credibly testified, that he liked Rick's work. Nelda Sa- linaz, one of Respondents' witnesses, testified that "a lot of people" regarded Rick as "an outstanding worker." Labor Consultant Martin admitted, reluctantly, telling Rick that he was considered "one of [the] best men" (R. Exh 26). I am persuaded that when Respondents changed over its operations at Edwards from Structural to Consolidat- ed at the end of April 1983 it decided to "clean house" (to use a term of the General Counsel's attorney) and rid themselves of at least one employee who was perceived as a strong union supporter, Rick Ryder.46 Respondents argue that Rick could not have been dis- charged for union activity. They assert that his discharge occurred almost 1 year after the election by which time Respondents, after being exposed to other investigations by the General Counsel, had "certainly learned their lesson." Rick's testimony that union activity was men- tioned "in front of Norm Stead's supervisor," was, ac- cording to Respondents, "preposterous and unbeliev- able." And, finally, Respondents argue, Willie Hill would not have volunteered a statement to Rick shortly before his layoff that he was in trouble because of his union ac- tivity. I reject such contentions of Respondents. I believe, and find, that Respondents were still concerned about the Union in April 1983 (when proceedings were still pending), that Willie Hill, as Rick testified, had indicated Rick's job was in jeopardy because of Rick's union affili- ation. Hill was not, I find, the uninformed and silent su- pervisor that he and Respondents have claimed. It may have been "absurd," as Respondents argued at the hear- ing, for Stead to have told Rick that he was being dis- charged for union activity, but I find he did make such a statement. It is entirely possible, of course, for Porter not to have heard the statement as he was on the telephone during a part of Rick's exit interview. Ron Ryder's discharge. The record does not persuade me that Ron Ryder was discharged on April 20, 1982, because of union or any other protected concerted activ- ity. Respondents concede corporate knowledge (through Willie Hill) of union activity among employees at the time of Ron Ryder's discharge on April 20, as it must, but they argue that such was not enough to make a prima facie case. Even if Supervisor Willie Hill did not communicate his knowledge of the card signing on April 14 until shortly before the trial, as Respondents claim, I am persuaded that both, Dunham and Stead were aware that there was union activity among employees and spe- cifically on the part of Ron Ryder on April 20, the day of his discharge. Dunham learned from Dave Myers of the card signing the day or so after it occurred, and I am 46 The other employee let go on April 29, 1983, John Goodman, was also regarded as a union supporter, but the General Counsel has not chal- lenged the legality of his departure from Structural. As for Wachter, who had signed a card but was known to have opposed the union, the credible evidence mchcates that he voluntarily quit Respondents' employment after April 1983. Willie Hill recalled that there were two persons that were let go when Rick left—Rick and Goodman. This corroborated Rick's recollection unable to believe that Stead, Dunham's assistant at the time, was not immediately informed of that fact. What- ever the source or sources of his information, Dunham made it clear to employees at an employees' meeting on or about Monday, April 19, 1982, that he knew employ- ees had signed union cards. Stead claimed to have had no recollection of an employee meeting that day, but I find his memory of events was not particularly reliable. I find Dunham made the statement on that day as several credible witnesses stated, including Ron Ryder, Thomas Faircloth, Margaret Goodale Henderson, Robert Wachter (who conceded it could have been later in the week) and Rick Ryder. 47 Dunham made the statement with reference to the card signing no later than April 19, I believe, because Ron testified credibly that he was present when the statement was made, and he was dis- charged on the following day, April 20. Rick Ryder also recalled credibly that his brother Ron stood next to him that day. Structural's telephone log indicates that Dunham called the NLRB that day, and it is unlikely that Dunham would have delayed telling employees that he knew of their union activity once he had learned of it." If Stead did not learn of the card signing from Dunham beforehand, he knew for a fact on the morning of April 20 that Ron Ryder was a union supporter. Ac- cording to the credible testimony of Ron, Stead com- mented that morning to Ron, after asking Ron how many houses he would get out that day: "I was just wondering about the union." Ron replied that he had signed a union card, adding that he thought it was "a damn good deal."46 Stead surely shared that information with Dunham by the time Ron was discharged on the following afternoon. In spite of Respondents' knowledge of Ron's union ac- tivity, however, I remain unpersuaded that Ron was dis- charged on April 20 because of it. The issue is a close one, but I believe, and find, Ron was discharged for what was perceived as poor work performance." Structural was unquestionably behind in its exterior maintenance work on April 20, 1982, at the time of Ron's discharge. The testimony of Air Force Evaluator Daugherty and the minutes of the "Contract Progress Meeting" held on April 22, 1982 (R. Exh. 7) corroborate Respondents' contention in this regard. Ron conceded that Stead made inquiry on the morning of April 20 about the number of houses he could complete that day. 47 The minutes taken by Castrop, R. Exh 5, indicate that the meeting, or one like it, took place on a later day in the week, on April 23. Re- spondents state m their brief that Dunham "probably" made his statement about the Union to employees on April 23 after he had communicated with labor consultants and was "aware of what he should or should not do in a union campaign" 48 Richard Plunkett of a state unemployment office (EDD) supplied Dunham with the telephone number for the NLRB that day. 46 Respondents acknowledge that Ron testified that Stead made a "mild inquiry" concerning Ron's union activity, but they point to Stead's denial as being more credible. I credit Ron over Stead. Ron's brother, Rick, testified that Stead stated on May 10, 1982, after, apologizing for discharging Ron, that Ron would never be rehired because Ron had filed charges through the Union against Stead. Such testimony, although credible, does not establish that Ron's discharge some 20 days earher occurred because of union activity Ron was rehired the following month and has been kept on Respondents' payroll in spite of Stead's admitted chscnminatory animus. STRUCTURAL FINISHING 1001 Stead's testimony concerning the later events that led up to Ron's discharge that day was credible, and Ron's ver- sion, although slightly different, did not seriously contra- dict Stead. Stead testified that while driving around Ed- wards that afternoon he observed Ron talking to "a small kid." Stead concluded that Ron "was just playing," and this made him very angry as the Company was behind in its exterior maintenance work at the time. Ac- cordingly, he returned to Respondents' facility and, after having Ron's final check prepared, called Ron in to Dunham's office and discharged him Stead testified that the subject of the Union did not come up during the exit interview, and Ron did not claim that it did. 51 Ron became quite upset on being in- formed of his discharge, and the record suggests reasons for it, even though I am unable to find there was one that offends the Act. Structural's officials had been satisfied with Ron's per- formance, certainly up until shortly prior to his dis- charge. Dunham had just previously reassured Ron that his work was satisfactory and encouraged him to "go ahead and move" his family to another house closer to Edwards—a fact that admittedly troubled Respondents' labor consultant Steve Martin. 52 (Dunham's remark was made sometime in March, however, possibly before Structural had become delinquent in its renovating work or known to be.) Ron could well have felt that he was being blamed for problems that he should not have had to bear alone, He testified that certain inspections he had reported on in April had been turned back to him by Willie Hill. Hill did not speak to this issue and, in fact, did not criticize Ron's work while testifying for Re- spondent. Further, it is entirely possible, as the General Counsel suggests, that Ron was "simply overwhelmed by the work" assigned to him in area E and Kellie Court where the housing units were in "terrible" shape. Undoubtedly much was being asked of Ron for Respondents found it necessary to replace Ron with three workers after he was terminated. It is also to be noted that in March 1982, when 60 or so units were turned over to the Air Force, that Ron did not begin to sign off on any forms until March 19. But, justified or not by the facts, I am per- suaded that on April 20, 1982, Stead perceived Ron as not perfdrming as he should and discharged him for that reason. I reject Respondents' claim that the Respondent's Ex- hibit 2 documents that Ron turned over to the General Counsel during the investigation were "fraudulent." It is to be noted that Respondents concede that report forms were "handed out in bulk," and Stead testified that arbi- trary assignment dates were placed on forms on the dates of completion. Stead himself acknowledged that Ron could have received Respondent's Exhibit 2 forms "right at the beginning"—i.e., in March 1982. The fact that job 51 Castrop asserted that she heard the Union mentioned, but I reject her testimony in this regard If the subject of the Union came up, I am satisfied that Ron would have recalled it. 52 Tammy Castrop testified credibly that she had reminded Dunham on or 'about April 22 that he had previously told Ron in March at the time of Ron's move that "he was doing a fine job" after Dunham had said he was sorry about Ron's termination." order and street numbers appear in Respondent's Exhibit 2 documents in Ron's handwriting is thus of no moment. The forms for the 10 (11 according to the General Coun- sel's attorney) reportedly completed houses for April ad- mittedly bear the correct job order numbers. That six had incorrect job order numbers (R. Exhs. 2(e)-(h) and (w)) hardly proves fabrication. Such miscoding could well have occurred from carelessness. Ron "could have transposed them wrong" as he testified. And as the Gen- eral Counsel's attorney points out, Respondents never at- tacked the validity of the purchasing order designations that appear on Ron's documents (R. Exhs. 2(e)-(h)). Ron pointed out that there were occasions when he was told to leave the "form open" and not to list work orders. That there may have been an inadequate explanation for the correct entries on the Respondent's Exhibit 2 docu- ments does not mean fraud occurred. As the General Counsel's brief points out, Ron's Respondent's Exhibit 2 forms frankly show "no indication that any work had been done" on 17 of the houses. The supposed "most damning testimony" of Ron that Respondents refer to in- dicates to me that he was uncertain what help he had been given on exterior maintenance and when. Tammy Castrop's discharge. The record indicates, as Respondents point out, that there was some "ongoing conflict" between Tammy Castrop and Project Manager Glenn Dunham prior to the onset of any union activity. Castrop acknowledged that Dunham had told her soon after he arrived on the scene that he was thinking of em- ploying an older and more experienced woman. Never- theless, the record does not suggest that Dunham was ever so unhappy with Castrop that he would terminate her prior to April 22, the day on which he and Castrop discussed Ron's discharge. On the contrary, up until that time at least, Dunham had assured Castrop that she would continue to have a job with Structural. I am satisfied Respondents' officials had become aware of the active role Castrop was playing in the Union's or- ganizing campaign when the decision was made to dis- charge her. If Dunham did not learn of Castrop's union activity from Dave Myers or Willie Hil1 53 previously, he became aware of it a couple of days after Ron Ryder's discharge. On that day Castrop advised Dunham in his office, before walking out, that it was not Rick who had instigated the Union as he had thought Dunham surely got the message that Castrop herself was involved in the union organizing campaign and that she knew which em- ployees were. Within an hour or two Dunham spoke to her about employing "another woman" to check over the books and make certain that "all of the paperwork" was being properly handled. Dunham assured Castrop, 53 As has been noted, I do not accept Respondents' hypothesis that Willie Hill was indifferent to the union activity that was occurring at Re- spondents' facility beginning on April 14 and remained mute on the sub- ject with his superiors Hill's experience in the military points toward the likelihood of his communicating such information to superiors rather than not I specifically credit Castrop's testimony that Hill told her on or about April 23, the day of a union meeting, that he thought a union was "a good idea" and that he wanted his son to vote for it. The General Coun- sel cites the "small plant" doctrme as basis of ufferring knowledge of union activity as to Castrop, but no presumption need be invoked. 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD however, that there was no plan to discharge her. The next day Dunham indicated to Castrop that another woman would start on the following Monday. 54 An- other woman, Alicia Perry, did start work a few days later, on or about April 29. On Perry's first day of work Castrop treated Perry, who was later introduced to em- ployees as a supervisor, to lunch and explained that it was she who had called in the Union. Castrop also dis- closed who else had acted as union representatives at Re- spondents' facility. Respondent's conflicting explanations and shifting posi- tions with respect to Castrop's discharge persuade me to conclude that her discharge was discriminatory—i.e., that she was terminated because of her union activity. Respondents' president, Stephen Porter, testified that he made the decision to discharge Castrop because she did not have the qualifications of "a real bookkeeper and a good typist." (Alicia Perry, who took over many of Castrop's duties could not type at all, however.) Porter said nothing directly to Castrop about her work, indicat- ing his style was to communicate to employees through management personnel. Said Porter: "I mention it to the manager and I let it go down from there." Testifying at a later time (on cross-examination), Project Manager Stead stated that he fired Castrop be- cause "she was incompetent" and "inexperienced." It was his understanding, he said, that it was Glenn Dunham, the previous manager, who made such an ap- praisal of Castrop's work and made the decision to dis- charge her. Under questioning on direct, Stead indicated he had not been aware of the president's input into the decision to discharge Castrop, supporting, or at least at- tempting to explain, Porter's prior testimony. Stead testi- fied, in fact, that, although he was the one who advised Castrop of her dismissal, he did not have first-hand knowledge of the reasons for her discharge. Stead ac- knowledged that approximately 6 months after Castrop's discharge, in November 1982, he had appeared in a state proceeding in opposition to Castrop's application for un- employment insurance and asserted that she had been discharged for revealing confidential information (see G.C. Exh. 11; also R. Exh. 16). The state hearing officer was not impressed by such assertion, and neither am I. I believe, and find, Respondents' officials Porter, Dunham and Stead were all aware of Castrop's union activity at the time of her discharge, that such was the reason for her discharge and that each was aware of the latter fact. I credit Castrop's description of her exit interview with Stead on May 17. While Stead made reference to some "messed up" books, Stead was very apologetic 54 Such woman was probably Sunny Palmer, who had talked to Dunham about a bookkeeper's job after speaking with Richard Plunkett of EDD, the state employment office Palmer decided she did not want to take a job with Respondents at Edwards at that time but did so about a year later. Structural' s telephone log indicates that Dunham spoke to EDD (Plun- kett's office) as well as the NLRB's Regional Office on April 19—after union activity had begun at Respondents' Edwards facility. It is not at all clear from the testimony, of Plunkett and Palmer when they first talked about the bookkeeper's job with Structural or when Palmer spoke with Dunham. Palmer could well have decided against taking a job with Structural in April 1982 at that time because of the union campaign and the "unhappy" situation Dunbar described to her. over the fact that he had to terminate her. Quoting Cas- trop: So he said, "Tammy, I'm going to have to let you go." And [Stead] said, "God, I really hate to do this," he said. The only one it's ever bothered to let go is you." And I said, "Oh." And he said it's too bad I didn't come in on Friday. He would have took me out and got me drunk. And I said, "No, no thanks." And he kept saying, "Say something to make me feel better. I feel really bad." And I said, "No," and he said he'd take me out to breakfast, and I said, "No, thank you." I have no doubt that Stead on that date was fully advised as to the real reason for Castrop's dis- charge—her union activity.55 Perhaps Castrop had an exaggerated idea of how well she performed at Structural. She may have overstated her initial responsibilities and the amount of training she gave to Nelda Salinaz and Donald Keever. My impres- sion is, however, that Salinaz and Keever, as well as Stead, were eager to disparage Castrop's performance, at least on direct examination, and understated her efforts and authority. 5 6 I generally credit Castrop's testimony, even though she was understandably not certain as to the dates when Dunham told employees that he was aware of union card signing and when he introduced Steve Martin to them. She was undoubtedly in error in stating initially that Stead was at Respondents' facility at Edwards on April 14 when the card signing took place. Further, as previ- ously indicated, I do not believe the word "union" was mentioned during Ron Ryder's exit interview on April 20, 1982. She had undoubtedly positioned herself in the crawl space behind the project manager's office at the time, but I believe, and find, that she Was unable to un- derstand clearly what was said. Norm Stead's conduct. I find Norm Stead asked Ron Ryder how he "felt about" the Union on April 20, 1982, and that in response Ron indicated that he thought it was "a damn good deal." Stead shook his head and comment- ed that he Was just wondering. Ron's testimony, which provides the basis of the above finding, is persuasive that Stead was aware of Ron's union activity at least as of that date, but such testimony does not suggest that Stead's questioning was coercive or in violation of the Act. On the contrary, the words used by Stead and the circumstances as related by Ron indicate that Stead's statements were in no way coercive. See Rossmore 55 The testimony of Glenn Dunham, who is still an employee of Re- spondents, would have been very relevant in the proceeding. His failure to appear under the circumstances suggests that it would not have been helpful to Respondents 56 Salinas, who otherwise impressed me as a credible witness, testified on other subjects. She was obviously not a friend of Castrop. Salmaz had heard, prior to Castrop's termination, that Castrop had told another em- ployee that Salinas was being terminated. Salinaz then confronted Dunham, who confirmed that she would be leaving. Salmaz was not dis- charged, however, and was still in the employ of Respondents at the time of the trial. STRUCTURAL FINISHING 1003 House, 269 NLRB 1176 (1984). Paragraph 7(a) of the complaint was not sustained and is being dismissed. Rick Ryder's credible testimony to the effect that Norm Stead on May 10, 1982, told Rick that Ron would never be rehired because Ron "had put charges against [Stead] through the union," sustained paragraph 7(b) and established violation of Section 8(a)(1). Such statement carried a clear message that employees who file charges—protected concerted activity—can lose their jobs and was coercive. See Eastex, Inc v. NLRB, 437 U.S. 556 (1978) and NLRB v. Price's Pic-Pac Supermar- kets, 707 F.2d 236 (1983). And also see Bros. Three Cabi- nets, 248 NLRB 828 (1980), as to nonsupervisory em- ployee Houk (other, unrelated issue overruled in Parker- Robb Chevrolet, 262 NLRB 402 (1982)). Robert Wachter, who impressed me as an objective witness, told of Stead summoning him into the office about a week before the election to learn "how [his] plumbers were going to go,"—i.e., whether they would vote for or against the Union. Wachter said his response was that as far as he knew they were all going to vote "no." Questioning of supervisors by an employer con- cerning employees' membership, desires, and activities is undoubtedly lawful. See, for example, St. Anthony's Center, 227 NLRB 1777 (1977). The record indicates there was some basis for Stead considering Wachter to be a supervisor, although it appears he was uncertain which way to classify Wachter. In any event, Wachter's nonsupervisory status has been determined, and undoubt- edly an employer acts at its peril, with respect to an em- ployee's status, in asking questions about union activities of fellow employees. Even so, under the Board's Ross- more House decision, supra, it is evident that Stead's questioning was not unlawful. Wachter was not an open and active union supporter (although he signed a union card), but the Board's decision in Rossmore is neverthe- less applicable. Stead's statements to Wachter were free of threats and promises, and I fmd that under all the cir- cumstances they did not interefere with, restrain, or coerce Wachter or any other employee of Respondents. Paragraph 7(c) of the complaint is being dismissed. Paragraph 7(d) was sustained. Margaret Goodale Hen- derson testified credibly that Norm Stead stated at an employees' meeting shortly after the election that there would be no raises because of the Union. Further, Re- spondents do not deny that the statement was made as alleged, and unquestionably the statement violated the Act. The election was over, but objections had not been resolved. In any event, it was unlawful for Stead to blame the Union for withholding wage increases. See Gulf States Mfrs. v. NLRB, 598 F.2d 896 (5th Cir. 1979), and Bolsa Drainage, 242 NLRB 728 (1979), enfd. mem 639 F.2d 789 (9th Cir. 1981). Rick Ryder credibly testified that on April 29, 1983, Norm Stead told him why he was being let go—i.e., "You know the union." Thinking better of the disclo- sure, Stead sought to withdraw the explanation by telling Ryder to "forget it." Paragraph 11 of the complaint was sustained. Stead's statement was coercive and a violation of Section 8(a)(1). See Bolsa Drainage, supra. Glenn Dunham's conduct. The General Counsel's attor- ney stated at the end of the trial that Ron Ryder was the dffittloyee who was allegedly interrogated unlawfully by Glenn Dunham on or about April 20, 1982. Ron's own testimony, however, indicates no unlawful interrogation on that date by Dunham. Dunham told Ron that day, ac- cording to Ron, that Dunham was letting him go and hated to do so. Such testimony does not establish unlaw- ful interrogation under Rossmore House, supra, and para- graph 8(a) is therefore being dismissed Paragraph 8(b) of the complaint, which alleges Glenn Dunham created an impression of surveillance of union activities among employees, was sustained by the credi- ble testimony of Tammy Castrop. Castrop testified that Dunham indicated to her on April 22 that he thought he had "gotten all of the facts" on who was engaging in union activity. The fact that his "facts" were not correct as to Rick Ryder, i.e., he was not the one who "instigat- ed the union" as Castrop told him—did not alter the fact that he conveyed to Castrop a sense of surveillance among employees with respect to their union activities. The General Counsel's attorney indicated that she relied on the testimony of Rick Ryder as proof that Dunham impliedly threatened adverse consequences for supporting the Union, as alleged in paragraph 8(c), but Rick's testimony does not sustain the charge. The allega- tion is being dismissed. The General Counsel's attorney identified Rick Ryder as the employee referred to in paragraph 8(d). Rick testi- fied that Dunham called him into the office in March 1982 and reprimanded him for calling Structural's presi- dent to complain about Dunham's treatment of employ- ees. Margaret Goodale Henderson recalled that Dunham was "quite aggravated" at an employees' meeting held in March or April and threatened immediate termination of the person who made "the next telephone call that went to San Mateo." Such testimony of Rick Ryder and Hen- derson, while credible, does not establish that Dunham threatened to fire an employee for making concerted com- plaints to Steve Porter. Under the Board's recent deci- sion in Meyers Industries, 268 NLRB 493 (1984), concert- ed activity must "be engaged in with or on the authority of other employees," and Rick's telephone call did not meet that test. Dunham could well have been under- standably upset that an employee would go over his head and report that he was "paranoid" as Rick had done. Dunham could properly have asked that employ- ees deal directly with their supervisors and not attempt to circumvent them. Paragraph 8(d) is being dismissed. The record persuades me that at an employees' meet- ing held during the week of April 19, 1982, Project Man- ager Dunham told employees: (a) he was aware—and un- happy as a result—that union cards had been signed by employees; (b) that their union activity would do them no good; (c) that he was not able to discuss the union; and (d) his office door was open for discussion of any problem. The testimony of Rick Ryder, Ron Ryder, Cas- trop, Wachter, Faircloth, Henderson, and Supervisor Hill support (a) above; the testimony of Ron Ryder, Rick Ryder, and Faircloth supports (b) above; the testi- mony of Castrop, Henderson, Faircloth, Wachter, and Supervisor Hill supports (c) above; and the testimony of Rick Ryder, Wachter, Henderson, and Supervisor Hill 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supports (d) above. Such testimony, however, in my view does not sustain any of the allegations contained in the subparagraph of paragraph 8(e) of the complaint. (Par. 8(e)(3) was withdrawn by the General Counsel's at- torney during the trial.) An impression of surveillance of union activity may be created by a supervisor telling em- ployees that he knows they signed authorization cards (see, for example, NLRB v. Price's Pic-Pac Supermarkets, supra) but the evidence adduced on this point (par. 8(e)(1)) does not suggest to me that Dunham conveyed a sense of surveillance. His comment that he could not dis- cuss the Union indicates otherwise. The comment also eliminated the possibility that a sense of futility was con- veyed to the employees (par. 8(a)(2)). Dunham's remark about his door being open appears to have been a half- hearted one as he promptly had one installed so the office could be closed off. The open-door statement, in view of its timing, was surely related to union activity, but I am unable to fmd it contained a promise to remedy grievances. See NLRB v. Arrow Molded Plastics, 653 F.2d 280 (6th Cir. 1981); also Idaho Falls Consolidated Hospi- tals v. NLRB, 731 F.2d 1384 (9th Cir. 1984). Paragraph 8(e) will be dismissed. Stephen Martin's conduct. I generally credit Rick Ryder's testimony over that of Steve Martin with respect to conversations that took place between them on May 10 and 17, 1982. Martin's memory, in spite of his access to a number of documents prior to trial, impressed me as being faulty. The explanation he gave on surrebuttal con- cerning the preparation of Respondent's Exh. 19, which I originally took to be a document containing original entries as the recorded events occurred, hardly provides assurance that he had correctly identified the dates on which he spoke to employees. I am satisfied that, con- trary to Martin's testimony, Project Manager Dunham introduced Martin at an employees' meeting on some date prior to May 10, around May 5, and that Martin then proceeded to address the employees. The record in- dicates that Dunham had left Edwards by May 10, and I am satisfied that Tammy Castrop attended an employees' meeting at which Martin spoke before she left on vaca- tion on May 6. As the General Counsel's attorney stig- gests, Martin's memory appeared to be somewhat selec- tive. He indicated he could not recall speaking favorably of Rick Ryder's work, but the record is persuasive that he did so during the organizing campaign. No doubt Martin harbored animus toward Rick Ryder as he indi- cated he blamed Rick for getting Martin "involved in a little bit of scandal that involved unfair labor practices." I specifically credit Rick Ryder's testimony that Martin told him during conversations held during the month of May 1982 that Rick was needed on "his [cdm- pany's] side" against the Union; that there were "corpses . . . waiting to be buried," that there would probably be a strike if the Union got in, in which case "we [Respond- ents] can and will fire everyone" (which message Martin requested Rick to convey to other employees) and "people would fall by the wayside." Also, I credit Rick's testimony that Martin told him during a May 1982 con- versation that Rick was in line for "a very prestigious position" with Structural and that it "would be benefi- cial" to Rick if he would assist the company in its cam- paign against the Union. Such statements of Martin con- tained implied threats for supporting the Union and an implied promise of a promotion to Rick if he would-sup- port the Company instead of the Union. See NLRB v. Price's Pic-Pac Supermarkets, supra. The statements sus- tained paragraph 9(a)(1) and paragraph 9(a)(2) and con- stituted violations of Section 8(a)(1) of the Act. The record does not indicate Martin unlawfully interrogated Rick Ryder under the standards established by Rossmore House, supra, so the charge contained in paragraph 9(b)(1) is being dismissed. Margaret Goodale Henderson testified that Steve Martin had indicated during an employees' meeting that if the Union came in its representative, Roman Borbon, would ask for outrageous things that the company would not grant. Negotiations "would be kept . . . up for a year" and then "we would have to start over again" Henderson impressed me as a person who had a good memory and was credible. Her testimony persuades me that Martin conveyed the message that it would be futile for Structural employees to choose the Union as their bargaining agent. Henderson's testimony established vio- lation of Section 8(a)(1) and sustained paragraph 9(b)(2) of the complaint. See Daniel Construction Co., 266 NLRB 1091 (1983); also Wall Colmonoy Corp., 173 NLRB 40 (1968), an R proceeding involving similar preelection re- marks. The allegations of paragraph 9(c) are similar to those contained in paragraph 9(a). Paragraph 9(c) was sus- tained by the testimony of Tammy Castrop and Rick Ryder as the General Counsel's attorney points out in her brief (p. 23, citing Tr. 346 and 172-173), but the charge is being dismissed as cumulative. Willie Hill's conduct. Rick Ryder's persuasive testimo- ny that Supervisor Hill told him in late April 1983 that the Company had a "hit list" of people "to get rid of" and that he was "having a hard time" keeping Rick be- cause of Rick's "union affiliation" sustained paragraph 10 of the complaint and established violation of Section 8(a)(1) of the Act. See Home Lumber & Supply Co., 237 NLRB 322 (1978). REMEDY Having found that Respondents engaged in unfair labor practices in violation of the Act, I find it necessary to order Respondents to cease and desist therefrom and take specific action designed to effectuate the policies of the Act. In view of the fact that Respondents unlawfully terminated Tammy L. Castrop and Richard (Rick) Ryder, I shall recommend that Respondents be ordered to offer each of them immediate and full reinstatement to their former positions or, if such are not available, ones that are substantially equivalent thereto, without preju- dice to their seniority and other rights and privileges. They are to be made whole for any loss of earnings suf- fered by reason of the discrimination. All backpay is to be computed in the manner set forth in F. W Woolworth Co., 90 NLRB 289 (1950); Isis Plumbing Co„ 138 NLRB 716 (1962); and Flonda Steel Co., 231 NLRB 651 (1977). STRUCTURAL FINISHING 1005 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondents, Structural Finishing, Inc. and Con- solidated Marketing Network, Inc., Edwards, California, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in, or support of, a union by discharging employees or by otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Informing employees that employees will not be re- hired because they engaged in concerted activities; inter- rogating employees concerning their union activities and sympathies; informing employees that they will not get raises because of a union; informing employees that they are being discharged for their union activities and sympa- thies; creating an impression among employees that their union activities are under surveillance; threatening em- ployees with discharge or other adverse consequences if they continue to support the Union; promising promo- tions to employees if they cease their support of the Union; informing employees that it would be futile for them to select the Union as their collective-bargaining representative; and informing employees that it would be difficult to continue their employment because of their union affiliation. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 57 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. (a) Offer to Richard (Rick) Ryder and Tammy Cas- trop immediate and full reinstatement to their former po- sitions or, if these positions no longer exist, to substan- daily equivalent positions , without prejudice to their se- niority and other nghts and privileges and make them whole in the manner prescribed in the remedy section of this decision. (b) Remove from its files any reference to the termina- tions of Tammy Castrop and Richard (Rick) Ryder and notify them, in writing, of this, and that their termina- tions will not be used as a basis for future personnel ac- tions. (c) 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 recommended Order. (d) Post at their place of business at Edwards Air Force Base, copies of the attched notice marked "Ap- pendix."58 Copies of said notice, on forms provided by the Regional Director, after being signed by Respond- ents' authorized representative, shall be posted by Re- spondents 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 Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMENDED that the complaint be dis- missed with respect to all allegations of violations not specifically found herein. 58 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"