Ranco, Inc.

In the Matter of RANCO, INC. and UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0. Case-No., 9-C-1938.-Decided July-20,1944 Mr. John W. Coddaire, Jr., for the Board. Vorys, Sater; Seymour c Pease, by Mr. Webb I. Vorys'and Mr. Carl H. Tangeman, and Mr. Roy E. Raney, of Columbus, Ohio, for the respondent. Mr. Lewis Strickland, of Columbus, Ohio, for the Union. Mr. Daniel E. Bevis, of Columbus, Ohio, for the Independent. Mr. Frederic B. Parkes, 2nd, of counsel to the Board. - DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0.,1 herein called the Union, the National Labor Relations Board,- herein called the Board, by its Acting Regional Director for the Ninth Region (Cin- cinnati, Ohio), issued its complaint dated December 28, 1943, 'against Ranco, Inc., Columbus, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section- 2 (6) and (7) of the-National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent, the Union, and Ranco Employees Independent Union, herein called the' Independent, a labor organization alleged in - the complaint to' be company-dominated. With respect to the unfair labor practices, the complaint alleged in substance that, since in and about January 1943, the respondent, by its officers, agents, and employees, has interfered with, restrained, and coerced its employees in the exercise of the rights,gu'aranteed inSec- i The name of the Union appears herein as amended at the hearing - 57 N. L. R. B., No. 82. 425 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 7 'of the Act by (a) permitting and assisting in the circulation, in its plant during working hours, 'of a petition showing employees -for' or against the Union ;' (b) signing 'and -searching for said peti- tion when it became lost in the course of its circulation ; (c) permit- ting literature derogatory to the Union to be distributed and posted in the. plant during - working hours ; ' ( d) urging, persuading, or warning its employees to refrain from joining or retaining member- ship in the Union; (e) vilifying and disparaging the, Union and its ,leaders; ( f) removing a union button from the clothing of an em- ployee; (g)' permitting the Independent to distribute leaflets' or other literature on its property ; (h) permitting the circulation of a petition indicating that the signer's thereof favored a wage increase 'rather than membership in the Union ; and (i) requesting an employee ,to refrain from wearing a headgear with printing thereon favorable to the Union. The complaint further illleged that the respondent discharged Charles Welch 'on or about August 3, '1943, and, discharged or laid off John Bova on or about August 14, 1943, and thereafter ref used- to reinstate them because of their membership in, and activity ,on_ behalf of, the Union and because of their concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection . In addition, the complaint alleged that, 'in August 1943, the respondent , by its officers, agents, and employees, initiated , assisted, supported ,, and promoted the' Independent, and since August 1943, to date, has assisted, dominated, contributed to the support of, and interfered with the , administration of, the-Inde- pendent by ( a) holding membership in the Independent ; (b) attend- ing meetings of the Independent ; (c) permitting the Independent to solicit members in the plant during working hours ; (d) permitting the Independent to post notices of its meetings ,in the plant on the bulle- tin boards of the respondent ; (e) permitting the Independent to dis- tribute leaflets and literature on its property , while denying the same privilege to the Union ; ' (f) ' vilifying and 'disparaging the Union and making derogatory statements about the Union; and ( g),inquiring of its employees with regard to the business of the Independent. Prior to the hearing, the respondent filed with the Acting , Regional Director of the Ninth Region a motion for a bill of particulars.2 On January 7, 1944, the Acting Regional Director entered an order deny- ing the respondent's ' motion without prejudice to its right ' to renew the motion at the hearing. On or about January 10, 1944, the respond- ent filed its answer admitting certain allegations of the complaint as to the nature of its business but denying that it had committed, any unfair labor practice. , The substance , of the motion was that the complaint be made 'more definite and certain by flaming the officers , agents, and employees through whose acts the respondent is alleged to have-held membership in, and attended the meetings of, the Independent. RANCO, INC. 427 Pursuant to notice, a hearing was held from January 13 to January 20, 1944, inclusive, at Columbus, Ohio, before John IT. Eadie, the Trial Examiner duly designated by the, Chief Trial Examiner. At the opening of the hearing the Independent moved to intervene in the - proceeding. The motion was granted without objection. The Board, - the respondent, and the Independent were represented by counsel and, the Union by its representative. All parties participated in the hear- ing. Full opportunity to be heard; to examine and cross-examine witnesses, and .to -introduce evidence bearing on the issues .was af- forded all parties. Also, at the commencement of the hearing, the, respondent renewed its motion for a bill of particulars. The motion was granted. At the close of. the introduction of evidence ,by the Board, and again at the close of the, hearing, the respondent moved to dismiss the complaint 'as a whole and'as to specified parts thereof for lack of proof. Ruling thereon was reserved by the Trial Exam- iner, who denied, the, motions in his Intermediate Report. At the conclusion of all testimony, counsel. for the Board moved to,amend the complaint to conform to the proof. The same motion was made by counsel for the respondent with respect' to the respondent's answer. The motions were granted without objection. During the course of the hearing, 'the Trial Examiner made rulings on other motions and on objections to the admission of evidence., The Board has reviewed the rulings of the Trial Examiner made during the course of the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. After the conclusion of the hearing, the respondent filed a brief with the Trial Examiner. On April 6, 1944, the Trial Examiner issued his Intermediate Re- pnd t,th copies of which e Independent. were found 'that upon the -respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommended that, the respondent cease' and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.' On May 18, 1944, the respondent filed with the Board its exceptions to the Intermediate Report and a brief in support of the exceptions. Pursuant to notice and at the request of the respondent, a hearing was held, before the, Board at Washington, D. C., on June 6, 1944, for the purpose of oral argument. The respondent was represented by counsel and participated in the hearing; the Union and the Independ-, ent-did not appear. , ' , - The Board -has 'considered the respondent's exceptions to the In- termediate Report and briefs, and the entire record in the case, and, insofar as the exceptions are consistent with the findings, conclusions, and order set forth below, finds 'them to have merit. -428 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I. , TIIE BUSINESS OF TIIE RESPONDENT The respondent, an Ohio corporation, with its office and main plant located at,.No. -601 West "Fifth Avenue, Columbus, Ohio, herein re- ferred to as the plant,3 is engaged in the manufacture and sale of air- craft instruments, binoculars, and refrigeration control and thermo ,switches. Approximately 99 percent of the respondent's business is in connection with the war effort and its sales are in excess-of $1,000,000 annually. The principal raw materials used by the respondent are glass, steel, brass, berylleum, copper, and other metals . There-, spondent purchases from 60 to 70 percent of these raw materials out' side the State of Ohio, and it ships from 60 to 70 percent of its finished products to points outside the State of Ohio. During peak production periods the respondent,employs approximately 2,400 employees.- The respondent admits that it is engaged in commerce within the meaning of the Act. - . " II. THE ORGANIZATIONS INVOLVED United Automoble, Aircraft and Agricultural Implement Workers of America, is a' labor organization affiliated with the Congress of ,Industrial Organizations, admitting to membership employees •o,f the respondent. Ranco Employees Independent Union is an unaffiliated labor or- ganization, admitting to membership employees of the respondent. 410 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The status of alleged supervisory employees The basic question to be determined in order to resolve the issues concerning interference, restraint, and coercion on the part of the,re- spondent and domination of the Independent by the respondent is the alleged supervisory status of. two classes of employees, namely, group leaders and set-up men. We ' shall therefore determine their status before considering the allegations concerning the specific unfair labor practices. The Trial Examiner found that.group leaders and set-up men were, supervisory employees and that they were acting with the, support and approval of. management.. ; He, concluded that the re- spondent was responsible for their acts and statements. We do not concur. 'The respondent operates another plant in Columbus , Ohio , located at No 2400 North High Street. This proceeding is concerned only with the main plant RANCO, INC. 429 Set-up men, as the title implies, tool and set machines for operation, in accordance with blueprint specifications. They devote from 50 to 70 percent of their time to this task. After running experimental samples and reaching a satisfactory result, the set-up man instructs the operator and turns the machine over to him. When not engaged in setting up machines or obtaining supplies for the operators, the set-up men either watch the operators and check the machines or oper- ate machines alongside other operators. The duties of group leaders are comparable to those of set-up men. - Group leaders give work to employees in the production or inspection line, instruct employees in their duties, ascertain whether they are supplied with work,, obtain supplies and equipment for employees,'and at times engage in produc- tion work alongside ordinary employees. The record clearly establishes that,neither group leaders nor set-up men have power to hire, demote, or discharge employees, to grant raises or leaves of absence, or to recommend such action. Their au- thority in this regard is limited to reporting to their superiors, either foremen or assistant foremen, the inefficiency of employees within their groups. The number of employees assigned to them varies from 2 to about 12 or 13. The set-up men and group leaders, like produc- tion and maintenance employees, are paid on an hourly basis and re- ceive compensation for overtime work. Being highly skilled, set-up men and group leaders receive higher rates of pay than the employees in their groups. Foremen and, assistant foremen, who admittedly occupy a supervisory status, are paid on a salary basis and are not compensated for overtime work. Group leaders and set-up men do not attend meetings of,the respondent's supervisory personnel. Al- though some employees testified that they regarded set-up men and group leaders as their "bosses," the evidence establishes, in our opinion, that group leaders and set-up men perform no supervisory functions, being merely highly skilled employees, and are not regarded as super- visors by the management, by the other employees, or by themselves. Set-up men and group leaders were eligible to membership in both the Independent and the Union; several joined either one or the other organization. At the hearing, Lewis Strickland, the Union's Inter- national Representative, admitted that group leaders and job-setters were members of the Union and stated that their continued eligibility to membership was "a matter for me to determine later on." In view of all the evidence,,we find that group leaders and set-up men were not supervisory employees. We further find that the record fails to estab- lish that they were acting with the support and approval of the re- spondent. We conclude that the respondent is not liable for'their activities and statements. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Sequence of events , The respondent commenced its operations ' in 1914, and "expanded gradually until, by 1941, it had 650,employees engaged in the manu- facture of diversified electrical equipment. In 1941, the respondent transferred its peace-time operations to another plant and'converted its main plant to the production of binoculars and certain precision instruments' for the U. S. Army 'and Navy. Its pay roll thereafter expanded rapidly, attaining 'a maximum at the peak of production of 2,400-employees. The Union commenced its organizational activi- ties at the, respondent 's main plant in June 1942, shortly after the plant's conversion to the manufacture of war products . The extent of the organizational efforts of the Union , in 1942, is not shown by the record, aside from the fact that union literature was distributed at the gates of the plant.. There is no contention or evidence that the respondent interfered in any way with these activities. In January 1943, the respondent determined to reorganike its gen- eral maintenance department and to replace the foreman then in charge. The maintenance department had theretofore been loosely organized with its members roaming at large throughout the plant, subject to the call of any employee . Ralph Hunt, the factory, man- - ager, accordingly requested Jack Matthaes, at that time maintenance foreman in the binocular department, to make an operational study of the general maintenance department and its employees ' and to sub- mit his suggestions for improving maintenance service together with a detailed report-on its personnel . Matthaes was also to advise Hunt whether he felt capable of assuming the position of general foreman in charge of all plant maintenance . About January ' 11 or 12, 1943, Matthaes reported the results of his investigation to Hunt, finding that "the department as a whole was operating rather loosely," that its employees were wasting much time, and that two employees, Charles F. Welch and Howard L. Smith, were particularly inclined - to waste time. Although Smith was employed in the boiler room, he worked 2 days each week in the maintenance department. Ac- cording to Matthaes , whenever Smith was assigned to the boiler room, he was supposed to remain there continuously during his working hours, but Matthaes found, during the course of his investigation, that Smith was "out-of the boiler room lots of the time" and that Welch was "doing lots of talking with the operators . . . and very little work." , When Matthaes reported his general findings to Hunt, to- gether with his specific observations as to Welch and Smith, Hunt told Matthaes to report whether the two employees thereafter con- tinued to neglect their duties and,-if they did, that Hunt would speak to them. RANCO, INC. 431 At this time, Matthaes also recommended ,a plan of reorganization for the department, which Hunt adopted. Under the new system, requests for the services of repairmen were.filed with the maintenance department by the foremen of the various operational departments and the maintenance crew was assigned to specific jobs in accordance with priority accorded the work, orders by maintenance supervisors. Thereafter, no operator could directly request a member of the main- tenance department to perform repairs but instead was required 'to file a request with his foreman who processed the work order. With,the approval of the reorganization plan,. Matthaes and Ernest Spencer were appointed general foreman and assistant foreman, respectively, of the general maintenance department. ' Shortly thereafter, Hunt addressed the maintenance department employees at a group meeting, introduced the new foremen, explained the new work order system, and warned the employees to remain on the jobs to which they were assigned in the future. Matthaes testified that,on the morning of January 18, 043, he found Welch and employee Young 4 reading a newspaper, during working hours and that he accordingly "decided that right,then was the time we would get this thing settled . . . [Welch] was going to stay on the job that he was sent to do, and report back to Spencer." Ac- cording to Matthaes, he requested Hunt to speak with Welch and also with Smith, since "the topic of discussion was in common for' the two men . . . who . . . had been off the job more than any of the rest." 5 Welch, Smith, Matthaes, and Spencer assembled in Hunt's office. Hunt opened the interview by saying, "You fellows know what you are here for"; when Smith denied such knowledge, Hunt stated, "You fellows know what you are doing out in the shop and you have got to cut it out." Pressed further for explanation, Hunt said, "You fellows know and I don't have to go into that." Upon further questioning by Welch and Smith, Hunt replied that they "would have'to stop running around over the shop" and that if they, were found "off the job" again, they would be discharged. Welch testified that, during the conference, Hunt said, "I know you [Welch] belong to the Union." The Trial Examiner did not credit Welch's Young was employed in another department over which Matthaes had no authority. Welch testified, and the Trial Examiner found, that Hunt's interview with Welch and Smith was occasioned by the following incident ' when Welch went 'into the pressroom in the course of his duties about January 18, employee Young asked Welch to check his press and Welch explained the new procedure for requesting repairs Young testified that such a conversation had "once" occurred, but did not specify the date. Neither was questioned with regard to whether they were reading a newspaper that morning. Although the testi- mony of these witnesses does not negate the possibility that both the incident testified to by Welch and that testified to by Matthaes in fact occurred, we credit Matthaes' testimony and accordingly find that the conference with Hunt was occasioned by the fact that Matthaes had discovered Welch and Young reading a newspaper during working hours on January 18, 1943. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony in this regard since Hunt, Matthaes, Spencer, and Smith denied that the Union was mentioned during the conference.° How- ever, the Trial Examiner found that the purpose of Hunt's interview with Smith and Welch was to warn them concerning their union ac- tivities in the plant and that his statements, set forth above,-consti- tuted interference, restraint, and coercion of the employees in the exercise of their rights, guaranteed under Section 7 of the Act. We do not agree. For the reasons hereinafter set forth, we find Matthaes' testimony to be credible and Welch's testimony to the contrary, un- worthy of credence.' 'Moreover; the record does not establish that at this time, January 1-18, 1943, either Welch or Smith, was especially active in the Union, although both were wearing union buttons when they were called into Hunt's office. Welch testified that he joined the Union "when the rest of the fellows were joining" and that he handed out cards and buttons "to anyone there that wanted to join the union." He also testified that he "took over" the position'of steward "in the first part of January, and in the latter part of January they gave me a steward's button." Smith testified that he joined the Union "some- time the last of January" 1943. The record does not establish that he was otherwise active in the Union. As hereinafter indicated, there Is ample evidence, which we credit, that Welch wasted much of his time in talking and "visiting" with other employees. We accordingly find that the purpose of the interview was to reprimand Welch and Smith for wasting time and that Hunt's and Matthaes' statements did not infringe upon the employees' rights under the'Act. The' Trial Examiner further found that after the conference in Hunt's office, Smith, who theretofore had divided his time between maintenance work and firing a boiler, was taken out of the mainte- nance department and confined to the boiler room, thereby losing overtime and Sunday work. - The Trial Examiner concluded 'that such action by the respondent was discriminatory. We are unable to agree with this conclusion. In our opinion, the record does not establish conclusively that Smith's status was changed after the interview with Hunt. Assuming arguendo, however, that following the conference with Hunt, Smith was deprived of his overtime and Sunday work, we find that such deprivation was a deserved disci- plinary measure for wasting time and not discriminatory within the meaning of the Act. , 6 \Iatthaes and Hunt testified that the latter stressed the fact that welch and Smith were not "on the job" and warned them that, if they were "found any more off the job," they would be "fired." Welch testified, without contradiction, that a few days after the above conversation in Hunt 's office , bfatthaes told him, "I know you belong to the union . I don't care whether you belong to a union or not, but I don't see why you want the union in here or anybody does . . . I am not against anybody belonging to the union , but I want you to stay on the job " Upon being then asked by welch if he had not "always done that," Matthaes replied in the affirmative but further stated , "You want to be careful and watch your step and go ahead and everything will be all right." RANCO, INC. 433 About February 1943, employees were solicited, chiefly by em- ployee Gene Ramsey, in the plant during working hours to sign a petition, headed : "For the C. I. 0. - Against the C. I. 0.117 Enm- ployee William Baker testified without contradiction and we find that he was hsked by John McCabe, his,set-up man, during working hours to sign the petition., Levi Young, a press operator in Depart- ment 12, testified without contradiction and we find that he was asked by Rainey to sign the petition and that, at Young's suggestion, Ranney brought the petition to Department 12 during lunch hour, and placed it on the desk 'used by Richard Spires, the' foreman, and James Gilbert, the assistant foreman. Young further testified that -the petition- disappeared during the lunch hour and that, while Ranney and, the employees were "arguing" over its disappearance, Gilbert returned from lunch and, hearing part of the argument, asked Young."why in Hell" he did not give "that, bunch of papers back" as it was "causing a rumpus." When Young replied that he did not have,the- petition, Gilbert, according to Young, "hunted all over the place" for the petition. • Employee Elsworth Rhoades also testified that after the petition disappeared, in February 1943, "around the noon hour," he was asked by Foreman Gilbert whether he had. seen "that paper Gene Ranney had"; that Gilbert searched for, and asked about, the paper for "two or three days"; and that Rhoades thereafter found the paper and gave it to Lewis Strickland, International Repre- sentative of the Union. Gilbert testified that he did not see the paper or know its purport, that Young first informed him of its dis- appearance, that he did not .ask anyone about the paper or search .for it, and that he was asked either by Clarence Heyder, a set-up man, or by Gene Ranney as to the whereabouts of the petition. The Trial Examiner did not credit Gilbert's testimony and found that the respondent, by the actions and statements'of set-up man McCabe and Foreman Gilbert, by permitting the open, and unrestrained circula- tion of the petition and solicitation of employees during working hours, and by reason of the fact that the petition contained the names of a foreman and a number of set-up men, participated in and assisted a campaign against the Union, thereby interfering with the' statutory rights 'of its employees. We do not ,agree. As we have, found above, set-up men and group leaders are not supervisory em- ployees and therefore, their acts cannot be attributed to the respond- ent. The record establishes that the Union engaged extensively in 4 The petition consists of several sheets of manila paper stapled together,'eacli divided by a center line into two columns, the words "Tor the C I 0 " appearing at the top of the left-hand column, and the words "Against the C I 0 " at the top of the iight-hand column In its piesent form the paper contains only the names of those employees opposed to the C. I O, the names of those in favor having been erased prior to the introduction of the exhibit in evidence Appioximately 180 names are listed as "Against the C I. 0 ," includ- ing the names of a foreman, group leaders, and set-up men. 601248-45-vol. 57-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational efforts during working hours in the plant; particularly in the solicitation of members. There is no evidence that the re- shondent interfered with such activities of the Union., Under such circumstances, therefore, the circulation of a petition in opposition to the Union_ during working hours is, in our opinion, not unlawful. Accepting the ' Trial Examiner's resolution of the conflicting testi mony, we find that, under these circumstances, the statements and activities, of, Foreman Gilbert with respect to the petition •were insignificant. , - Shortly after the disappearance of the- petition mentioned above, copies of a retaliatory pamphlet, containing statements derogatory to 'the Union, were distributed in the plant. Employee William Baker testified that two set-up men, McCabe 'and Holly, and employee Ran- ney distributed the pamphlets in_ the plant on the second shift. The record does not disclose whether the distribution occurred during working hours. At least one copy of the pamphlet was posted in,the plant and remained posted for several months. The Trial Examiner ' found that the respondent, by permitting and participating in the dis- tribution of the pamphlet inside the plant through the set-up men and by permitting the pamphlet to remain posted in the plant, actively campaigned against the Union and thereby interfered with employees' rights guaranteed by the Act. We do not agree. Since.we'.have found that set-up men-are not supervisory employees. the respondent is not accountable for their activities. Moreover, as mentioned above, the record discloses that throughout the early part 'of the organiza- tional campaign, employees were permitted to campaign not only in Apposition to the Union but also in- its behalf without restraint on the l)ait of the respondent. It is undisputed that the Union posted on Q de falls of the plant numerous stickers measuring approximately 2 by,4'ifches and stating, "Join - Vote U. A. W. - C. I. 0." Although il;[ia_r' xt clryar that these stickers were posted at the time of the postuig ofrithe,,atktLi,nion pamphlet, it is not unreasonable to infer, as we o,;tltatif , y fnere in fact posted during the intensive period of the .!ill - ion's pr^ganiza^t^ional activities., In the absence of any evidence to ^tlemonstrateii;terqepial of comparable privileges to the Union, we find -t3hatlthe,ciuculation,,ar l posting of the anti-union pamphlet were not vriolativeotfrthe1Act;t e'i _l} 19,3,jJa3nes Criner, a punch press operator, and se^- hAbout Alan eral%ptheii erpployeesof Department 12 were ordered ,by' their supervi- sor, James Gilbert, to report to Charles Miller;-a stockroom employee; andias8ist inthe,moving of,,the,r:aw stockroom of Department 20. The, einpTh ees perfoririei^ this ti$sk'duiing overtime hours. Criner testi fied;lwithout contradiction, -that at,thectime the stockroom was moved. 17 So P g11SUfl-trt !r L n i as i acing" ui >;on^button, tha tDZ^ller said, with,reference to the n',w ?u; , ,f 1,'it GS9S.G tt ._ 02- RAN co; INC. 435. union insignia , "What the Hell are you doing with that on there; you ran't' wear that around here to work," and that Miller thereupon "jerked" the button from Criner's collar. The Trial Examiner found that Miller was a ,supervisory employee and that the respondent was accordingly responsible for his statements and-activities . We do not- agree. The respondent maintained three stockrooms , one for the re- frigeration and aeronautical controls departments, one for the binoc- ular departments , and one for ' the toolroom . ' Miller and two other employees worked ,in the refrigeration and aeronautical control stock- room. Miller testified , without contradiction , that his duties consisted of "receiving and checking in raw stock , putting it away, takingstock' out of the press room, and over to the screw machines , disposed of scrap from - the press room and screw machines, sweeping the floor and any- thing else that need to be done .?' About March 1943, his stockroom. was moved to a new location. About 8 or 10 employees of other departments were given overtime work to assist in the moving, which took about a week . Criner testified that Miller gave all, orders and kept track of the time, that Miller was "overseer" of the stockroom, and that he felt that Miller had power to discharge him because when Foreman Gilbert "was sending the boys up there ," Miller -said, "All right, they can come up here if they want to work , but, if they- don't they won't come." From the latter statement attributed by Criner to Miller, the Trial Examiner inferred that Miller possessed supervisory powers. We do not agree . We find that Miller was not a super- visory employee and that his statements are not attributable to the respondent. Welch testified , without contradiction, to the following colloquy with Robert, Dunlap, secretary of the respondent ,8 on August 2, 1943: As Welch was walking to the stockroom , he met Dunlap, who looked at the union steward badge and union button worn by Welch. Later in the day, Dunlap approached Welch in the maintenance room, touched the union button, and inquired , "What's this ?" Welch replied that it was a union badge. Whereupon , Dunlap asked the meaning of the second badge. Welch answered that it was a.steward 's badge. Dunlap asked "Who gave ,you the right to be a steward? Steward of what?" When Welch answered , "The C. I. 0.," Dunlap countered, "Who gave you the right to be a steward of that? " Welch replied, "The other members, the other members of the union ." 'The conversation ended with Dunlap inquiring, "What union." Welch'walked out of the main- tenance room without further reply. By letter dated August 3, 1943, the Union notified the respondent that it represented a majority'of the respondent's employees and re- quested that the respondent recognize the Union as the exclusive ° Dunlap did not testify at the hearing. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of all employees. The respondent did not reply to the letter.9 On August 5,, 1943, the Union filed with the Board <t petition for certification of representatives. On August 8, 1943, the first meeting of the Independent was held. This meeting was advertised by the posting of a notice in the,plant: Employee Charles Levengood; a brother of Foreman Lewis Levengooa, presided at the meeting . Five group leaders and set-up men attended the meeting, two of them becoming members at this time. An August 14, 1943, adherents of the Independent, while on the respondent's premises in the presence of plant guards , distributed circulars adver- tising a meeting on August' 15. It appears that the distribution point was at the plant gate only a few feet from the boundary line of the respondent's property. On August 17, 1943, the Independent petitioned the Board for an election. The record indicates that early in August conferences with regard to the proposed election were held between representatives of the Board's Regional Office hand the respondent , in which the respond- erit was represented by its attorneys and by Assistant Manager Hoover. In August, the Independent notified Hoover that it was concerned about the proposed election and requested him not to consent to an election unless the Independent appeared on the ballot. When Iloover left for his vacation in August, he informed E. C. Raney, president and general manager of the respondent , of the previous negotiations and of the request of the Independent. On August 19, 1943, Joseph Kauderer , president of the Independent, was called to President Raney's-office. The following stenographic minutes, which we find to be credible evidence as did the Trial Ex- aminer, were taken of the meeting by Raney's secretary: - Mr. Raney opened the discussion with Mr. KauKlerer by stating that it was his understanding that ' the War Labor Board 10 was going to ask for an election and that Mr. Hoover had been in- formed that we were not to take any action with the C. I. O. until the Independent Union had an opportunity to present their case. Mr. Raney further stated it was also his understanding that the C. I. O. were going to ask for an election, and he was wondering just what the Independent Union were going to do. Mr. Kauderer replied that he had written a; letter to the War Labor Board at Cincinnati on Monday, August 16, requesting permission to have an election, but to date, no reply had been received.' Mr. Kauclerer stated that at the present time, he has 700 mem- bers signed up for the Independent Union and dues collected from 9 As -indicated above, the complaint contains no allegation that the respondent refused to bargain collectively. 10 Undoubtedly the minutes should read "National Labor Relations Board" instead of "war Labor Board." RANCO, INC. ,437 anost,of'.them. He stated that the C . I. O. say they have .about :80% of the plant with them , but Mr. Kauderer believes this per- ,centage to be greatly exaggerated , his opinion being that they have about 10%. He further 'stated that it was his understanding that the C. I.'0. had only 9 members out to their last meeting. Mr. Kauderer stated that-the Independent Union, at the present time, has three times as many members as the C. I. O. Mr. Kauderer asked Mr. Raney his preference as to the Independ= tnt Union, C. I. 0., or A. F. of L., to which Mr . Raney replied that the Management remained neutral on this subject, that the employees were free to join any Labor Union that they wished or to refrain from joining any Labor Union. Mr. Raney made it very clear that the company takes no position in the matter whatsoever. Mr. Raney stated that the company is not free to discuss terms ,of employment with either the Independent Union or the C. I, O. until they have duly authorized representation , approved by the War Labor Board. I The question of the plant-wide bonus system was discussed and Mr. Raney explained to Mr . Kauderer exactly how the plan works throughout the plant, - pointing out that the amount of bonus paid depended on the amount of production above the standard -set as based on an analysis of actual performance over a period of time on early months of production. Mr. Raney asked Mr. Kauderer his opinion on the best method of explaining the bonus, to the employees , whether it should be by letter or to speak to the employees in a group . Mr. Kauderer stated that so many of the employees did not quite understand the bonus system and , therefore, suggested that Mr. Raney send a letter to each employee, explaining in "simple 'English" exactly how the bonus ,system will work. Mr. Kauderer believes this method will be more satisfactory than speaking to them in a group as there would always be some that did not hear properly or understand what was said. Mr. Raney agreed with this sugges- tion, stating that he believed a letter explaining the bonus system would be better than to speak to the employees in a group. Mr. Kauderer stated that the C. I. O. and A. F. of L. did not believe in a bonus system, what they'want is a straight raise and that if the C. I. O. gets in, that is one of the things they will demand , to which Mr. Raney replied ' that Ranco is paying all that the W. L. B . permits them to and the bonus system is the only possible way to increase the employees earnings , the amount of the increase depending entirely on "team work" throughout the plant. .-438 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD Mr. Kauderer asked Mr. Raney's permission to put up a special bulletin, board, right along with the regular boards, for the pur- pose of posting data pertaining to the Independent Union Meet- ings, etc. Mr. KttiiEley-T,11 explained that if he was'granted per- mission to have the special, bulletin board, the C. I. 0. would •aiitomatically have the same right. Mr. Raney stated that as far as he knew- of this would'be all right, but to make absolutely certain, be would take the matter, up with the company attorney Friday morning, Aug. 20th and would advise Mr. Kauderer accordingly:12 Mr. Kanderer stated that he was very glad of the opportunity to talk with Mr. Raney personally and had a much better under- standing of the bonus system'no' . Mr. Kauderer said that'just as soon as he received a reply to his letter from the W. L. B. at Cincinnati, he would advise Mr. Raney. According to Randy's undenied testimony, which we credit, the Au- gust posting in the plant of the notice of the Independent's meeting was first brought to his attention, apparently in September 1943, in er was the following manner: Employee Nigh asked Raney as the latt passing through the plant, if the Union might have the privilege of posting notices' in the plant. Raney replied that he had denied such a privilege to the Independent and therefore could not permit the Union to post notices, since he was of the opinion that all 'organiza- tions' should receive equal treatment. Nigh informed,hinl that the notice of the Independent's first meeting had been posted in the plant. Raney told Nigh that if her information proved -to be correct, the Union would be given the same privilege., Upon investigation, he found that the Independent had in -fact posted a notice. He there- upon posted the following notice, and personally informed Nigh that the Union might post notices pursuant thereto : SEPTEMBER 23, 1943. NOTICES TO EMPLOYEES - It is now, always has been, and always will be, the policy of this Company to maintain a strict "hands off" policy as regard union membership or non-membership and the union activity and, non- activity of its employees, as required by the National Labor Rela- tions Act. This notice is posted for the purpose of eliminating "The exhibit of the respondent from which this conversation is taken showed that the name ,"Kauderer" was crossed out in pencil . Raney testified that he himself made this statement and not Kauderer. ' "Raney testified that he subsequently advised Kauderer that he could not grant,Kaud- erer's request for permission to set up a bulletin board in the plant for the use of the _ Independent. - RANCO. INC. 439 any contrary impression from the minds of the employees of the company. From and after this date the followiiig rules' will, be strictly enforced: ' 1. No activity of any kind on behalf of or against any union shall be carried on on comnpany time. 2. No foreman is authorized to make any statements on behalf of the company concerning any union, and no foreman shall dis- cuss any union or union membership or union activity with any employee, whether by way of advice or otherwise, on company time and property, or at any other place, or at any other time. This rule will not interfere with orders of foremen to prevent or stop union activities on company time. - 3. The bulletin boards heretofore placed in"\the factory for employees' meeting notices and activities may be used by any union for posting notices of the time and place of union meetings but for no other union purposes or activities. Such notices shall be,a simple statement that the meeting of the union will be held at a specified time and place. No union literature shall be posted anywhere in 'the factory. Employees are directed to notify Mr. Knoebel of any violation of these rules by any employee or foreman in order that proper action may be taken. Foremen are directed to notify Mr. Ki obel of any violations of these rules by any employee. RANCO INC., By E. C. RANEY, President. On or about November 23, 1943, employee Warren Betz wore at work a union hat made of white paper and in large blue letters advertising; "Vote U. A. WV.-C. I. 0.", Betz testified that later in the day he was summoned to the offices of Edwin L. Knoebel,, the respondent's personnel director, and that Knoebel asked the reason for wearing the hat, stated that Betz was antagonizing his fellow employees by wearing the hat, and further stated, "if I were you I would take that hat off." Betz refused to remove the hat and was told to return to work. Although Knoebel admitted that Betz had been called to his office concerning the hat, he denied that he requested Betz not to wear the hat. The Trial Examiner credited Betz' testi- mony. C. Conclusions Contrary to the Trial Examiner, we, are of the opinion -that 'the evidence does not establish that the Independent was a company-dom- inated organization within the meaning of the Act. , It is clear that, early in 1943, the respondent permitted the, organizational efforts of 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I its employees during working hours to,run their 'natural•course, inter- fering neither with the solicitation of, members by'the union adher- ents nor with the activities of the employees opposed to the Union. As we have found above, the purpose of Hunt's conference with Welch and Smith was not to warn them concerning their union activities and consequently cannot be'said to have interfered with such organizational efforts on their part. Rather, the evidence clearly demonstrates that the proclivity of the two' employees, Smith and Welch, to waste time was the reason for the conference. Although the statements attributed by Welch to Matthaes and Dun- lap in January and August 1943, respectively and by Betz to Knoebel in November 1943, might' under other circumstances be indicative of an anti-union. attitude on the part of the respondent, we,find, in the absence of any other evidence to support such a conclusion, that such statements are insignificant and are insufficient to establish that the respondent interfered with the rights of its employees guaranteed by the Act. • We have also found that set-up men and group leaders are not supervisory "employees. Hence, their activities and statements in op- position to the Union and in behalf of the Independent, including at- tendance of meetings and membership in the latter organization, are not attributable to the respondent. Although the petition headed ",`For the C. I. O. - Against the C. T. 0." was openly circulated during working hours,'it,is clear that the union adherents extensively, solicited memberships in the Union, during working hours without. remonstrance from the respondent. It is established that the anti-union pamphlet distributed in Feb- ruary 1943, was posted on,a wall within the plant and remained posted for 4 or 5 months. On the other hand, numerous stickers advertising the Union were affixed to walls about, the plant for lengthy periods of times. Although the Independent distributed circulars, in August 1943, within the respondent's property near the main gate, there is no evidence that prior to this time the Union had sought, and had been denied,' the privilege of distributing pamphlets or circulars on the respondent's property. Employee Warren Betz, on whose testi- mony the Trial Examiner relied in finding that the respondent ac- corded the Independent disparate privileges in the distribution of literature, testified that, in October 1943, he brought into the plant some union circulars which were taken from his possession by a plant guard and not returned until he left the plant. However, this in- cident occurred, after the promulgation, in September 1943, of the rule forbidding employees to engage on company time in activities on behalf, of or against any m}ion. Betz further testified that on one occasion prior to the October incident, he had distributed union liter- RANCO, INC. 441 ature outside the plant and that when he put one foot off the sidewalk upon company property, a plant guard ordered, "Get` to hell off com- pany property." However, Betz could, not recall the date of this occurrence; ' Strickland, the union representative, testified that the guards never permitted him to step on company property while he distributed union literature on the sidewalk in front of the plant's entrance. However, Strickland was not an employee of the respond-_ ent and, so far as the record shows, any intrusion he might have made upon the respondent's property was that of a trespasser. Further- more, lie was never molested in the distribution of union literature on the public sidewalk adjoining the respondent's property. We conclude that the respondent did not accord the Independent treatment denied the Union in the distribution of union literature. Although a,notice of the first meeting of the Independent was posted 'in the plant in,August 1943, it seems clear that such posting was not done-With the approval or knowledge of the respondent. ' Indeed, the action ta'keit by'President Raney when he learned that the Independent had posted such a notice, namely; the establishment in September of a bulletin board for the use of both the Union and the Independent, negates a contrary finding. We are unable to perceive - anything indicative of company dom= ination or other illegality inherent in the conference between Raney and. Kauderer on August 19, 1943. Th' e Union had filed with the Board a petition for certification of representatives on August 6, 1943, and certain conferences between the Board and the respondent' had thereafter been. held. The Independent had also urged the Board to conduct an election ,and had notified Assistant Manager Hoover not to consent to an election unless the Independent was accorded a place, on the ballot. Since Hoover left on his vacation about this time in August hand referred the matter to President Raney, it seems in no wise suspicious that Raney should desire to interview, the president'of the, Independent to ascertain his intentions with re- gard to the election. Moreover; consideration of the other topics of conversation in this conference do not indicate that the respondent was - unlawfully interested in the, Independent's affairs. When Kauderer asked Raney to name the organization he preferred, Raney replied that the respondent was neutral on the-subject and that the employees were free to join or refrain from joining any organization they wished. In reply to Kauderer's'request for permission to erect a: bulletin board for the use of the Independent, Raney stated that if such permission were granted the Independent, the same.privilege would be extended to the Union. During the'interview, Kauderer took occasion to discuss a bonus system inaugurated by the, respondent some months earlier and told Raney that the employees did not clearly 442 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD understand the operation of the system. At Raney s request for sug- gestions, Kauderer proposed that Raney sepcl to each employee a letter explaining the operation of theft plan in simple terms. Raney 'agreed. He testified that he later formulated a letter in compliance with the suggestion but before it could be distributed, the Union circulated a bulletin disparaging, the plan and Raney accordingly abandoned the idea of sending an explanatory letter. In ,this regard, Raney further testified, "I didn't feel that I wanted to get into any discussions of the merits .. I felt that the only thing that would really convince the people of ;the merits of the bonus system [would be] to let them work it out and they would find out in their pay enve- lopes ... whether the bonus was effective or not." Although the Union may have been criticizing the bonus plan, we find no imps- 'priety in Raney's effort 'to eliminate any misunderstanding on the part of his employees of, the terms of their employment, noa matter by whom the misunderstanding was,brought to his attention. How- ever, when apprised. of an overt attack by the Union upon the merits of the bonus system, Raney refrained from ' inj ecting himself into' the controversy. We find- nothing' in the conference to support a finding,of unlawful interference by the respondent in the administra- tion of the. Independent. In view of all the evidence, we find. thai ' the respondent did not initiate, assist, support,,or promote the Inde- pendent and, that the respondent has not assisted,' dominated, contrib- uted to the support of, or interfered with the administration of the Independent within the meaning of-the Act, as alleged-in =the-com- plaint. , , . D. The alleged discriminatory discharges 1. The discharge of Charles Welch Welch was first employed by the respondent as a punch press opera- tor on 'May 12,1941. According to,the undisputed testimony of Fore- man James Gilbert, Welch did not prove to be a satisfactory operator and was soon given another position in which he performed mainte- ` nance work in the pressroom. Welch remained in the pressroom for about a year and was then transferred to the maintenance department. The employees-of the maintenance department generally worked 7 `days a week. The work week commenced on-Sunday, I when- mainte- nance work was done that could not be performed when the plant was in operation. The hours required for such work varied each Sunday, but any employee who worked any part of a Sunday and throughout the ensuing week was compensated by receiving double-time pay,for the Saturday following. ' During July 1943, the maintenance department worked on all Sun- days except July-11., Welch failed to report for work. on any of these RANco, 'INC. 443. Sundays in July,and did not notify-his supervisors of his intention to be absent. Matthaes and Spencer testified- that they reprimanded Welch when he did not report for Sunday work, and particularly for not'working on July 18. Welch,denied that he was reprimanded by his superiors for his Sunday absences. The Trial Examiner credited Welch's denial. For the reasons set forth below, we cannot credit Welch's testimony and find that Matthaes and 'Spencer reprimanded' Welch for his Sunday absences. Matthaes and Spencer further tes- tified that a special job, which consisted of revising the plant's water system, had been scheduled for July 18 and 25 and that, they had so advised the employees. Spencer also testified that after Welsh's third Sunday,absence in succession in July, he discussed the matter with Matthaes and that they decided to lay Welch off for a week as discipline. Accordingly, when Welch reported to work on Monday; July 26, he was advised that he would be laid off a week. Welch protested the lay-off and asked "Matthaes for a release. In accordance with Welch's request, Matthaes prepared an inter-office separation slip on which he listed as the reason ,for separation, "Will not report when needed most," and gave the separation slip to Personnel Director Knoebel. Thereupon Knoebel urged Welch to take the week off and to report back to work on Mon- day, August 2. Welch, complied and returned to Knoebel's office on the following Monday. Knoebel called Matthaes into his office and, according to Knoebel's testimony, then stated to Welch, "Now that you are back on the job I want you to stay on the job." Welch re- ceived his plant badge and returned to work. The Trial Examiner, found that Welch's lay. off was discriminatory for the reason that Sunday work was not compulsory for the mainte- nance department, that employees were not required to notify their superiors in advance of intention to be absent on Sundays, and that Welch was the only employee to be disciplined for Sunday absences. We do not concur in these findings. Matthaes and Spencer, whom we credit, testified, that the mainte- nance employees were required to work every Sunday unless pre- viously notified not to report for ' work • and that the employees were so advised. Their testimony is corroborated by that of employee John Worthington who testified that when Matthaes became foreman, he informed the maintenance 'employees that "he couldn't promise no Sundays off, and he didn't know how long" such a schedule would continue. ,Worthington-, further .testified;,that; at,•the_,same: time, Matthaes announced the work policy of the department "on a slip of paper that we will work 7' days a week until further notice." A work schedule for the maintenance department, which was dated May 20; 1943, and was introduced into evidence, states, "Sun. 8: 00 as pre- viously outlined." The latter phrase was explained by Spencer to 444 'DECISIONS -OF NATIONAL LABOR 'RELATIONS BOARD mean that the employees1were required to work Sunday unless other- wise notified. Employee John Williams testified that when he com- menced his employment with the respondent, he "was given the under- standing . . . that if we weren't told not_ work, why to be there" ,on Sundays and that he worked every Sunday unless he had been given permission to be absent. Welch testified that he had never seen. an crder "saying that we had to work on Sunday," and that" "we never knew it was compulsory to work on Sunday unless we had something to do." Spencer testified that it was customary for employees to notify him "when we have a big job planned" if they were not report- ing for Sunday work; that Welch failed to notify him , and that n., other maintenance employee ever took a Sunday off without first notifying him. Employee Smith testified, however, that during 1943 he did not work on four or five Sundays and that on two of those Sun- days he did not notify anyone of his intention to be absent and that no one reprimanded him, for such absences. Although there seems to have been no iron-clad rule regarding Sunday work,, the above tes-, timony and the work schedule clearly indicate that Sunday work was compulsory for the maintenance department. We also are of the opinion that the evidence indicates that employees were expected to notify their superiors when they planned to be absent on Sundays. Moreover, the very nature of the tasks performed by the mainte- nance department made Sunday work and the presence of a full work crew imperative, for only then could the maintenance department perform 'certain strategic repairs and installations which required stoppage of all production operations in the plant. It would be unreasonable to assume that work as essential to the operations of the entire plant as that done by the maintenance department•on Sundays was relegated by the management to the chance attendance of such of tlw, maintenance crew, which numbered only seven to nine em- ployees in all, as happened to stroll in. We find that Sunday,,^,vas a regular work day for the maintenance department and that employees were expected to notify their supervisors of intention to be absent on Sundays. It is true that Welch was the only. employee to be disciplined for unauthorized absences on Sundays, but the evidence establishes that no other employee in the department- had a comparable record of Sunday absenteeism. Between January 1 and August 1943, the mem- bers of the maintenance crew were absent on the following number of Sundays : Welch, 9; Williams, 4; Denson, 5; Spurgeon, 0; Lang, 1; Spencer, 3; Worthington, 4; Smith, 3; Grace, 6; and Store, 5. Matthaes explained that Grace had been excused from Sunday work on two Sundays. in order that he' might repair his truck in which he _ hauled coal'for the respondent. Matthaes further testified that three- RANCO, INC. 445` of Denson's Sunday absences fell within his vacation period 13 It is thus clear that the number of Welch's Sunday absences far exceeded those of other members of his department. Moreover, three occurred in July when especially important work had been scheduled for the maintenance department. We conclude and find that the week's lay- off given Welch Was not discriminatory. , When Welch returned to work on August 2, after the week's lay off,. he was assigned with another maintenance employee to the task of assembling and "setting up a sanding machine. Matthaes testified! that he observed Welch talking with employee William Lang- for' about 10 or 15' minutes during the morning14 Later in the day, Robert Dunlap, the respondent's' secretary, questioned Welch about the union badges which Welch was wearing, as set forth above. On August 3, 1943, Spencer assigned Welch to the task of cutting angle irons for a stock rack. Welch performed this job in the main- tenance room about 10 feet distant from Matthaes' desk. Matthaes testified as follows to the succeeding course of events: Welch finished the task about 3: 00 p. in. Following the 15 minute rest period for the maintenance department employees from 3: 15 to 3: 30 p. in., Welch asked Matthaes whether lie knew where Spencer, who customarily as- signed jobs to the maintenance men, had gone. Matthaes replied that he did not know Where Spencer was and 'instructed Welch to find Spencer. About 3: 50 p. in., Spencer came into the mailtenance room and requested assistance on a job on which he was then working.', Mat- thaes promised to send one of the maintenance crew. When Welch returned to the maintenance room about 3: 55 p. in., and again asked for Spencer, Matthaes instruced Welch to report to Spencer in the compressor room. About 5 minutes later, Matthaes went to the com- pressor room and discovered that Welch was not there and, in fact, had not yet reported to Spencer. Thereupon, Matthaes informed Spencer that Welch had been assigned to assist.Spencer and that he, Matthaes, "was done with Welch right then." Matthaes then looked for Welch for about 5 to 7 minutes and found him in the aero assembly room near the "tool hot box." Matthaes did not speak to Welch at this time but immediately reported to Personnel Director Knoebel -and reconl- lnended that Welch be discharged.15 Matthaes then returned to the 13 The record indicates that Welch had a vacation in June of undisclosed duration, '4 Lang testified , without contradiction , that the conversation concerned the Union and that Welch urged Lang to loin the Union "The testimony of Spencer , in general, coirohorited that of Matthaes, except for a few details - Welch testified that after completing the angle irons at 1 •30 p in , he asked Matthaes whether ho knew the whereabouts of Spencer, as Welch wanted a new assign- ment, and, upon being told by Matthaes that he did not know, Welch stated that he would see if lie could find Spencer Welch further testified that lie returned to the maintenance room about three times and asked Matthaes if he had located Spencer and that on each occasion , Matthaes replied that he slid not know where Spencer was According to Welch, Matthaes observed Welch talking with an employee in the aeio-assembly room shortly be- fore 4 00 p in. Welch testified that the employee requested him to repair a dryer and 1 446 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD compressor room and, upon finding Welch there, told him to report" to Knoebel's office. Welch reported to Knoebel,as directed'and, according' to Welch's testimony, was informed that he was discharged for not being "on the .job." A separation slip, dated August 3, and signed by Matthaes, con- tains the notation, "continuously off the jobs sent on" as the reason' for the"discharge. 'The Trial Examiner found that Welch was-discrimi, natorily discharged. We do not agree. The respondent concedes that Welch Was not inefficient in his work performance but contends that lie was discharged because of his propensity for talkativeliess, because of his failure to remain' on the job to which he was assigned, and because of his arguing over the method in which the work should be done. In our opinion, the record supports the respondent's contention. 'It is clear that within a short time after the conference with Hunt, discussed above, in which Hunt warned Welch and Smith to stay on the jobs to which they were assigned, Welch soon lapsed into his time Wasting devices after a short period of improvement.ls Spencer testified that on two or three occasions thereafter he had reason to admonish Welch for his arguing about the work and his constant "visiting." Matthaes and Spencer ',testified that they frequently observed Welch iii conversation with other employees and received complaints from other 'supervisors and 'employees with regard to We1ch's time-wasting devices. Foremali Gilbert, Foreman Joseph Blacksten, Process Engineer W. R. Opp, and'•numerous employees testified at length to Welch's tendency to waste much time in conversation With other employees and his fail- ure to remain on -the job to which he was assigned, both before and -after the conference with Hunt. The testimony of employee Worthington, relied upon by the Trial Examiner, to the effect that that Welch explained the necessity for a work-order. Welch further testified that about 4 00 p. m , he found Spencer "in the main hall" and Spencer assigned him to a job in the 'bellows department . Shortly thereafter he was told by Matthaes to report to Knoebel's -office . The Trial Examiner credited` Welch's version of the course of the above events and refused to credit the testimony of Matthaes and Spencer We do not agree with the Trial Examiner's resolution of the testimony . In two instances Welch confessed error in his -testimony. _ He first denied ever engaging in union activities during working hours ; later; he admitted that he frequently solicited memberships during working hours More sigmfi- 'cant is the fact that he first testified that lie had worked every Sunday in , July but later admitted that such testimony was erroneous when the respondent 's records were produced. Since he. had been disciplined for those absences , it may be assumed that he would not have iforgotten the reason for such comparatively recent disciplinary action Furthermore, the fact that the work -order system had been in effect for at least 7 months does not add credence to Welch's,explanation for the conversation iiith the employee in the aero- assembly room On the other hand, we find no comparable major discrepancies in the testi- mony of Matthaes or Spencer We accordingly do not credit Welch's testimony but instead rely upon the testimony of Matthaes and Spencar. 16 Spencer testified that after Hunt's 'o ference, Smith improved "100 percent's Both Spencer and Matthaes testified that Welch improved for a short while, but in May or June, according to,,Matthaes , he was observed stopping and talking with other workmen to a ,greater extent than did the other maintenance employees. RANCO, INC. 447 'Welch was "pretty regular on the job" is clearly countered by the evi-' deuce to the contrary. Indeed, Welch admitted that be spent 50 per- cent of his time in places other than those to which he was sent to work. It hardly seems reasonable that so much time could be spent in bona fide trips away from the working locale. He also, admitted that be discussed the method of doing the work with his 'superiors to a greater extent'that did the other maintenance employees. As for the events occurring on August 2 and 3, 1943, following the week's disciplinary lay off for Sunday absenteeism, the important con- sideration, in our opinion, is not which particular version of the events to credit, although we have accepted that of Matthaes, but rather the established and 'admitted fact-that on each day Welch was ob- served by Matthaes wasting time in conversation with other employees, - thereby providing the culminating factor in' the decision to discharge Welch. 17 We conclude and find that We'lch's discharge was not' dis- criminatory within the meaning of Section 8 (3) of the Act. 2. The discharge' of John Bova Bova was first employed by the, respondent on July 22, 1942, and at all times mentioned herein worked as a lathe operator in Department 1,4 on the first shift. Richard Spires was general foreman of the depart-' ment and Buffington was Bova's set-up man.18 Late in July 1943, Bova joined the Union and thereafter openly wore a union steward's badge in , the plant. • He testified, without contradiction, that he solicited employees to join the Union during his free time. He fur- ther testified', without denial, that sometime between August 2 and 12, 1943, Foreman Spires walked up to him while the latter Was working at his machine, "picked up" Bova's steward badge and "looked at it real close," and then looked at Bova, and "gave ... a dirty laugh and walked away." - With regard to his discharge, Bova testified as follows : On August 13, 1943, Bova was ordered,to report to Personnel Director Knoebel's 11 we do not construe the actions and statements of Dunlap on August 2 , in the same manner as did the.Trial Examiner , who found that the incident unquestionably impressed Matthaes and influenced him in his decision to recommend W elch's discharge We are unable to ascertain , on the basis of the record, why Dunlap 's interest on August 2 in insignia that welch had been wearing for several months should influence Matthaes in recommending Welch' s discharge Is The Trial Examiner found, in accordance with Bova's testimony, that Buffington was promoted to assistant foreman in the latter part of July 1943, and that Clifford Nuckles become Bova's set-up man Neither Buffington nor Nuckles was called as a witness We cannot concur in the Trial Examiner 's-finding with respect to Buffington 's status in July, for his name does not appear upon a list of supervisory employees in Department'14 as of August 12, 1943, which was introduced in evidence Ile is shown to be a job-setter, that is, a set-up man , on these exhibits. Furthermore , for the reasons stated below , we do not credit Bova's testimony generally We find that Buffington was a set-up man and not a supervisory employee in July 1943 His actions and statements as a set -up man therefore are not attributable to the respondent 448 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD- office, where Knoebel and Roscoe Shirkey; captain of the plant guards and acting employment manager as of that date, were present. Knoebel told Bova that there was going to be a lay off in Department 14,'that since Bova was one of the "oldest" employees.in the depart- ment, he was to have first-choice of another job, and that there were some openings "back in binoculars" _on the secol}d or third shifts "on the bench, but I don't believe you want that." Bova replied that he "wouldn't accept the second or third trek on the bench." Knoebel then stated that be regretted that these were the only jobs open, and that he would have to give Bova a lay off. Bova left Knoebel's office, but returned within 10 minutes and told Knoebel that he had changed' his mind and was willing to accept any job that Knoebel had to offer. I noebel replied that he had no vacancies 'With the exception of a job which might be refused by a set-up man. After Bova 'left, the re- maining male operators 'in Department 14, many with less seniority than Bova, were called into Knoebel's office in a group and offered jobs in other departments. Bova worked on Saturday, August 14; when he reported for work on Monday, August 16, Buffington told Bova that he was not supposed to work and that he should report to the personnel office. Bova went to the personnel office and saw Shirkey, who filled out a paper entitled, "Notice of Separation," aild handed,,it to Bova.19 After obtaining his tools, Bova left the`-plant and, since that time has not been recalled to work by the respondent. IIt is conceded that the departmental lay-off was not, discriminatory, being caused by the discontinuance of "sperry" work in Department 14. After the lay-off,' which occurred on or about August 14, 1943, only set-up men and a few especially skilled operators were retained in Department 14. ' It is undisputed that Bova did not fall into eitlier of these categories. The remaining employees involved in the lay-off were offered jobs in other departments in accordance with their senior- ity or length of service with the respondent. `Knoebel and 'Shirkey testified that on August 12, they interviewed, in a group, the set-up men of the department and that on August 13, they interviewed the "This slip seas introduced in evidence In the space provided for the date of separa- tion, it contains an orignial entry in pencil of "7-22-42 " This date has been scratched out in ink and another entiv of "8-14-43" has been entered in ink immediately above it, is to be noted that the respondent 's personnel records disclose that Bova was hired on 'Jn13 22, 1942, and not on July 23, 1942, as testified to by Bova As the reason for separa-, tion„the 'slip contains an original entry in ink , "Quit dissatisfied'' iihich has been crossed out in ink and the entry in pencil of "No work" substituted In the space provided foi the signature of the geneial foreman, the Initials "TAG" have been°signed' in pencil.- Bova testified that Shirkey gave him the separation slip, and'we credit his testimony in this connection Shakey denied that lie gave Bova the separation slip in , question. Knoebel testified that such a slip is an inter-office notice of separation which is submitted by a foreman to the personnel office ; that such slips are never given to emplo3 ees ; that the initials on the slip in question are those of GreenRaid, general foreman 'and superintendent of production; and that Greenw,ild would have signed such a slip in the absence ot`Spires, - iNho vyas Bova's foreman and on vacation at that time RANCO, INC. 449 remaining employees singly in accordance with their seniority and offered them positions in other departments where vacancies existed. The Trial Examiner credited their testimony in this respect and found that Bova was "confused" in attributing the group interview to the employees called in after his alleged second conversation with Knoebel on August 13. Knoebel and Shirkey further testified that Bova had the greatest seniority of the operators in his group and therefore was interviewed first on August 13. Knoebel denied that lie or Sbirkey toll Bova that "he wouldn't want" certain jobs offered him. Both Knoebel and Shirkey denied that they again saw Bova on August 13. Knoebel testified that sometime on Saturday, August 14, Bova returned to his office and stated that lie had changed his mind and wanted one of the jobs previously offered. According to Knoebel, he took Bova to Shirkey's office and informed Sbirkey that Bova de- sired a job; Shirkey investigated and found that no positions remained unfilled: The Trial Examiner credited Bova's testimony and found that he was discriminatorily discharged on August 16, 1943. We do not agree with the Trial Examinei's resolution of the testimony or with his conclusion. The issue with respect to Bova turns basically upon cred- ibility of the witnesses; more specifically, Bova's version as to the events occurring on August 13 and 14, as opposed to that of Knoebel and Shirkey. In our opinion, there is no reason to discredit the testi- mony of-the respondent's witnesses, Knoebel and Sbirkey, whose ver- sions of the lay-off are patently more plausible than Bova's. Bova was confused, as the Trial Examiner found, in testifying that, on August 13, a group of 14 or 15 employees were called into the office after he had been refused a transfer to another job. It is clear that the group interview occurred the previous day, August 12, when the set-up Wien were called in,.and that all interviews on August 13 were single and -personal. We do not agree with the Trial Examiner that, as a test of accnra'cy of recollection, it was immaterial that Bova should - recall as a group interview a series of individual interviews lasting throughout the day, and assign to August 13 a group interview which had occurred the previous 'day. The "Notice of Separation" slip, mentioned above, has little significance other than to indicate that it was made out inexpertly and came into Bova's 'possession inadver- tently. - Bova testified that it was given to hint on August 16. - It is dated, however, August 14, the day when,,according to Knoebel and Shirkey, Bova told them of his change of mind; and the explanation "no work" is substituted for the notation, "quit dissatisfied," which -latter remark reflected Bova's reaction at the first interview.20 "0The respondent's personnel recoids. other than the aboveanentioned separation slip are dated August 10, 1943, and state "Voluntary quit' and "hick of work" as the reasons for the separation. 1 001248-4:3--clo 57--80 450 ' DECISIONS OF NATIONAL LABOR I RELATIONS• BOARD We accordingly find that testimony of Knoebel and Shirkey to be credible and do not credit Bova. The evidence therefore establishes that on August 13, Bova, in accordance with his seniority rights, was, given first choice of•all available jobs; that, when,he declined to ac- cept any job open at the time, he was told he would have to take a lay-off; that he returned the next day and announced a willingness to take any job, but that all available jobs had meanwhile been assigned to other employees on the preceding day and there was no work avail- able for Bova. We accord no significance, under the circumstances, to the inspection by Spires of Bova's union badge in August 1943,, as described above. We conclude.and.find.that Bova was not discrimi^ia-, torily discharged within the meaning of Section 8 (3) of the Act. 'Ilavin& found that the respondent has not interfered with, re- strained, or coerced its employees in the exercise of the rights guaran-' teed in Section 7 of the Act, has not dominated and interfered with the formation and administration of the Independent within the meaning of Section 8 (2) of the Act, and has not discriminated in re- gard to the hire and tenure of employment of Charles Welch and John Bova, we shall order that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case„the Board makes the following: CONOLUSIONS OF LAW 1'. United Automobile, Aircraft and Agricultural Implement Work- ers of America, C. I. 0., and Ranco Employees Independent Union are labor organizations, within the meaning of Section 2 (5) of the Act.' 2. The operations of the respondent occur in commerce within the meaning of Section 2 (6) and (7) of the Act., 3. The respondent has hot engaged in and is not engaging.in unfair labor practices within the meaning of Section 8 (1), (2) and, (3) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relation's Board hereby orders that the complaint against Ranco, Inc., Columbus, Ohio, be, and it hereby is, dismissed. \