Portage-Manley Sand Co.

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLusIONS OF LAW 1. Radio Broadcast Technicians Local Union No. 1215, International Brother- hood of Electrical Workers, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All full-time and part-time broadcast technicians and engineers of the Re- spondent, excluding all other employees, announcers, office and clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Radio Broadcast Technicians Local Union No 121:,, International Brother- hood of Electrical Workers, A. F. L., was on October 30, 1949, and at all times thereafter has been the exclusive representative of all of the employees in the above appropriate unit, within the meaning of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Robert E. Dalton, thereby discouraging membership in the Radio Broadcast Techni- cians Local Union No. 1215, International Brotherhood of Electrical Workers, A. F. L., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By refusing on December 10, 1949, and at all times thereafter, to bargain collectively with Radio Broadcast Technicians Local Union No. 1215, Interna- tional Brotherhood of Electrical Workers, A. F. L, as the exclusive representa- tive of its employees in the aforesaid appropriate unit, the Respondent has -engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] PORTAGE-MANLEY SAND COMPANY a'nd INTERNATIONAL ASSOCIATION OF MACHINISTS. Case No. 18-CA-?V,. July 31, 1951 Decision and Order On April 23, 1951, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. 95 NLRB No. 91. PORTAGE-MANLEY SAND, COMPANY 863 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member .panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions, and .recommendations of the Trial Examiner, except .insofar as they are inconsistent with the Decision and Order herein. 1. We agree with the Trial Examiner 's finding that by asking em- ployee Spring about the scheduled union meeting and its purpose, and by threatening to cut the. employees' hours of work in the event they organized a union, the Respondent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. The Trial Examiner 's finding is based upon his crediting Spring's version of a conversation on April 29,. 1950, be- tween Spring and Plant Manager Manley,' and discrediting Manley's version. We find that the Trial Examiner properly resolved the issue of credibility, and that the conversation between Spring and Manley took place as related by Spring.' 2. Fred Spring. The Trial Examiner's finding that Spring was discharged because of his activities on behalf of the Union, in violation of Section 8 (a) (3) of the Act, is amply supported by the record. Thus Spring testified without contradiction . that on the Saturday preceding the Monday of his discharge , Manley discussed with him in detail the construction of a conveyor belt for the Respondent 's Essex plant, a project of several months ' duration. No mention was made of the impending discharge. The pay checks for Spring and for employee Lasse, who was also discharged on Monday, were made out the day before, on ' Sunday , an admittedly unusual procedure . Spring was; discharged by Manley, who came to Spring's home early Monday- morning for the purpose of discharging him. Admittedly, Manley did not give Spring, an employee of 11 years, any reason whatsoever for his discharge, and as the Trial Examiner found, Manley's denial that Spring asked , for an explanation is incredible . On the other hand, Spring credibly testified, and his testimony was supported by that of his wife, that he did ask Manley whether the Union was responsible for his discharge, and that the latter did not deny but intimated that ' The Manley referred to in this Decision and Order is Tom Manley as distinguished from his brothers Lyle, Dwight, and George Manley. 2In view of the fact that we accept Spring's rather than Manley's version of his con= versation, we shall not pass upon the question whether or not the conversation, as related by Manley, would amount to a violation of Section 8 (a) (1) of the Act. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not agree with the discharge and that he thought his brothers had done wrong in deciding to discharge Spring. The Respondent's defenses to the prima facie case of the General Counsel are unconvincing. The instances selected by the Respondent to show that Spring did not get along with his fellow employees were -isolated examples of interemployee friction extending over a period of 5 years. There was no showing that any of these instances had been reported to management. With the exception of one employee who found Spring "sarcastic," none of the Respondent's or the Gen- eral Counsel's witnesses testified that he could not get along with Spring. The contention that Spring was insubordinate was not borne out in the record. Spring's supervisor, Horton, testified that while Spring would complain about being ordered to work outside in bad weather, he would generally do as he was told. Admittedly Horton never complained to management about this alleged insubordination,- Iior were there any instances of insubordination immediately preced- ing Spring's discharge. The Respondent also claims that it discharged Spring because the construction work he was doing had been transferred to its Dousman, Wisconsin, plant. Like the Trial Examiner, we doubt that the trans- fer was made in good faith. We do not, however, pass on that point, but find that, even if the construction work was transferred in good faith, Spring's discharge was caused by his union activity and not by, the transfer of his construction work. Admittedly, construction work did not start at Dousman until over 21/2 months after Spring's discharge. Moreover, only part of -Spring's work at the Portage plant consisted of construction work for any of the Respondent's plants; a large part of his work consisted of maintenance work on existing machinery, which had to be performed in Portage. There- after, the transfer of the work afforded no immediate reason for discharging Spring on May 8. Indeed one aspect of the transfer of the work further supports a finding that Spring's discharge was discriminatorily motivated. Clark, the man in charge of the construction work at Dousman, tes- tified without contradiction that he "inherited" a construction crew none of whom had any construction experience, and that eventually he hired an additional member. Spring had worked at Dousman before, and had had 11 years of experience with the Respondent. Under these circumstances, we find that had there been insufficient work for Spring at Portage, the Respondent would have offered him an opportunity to work at Dousman,_but for his activities on behalf of the Union. PORTAGE-MANLEY SAND COMPANY 865 Accordingly, we find that the Respondent discharged Fred Spring .because of his activities on behalf of the Union in violation of Section 8 (a) (3) and (1) of the Act. Wilbert Lasse. We agree with the Trial Examiner's finding that Lasse was also discharged by the Respondent because of his activities on behalf of the Union. The Respondent claims that it laid off Lasse because the temporary work for which he was hired had come to an end. Lasse denies that he was hired for a temporary job, and claims .that at the time ofthis hiring he was told that his job was permanent. The Trial Examiner credits his version rather than Supervisor Hor- ton's as to this matter. While Lasse's testimony showed that at times he had a faulty memory, the record shows that Horton's was faulty too, and there is nothing in the record to indicate that the Trial Examiner, who had the opportunity to observe both witnesses, re- solved the issue of credibility improperly. Moreover, even if Lasse had been hired on a temporary basis, the record does not support the Respondent's claim that at the time of Lasse's layoff there was no work for him. Lasse, a common laborer, was Spring's helper and was discharged at the same time as Spring. For the reasons set forth in discussing Spring's discharge, we do not believe that the eventual transfer of construction work to Dousman necessitated any layoffs at the time of Spring's and Lasse's discharges. Lasse as a common laborer could have been used in various opera- tions at the 'Respondent's plant. Within 3 weeks of his discharge, an additional common laborer was hired; by the middle of July, the Respondent's entire working force was larger than at the time of Lasse's layoff, and included five laborers hired since then. Despite the fact that at the time of Lasse's discharge he had been promised reinstatement as soon as work was available, and this promise had been repeated when, several weeks after his layoff, he again requested work,. no job was offered to him when these new employees were hired. Moreover, at the time of Lasse's layoff, the Respondent re- tained an employee with less seniority, despite the fact that the record .shows that Lasse was a satisfactory, employee. When Lasse asked Manley whether he had been laid.off because of his union activities, the latter did not reply. The Respondent claims that it did not know of Lasse's activity on behalf of the Union. We find this claim without merit. Lasse was the first employee to suggest organizing a union, and Spring's activi- ties had been undertaken at Lasse's behest. Manley admitted that he went to the plant on April 29, the day before the scheduled union meeting, to find out what it was all about. To accomplish this pur- pose, he interrogated Spring about the reasons for the employees' .desire to organize a union. Because of this interrogation, and' Man- 866 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD ° ley's announced determination to find out about, the Union, the close working relationship between Spring and Lasse, and the small size of the Respondent's plant, we find that the Respondent knew that Lasse had been active on behalf of the Union. From the facts set forth above, including the unsatisfactory explanations for Lasse's layoff; and the failure to recall him when work was available, we further find that the Respondent discharged Lasse because of these activities, in violation of Section 8 (a) (3) and (1) of the Act. No exceptions having been filed to the Trial Examiner's failure to find that the Respondent violated Section 8 (a) (1) of the Act by increasing the wages of its employees on April 30 or May 1, 1950, -the Trial Examiner's finding in that respect is affirmed. Order_ Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Portage-Manley Sand Com- pany, Portage, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Discouraging membership in the International Association of. Machinists by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any, term or condition of employment. (b) Interrogating its employees concerning their union affiliation, activities, and sympathies, and threatening economic reprisals against its employees because of their union membership, affiliation, and activity. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the International Association of "Machinists or any other labor organization, to bargain collectivelgy ;through representatives of their own choosing, and to engage in con- -certed activities for the purpose of collective bargaining or other • mutual aid or protection, or to refrain from any or all of such activi- ties except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Fred J. Spring and Wilbert.Lasse immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. .:'.'(b) Make whole Fred J. Spring and Wilbert Lasse in the manner set forth in the section of the Intermediate Report attached hereto PORTAGE-MANLEY SAND COMPANY 867 entitled "The Remedy" for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. _ (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay and the right of rein statement. due under the terms of the Decision and Order. (d) Post at its plant at Portage, Wisconsin, copies of the notice attached to the Intermediate Report and marked "Appendix A.113 Copies of said notice, to be furnished by the Regional Director of the Eighteenth Region, shall, after being duly signed by the Respondent or its representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of this. Decision and Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as, it alleges that by granting a wage increase to its employees on April 30 or May 1, 1950, the Respondent violated Section 8 (a) (1) of the Act, be and it hereby is, dismissed. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed June 14, 1950; by the International Association of Ma- chinists herein called the Union, the General Counsel of the National Labor Relations Board herein called the General Counsel and the Board , respectively, by the Regional Director for the Eighteenth Region ( Minneapolis, Minnesota), issued his complaint dated November 13, 1950, against the Portage-Manley Sand Company herein called the Respondent alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136 , herein called the Act. Copies of the complaint, the charge, and notices of hearing were duly served upon Re- spondent and the Union. With respect to the unfair labor practices the com- plaint as amended,' alleged in substance that ( 1) Respondent from on or about 3 This notice, however, shall be and it hereby is amended by striking from the first paragraph thereof the words , "Recommendations of a Trial Examiner " and substituting in lieu thereof the words , "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be inserted before the words, "A Decision and Order," the words , "A Decree of the United States Court of Appeals Enforcing." ' At the close of the hearing over the objection of the Respondent , an amendment of the complaint was allowed adding the allegation that on or about April 30 or May. 1, 1950, Respondent gave a general wage increase in order to discourage concerted activity and membership in the Union. 961974-52-vol. 95-56 868 DECISIONS . OF NATIONAL' LABOR RELATIONS BOARD April 28, 1950, questioned its employees about their union beliefs, activities, and support, and warned its employees that ' the workweek would be reduced to 40 hours if the Union were successful in organizing its employees ; (2) on or about May 8, 1950, discharged Fred J. Spring and Wilbert Lasse and has since failed and refused to reemploy them for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and for other mutual aid and protection. In its answer 3 as amended,3 Respondent denied that it had engaged in or was engaging in any of the alleged unfair labor practices. The answer further affirmatively alleged that (1) Lasse's employment was of a temporary nature, of which fact he had been informed ; that Respondent had no knowledge of Lasse's union activities at the time of his discharge ; and that the duties for which he had been hired had been concluded, no one being hired to take his place ; and (2) that Spring was discharged for insubordination, failure to execute orders, fighting with fellow employees, committing acts of violence to fellow employees, and refusing to work at the time and location specified by the Em- ployer ; and further that the work which had been performed by Spring was transferred to another plant, and that in view of Spring's deficiencies it was determined that he would not be a suitable man either to superintend or work with the program as revised. Pursuant to notices a hearing was held at Portage, Wisconsin, January 8 and 9, 1950, before Eugene E. Dixon, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel, partici- pated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. The General Counsel's motion to conform the pleadings to the proof in matters not of substance was granted at the end of the hearing without objection. Although given the opportunity, no one argued the issues orally on the record but briefs were duly filed by both the Respondent and the General Counsel. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT - I. THE BUSINESS OF THE RESPONDENT Portage-Manley Sand Company is a corporation organized under the laws of the State of Illinois, having its principal office located at Rockton, Illinois, and operating plants located at Byron and Essex, Illinois ; Dune Park and Michigan City, Indiana ; Herman, Missouri ; Dousman, Wisconsin ; and a plant located at Portage, Wisconsin. At the Portage plant, the Company is engaged in the mining of industrial sand. During the course of its business, it annually mines industrial sand valued in excess of $500,000, of which amount 66 percent is shipped to points outside the State of Wisconsin. I find that Respondent is engaged in commerce within the meaning of the Act. 3 Respondent's answer having been filed with the Regional Director after the time had expired for filing the answer as provided in the Board's Rules and Regulations, Series 5, Section 203.20 was presented to the Trial Examiner with the motion for leave to file which had been made to the Regional Director. Over objection of the General Counsel, Respondent's motion was granted and the answer received as part of the record. 3 At the time the above amendment to the complaint was made, Respondent asked leave to file a written answer thereto for the purpose of setting forth wage increases made in other of the Respondent's plants. No such answer has been received. However, in view of discussion on the record between Respondent's counsel and counsel for the General Counsel and the Trial Examiner, it is deemed that the amended allegation in the complaint is denied. PORTAGE -'MANLEY SAND COMPANY 869 II. THE ORGANIZATION INVOLVED International Association of Machinists is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Interference, Restraint, and Coercion As a result of their observation and knowledge of the unionization of the 'Columbia County highway employees in the spring of 1950, Respondent's em- ployees became interested in establishing their own union 4 At noontimes and after work Lasse discussed the matter with various employees and, having been secretary of the Dane County 6 Highway Employees Union, his experiences and activities there were disclosed to the others in these discussions. Finally it -was agreed, apparently on the suggestion of Lasse, that, since Spring's duties took him to Madison quite often, on his next trip to Madison he should contact -the union officials at the Wisconsin foundry for assistance in getting. a union started. About April 20, Spring talked to the union steward at the Wisconsin foundry in Madison, informing him of the situation at Portage. On Friday evening, April 28, a union representative called Spring and arranged for a meeting of the employees to be held the following Sunday morning, leaving it -up to Spring, however, to arrange for a hall in case of rain. Spring drove over to employee Emory Tucker's home that night to inform him of the developments. The next morning Spring 'informed several employees about the impending meeting. Lasse also discussed it with several employees. In the course of these discussions the need for a hall was mentioned apparently in a group of employees in which both Lasse and Spring were present. Clayton Dumke stated that he knew the janitor of the Veterans' Hall in Portage and that through him they might arrange to hold their meeting there. Lasse suggested that Dumke investigate the possibility during the lunch hour. Dumke did so and reported that the use of the Veterans' Hall for that Sunday morning was arranged. That afternoon about 4 o'clock, Respondent's general manager, Tom Manley, came into the shop where Spring and Lasse were repairing screens and asked Spring to step outside. According to Lasse's testimony, as Spring and Manley went out the door he heard Manley mention something about a union. According to Spring's testimony, Manley asked : "Have you located a hall for your union meeting?" to which Spring replied that he had nothing to do with the hall. Manley further asked why the employees "wanted to go union" and queried Spring as to whether the reason was dissatisfaction with wages, hours, or some- thing else. Spring replied that he had not "heard much, the only thing is we'd organized in order to stop some of that language that was used by our foreman." Manley stated that if the employees wanted to "go union" Respondent would not stop them but that they would be'cut down to a "forty-hour week and put on a third shift." ° ' Manley's version of this incident was that he stated to Spring "I understand that there is to be a meeting and what is it all about?" Spring replied, "Some of the men want to get rid of Horton, some men would like more money, and * The county highway employees - had been engaged in some stripping operations at Respondent's plant at this time. ° The record mistakenly shows it as Dean County . There is no such county in Wiscon- sin. Dane County, however, is contiguous to Columbia County, of which Portage is the county seat, ° At this time the plant was operating 0 to 7 days a week with a 10-hour day shift and an 11-hour night shift. 870 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD• some would like shorter' liours " Manley then' asked : "Would the men like a forty-hour week?" to which Spring did not reply.. Even if Manley's version of this incident were to be credited, it is clear that his request for information about a meeting of his employees, whether or not he mentioned the word union, was interrogation about their concerted activities, was so understood by them, and was intended to have and, as will appear, did have the same coercive and restraining effect on the employees as if the Union had been specifically mentioned? It might even be said that in its context the question. to Spring by Manley, "Would the men like a forty-hour week?" constituted a threat of economic reprisal by Respondent should the employees carry out their apparent purpose of banding together for concerted action with respect to the terms and conditions of their employment. But Manley's version is less worthy of credit than Spring's which is somewhat corroborated by Lasse. The record amply demonstrates the contradictory and unreliable nature of Manley's testimony. Thus, he testified on cross-examination that he told Spring that he was "surprised" at the news of the meeting. Then he denied making that statement. He also testified unconvincingly that he did not recall who informed him of the meeting, saying that he heard it on the street in Portage.8 He further denied that he had received any information about who was arranging the meeting. As a partial explanation as to why he then went to Spring for information, he testified that he drove to the plant and Spring "happened to come out of the building" as he drove up, as if to leave the impres- sion that his meeting. with Spring was accidental., He then admitted that his purpose in driving to the plant was to ask. Spring about the meeting but he later testified that he did not "know as it was necessarily Mr. Spring" he went to see. By contrast, Spring's testimony on this incident was straightforward, plausible, and unshaken. I credit Spring. Accordingly, I find that by asking Spring about the meeting and what motivated it, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. I also find that by informing Spring that in the event the employees organized a union, the operations would be put on a three-shift, 40=hour basis, Respondent exceeded the bonds of permissible comment and, in like manner, infringed upon the rights of its employees a That this conduct on the part of Respondent was no innocuous incident is apparent from the result it had on the employees. When Spring came into the shop after his discussion with Manley, he told Lasse what Manley had said. Both Spring and Lasse thereupon informed other employees of the incident. Just before quitting time Tucker came to Spring and suggested that rather than-go on a 40-hour week they had better forget the Union'and stay on a 60-hour basis. Up to this time there had been considerable sentiment for a union. But when 7 Jasper National Mattress Company, 89 .NLRB 75. 8 In this connection Manley's testimony implied that he got the information more or less as a matter of rumor or small-town gossip , yet he further testified that he learned of the meeting the night before. It will be recalled that it was only the night before that Spring had received word from the union representative in Madison of his availability for a meeting, and that Spring had informed only one employee of this fact. In view of Manley's testimony in effect that he assumed it to be his responsibility to investigate any activity around the plant , and his great surprise at learning of the meeting , it is unexplainable why, if he knew of the meeting the .night before, he waited until the close of the following day to investigate it. . e Brown and Root, Inc., 86 NLRB 520. It appears Respondent is subject to the Fair Labor Standards Act and thus is liable for time and one-half for hours worked in excess of 40 in any one week. • 6 PORTAGE-MANLEY SAND, COMPANY 871 the union official came to Portage for the scheduled meeting the following Sunday none of the employees appeared. As amended at the hearing the, complaint alleged that. on April 30 or on May 1, 1950, Respondent granted a general wage increase for the purpose of dis- couraging the concerted activity or union membership of its employees. The evidence shows that on April 30, 1950, Respondent granted a general wage increase to the Portage employees of 10 cents an hour. It further appears that in its operations Respondent granted other general wage increases during the year 1950 as follows : At Portage on July 23 and September 19, 1950; at its Indiana plants in February and October 1950; at Essex in September 1950; and the Dousman in June, September, and December 1950. Geng's testimony about these increases was that early in the spring of 1950 it was decided to raise wages .and prices "before everything was frozen." There is no testimony or evidence regarding the circumstances or details sur- rounding the April 30 increase at Portage. While its correlation with the appearance of the Union at Portage is suspicious, on this record I find that the allegation is not supported by-the preponderance of the evidence. Accordingly, I find that Respondent did not grant the increase of April 30 for the purpose of discouraging the concerted or union activity of its employees. The Discharge of Fred J. Spring Spring was employed as a common laborer by Respondent's Tom Manley at the Dousman, Wisconsin, plant in 1939, at a starting wage of 40 cents an hour. After about 2 years at Dousman, during which he spent several weeks on detail to the Herman, Missouri, plant, installing screens and doing maintenance work there, he was transferred to the Byron, Illinois, plant. There he spent 9 months in the construction and directing the operation of a new plant. He was then transferred to Portage where he had charge.of the night operations for about 2 months prior to his being assigned to assist George Manley in construction and maintenance work. When George Manley left in 1945, Spring took his place and remained on that work until his discharge on May 8, 1950. At this time he was receiving $1.25 an hour. Although up to the middle of 1950 the necessary construction, fabrication, and installation work for each plant was done on an individual plant basis, being handled by the personnel of the particular plant involved, Spring was sometimes called upon to participate in such work at the other plants, at times taking a crew with him." During his last 2 years with Respondent, the total time so spent did not exceed more than 6 to 10 weeks, most of his time being devoted strictly to functions involving the Portage Plant. At about 6: 30 a. m. on Monday May 8, Manley called on Spring at his home and found him in the back yard putting up a clothesline. According to Spring's testimony, as substantially corroborated by Mrs. Spring in hers,u after mutual "good mornings" Manley said he had something for Spring and handed him an envelope containing a check for his wages in full, plus 6 weeks in advance, and another check for 2 weeks' vacation. • Spring said, "I thank you. I supposed the union done this." Manley replied, "Well that's the way Lyle, 'Dwight, and 10 Par the most part this involved taking one man with him for no more than a day or two at a time, the Herman, Missouri, job, apparently being the only exception. 11 Mrs. Spring testified that she happened to be coming downstairs when Manley was talking to Spring in the back yard and overheard the substance of the conversation from an open window at the landing. 872 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD George wanted it, but I kiind of think they are doing Wrong.,, 1' Then, upon Manley's request, Spring gave Manley keys to the plant from his key ring and Manley left. On direct examination, Manley, while admitting going to Spring's house that Monday morning before 7 o'clock and giving him the two checks, denied that Spring made an allusion to the Union, or that he replied "that's the way Lyle, Dwight, and George wanted it," and that he thought they were doing wrong. Except for this denial, Manley's direct -testimony does not go into detail as to this conversation. On dross-examination, however, Manley testified as follows : [I] Walked around in the yard with the checks in my hand. I said, "Fred, I have two checks for you." And Fred said, " So, I'm all through." And I said, "That is correct." Well, that was all. I don't know if there was anything else to it or not. He further stated on cross-examination, however, that he told Spring that ""it was the opinion of the head office that that should be done," and that "Lyle and Dwight are in favor of doing this." But he denied telling Spring that he thought Lyle and Dwight were wrong,'or telling Spring anything similar to that. Manley was then asked, "Did you think that they were wrong?" He replied : "Well, after the accumulation of various events and so forth, I thought so, yes." On redirect examination, Manley changed his testimony, stating he' had not meant to give this last answer and testified that he thought the discharge of Spring was "all Tight." I conclude and find from the foregoing, particularly when considered in the light of the previous analysis of Manley's credibility, that Spring's version of his discharge is more nearly in accord with the truth. I credit Spring's testimony. A day or two after his discharge, Spring returned to the plant and told Walter .Halverson, an office employee, that he would like a letter of recommendation. Halverson said he would see Manley about it, but that Manley was not, there at the time. Spring told Halverson to send, him the recommendation when he obtained it. Halverson referred the question to Karl Geng, the secretary- treasurer and member of the board of directors of the Company, at the home office. Geng told Halverson that he would handle it. No recommendation was ever given to Spring because, in Geng's words, "we certainly didn't feel after all we had gone through with him that we could give him a letter of recommen- dation to another company." - • It is conceded that Spring was never given any explanation for his discharge, nor was Spring's credited testimony that he had never received any complaint about his work from General Manager Manley,. or from General Superintendent Elmer Horton, denied. Respondent's Contentions Respondent's defense regarding Spring's discharge in substance is based on two'premises': (1) That the work Spring was performing at Portage was being transferred to the Dousman plant, and (2) by reason of Spring's temperament, his inability to get along with his fellow employees, and his failure and refusal to execute orders, it was against the best interests of the Company to consider his transfer to Dousman, either in a supervisory or minor capacity. Respondent further contends that it was without knowledge of Spring's union activity at the time he was discharged. 22 Lyle and Dwight Manley are both directors of the Respondent. Lyle also holds the position of president. George Manley was once connected with the Portage plant but left in 1945. Apparently he was never financially interested in Respondent. PORTAGE-MANLEY SAND COMPANY 873 Manley's interrogation of Spring regarding the union activities of the em- ployees and the threat to Spring to reduce the workweek to 40 hours, as found above, clearly nullifies the latter contention. The circumstances regarding the discontinuance of the fabrication and con- struction work at Portage and the transfer of those functions to Dousman were described in Geng's testimony as follows : On December 29, 1949, a director's meeting was held to evaluate the coming year and discuss the capital expenditures involved in the sizeable construction pro- gram that was contemplated. Late• in March of 1950, another meeting of the board of directors was held in which it was decided that the best way to imple- ment and carry out the construction program was to set up a mixing plant at the Byron, Illinois, location, and to discontinue sand production at the Dousman plant and turn it into a construction and fabricating shop with a minimum crew of about six men. Thus it was contemplated that no further fabrication or con- struction would be done at any individual plant, but that those functions would be centralized in the Dousman plant." The question of who was to be put- in charge of the new operation at Dousman arose. Dwight Manley suggested that Spring would be the logical man due to his long service with the Company. Tom Manley pointed out that "they had had considerable difficulty with" Spring and was of the opinion that he would not be able to get the work out and was not the kind of man who could act as superin- tendent. Lyle Manley added a comment that Spring "apparently wasn't the most stable man in the world" in view of an incident that had occurred "a couple of years" prior to that time." It was then decided that an effort should be made to hire Allan Clark, a former supervisory employee, to take charge of the Dous- man operation, particularly in view of his buying experience and successful record operating a crew which Spring, according to Geng's testimony, did not have. Although Geng first testified that at this time it was decided that the functions being performed by Spring at Portage were to be discontinued, it is significant that there is no indication in Geng's testimony that Spring's discharge was dis- cussed or even contemplated in the above meeting. On the contrary, Geng testi- fied that the decision to discharge Spring was made "just 'about the last of April" and that "the final decision was left in the hands of Lyle Manley." " The actual decision apparently was made on May 6, since it was late Saturday after- noon, May 6, that Dwight Manley informed Geng of the decision to discharge Spring and instructed him to draft the final checks for Spring, and have Horton come down to Rockton to pick them up 1° The reason given by Geng in his: testimony for not considering Spring in a subordinate position at Dousman was that Respondent did not feel "it was possible to change him over into a common labor classification, didn't think it would be fair to the man to do it, so that 13 The record is not clear just what construction involved, and it is obvious that in its: ordinary sense construction could not be separated from the individual locations. How- ever, it would appear that since fabrication and installation were to be handled for alit plants by the. Dousman crew, it is apparent that Geng meant that all construction work. also was to be so handled. 11 This incident involved a trip from Portage to Rockton, Illinois, by Spring and three other employees for the purpose of prevailing upon Respondent to discharge Elmer Horton, the Portage plant superintendent, because of the latter's swearing at employees. Whether or not Spring acted as spokesman is not clear, but there can be no doubt that all four employees acted as a group in this matter. 11 Tom Manley testified that the decision to discharge Spring was made at a meeting of the board of directors sometime in March. 19 Dwight Manley had been away for a period of 2 or 3 weeks prior to Spring's discharge and had just returned to Rockton on Saturday afternoon, May 6. 874 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD he either had to go on up or there wasn't any other spot in the minds of the top management." - With respect to the Dousman situation, Allan Clark testified that on April 11, Tom Manley phoned him and told him the- "Dousman plant was a mess, they couldn't get any sand out of it, but they. had a lot of orders and they wanted to get the orders filled up because they were going to close down the plant, that they did intend to make a fabricating plant out of it." Clark took charge of the, plant immediately after his telephone conversation with Manley. From that time until June 19, when the last car of sand was shipped, the Dousman plant continued to produce sand, and it was not until the latter date that preparations. were begun to change over to fabrication and construction work exclusively. In July, Respondent started building machinery at Dousman for the Byron plant, and on July 17, the first item, a conveyor, was shipped to Byron. At the time Clark took over the Dousman plant. he "inherited" a crew of five men, one of whom he later displaced with a new man. This crew was a "sand crew" and had no previous special experience with fabrication or construction. Although there is no direct evidence to refute the existence of Respondent's intention of ultimately centering all fabrication and construction in the Dousman plant, and although the record establishes that the intention was carried out, there are factors, nevertheless, that raise doubt as to the good faith of Respond- ent's actions as connected with the Dousman situation. . Just how crystallized the decision was to discontinue production and turn the Dousman plant into a fabrication and construction plant in the March director's meeting or prior to the union activities at the Portage plant, is a question that first arises, since it appears from Geng's subsequent testimony that either at that. time or later, there apparently was still some doubt about the matter."' Further- wore, although Clark testified that he was told, when he was hired, that Re- spondent "did intend" to change Dousman into a fabricating plant, it is clear that for the first 2Y2 months at Dousman he was concerned solely with sand production and apparently with straightening out the "mess" at Dousman. Moreover, although it appears that Spring's dismissal was contingent upon the transfer of his functions to Dousman, it was not until about a month and a half after Spring's discharge that the Dousman plant took over and began exercising those functions. When it is considered that the Portage plant was the largest of Respondent's plants and that except for the Byron changes, the ,only substantial construction revealed in the record to be under way as part of the contemplated "sizeable construction program" was the construction being done at Portage, the decision to centralize such functions in the Dousman plant, viewed in the light of the foregoing considerations, seems somewhat odd. Fur- thermore, it is significant that unfair labor practice charges had been served on Respondent before sand production was discontinued at Dousman.'s In any event, since the logic of Respondent's position requires that both premises thereof be established if its defense is to prevail, the proof as to Spring's deficiency must be sufficiently convincing to overcome General Counsel's prima facie case. Respondent's evidence does not convince me. In addition to the abolishment of Spring's job, Respondent alleges in its answer that Spring was discharged for (1) insubordination, (2) failure to execute orders, (3) refusing to work at the time and location specified by the 17 After having testified that the change had been definitely decided upon in the March meeting, Geng later testified in reference either to that meeting or one in April, that it was decided that if all construction work was to be done at Dousman and if Clark could be hired, it would be necessary to discharge Spring. Is The return receipt shows delivery to Respondent at Portage on June 16, 1950. PORTAGE-MANLEY SAND, COMPANY 876 Employer, (4) fighting with fellow employees, and (5) commiting acts of,vio- lence to fellow employees. The record contains no evidence in support of alle- gations (4) and (5). The evidence in support of the remaining allegations 'either:as an independent reason for_ Spring's discharge-or--in conjunction with. the transfer of his functions to Dousman is vague,. conclusional, and otherwise inadequate to sustain Respondent's contention. Thus, with respect to Spring's refusal to work at the time and location specified by the Employer, Horton testified that "sometimes it was a little rough to get [Spring] at it, but he did it," and "lots of times [Spring] kicked on going out to help fix breakdowns because the weather was rough.". However, Horton also testified that Spring did not flatly refuse to perform tasks but that "lots of times" he would try to get out of doing them explaining at one point that "as a rule" Spring would go out as ordered but that sometimes he would comment that he had enough to.eat without going out in that weather. Horton admitted, on cross-examination, that other employees also complained when ordered to work outside. Nowhere in Horton's testimony is there any specification as to the time or place where such incidents occurred. Horton further testified that "there was times" when employees came to him to ask for assignments other than working with Spring because the latter "was disagreeable with them." But Horton further testified that although there may have been employees with specific complaints against Spring, he was unable to recall the names or dates, pertinent thereto. While Spring admitted on the witness stand that during the last couple of years of his employment he had on occasion refused to work in the rain as ordered by Horton, he explained that he did so only when there was other work to perform inside and when the outside work was not urgent. It is apparent from the record that the feeling between Horton and Spring was not cordial and that Respondent was long aware of this since both had been questioned by management a long time previously regarding an'altercation they had.. While he testified about engaging in arguments with Spring, Horton admitted that Spring was not the only employee with whom he had been in- volved in arguments. Moreover, Horton further admitted that he never dis- ciplined Spring for any conduct on his part nor did he ever threaten to do so. Although asked both on cross- and redirect. examination whether or not prior to Spring's discharge he had ever discussed Spring's shortcomings with any repre- sentative of management, Horton testified that he did not remember 1B In a similar vein Edward Frank Houk, plant foreman, testified that he would tell Spring to do something and that although Spring would do it, "he would take, his good-natured time going about it"; that in February 1950 he asked Spring about a screen that was being constructed and that Spring indicated "he thought it. was a bunch of nonsense." Further describing the incident, Houk testified that Spring "didn't say too much, but he kept at it slowly." On one occasion shortly after his return to Respondent's employment in January 1950, according to Houk's testimony, he heard Spring say he was going to the office to find out who was boss around there.20 Tom Manley's testimony about Spring was cloaked with the same vagueness and generality as was that of others of Respondent's witnesses. He testified 110 Geng testified that Horton had discussed Spring's shortcomings with Geng but only conversationally and not as an official complaint looking toward disciplinary action which was never mentioned in their conversations nor called to the attention of Spring. 20 It does not appear from Houk's testimony to whom Spring made the remark. Spring credibly testified without contradiction that he was never told what Houk 's authority was but that he knew that Houk was acting in a supervisory capacity. 876 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD that "it was difficult to get the men to work with" Spring ; that. "after they had been with him for a few weeks they wanted to be transferred to some other kind of work" ; that because of Spring's dissatisfaction with the men manage- ment supplied to him he was finally authorized to pick his own men to. help him. Manley at first testified that this authority was granted during Spring's last year of employment, but on cross-examination stated that it was during the last 2 years of his employment. Manley also testified that Spring was continually making derogatory remarks about Horton's methods or ideas, citing as an example Spring's suggestions regarding the construction of a conveyor in the spring of 1949 and his criticism of the manner in which Horton was having it done. On cross-examination Manley's testimony reveals that his recollection was not clear as to who was doing the criticizing and that it may have been Horton who was passing judg- ment on .the job. There was considerable testimony regarding Spring's alleged propensity for taking tools from other employees. In support of the generalities appearing in .Respondent' evidence in this respect, two specific incidents were brought to light-one in the spring of 1949 involving a pipe wrench which employee Robert Gray could not find when he went to collect his tools after completing some paint- ing ; the other involving Gray's request to Spring some 5 years previously for a maul. Gray reported the missing pipe wrench to Manley who asked if Spring had not returned it. Receiving a negative reply, Manley told Gray he would be given another wrench. Gray did not see Spring take the wrench. Regarding the maul, according to Gray's testimony, Gray had asked Spring for a maul and .Spring replied "Where did you get that?" I don't like this idea of your scatter- ing my tools around in the sand." Spring's testimony about the maul incident was that Gray had asked him for a maul and he said to Gray "There is one there, and don't forget where you got it." Neither of these incidents is particularly relevant to the issues as framed by the pleadings. " At most they show, as indi- -cated in the words of Dumke, that Spring "was very particular about his tools." If they are of any significance to the case, it is to show how Respondent has .attempted to magnify trivialities in Spring's several years of employment in -order to justify his discharge zl The testimony of Respondent's witnesses Dumke and Gray regarding Spring (except for the pipe wrench incident, the taking of which Manley testified he -witnessed), while being subject to the same deficiencies as is the rest of Re- :spondent's case against Spring, is otherwise valueless for the reason that neither one ever conferred with nor complained to management regarding Spring prior to his discharge. Adding his bit to the generalization offered by Respondent about Spring, •Geng testified that Spring's inability to get along with fellow employees was apparent to him by reason of Spring's having "a new helper almost every time .you turned around." On its face Geng's testimony is subject to question since it is clear that in Geng's position he had no direct connection with the Portage -operations and as appears from his testimony and the colloquy between counsel on the record, he was not familiar with the duties of the employees at Portage. In any event, his conclusion is impugned by the record. Lasse worked steadily -as Spring's helper for substantially his entire half year of employment and prior to Lasse, Demke worked with Spring the "greater share" of his 17 months' employment with Respondent. 21 Manley testified that it was not only Spring's activities during the last year of his employment that figured in his discharge, but that the consideration "spread over some time" longer than a year. PORTAGE-MAiNLEY SAND COMPANY 877 As indicated in Heider Manufacturing Company, 91, NLRB 1185, indefinite, vague testimony such as the foregoing is of little probative value. Consequently Respondent's evidence against, Spring, viewed in, the ,light of Manley's illegal conduct toward him, would hardly constitute a valid defense to his discharge. This evidence, when added to the numerous well-recognized. indicia of discrimina- tion,present in this record as to the circumstances of Spring's employment and discharge, lead to the conclusion that Spring was discharged for his union activity and not for the reasons advanced by Respondent. The fact that Spring was never criticized, disciplined, or warnedo regarding his alleged faults, the precipitous and peculiar nature of his discharge occurring at his home so soon after the appearance of the Union on the scene,' and the lack of any explanation to him for the discharge,' all support this conclusion. In this connection, Spring's credited testimony as to Manley's remark to him on the day he was discharged when Spring suggested that his union activity was probably the cause of Respondent's action, while not a clear-cut admission, certainly has significance in view of Manley's failure to deny that such was the fact. In addition to the foregoing, it appears that on Saturday afternoon, May 6, Manley and Spring had had a conversation about some work that Spring had just performed for Respondent at the Essex, Illinois, plant. At this time Man- ley informed Spring that it would be necessary for him to build another conveyor and install it at Essex as soon as material was available. Together they checked the material that they would require. Before the start of the next, -working day, Spring was summarily discharged. While Spring may have had idiosyncrasies or faults, they do not appear from this record to have been any more serious than could have been established about any average employee over a 10-year period. The only damaging fact vaguely established against Spring was his refusal on occasion to leave inside work for an outside assignment in bad weather. How many such occasions there were or when they occurred is not revealed. The only clue is Spring's own testimony that they occurred during the last couple of years 'of his employ- ment. That they were not numerous is apparent from Horton's testimony that usually Spring carried out his orders. There is, nog .indication that such an incident precipitated Spring's discharge and since no complaint or warning was ever voiced to him by management about it, it would appear that it became important in Respondent's viewpoint only in retrospect and as a defensive rationalization. There is also a basic inconsistency in Respondent's expressed feelings about .Spring. On the one hand there is Geng's implication that Spring's continued employment was not considered infeasible except as it involved his promotion to the direction of the Dousman operations and that in fairness to Spring he had to advance in the status of his employment or go out. On the other hand, Respondent would not give Spring a letter of recommendation ; yet, being un- worthy of a recommendation, Respondent saw fit to give him a substantial termi- nation payment. 12 Jasper National Mattress Company, 89 NLRB 75 ; J. C. Lewis Motor Company, ,Inc., 80 NLRB 1134. za Montgomery Ward d Co., Inc., 93 NLRB 640; The Red Rock Company, 84 NLRB 521 ; Quest-Shon Mark Brassiere Co., 80 NLRB 1149, enfd. 185 F. 2d 285 (C. A. 2) Nov. 9, 1950. To what extent Lyle Manley dominated the managerial function is not revealed. However, being president of the Company it is significant that Spring's discharge was decided upon by Lyle Manley almost immediately upon his return to the business after an absence during which the Union made its appearance at Portage. 2'Heider Manufacturing Company, supra ; McKinney Lumber Company, Inc., 82 NLRB 38; Atlantic Company, 79 NLRB 820. 878 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD Even if I were to accept the change made in the Dousman operations as bona fide, and not having been effected for the purpose of establishing a defense (which I do not do), in view, of the foregoing I conclude and find that Respond- ent's defenses as to Spring's discharge are without merit. I further find that Respondent discharged Spring because of his union activity thereby discrimi- nating against him in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. The Discharge of Wilbert Lasse Lasse was hired at the Portage plant on November 7, 1949, by Respondent's Superintendent Elmer Horton, at a starting rate of 75 cents an hour. After 3 or 4 days of cleaning railroad cars he was assigned to construction and maintenance and remained in that work as Spring's helper until his discharge on May 7, 1950. During the course of his employment, Lasse received two increases, an indi- vidual increase on April 1, 1950, of 10 cents an hour, and an additional 10 cents an hour as the result of a general increase granted all hourly paid employees at the Portage plant on or about April 30, 1950.26 With respect to the first increase, Lasse testified that=about 2% weeks before his discharge Horton informed him that he was receiving a 5-cent raise which Lasse had asked him about previously.. It was Lasse's further testimony that right after he had been hired Horton had promised him "if your work is satis- factory and everything, why, you will get a raise." Horton testified that during his first week of employment, Lasse asked for a raise and Horton told him he would have to get him broken into the job before he could raise him. Although he testified that he did not remember making the promise attributed to him, by Lasso, Horton did not deny it. To the extent the foregoing testimony is con- flicting, I credit Lasse. There is also a conflict between the testimony as to what representations re- garding the duration of his employment were made by Horton to Lasse at the time lie was hired. Lasse's version was that when he first talked to Horton about a job he told Horton that he was looking for a steady job and that Horton replied, "That's what we want, somebody that is steady and we can depend on." A few days later, according to Lasse's direct testimony, when he reported for work pur- suant to a telephone call from Horton, the latter told him, "You will have a steady job if you work out all right." On cross-examination, Lasse testified that Horton told him that if he "was a steady man and wasn't coming to work half crocked all the time like some of them were," he would have a steady job. These statements were denied by Horton. His version was that in the initial " interview he told Lasse that if he found he could use him for the winter he would get word to Lasse, and that when Lasse did report to work he was informed by Horton that the job was "for. the winter and cleaning cars." In the resolution of this conflict I again credit Lasse's version in preference to Horton's. The vague, indefinite, conclusional quality of Horton' s testimony has already been noted. In addition to these qualities, Horton's memory often failed him, sometimes on points that under the circumstances herein one would expect him to remember. Thus, on cross-examination, having been asked if he had anything to do with the decision to discharge Spring, he first answered with the statement that he thought "that was the wishes of headquarters." When the question was repeated, he answered, "I don't remember." Lasse's testimony, in contrast, was definite and detailed and except for his dogmatic position on the 26 In his testimony, Lasse stubbornly insisted that be had been granted only one wage . Increase of 5 cents on hour during his employment with Respondent which, he testified, was given him about 21h weeks before his discharge. It is obvious that Lasse was in error in this respect, but I do not attribute any dishonest motive to him thereby. 0 PORTAGE-MANLEY SAND COMPANY 879 amount of his wage increases which in itself, bespeaks of mistaken conviction rather than ulterior motive, his testimony was unshaken. In any event, to have promised Lasse a wage increase a few days after he started working for Re- spondent as found herein, would hardly be expected in connection with a tem- porary job. With these preliminary findings in mind, we turn to an examination of the -circumstances of Lasse's discharge and Respondent's defense thereto. . About 3: 30 Sunday afternoon, May 8, according to Lasse's credited testimony, Horton drove up to his home. Lasse asked him inside.. Horton said he could not come in but that he bad Lasse's last check for him saying, "Oh, I just give you .a raise and now I got to lay you off because we haven't got enough work." Horton .added, however, that as soon as the volume of work increased he would reinstate .Lasse.2' The next day, Lasse returned to the plant for his clothes. There he met Horton and asked him for a letter of recommendation. Horton took him into the office and asked Manley to write him a letter of recommendation. While Manley was writing it, Lasse asked him if his discharge had anything to do with the Union. Manley stopped writing for a moment but did not answer Lasse's -question. Several weeks later, Lasse went back to the plant to see if there was any opening there. It was indicated that there was not, but Horton again prom- ised to put him on when something became available. , The record shows that at least five people were hired on various dates after the discharge of Lasse "-all apparently at the common labor rate. Horton ad- mitted that although he knew that Lasse was seeking reemployment, he did not offer any of these jobs to him. In explanation he testified that Lasse was not qualified to perform the,job Hall was hired for, and that although Hurd had never worked for him, he felt that Lasse was not as good a man for the job Hurd was hired for because Lasse did not want'to work nights. However, it appears that Hurd was not hired for night work but for day work. Geng testified that Lasse's discharge was not decided upon or considered by the Rockton officials but that Horton made the decision to discharge Lasse at the time Horton learned of Spring's discharge when he went to Rockton to pick up Spring's checks. Asked if there had been any discussion at that time between him and Horton about Lasse's discharge, Geng testified "oh, there may have been some discussion." Further questioning of Geng brought out that when Horton got Spring's check, he told Geng "that as long as that, was Lyle Manley's decision, that it would be necessary for [Geng] to make a check for Lasse, too, because he was Spring's helper and there would no longer be any need to have him there." Nowhere in Horton's testimony is there any corroboration of Geng's testimony. If anything the implication of Horton's testimony would seem to contradict Geng. Thus Horton, in answer to the General Counsel's question, "did you dis- charge Mr. Lasse on May 7 or did you lay him off?" Horton answered, "well, when he was laid off, I did not-I went down and got his check...." Respondent's defense to Lasse's ' discharge is that it had no knowledge of his union activity prior to the discharge, that Lasse had been hired on a tem- porary basis and was so informed when he was hired, and that the duties for which he had been hired had been concluded. Although there is no direct evidence to show that Respondent was aware of Lasse's union activity prior to his discharge, it is clear that Respondent was aware of Spring's. From the unerring way in which Manley "sought out and ze Although Horton's version of this incident is somewhat different , he did not deny the remarks attributed to him by Lasse. 27 Irving Hall, Stokes, Gerald Galvin, George N. Mantley, Harold D. Harmon, and Hurd. 880 DECISIONS:.OF NATIONAL LABOR RELATIONS BOARD questioned the one employee who. had made the initial contact with the Union" it seems likely that' Respondent's information about the union activity of its employees went beyond mere information about Spring's participation. As be- tween Lasse and Spring it would appear that Lasse's part in the employees' concerted activity would be and was more obvious and subject to comment than was Spring's. In the first place, Lasse- had previous union experience and as a union official which made him the center of information for his fellow employees with respect to questions and explanations regarding the function and proce- dures of unions as experienced by Lasse. Moreover, while it is true that Spring made the initial contact with the Union, it is significant that he did so at Lasse's suggestion. Significant also is the fact that it was at Lasse's prompting that Dumke arranged the Veterans' Hall for the abortive meeting. These facts coupled with the consideration that the union activity took place in a small plant with a total of approximately 30 employees located in a small, community compel the inference that Respondent was aware of Lasse's union activity at the time he was discharged. In accordance. with the well-established Board principle, I so find.28 Having rejected Respondent's testimony that Lasse's employment was tem- porary and that • he was so informed when he was hired, it is clear that no defense can be bottomed on that contention. The contention that the duties for which Lasse was hired had been concluded is somewhat ambiguous. However, viewed in either of its two interpretations, I find it to be without merit. Having refused to accept Respondent version that Lasse was hired "for the winter and cleaning cars," termination of the car cleaning duties at the plant, of course, is irrelevant, if indeed the performance of that function by Respondent's employees had ended prior to or at the time of Lasse''s discharge.29 In any event, it is clear that Lasse's normal duties did not involve car cleaning and that after being assigned as Spring's helper, he assisted in car cleaning only on occasions when Spring was away or when the car cleaning people were shorthanded. Having refused to accept as bona fide the defense of the transfer of the fabri- cation and construction from Portage to Dousman in the case of Spring, it is obvious I must reject its application to Lasse. However, as indicated in con- nection, with Spring, even if I were to believe that Respondent's position as to this transfer was taken in good faith, I would still find, as I do, that the preponderance of the evidence from the record as a whole establishes that Lasse was discharged because of his union activity. Thus in addition to many of the same circumstances which were indicative of the discrimination against Spring, we have in the case of Lasse the merit increase of 10 cents an hour that was granted him just a few weeks before his discharge, 80 and the hiring of additional employees with full knowledge that Lasse desired reemployment and after he had been twice promised reemployment. IV. THE EFFECT OF THE -UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent, set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce 28N. L. R. B. v. Link-Belt Co., 311 U. S. 584, 602; N. L. R. B. v. Abbott Worsted Mills, . 127 F. 2d 438; Jasper National Mattress Company, 89 NLRB 75. 29 Respondent's'testimony was that the car cleaning functioning had been taken over by the railroad company. Lasse testified that he observed Respondent's employees cleaning cars after his discharge. Resolution of this conflict is deemed unnecessary. ®o Empire Pencil Company, 86 NLRB 1187; E. C. Brown Company, 81 NLRB 140. PORTAGE-MANLEY SAND, COMPANY 881 among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the. undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent. has discriminated in regard to the hire and tenure of employment of Fred J. Spring and Wilbert Lasse, it will be recom- mended that the Respondent offer to each immediate and full reinstatement to his former or substantially equivalent position $' and make each whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period." Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discrimina- tory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each employee would normally have earned for each such quarter or portion thereof, his net earnings, if any, in any other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter." It will also be recommended that the Respondent, upon reasonablp request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as back pay. The unfair labor practices found above reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be antici- pated in the future. It will be recommended, therefore, that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. The International Association of Machinists is a labor organization admit- ting to membership employees of the Respondent. 2. By discriminating in regard to the hire and tenure of employment of Fred J. Spring and Wilbert Lasse, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. ffi The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. sa Crossett Lumber Company, 8 NLRB 440. Spring's termination pay shall be con- sidered as earnings during the period which that payment was purported to cover. 33 F. W. Woolworth Company, 90 NLRB 289. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] `WILSON AND COMPANY, INC. and AMALGAMATED MEAT CUrrERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL. Cases Nos. 16-C A-. and 16-RC-578. July 31,1951 Decision and Order On February 5, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled consolidated proceedings finding that the Respondent had not 'engaged in unfair labor practices and recommending that the complaint herein be dismissed in its en- tirety as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further recommended that the objections to the election filed herein by the Union be overruled, and that Union's request to set aside the election of September 8, 1950, be denied. Thereafter, the General Counsel filed exceptions to the Intermediate Report. The Board I has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that in Case No. 16-CA-306 the com- plaint against Wilson and Company, Inc., Oklahoma City, Oklahoma, be, and it hereby is, dismissed, and IT IS FURTHER ORDERED that in Case No. 16-RC-578 the petition for certification of representatives filed by the Union therein be, and the same hereby is, dismissed. CHAIRMAN HERZOG, dissenting : I cannot agree with my colleagues' conclusion that the complaint should be dismissed and the Employer's interference with the election excused. ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Reynolds and Murdock]. 95 NLRB No. 103.