Homedale Tractor & Equipment Co.

HOMEDALE TRACTOR & EQUIPMENT CO. 167 in such a unit .7 Accordingly, we shall direct separate elections among the following employees at the Employer's Van Nuys, California, plant, excluding all other employees and supervisors as defined in the Act : (1) All construction and maintenance electricians. (2) All employees in the maintenance department, excluding the employees in voting group (1), above. However, we shall make no final unit determination at present with respect to the electricians and the maintenance department employees. If a majority of the employees in voting group (1) vote for the IBEW, they will be taken to have indicated their desire to be repre- sented separately from the other employees in the maintenance de- partment. We find, further, that all employees in the machine shop at the Employer's Van Nuys, California, plant, excluding all other employ- ees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. [Text of Direction of Elections omitted from publication in this volume.] MEMBER HOUSTON took no part in the consideration of the above Decision and Direction of Elections. I Cf. Goodyear Engineering Corporation, 100 NLRB 971. C. W. RADCLIFFE AND W. W. MANCKE, CO-PARTNERS , DOING BUSINESS AS HOMEDALE TRACTOR & EQUIPMENT Co. and INTERNATIONAL Asso- CIATION OF MACHINISTS, LOCAL LODGE 1491. Case No. 19-CA-542. October 31,195 Decision and Order On March 10, 1952, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The I 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 Murdock and Peterson]. 101 NLRB No. 55. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions noted below. 1. We agree with the Trial Examiner that the Respondents, in vio- lation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced their employees in the exercise of their self-organizational rights guaranteed by the Act. As discussed in the Intermediate Re- port, this conduct consisted of strategically timing their announce- ment of the retroactively effective profit-sharing plan and the distribu- tion of the profits earned for the first quarter of the year, so as to demonstrate to the employees that there was no need for a union in order to acquire benefits; 2 interrogating employee Stimmel concern- ing his and other employees' union sympathies ; and threatening to close their establishment if the shop was unionized which was implicit in Respondent Radcliffe's statement to Stimmel that the Respondents could not operate with a union in the shop. 2. We also agree with the Trial Examiner that the Respondents, in violation of Section 8 (a) (3) and (1) of the Act, discriminatorily discharged Watkins, Maybon, Snyder, and Jess and Ernest Runger because of their union membership and activities. Such a wholesale discharge of almost half of the shop employees, coming as it did so soon after the Union had succeeded in organizing practically all of the shop employees, casts serious doubts on the Respondents' motives. The Respondents deny that they discriminated against any em- ployee asserting, as their principal contention, that they were unaware of any union activities among their employees at the time of the discharges. The record, however, does not substantiate either their denial of knowledge of union activities 3 or their denial of discrimina- tory motivation. As indicated above, the Respondents opposed the prospect of a union in their shop and, even before the discharge of any employee in the group in question, resorted to the strategic announcement of the retroactive adoption of the profit-sharing plan to thwart their employees' self-organizational efforts. Moreover, ac- cording to the credited testimony of employee Stimmel, the Respond- ent Radcliffe told him on the eve of the discharge of Snyder and Jess and Ernest Runger that he was aware of the union meetings which 0 The baste with which this plan was instituted is indicated by the fact that Respondents did not seek prior approval of the plan from the Wage Stabilization Board. Indeed, the Respondents assert that it withheld further payments under the plan because it had not obtained such approval. a It is difficult to see bow the Respondents could deny knowledge of union activities among their employees before the discharge of any of the employees in question in the face of their admission that on June 25, 1951, a few days before Snyder and Jess and Ernest Runger were dismissed , they had received the Union's request for recognition as majority representative of their employees. HOMEDALE TRACTOR & EQUIPMENT CO . 169 were previously held by the employees, that Snyder was "causing the trouble" at their establishment, that he could not operate with a union in the shop, and that "more guys were going to be discharged." These remarks are particularly revealing for, not only do they disclose the Respondents' knowledge of their employees' union activities, but also that Watkins' and Maybon's earlier discharges were attributable to their union sympathies. That the Respondents were motivated by antiunion considerations in discharging the five employees is further confirmed by the summary character of, and the facts and circumstances surrounding, the dis- charges. Significantly, the discharges all followed the same arbitrary pattern without any prior warnings. According to the credited testi- mony, much of which was uncontradicted, Watkins and Maybon were told when they were discharged that they couldn't "see eye to eye with the company"; Snyder, who was instrumental in bringing the Union into the shop and in whose home the union meetings were held, was given as the reason for his discharge that he "didn't seem to be in sympathy with the company"; Jess Runger was told that he was discharged because he could not be "in sympathy with the company" and was dissatisfied with what he was earning; and Ernest Runger was discharged because he had previously asked for a wage increase and therefore must be dissatisfied with his job. The utter trans- parency of these reasons requires no elaboration. Indeed, in the case of the Rungers, whom the Respondents recalled about 2 weeks after their discharge and reimbursed them for their lost pay, no attempt was even made to justify their discharge. In their answer to the complaint, the Respondents merely state that they were in their employ at all times "except for a short period." In their brief in support of their exceptions, the Respondents simply state that the Rungers quit because of dissatisfaction with their salary. This latter assertion is plainly contradicted by the undisputed facts and the Rungers' reinstatement with lost pay. Nor are we persuaded by the varying reasons advanced by the Re- spondents for the discharge of Snyder, Maybon, and Watkins. In their answer, the Respondents assert that Snyder and Maybon had voluntarily quit their jobs and that Watkins' employment was termi- nated because he was "hired on a temporary basis only." 4 In their * It appears , however, that Watkins was hired on May 1, 1951, on a 3-month trial basis. The Respondent Radcliffe testified that before the June 20 profit-sharing meeting the Respondents had decided to terminate Watkins' employment, and that it was for this reason, as well as the fact that he was ineligible to participate in the profits because of his short tenure, that he was not invited to attend that meeting. Yet, as of that time, there is no evidence that Watkins was an unsatisfactory employee or that he was given any warning or notice of any contemplated termination of his employment ; on the con- trary, Watkins, a credited witness, testified that his work was never criticized before the mower incident discussed below. At the June 20 meeting , the Respondents announced 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD briefs to the Board, the Respondents state, however, that the employ- ment of these three employees was terminated because they left their jobs without notice. It is clear, as the Trial Examiner found, that the employees resented what they regarded as unjustified and sharp criticism of their conduct by the Respondents at the June 20 meeting and that Snyder, Maybon, and Watkins left the shop the next morning to consult the Union with respect to correcting this situation.' When these employees returned to work the following day, Watkins and Maybon were discharged because they couldn't see "eye to eye with the company." Although the Respondents excused Snyder's absence at that time, it nevertheless abruptly fired him 5 days later for not being in sympathy with the Company. This unceremonious and be- lated discharge of Snyder could only be explained by the fact that the Respondents had learned in the meantime about Snyder's leadership in the union movement in the shop. The Respondent Radcliffe ad- mitted so much in his remarks to employee Stimmel Accordingly, we find, as did the Trial Examiner, that the five named employees were discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor lelations Board hereby orders that the Respondents, C. W. Radcliffe and W. W. Mancke, copartners, doing business as Homedale Tractor & Equipment Co., Homedale, Idaho, their agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, Local Lodge 1491, or in any other labor organization of their employees, by discriminating against any of their employees in regard to their hire or tenure of employment or any term or condi- that Watkins was going to be discharged the next day because he failed to follow instruc- tions to clean certain parts of a mower he had missed while preparing it for painting. Apart from the fact that other employees similarly missed places while cleaning mowers without being discharged for it, Watkins testified that when the Respondent Mancke brought the missed spots to his attention, he told Mancke that he would clean them the next morning because it was just about quitting time and that Mancke gave no reply. It thus appears to us that the Respondents have been grasping at straws to conceal their true reason for discharging Watkins, namely, his union membership and sympathies. Before leaving the shop Snyder sought permission from the Respondent Radcliffe. However, as Radcliffe had not yet arrived, Snyder and his coworkers, Maybon and Watkins, left without speaking to anyone else. 6In view of our finding that the Respondents were prompted by antiunion considerations in discharging Snyder, Maybon, and Watkins , we find it unnecessary to determine whether the employees' action in leaving the shop to consult with the Union concerning the Respondents' hostile attitude exhibited to the employees at the June 20 meeting inde- pendently constituted protected concerted activity for their mutual aid and protection. The complaint did not allege such a violation nor was the case tried on this theory. HOMEDALE TRACTOR & EQUIPMENT CO. 171 tion of employment, because of their membership in, or activity on behalf of, such labor organization. (b) Timing their announcement of a profit-sharing plan or other benefits or the distribution of profits or other benefits, so as to thwart their employees' self-organizational efforts; interrogating their em- ployees concerning their union sympathies and those of other em- ployees; and threatening to close their business if it became unionized. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Association of Machinists, Local Lodge 1491, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion 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 Robert E. Watkins, Lowell Maybon, and Wilbur M. Snyder immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Watkins, Maybon, and Snyder for any loss of pay they may have suffered by reason of the Respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination against him to the date of the Respond- ents' offer of reinstatement, less his net earnings during that period. (c) Make whole Jess Runger and Ernest J. Runger for any loss of pay they may have suffered between June 28 and July 10, 1951, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during said period, less his net earnings.' (d) Post in their place of business at Homedale, Idaho, copies of the notice attached hereto as an appendix s Copies of such notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondents' representative, be posted * If the Respondents have already reimbursed Jess and Ernest Runger for the amount of back pay provided for in our Order , they will not be required to make any further payments to these employees. * In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondents immediately upon receipt thereof and be main- tained by them for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Nineteenth Region in writ- ing, within ten (10) clays from the date of this Order as to what steps the Respondents have taken to comply herewith. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 1491, or in any other labor organization of our employees, by discriminating against any of our employees in regard to their hire or tenure of employ- ment or any term or condition of employment because of their membership in, or activity on behalf of, such labor organization. WE WILL NOT time our announcement of a profit-sharing plan or other benefits or the distribution of profits or other benefits so as to thwart our employees' self-organizational efforts; inter- rogate our employees concerning their union sympathies and those of other employees; or threaten to close our business if it became unionized. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist INTERNA- TIONAL ASSOCIATION OF MACIIINISTS, LOCAL LODGE 1491, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities, 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 National Labor Relations Act. WE WILL offer ROBERT E. WATKINS, LOWELL MAYBON, AND WILBUR M. SNYDER immediate and full reinstatement to their HOMEDALE TRACTOR & EQUIPMENT CO. 173 former or substantially equivalent positions , without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL make ROBERT E. WATHINS , LOWELL MAYBON, WILBUR M. SNYDER, JESS RUNGER , and ERNEST J. RUNGER whole for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become, remain, or to refrain from be- coming or remaining, members of the above-named union or of any other labor organization , except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the amended Act. C. W. RADCLIFrE and W. W. MANCKE, copartners, doing business as HOMEDALE' TRACTOR & EQUIPMENT CO., Employer. Date--- ----------------- By---------------------------- (Representative ) i(Title) This notice must remain posted for 60 consecutive days and must not be altered , defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on July 16, 1951, and Novem- ber 29, 1951, respectively, by International Association of Machinists, Local Lodge 1491, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Nineteenth Region (Seattle, Washington), issued his complaint on December 5, 1951, alleging that C. W. Radcliffe and W. W. Mancke, copartners, doing business as Homedale Tractor & Equipment Co., Homedale, Idaho, herein called Respondents, had engaged in and were 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 charges, complaint, and notice of hearing thereon, were duly served upon Respondents and the Union. With respect to the unfair labor practices, the complaint alleged in substance that: (1) Since June 13, 1951,' the Respondents, and each of them, by means of certain stated acts, statements, and conduct interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act; and (2) discharged Robert E. Watkins and Lowell Maybon on June 22, Wilbur M. Snyder on July 27, and Ernest J. Runger and his brother, Jess, on June 28, and thereafter refused to reinstate them, with the exception of Ernest J. and Jess Runger, because they, and each of them, had joined and assisted the Union. Respondents in their answer deny the commission of the alleged unfair labor practices. The answer affirmative averred that Watkins' employment ' Unless otherwise noted all dates refer to 1951. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated on June 22, because he was hired on a temporary basis only, that the Runger brothers are, and during all times material herein were ( except for a short period of time ), employed by Respondent, and that Maybon and Snyder were not discharged but voluntarily quit their employment. Pursuant to notice , a hearing was duly held in Caldwell , Idaho, on January 14, 1952, before the undersigned , the duly designated Trial Examiner. The General Counsel and Respondents were represented by counsel and the Union by an official thereof. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the conclusion of the taking of the evidence , the undersigned granted an unopposed motion of the General Counsel to conform the pleadings to the proof with respect to the spelling of names, dates , and places. Counsel for Respondents then moved to dismiss , for lack of proof, the allegations of the complaint that the five persons named therein were discriminatorily dis- charged. Decision thereon was reserved . The motion is hereby denied. Oral argument was waived . Although afforded an opportunity to file briefs or proposed findings and conclusions of law, or both, with the undersigned on or before January 28, 1952, none of the parties did so. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS Cyril W. Radcliffe and Wilbur W. Mancke, copartners, doing business as Homedale Tractor & Equipment Co., have their principal offices and place of busi- ness in Homedale, Idaho, where they are engaged in the purchase and sale, pur- suant to certain franchises, among other things, of Willys-Overland automobiles, John Deere farm equipment , and Goodyear tires. The Respondents' annual out-of-State purchases of merchandise for resale aggregate in excess of $300,000 and its annual out-of-State sales exceed $30,000. The Respondents concede, and the undersigned finds, that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Association of Machinists, Local Lodge 1491, is a labor organ- ization admitting to membership employees of Respondents. III. THE UNFAIR LABOR PRACTICES Interference, Restraint , and Coercion; the Discriminatory Discharges 1. THE SEQUENCE OF EVENTS On June 2, 1951 , Wilbur M. Snyder, who resided in Homedale , Idaho, a town of about 1,500 or 2,000 persons, went to Boise, Idaho, located about 32 miles from Homedale, and there conferred with Allin K. Walker , an elected representative of the Union, regarding the advisability of organizing Respondents ' employees. On June 4, practically all Respondents' employees met at Snyder 's home and discussed unionization. Those attending the meeting then and there signed cards, which Snyder had obtained from Walker on June 2, authorizing the Union to represent them for the purposes of collective bargaining. HOMEDALE TRACTOR & EQUIPMENT CO. 175 On June 13, another meeting was held at Snyder's home. In addition to those present at the early meeting, with the exception of George Otto, Walker and employee Robert E. Watkins were in attendance.' The meeting was confined to further discussion of unionization. On the evening of June 20, pursuant to instructions of Respondents,' the employees met at Respondents' establishment. The meeting was first addressed by Radcliffe, who outlined the details of the profit-sharing plan .4 The eligible employees were then given checks for their respective shares for the first quarter period of 1951. Radcliffe then admonished the employees for not paying more attention to their work, for not being more courteous to customers, for using profane language in the presence or in the hearing of customers , and for engag- ing in, especially "during the previous two weeks," extensive whispering during working hours. Radcliffe added that if conditions did not improve he would discharge the guilty parties ; and that because Watkins had failed to properly perform a certain job he was going to be discharged the following day. Alter Radcliffe had concluded his remarks, Wilbur W. Mancke, the other Respondent, accused the employees , in a loud and angry tone of voice, of not doing proper work, of wasting too much time by "visiting" with each other, and of engaging in extensive talking among themselves. Mancke also stated, again using loud and angry tones, that if the employees, themselves, did not correct the situation, he would remedy it even if he had "to get tough." Mancke then stated that Watkins would be discharged the following morning. Upon arriving at the plant at the usual hour the next morning , Snyder, Wat- kins, and Lowell Maybon conferred regarding the remarks made by Radcliffe and Manske the previous evening. Watkins resented the remarks made about him and Snyder and Maybon resented the manner in which Radcliffe and Mancke spoke and their allusions to the employees wasting company time by engaging in "whispering," "visiting," and the like.' After the above-named employees had decided to go to Boise and inform Walker about what transpired at the meeting the previous evening, Snyder went to Radcliffe's office to inform him of their decision. Radcliffe was not there.' After waiting for about 20 minutes for Radcliffe to arrive at the plant, Snyder and Maybon' picked up their tools and they, accompanied by Watkins, left for Boise without advising any one connected with management of their plans. After listening to their stories, Walker advised Snyder, Watkins, and Maybon to return to work. The next morning, June 22, the said three employees reported for work at the usual hour. Sometime during the morning, Radcliffe summoned Snyder to his office and asked why the latter did not work the previous day. Snyder replied that the remarks of Radcliffe and Mancke made him "mad enough that [he] 2 At the meeting Watkins signed an authorization card. 8 When Cyril W Radcliffe, one of the Respondents herein, informed the employees of the meeting, he told them "Don't let anything short of a death in the family prevent you from" attending. Some employees were informed of the meeting several days in advance and the others during the afternoon of June 20. Watkins was not requested to attend because, as Radcliffe testified, prior to the meeting Respondents had decided to discharge him and for the further reason, due to his short tenure of employment, he was not eligible to participate in the profit-sharing plan which was to be one of the main topics of the meeting. 4 On December 24, 1950, Respondents informed the employees that a profit -sharing plan was under consideration . However, the employees heard nothing further about it until the aforesaid meeting. Most, if not all, of the employees were of same opinion as Snyder and Maybon. 6 Manske announced at the meeting the pi evious evening that he was leaving town the following day and would be away for several days. 7 Watkins had no tools at the plant. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD couldn't work if [he] had been" at the shop so he decided to return home. Rad- cliffe remarked that Snyder should return to his job, he would consider what action to take, and advise Snyder of his decision later in the day. That after- noon Radcliffe told Snyder, to quote the latter's credible testimony, "he had fired two men, Mr. Maybon and Mr. Robert Watkins, and . . . as far as my part was concerned . . . he decided to keep me on, my work had been satis- factory and that he would like to have me stay with the company, that I had a job as long as I wanted it." After Watkins had been working for some time on the morning of June 22 he was called to Radcliffe's office and told by the latter, to quote Watkins' credible testimony, "I couldn't see eye to eye with the company, and couldn't seem to get along with them, and he didn't think I should work there any more." Watkins was thereupon discharged. The same morning Maybon was summoned to Radcliffe's office. There, he was asked by Radcliffe why he did not work the previous day. Maybon informed Radcliffe that he did not like to have people "yell and scream" at him like Mancke had done at the meeting the night before. When Radcliffe asked, "How do we stand" ; Maybon replied, "If it goes on like this, why, I will find something different." Radcliffe then asked Maybon what particular job he was on and, when Maybon answered, asked him to finish it. When Maybon completed the job he was handed a check for the wages due and discharged. Under date of June 23 the Union wrote Respondents that it represented the majority of the employees. The letter was received on June 25. The next day Mancke assembled the employees, read the letter to them, and then remarked, to quote his testimony, "the choice was up to them." On June 27, Radcliffe told Robert W. Stimmel, a former employee of Re- spondents, that he was aware that the employees had been holding meetings ; that he did not "have to have spies to find out, those things just got around" ; that he knew that Jack Thomas left one meeting before the others did ; 8 that he knew Snyder was the person spearheading "the thing" and "causing the trouble" ; that he was "going to get rid of four men" ; and that Respondents could not operate with a union in the shop. Radcliffe then asked Stimmel how he and the other employees "felt" about the Union to which inquiry Stimmel replied that he could not talk for the others but that as far as he was concerned be could get along without a union On June 27, a few minutes before quitting time, Snyder was called to Rad- cliffe's office, handed a check by Radcliffe for wages due, and told by Rad- cliffe that Respondents had decided to terminate Snyder's employment because Snyder "didn't seem to be in sympathy with the Company." Toward the end of the week day on June 28, Jesse Runger was called into Radcliffe's office and, according to the former's credible and uncontradicted testimony, the following ensued : He (Radcliffe) asked me, ... "Did you ever cut off your arm before?" and I said, "no, and I haven't right now, that I know of." And he said, s Thomas left the June 4 meeting before It had concluded because he had to meet his wife. s The findings regarding the above Radcliffe -Stimmel conversation are based on Stimmel's credible testimony . While not specifically denying the statements attributed to him by Stimmel, as summarized above, Radcliffe testified that the aforesaid conversation took place around July 15, that he did not discuss or mention any employee meetings with Stimmel because the first knowledge he had of any organizational campaign in the shop was on June 25, when he received the Union's June 23 letter. Radcliffe admitted, however, asking Stimmel , "how do you think this union thing is going to come out?" and made the same inquiry of other employees. HOMEDALE TRACTOR & EQUIPMENT CO. 177 "Well, this is a pretty hard thing to do, but, being that you can't be in sympathy with the company and satisfied with what you are getting, why, we are going to have to give you the opportunity to get you a new job." And he also had my bill figured up . . . and my [pay] check with it. About an hour after Jess Runger had been discharged, his brother, Ernest, was called into the office and told by Mancke, in the presence of Radcliffe, that although his work was satisfactory, Respondents had decided to terminate his services for he had asked for a wage increase and, therefore, he must be dis- satisfied with his job. On July 7 Mancke handed identical letters to Jesse and Ernest Runger re- questing the brothers to return to work on July 10. After receiving a further letter from Respondents to the effect, among other things, that they would be reimbursed for the wages lost between June 28 and the date of their reemploy- ment, the Runger brothers returned to Respondents' shop on July 10. 2. Concluding findings It is clear from the above recital of the facts that Respondents , in violation of Section 8 (a) (1) of the Act, interfered with, restrained , and coerced their employees in the exercise of their right to self -organization guaranteed by Section 7 of the Act. The testimony upon which this finding rests , summarized above, is undisputed. Thus, it is not denied, that Radcliffe queried Stimmel con- cerning Stimmel's and the other employees' sympathies for the Union. This interrogation is violative of the Act in two respects . In the first place, by Rad- cliffe's questioning of Stimmel regarding the latter 's union sympathies, Respond- ents invaded an area guaranteed to be exclusively the concern of Stimmel for, as the Board and the courts have numerously and uniformly held , inherent in the very nature of an employee's statutory right to organize is the accompanying right to privacy in its enjoyment , free from employer intermeddling or intrusion.10 In the second place, when Radcliffe questioned Stimmel regarding the other em- ployees' union sympathies Radcliffe engaged in a form of surveillance regarding those employees' organizational activities and thus his action was no less coercive in its nature than direct questioning of the employees , themselves , concerning their own union activities and sympathies . In seeking this information, by what- ever means, an employer violates the clear mandate of the Act that employees be permitted to organize free from fear of reprisal or recriminations . Such conduct of employers has been repeatedly held to be in contravention of the Act" Moreover, Radcliffe's conduct was nonetheless violative of the Act , although he failed to secure the information solicited and although there -is no showing that the employees were cognizant of his conduct . For, "any real surveillance by the employer over the union activities of employees , whether frankly open or care- fully concealed, falls under the prohibitions of the Act." " The interrogation of Stimmel , furthermore, took place in the repressive privacy of Radcliffe's office, and occurred in the course of an interview in which Radcliffe forcefully indicated his opposition to the Union's entry into the shop. "See H J. Heinz Co. v. N. L. R. B, 311 U. S. 514; N. L. R. B. v. Laister-Kaufmann Aircraft Corp., 144 F. 2d 9 (C. A. 8) ; N. L. R B. v A. S. Abell Co., 97 F. 2d 951 (C. A. 4) ; Standard -Coosa-Thatcher Company, 85 NLRB 1358. 11 See N. L R. B. v. Fruehauf Trailer Co , 301 U. S 49 ; N L R B v. Laister-Kaufmann Aircraft Corp., supra ; Montgomery Ward & Co. v. N L. R. B , 115 F. 2d 700 (C. A. 8) ; N. L R. B v. Minnesota Mining & Mfg . Co., 179 F. 2d 323 (C. A. 8). 12 N. L. R. B. v Collins & Aikman. Corp., 146 F. 2d 454 ( C. A 4). See also N. L. R B. V. Clerk Bros Co., 163 F. 2d 373 (C. A. 2 ) ; N. L. R. B. v. Grower-Shipper Peg ,Assn., 122 F. 2d 368 (C. A. 9). 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned is convinced, and finds, that Respondents adroitly and strate- gically timed the putting into effect the long considered profit-sharing plan to impress upon the employees that continued union affiliation was a fruitless ges- ture and that they could rely upon their employers' unilateral generosity to attain their needs. This finding finds support in the fact that Respondents on December 24, 1950, informed the employees that they were considering the estab- lishment of a profit-sharing plan and that nothing was done with respect thereto until June 20, after the employees had held two organizational meetings when the employees received checks for their respective shares of the profits based upon earnings for the first quarter of 1951. Respondents testified that neither knew of the employees' activities on behalf of the Union until June 25, the day they received the letter announcing that the Union represented a majority of the employees. This testimony is not credited. The demeanors of Radcliffe and Mancke while they were on the witness stand evidenced to the undersigned that they were withholding the true facts regarding the controversy. Moreover, the manner in which the employees were directed to attend the June 20 meeting, the manner in which they were addressed, Radcliffe's admonition that the employees were not to divulge, not even to their respective wives, what transpired at the meeting, and Radcliffe's and Mancke's repeated references to the employees' whispering and visiting in the shop leads to the con- clusion that the meeting was not called for the purpose of "slicing a melon," as Respondent contended, but for the sole purpose of thwarting the organizational activities of the employees. This conclusion became inescapable when considera- tion is given to the fact that in his testimony Radcliffe admitted that what upset him the most about the employees' conduct was the fact that the employees had engaged in a great deal of whispering for 2 weeks immediately preceding the said meeting. Even if there was no direct evidence of Respondents' knowledge of the em- ployees' union activity prior to the June 20 meeting, it is reasonable to conclude from the fact that during a period of about 3 weeks prior to June 20, the em- ployees had held two organizational meetings in a small community in which Respondents' establishment is located and had discussed the Union in Respond- ents' small shop, that Respondents knew of the employees' union activities prior to June 20. This is especially true since Radcliffe told Stimmel that he was well aware of the employees' meetings because "those things get around." '3 This evidence, as epitomized above, clearly shows that the discharges of five persons named in the complaint were motivated by antiunion reasons. The shifting and unsupported grounds assigned by Respondents for the terminations of the said employees are further persuasive indications that antiunion reasons rather than those asserted by Respondents accounted for Respondents' actions" In their answer Respondents averred that "Watkins ended his employment on June 22, 1951, having been hired on a temporary basis only." Radcliffe testified that Watkins was not invited to the June 20 meeting because they had already 12 See Angwell Curtain Company, Inc. v. N. L. R. B., 192 F 2d 899 (C. A. 7) ; N. L. R. B. v. Abbott Worsted Mills Inc., 127 F. 2d 438 (C. A. 1) ; Quest-Shon Mark Brassiere Co., 80 NLRB 1149, Kallaher and Mee, Inc., 87 NLRB 410; F. W. Woolworth Company, 90 NLRB 289; N. L. R. B. v. Link-Belt, Inc., 311 U. S. 584, 602 14 The courts have frequently recognized that shifting explanations by an employer for the discharge of an employee may warrant an inference that the true reason was the employer's hostility to the union See N. L. R B v Crystal Spring Finishing Co., 116 F. 2d 669 (C A. 1) ; N. L R B v Yale R Towne Mfg. Co., 114 F. 2d 376 (C. A 2) ; N L R. B v. Condenser Corp, 128 F. 2d 67 (C. A 3) ; N. L. R. B. v Eclipse Moulded Products Co., 126 F. 2d 567 (C. A. 7). And this is so even where the employer had "plausible grounds" for the discharge. Muted Biscuit Co. v. N. L. R. B, 128 F. 2d 771 (C. A. 7). HOMF2DALE TRACTOR & EQUIPMENT CO. 179 deeided to discharge him at the end of the mgnth. He then testified that Watkins was discharged because he had taken "french leave" on June 21. At the June 2ff meeting Mancke and Radcliffe each announced that Watkins was going to be dis- charged the following day because he did not clean a mower tractor before leaving the shop that day despite Mancke's specific instructions. At the time of his dis- charge on June 22 the only reason Radcliffe gave Watkins for the termination, according to Watkins' undenied and credible testimony, was that Watkins "couldn't see eye to eye with the company, and [Watkins] couldn't seem to get along with [Respondents] and" therefore Watkins should seek employment elsewhere. As to Maybon and Snyder the answer stated that these employees "voluntarily quit their employment, taking their tools and equipment from the employer's premises, leaving without notice and without informing the employer as to their whereabouts." Radcliffe testified, in answer to the questions "Do you know the events immediately preceding [Snyder's] discharge? Did you talk with him?" that he merely called Snyder "in and handed him his check and told him he was through." On the other band, Snyder testified as follows regarding his termina- tion interview with Radcliffe, which testimony the undersigned finds to be sub- stantially in accord with the facts : About five minutes until six Mr. Radcliffe called me into the office, and walked around behind the desk and picked up my check and handed it to me, and said that after thinking it over that they had decided to [let] me go too, that I didn't seem to be in sympathy with the company. As to the Rangers, the answer stated merely that they were at all times em- ployed by Respondents, except for a short period of time. Neither Respondent testified as to the reasons for discharging the Rungers. Jess Runger testified, as set forth above, as to the reasons given him for his discharge. Among the purported reasons given by Radcliffe to Jess Runger was the latter's inability to be sympathetic toward the Company. Ernest Runger testified that Mancke told him that he was being terminated because he had asked for a wage increase. In view of the inconsistency and inadequacy of Respondents' explanations for the discharges and Respondents' unconcealed antiunion prejudices, coupled with the unconvincing and unreliable testimony of Radcliffe and Mancke regarding the reasons for the dismissals, a finding is clearly warranted that the five named employees' services were terminated because of their union membership and activities." In N. L. R. B. v. May Department Stores Co. 154 F. 2d 533 (C. A. 8) the court said at page 538, regarding a situation similar to the one presented here, that there is a "broad scope of inference open . . . on questions of motive and discrimination, where the evidence indicates a desire to thwart or nullify unionizing efforts, either generally or as to a particular employee-organization." And where, as here, the Employer has shown strong opposition of its employees' unionization, "a very convincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliation." 16 Upon the entire record in the case, the undersigned finds that Respondents discharged Watkins, Maybon, Snyder, and Ernest and Jesse Ranger in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 thereof. The "Each of the said five persons , except Watkins, signed union authorization cards at the June 4 meeting and each attended the June 13 meeting. Watkins attended the June 13 meeting and there signed an authorization card. 1tDannen Grain and Milling Co. v. N. L. R. B, 130 F. 2d 321, 328 (C A. 8). 242305-53-13 180 DECISIONS QF NATIONAL LABOR RELATIONS BOARD undersigned further finds that by Radcliffe's interrogating Stimmel regarding Stimmel's and the other employees' union sympathies, Respondents violated Section 8 (a) (1) of the Act. Radcliffe's further statement to Stimmel on June 27 that Respondents "couldn't operate with the union in the shop" was also violative of Section 8 (a) (1) of the Act, for Radcliffe's remark was but a veiled threat to close Respondents' establishment if the Union successfully organized the employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with operations of Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices, violating Section 8 (a) (1) and (3) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents have discriminated in regard to the hire and tenure of employment, and the terms and conditions of employment, of Robert E. Watkins, Lowell Maybon, and Wilbur M. Snyder, the undersigned will recommend that Respondents offer to each of them immediate and full reinstate- ment to his former or substantially equivalent position,17 without prejudice to his seniority and other rights and privileges. The undersigned will also recom- mend that Respondents make Watkins, Maybon, and Snyder whole for any loss of pay they may have suffered by reason of Respondents' discrimination against them, by payment to each of them a sum of money equal to the amount he would have normally earned as wages from the date of the discrimination to the date of the Respondents' offer of reinstatement, less their net earnings during that period.' Loss of pay shall be paid in accordance with the formula enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289. Having found that Respondents discriminatorily laid off Ernest J. and Jess Runger from June 28 to July 10, 1951, the undersigned will recommend that Respondents make each of them whole for any loss of pay he may have suffered during said period, by payment to him of a sum of money equal to the amount he would have normally earned, less his net earnings. The unfair labor practices found to have been engaged in by Respondents are of such a character and scope that in order to insure the employees here involved their full rights guaranteed by the Act, it will be recommended that Respondents cease and desist from in any manner interfering with, restraining, and coercing their employees in their right to self-organization. Upon the basis of the foregoing findings of fact, and upon the record as a whole, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Local Lodge 1491, is a labor organization within the meaning of Section 2 (5) of the Act. 14 See The Chase National Bank of The City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 49 See Crossett Lumber Co., 8 NLRB 440. AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN 181 2. By discriminating in regard to the hire and tenure of employment of Watkins, Maybon, Snyder, and Ernest J. and Jess Runger, thereby discouraging membership in International Association of Machinists , Local Lodge 1491, Respondents have engaged in and are engaging in unfair labor practices , within the meaning of Section 8 (a) (3) of the Act. 3. By interrogating their employees regarding their union sympathies thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 ( 6) and (7) of the Act. [Recommendations omitted from publication in this volume.] AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL 556, AFL and SAFEWAY STORES, INCORPORATED. Case No. 21-CD-30. October 31, 1952 Decision and Determination of Dispute This proceeding arises under Section 10 (k) of the Act, as amended by the Labor Management Relations Act, 1947, which provides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4 (D) of section 8 (b), the Board is empowered and directed to hear and determine the dis- pute out of which such unfair labor practice shall have arisen. . . ." On May 19, 1952, Safeway Stores, Incorporated, herein called the Company, filed with the Regional Director for the Twenty-first Re- gion a charge against Amalgamated Meat Cutters & Butcher Work- men of North America, Local 556, AFL, herein called Meat Cutters, alleging that it had engaged and was engaging in certain activities proscribed by Section 8 (b) (4) (D) of the amended Act. It was al- leged, in substance, that the Meat Cutters had induced and encouraged employees of the Company in the course of their employment to en- gage in a strike or concerted refusal to work with an object of forcing or requiring the Company to assign particular work to employees who are members of the Meat Cutters rather than to employees who are members of Retail Clerks International Association, AFL, Local 899, herein called the Clerks. Pursuant to Section 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and pro- vided for an appropriate hearing upon due notice to all the parties. Thereafter, a hearing was held before Nathan R. Berke, hearing offi- cer, on June 17, 18, and 19, 1952. The Clerks was permitted to inter- 101 NLRB No. 50.