Drummond Implement Co.

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. I will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. EDWIN D. WEMYSS, d/b/a COCA-COLA BOTTLING COMPANY OF STOCKTON, Employer. Dated -------------------- By ----------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. FLOYD DRUMMOND D/B/A DRUMMOND IMPLEMENT COMPANY and LODGE #349, INTERNATIONAL ASSOCIATION OF MACHINISTS. Case No. 9-OA-410. Jo wary 27,1953 Decision and Order On June 25, 1952, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (5) of the Labor Man- agement Relations Act, as amended, and recommending that the Re- spondent 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 certain unfair labor practices in violation of Section 8 (a) (3) of the Act and recommended dismissal of those portions of the complaint herein alleging the discriminatory discharges of Emery Sparks and George E. Penny. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man Herzog and Members Murdock and Peterson]. The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the following additions, modifi- cations, and corrections." 1 We make the following corrections of misstatements of fact appearing in the Inter- mediate Report which do not affect the ultimate conclusions. At page 601 • The charge and amended charge were filed on July 3 and 31 , 1951, respec- tively, rather than on July 12 and 30, 1951. At page 605 : The second signature on the quoted letter should read Kenneth Feineau. 102 NLRB No. 62. DRUMMOND IMPLEMENT COMPANY 597 1. For the reasons given below, we agree with the Trial Examiner that the Respondent is engaged in commerce within the meaning of the Act. While this proceeding involves only events and employees at the Respondent's Portsmouth store, we find, in accord with the Trial Examiner, that the Respondent's five stores constitute a single, integrated enterprise. Among other circumstances mentioned by the Trial Examiner, it is noted that all the stores have been under the immediate, continuous supervision of the Respondent himself, or that of a general manager (hired for this specific purpose) when the Re- spondent has been ill. We therefore find, as did the Trial Examiner, that the totality of the Respondent's operation in all five of his stores, rather than the operation of the Portsmouth store alone, is determina- tive of the question of the Board's assertion of jurisdiction herein.2 During the year 1951, the Respondent's total purchases were $1,673,- 744, of which $105,026 3 represented purchases directly from sources outside the State of Ohio. These out-of-State purchases are approxi- mately 21 percent of the Board's minimum direct inflow requirement of $500,000.4 The record also shows that at least $180,000 5 of the total purchases were from suppliers engaged in commerce within the mean- ing of the Act; this figure is approximately 18 percent of the Board's minimum indirect inflow requirement of $1,000,000. During the same period of 1951, the Respondent made direct out-of-State sales in the sum of $17,171. This figure is approximately 68 percent of the Board's minimum direct outflow requirement of $25,000. The sum of these percentages exceeds 100 percent and, under the Board's prevailing Footnote 1-Continued At page 605 : At one point in the record the Respondent testified that he carried a single blanket insurance policy for all his stores. However, he subsequently corrected this testi- mony and stated that, in fact , each of his stores carried individual insurance coverage. At page 606 : The figure for the remainder of purchases should be $1,607 ,294 rather than $1,414,166. The figure for sales to customers living outside the State of Ohio should be $17 ,171 rather than $21,421. At page 620 : The record discloses that five men originated the idea to contact the Charging Union herein , namely : Shepherd , Walter Egbert, Humble, Sparks , and Penny. At page 626: The Trial Examiner found that the Respondent initially refused to bargain on June 21 , 1951 . With respect to the Respondent's exception to the date of June 24, 1951, given in "The Remedy" section, this latter date is obviously a typographical error and should read June 21, 1951. 2 The Southland Corporation, etc., 94 NLRB 1563; Kram.bo Food Stores, 98 NLRB 1320. 8 Of this amount $38,576 represents purchases of the Portsmouth store, the balance of $66,450 represents purchases of the Respondent 's four other stores. d In his brief, the Respondent directs the Board 's attention to the case of Cousins Tractor Company, 72 NLRB 857, in which the Board declined to assert jurisdiction over a business having annual direct out -of-State purchases exceeding $500,000. This case was decided before those in which the Board established its prevailing policy of asserting juris- diction over firms having an annual minimum of $500,000 in direct out-of-State purchases. 8 Purchases from John Deere Plow Company and The Massey-Harris Company were $48,000 and $170,000 , respectively. From the total of these two figures, $38,000 has been deducted, because the record does not disclose from whom the Portsmouth store's $38,000 of direct out-of-State purchases were made. 250983-vol. 102-53-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy, warrants assertion of its jurisdiction over the Respondent's business operation.6 Moreover, even if the Portsmouth store be regarded as a separate business operation, we would nevertheless assert jurisdiction in this proceeding. For the record discloses, as found by the Trial Examiner, that the Respondent, by virtue of its sales-and-service agreements with The Massey-Harris Company, The Oliver Corporation, and John Deere Plow Company, operates in his Portsmouth store as an integral part of the multistate enterprises of these respective companies.' 2. We agree with the Trial Examiner that the discharges of Emery Sparks and George E. Penny were not violative of Section 8 (a) (3) of the Act .8 We shall, accordingly, dismiss those portions of the com- plaint herein alleging that Sparks and Penny were discharged dis- criminatorily. 3. We find that the Respondent violated Section 8 (a) (1) of the Act on June 21, 1951, as did the Trial Examiner, by the statement of Arthur L. Schultz, manager of the Portsmouth store, to employees Humble and Walter Egbert, to the effect that the Respondent would close the store rather than recognize or deal with a union, and also on June 23, 1951, by Schultz' statement to the same effect made to em- ployee Shepherd. 4. For the following reasons, we find that the Respondent refused to bargain with the Charging Union on June 7, 1951, rather than on June 21, 1951, as found by the Trial Examiner. As the Intermediate Report more fully sets forth, the Union represented a majority of the Respondent's employees in the appropriate unit on June 6, 19519 By letter of this date, the Union requested the Respondent to bargain with it as majority representative of the Respondent's employees. The Respondent received this letter on June 7, 1951, but did not answer the Union's request. Shortly thereafter, on June 11, 1951, the Union filed a representation petition with the Board. The Respond- ent received a copy of this petition and an accompanying letter from the Board on June 12, 1951. On June 21 and June 23, 1951, the Re- spondent engaged in acts which, as found above, were violative of 8 The Rutledge Paper Products, Inc., 91 NLRB 625. In a letter dated July 21, 1951 , addressed to the Board , the Respondent stated that between 90 and 95 percent of his total purchases were of goods "purchased outside of Ohio." However, unlike the Trial Examiner , we do not base our assertion of jurisdiction herein upon this admission of the Respondent , because the Respondent , at the hearing, cast doubt upon the accuracy of the 90 to 95 percent figure. 7 Hallam i Boggs Truck Implement Company, 92 NLRB 1339. 8 In adopting this finding , we do not consider the Trial Examiner 's conviction that the illegibility of Sparks' signature provides a basis for concluding that Sparks was not qualified to work in the Respondent 's parts department. 9 We find, as did the Trial Examiner , that the appropriate unit herein is that requested by the Charging Union, the composition of which unit the Respondent has not contested. In view of our finding that the Respondent initially violated Section 8 (a) (5) of the Act on June 7, 1951 (prior to the date William Call was hired), we do not pass upon the Trial Examiner 's finding which excluded Call from the unit herein. DRUMMOND IMPLEMENT COMPANY 599 Section 8 (a) (1) of the Act. Thereupon, the Union withdrew its representation petition and filed the charge herein. In these circumstances, we do not agree with the Trial Examiner that the Respondent's failure to answer the Union's letter was ex- cusable because of the filing of the representation petition and/or the Respondent's alleged inexperience in dealing with labor unions. On the contrary, the Respondent's unlawful conduct on June 21 and 23, 1951, which made a free election impossible, convinces us that the reason the Respondent failed to answer the Union's letter was for the purpose of gaining time to undermine the Union's majority, and that the Respondent never intended to bargain with the Union.1° We shall, accordingly, order the Respondent to bargain with the Union for the employees in the appropriate unit. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Floyd Drummond d/b/a Drummond Implement Company, Portsmouth, Ohio, his agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Refusing to recognize or to bargain collectively with Lodge #349, International Association of Machinists, as the exclusive rep- resentative of his employees in the following appropriate unit: All employees of the Respondent's Portsmouth, Ohio, branch, but excluding office and clerical employees, salesmen, professional em- ployees, guards, and supervisors as defined in the Act. (b) Interrogating his employees as to their membership in, sym- pathy for, or activities on behalf of Lodge #349, International Asso- ciation of Machinists, or any other labor organization. (c) Threatening to cease the operation of his Portsmouth, Ohio, store before negotiating with, or signing a contract with, Lodge #349, International Association of Machinists, or any other labor organiza- tion. (d) In any manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist any 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 10 Louisville Container Corporation, 99 NLRB 81; see also : Reeder Motor Company; 96 NLRB 831 . In view of our finding that the Respondent violated Section 8 ( a) (5) of the Act on June 7, 1951 , we deem it unnecessary to determine whether, as the Trial Examiner found, there was a subsequent independent refusal to bargain on June 21, 1951, dr whether the case of International Broadcasting Corporation (KWKH), 99 NLRB 130. quoted at length in the Intermediate Report, is here applicable. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement 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) Upon request, bargain collectively with Lodge #349, Interna- tional Association of Machinists, as the exclusive bargaining repre- sentative of his employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a written and signed agreement. (b) Post at his store in Portsmouth, Ohio, copies of the notice at- tached hereto and marked "Appendix A." n Copies of such notice, to be furnished by the Regional Director of the Ninth Region, shall, after being duly signed by the Respondent, or by his duly authorized agent, be posted by him immediately upon receipt thereof, and be maintained by the Respondent for sixty (60) consecutive days there- after, 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. (c) Notify the said Regional Director for the Ninth Region, Cin- cinnati, Ohio, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Emery Sparks and George E. Penny in violation of Section 8 (a) (1) and (3) of the Act, and insofar as it alleges interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act, except as otherwise found herein. ' In the event that 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." Appendix A 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, I hereby notify my employees that : I WILL NOT interrogate my employees with respect to their mem- bership in, sympathy for, or activities on behalf of LO DGE #349, INTERNATIONAL ASSOCIATION OF MACHINISTS , or any other labor organization. DRUMMOND IMPLEMENT COMPANY 601 I WILL NOT threaten to cease operation of my Portsmouth, Ohio, store before negotiating with, or signing a contract with, LODGE #349, INTERNATIONAL ASSOCIATION OF MACHINISTS, or any any other labor organization. I WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. I WILL bargain collectively, upon request, with LODGE #349, INTERNATIONAL ASSOCIATION OF MACHINISTS, as the exclusive rep- resentative of all my employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a written and signed agreement. The bargaining unit is : All employees at my Portsmouth, Ohio, branch, but exclud- ing office and clerical employees, salesmen, professional em- ployees, guards, and supervisors as defined in the National Labor Relations Act. All my employees are free to become or remain members of any labor organization. FLOYD DRUMMOND D/B/A DRUMMOND IMPLEMENT COMPANY, Employer By --------------------------------------- Dated -------------------- (Representative ) (Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on July 12 and 30, 1951, respectively, by and on behalf of Lodge #349, International Association of Machinists, 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 Ninth Region (Cincinnati, Ohio), issued his 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, dated January 28, 1952, alleging that Floyd Drummond d/b/a Drum- mond Implement Company, herein called the Respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) 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 and the charges, together with notice of hearing thereon, were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint, alleged in substance that Respondent : (1) Did refuse and fail to bargain collectively with the Union as the exclusive bargaining representative of the employees in the unit found appropriate hereinbelow by refusing to meet and bargain with the Union, although requested to do so; (2) commencing on or about March 1951, and at all times thereafter, interfered with, restrained, and coerced and is now inter- fering with, restraining, and coercing his employees in the exercise of the rights guaranteed them by Section 7 of the Act, by inter alia: (a) interrogating his employees as to their membership in, sympathy for, and activities on behalf of the Union, (b) threatening to cease his Portsmouth, Ohio, operation should a labor organization come into that store, and (c) advising and informing his employees that he was aware of their membership in, sympathy for, and activi- ties on behalf of the Union, for the purpose of discouraging membership in, sympathy for, and activity on behalf of the Union; and (3) discharged the following employees, Emery Sparks and George E. Penny, on June 7 and June 13, 1951, respectively, and since said discharges has failed and refused to reinstate said employees, because of their membership in, sympathy for, and activity on behalf of the Union. Respondent duly filed an answer in which he denied the commission of the alleged unfair labor practices: (1) That he was engaged in interstate commerce within the meaning of the Act; (2) alleged that he was without knowledge or information as to the status of the Union ; (3) that the unit described in the complaint is inappropriate; (4) in substance that the Union made no effort to communicate further with him after its letter requesting recognition which came to his attention on the same day that he received a letter from the Board which informed him that the Union had filed a petition with the Board requesting an election, and that thereafter he complied with each and every request of the Board and its agents; (5) that if the Board had proceeded with an election among his employees and the Union certified as the collective-bargaining agent of his employees then and in that event he would have recognized said Union as such an agent and bargained collectively with it;' (6) that he did not discharge Emery Sparks on June 7, 1951, because of his membership in and activities on behalf of the Union but did lay him off at that time because he was a temporary employee and there was no further need for his services; and (7) admits that he discharged George E. Penny on June 13, 1951, for cause, and refused to reinstate him to his job for the same reasons. Pursuant to notice, a hearing was held at Portsmouth, Ohio, on February 11, 12, and 13, 1952, before the undersigned, the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by a lay representative and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the General Counsel's case-in-chief and at the close of the hearing, Respondent's counsel moved to dismiss the complaint, particularly on jurisdictional grounds. Ruling I See infra in that section of this report styled "The Business of the Respondent." DRUMMOND IMPLEMENT COMPANY 603 thereon was reserved. It is hereby granted in part and denied in part as will be shown in detail hereinafter. The General Counsel also moved to conform the pleadings to the proof as to minor matters, which was granted by the undersigned. Though given an opportunity to do so all parties waived oral argument. At the close of the hearing, the General Counsel advised the undersigned that he had been unable to secure certain vital documentary evidence as regards the Respondent's business operations and requested leave to file such evidence at a future date with the undersigned. After full discussion by all the parties on the record in this regard, the undersigned with the full cooperation of counsel and the representative of the Union, adjourned the hearing sine die, and granted the General Counsel permission to file with him on or before February 29, 1952, the documents referred to.' Thereafter, on or about February 28, 1952, the under- signed received from the General Counsel the following documents: (1) Copies of what purports to be sales contracts between the Respondent and The Oliver Corporation, John Deere Plow Company, and The Massey-Harris Company, which the undersigned then marked for identification as General Counsel's Exhibits 15, 16, and 17, respectively, and admitted them in evidence as a part of the record the same as if they had been so marked and identified at the hearing in the matter. Thereafter on March 5, 1952, the undersigned issued his order officially closing the hearing herein. In accordance with permission granted at the hearing herein, the General Counsel and the Respondent filed briefs with the undersigned on or about March 25, 1952. 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 THE RESPONDENT The respondent herein, Floyd Drummond d/b/a Drummond Implement Com- pany, is a sole proprietorship engaged in the business of selling and servicing farm equipment and machinery in five cities and towns in the State of Ohio. Drummond makes his home in Bainbridge, Ross County, Ohio, and one of his stores is located there. Though the complaint alleges that the Respondent has his principal offices and place of business in Portsmouth, Ohio, the undersigned is convinced and finds from the record as a whole that since Drummond lives in Bainbridge, this point should be so designated. In addition to the store at Bain- bridge, Drummond owns and operates stores at Chillicothe, county seat of Ross County ; Washington Court House, county seat of Fayette County ; Hillsboro, county seat of Highland County ; ' and at Portsmouth, county seat of Scioto County. In the course and conduct of his business as a farm implement dealer through the five stores, Drummond's principal suppliers are The Oliver Corporation (herein called Oliver), John Deere Plow Company (herein called John Deere), The Massey-Harris Corporation (herein called Massey-Harris), and General Motors Corporation, Truck and Coach Division (herein called General Motors). Oliver, John Deere, and Massey-Harris, have branch offices and warehouses in Columbus, Ohio, and ship therefrom assembled products to their respective customers throughout the State. In addition, Oliver has plants in Springfield and 2 See pages 336-39 of the record. 8 The record inadvertently refers to "Hardin" and "Harding" County. This is erroneous because Kenton is the county seat of Hardin County. There is no Harding County in Ohio. Accordingly , the record is corrected to this extent by the undersigned. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cleveland, Ohio ; at Springfield it manufactures plows, corn planters, manure spreaders, and other farm implements, and at Cleveland, tractors are made. Orders for its equipment are placed through its offices in Columbus. Massey- Harris manufactures its products at Toronto, Canada, Batavia, New York, Fowler, California, and Racine, Wisconsin, where its general offices are located. John Deere manufactures no merchandise in Ohio, its factories being located in Illinois, Iowa, Wisconsin, and other States. General Motors' main plant is located in Pontiac, Michigan, but it maintains offices at Cincinnati, Ohio, and operates an assembly plant for trucks in the Cincinnati area. The Respondent is a dealer for Massey-Harris and Oliver in all of his stores ; for John Deere in the Portsmouth store only; and for General Motors in Wash- ington Court House, Chillicothe, Bainbridge, and Portsmouth. (At the time of hearing herein his contract with General Motors at Portsmouth had been cancelled.) As indicated above the Respondent contends that: (1) It is not engaged in interstate commerce within the meaning of the Act; and (2) the Portsmouth, Ohio, store alone should be considered in these proceedings. On the other hand the General Counsel contends that while the Portsmouth store alone is involved in the alleged unfair labor practices, particularly as re- gards his 8 (a) (5) allegation, nevertheless all of the Respondent's operations should be considered in determining the question of commerce, and the deter- mination of the Board's jurisdiction over the subject matter. On July 21, 1951, the Respondent sent the following letter to the Board : Phone : DRUMMOND Phone : Bainbridge-2011-2236 IMPLEMENT COMPANY Washington C H-6402 Chillicothe--5366 Portsmouth-30 EVERYTHING FOR THE FARM BAINBRIDGE, OHIO July 21, 1951 MR. ALVIN SCHWARTZ, 1200 Inglis Building, Cincinnati, Ohio DEAR SIR : In regards to our telephone conversation of recent date concerning certain data on our purchases and sales , please be advised that our total purchases for Drummond Implement Company, including all five stores located in Portsmouth, Chillicothe, Hillsboro, Washington C. H., Ohio, and Bainbridge, Ohio was $1,519,391.50, and our total sales was $1,824,521.05. The total sales were as follows : Portsmouth ---------------------------------- 373, 190. 89. Chillicothe----------------------------------- 399,665. 46. Hillsboro------------------------------------- 163,867.59. Washington C. H. Ohio---------------------- 279, 615. 60. Bainbridge----------------------------------. 521,325.27. Mill ----------------------------------------- 86,856. 24. 1,824, 521.05. DRUMMOND IMPLEMENT COMPANY 605 The only stores that sold any merchandise outside of Ohio were Ports- mouth and Bainbridge, which we estimate to be between two and three percent. The amount of goods purchased outside of Ohio which we sold we estimate to be between ninety and ninety five percent , the greater part of which was handled through branch distributors in Ohio. Trusting this is the desired information, we remain, Very truly yours, DnumMOND IMPLEMENT COMPANY, /s/ FLOYD DRUMMOND, /s/ KENNETH FuRNAU, Owner. Auditor. The Respondent's "letterhead" on the above clearly indicates to the under- signed that Drummond himself considered all five stores as a single business venture. Each of the Respondent's stores is under the direct supervision of a manager. As the undersigned interprets the testimony adduced at the hearing herein, each store keeps its own set of books, does its own banking, collects its accounts re- ceivable, and in general operates much the same as any local retail store. The managers of the stores are paid a salary by the Respondent. There Is no evidence in the record that they share in the profits or losses of the individual stores. There is some evidence, however, that their tenure of office is subject to the whim of the Respondent.` Drummond calls at each of the stores about once a week. Each store manager is responsible for the purchase of supplies and the sale of equipment in his area. There is no evidence in the record of interchange of employees between the respective stores. Each manager hires and fires the employees under his supervision as he sees fit. It is clear from the record that the Respondent keeps in close touch with his stores. This is evidenced by the fact and he retains an auditor who keeps track of the business of each store, and a general manager who looks after things dur- ing Drummond's absence.' Another indicia that the Respondent's business is an integrated enterprise Is the fact that he carries a blanket insurance policy that covers all of his stores .0 Further indicia is the fact that all sales contracts with and purchases from the various firms with whom he does business are made in the name of "The Drum- mond Implement Company," thus indicating that it is the credit and financial standing of Drummond that enables him to operate and do business with the aforementioned concerns at all five of the stores. From all of the above, the undersigned is convinced and he so finds that the Respondent's operations constitute a single interrelated and integrated business and that the totality of the sales and purchases of all his stores are relevant material in determining the Board's jurisdiction as regards the commerce issue. Indicia that the Respondent is engaged in commerce within the meaning of the Act is found in his answer wherein he denies that he refused to bargain with the Union, and as a further defense alleges that "This Respondent says that a Field 4 This is evidenced by the testimony of Schultz , manager of the Portsmouth store, which will be discussed in detail hereinafter. 5 At the time of the hearing herein, Drummond was III and in fact had been in poor health for quite some time Due to this condition be was compelled to hire someone to look after his business interests. 9 See Grinnell Bros., 98 NLRB 20; Southland Corporation, Oak Farm Dairies Division, 94 NLRB 1563; Galyan's Super Market, Inc., 92 NLRB 298. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representative of the National Labor Relations Board from the Cincinnati Office appeared in person and talked to this Respondent, and the Respondent informed him that if the petition was processed and the Board ordered an election and the Respondent's employees in an election duly held by the Board selected the Union as their collective bargaining agent then and in that event this Respondent would recognize the Union." ' Again Drummond himself testified at the hearing herein in this regard as follows : Q. (By Mr. Fitch) Mr. Drummond, in the event that the Board would order an election for the Union as certified as bargaining agent for your employees, would you bargain with them? A. If they had a majority. Q. If they are certified, if the Board orders, will you bargain with this Union? A. If they are certified. Q. Is your answer yes or no? A. Yes. Mr. Fitch : All right. Trial Examiner Shaw : You are excused. While the Respondent's admissions alone might be legally sufficient to predi- cate a finding that the Respondent is engaged in commerce within the meaning of the Act, on the theory that if the Board asserts jurisdiction, it does so for all purposes and not in part for the convenience of the parties, the undersigned, for reasons set forth below, deems it unnecessary to rely on such technicalities to dispose of this important jurisdictional issue. It is the record considered as a whole that must provide the answer. During the calendar year of 1951, the Respondent's purchases of merchandise amounted to $1,673,744. Of this amount, $66,450.36 represents purchases made directly from miscellaneous suppliers outside the State of Ohio. The remainder, or purchases amounting to $1,414,166.42, was made from and through sales repre- sentatives of John Deere, Massey-Harris, and Oliver, who maintain sales offices in Columbus, Ohio, and General Motors whose offices are in Cincinnati, Ohio. Of this group only Oliver maintains factories in Ohio.' During this same period of time the Respondent' s sales in the areas served by his five stores amounted in the aggregate to $1,983,691.09. Of this amount $21,421.76 or approximately .01 percent represents sales to customers living outside the State of Ohio.` As indicated above, the Respondent has dealer agreements with Oliver, John Deere, Massey-Harris, and General Motors. According to Drummond none of the contracts is "exclusive," that is to say that others within the area served by his stores may sell merchandise manufactured by his suppliers. The contracts or agreements which were offered in evidence by the General Counsel indicate that such is the case. However, it is clear from the language of the various contracts submitted by the General Counsel that as long as the Respondent con- ducts his affairs in a business-like manner and sells a reasonable amount of the manufacturers' products, he has nothing to fear from others invading his terri- tory. For example, the Respondent's agreement with Oliver, which was entered into on August 18, 1947, states as follows as regards "Territory." 7 At common law, pleading in this manner was fatal since it admits and denies at the same time. It was styled a "negative pregnant " 'As indicated supra, General Motors maintains an assembly plant for trucks at Hamilton, Ohio. e The merchandise was purchased by customers at the Respondent's stores in Ohio for use outside the State. DRUMMOND IMPLEMENT COMPANY 607 Territory 1. The goods covered by this contract shall be purchased for resale, for agricultural use only, in the town where Dealer is located and its vicinity. The territory described is nonexclusive but so long as this contract is in effect Oliver will not enter into any other like contract relating to the territory described. Oliver reserves the right to sell directly to Federal, State or local govern- ments and departments thereof, educational institutions, and individuals or corporations whose operations extend beyond the limits of a local com- munity without any rights accruing to Dealer by reason of such sale. Oliver shall be under no liability to Dealer in respect to any sales made or promoted by any other dealer. Moreover, the agreements with Oliver, John Deere, and Massey-Harris accord these companies a substantial degree of control over the Respondent's business. For example, the Respondent is required to furnish each of them with full sales, financial, and inventory reports, and make its books available upon demand. They also provide for mutual assistance in advertising the products of the suppliers. Again, the Respondent is required to carry in stock at all times parts for the suppliers' respective products, and to maintain repair and service per- sonnel equipped with the proper tools and machines to keep their products in repair and operation. By and large the bulk of the Respondent's business is with Oliver. Unfortu- nately the record does not disclose the dollar amount of his purchases from this supplier. Nor does the record disclose the dollar amount of the Respondent's purchases from John Deere. All that it shows in this regard is the total sales to the Portsmouth store, $48,000. The record does show the dollar amount of the Respondent's purchases from Massey-Harris to be $170,000 for all stores for an unstated period (presumably for 1951). In such a state of the record the undersigned is compelled to resort to the Respondent's own figures as set forth in the above letter to arrive at a percentage of his interstate business; to wit that 90 percent of all purchases was either purchased from firms outside the State of Ohio, or through their branch offices in Ohio, which amounts to approxi- mately $1,506,300. Accordingly, the undersigned finds that the Respondent had an inflow of merchandise valued at approximately $1,506,300 from suppliers who either manu- factured their products outside the State of Ohio and shipped them directly to the Respondent's respective stores, or reshipped them from their warehouses in the State. While the undersigned finds that this figure includes purchases from Oliver, who has factories in Ohio, he feels that this is of no moment in view of the fact that Oliver is a nationwide organization and its factories in Ohio are but a part of a multistate enterprise over which the Board has asserted jurisdiction on innumerable occasions . Nor is the undersigned unmindful of the fact that the bulk of the Respondent's purchases from John Deere and Massey-Harris are through their Columbus, Ohio, offices and warehouses, but as in the case of Oliver he finds this factor of no moment for the simple reason that in reality the flow of commerce from outside the State is stopped but momentarily, and then moves on to its ultimate destination. In other words the offices and warehouses of Oliver, John Deere, Massey-Harris, and General Motors act as mere conduits through which their products flow to the ultimate purchaser or consumer10 The situation herein is somewhat analogous to that found in Holm Tractor ck Equipment Company, 93 NLRB 222, wherein the Board asserted jurisdiction on 10See Board's Sixteenth Annual Report at page 28, et seq. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the theory that the relationship found therein between the employer and its suppliers constituted an "integral part of multistate enterprises , and that, pur- suant to the Board's recently announced policy, it will effectuate the policies of the Act to assert jurisdiction in this case." Under the circumstances found above, the undersigned is convinced and finds that the Respondent herein is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Lodge #349, International Association of Machinists , affiliated with the Ameri- can Federation of Labor , is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES 1. Sequence of events leading up to the alleged unfair labor practices The Respondent's plant in Portsmouth, Ohio, is a one-story building. In the front are located the parts and hardware departments, the manager's office, and the bookkeeping department . In the rear of the building is one large room where equipment is serviced and repaired . At all times material herein, A. L. Schultz was manager of the store and Mrs. Margaret E. Drummond, bookkeeper" Sometime in the early part of May 1951, the employees in the shop became dissatisfied with their wages and working conditions and in the course of their discussions they decided to send one of their number, Nero Shepherd, to see George Egbert, secretary of Local #349. Shepherd went to see Egbert and secured from him authorization cards. Within the next few days, 5 of the 7 employees in the shop signed cards, and paid $5 initiation fee. Along about June 1, 1951, Edward L. Mercker, international representative of the Union, met with Egbert in Portsmouth, Ohio, at which time the cards were turned over to him. Shortly thereafter, on June 6, 1951, Mercker wrote the following letter to the Respondent: INTERNATIONAL ASSOCIATION OF MACHINISTS OLIVE HILL, ICY., June 6, 1951. Registered Mail Return receipt requested MR. ARTHUR SCHULTZ, Manager, Drummond Implement Co. 1634 Gallia Street Portsmouth, Ohio DEAR SIR : This is to officially inform you that a majority of the employees of your Portsmouth, Ohio branch, excluding office, clerical , salesmen, guards, profes- sional employees and supervisors as defined in the Labor Management Rela- tions Act, have designated the International Association of Machinists as their bargaining agent. This is further to request recognition of our Associa- tion for the said employees in all matters pertaining to hours of work, rates of pay and other conditions of employment. It will be greatly appreciated if you will advise me sufficiently in advance as to the time and place you can meet with me, in Portsmouth, Ohio, for the 11 No kin of the Respondent herein. DRUMMOND IMPLEMENT COMPANY 609 purpose of negotiating an agreement, for these employees, covering hours of work, rates of pay and other conditions of employment. Looking forward to amicable and pleasant relations, I am, Yours very truly, EDWARD L. MERCKER, (Signed) Edward L. Mercker, Grand Lodge Representative, 801 Iola Road, Louisville, Ky. The above letter was received by the Respondent on June 7, 1951" A few days later, June 11, 1951, the Union filed with the Board, at the offices of the Ninth Region (Cincinnati, Ohio), a "Petition for Certification of Representatives," in which it alleged that it represented more than 30 percent of the Respondent's employees in the following appropriate unit, "All employees of the Company at its Portsmouth, Ohio Branch excluding all office, clerical, salesmen, professional employees, and supervisors as defined in the Act." On the same day the Regional Director for the Ninth Region wrote the Respondent the following letter : NINTH REGION 1200 INGALLS BUILDING-6 EAST FOURTH STREET-CINCINNATI Z, OHIO DRUMMOND IMPLEMENT COMPANY 1634 Gallia Street Portsmouth, Ohio June 11, 1951. RE : Drummond Implement Company Case No. 9-RC^1257 GENTLEMEN : I am herewith enclosing a copy of the petition which has been filed in the above case. In order to assist us in the investigation of this matter , will you kindly forward the following information and data to us immediately : (1) Two copies of a list of employees arranged in alphabetical order and indicating the job classifications of each of the employees falling within the alleged appropriate unit during the last completed pay-roll period. (2) Copies of all correspondence concerning the question of representation and all contracts with the petitioning union or any other labor organization claiming to represent any of the employees. Please address all correspondence and inquiries to the Field Examiner to whom this matter has been assigned , as indicated below. Very truly yours, JACK: G. EVANS, Regional Director. The above letter and the copy of the petition were received by the Respondent the next day, June 12, 1951. On or about that date Drummond was at the Ports- mouth store, and Schultz turned over to him the letter from the Union dated June 6, 1951, and the letter and the copy of the petition dated June 11, 1951. After reading this correspondence, Drummond instructed Schultz and Mrs. 33 See infra as regards the discharge of Emery Sparks 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drummond to comply with the request of the Board in its letter of June 11, 1951. On June 14, 1951, Schultz sent the following letter to the Board : DRUMMOND IMPLEMENT COMPANY EVERYTHING FOR THE FARM G. M. C. TRUCKS SALES AND SERVICE-HARDWARE FLOYD DRUMMOND, Owner 1634-38 GALLIA STREET PORTSMOUTH, OHIO NATIONAL LABOR RELATIONS BOARD 1200 Ingalls Building 6 East Fourth Street, Cincinnati 2, Ohio Attention : Mr. Alvin Schwartz Re : DRUMMOND IMPLEMENT CO. Case No. 9-RC-1257 June 14, 1951. GENTLEMEN: We are enclosing herewith, two copies of a list of employees arranged in alphabetical order and indicating the job classifications and also a copy of all correspondence concerning the question. Trusting the enclosed matter is in order, we are Yours very truly, /s/ A. L. Schultz, DRUMMOND IMPLEMENT COMPANY, Manager-Portsmouth Store. Thereafter the field examiner for the Board, Alvin Schwartz, to whom the case had been assigned, contacted the Respondent during the course of his investigation. On June 7, 1951, the Respondent laid off or discharged Emery Sparks, and on or about June 13, 1951, discharged George Penny. Both were shop employees and had signed union-authorization cards. The discharges will be discussed in detail hereinafter. On July 2, 1951, the Union filed with the Board a "withdrawal Request" in Case No. 9-RC-1257, which was approved on July 5, 1951, by Jack G. Evans, Regional Director for the Ninth Region. On July 3 and 31, 1951, the Union filed the charges upon which the instant complaint is predicated. Other than the letter of June 6, 1951, in which it notified the Respondent that it represented a majority of his employees, no officer or representative of Local #349 or of the International Union made an effort to see or get in touch with the Respondent at any time either by letter, telephone, telegraph, or by calling at this Portsmouth, Ohio, store, which is involved herein. In fact Mercker, the international representative of the Union, testified on the first day of the hearing herein in this regard as follows : Q. (By Mr. Fitch) Did you ever make a trip to Portsmouth, Ohio, some- time in June 1951, to investigate any information you had received from Mr. George Egbert? A. Yes. Mr. Cohn : Objection. What information? DRUMMOND IMPLEMENT COMPANY 611 Trial Examiner Shaw : This is cross-examination. George Egbert has been mentioned as the Secretary. I don't know, it may have something to do with this representation matter. You may proceed. Overruled. A. Yes. Q. (By Mr. Fitch) Was that before or after you received these cards? A. After. Q. And did you go around to the Drummond Implement Company and attempt to talk to Mr. Schultz, the manager? A. No. Q. Did you make any effort to contact him after you received these cards? A. I wrote a letter after I received the cards. Q. Did you do anything other than writing a letter? A. No. Q. And you never did, of course, direct a letter to Mr. Floyd Drummond, the owner of the place, to your knowledge? A. Floyd Drummond? Q. Yes. A. No, I never directed a letter to Mr. Drummond. Q. So far as you know you never met Mr. Drummond until today, is that correct? A. I never met Mr. Drummond, period. Q. You have never seen him, then, until today? A. I don't know the gentleman at all. Mr. Fitch : I believe that's all. Trial Examiner Shaw : Any redirect? Mr. Cohn : No, sir. Trial Examiner Shaw : You are excused. It is the theory of the General Counsel that the Respondent upon receipt of the Union's letter of June 6, 1951, then and thereafter entered upon a "deliberate campaign designed to dissipate and destroy the organization of his employees," and that the "first step in the campaign was the discharge of Emery Sparks not over two or three hours after the letter was brought to the attention of the store manager, Mr. Schultz" ; 1S and that under such circumstances the Union was justified in withdrawing its petition for certification and filing the charges herein. 2. The alleged discriminatory discharge of Emery Sparks Emery Sparks was first employed by the Respondent in 1944, and quit sometime in 1947. He was reemployed around March 1, 1951, as a repairman and pri- marily to set up and repair farm machinery out in the field. According to Sparks he was rehired by the Respondent under the following circumstances. For some time he had been loafing around the shop talking to the "boys," and on one such occasion Schultz was present and asked him if he would like to go to work for the Respondent. Sparks accepted Schultz' offer and at the time asked him about the permanency of the job. Schultz told him that it would "be a permanent job if you want it." His salary was $45 per week. On May 5, 1951, Sparks signed one of the Union's authorization-for-member- ship cards, and thereafter paid his $5 initiation fee. According to the record, this was the extent of his union activities. Sparks further testified that one day when he was setting up machinery in the shop along with 2 or 3 other employees, Schultz came by and in the course 1" Quoted portions from the General Counsel 's brief at page 9 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the conversation that ensued asked him how he liked construction work. He told him "just fine." His explanation of Schultz' query in this regard was that everybody in the shop including Schultz knew that before he went to work for the Respondent he had been employed on a nearby construction job, and at that time it was his custom to loaf around the Respondent's shop whenever he had an opportunity. In the course of the conversation he told Schultz that it "was an all-union job," and voluntarily showed him a "carpenters" union card. The record does not disclose when the conversation took place. As indicated above, Sparks was laid off or discharged by the Respondent on June 7, 1951. His version of what transpired on that day was as follows. In the forenoon he worked in the shop setting up machinery. Along about 10: 30 or 11 a. m. he had occasion to be in the front office and at that time saw the postman enter the door and hand Schultz the mail. Included was a registered letter, for which he saw Schultz sign" Since the General Counsel at the hearing herein and in his brief attaches so much importance to the circum- stances surrounding the receipt of the registered letter , the undersigned is of the opinion that Sparks' testimony as regards the incident should be set forth in detail herein below : Q. (By Mr. Cohn) Was there anybody with Mr. Schultz when you saw him sign for the letter? A. The mail man was standing there, that was all. Q. Was any other employee there? A. Well, there was someone there behind the counter waiting on some guys that was in there, and I just got through talking to one of them that come by, that's the reason I seen him sign that letter . The mail man said, "Here's your registered letter," and about that time I walked by, going through to the other room to start working. Q. Where was Mr. Schultz at the time? A. Standing right by the cash register. Trial Examiner Shaw : Did Mr. Schultz tell you who was the sender of that registered letter? The witness : He did not. He didn't say a word, and I didn't say nothing. Trial Examiner Shaw: You don't know, then, where it was from? The Witness : No, sir. Mr. Cohn : That's all. Trial Examiner Shaw : You are excused. On the afternoon of June 7, 1951, Sparks was sent out in the field to set up farm machinery. What transpired then and thereafter is best told in his testi- mony. It is set forth below : Q. Now, directing your attention to the date of June 7th, 1951, what did you do? Did you work that day, Mr. Sparks? A. Yes, sir. Q. What did you do that day? A. Well, the fore part of the day I set up farm machinery in the shop. The after part of the day I went out here to Tick Ridge, me and George Eichenlaub, and finished setting up a hay baler. Trial Examiner Shaw : Out where? The Witness : Tick Ridge. T I C K. Out back of Wheelersburg. Trial Examiner Shaw : Off the record. (Discussion off the record.) 14 The General Counsel 's theory in this regard will be thoroughly discussed hereinafter. DRUMMOND IMPLEMENT COMPANY 613 Trial Examiner Shaw : On the record. Q. (By Mr. Cohn) Well, did you have a conversation with Mr. Schultz that day? A. That evening after I come back in, yes, sir. Q. What time did you get back in? A. Well, I judge it was around five o'clock, or a quarter until. Q. Well, just state what happened. A. Well, we come back in and he was in the shop . I messed around there a little bit, five or ten minutes, maybe, and we got our equipment unloaded off of the truck ; and he said, "Come here, Red, I want to talk to you." Me and him went upstairs. We got to the top of the stairs and he stopped and he said, "I am going to have to lay you off." And I said OK. He said, "Mr Drummond said we would have to cut down on expenses , and we are getting pretty well caught up, I am going to have to lay you off. The office girl has got your money in there." I said, "All right." I walked in, got my money, walked back downstairs, gathered up part of my tools, and took them on home. I went on home. That's all there was to it. Sparks saw Schultz on one occasion after he was laid off. At that time the following conversation occurred. Q. Would you say when and where that occurred? A. I was talking to him when he stopped for a red light at Finley and Ninth Street. I asked him, I said, "I heard you hired a new guy?" He said, "Yes." I said, "What about my job?" He said, "I heard you had a job." I said "I have." The red light changed and he pulled out. Q. Was that the extent of the conversation? A. Yes, sir. The above is a summation of the General Counsel 's case as regards the alleged discriminatory discharge of Emery Sparks. There is little ( if any ) dispute as to the facts , except as regards the circumstances surrounding the registered letter, and the employment of Sparks. At this stage of the report the under- signed feels that the position of the General Counsel as regards the alleged discharge of Sparks should be set forth. As the undersigned sees it, the General Counsel predicates his position as regards Sparks on the following : (1) Sparks was hired by the Respondent as a regular shop employee , with no "strings" attached to the job, in other words as a permanent and not as a temporary em- ployee as contended by the Respondent; (2) he signed a union-authorization card ; (3) before the employees in the shop engaged in any union or concerted activities he had disclosed to Schultz his membership in the "carpenters" union ; (4) he was discharged a few hours after Schultz received the letter from the Union in which it notified the Respondent that it was the duly designated agent of a majority of the employees in the shop; and (5) the Respondent replaced Sparks with a new employee a short time after he was discharged, of which more anon. The Respondent contends that : ( 1) Sparks was hired as a temporary em- ployee to help out during the rush or planting season in the Portsmouth area; (2) Sparks was laid off for economic reasons; (3) the employee hired by the Respondent after Sparks' discharge was hired originally as a "parts" man, for which Sparks was not qualified ; and (4) the Respondent was without knowledge of Sparks' membership in or activities on behalf of the Union at the time his services were dispensed with. In the considered opinion of the undersigned, the most important testimony in the record as regards Sparks is his own as regards the circumstances sur- 250983-vol 102-53-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rounding the receipt of the registered letter by the Respondent from the Union on June 7, 1951.16 According to Sparks he saw the postman enter the Respondent's office in the morning of June 7, 1951, and hand Schultz the mail ; that he heard the postman say to Schultz, "Here's your registered letter," and that he then saw Schultz sign the return-receipt card. The record completely refutes Sparks' testimony in this regard. In the first place the return-receipt card at issue, and which is attached to General Counsel's Exhibit No. 7 (the letter from the Union to the Respondent) and marked as General Counsel's Exhibit No. 7a, shows that Margaret Drummond signed the receipt for "Arthur L. Schultz" on "June 7,1951." Margaret Drummond, the Respondent's bookkeeper, testified that she per- sonally received the mail including the registered letter on this particular morn- ing and signed the return receipt; that Schultz did not come into the office until after she had received the mail ; and that sometime after lunch she gave him the letter from the Union. Drummond impressed the undersigned as an honest and forthright witness. Sparks did not so impress him. Consequently, the undersigned credits Drum- mond's account of the above incident in its entirety and finds that Sparks' testi- mony in this regard was so palpably false that it is entitled to no credence what- soever. Should Sparks' account of the incident be credited by the undersigned, he still would be compelled to reject it in toto for the simple reason he would be required to find: (1) First that the letter from the Union was in the envelope; (2) that the contents of the letter immediately compelled the Respondent to "enter upon a deliberate campaign designed to dissipate and destroy the organi- zation of his employees"; and (3) that since Schultz had previously been in- formed of Sparks' membership in the "carpenters" union, it therefore follows that Schultz discharged Sparks because he was the only employee that ".. . Schultz knew had union proclivities."" Findings of fact cannot be predicated on inference upon inference ad infinitum. They must be made upon reliable, probative, and substantial evidence ; not upon suspicion, surmise, and speculation. Consequently, the undersigned rejects the General Counsel's theory as regards the incident of the "registered letter" in the alleged discharge of Sparks. As regards the circumstances surrounding the actual discharge of Sparks the Respondent, as indicated above, contends that he was hired in March 1951 to help out during the spring or "busy season," and that by June 1951 business had begun to slacken up and his services were no longer required. In the considered opinion of the undersigned, the record supports the Respond- ent's position in this regard. For example, Margaret Drummond testified without contradiction that on one occasion during the time material herein she had the following conversation with Sparks : Q. Now, did he have any discussion with you about his employment at the Drummond Company? A. No, not with regard to his employment. Q. Did he have any conversation with you subsequent to his employment, after he started working? A. Well, yes. Q. What did he say about his work, as to whether or not it would be a permanent job or a temporary job? A. Well, on one occasion he stopped me where he was setting up machin- ery, and told me that he had been offered a job he thought he could get, at $2.50 an hour, and he said that if he could secure it he would take it, and I u Particularly as regards his credibility as a witness. 14 Quoted portions from the General Counsel' s brief at page 10. DRUMMOND IMPLEMENT COMPANY 615 told rim, I said, "Well, Red, under the circumstances," I said, "I don't know how long Mr. Schultz will need you." I said, "I would advise you to take it." He says, "That's what I know." Trial Examiner Shaw : When was this? The Witness : Well, exactly I wouldn't know. I was just walking through and they call to me lots of times. Trial Examiner Shaw : You mean by "they," the fellows that are working in there? The Witness : Just a friendly conversation, that's all it amounted to. George Eichenlaub, one of the shop employees, likewise testified credibly and without contradiction that Sparks told him on a "couple" of occasions that he was hired as a temporary employee, and that he had heard Sparks tell customers in the store that he was only there "to help them out a few days." Schultz testified that he told Sparks at the time he rehired him in March of 1951 that the job was temporary and would be for the duration of the so-called "busy" season, and advised him to take a steady job if he had the opportunity to do so. The undersigned credits the testimony of Drummond, Eichenlaub, and Schultz, as regards the above. The record clearly shows that the Respondent' s business is seasonal. He is busy during the months of March, April, and May, and in the fall of the year, particularly during the latter part of August, September, October, and the early part of November. It is a matter of common knowledge that corn is the big crop in the Portsmouth, Ohio, area, especially in the Scioto River Valley. It is also a matter of common knowledge that farm work, insofar as the preparation of the land and the planting of corn is concerned, slacks off around the early part of June and picks up at harvest time in the fall in the sections of Ohio where the Respondent operates his implement stores. A colloquialism expressing the fondest hopes of the farmers in this part of Ohio, "corn knee-high by the Fourth of July" is illustrative of the situation. Schultz' version of the circumstances surrounding the layoff is at variance with that of Sparks. According to Schultz, he laid Sparks off in the morning and did not remember sending him out in the field to work. As indicated above, Sparks' version was that on June 7, 1951, he and George Eichenlaub were sent out to Tick Ridge to set up a hay baler and after their return to the shop, he was laid off. George Eichenlaub was called as a witness and testified on behalf of the Re- spondent at the hearing herein. Though subjected to extensive cross-examina- tion by the General Counsel he was not queried as regards his activities on the day of Sparks' layoff. Nor did the General Counsel choose to recall him on rebuttal after Schultz had testified. In view of the fact that Schultz could not remember whether or not Sparks worked on June 7, 1951, and in the absence of any testimony by Eichenlaub con- cerning this question, the undersigned accepts Sparks' testimony in this regard, primarily because it was not successfully rebutted in the record that is before him. While it is true that the undersigned has found above that Sparks was an unreliable witness, nevertheless he accepts his testimony in this regard. It is well settled that a trier of facts may credit a portion of a witness' testimony and discredit him as regards other matters." As indicated above, the General Counsel also contends that further indicia that Sparks was discriminatorily laid off or discharged is evidenced by the fact 11 See N. L. R. B. v. Universal Camera Corp , 340 U. S. 474. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that shortly thereafter he hired one William Call. The record shows that Call was hired on June 19,1951. Schultz testified that Call was hired as a parts man, primarily because of his past experience as such in the automotive field. At the time the employees in the parts and hardware departments were scheduled to take their vacations, and it was necessary to hire someone to relieve them. Call had been recom- mended to him by Mrs. Margaret Drummond, the Respondent's bookkeeper. Her credible and undenied testimony in this regard is set forth below: Q. Did he talk with you about hiring Mr. Call? A. Yes, he did. Q. What did he say about hiring Mr. Call? A. Well, I am afraid we are going to have to alleviate Mr. Schultz on the blame for Mr. Call. Mr. Fitch : Just answer the question. A. (Continued) Mr. Call happens to be a personal friend of mine, I have known him for a number of years, and his job wasn 't secure and Mr. Schultz had kept saying that it had been too much for George in the parts depart- ment during the spring season without a doubt, they just run their legs off, that's all there is to it ; and he said "Now would be the time to bring some- one in and teach them this parts business easy." And I had been nagging him about this personal friend , if he ever had a position open, and Mr. Call is a parts man in the machinery line, in machines, not in farm implements, just automobiles ; and then I asked him to consider Mr. Call for this parts position, because he had had experience in parts. Q. And so he came to work there. Is that in your records here? A. Yes. Q. How about pointing out when he came to work? A. Well, Tuesday, of the payroll week of June 23rd, that would show him appearing for work on June 19th , Tuesday. Schultz further testified that after Call had worked in the parts department for awhile he was assigned to work in the shop so that he could become familiar with farm machinery during the slack season, and thus able to do a better job when business picked up in the fall. According to Schultz, Sparks was not hired for this job because he was not qualified, either by experience or education , to handle it. The parts and hard- ware departments are controlled by a perpetual inventory system. Under this system, incoming and outgoing articles are posted on a card so that one can tell at a glance how many nuts, bolts, parts, etc., are on hand. In order for the system to work the employees are required to make timely entries on the cards. The undersigned is convinced and finds that Sparks was not qualified for the parts job. Obviously a person so employed should be able to write legibly. That Sparks was unable to do so is amply demonstrated by his signature on General Counsel's Exhibit No. 8c, which purports to be his "Authorization for Representation" card. Conclusion Having found as above the undersigned is convinced and he so finds that Emery Sparks was hired by the Respondent in the early part of March 1951 as a temporary employee, and that his employment was terminated on June 7, 1951, for economic reasons. He also finds that the reliable, probative, and substantial evidence in the record when considered as a whole does not support the General Counsel's contention that Sparks was laid off or discharged on June 7, 1951, because of his membership in and activities on behalf of the Union. DRUMMOND IMPLEMENT COMPANY 617 Consequently, the undersigned will recommend that this allegation of the com- plaint be dismissed in its entirety. 3. The alleged discriminatory discharge of George Penny The case of George Penny presents an anomaly . It is conceded by the Re- spondent that Penny was a likeable sort of a person , and when in "condition" a good worker. On the other hand he was an alcoholic and unfortunately had no control over himself, and as a result was frequently absent from work. For years the Respondent put up with his absenteeism . It was his custom to absent himself without leave and report for work when he was able to do so. Typical of his conduct is best told in the credible, undenied, and uncontradicted testi- mony of Mrs. Margaret Drummond , which is set forth below : Q. Surely. Now, you say that many of the times that Mr. Penny was absent you knew that he-that it was because he was drinking wine, is that right? A. Yes, sir. Q. How did you know? A. I have walked right out to the car with his wife and looked in and saw him laying there, drunker than a lord. That's a fact, I have. Q. When was that? A. Now, to tell you specifically when, I can't, Mr. Cohn. When he got his teeth pulled, they all called me Mrs. Penny for a whole month, rubbing it in. He was drunk, and I had to look at his gums and everything. That's the truth. I know he drinks and I have seen him like that. Q. Did you ever go out and drink with him? A. No, sir. Q. Do you know of any time be ever came on the job drunk? A. No, I can't say that. The only thing I knew was the day the boys put him in the coal bin and let him sleep all day , but he certainly wasn't on the job. Q. When was that? A. I don't know, but they remember it. He came in drunk and he was just so completely passed out they couldn't get him home and they put him in the coal bin. We all went and looked at him from time to time. Q. Don't you remember when that was? A. No, I wish I could. Q. Well, was it recently? A. That sort of stuff happens all the time . Of course it was recently, it was while I was employed there steadily . That's only been a year from May '50 to May '51. The record clearly shows that Penny had been warned repeatedly by the Re- spondent about his drinking, and on at least one occasion in 1950 had been dis- charged for his conduct. According to Penny, on that occasion he asked Schultz for 2 days off and he took a week. Upon his return to work Schultz told him to " . . . go back home for another week, " and that he would send for him when he needed him. About a week later Schultz sent for him and he remained on the payroll up to the (late of his discharge on June 13, 1951. As indicated above, Penny was considered a good worker when he was sober. He was employed as a "handyman." It was his job to sweep up the shop, clean out the toilets, and on occasions work as a welder. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's payroll records show that from July 1950 to June 9, 1951, Penny absented himself from work on the following occasions: July 1950--------------------------------------------- 5 days August 1950------------------------------------------ 4 days September 1950--------------------------------------- 7 days October 1950------------------------------------------ 6 days November 19550---------------------------------------- 3 days December 1950---------------------------------------- 6 days January 1951----------------------------------------- 5 days February 1951---------------------------------------- 9 days March 1951------------------------------------------- 4 days April 1951-------------------------------------------- 3% days May 1951--------------------------------------------- 2 days June (2 pay periods) 1951------------------------------ 3 days Thus for a period of a little less than a year he was absent without leave from his work for a total of 571/2 days. According to Penny, on Friday, June 8, 1951, he went into the office and told Mrs. Drummond, the bookkeeper, that he wanted off on the coming Tuesday, June 12, 1951. Mrs. Drummond told him to see Schultz about it. He ignored her suggestion in this regard and "took off" Friday night and did not report to work until Wednesday morning, June 13, 1951. At which time he had the following conversation with Schultz : Q. (By Mr. Cohn) What occurred when you went in on Wednesday, the following Wednesday? A. When I went in on the Wednesday, Mr. Schultz asked me where I had been. I told him I went to Columbus on Tuesday. And he says, "How's come you didn't come in Monday and Saturday?" I says, "I was in Satur- day and got my money." He says, "Well, I didn't see you." Well, I didn't see him, either. Q. Did you tell him that? A. Then after he called all of them, put all of them to work, he said to me, he says : "I want to see you a minute, Penny." I said O. K., so he called me in the front office. He said to me, he said, "I am going to have to let you go." I said, "Well, you are the boss," and he says, "I am going to pay your vacation." So he went in another office and got my vacation from Margaret, brought it in and handed it to me. Then he said to me, says, "Do you know anything about this union the boys have got started down- stairs?" I says, "no, I didn't know much about it." That's the way I said it. He says, "Well, do you belong to it?" I says, "Yes, one hundred percent," the words I said. Well, he said to me, "I ought to fire you." Trial Examiner Shaw : He said what? The Witness : He said to me, "I ought to fire you, but I am going to lay you off." That's the words he told me, when this happened-this was on June 13th when he fired me, or laid me off. Mr. Cohn : Are you going to say anything else? A. No. Trial Examiner Shaw: Is that all, Mr. Penny? The Witness: That's all. Trial Examiner Shaw : That's the conversation that he had the day you were fired? The Witness : Between me and Mr. Schultz. Q. (By Mr. Cohn) How long were you in the office, approximately? DRUMMOND IMPLEMENT COMPANY 619 A. Well, I judge about a half an hour. He was busy answering telephone calls, they would call in, you know, and he would answer the 'phone, they would ask for him. Q. Did you leave after that? A. I did, I went downstairs, gathered up my tools and went down to the Unemployment Office. Schultz' version of Penny's discharge was in substance that he had put up with his derelictions as long as he could "stand it" or "tolerate" it ; that he had warned him repeatedly to no avail ; and that he was at the "end of the string" and had to let him go. He denied emphatically that he queried Penny about the Union at the time he discharged him. Mrs. Margaret Drummond's version of the events leading up to and what occurred on the morning of Penny's discharge was as follows : She testified that Penny did not tell her on Friday, June 8, that he wanted off on Tuesday, June 12, 1951. She was positive in her testimony in this regard. She further testified that Penny did not come into the office on Saturday morning, June 9, and get his pay, but that on the contrary he received his pay for that week at the time of his discharge on Wednesday, June 13, 1951. After careful consideration of all the evidence in the record, both oral and documentary, the undersigned is convinced and he so finds that Schultz' testi- mony as regards what transpired on the morning of Penny's discharge was a more accurate account of what actually transpired at that time than that of Penny. There are several factors that have compelled the undersigned to arrive at this finding. In the first place, Penny on direct examination first testified that he did not go to the shop or office on Saturday. Later on he testified that he did go to the shop and get his week's pay. On the other hand, Margaret Drum- mond testified that Penny did not come to the office on Saturday for his pay, and that he did not receive it until the date of his discharge, at which time he received both his pay for the week ending June 9, 1951, and his vacation pay. While the undersigned has some doubt as to the veracity of Schultz as regards a portion of his testimony, nevertheless he is convinced that his testimony as regards Penny's discharge was a reasonably true account thereof when considered in the light of the whole record. Moreover, his testimony as regards certain instances that occurred on the morning in question is corroborated by Drum- mond, whom the undersigned has found above to be a truthful and forthright witness. Penny, on the other hand, did not so impress him. When the record is considered as a whole, it is clear to the undersigned that he was reluctant to testify concerning certain matters such as his employment record. Moreover, his demeanor while testifying was not impressive in that he was inclined to be a little too "cocky" and "shifty" when queried as regards controversial matters. Another factor that carries some weight with the undersigned as regards Penny's credibility was his account of a conversation he and Nero Shepherd had with Schultz regarding a wage increase . According to Penny this incident oc- curred after he signed his authorization-for-membership card on May 17, 1951. At that time Penny and Shepherd were dissatisfied with their wages. Both were then receiving $45 per week. According to Penny the other employees were receiving $53 per week. When they talked to Schultz, they asked for a raise to $50 per week. Schultz told them in substance that if they were dissatisfied they could "look for another job," and specifically told Penny, "You have been laying off too much, and I am not going to pay you no vacation this year." Penny protested and told Schultz that he thought he was unfair. Schultz again told him that he had been laying off too much. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penny's testimony, in general, was corroborated by that of Nero Shepherd and Margaret Drummond. The latter, however, places the time of the conversation as of March 17, 1951. Her testimony in this regard is credited by the undersigned. The reason that the undersigned considers Penny's testimony as regards the above incident of importance is because it tends to refute other of his testimony that he was never reprimanded or warned by Schultz as regards his conduct. Conclusion From the foregoing and upon the record as a whole , the undersigned is con- vinced and he so finds that the Respondent discharged George Penny on June 13, 1951, for cause, and that his membership in and activities on behalf of the Union were no factors in his discharge. The record is replete with evidence of Penny's derelictions, and absent the advent of the Union, no one would question the Respondent's action in this regard . In the considered opinion of the undersigned, the fact that the Respondent had received a letter from the Union on June 7 and from the Board on June 12, 1951 , were merely coinci- dental with the discharge. There is no question but what cause existed and that it was of Penny's own making. The Respondent had nothing to do with his decision to take "off" at the time he did. The least Penny could have done was to notify the Respondent of his intention to do so. This he did not choose to do. Clearly, there is nothing in the Act that requires an employer to operate in a vacuum during the course of a union's organizational efforts. He may dis- charge an employee at any time for cause or as a matter of fact for no cause at all, the only determent he is faced with during such times is that he shall not discriminatorily discharge an employee because of his membership in or activities on behalf of a labor organization, or because he engaged in protected concerted activities with other employees. Such is the situation we are faced with herein. Under the circumstances as described by Penny himself, cause not only existed but had for quite some time. The undersigned is not unmindful of the fact that the Respondent had condoned Penny's derelictions in the past. But, contrary to the General Counsel's contention, condonation of past conduct is not enough to predicate a finding of a violation of Section 8 (a) (3) of the Act thereon. This the General Counsel must do by a preponderance of the reliable, probative, and substantial evidence when considered in the light of the record as a whole. This the General Counsel has failed to do. Contrary to the General Counsel's contention the record does not show that Penny was a leading instigator or protagonist for the Union. The evidence is to the contrary. As far as the record is concerned, Shepherd, Humble, and Walter Egbert were the originators of the idea. Of the three, Shepherd was the leader; it was he who contacted Local #349 and secured the authorization cards, distributed them amongst the employees for their signatures, and collected from each the $5 initiation fee, all of which he turned over to Local #349 for action. As to Penny's activities, the record is silent except for the fact he signed a card and paid his initiation fee'h In view of the foregoing the undersigned is convinced that this allegation in the complaint should likewise be dismissed, and he so recommends. 12 See Morrison Turning Co., Inc., 77 NLRB 670 ; Cookeville ,Shirt, 79 NLRB 667. DRUMMOND IMPLEMENT COMPANY 621 4. Independent acts of interference with, restraint, and coercion Walter D. Egbert, a long-time employee of the Respondent as a mechanic, testified credibly at the hearing herein that on the morning of June 21, 1951, Schultz came up to where he and Raymond H. Humble were working on a motor and the following conversation ensued : Q. (By Mr. Cohn) Now, Mr. Egbert, did Mr. Schultz ever say anything to you about the Union? A. One time. Q. When was that, do you remember? A. That there was on the 21st of June, about ten o'clock. Q. In the morning? A. In the morning. He came up to Mr. Humble and I, and I was work- ing on a motor, and Mr. Humble was assisting me there, and he says, "You two fellows just as well hunt you another job." He says, "I was talk- ing to Mr. Drummond last night about this union business," and he says, "He said before he would have a union come in to the shop he would shut the doors." And so I says, "Well," I says, "I am not hunting another job. And at the same time I will stay until he closes the doors or fires me." Q. You told Mr. Schultz that? A. I told Mr. Schultz that. And Raymond Humble was there with me, and Raymond said something similar to what I said, and I just walked off, kind of disgusted. Q. Do you know what he said? A. Well, it was with his phrasing, it would be similar to what I said, that's all. I couldn't tell you word for word. And they argued a little bit, and I just stepped away, and I don't hear any too well anyway, you see. Raymond H. Humble corroborated Egbert's testimony as regards the above inci- dent. In his version he added that Schultz told him and Egbert that in a con- versation with Drummond he had shown him the letter from the Union and it was at that time that Drummond made the above remarks to him (Schultz). Schultz, on direct examination, in effect denied making the above remarks to Egbert and Humble. However, on cross-examination when queried by the General Counsel concerning the remarks attributed to him by Egbert and Humble, he at first denied making them but later on when confronted with an affidavit he had previously given the Board's field examiner which was to the contrary, he admitted making the statement. He then volunteered testimony to the effect that when he made the remarks it was at a different time than recited by Humble and Egbert, and that everybody in the shop heard the conversation. In view of the testimony of Egbert and Humble, and Schultz' admissions on cross-examina- tion as to the authenticity of the statements he had made to the field examiner in his affidavit, the undersigned is convinced that this portion of his affidavit should be set forth hereinbelow : When I discharged Penny I didn't ask him if he belonged to the union. I didn't ask him if he knew anything about the union at all. I just fired him for laying off. He'd come in to work with hangovers, but when he'd come in drinking I'd send him right home. After I found out that there was a union , I think that it was sometime during the week of June 18, 1951 that I went to all the men in the shop. I think all the men were there, there might have been one out on a delivery. I told them that we might all be out of a job if Mr. Drummond chose not to operate this store. Mr. Drummond had talked about selling one of his stores. He said that long before the union affair. 622 DECISIONS OF NATIONAL Ltii3OR RELATIONS BOARD I meant that Drummond might close up the store if there was labor trouble. I was looking at this affair from my own standpoint and I'd be out of a job just like the others. The only one who said anything to me was Raymond Humble, who said Drummond promised a lot he didn't keep. I walked away from him. I don't recall making any remark about it being a dirty trick to bring in a union in this place. As indicated above, the undersigned credits the testimony of Egbert and Humble as regards the above incident . Both impressed the undersigned as honest and forthright witnesses. As far as the undersigned can glean from the record, the above-described acts of Schultz constitute the only credible testimony in the record as regards in- dependent violations of Section 8 (a) (1) of the Act. The Respondent in his brief urges that since the record is barren of any other coercive remarks, they should be considered as being merely expressions of opinion by Schultz and hence within the purview of Section 8 (c) of the Act, and permissive as a proper exercise of the right of "free speech." He also urged that they are "if true" merely isolated statements , and consequently should be ignored. The undersigned does not agree . Here we are dealing with a small group, in fact at the time the remarks were made on June 21 , 1951, only five employees were working in the shop . Moreover , the remarks were made by Schultz, the manager, to whom each must look as regards his tenure of employ- ment. Schultz, figuratively speaking, held their jobs in the palm of his hand. By his own testimony he could hire and fire at will . Hence such statements com- ing from him under the circumstances described above are a far cry from being isolated remarks. They constituted an immediate and present threat or danger, to wit : loss of their jobs if they exercised the rights guaranteed them by Section 7 of the Act. Nor are they mere expressions of opinion when viewed in the light of all the circumstances . As far as the employees were concerned they may have been uttered through the mouth of Schultz, but it was the voice of the Re- spondent, Floyd Drummond, who was speaking. The Board and the courts in a long line of cases have consistently held that such remarks are clearly coercive, and constitute interference with , restraint, and coercion of employees in the exercise of their statutory rights." By the conduct described above, the undersigned finds that the Respondent vio- lated Section 8 (a) (1) of the Act. 5. The appropriate unit and the majority a. The appropriate unit The complaint alleges that "all employees of the Respondent 's Portsmouth, Ohio, branch, excluding office and clerical employees , salesmen, professional em- ployees, guards , and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act." The Respondent in his answer denies the General Counsel's allegation in this regard. At the hearing herein the Respondent made no serious objections to the Gen- eral Counsel's theory as regards the unit, but instead chose to vigorously contest the Board 's jurisdiction in general over the Respondent's operations. His theory being that if the Board does not have jurisdiction , then of course such "J. S. Abercrombie Co., 55 NLRB 520. DRUMMOND IMPLEMENT COMPANY 623 issues as the appropriate unit, refusal to bargain, etc., are moot and hence mean- ingless. Since the undersigned has found hereinabove that the Board does have jurisdiction over the Respondent's operations, it is incumbent upon him to resolve the issue as regards not only the appropriate unit but all issues raised by the pleadings. As indicated above, the Respondent's operations at his Portsmouth, Ohio, store are roughly speaking divided into 3 departments: (1) The office, (2) parts, which consists of 2 sections, farm hardware and parts for farm equipment, and (3) the shop, where farm machinery is assembled and repaired. The shop is physically separated from the office and parts departments. Though the employees in the parts departments do on occasion work in the shop, there is no evidence that the regular employees in the shop either oc- casionally or otherwise work in the parts department. The employees in the shop department are classified as mechanics and "handymen" and do the sort of work that generally speaking is considered as "shop" work. They have a common interest in their work, and constitute what the Board has found on numerous occasions a homogeneous group. Having found as above, the undersigned is convinced and finds that the appro- priate unit for the purposes of collective bargaining is the same as the General Counsel alleges in his complaint and which has been set forth above. Excluded from the unit is employee William Call, who the undersigned finds was, as contended by the Respondent at the hearing herein, a "parts" employee at all times material herein. b. The Union's majority The record shows that as of June 6, 1951, there were 7 employees in the ap- propriate unit, and that the Union represented 5. Hence on that date the Union had a clear majority. The undersigned has found above that the services of Sparks and Penny were dispensed with by the Respondent for just cause on June 7 and 13, 1951, re- spectively. Hence as of June 14, 1951, the Respondent had the following em- ployees in the shop : Walter D. Egbert, Raymond H. Humble, George E. Schultz, Nero Shepherd, and George E. Eichenlaub, a total of 5 employees. Of these 5, the Union represented the following : Walter D. Egbert, Nero Shepherd, and Raymond H. Humble, a total of 3. Hence, as of June 14, 1951, the Union still represented a majority in the same proportion as it did on June 6, 1951. Accordingly, the undersigned finds that at all times material herein, the Union has represented and does now represent a majority of the employees in the above-found appropriate unit. The undersigned is not unmindful of the fact that at the time of the hearing herein, Nero Shepherd was on a leave of absence. Since Shepherd's testimony as regards his employment status stands uncontra- dicted and undenied in the record, the undersigned finds that for the purpose of resolving the issues herein he is and will be considered as an employee of the Respondent at all times material herein. The facts leading up to the alleged refusal to bargain by the Respondent have been set forth above. Though the complaint alleges that the Respondent has re- fused to bargain with the Union since June 7, 1951, the undersigned, for reasons set forth below, does not so find. In the first place the Respondent received the Union's letter requesting recog- nition on June 7; 5 days later on June 12, 1951, the Respondent received a letter from the Board to which was attached a copy of the Union's petition for certi- fication of representative. In this same letter, the Board requested the Respond- ent to furnish certain information. This the Respondent did on June 14, 1951. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, within 1 week the Respondent received the above letters from the Union and the Board and complied with the latter's request. Drummond, the Respond- ent, did not visit the Portsmouth store until on or about June 14, 1951, and thus had no knowledge of the Union' s request for recognition until Schultz gave him the above letters. According to the undenied and uncontradicted evidence in the record, Drummond then instructed Schultz to comply with the Board's re- quest, which he did in the mode and manner described above. Respondent did not then or at any time material herein answer the Union's letter. In explana- tion of his failure to do so the Respondent contends in substance that since the Board's letter was received by him almost simultaneously he felt that his first duty was to comply with the Board's request, and that thereafter the question was in its hands. His reasoning in this regard is strengthened by the Board' s letter itself, particularly because therein he was advised that a field examiner had been assigned to investigate the case. In the meantime no authorized agent of the Union either called upon him personally or at his Portsmouth store, thus leading him to believe that it was unnecessary for him to answer the Union's letter. The Respondent further contends that he was then and still is ready to cooperate with the Board in settling the issue of representation by means of a Board- ordered and conducted election.20 In the considered opinion of the undersigned, the conduct of the Respondent as described above was both reasonable and logical when one takes into con- sideration the fact that this was the first time he had ever been involved with a labor organization , and his failure, under all the circumstances found herein, to answer the Union's letter of June 6, 1951, excusable, and not violative of the Act. The gravamen of the Respondent's position, however, is the fact that Schultz' conduct on June 21, 1951, was violative of the Act, and hence the atmos- phere changed, and the old adage, "circumstances alter cases" becomes appli- cable. Consequently the undersigned finds that it was from this date the Re- spondent refused to bargain with the Union. As found above, Schultz' remarks to the employees on June 21, 1951, were clearly violative of the Act. Surely, they disrupted the orderly processes of the Board for the determination of the question concerning representation. There- after, the Union was justified in filing charges of unfair labor practices against the Respondent and withdrawing its petition for certification of representative. That the conduct of Schultz was violative of the Act is so well settled that the undersigned is of the opinion that it would unnecessarily burden this report to cite excerpts from the numerous decisions of the Board and the courts that have considered this issue. Suffice it to say, however, that the gist of their holdings is to the effect that such statements create a coercive atmosphere and make a free choice of bargaining representatives impossible.' In view of the above findings and upon the record as a whole, the undersigned finds that the Respondent herein, on June 21, 1951, and at all times thereafter, has refused to bargain collectively with the Union and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act, in violation of Section 8 (a) (5) and (1) thereof. Though it has been found above that Nero Shepherd was an employee of the Respondent at all times material herein, particularly as of June 21, 1951, the date found that the Respondent first refused to bargain with the Union, the undersigned is convinced that even though he had found that Shepherd had voluntarily quit his job in July 1951, he still would have made the same finding 20 See supra, the section of this report styled "Statement of the Case." m See Everett Van Kleeck Company, Inc., 88 NLRB 785; N. L. R. B. v. Joy Silk Mills, 185 F. 2d 732 , cert. denied 341 U. S 914. DRUMMOND IMPLEMENT COMPANY 625 as regards the Respondent's refusal to bargain in view of the Board's recent Decision and Order in International Broadcasting Corporation (KWKH), 99 NLRB 130. In that case under a similar set of facts, except as to the issue therein as regards the appropriateness of the unit and certain 8 (a) (3) findings, the Board found as follows : It was the duty of the Respondent to refrain from disturbing the status quo by coercive conduct pending the resolution of the representation question, and to permit the Union to have a free opportunity to increase and retain its membership by legitimate organizational activity and to participate in a free and uncoerced election, which would determine whether or not it was the statutory representative of the announcers. This the Respondent failed to do. By its coercive conduct found herein and detailed in the Intermediate Report, Respondent nullified the organizational efforts of the Union during the preelection period, thereby preventing the holding of a free election and depriving the Union of any prospect of success in the balloting. Moreover, within a few months after the petition had been withdrawn, Respondent discriminatorily discharged the only remaining union announcers, Marshall and Crawford, thereby forestalling any possible resurgence of union ac- tivity among the announcers. As a result of this unlawful conduct, the Union, which on March 23 rep- resented a majority of the employees in the unit which the Board subse- quently found appropriate, found itself in November without a single ad- herent among the announcers, and without any immediate prospect of achiev- ing certification as the representative of the announcers. In a strikingly similar case the Court of Appeals for the Fifth Circuit, found, as does the majority of the Board here, that the respondent's refusal to bargain was not unlawful. It nevertheless held in effect, that, as the union's subsequent loss of majority was attributable to the respondent's unlawful preelection campaign of threats of reprisal and promises of bene- fit, a provision requiring the respondent to bargain with the union, upon request, was directed to the situation calling for redress and was therefore an appropriate remedy to eradicate the effects of respondent's unfair labor practices and to effectuate the policies of the Act. The result reached in the Holmes case is consistent with the principle enunciated by the Supreme 'Court in the Franks Bros. case, that an employer should not be permitted to profit by his own wrong, when he pleads, as a bar to a bargaining order, a loss of the union's majority which resulted from his own illegal acts. In the instant case, as in the Holmes case, the Respondent's unlawful preelection campaign precluded any possibility of the Union's achieving certification through the exercise by the employees of a free and untrammeled ,choice. We find therefore that an order requiring the Respondent to bar- gain with the Union, upon request, as the representative of the announcers is necessary to effectuate the policies of the Act. As in the Holmes case, such an order will serve merely to restore the Union to the status of the ex- clusive bargaining representative of the announcers, a status which it occu- pied on March 30, 1950, before the Respondent intensified its unlawful antiunion activity. The Respondent will thereby be prevented from profiting 'by its own wrongful conduct in precluding a free election and certification of the Union. 2. Members Houston and Styles are in full agreement with Members Mur- dock and Peterson in issuing a bargaining order for the reasons already :given. However, in addition and independently of the foregoing basis, Mem- 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bers Houston and Styles would also predicate the bargaining order on Respondent's refusal to recognize, or bargain with, the Union on March 30, 1950. Because the Union at that time represented a majority both in the actual appropriate unit (of announcers), and in the requested unit (of announcers and control operators), they would find that the Union's letter of March 23 constituted a proper request for bargaining. They would find, further, in view of the antiunion campaign conducted by the Respondent coincidentally with the Union's organizational activity, involving as it did unlawful interrogation and threats of reprisal, and culminating in the dis- criminatory discharge of the two remaining members of the Union in the announcer's unit, that the Respondent's refusal to bargain was not in fact motivated by any good faith doubt as to the Union's majority status or the appropriateness of the unit sought, but rather by a rejection of the collec- tive bargaining principle and by a desire to gain time in which to undermine the Union. Members Houston and Styles would find, therefore, that the Respondent violated both Section 8 (a) (5) and (1) by its refusal to accede to the Union's request of March 23 for a bargaining conference. For the reasons set forth hereinabove as to the status of Shepherd, the under- signed agrees with the position taken by Board Members Houston and Styles in the above-cited case. IV. THE EFFECT OF TIIE 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 described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent, since on or about June 24, 1951, has re- fused to bargain collectively with the Union as the majority representative of its employees in an appropriate unit, the undersigned will recommend that the Re- spondent, upon request, bargain collectively with the Union as such statutory representative, and if an understanding is reached, embody it in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record of the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Lodge #349, International Association of Machinists, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Floyd Drummond d/b/a Drummond Implement Company, Portsmouth, Ohio, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. BOSTON HERALD' TRAVELER CORPORATION 627 3. All employees at the Respondent's Portsmouth, Ohio, branch, excluding office and clerical employees, salesmen, professional employees, guards, 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. 4. Lodge #349, International Association of Machinists, AFL, was on June 6, 1951, and at all times since, has been the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By failing to answer the Union's letter of June 6, 1951, requesting recogni- tion and bargaining conferences on and after June 21, 1951, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By disregarding, thus in effect denying, the right of employees to be repre- sented in matter of collective bargaining, and by threatening the employees with loss of their jobs if they persisted in their union and/or concerted activities, the Respondent has interfered with, restrained, and coerced them in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent did not discriminatorily discharge Emery Sparks and George E. Penny. [Recommendations omitted from publication in this volume. ] BOSTON HERALD-TRAVELER CORPORATION and NEWSPAPER GUILD OF BOSTON, LOCAL 32, AMERICAN NEWSPAPER GUILD, C. I. O. Case No. 1-CA-1095. January 27,1953 Decision and Order On August 15, 1952, Trial Examiner W. Gerard Ryan 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 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 3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Styles and Peterson]. 102 NLRB No. 74.