Tri State Manufacturing Co.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially equivalent positions without prejudice to their seniority or other rights and privileges on a seasonal basis. It will be further recommended that each of the employees named above, be made whole by the Respondent for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him. It will be recommended that the loss of earnings for each employee be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289.9 It is also recommended that the Respondent be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, AFL, Local No. 1533, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By executing and enforcing a contract between the Respondent and the above- named Union executed on March 30, 1953, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent employer has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 9 The period for which the employees will be made whole , shall begin in Wandschneider's case on April 27, 1953, and in Alexander 's case on April 28, 1953. The period, in each case, shall end on the date seasonal employees in their classifications were last employed in the season of 1953. ROBERT K. GIBBS, PATRICK J. BUCKLEY & JOSEPH MIS, A PARTNERSHIP D/B/A TRI STATE MANUFACTURING COMPANY ; TRI STATE DIE CAST- ING CORPORATION ; AND TRI STATE PLASTIC MOLDING COMPANY, INC. and UNITED FURNITURE WORKERS OF AMERICA, CIO . Case No. 35-CA-523 (formerly 9-CA-643). July 26,1954 Decision and Order On February 15, 1954, Trial Examiner Louis Plost issued his In- termediate Report in this proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Re- port attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with re- spect thereto . Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support of the exceptions. 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 In- 109 NLRB No. 63. TRI STATE MANUFACTURING COMPANY 411 termediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommeda- tions of the Trial Examiner.' Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents Robert K. Gibbs, Patrick J. Buckley & Joseph Mis, a partnership d/b/a Tri State Manufac- turing Company; Tri State Die Casting Corporation; and Tri State Plastic Molding Company, Inc., all of Henderson, Kentucky, their agents, officers, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of the Committee or with the formation or administration of any other labor organization of their employees and from contributing support to said Committee or any other labor organization of their employees. (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Furniture Workers of America, CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition 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) Disestablish the Committee, or any successor thereto as the representative of any of their employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at their plants at Henderson, Kentucky, copies of the notice attached hereto marked "Appendix." 2 The said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondents, be posted immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where 1 Although the Board adopts the credibility findings of the Intermediate Report, it is not thereby to be deemed as approving or adopting , in Coto, the various rationales employed by the Trial Examiner to support these dispositions . However, because they are sup- ported by the record as a whole , we leave the ultimate credibility findings undisturbed. 2In the event that this Order is enforced by a decree of the 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." 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region, in writ- ing, within ten (10) days from the date of this Order what steps the Iespondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondents violated Section 8 (a) (1) and (3) of the Act, be, and it hereby is, dismissed. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a decision and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Furniture Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes 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 affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization or contribute financial or other support to it. WE HEREBY disestablish the Committee as the representative of any of our employees for the purposes of dealing with us con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above pnrnoses. All our employees are free to become or remain members of United Furniture Workers of America, CIO, or any labor organization. ROBERT K. GIBBS, PATRICK J. BUCKLEY & JOSEPfT MIS, A PARTNERSHIP D/B/A TRI STATE PLASTIC MANUFACTURING COMPANY; TRI STATE DIR CASTING CORPORATION; AND TRI STATE PLASTIC MOLDING COMPANY, INC., Employer. Dated---------------- By-----------------------------------•--- (Representative) (Title) TRI STATE MANUFACTURING COMPANY 413 This notice must remain posted for 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 an amended charge filed by United Furniture Workers of America, CIO,' herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director of its Ninth Region (Cincinnati, Ohio), issued a complaint dated July 31, 1953, against Robert K. Gibbs, Patrick J. Buckley, and Joseph Mis, a partnership d/b/a Tri State Manufacturing Company; Tri State Die Casting Corpo- ration, and Tri State Plastic Molding Company, Inc. (Henderson, Kentucky), herein called the Respondent; alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 161, herein called the Act. Copies of the complaint and the answer together with a notice of hearing were duly served upon the Respondent and the Union: With respect to the unfair labor practices the complaint in substance alleged: (a) That the Respondent did on or about mid-March 1953 initiate, form, sponsor, and pro- mote the "Grievance Committee" and from on or about mid-March 1953 to date has assisted, dominated, contributed to the support of, and interfered with its administra- tion; (b) that the Respondent discharged certain named individuals and has refused to reinstate them because they engaged in concerted activities for the purposes of collective bargaining,' (c) that the Respondent engaged in certain other conduct violative of the Act; and (d) that all such conduct was violative of the rights guaran- teed in Section 7 of the Act, more particularly Section 8 (a) (1), (2), and (3) thereof. On July 31, the Regional Director for the Ninth Region issued a notice of hearing setting the hearing for November 2, 1953. On September 3, an order rescheduling the hearing for October 26 was issued by the Regional Director and on September 22 notice of hearing setting the case for October 26, 1953, was issued and duly served. On August 12, 1953, the Respondent filed an answer in which it admitted the juris- diction of the Board and denied that it had engaged in any of the alleged unfair labor practices Pursuant to notice, a hearing was held before Louis Plost, the undersigned Trial Examiner, at Henderson, Kentucky, on October 26 to 30 and November 2 to 4, in- clusive, 1953. The General Counsel, the Respondent, and the Union were represented by counsel, who are hereinafter referred to in the names of their principals. The parties parti- cipated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of fact, and conclusions of law with the undersigned. By a stipulation proposed by the General Counsel the record discloses that on February 9, 1953, the Union filed a petition for a representation election in the Ninth Region, docketed as Case No. 9-RC-1848, and that by consent after said petition was filed, an election was held among the Respondent's employees on February 26 to de- termine a bargaining representative. The General Counsel was unwilling to stipulate the results of the election "because the results have never been certified by the Regional Director" however at the direc- tion of the undersigned the results were stated and thereafter stipulated by all the parties. The stipulation being in effect that of those voting, 64 voted for the Union to be their bargaining representative and 156 voted against the Union. The General Counsel then made the following statement: Mr. CAMPODONICO: To make the record further clear, I would like to say that there were Objections to the Election filed and said Objections to the Election are still pending. 'The original charge was filed March 5, 1953, the amended charge April 23, 1953. s At the hearing it was stipulated that the correct name of the partnership is Tri State Plastic Manufacturing Company and further that the three companies named in the com- plaint are integrated and are to be treated as a single operation and designated the "Re- spondent" for the purposes of this proceeding iThe employees alleged to have been discriminatorily discharged are Hugh Sugg, Her- man Williams, James Dills, Willard Ploeg, Louis Cohron, and Edward Oglesby. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' Inasmuch as objections to the conduct of an election must be filed within 5 days of the tally of ballots, which in this case, if the usual procedure was followed, would have been 5 days after February 26, it is therefore apparent that the Regional Di- rector had not yet ruled on the objections in 9-RC-1848 (from March to Novem- ber) nor were the objections as such stated or included in the complaint herein. At the opening of the hearing the Respondent moved to dismiss the complaint as to Willard Ploeg on the ground that his name did not appear in the charge. The motion was denied. At the close of the General Counsel's case-in-chief, renewed at the close of the hearing, the Respondent moved to dismiss the complaint in its entirety and specifically as to all the named discriminatees. The motion was de- nied. At the close of the hearing the undersigned granted an unopposed motion by the General Counsel to conform the pleadings to the proof with respect to minor matters. The parties waived oral argument. Permission was granted to file briefs, findings of fact, and/or conclusions of law with the undersigned. A brief has been received from the Respondent and the General Counsel. Proposed findings of fact and conclusions of law have also been received from the Respondent. These are disposed of by this report, the undersigned adopting the findings and conclusions clearly consistent with this report and rejecting all others. Thereafter on November 24 (received by the undersigned on November 27), the Respondent filed a motion to reopen the record in order to take depositions and to introduce further evidence. The motion was opposed by the General Counsel. The undersigned granted the motion in part. Thereafter in lieu of a deposition the parties on December 31, 1953, submitted a stipulation of fact to the undersigned. On January 6, 1954, the undersigned re- ceived objections to inclusion of the said stipulation in the record, from the General Counsel. The objections were overruled. The stipulation is included as a part of the record herein. In lieu of attaching it to the exhibit file a copy of the docu- ment marked "Exhibit A" is attached to this report, the original being placed in the formal file of this proceeding. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The following is not in dispute: Robert K. Gibbs, Patrick J. Buckley, and Joseph Mis are copartners doing busi- ness under the style and name of Tri State Manufacturing Company,4 are engaged in the manufacture of plastic products and maintain an office and principal place of business at Henderson, Kentucky. Tri State Die Casting Corporation is a corporation duly organized under and existing by virtue of the laws of the State of Kentucky. Tri State Plastic Molding Company, Inc., is a corporation, duly organized under and existing by virtue of the laws of the State of Kentucky, which is engaged in the sale and distribution of the plastic products manufactured by Respondent Tri State Manufacturing Company. Respondent, Tri State Manufacturing, Respondent Tri State Die, and Respondent Tri State Plastic, herein referred to jointly as the Respondent, constitute an inte- grated operation.5 Tri State Manufacturing, during the past 12 months, which period is representa- tive of all times material herein, at its Henderson, Kentucky, plant, manufactured plastic products valued in excess of $2,000,000, all of which was sold to Tri State Plastic. During the same period of time Tri State Manufacturing purchased raw materials and supplies and equipment valued in excess of $750,000, of which amount in excess of $550,000 was purchased from sources located outside the State of Ken- tucky and shipped in interstate commerce to Respondent Tri State Manufacturing at Henderson, Kentucky. Tri State Die during the past 12 months, which period is representative of all times material herein, manufactured and sold dies valued in excess of $500,000. During the same period of time, Respondent Tri State Die purchased raw ma- terials, supplies, and equipment valued in excess of $150,000, of which amount in * See footnote 2, supra. 5 See footnote 2, supra. TRI STATE MANUFACTURING COMPANY 415 excess of $100,000 was purchased from sources located outside the State of Ken- tucky and shipped in interstate commerce to Tri State Plastic at Henderson, Kentucky. Tri State Plastic during the past 12 months, which period is representative of all times material herein, sold plastic products valued in excess of $2,000,000 of which amount in excess of $1,000,000 was sold and shipped from Kentucky in interstate commerce to customers located outside the State of Kentucky. Robert K. Gibbs, a partner in Tri State Manufacturing, is also president of Tri State Die and Tri State Plastic. Besides common supervision and direction, the three companies have common personnel and labor relations policies, centralized hiring, centralized purchasing, interchange of employees, and common offices and plant facilities. All the shares of capital stock of Tri State Plastic and Tri State Die are owned by Tri State Manufacturing. It is conceded by stipulation that the three organizations are an integrated oper- ation, constitute a single employer for the purposes of this proceeding, and are en- gaged in commerce within the meaning of the Act. The undersigned so finds. II. THE ORGANIZATIONS INVOLVED United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, and the "Grievance Committee" or "Com- mittee" are labor organizations within the meaning of Section 2 (5) of the Act, and admit employees of the Respondent to membership. III. TIIE UNFAIR LABOR PRACTICES A. Synopsis Sometime in January 1953 the Union began an organizational drive among the Respondent's employees which culminated in a consent election held on February 26, 1953. The election was lost by the Union, the tally being 64 for the Union and 156 against . Thereafter objections to the conduct of the election were filed by the Union, but these had not yet been ruled on by the Regional Director at the time of the hearing. It is alleged that prior to the election and thereafter the Respondent engaged in certain conduct independently violative of Section 8 (a) (1) of the Act, and discharged employees because of their membership and activities on behalf of the Union and organized and dominated a labor organization among its employees. B. Domination of and interference with the formation and administration of the "Committee" Robert K. Gibbs, who described himself as an owner and manager of all the companies herein jointly named the Respondent, testified that "several days" after the representation election herein mentioned he conceived the idea of forming an employee committee. Gibbs testified, "I thought it up myself" and further: Well, after the election, and I saw there were 64 people who thought they wanted the union in the place, 1 got to thinking about it , and I thought, well, maybe some of these people out there could give me some ideas, help me manage the place. Q. And did you- A. I didn't have any particular thing in mind, but I felt like I could use a little assistance, and it was more or less in an embryo stage in my mind. I had no knowledge of the law or no knowledge of anyone else who ever tried it, or anything of that nature. Since that time I see that many people have tried something similar. I didn't know how to go about it, so the first thing I did, and the only thing I did, was to put a notice by the clock saying, "Elect a delegate in your department and meet with me at 2:00 o'clock Monday after- noon , in the kitchen . That is the only notification that I gave, and that's all that was necessary." Gibbs further testified that the notices were distributed to all departments of the companies and that all the selected representatives attended the first meeting. Apparenly this meeting perfected the organization. Thereafter, according to Gibbs, the organization met "possibly a half dozen times ," Gibbs attending "about two- thirds" of the meetings. The organization had no formal title but was called the "Committee." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gibbs testified he discussed with the Committee various problems relating to working conditions, safety measures, and the problem of salvaging spoiled material; that he suggested that shop rules be put out in booklet form and that he had shop rules printed in galleyproof form and given to each member. As to the Committee's function regarding the rules given them for discussion, Gibbs testified: They weren't given to them for the purpose of ever questioning them, they were given them to see if they were written down correctly. Gibbs also had the Committee circulate a petition regarding a proposed zoning ordinance which would have affected the Respondent. Gibbs admitted he had knowledge of one employee's grievance, growing out of working conditions, which was handled by the Committee. Gibbs testified that he dissolved the Committee for the following reason: Mr. Schwartz of the NLRB was in the office and asked me a question about this committee, group, or whatever you call it. I explained to him what it was, and he said he thought that it was a labor union. We had some discussion about whether it was a labor union or not, and he convinced me that there was a possibility that it was a labor union. I said, "Well, we'll cut it out right now." The Committee has not functioned since the National Labor Relations Board examiner's visit. All the above findings are based on Gibbs' testimony, uncontradicted, in some cases corroborated, and which is credited by the undersigned. Conclusion It is quite clear that the organization Gibbs, and through Gibbs, the Respondent, fathered was a labor organization within the meaning of Section 2 (5) of the Act which defines a labor organization as ". . . any organization . in which em- ployees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." The fact that the Committee did not admit additional members or collect dues is of no moment. Gibbs' testimony that proposals "weren't given to them for the purpose of ever questioning them," should be enough to show the Committee to be wholly dominated in its administration. Its formation was clearly by the Respond- ent. The undersigned is persuaded and finds that by such domination, interference, and support of the administration of the Committee the Respondent has interfered with, restrained, and coerced employees in the exercises of rights guaranteed by Section 7 of the Act. Although the record is clear that the Committee is no longer in existence and it may seem that to order its formal disestablishment is a gesture in the nature of whipping a dead horse, however, as the Board pointed out in American Sheet Metal Works and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, (106 NLRB 154) "orders dealing with unfair labor practices have preventative as well as remedial purposes" and further being mindful of Section 10 (c) of the Act which instructs the Board that once having found that any "person" had engaged in an unfair labor practice the Board shall issue "an order requiring such person to cease and desist from such unfair labor practice," the undersigned will recommend accordingly. C. The discharges alleged to be discriminatory 1. The operation of the Respondent's plant and volume of production In order to fairly judge the discharges alleged to be discriminatory it is necessary to understand and make due allowance for the general operation of the Respond- ent's various "plants," their departments, and shifts and to examine the volume of production during the time material herein. Gibbs testified, without contradiction, that all the Respondent's operations were under his general control; that the various operations were "departmentalized" and that each department, in fact each shift, was "on its own" under a foreman who managed his particular operation with full responsibility to "make a profit"; and that each foreman had sole and absolute right to hire and fire for his shift and that Gibbs in no way interfered with this right or with the operation of the department. Gibbs further testified that no written rules existed but that when " times were slack" TRI STATE MANUFACTURING COMPANY 417 employees were laid off by the foreman in the affected department and were rehired when needed. Gibbs testified "it has always been our practice to more or less lay off on the basis of seniority, if other things are equal," meaning if the employees in question were "an asset to the company," and that foremen were charged to follow this rule of thumb. Various plant foremen e were called to corroborate Gibbs. Their undenied testi- mony discloses they used their own judgment as to discharging, recalling, and hiring employees for their respective departments or shifts. All save one testified that they gave preference to the employees with the longest service record, all other factors considered valuable in an employee being equal, only Foreman Steve Gawlick testi- fied he relied solely on merit. The foremen testifying to the use of seniority sought to create the impression that seniority meant departmental seniority, however their testimony disclosed that transfers from one shift to another, or to a different depart- ment were made at the request of the interested employee when possible, but always with the consent of the foremen of both shifts or departments, and that when such a transfer was arranged, the employee, if a man of considerable service, carried his seniority with him. Ernestine Whelan, the Respondent's secretary, testified that com- putations to establish vacation rights were made on the basis of total service with the Respondent. It would seem that plantwide seniority was also considered a factor 'by the Respondent. Although the Respondent contended that Gibbs did not interfere with employ- ment or discharge, it is admitted that he made a note on the employment record of Edward Oglesby which would have precluded his recall until Gibbs was first consulted; that he discharged Hugh Sugg; that he marked "do not rehire" on the card of Louis Cohron. On the entire record the undersigned is convinced and finds that the Respondent's foremen had no unusual authority in hiring and discharging employees, that there was nothing unusual in the Respondent's methods or system of transfers, that in the absence of any contract or established rule regarding seniority rights, the length of service of an employee was in some degree, not fixed, considered when layoffs and recall to service were made, and that Gibbs exercised authority over employee relationships including tenure of employment. It should be borne in mind that a petition for determination of representatives for collective bargaining was filed by the Union on February 9, 1953, a consent- election agreement entered into on February 17, and an election conducted on February 26. President Gibbs testified that early in February 1953 the Respondent's principal customer notified it by telephone that it would make serious "cutbacks" and can- cellations of orders it now had with the Respondent, and beginning February 5 a series of "cutbacks" of orders from this customer were received. Gibbs' testimony was in no manner contradicted and is substantiated by the Respondent's records introduced in evidence. The "cutbacks" cover a period from February 5 to April 7, 1953. A study of the Respondent's payroll summary covering this period, contained within a summary period of January 3 to October 17, 1953, shows little change in the payroll from February 5 to April 7. Material changes in the die cast depart- ment appear in April and continue downward from April on. The plastic molding department is fairly constant in its payroll until July, after which a sharp drop appears and continues.' Foreman George Whittles testified that employment in his department fell from 24 individuals in February 1953 to "16 or 18" at the time of the hearing, however the record is silent as to when the drop occurred. Foreman Herb Hyatt corroborated the payroll figures by testimony that a cutback in employment took place in the die cast department in April 1953. From the above testimony, entirely uncontradicted and credited, the undersigned concludes that in February 1953, prior to the election, the Respondent became aware of an impending decrease in its business but that thereafter its payroll did not reflect this situation or decrease to any extent until April 1953. The undersigned so finds. The picture of the Respondent's plant and operations may be completed as follows: The parties stipulated that the following named individuals had full supervisory au- thority to bind the Respondent in matters affecting labor, relations: Robert K. Gibbs, 6 Those called and whose composite testimony is herein presented were : Gordon Hudson, George Whittles, Charles Fuller, John Nelson, Merle Gish, Charles Williams, Steve Gawlik, and Herb Hyatt 7 The Respondent's brief argues otherwise, but the undersigned does not find the Respond- ent's argument sustained by the payroll figures. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ernestine Whelan, Charles Williams, Herbert Hyatt, George Whittles, John William Nelson, and Nick Carter. The record further discloses that Joe Mis is a partner in the Respondent, that Gordon Hudson, Charles Fuller, and Merle Gish are supervisors. The General Counsel contends that Parker Sights and Gladys Griffin are supervisors whose acts are binding on the Respondent. The record shows that Parker Sights is a "set up" man, charged with setting up the machines for operation. During the absence of Foreman Herb Hyatt, who does not work during the night shift, Sights is charged with seeing that the assign- ment of work to various machines as made by Foreman Hyatt, and left with Sights in writing, is carried out. In this way Sights is the channel of authority, but he has no independent authority to exercise any of the attributes of management. In coming to this conclusion the undersigned has credited the testimony of Hyatt and Gibbs as well as the testimony of June Rideout, called by the General Counsel. Rideout testified as follows: Q. And who is, as far as you know, in charge of the die cast-I mean, was in charge of the die cast when you were working there? A Parker Sights. Trial Examiner PLOST: What is that name, please? The WITNESS: Parker Sights; Parker Sights was my boss on nights. Q. (By Mr. CAMPODONICO) Now, what time did you work, what were the hours of the night shift? A. We went on at 3:00 and got off at 11:00. Q. Did Parker Sights tell you what to do during that shift? A. Well, when he went in at night, he had a slip of paper-when we went in at night, Parker, he had a slip of paper that Herb Hyatt gave him. Q Wait, I am asking you what job Parker Sights holds with the company, if you know? A. Well, he was the boss over us, but, you know, he couldn't hire or fire, he was just in charge of this after Herb Hyatt left. He had his orders what jobs we had to get out, and then when we run out of work, he told us what to do next, anything else that was left to do. Q. When you say, "us," to whom are you referring? A. To the workers. The undersigned finds that Parker Sights is not a supervisor within the meaning of the Act. The undersigned is convinced and finds that Gladys Griffin was at all times material herein an inspector with no supervisory authority as contemplated by the Act. To- gether with her inspection Griffin was charged with keeping records for her fore- man and acted as his telephone clerk when employees were called back to work after a layoff. Griffin was subjected to a severe cross-examination which approached badgering by the General Counsel, but throughout her testimony impressed the undersigned as an honest and truthful witness. The undersigned credits her testimony as well as that of her foreman, Charles Williams, with respect to Griffin's duties and authority.' 2. The discharges a. Hugh Sugg Hugh Sugg was employed by the Respondent January 16, 1952, and discharged January 26, 1953. At the time of his discharge Sugg was employed on work listed as "Operation 45," which Sugg described as: Well, it was hand-tapping a half inch hole, and I had three drills set up there; I run them three drills and I was tapping flange. Sugg testified that he worked at the operation "most of the time" but also did some "salvage work" and on occasion was called from his regular job to help unload or load a truck Sugg further testified that he joined the Union "the middle of January" and first started attending union meetings "about the 24th of January," that on Saturday, January 24, 1953, he wore a union button to work, being the first employee to do so, 9 The General Counsel sought to prove statements by Sights and Griffin which if found would be violative of Section 8 (a) (1) of the Act. The testimony will not be considered, for if found would not bind the Respondent. TRI STATE MANUFACTURING COMPANY 419, according to Sugg, and that after he began work, his foreman, Herb Hyatt, com- mented on the button during the following conversation Well, the first time he came by, well, he looked at it and grinned and walked off. About fifteen or twenty minutes later, well, he came back and asked me how come me to have a silly idea of wearing this button, who talked me into the notion of wearing this button, and I told him Tri-State Plastic talked me into it. He asked me what did I mean by that, and I told him, "Well, they cut my rates in half." He asked me if I thought the union would get my rates back, and I told him, "I don't know whether they will get it back or not," but it would probably help me. Sugg testified that on the following Monday, January 26, at about 10 o'clock, Hyatt called him to Gibbs' office where Gibbs accused Sugg of falsifying his pro- duction record by entering more pieces than he actually finished. It is not disputed that employees under an "honor system" kept their own pro- duction records. Computation of earnings was made by the office force. According to Sugg, the conversation ended by Gibbs sending him back to work. Sugg testified: Q. Did he discharge you then? A. No, sir, he told Herb to take me back there and put me to work and see if I would do better, and Herb took me back and put me on my job, salvage, and that was the last I seen of Herb until that afternoon. On cross-examination however, Sugg testified that from the time he left Gibbs' office until he was discharged he "did steady work," and further: Trial Examiner PLOST: Pardon me, before this thing gets lost, you say that Mr. Gibbs told you to go back and put in a regular day's work to see what you could do, and you did that? The WITNESS: Yes, sir. Trial Examiner PLOST: Do you know how many panels you made that day? The WITNESS: No, Sir. Later in the afternoon Sugg was told by Hyatt that Gibbs was not satisfied with his work and that he was being laid off. Sugg did not ask if he would be recalled. Foreman Hyatt testified: The first time I ever seen a union badge in our shop, Sugg had it on. I went by there and seen it on him, and I said, "Sugg, what do you have on there this morning?" He said, "I am your union man in here," or Union steward, some- thing like that. I walked it off and let it go at that. According to Hyatt this incident did not take place the Saturday before Sugg was discharged, but "twenty or twenty-five" days earlier in the month.9 The undersigned finds it unnecessary to seek to resolve any possible conflicts in the two accounts of the conversation as it is clear that the Respondent had knowledge of Sugg's union membership almost as soon as he obtained it. From Sugg's testimony, it is clear that the conversation took place after January 12, 1953. Hyatt corroborated Sugg's testimony that he was on "Operation 45" on a piece- work basis and performed other work on day rates, kept his own time and that a certain number of finished pieces were counted as a day's production, referred to as "8 hours." Hyatt testified that whenever the pieces produced exceeded the "8 hours" standard the rate was cut, and if the production fell below the norm, the rate was increased. He further testified that Sugg's production varied and that when Sugg "ran away" with the rate it was cut,10 that after the rate was cut, Sugg "laid down on the job" and had done so for "four or five days" before his discharge and that he had spoken to Sugg about this "on the job." Gibbs testified that on the day of Sugg's discharge, while examining production cards, he (Gibbs) noticed that on January 22 Sugg had processed an average of 50 pieces an hour and that on continuing his examination of the records: I noticed a curious thing which immediately didn't sink into my head, as to what that was all about, but on the 2nd of January in 3 hours, he did 300 0 Sugg testified that in this conversation with Hyatt he told Hyatt that the Respondent had "talked hint" into the Union by cutting his rate. Winthrop L. Brown, the Respondent's production engineer, testified credibly that the rate on "Operation 45" was changed on January 12 , from 54 pieces per hour to 109 pieces per hour. 10 The rate was cut January 12. 334811--35--col 109-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pieces, or an average of 100 pieces per hour. Three days later in 2.2 hours he did 300 pieces, or an average of 137 pieces an hour. Than on the 6th of January in 3 hours he did 300 pieces, which was 100 pieces per hour, or 100 operations per hour. Now, the card that I looked at, it took him 6 hours to do 300, so naturally he did not make a rate, he didn't earn as much money as he should have earned, or, as the other employees were earning. Gibbs then sent for Sugg to discuss the matter with him. After pointing out the record figures Gibbs offered to reset the rate telling Sugg: But, what I would like to know is how we can set a rate if you have such a variation in this here production. How come that one time you do 100 an hour and another time you do 138 an hour, and another time you do 50 an hour? How can we set a rate on that thing? He didn't answer me, and it didn't dawn on me at that time what this various-what this variation was. So I said to him, "I'll tell you what you do, you go back on that job and you work the rest of the day on that job." This was probably around 10 o'clock in the morning. "You work on that job and we'll check your card at the end of the day and then we will then review the rate and we'll see that it is set properly so you can make as much money as the other fellows." At 3 p. in. Gibbs sent for Sugg's production record for the afternoon, and having noted that Sugg's average for the day was 47 pieces per hour he told Hyatt: "Go back and fire that son-of-a-gun and let him take his check with him." Hyatt corroborated Gibbs as to the conversation in the office and Gibbs' later orders. Sugg testified he kept his own work record, did not deny the figures relating to his work, and sought to explain the discrepancies by testimony that at times he was called to do other work which he did not record on his card but which in reality changed the time he actually was on "Operation 45." 11 Sugg further testified that 300 pieces was rated as a day's production or "8 hours." He testified: A. Oh, about, sometimes if I worked hard, I could get them out in three hours, 300 panels. Q. That means you turned out panel work for the day in about three hours? A. Yes sir, I could get down and work hard, I mean, work myself to death. The record of "Operation 45" was introduced, it shows considerable variation in Sugg's production with a high peak of 136 per hour on January 5, 1953, 100 on January 2, and 100 on January 6. With these 3 days eliminated Sugg's production from August 9 to November 25, 1952 (which is the last day shown before the 100 piece production on January 2, 1953) averages 77.1 pieces per hour. The average of the job since Sugg's discharge, from January 27 to November 5, 1953, is 66.4 pieces per hour.12 The complaint alleges that Sugg was discriminatorily discharged; the General Counsel contends that he was discharged because "he was the first employee to wear a union button." The Respondent contends that the discharge was for cause, namely dishonesty. Concluding Findings There can be no doubt on this record that Sugg manipulated his work report and that absent any taint of discrimination within the meaning of the Act Respondent had ample legal cause for this discharge. Although Gibbs' check of Sugg's work record and the Respondent's knowledge of Sugg's union membership coincide the undersigned is not persuaded by this that he may infer that the check, which disclosed the fact that there had been manipulation of the record, was occasioned by the union membership, as contended by the Gen- eral Counsel, or that the union membership caused the discharge. 11 The average of job since Sugg's discharge, is 66.4 pieces per hour. 12 The General Counsel argues in his brief : On looking at Respondent's exhibit 18, it is to be noted that both Bill Mattingly and Audie Parker have as much fluctuation as Hugh Sugg. It is true that they never averaged 136 pieces per hour, but on the other hand Sugg never sank as low as 33 pieces per hour The undersigned completely misses the point. TRI STATE MANUFACTURING COMPANY 421 The undersigned is also mindful that Sugg attended his first union meeting at or about the time he was discharged, namely January 26, 1953, the consent election agreement was entered into February 17, the election February 26, yet during this entire month the Union, active among the employees, did not file a charge of unfair labor practice in behalf of Sugg; although it surely knew of the matter it went to the election, it lost the election and it filed no charge until March 5. On the entire record considered as a whole the undersigned is convinced that the General Counsel has not sustained his burden of proof that the Respondent dis- charged Sugg because of his union membership or activity but is convinced and finds that the Respondent discharged Hugh Sugg on January 26, 1953, for cause and will therefore recommend that the complaint be dismissed insofar as it alleged that Sugg was illegally discharged. b. Herman Williams Herman Williams, first employed by the Respondent August 1952, worked as a press operator in the plastic department's first shift and acted as the regular relief operator for all other press operators when absent on lunch hours. Williams testi- fied that he joined the Union "the 2nd week in January"; attended all the Union's meetings save one; wore two union buttons while at work and acted as the Union's observer during the election. Williams further testified that "between 9:30 and 10:00" a. m. the day following the election he went into the plant lunchroom and there observed Ernestine Whelan, the Respondent's secretary, engaged in conversation with another person. Williams testified: I walked in and I seen Miss Whelan and some other lady sitting there talking, and I heard Miss Whelan say, "Well, I seen two scared boys yesterday doing the balloting," and I just spoke up and said, "Well, I wasn't scared, I might have been nervous, but I wasn't scared." She turned around and looked and seen it was me standing there. Q. Prior to this, do you know whether Ernestine Whelan saw you or not? A. No, she couldn't, her back was towards the door. According to Williams the following occurred: A. She got up and said a few words and she says, "You people," or something like that, "as good as Bob Gibbs has been to you, you all ought to love him." I says, "Hell, I can't love him, he don't wear a dress." He further testified that when he left the room Whelan pointed her finger at him and said "64 of you damn fools is going to get it." 13 Whelan testified • I don't remember saying, "I seen two scared boys," no. As a matter of fact, I was talking when he came into the kitchen, my back was turned to the door, and we were discussing the election, laughing about it. I said, "I sure saw two nervous boys yesterday." About that time Herman Williams walked in, I turned around and says, "Weren't you scared?" He says, "I was scared, but I think you were, too." I said, "No, I don't think I was too scared, maybe I was nervous-" well, he went on talking about the election and I don't remember the words verbatim, but we were talking along about it and he said that I said that-in his testimony he said I said, I may have said that "as good as Mr. Gibbs had been around there, they should love him." He said he couldn't, because he didn't wear a dress. Well, the conversation there was, he said he had to give Mr. Gibbs credit for one thing, he had a good propaganda machine. I said, "No, he is just a better man than his opponents." We had some more conversation along that line and I looked at him and I repeated, "He is a better man than his op- ponent," I says, "That is food for thought for 64 people around here this morn- ing." Then I left the kitchen. She further testified: Q. Did you or not point your finger at him and say to him, "64 of you damn fools are going to get it this morning"? A. I never made a statement like that to Mr. Williams at all. Furthermore, I have never used that kind of language in conversations with Mr. Williams or any other employee in the plant or any place. 13 Sixty-four votes were cast for the Union. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the entire record as well as his observation of the two witnesses while testi- fying the undersigned is persuaded that Whelan's version of the incident is the more accurate and therefore credits her testimony with respect thereto. Foreman George Whittles testified that he posted a seniority list of all the em- ployees on his shift; that Williams was the last man hired and was so shown on the posted list; and that some time earlier he had arranged with another department to take in one of his female employees, who had 7 years' seniority, in order to keep from laying off other operators of less seniority, but that this operator was returned to him and as he had no work for both her and Williams he was compelled to lay off Williams in order to take in the older employee and that he so informed Wil- liams. Whittles testified: And according to this list that I made up Herman Williams was the last one to be hired ; so I notified Herman that evening that starting Monday Josephine was coming up from the paint room , and that with her seniority I had no alter- native but to lay him off. Whittles further testified that Williams asked if the cause of his layoff was his union activity and that "I told him definitely not" and also told Williams that "it would probably be quite a while before he was recalled." According to Whittles he did not discharge Williams, but merely laid off Wil- liams who would be recalled as soon as there was work available. Whittles ad- mitted that since Williams' discharge he has recalled other press operators, but testified, without contradiction, that such operators had greater seniority on the shift. He also testified that two men who were hired for another plant in another town were trained on his shift during this period, working together with the regu- lar operators. Admitted also that he hired certain low-paid employees but testi- fied no press operators had been hired. A setup man was hired, but according to Whittles' undenied testimony Williams was not qualified for this job. It is not denied that Williams at no time applied to any other shift or department of the Respondent for employment, nor is it denied that other shifts did employ press operators after Williams' termination Williams testified he asked Whittles for reemployment only once after his layoff and that this was 3 months thereafter. He was told no work was available. As between Williams and Whittles as witnesses the undersigned was more favor- ably impressed by the latter and is inclined to accept Whittles' version of the con- versation between the two men as the more accurate. Whittles testified that "all but one" of the men on his shift wore union buttons While it is true that Williams acted as a union observer at the election , this would hardly have marked him as a target for discrimination in a department apparently solidly Union. Whittles told a Board field examiner that he wanted Williams back in the depart- ment as his work was satisfactory and at the same time he gave his posted seniority list to the examiner. Considering the credited testimony to the effect that the Respondent was faced with a cutback in orders, Whittles' explanation as to why he could not make room in his department for a single more employee has the ring of truth, and further considering the fact that Williams at no time after his layoff sought employment in any other of the shifts in the face of the credited testimony that interchange and transfer was not automatic among shifts or departments, as well as Williams' tes- timony that he did not ask for reinstatement until 3 months after his layoff , all cre- ate a situation not entirely free from doubt and which would in the opinion of the undersigned force a finding upon inference alone, as any evidence of discriminatory action against Williams in the final analysis must be drawn from his acting as an observer for the Union at the election; therefore on all the evidence the undersigned finds that Williams was not discharged (or discriminatorily laid off or denied rein- statement ) as alleged and will recommend that the complaint be dismissed insofar as it alleges discrimination against Herman Williams by the Respondent. c. James Dills James Dills testified that he had been employed by the Respondent for about 3 years and had worked at various jobs in both the die-cast and plastic departments. His last job was as press operator in the die-cast department under Foreman George Whittles. Dills further testified he joined the Union "about the first of February 1953," attended union meetings and that there was no employee organizing committee. He testified: The only kind of a committee that I was a member for was to go in and check the payroll. TRI STATE MANUFACTURING COMPANY 423 Q. And then on election day you were an observer9 A. An observer, that's right. Dills testified the payroll check was made about a week before the election and that the Union was represented by himself, Gordon Hudson, then a press operator but now a foreman, "two fellows out of die cast," and the union organizer, Joe Hood, and that the Respondent was represented by Gibbs, Whelan, "and some other fellow came in while we were there." Dills further testified that during the first part of January he had the following conversation with Foreman Whittles: I was running press number one and he came back and told me he was to cut the rates on the press, and I told George that I had never been a union man and never was, but I told him when he cut the rates on my machine, that time, that he made a hundred per cent union man out of me. He said, "Well, the union is all right, Red, but you have to get the right man in behind them, but I don't think you have got that right man." I said, "Well, whenever you cut my rates, well, I'm a union man." Dills testified he joined the Union in February and thereafter wore a union button at work. According to Dills on February 22, which fell on Sunday, he was driving a cab for another man and received a call for the Respondent's plant, as he drove up he observed Gibbs and Robert Bellew, then an employee of the Respondent, standing in front of the plant with a rifle, that Gibbs "worked the rifle and everything," that Gibbs then went into the plant and Bellew got into the cab. Bellew testified that on Sunday, February 22, he asked Gibbs to loan him his .22 calibre automatic rifle; that the gun was jammed and they stood in front of the plant attempting to "unjam" it, when Dills drove up in a cab called by Bellew; that Gibbs then made the following comment: And Mr. Gibbs, he was saying in jokingly manner-you want the exact words? Q. As nearly as you can recall the exact words Mr. Gibbs said. A. The exact words? Q. Yes, sir. A. "I ought to shoot the son-of-a-bitch." Q. Do you recall anything else that was said? A. No. Q. Did he make any reference as to why he should shoot Mr. Dills? A. No. As I said, I think it was a jokingly manner, he meant nothing by it; and that Gibbs gave him the gun and he got into the cab. Dills testified that he did not hear the conversation between Gibbs and Bellew but that on the next day as he was getting ready to leave from work the following ensued: Well, I was putting on my shirt and everything, and Mr. Gibbs came through and he walked up and he said, "It is a damn good thing that rifle wasn't loaded yesterday, I'd have shot your tires off your cab." I looked around at him and I said, "Now, you wouldn't have done that." He said, "The hell I wouldn't, there isn't any living son-of-a-bitch going to tell me how to run my factory." I said, "I don't blame you, sir," and I went back in-he went back inside of his office, and I put my shirt on, and came on out. Gibbs testified that he had no conversation at all with Dills on Monday, but that on Sunday; But, while I was standing there with Bellew, Dills came up in a cab and he had his smiling red face sticking out of the window, and I smiled at him, and I said in a laughing, in a joking way, "Red, when you turn that corner, I'm going to shoot all the tires off your cab." That was the incident, nothing was men- tioned on Monday about it, or anything else. According to Gibbs he did not give the rifle to Bellew until "two or three days later as it needed repair." 14 14 The General Counsel in his brief argues that although he "also feels the remark . . . was no doubt said as a joke, as Mr. Gibbs didn't impress him as a killer, or as a man who would resort to violence. But the remark, if credited, will reveal the workings of Mr. Gibbs' mind and indicates that he was against the organizing union and its adherents." 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions as to the Rifle Incident The versions of Gibbs and Dills with respect to Gibbs' statement involving the rifle agree substantially as to the remark regarding shooting the tires off the cab, Dills was driving, but according to Gibbs this was the entire statement and was made on Sunday when Dills drove up, while according to Dills it was made the following day and preceded a wholly unrelated statement that "there isn't any / living son-of-a-bitch going to tell me how to run my factory," to which, according to Dills, he meekly answered, "I don't blame you, sir." If Gibbs really added the second remark, then it could only mean that the ancestral descriptive was directly aimed at Dills. The undersigned recalls that west of the Mississippi the use of this appellative, even as a term of endearment, needs must always be accompanied by a smile. The undersigned has no information, hearsay or otherwise, as to reaction to the descriptive words when used south of the Ohio, but he cannot believe that any red-headed Kentuckian who was so described, directly or indirectly would merely reply "I don't blame you sir." Moreover a facetious remark to the effect that he intended to "shoot all the tires off your car" is logical banter coming from a man holding a gun, the coupling of unrelated ideas with such a remark to show hatred and antiunion animus is not. As to Bellew's version; the undersigned does not credit it in any way, the basis for the undersigned's opinion of Bellew's veracity will appear at a later point herein when Bellew's testimony is discussed. On the entire record, all the circumstances herein, and his observation of the witnesses, the undersigned credits the testimony of Gibbs with respect to the rifle incident and finds that on Sunday, February 22, he remarked that he would "shoot all the tires off your car" and further finds that the remark did not constitute a violation of Section 7 of the Act as contended by the General Counsel. Dills further testified that during the day before the election, Gibbs came to where he was helping two other employees remove a mold from a machine and handed him a document with instructions to carry it to each employee, tell them to read it, and act as relief while it was read. Dills followed the instructions and then reported to Gibbs who thanked him and remarked "you're a good boy." Gibbs admitted he had Dills carry the paper. The document referred to the impending election, and was a wholly protected statement, reading in part: So don't let anyone get you excited. Nobody is going to get fired. No body is going to get laid off. No body is going to lose any time over this election The General Counsel in his brief advances the following argument: It was testified to by James Dills and admitted by Mr. Gibbs that on the day before the election James Dills was forced to pass around an antiunion letter- (General Counsel's Exhibit No. 2.) It is not contended by the General Counsel that the letter is not protected by 8 (c), but it is contended that it is a violation to force an employee to engage in conduct that supports an employer in his campaign against the union, or to support him in the airing of his views on the issues involved. The undersigned does not agree that the word force as used by the General Counsel in any manner describes the real occurrence referred to. The undersigned cannot see how Dills was forced to distribute antiunion literature. At most it was extremely bad taste on Gibbs' part to ask an employee to do what he or any supervisor had a legal right to do, but bad taste is not an unfair labor practice. The undersigned finds that the Respondent's assigning Dills to distribute a wholly protected letter was not a violation of Section 7 of the Act. Dills further testified that "somewhere between 9 and 10 a. m., February 28, 1953 he heard that "George [Whittles] had just fired Leroy Stone." Thereafter when Whittles "came through," according to Dills: He came through, and I was standing there, and I asked him, I said, "Well, George, how much longer have I got to stay here?" He said, "Well, Red, I'll give you a couple days." He said, "You can come in and punch your card," and he said, "I'll pay you for the time that you are here," and everything, and he said, "You can go out and look for you another job," and I asked him , I said, "George, are you sure that's all the time that I have got left here in the plant?" He said, "I don't want you to go hungry or anything," he said, "I'll give you a couple days to find you a job." I said, "Well, George, if two days is all I have got left, I had better-I would like to know. When I walk out the door, I've got another job, it don't pay me, what I make here." But, I said, "if that's all TRI STATE MANUFACTURING COMPANY 425 the time I got left here, I'd like to go now." He said, "All right, Red." So I asked him then what he would fire me for, and he said, "Well, let's just call it cutting down on production." Dills testified that Whittles then told him he considered Dills to be "one of the best press operators" but that he had "orders to let you go" and stated "I'm caught in the middle just like you are." Whittles then brought Dill's check, shook hands and said he would be glad to give Dills a recommendation at any time. Dills testified that in "April or May" he asked Whittles for his job back and was told that "he didn't have a thing open." Foreman Whittles testified: Q. Tell the Examiner what occurred with respect to the termination of James Dills. A. He called me over to his press that he was operating on this particular day, oh, I would say it was about ten o'clock in the morning, nine, somewhere in there; and he said, "How long before I will be laid off9" And I said, `If work keeps falling off the way it is, it will probably be about a month." And he got all red in the face, and he slammed the gate open and he said, "Well, I am leaving now." And I closed the gate up, and he did keep on working. I told him that there was no sense in doing like that. And he asked me if it was connected with the Union, and I said no, that there was no connection with the Union. And I don't remember all that was said, but I was there I would say fifteen or twenty minutes trying to persuade him to stay there and run the machine, and I saw no reason for him to leave. So finally he agreed that he would stay. And then, along about eleven o'clock, or a little after, someone sent word that George Gardner wanted to see me, so I found George running Mr. Dill's press; and he told me that Red had told him that he was going to his check and go home, that he was through. So I went and talked to Red a little longer-Mr. Dill-and I saw that he was upset, there was no sense in talk- ing to him any longer on the subject, so I got him his check and I thought I would give him a vacation check in the hope that after about a week he would cool down and come back and go back to work in the normal course of events; but no such thing occurred. He came back, I would say, about two or three months later, after we had settled down, but I had no opening then without laying somebody off. Q. Did you lay Dills off on that day? A. I didn't lay him off. Q. What did he do? A. He definitely quit. George Gardner testified that "just before he [Dills] left the plant" on the day of his termination Dills told Gardner that "George gave him thirty days before he would be laid off and Red said he wasn't going to wait thirty days . . . he said he was leaving now, was going to quit and get his check." Gardner also testified that Whittles "gave him a thirty day notice" on the same day but that he was not there- after laid off. Gordon Hudson testified he checked the payroll for the Union, together with Dills; that Dills told him that he "was quitting." Hudson was not laid off after the notice, he was later promoted to foreman in a new plant opened by the Respondent. Neither Gardner nor Hudson were in any way contradicted. The undersigned credits their testimony. Dills denied that Whittles set the time for layoff at 30 days and testified it was set at 2 days, the foreman telling him that he could make use of the 2 days in finding another job while still on the Respondent's payroll.is Bellew testified to a conversation with Whittles after Dills' termination as follows: Q. (By Mr. BROOKS) Have you exhausted your recollection about that par- ticular conversation? A. Yes. Q. Then do you recall whether Mr. Whittles told you anything with respect to why Mr. Dills was no longer working for the company? A. Yes. George, at the time being, said Red was at the voting and he was a- whatever he was considered-a committee man. "In his brief to the undersigned the General Counsel in discussing Dills' testimony argues that the foreman stated to Dills : that James Dills could punch in for a couple of days to look for work. (At that time George Whittles must have had a guilt complex). 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Observer? A. Observer. Q. What did Mr. Whittles tell you about that9 A. George told me that was one reason why he would be ousted, why he wasn't with the company any more. Whittles denied that the conversation took place. Bellew throughout his testimony impressed the undersigned as a witness more than willing to be led to a desired answer. On the record as a whole as well as his observation of the witnesses as between Whittles and Bellew the undersigned credits Whittles. Dills also impressed the undersigned as a witness who was quite willing to slant his testimony, for example he testified that during the course of his conversation with Whittles just prior to the termination of his employment he questioned the need for a layoff and said to the foreman, "George I'm working seven days a week." This was apparently news to the General Counsel for he promptly queried Dills as follows: Q. You said something about the fact that you were working seven days a week. Were you working seven days a week? A. I was, sir. Q. You weren't working that one Sunday while you were driving the taxi- cab, were you? A. No, I mean, that was at the last that they worked seven days a week. I mean, you know, each and every operator, I mean, if they come around and ask you, "Do you want to work?" if you want to work, you would say yes, but sometimes they compel you to work when they are rushed, but they will come around and ask you, "Do you want to work," and you can either say yes or no. Q. Have you been working on Sunday? Had you been working on Sundays in February? When was the last Sunday you worked previous to the time you were discharged? A. Now, that I couldn't say, to be sure. Upon the evidence considered in its entirety, and his observation of the witnesses, the undersigned is convinced that Foreman Whittles' account of his conversation with Dills as well as his account of the other circumstances surrounding Dills' ter- mination of employment is the accurate version and therefore credits his testimony and finds that Dills was not discharged but that on February 28, 1953, Dills quit his employment with the Respondent and will therefore recommend that the com- plaint be dismissed insofar as it alleges that the Respondent discriminatorily dis- charged James Dills in violation of Section 8 (a) (3) of the Act. d. Willard Ploeg Willard Ploeg was employed by the Respondent from August 1952 to March 5, 1953. Ploeg worked as a press operator on the night shift under Foreman John William Nelson. Ploeg testified he joined the Union "about the first of February" and thereafter wore two identical union buttons simultaneously at his work; that on one occasion as he passed Nelson, the foreman remarked "Well I see there goes another union man;" that about a week before the election Nelson remarked "if the Union doesn't go through he can fire any of us there for the reason that we wouldn't-couldn't run a press;" and further testified to another incident involving Nelson as follows: I was running press number 4 then, running doors and windows, and he was just walking by, and he says, "Well if this union falls through," he says, "you won't be working here any more." I says, "Why not?" and he says, "You'll be working for Joe Hood." Nelson denied making either statement. 16 Dills' card bears the notation : "Reason for release," "Dills put out because of election returns ; tried to induce him to stay Even gave him extra check to show Company was bending over backwards to be fair." According to Whittles he instructed whoever was on the switchboard at the time to put the notation on the card. Whelan testified she put the notation on the card after the Board's field examiner began his investigation. Although highly irregular, if not suspect, this does not show that Dills did not actually quit his employment as found herein. TRI STATE MANUFACTURING COMPANY 427 Ploeg further testified that on the morning of March 5, 1953, he together with six other employees were all told by Nelson that due to "cutbacks" and the further fact that some of the presses were being moved away they were being laid off but would be recalled when work was available. According to Ploeg sometime thereafter he had the following conversation with Gibbs to whom he went seeking reemployment: I asked him, I says, "I hear some of the fellows were called back, and I wonder when I could get called back?" He said, "Well, I don't have anything to do with the hiring." He said, "You'll have to see your foreman." He said, "Is there any reason why your foreman shouldn't call you back?" I says, "None that I know of, outside of calling him a liar when I knew he was one." He said, "Well, you'll just have to go and see your foreman." Gibbs corroborated the conversation and testified he passed Ploeg's remark on to Nelson. Nelson testified that none of the men laid off with Ploeg had been discharged and in fact all save one other and Ploeg had been recalled; that Ploeg had not been discharged but that he had fully intended to recall him until Gibbs told him Ploeg had said he had called Nelson a liar; he denied that Ploeg had ever called him a liar; and further testified that on hearing of Ploeg's statement "it riled me up a little so that I wouldn't have him back." Nelson then gave as another cause for his failure to recall Ploeg the alleged fact that Ploeg would change the cycle of operation of his machine, which he was for- bidden to do and which might have caused serious damage to the machine and loss to the Respondent; that he "caught" Ploeg "tinkering" with his press shortly after he first began to work for the Respondent and cautioned him not to do so but that Ploeg continued to disobey his order and that within the last 2 months of his employment Ploeg tinkered with his machine at least 10 times. Nelson testified: I wouldn't exactly walk up and catch him, I would set the cycle or feed on a certain amount, and I would come back and he was having trouble, and it was changed. Gibbs testified that changing the controls on the operation of a press by the operator for experimental purposes could result in the complete destruction of a die "costing in the neighborhood of from $3000 to $8000" and endangering a machine "worth $20,000." Gibbs testified the foreman was charged with the operation of and responsibility for the machines, but refused to fix the amount of experimenting, if any, the fore- man should permit, testifying as follows in answer to questions by the undersigned: Q. And you would let him experiment with the dies and the timing of the machine to learn? A. No, we tell the man not to touch it. Q. Then if you catch him tampering with it, then what are you supposed to do, what is the foreman supposed to do? A. It all depends on the circumstances, Q. I see. If he feels like firing him he fires him; if he feels like training a man, taking a chance on the $20,000 machine, he can do it, is that your testimony? A. It depends on the attitude of the man. Q. That is your testimony? A. Yes, sir. Ploeg's card bears a notation, admittedly in Nelson's handwriting: No Work. After ladeoff attuid was bad. Told Gibbs I was a damn liar. Will not rehire. Nelson testified he made the notation sometime in August: Because I was asked if my records was up to date. I am not there in the day- time to make those cards up, and I let them go, and I slipped-it slipped my mind and he asked me if the cards was up to date and I set down to fix them. I keep my records for my own self. Conclusion as to Ploeg Ploeg was not recalled to deny Nelson's testimony, however the undersigned is convinced that the contention that Ploeg tampered with his machine is mere window dressing and as admitted in Nelson's testimony Ploeg's alleged tampering with his 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine played no part in Ploeg's layoff The layoff affected seven individuals. Ploeg testified that two of them other than himself were union members. Nelson testified that only Ploeg and one other have not been returned to work. It can hardly be contended that among the seven laid off Ploeg was discriminatorily selected on the basis of his union activity and membership as apparently his union activity consisted of wearing two union buttons on his shirt The record discloses that other employees did the same. The undersigned does not doubt but that Ploeg was laid off for economic reasons legitimately applied to him. If there was any discrimination it arose in the Respond- ent's failure to recall him. On the matter of recall it is admitted that Ploeg told President Gibbs he (Ploeg) had called Nelson a liar "and he was." It would only be natural for the foreman to resent such a statement being made to the president of the Company as a direct reflection on the foreman's control of his department. Whether true or false the knowledge of the alleged incident was bound to lower the foreman in the esteem of his employer and it would only be human that the foreman seek satisfaction by denying employment to the man whose story might have injured him. If for this reason he refused Ploeg employment, and the undersigned is per- suaded that he did so, then the refusal is not an unfair labor practice but an act of meanness not within the curative ambit of the Act.17 The undersigned has based his findings on Ploeg's testimony, not Nelson's. The obviously flimsy contention regarding Ploeg's tampering with his machine clearly played no part in the layoff, the layoff grew into the refusal to reinstate for other reasons than Ploeg's union activities, one of which was Ploeg's telling Gibbs he had called Nelson a liar. The undersigned finds that the Respondent laid off Willard Ploeg on March 5, 1953, for economic reasons and thereafter refused to reinstate him for reasons which were not violative of the Act. The undersigned will therefore recommend that the complaint be dismissed insofar as it alleges that Ploeg was discriminatorily dis- charged. The undersigned further finds that Nelson's alleged remark, in the hearing of Ploeg, "I see there goes another Union man," his alleged statement that if the Union did not win he could fire employees who "couldn't run a press," as well as his alleged statement to the effect that if the Union "falls through" Ploeg would be working for Hood, would not under all the circumstances herein constitute a violation of Section 8 (a) (1) of the Act. e. Louis Cohron Louis Cohron testified that he had been employed by the Respondent from Octo- ber, 1952, to March 1953 and that "I got fired or laid off on March 2, 1953." Cohron's employment record shows him to have been discharged March 6. Cohren further testified he joined the Union "about the first of February 1953," attended four union meetings, and wore a union button at work. Cohron also testified that "four or five days" before the election, Parker Sights (found herein to be a setup man, without supervisory status, who also transmitted Foreman Hyatt's orders to employees) told Cohron of certain instructions Hyatt had given him regarding Cohron as follows: Parker Sights told me that there was one of the bosses which I would refer to as Herb Hyatt, had told him to keep me busy because I was a union man. Hyatt denied issuing such instructions to Sights. Sights was not called. Cohron testified that on "Monday March 2, at ten minutes to three" he was discharged by Foreman Hyatt. Cohron testified: He told me there was a plant in Detroit that had went out on strike, had laid off, and he didn't have no orders for but about a week ahead, and he'd have to lay me off. He also told me Eddie Oglesby-which I was the one standing here when he was talking, and Eddie come up to him and asked him the same ques- 17 In his brief to the undersigned the General Counsel argues • "As to the defense that he told Mr Gibbs that he called his foreman, John W Nelson, a liar, I would ask the Trial Examiner to read Nelson's testimony closely It is the most incredible testimony, short of the baldest he, that the undersigned has ever read. If Ploeg called John W Nelson a liar, the undersigned would guess lie was being truthful At every word his testimony is stilted to conform to the Respondent's defense It is strange, isn't it, that with all these pur- ported reasons for discharge Ploeg should not he told why they are terminatin g his em- ployment. Ploeg was led to believe that he would be called back if work picked up, although he did notice that he was given two checks while others were only given one. Foreman John Nelson was in fact ashamed to tell him the real reason for discharge." TRI STATE MANUFACTURING COMPANY 429 tion. What his answer was to Eddie , I don't know , but to me, I do, which was he told me about the plant in Detroit being out on strike , or that they was off ,on a layoff or something , and he told me he didn 't have no work for me. I said "Well, am I fired?" and he said no. I said, "Well, is it because I laid off on Fri- day night9" and he said no. I said, "Well , as it on account on my work ?" and he said no. I said, "Well , what is it?" and he said , well, he just didn't have any work. I said all right, and in the meantime , before they had done handed me my check, which was a Monday and wasn't paid until Thursday- Q. Has the company ever called you back to work? A. No, sir. There is nothing in the record to show that Cohron ever applied for reinstatement. Hyatt testified that because of various "cutbacks" on orders he prepared to shut down the entire second shift; that there was only about 1 week's work available; that he began the layoff at the beginning of the March 6, second shift; that he selected 2 employees for immediate layoff, choosing Cohron as 1 of these because during the day before Cohron had left the plant without permission and did not return; and that before the shift began he asked Cohron for an explanation of his conduct and was told by Cohron that: He told me he went home for supper and his wife didn 't have anything in and she went to the grocery store and he laid down and went to sleep. When he woke up it was 9:30. 1Cohron did not deny that the incident occurred; however Hyatt admitted that Cohron had never before left the plant without permission. Hyatt testified that at the time of the layoff Cohron was not doing his regular job as there were none of the parts he worked on being finished , and summed up his reasons for Cohron's layoff as follows: I laid him off because of the cutback, but he could have probably worked an- other week or so longer before he got laid off, if he hadn't walked off the job and never got permission . I laid him off in preference to laying off somebody that would stay on the job and do their work right. The General Counsel argues that the reasons advanced for Cohron 's layoff are merely a pretext and that the layoff was in fact a discharge . The undersigned is therefore asked to infer that not only was Cohron discharged but was discharged because of his union activity. If the undersigned draws such an inference it would be in the face of the fact that a "cutback " really was taking place, that the con- templated layoff of the entire shift was made and base his finding on the fact that Cohron joined the Union , attended four meetings , and wore a union button. As some 64 other employees did likewise , there seems to be no reason why Cohron should have been singled out for discriminatory treatment.18 It is clear that Cohron was laid off for economic reasons, and the fact that he was a union member played no part in his selection for layoff. True , the time for his layoff was advanced because he left his work once without permission , but sen- iority was not a right of the errtployees of the Respondent either by contract or firmly established custom obviously disregarded . The record shows that the layoff and the selection for the layoff of Cohron were made by Nelson and that Gibbs changed the layoff to prevent Cohron's recall after the event. There is no evidence on which the undersigned can in his opinion draw an inference that Gibbs acted as he did for any other motive than that which is advanced by the Respondent. 11 The General Counsel 's brief would also have the undersigned infer that "President Gibbs discriminatorily discharged or caused Cohron's discharge in violation of the Act because he (Gibbs ) stated to a Field Examiner, in an affidavit, that he had no part in Cohron's layoff." [Emphasis supplied .] This startling argument is bottomed on Gibbs' testimony to the effect that he marked Cohron 's employment card after his layoff, as "Rehire-No." Gibbs testified. "When I learned of that-that Mr Cohron was laid off , I made inquiry in the die cast department about it , and I understood that the-and , I looked at the record also-the record indicated that on the last day he had worked , that he had gone off in the middle of a shift without saying anything to the foreman, but lie was not laid off for that reason. Previously, he had been fired on the night shift at plastic , possibly a year or so before, for having a highball in his hand at the machine while he was operating the press and refusing to stop drinking it. This highball was in a coke bottle and be refused to stop drinking on the job Another time he was fired , about five years ago, by a foreman I had at that time by the name of Jimmy Mily for taking one of our trucks without permission So, I figured , well , that's the kind of a fellow we don't want to work at Tri-State, so I am the one that marked 'Do not rehire'." 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned is convinced and finds that the Respondent laid off and later effec- tively prevented the recall of Louis Cohron for the reasons it advanced at the hear- ing and will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily discharged Louis Cohron. f. Edward Oglesby Edward Oglesby was employed by the Respondent in October 1952 and termi- nated March 6, 1953. Oglesby testified he worked in the plastic department until Christmas and because the department was slowing down, he asked Foreman Herb Hyatt for a transfer to the die-cast department which he received. Oglesby further testified he joined the Union "around somewhere near a month" before the election, that thereafter he wore four union buttons at the same time, all the buttons being alike, however he could not recall what the buttons indicated, testifying: Q. (By Mr. CAMPODONICO ) Which union did you join, or could you tell me all that was on the button? A. Well, I believe it said NLRA, CIO,I believe it was. Q. What was that again? A. Let's see-I forget exactly what it did say on the button. Something about the CIO anyway. According to Oglesby's testimony, one morning about a week before the elec- tion he came to work early in order to talk to Gibbs "about a letter" Gibbs had sent to Oglesby "telling me how good he had been to me." In Gibbs' office, where he sought the information, Oglesby testified the following conversation took place: Well, I was saying, I was asking him what he was going to do about the union, I believe, the way he felt about it, and he told me, he said, he said what all he is going to do. He said , "No Evansville union man" was going to come in there and tell him how to run his business, and he said that him or two or three other fellows had built the Tri-State Plastic where it stood, and that him and some more fellows-he called them by name, which I can't remember-he said that they was out there and they graded down that lot with horses and plows, and stuff, and he showed me some pictures of them, and he said that he so-he wasn't going to let no union man come in there and tell him how to run his business. He said, just like when I come in there at that time to talk to him, if a union was in there, I didn't-I couldn't do that. He said I would have to come in through the union man first. He said, "You couldn't just come in," and he set down and talked things over like that. He said, "You just couldn't come in and set down and talk things over with me like that." Trial Examiner PLOST: Was that all that was said? The WITNESS : Well, he said that if this union come in, he said, if this union did win, did win the election, that he is going to close down his factory. According to Oglesby during the conversation Gibbs also spoke of a forthcoming pay raise as follows: Q. Did you-did he tell you that you would get the raise positively? A. Well, he said yes. He didn't say he would think we'd get one, or any- thing like that, he said at the first of the month, that everybody was going to get a raise. Q. Did he mention the union at all when he was talking about this? A. I don't believe he did. Finally according to Oglesby the conversation was interrupted by a phone call, upon the completion of which: Bob Gibbs said, -let's see, -when he hung up the line, he explained to me that a man was coming there to move some of the presses, and that if this election run in the union's favor, that he's coming and getting the rest of them. I be- lieve I left along there somewhere. Gibbs categorically denied all of Oglesby's testimony relating to the alleged state- ments he made to Oglesby in his office. Oglesby testified that "the Tuesday before the election " he went to Foreman Hyatt's office for a pair of goggles , that while he was there Hyatt asked "are you a union TRI STATE MANUFACTURING COMPANY 431 man," and upon receiving an affirmative answer he called Oglesby to his desk and showed him a copy of a contract between the Union and a Henderson plant, the wage rate pointed out in the contract: would cut me down to about a fourth of what I was making. You know, cheaper wages, and I'd have to work for them a year before I'd even be mak- ing what I made before I got my raise. Oglesby further testified that "the last of February" or "about two weeks after the electioni3° when he came in to work he found his card out of the rack, reported to Hyatt who told him that because of lack of orders "he was going to lay me off for a while" but said "it should not be over a couple of weeks." Hyatt also told him that Cohron was being laid off for the same reason. Hyatt admitted showing the contract to Oglesby, but denied that he showed it to him in his office but did so "out in the plant," and denied telling Oglesby that the wage rate would be cut to the wage rate in the contract if the Union won or that he asked if Oglesby was a "union man." Hyatt testified he selected Oglesby for layoff because he had been in the depart- ment only 2 months, was not a satisfactory employee, was given to leaving his work, and moreover was hard to teach, and that the layoff was occasioned by the same economic reason as that of Cohron who was laid off at the same time. Hyatt further testified: Q. When you laid him off, did you intend to take him back? A. Well, he was a doubtful employee. On cross-examination, Hyatt testified that Gibbs had "said he [Oglesby] was not too a desirable employee and the first layoff we had, we'd better get rid of him" and admitted that he told a field examiner that during the period of union activity he did not let Oglesby go because "I felt that if I let him go, I would be accused of fir- ing him for union activity" and further at the time he needed "sanders." Gibbs testified that he personally marked Oglesby's card "Confidential, see me before rehiring," that he told Hyatt to get rid of Oglesby, and that he did not want Oglesby as an employee because he thought him subnormal for the reason that Oglesby continually bothered him with "silly questions." The General Counsel contends that Oglesby was discharged because of his mem- bership in and activity on behalf of the Union. The Respondent denies this. Of course an employer, as far as the Act goes, may discharge an employee for any reason whatever or for no reason at all, except in violation of the provisions of the Act. Considering the fact that Hyatt had orders to discharge Oglesby, considered him a "doubtful employee," and had been waiting an opportunity to get rid of him, it seems clear that Oglesby's layoff was in fact a discharge. The undersigned so finds. It seems highly incongruous that the Respondent should have set up such a formid- able array of causes for Oglesby's discharge, in fact bringing up all the heavy artillery to destroy a sparrow but on the other hand the General Counsel asks the under- signed to believe that an employer who had sent out a letter, admittedly protected as free speech, would so far forget himself as to tell an employee not only that no "union" man would ever tell him how to run his business, but tell him that he had resolved to close his plant if the Union won the election. Does the General Counsel imply that Gibbs sought to impress Oglesby, implant fear in him, and thus coerce all the employees? Was Oglesby such an important cog in the union machine or so influential among his fellow employees? Is the undersigned to believe that Gibbs was unduly impressed by the four union buttons Oglesby wore and marked him for discriminatory discharge? Realistically the undersigned must remember that Gibbs is a mature man and that Oglesby apparently is still little more than a boy, with some time to go before he is out of his teens. On all the circumstances herein the undersigned must accept Gibbs' categorical denial that the conversation wherein Gibbs threatened to close the plant ever oc- curred. The undersigned therefore credits Gibbs and finds that he did not tell Ogles- by that he would close the plant or move the machinery if the Union won the elec- tion. There remains the statement attributed to Hyatt, namely his question if Oglesby was a "Union man." On the entire record but principally from his observation of the two men on the witness stand the undersigned credits Hyatt and finds that the question was not asked. 19 The election was February 26. Oglesby was terminated March 6. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that Hyatt did show Oglesby a document described as a union contract, credits Hyatt that he so showed it in the plant, not his office, and further credits Hyatt's testimony that he did not tell Oglesby the lower wage rates in this contract would prevail in the plant if the Union won. On the entire record, the evidence considered as a whole, and his observation of the witnesses the undersigned finds that the Respondent discharged Edward Oglesby on March 6, 1953, for various reasons and further finds that Oglesby's membership in and activities on behalf of the Union did not enter into his discharge as a cause thereof and will therefore recommend that the complaint be dismissed insofar as it so alleges. D. Interference, restraint, and coercion 1. Espionage-alleged Dills testified that the Union's meetings were held at the Right Quick Cafe, that all of them but one were held in a back room, the excepted one being "held up front." The Right Quick Cafe is a public restaurant. Dills testified that sometime 'in February" he saw Joe Mis, one of the Respond- ent partners , and Mr. `Romer," 20 the Respondent's sales manager, "sitting inside the door in a booth." He testified that he did not see the two men on the same occasion and that "I don't recollect just exactly which meeting it was at." This testimony was all on direct examination by the General Counsel. Both lulls and ttaumier testified that Ley frequently ate at the Right Quick Cafe, had no knowledge of any union meetings going on while there, and denied engaging in espionage. To finu that the Respondent engaged in espionage on the testimony of a witness who saw two officials of the Respondent in a public restaurant during a meeting which he could not recall, at a time he could not fix, requires much more credulity of the undersigned than the General Counsel should ask with the straight face required of a serious Government functionary. Bellew testified that "approximately a week before the election" he was called to Gibbs' office where Gibbs (no one else being present but the two men) sug- gested that Bellew spy on a union meeting and report to him. He testified: Yes. Again he asked me if I was informed there was to be a special meeting held at the Right Quick Cafe the following day at approximately 1300, and, Mr. Gibbs asked me if I would go to this meeting and get the general run of what was going on, what was happening, and I told him yes, that I would go, and so I went. Q. And do you recall anything else he specifically asked you to do at that particular meeting? A. Yes, he asked me if I would get the approximate count of cards , regis- tration cards, and the names of people who were there. According to Bellew the meeting took place in a private room at the Right Quick Cafe, Joe Hood presided, I1 or 12 people were present, Hood separated the union application cards. Bellew testified: Q. Do you know how many cards there were? A. Approximately 98 or 99. Q. How do you know that? A. Because I counted them. Q. Will you explain how you participated in this counting to the extent that you did? A. Well, yes, Mr. Hood was separating cards, and putting them in separate piles, and I was setting about the third party down on the righthand side of the table. It was very easy to count that amount of cards. Q. And do you know that those were cards with signatures of people on them? A. Yes, there were signatures on the cards. 20 Later identified in the record as Art Baumier. TRI STATE MANUFACTURING COMPANY 433 He further testified that the meeting ended at 2:30 upon which he reported to Gibbs, giving him the names of "four or five" members among these being Cohron, "Dill's sister,"21 and Oglesby. Gibbs testified: Q. Did you or not ask Bobby Bellew to go to a union meeting at the Right Quick Cafe9 A. 1 did not. Q. And did you or not ask him to get the general run of that meeting, and the approximate count of registration cards of people who had signed and the names of the people there? A. I did not. Further with respect to the report of the meeting Bellew testified he made to him Gibbs testified: I had no conversation with Bobby Bellew about anything regarding an elec- tion or disposing of people, or people at the meeting, or anything else. Bellew's account of his exploit as a spy portrays him seated as the "third party down on the right-hand side of the table" from Organizer Hood who "separated" the cards. According to Bellew from this point of vantage Bellew found it "easy to count the amount of cards" and also to note that "there were signatures on them." As herein stated Bellew impressed the undersigned as a more than willing wit- ness, this being so the undersigned deems it singular that he can find no testimony that Bellew was a member of the Union; can find no question to that effect by the General Counsel. On the entire record, considered as a whole, and his observation of the witnesses, the undersigned does not credit Bellew's testimony with respect to his espionage and does credit Gibbs' testimony to the effect that he did not send Bellew to spy on a union meeting or receive a report from Bellew regarding the meeting he spied on 22 On the entire record the undersigned finds that the Respondent did not engage in espionage of the Union's meetings, or its employees' Union affairs and will recommend that the complaint be dismissed insofar as it so alleges. 2. Circulation of various documents June Rideout testified that about 2 days before the election (a) she saw Gibbs talking to Parker Sights 23 and that Gibbs was holding a paper, (b) that she then saw Gibbs showing this paper to employees in the plastic department, she was working in the die-cast department, but according to Rideout "you could look from my machine right into one of the presses," (c) that thereafter "Parker came back in and was talking to me" and that she asked "what was that Mr. Gibbs had, that contract?" Sights replied "yes" and then told her that "women's wages would drop from a dollar and nickel an hour to 85-75" and also that "men would go down to 90 cents." It should be noted that Rideout did not testify Sights had the "contract," or showed it to her when Sights told her that wages would drop. This was made very plain on cross-examination wherein she testified: ii At the point where Bellew named "Dill's sister" the General Counsel interjected a remark which brought the following examination by the undersigned. Beginning with the General Counsel's remark the record is as follows Mr. BROOKS : May the record show the witness is pointing to Mr. Dills an 8 (a) (3) who previously testified that his full name is James Dills. Trial Examiner PLOST Did you tell Mr. Dills-did you tell Mr. Gibbs that Mr. Dills was at the meeting? The WITNESS : His sister Trial Examiner PLOST : His sister, you say The WITNESS' Yes, Sir. 22 The undersigned is convinced and finds that the alleged meetings between Gibbs and Bellew in which Bellew was sent out as a spy and reported thereafter to Gibbs existed only in Bellew's imagination and will therefore make no findings with respect to other testi- mony by Bellew on matters alleged to have occurred during these meetings. 23 Sights has been found to have had no supervisory authority 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. I thought you said a minute ago that it was Parker Sights who showed you that- A. No, I didn't say it was Parker Sights, Parker told me about the contract. Rideout on redirect ended her testimony as follows: Q. Mr. CAMPODONIco: And you say you saw Parker Sights talking to Mr. Gibbs that night? A. The WITNESS: Yes, Mr. Gibbs called him up to the front part of the building and was talking to him. Mr. CAMPODONICO: That's all. In his brief to the undersigned the General Counsel argues: "Parker Sights told her, along with showing her the contract, that if the union came in all wages would be cut to conform to the contract that was being passed around." [Emphasis supplied.] The General Counsel then draws this conclusion: "If credited, this is obviously a violation. Here, Parker Sights is acting directly on the orders of Gibbs. It cannot be argued, as to this incident, that since Parker Sights is not a supervisor the Respond- ent is not responsible for his acts." The General Counsel obviously, although probably inadvertently, misstates the record. The undersigned credits Rideout but finds further that her testimony regarding her conversation with Sights does not relate to a violation of the Act on the part of the Respondent. The Respondent admits that it obtained a contract between the Union and another local firm, not a plant similar to its own, which it exhibited and that it also sent out letters to all employees and posted statements on its bulletin board. Inasmuch as no contention is made that the letters or notices were not entirely protected by Section 8 (c) of the Act as the Respondent's expressions of its views and opinions, and as the showing of the "contract" was mere electioneering the undersigned finds that the Respondent did not engage in unfair labor practices by such dissemination of literature. 3. The alleged blacklist The General Counsel put the followipg question to Bellew: (By Mr. BROOKS) Was there any discussion in the plant before , the election, about a blackball list of names? Over objection, the undersigned permitted a "yes or no" answer. The witness answered in the affirmative and then was permitted to testify: Yes, it had been discussed around the plant . I had never seen the list. Bellew then testified that Foreman Whittles told him that there was: A blackball list, more or less a list with people that Mr. Gibbs presumably felt, or knew that was working against the plant , was working for the union, and that was what the conversation was about. Whittles denied discussing any blacklist with Bellew and denied any knowledge of the existence of such a list. On the entire record and his observation of the witnesses and because he does not consider Bellew a reliable witness the undersigned credits Whittles and finds that he did not hold any conversation with Bellew with respect to any blacklist of employees. Leroy Barron testified to a conversation held in a tavern the afternoon of the election with Foreman George Whittles as follows: Q. Now, I want you to tell the Trial Examiner what you said to Mr. Whittles at this conversation and what he said to you, if anything, concerning a list? A. Well, we was all talking, a bunch of us there, there was some gossip about a list of people to be laid off, and I asked Mr. Whittles if my name was on there. He said, "A, B.," he said, "Yes, your name is on there." He was laughing all the time, and I don't know whether he meant it or not. Q. Did he give you any further explanation of this list? A. No. Q. What connection did this list have with the union, if anything? A. It was supposed to be the names of them that voted for the union, they was to be laid off. That's all I know. TRI STATE MANUFACTURING COMPANY 435 Trial Examiner PLOST: How do you know that? The WITNESS: Well, frankly, I don't know, because I never did see the list. Whittles testified: Mr. Barron and I have been good friends ever since I have been down in this part of the country, which is about three and a half years; and we have been drinking beer after work all the way from Dummy's place out on the west side of town to the Ridgeview Tavern on the north side. We missed very few taverns in between. It wasn't every night, it was usually payday night, because we had the most money then, before our wives got it. But we would stop in and have an occasional beer now and then. Was there something else? Regarding any conversation about a blacklist Whittles testified: There wasn't never any talk of a blacklist. The first I heard of it was about one day ago. I never had a blacklist, never knew of anything that went by such a name. He also testified: Mr. Barron and I, along with Leroy Stone, were at the Manhattan right after the votes were counted on election day, and I had no list, and there was nothing said along that line at that time. The undersigned finds that this record does not support the contention that the Respondent maintained or pretended to maintain a blacklist of employees supposed to be associated with the Union. 4. Wage increases The complaint alleges in effect that (a) the Respondent promised its employees a wage increase in order to affect the election, and (b) granted a wage increase "for having rejected representation" and further "to discourage union membership." Gibbs testified that sometime in September 1952 he applied to the Wage Stabiliza- tion Board for permission to make a general wage increase but after he received the necessary forms he did not fill them out deciding to wait until the restrictions were lifted. Gibbs testified that he did not inform the employees of his decision but did tell Foreman Whittles. Gibbs testified: Q. (By Mr. C0cHRAN) Mr. Gibbs, you were asked about the raise in wages when the Wage Stabilization Board went out, and the restrictions went off. Did you decide to grant that general increase in wages as a reward, or anything of that kind, to employees for anti-union activity, or for supporting you against the union, or anything of that kind? A. Well, I think the fact that I told Mr. Whittles confidentially before the elec- tion that there would be an increase on March 1st, that would be evidence that it was not a reward, because it was promised before the election. Q. Well, were your instructions to them to keep it quiet and not to tell anybody? A. Definitely. Whittles testified that he told "five or six" employees about a raise, but denied hav- ing done so to influence the election. He further testified: Mr. Gibbs words to me were, "If anyone asks you about it tell them that we are going to try to give a nickel raise about the 1st of March." He said, "Don't post any bulletin about it, or broadcast it, go out of your way to broadcast it, but if they ask you, why tell them it will be about the 1st of March." Gibbs testified: I gave a general wage increase after the election, on March 1st, in 1, 2, or 3 there-in 1, 2, or 3 departments, and on March 15th in the other departments; everybody got a raise.-' 24 The General Counsel argues in his brief : "Why did Mr. Gibbs tell Whittles not to broadcast the news that they would try to give raise in March and then inform employees of raise in a semi-secret manner. The fact that Whittles uses the word `try' indicates that the plan to give an increase was not irrevocable, and Mr. Gibbs was at least waiting to see what the situation was after the election. Mr. Gibbs was, in fact, dangling the carrot in front of the donkey [employees] in order to steer it [them]." 334811-55-vol. 109-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that the record does not support the allegation and con- tention that the Respondent promised a wage rate to effect the election and granted one as a reward and a further means of discouraging union membership, and will therefore recommend that the complaint be dismissed insofar as it so alleges. 5. The blackboard incident A blackboard was maintained in the Respondent's plant, over the superintendent's desk. On this blackboard the amounts and kinds of materials to be run on the various presses was chalked up by the plant foreman. Dills testified that when he came in to work the day after the election, on the board were the words: "Thanks to the 156 employees who voted against the union, to hell with the other 56." He testified he did not see the writing put on the board, nor did he know how long it remained there. Herman Williams testified that on the morning after the election he saw the writing above referred to on the blackboard; did not see it written and did not know how long it remained. Whittles testified he had charge of the blackboard; that after the election, probably the same evening, he wrote on the board, "The Company appreciates the confidence of the 156, or whatever it was;" that the next morning when he came in he noticed that there had been added "To hell with the . .. other amount, sixty some," that he then erased it. He testified: Q. Did you erase that as soon as you saw it? A. As soon as it was practical. I had to find a towel and take my coat off and get up to the board and go through the operation, but those were not my feelings, "To hell with the so and so number," so I erased it. The General Counsel sought to impeach Whittles by a statement made in an affidavit reading from it as follows: I didn't write, "To hell with the others," and I don't know who did. The mes- sage was there a couple of days. I wiped it off when I wanted to put up the schedule. I make up the board. Whittles explained as follows: Yes, and the message was the "appreciated the confidence," that was put up that evening of the election, and it was erased the next morning. A couple of days means the day of the election and the morning after. That's all it was up there. I had to erase it in order to put up the schedule that was up there. The undersigned finds no inconsistency in the testimony. He credits Whittles' testimony and finds that Whittles wrote the first sentence as he testified and erased the second shortly after he came in to work the morning after the election 2' The undersigned finds that Whittles writing the expression of his thanks to the 156 "loyal" employees was not violative of the Act. 6. Additional alleged interference, restraint, and coercion On direct examination by the General Counsel, Bellew testified: Q. Can you approximately tell us the number of times you discussed that union with Mr. Gibbs in any way? A. Three or four times, on different occasions. Q. Well, did Mr. Gibbs ever ask you a casual question about the union? A. Yes, Mr. Gibbs asked me these different times if I thought that the union was going to win the election, and I told him I didn't think they would. Q. How many different occasions do you recall that Mr. Gibbs asked you whether the union was going to win the election? A. Oh, four or five or more times. Q. Sir9 A. At least four or five times. Within 9 lines of testimony Bellew apparently came to the conclusion that Gibbs asked the same question 5 or more times in 3 or 4 conversations. The General Counsel's surprise is also apparent in the quoted excerpt. w The General Counsel's brief reads : "Counsel for the General Counsel, although believ- ing that this is also an independent violation of the Act, feels that the primary value of this evidence to the case is that it expresses, unrebutted, the feelings of this Respondent. Mr. Gibbs is grateful for the loyalty of his supporters and feels the '64' are deserters." TRI STATE MANUFACTURING COMPANY 437 Gibbs denied that the alleged conversations took place. The undersigned credits Gibbs. Eloise Fox testified that some 2 weeks before the election at a time she was em- ployed in the main plant, Charlie Williams, who was foreman of one of the Re- spondent's operations in a different location in the town, spoke to her about her attending union meetings as follows: Q. How was it that Charlie Williams happened to be talking to you? A. He came up to the factory very often and we were just talking, and he stopped and was talking to me. Q. And what did he say to you, if anything, about the union? A. Well, he said for my good, that it would be better if I didn't go to the meetings, because-let's see-I have of-I have forgotten. I don't know for sure, I don't remember for sure the exact words, but, anyway he said it would be best that I wouldn't go to any more of the meetings because they were watched, and that if I wanted to take part in the union I could do so without going to these meetings. Williams denied Fox's testimony. Assuming that the statement was made it ap- pears to be nothing more than an isolated instance of an overcautionary remark based on an expression of the foreman's opinion, not the Respondent's threat. The undersigned finds that Williams' alleged remark to Fox as set out in her tes- timony was not of such a character as to constitute a violation of Section 7 of the Act by the Respondent. Conclusion as to Interference, Restraint, and Coercion The undersigned is well aware that this report is far too long, but it became so because of the necessity of covering all matter explored during the hearing. In the presentation of his case, the General Counsel seemed to be pursuing a will-o-the- wisp, which he was not quite able to touch. This search for something substantial was apparently brought on by the theory expressed in the first paragraph of the General Counsel's brief to the undersigned, which reads: Of course Counsel for the General Counsel does not contend that to oppose an organizational campaign is in and of itself a violation of the Act. He does contend though that since this Employer was dead set against this organ- izational drive, that every equivocal act that was done may be properly viewed in the light of Respondent's animus toward this effort to organize its employees. That the search led the General Counsel up blind alleys is shown clearly by the testimony of his last witness. The following is from the examination and testi- mony of Frank Stubbs: Mr. CAMPOnoxtco: Before we rested our case, if you remember I asked permission to file a motion to take a deposition for a witness that was unlo- catable. At this time we have located the witness. He's sitting right here. His name is Frank Stubbs. He will testify to one 8 (1) incident, and he also affects the 8 (3)'s. The witness then testified that he was hired March 16, 1953, in the plastic de- partment; that about 2 weeks thereafter his foreman, John Nelson, stopped at his machine and spoke to him as follows: Well, he came by the press one night when I was at work and asked me if I knew whether anybody else wanted to hire me or not; said he had a call ef- fecting I was a Union man, see, to be discharged, which he didn't give it no con- sideration; he went ahead, and I worked. Conclusion Upon the entire record, the evidence considered as a whole, and from his ob- servation of the witnesses, the undersigned finds that the Respondent has engaged in conduct violative of Section 8 (a) (2) and (1) of the Act by initiating, forming, and dominating the Committee as herein found. The undersigned further finds that the Respondent did not engage in conduct violative of the Act by terminating the employment of Hugh Sugg, Herman Wil- liams, James Dills, Willard Ploeg, Louis Cobron, and Edward Oglesby, in the man- ner herein found. The Respondent did not engage in conduct violative of Section 8 (a) (1) of the Act by: (a) Questioning their employees in regard to their membership in, sym- 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pathy for, and activities on behalf of the Union; (b) threatening and warning their employees to refrain from assisting , becoming members of, or remaining members of the Union ; (c) threatening and warning their employees that their plants would be closed before they would recognize the Union or allow their employees to be organized ; (d) threatening and warning their employees that they would be dis- charged because of their membership in, activities on behalf of, or sympathies for the Union; (e) threatening and warning their employees that economic reprisals would be taken against their employees who became members of, or engaged in ac- tivities on behalf of, the Union or engaged in concerted activities ; (f) threatening and warning their employees that the employees who voted for the Union in the election held by the National Labor Relations Board would be discharged or that dis- criminatory working conditions would be imposed against them ; (g) threatening and warning their employees with physical violence because of their membership in, ac- tivities on behalf of, and sympathies for the Union; (h) keeping under surveillance the meetings of the Union and the activities of their employees on behalf of the Union; (i) promising their employees an increase in wages in order to affect the re- sults of an election to be held by the National Labor Relations Board ; (j) ordering and requiring as a condition of employment that their employees circulate antiunion literature compiled by the Respondents ; (k) promising their employees improved working conditions and regular employment if their employees rejected representa- tion by the Union; and (1) granting its employees a wage increase for having re- jected representation by the Union in an election held by the National Labor Relations Board and in order to discourage union membership as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with its operations described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in certain unfair labor prac- tices. It will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent has initiated, formed, dominated , and in- terfered with the administration of the Committee . The effect and consequences of this interference with the Committee are to frustrate self-organization and defeat genuine collective bargaining by employees of the Respondent . It will therefore be recommended that the Respondent withdraw all recognition from the Commit- tee as the representative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representative. For the reasons hereinbefore set forth the undersigned will further recommend that the complaint be dismissed insofar as it alleges violations of Section 8 (a) (3) and independent violations of Section 8 (a) (1) of the Act. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Robert K. Gibbs, Patrick J. Buckley, and Joseph Mis, a partnership d/b/a Tri State Plastic Manufacturing Company; Tri State Die Casting Corporation; and Tri State Plastic Molding Company , Inc., the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Furniture Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By initiating, forming, dominating, and interfering with , the administration of the Committee, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (2) and 8 (a) (1) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 8 (6) and (7) of the Act. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] YAQUINA BAY MILLS, INC. 439 Exhibit A UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD ROBERT K. GIBBS, PATRICK J. BUCKLEY & JOSEPH MIS, A PARTNERSHIP D/B/A TRI STATE MANUFACTURING COMPANY; TRI STATE DIE CASTING CORPORATION; AND TRI STATE and UNITED FURNITURE WORKERS OF AMERICA, CIO Case No. 9-CA-643 STIPULATION WHEREAS, by order duly entered on December 15, 1953 , the Trial Examiner or- dered that the record in this matter, Case No. 9-CA-643 be reopened for the sole and only purpose set forth in Paragraph 2 of such order of December 15, Now, THEREFORE, to expedite compliance with that order , and in lieu of taking a deposition pursuant to that order, it is stipulated between the General Counsel and the Respondent as follows: It is stipulated between the General Counsel and the Respondent that the witness, Robert E. Bellew, Serial No. 1386-92, was discharged from the United States Marine Corps on October 23, 1953 , in San Diego, 'as undesirable pursuant to an administrative determination and that at the time Bobby Bellew testified as a witness in this hearing he was not a member of the United States Marine Corps. and that this stipulation may be immediately forwarded to Honorable Louis Plost. Each of the parties while stipulating to the above facts reserves the right to object to the inclusion of this stipulation in the record as evidence , on the ground of com- petency, relevancy and materiality. Harry D. Campodonico Counsel for the General Counsel Eugene B. Cochran Counsel for the Respondent I. Meyers Counsel for UFW-CIO YAQUINA BAY MILLS, INC. and INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 5-63, CIO. Case No. 36-CA-425. July 26,195 4 Decision and Order On February 11, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, a copy of which is attached hereto, finding that the Respondent Yaquina Bay Mills, Inc., has not engaged in and is not engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 109 NLRB No. 68.