Baird-Ward Printing Co., Inc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD typing, often typing letters for him; keeps the producer's files consisting of all the information going into each picture and copies of letters she types for him; gets material from the files for the producer, takes dictation from everyone there, from both of the directors and types letters for the stage manager, the assistant stage manager, the prop man, works in the front office with the producer and Dana; 65 percent of her time is spent in keeping records and the balance in operating the switchboard, typing script and helping out on the set; helps Dana put account num- bers on timesheets; acts as a receptionist; has quite a bit of correspondence; and it is intended to give more, and as much purchasing work as possible to her and Dana. Appendix D Nancy Dana has worked for a number of years at the studio; she is located on the telephone switchboard quite a bit; she has been a script clerk keeping the cam- eraman's log up until the last 3 or 4 months-the log being a record of each scene and each take of each scene as it is shot, at present she continues to fill in as a script clerk; follows up for the men on the floor; assists in locating properties; runs the ditto machine; does typing, makes out reports for herself and for others who do not run a typewriter; assists with suggestions on sets; telephones to secure mem- bers for casts, formerly interviewed prospects for casts; finds out for cameramen whether scenes have been approved; might help move inserts around; as one who keeps reports she is required to pitch in and get sets ready when necessary; is paid on a weekly basis, works the same hours and enjoys the same benefits as other em- ployees; acts as a receptionist when at the switchboard near which she is located quite a bit of the time; is more responsible than others for watching this switch- board, has a working space in the area which she uses in getting out reports; she .does not help the cameramen with inset work; sometimes engages in cheat acting; her main duty is on the switchboard where she sits at a desk but formerly had been a script girl; she comes to the studio and talks but most of the time is at the switch- board in the office; has no definite job connected with the studio; probably informs the sound recordist when the amplifier for the public address system in the front office is not working; does no sound work, property work, set design work; car- pentry work nor animation work; when she was a script girl she sounded clappers at the beginning of a take, and put something in the record; the set designer does not recall ever having seen her painting or doing any other work on, nor pushing a dolly on, a set; she now spends most of her time at the switchboard; when a script girl she located actors in their homes or agencies, kept some kind of a log, touched up actors with powder and took nonspeaking parts; writes letters at the re- quest of the prop man; she is carried on the daily time report as performing general office work; either she or Whitley or both, sometimes make out work schedules which are usually received by the mixer in the sound department from one of the office girls; she works with whomever is in the front office typing out the time reports, sometimes goes out on the floor as an actor and helps with making lunch, has been seen painting scenery, painting sets, and putting them together a couple of times and pushing dollies; formerly did all things pertaining to the work of a script girl; has done some slicing in the script department; telephones to locate properties and does some casting, helps in costuming actors; types out some letters of and for the producer; usually places telephone calls for the producer; works in the front office with the producer and Whitley; makes out time sheets; has helped out in the editorial department; spends 75 or 80 percent of her time in the front office; acts as a receptionist ; has been seen operating the mixer on a sync take before she came to the front office; and it is intended to give more and as much purchasing work as possible to her. BAIRD-WARD PRINTING CO., INC. and NASHVILLE PRINTING PRESSMEN & ASSISTANTS' UNION No. 37, INTERNATIONAL PRINTING PRESSMEN R, ASSISTANTS' UNION or NORTH AMERICA, AFL. Case No. 10-CA- 17773. July 29,1954 Decision and Order On April 2, 1954, Trial Examiner Loren H. Laughlin issued his Intermediate Report in the above-entitled proceeding, finding that 109 NLRB No. 96. BAIRD-WARD PRINTING CO., INC. 547 the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Union filed exceptions to the Inter- mediate Report and a supporting brief.' The Respondent filed a brief in support of the Trial Examiner's recommendations. The General Counsel filed no 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner 2 [The Board dismissed the complaint.] MEMBERS PETERSON and BEESON took no part in the consideration of the above Decision and Order. 'The request of the Union for oral argument is hereby denied as the record adequately reflects the issues and positions of the parties 2 The Union contends , inter alga, that the Intermediate Report is replete with gratuitous remarks concerning Goostree and reflects bias on the part of the Trial Examiner in favor of the Respondent. However, although there may have been unnecessary comments in the Intermediate Report concerning some of the witnesses , which comments we do not adopt, upon a careful analysis of the entire record, we find no basis for any finding of bias or prejudice on the part of the Trial Examiner . Moreover , the fact that , as contended by the Union , Goostree may have had a reasonable expectancy of continued employment at the time of the election does not affect our ultimate conclusion herein Intermediate Report STATEMENT OF THE CASE The sole ultimate questions involved in this case are whether or not one Charles H. Goostree on July 1 , 1953 , was discharged from his employment in Respondent's printing plant in Nashville, Tennessee, and was thereafter refused reinstatement, all in violation of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 USCA 141 et seq., as amended, hereinafter referred to as the Act. (Charles H. or Charles Henry Goostree is always hereinafter referred to as Goostree. Throughout the record his surname is frequently misspelled as "Goosetree.") The attorneys for the Union as well as those for the Respondent employer all concur that the foregoing are the sole issues . There are no other unfair labor practice charges pending against Respondent. Counsel for General Counsel, hereinafter referred to as General Counsel, how- ever, although correctly stating the substance of the pleadings , in his brief mis- takenly contends that the issue in the case at bar is: Was Charles H. Goostree discharged and subsequently refused employment by the Respondent in order to substantiate its position that he was a temporary employee with no expectancy of continued employment and therefore not entitled to vote in a representation election in which Goostree 's vote is decisive? This appears to be the theory of General Counsel as stated at the hearing and as it is also expressed elsewhere in his brief but it is not the issue. Whether or not Goostree was discharged to prove that he was only a "temporary employee" is clearly not the material issue here. The issues are whether or not Goostree was 334811-55-vol 109-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged and later denied reinstatement for discriminatory reasons violative of the Act. Under the evidence in this case Goostree either was or was not a "tem- porary employee" on March 10, 1953, at the time his ballot was cast and challenged at the representation election. His status thereafter continued the same and was not changed by his subsequent discharge. And he could have been legally discharged for any cause at any time either before or after that election date, and whether he was either a "temporary employee" or a "permanent employee," provided always such discharge was not for discriminatory reasons violative of the Act, as hereinafter more fully discussed. And further, the evidence in this case shows without any real or substantial dispute that Goostree's discharge on July 1, 1953, was not just an afterthought of the employer devised merely to bolster up its previous position taken at the election on March 10, 1953, when it had lawfully challenged Goostree's right to vote, but such discharge in fact was confirmatory of the clear and complete long prior understanding between the employer and Goostree reached on or about January 23, 1953, when Goostree deliberately left his so-called "permanent" posi- tion in the shipping room to return to the press room, that his future employment there as an "extra jogger" or "flyboy" would entirely come to an end when the peak load of printing certain telephone directories was completed, which work was antici- pated to be completed during May 1953, but was actually not completed until on or about July 1, 1953. From June 26 to July 1, Goostree and others similarly hired and situated were all terminated in their employment, Goostree being about the last of such extra "flyboys" to be discharged. I find for the Respondent on both of the said ultimate issues in this case and recommend its dismissal for reasons hereinafter fully set forth. This case was instituted on July 28, 1953, by a charge filed by the representative of Nashville Printing Pressmen & Assistants' Union No. 37, International Printing Pressmen & Assistants' Union of North America, AFL, herein always referred to as the Union. The complaint was filed by General Counsel August 20, 1953, and after service upon it of the charge and complaint, Respondent filed its answer August 28, 1953. Pursuant to due notice of hearing and the subsequent rescheduling thereof the case was heard in the grand jury room in the United States courthouse at Nashville, Tennessee, on December 7, 1953, before the undersigned duly desig- nated Trial Examiner. At the hearing it was stipulated by the parties that the record previously made on June 15 and 16, 1953, in the then pending representation proceeding between the same parties, Case No. 10-RC-2233, should be included in the record in this com- plaint case now at bar. This stipulation was approved by the Trial Examiner. While it now appears that much evidence and discussion quite irrelevant to the issues in this case is included in such prior administrative record, the stipulation and order did avoid the necessity of taking considerable evidence relevant to the present case relating to matters which had occurred prior to Goostree's discharge on July 1, 1953, and the hearing of the instant case was thereby substantially shortened. As hereinafter more particularly pointed out the chief witnesses at the representation hearing were also before the Trial Examiner in this case, hence he is in strong position to competently judge and evaluate the credibility and weight of such former testimony from having actually seen and heard the same witnesses testify in the instant case but a few months later. At the hearing of this complaint case all parties appeared by their respective counsel and fully participated in the hearing. Due process of law was afforded all parties. Final arguments were waived by all the parties but briefs have been received by the Trial Examiner from counsel for all parties which have been very carefully and fully considered in the preparation of this Intermediate Report. The Pleadings The fact of Goostree's discharge as alleged in the complaint is admitted in the answer but Respondent denies the further allegations of the complaint that his discharge and Respondent's refusal to reinstate him were because of his alleged union membership and his union and concerted activities and were therefore in violation of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. (Section 8 (a) (3) is erroneously designated as Section 8 (a) (b) in the answer but the context makes the meaning clear.) Hence, General Counsel must maintain the burden of proving such controverted allegations by a preponderance of the evidence in accordance with the well-settled rule more fully discussed later herein. There is no allegation in the complaint that Respondent discharged Goostree discriminately "because he has . . . given testimony under this Act" at the hearing on June 15 and 16, 1953, in the representation proceeding in violation of Section BAIRD-WARD PRINTING CO., INC. 549 8 (a) (4) of the Act. No motion to amend the complaint to cure variances or to conform to any alleged proofs was made at the hearing. And neither General Counsel nor the Union contend that there is such an 8 (a ) (4) issue in the case. Hence, no finding is made upon such an issue as that would clearly violate the funda- mental principles of due process. See N. L. R. B. v. Kanmak Mills, 200 F. 2d 53, 545 (C. A. 3). Jurisdictional and other matters pleaded and admitted are specially dealt with under appropriate subsequent captions. FINDINGS OF FACT Upon the entire record in the case and from my observation of the conduct and demeanor of those witnesses who testified personally before me, I make the following findings of fact: 1. NATURE AND EXTENT OF RESPONDENT' S BUSINESS-JURISDICTION OF THE BOARD It is alleged in the complaint and admitted in the answer that the Respondent, Baird-Ward Printing Co., Inc., is now and at all times material has been a Ten- nessee corporation maintaining its office and place of business at Nashville, Ten- nessee, where it is engaged in the commercial printing business, and that in the conduct of its business during the representative year that preceded the filing of the complaint it sold and shipped finished products valued at more than $750,000 to customers outside the State of Tennessee. Since there is no jurisdictional issue in contest, pursuant to Section 102.20 of the Rules and Regulations of the National Labor Relations Board, as amended, effective June 3, 1952, 1 find such admitted allegations to be factually true. Jurisdiction of the Board is therefore established well within its current policy enunciated in 1950 that it will take jurisdiction over any enterprises producing goods for out-of-State shipments valued at $25,000 a year (Stanislaus Implement and Hardware Co., 91 NLRB 618). Russell Williams, Respondent's plant manager, testified at length at the said representation hearing concerning Respondent's printing establishment. It is lo- cated in Nashville in a large building some 500 feet long, counting the loading dock, and is about 200 feet wide. Within the building down the east half ranging from north to south are the composing room and proofroom, the job pressroom, the bindery, and finally the shipping room. The west half of the building is sub- stantially all devoted to stock storage and the storage of work in process. The Respondent's business is commercial printing and binding and its products are chiefly telephone books and religious publications, although it does some general commercial work. Each of the several stages of work performance is administratively departmental- ized and set apart physically in different areas or rooms such as the composing room and proofing room, the pressroom, the bindery, and the shipping room. There is also a maintenance department which apparently has to do with the janitorial and service jobs around the plant. The management considers that the three principal departments are the composing room, pressroom, and bindery. Respondent's corporate official management, insofar as material to this case, consists of A. J. Baird, president, Russell Williams, plant manager, and L. G. McLain, personnel director. Each department apparently has its own foreman. Stanley H. Estes is foreman of the pressroom and he is in charge of all printing press crews in the pressroom. Unchallenged statements in the record show the pressroom to be one large open room with no partitions between the various presses and none between the job printing department with its relatively small presses and that area of the department where there are located several large presses of various sizes and types. It was in this latter department where Goostree twice held a tem- porary job as a "jogger" or "flyboy" on one of the large rotary presses, No. 41. The duties of a "jogger" or "flyboy" is to "jog," or even up, and then remove the printed folded signatures or sheets from the press boxes where they come to rest after passing through the press and placing such printed material on trucks or skids ready for and into further movement in the printing and binding processes. This is the simplest and lowest of the positions in the hierarchy on each rotary press, which positions range down in order of importance and skill from pressmen to assistant pressmen and to tension man, all skilled labor, then finally to the "jogger" or "flyboy." This latter workman is either a beginner or a permanent employee who has not had the aptitude for advancement to a skilled craft above this lowest place on the crew. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Respondent's pressroom rotary press No. 41 is the one usually in operation. In peak periods of heavy production rotary press No. 42 , a standby press, is acti- vated. At such times part of the skilled employees who work regularly on No. 41 are upgraded in order to take over duties on No. 42, and it then becomes necessary to temporarily employ sufficient additional "flyboys" so that the complement of workers will be full on all the shifts then working on both presses. II. THE LABOR ORGANIZATION INVOLVED The complaint alleged and the answer admitted that Nashville Printing Pressmen & Assistants' Union No. 37, International Printing Pressmen & Assistants' Union of North America, AFL, then was a labor organization within the meaning of Sec- tion 2 (5) of the Act. In accordance with said Section 102.20 of the Board's cur- rent Rules and Regulations , Series 6, as amended, I find such admitted allegations to be true. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Brief chronology of events While they will be detailed later , briefly and chronologically stated the events as developed by the record in this case are as follows: August 14, 1952: Respondent employed Goostree as an extra laborer in its mainte- nance department. September 2, 1952: Respondent terminated Goostree in its maintenance depart- ment and rehired him as an "extra flyboy" in its pressroom. November 26, 1952: Respondent terminated Goostree as a "flyboy" in its press- room and hired him in its shipping room as a "permanent" clerk. On this job he received group insurance benefits, vacation time accrual , and an identification card, which were general incidents of any so-called "permanent" employment in the plant. December 1952 and January 1953: Goostree became very dissatisfied with his job in the shipping room and repeatedly importuned the management for work in the pressroom on the third or night shift , allegedly so that he could complete his last 2 years of high school work . Respondent's personnel director, McLain, and its pressroom foreman, Estes , both definitely advised Goostree such work was of tem- porary character and probably would end during May or June 1953 , but Goostree stated "he would take the gamble on what might occur after May " as he would have about completed his semester's school work by then. December 1952: Late in the month the Union began its organizational drive in Respondent's pressroom. January 5, 1953: The Union intensified its said drive. January 20, 1953: A representation petition was filed by the Union with the Board. January 23, 1953: Respondent was notified of the representation petition. January 23, 1953: Goostree was terminated as to his "permanent" clerkship in the shipping room in accordance with his own repeated requests. January 25, 1953: Goostree was rehired and again began work as an extra "flyboy" in the pressroom. February 11, 1953: The Union and the Respondent stipulated for the Union's cer- tification upon a consent election . It was agreed by all concerned that only "perma- ment" employees in the pressroom could vote thereat. March 10, 1953: The representation election was held. Seventy-five employees voted including Goostree , whose vote was challenged by Respondent on the ground that he was a "temporary" employee. The election resulted in 37 votes for the Union and 37 for no union, with Goostree's ballot impounded and uncounted. No other alleged "temporary" employee voted. March 16, 1953: Union filed objections to election with the Board 's Tenth Region- al Director at Atlanta, Georgia. April 9-17, 1953: Goostree and the other extra "flyboys " in the pressroom were laid off because of lack of work. April 17-21, 1953: Goostree and the other extra "flyboys" again worked in the pressroom. April 21-27, 1953: Goostree and other extra "flyboys " were again laid off be- cause of lack of work. April 27-May 1, 1953: Goostree and other extra "flyboys" again worked in the pressroom. April 29, 1953 : The Regional Director for the Tenth Region , after having just made his investigation , issued a report on the election , to which Respondent filed exceptions with the Board. BAIRD-WARD PRINTING CO., INC. 551 May 1 to May 18, 1953: Goostree and other extra "flyboys" were again laid off because of lack of work. May 18 to July 1, 1953: Goostree and other extra "flyboys" again worked in the pressroom. June 15 and 16, 1953: The representation case was heard. Goostree testified for the petitioning Union. June 26-July 1, 1953: Goostree and seven other "extra flyboys" in the pressroom were terminated. Goostree's employment record and that of another "extra flyboy," one Edwards, were marked "Not For Rehire." June 29, 1953: Another extra "flyboy," one Massey discharged on June 29, was promptly rehired as a "permanent" employee as a beginner on the flat bed of a cylin- der press. July 1953: ("about a week or a week and a half" after his final termination on July 1) Goostree returned to Respondent's plant, asked for and received a letter of recom- mendation and "talked to [Estes] about going back to work" and was told among a few other things "he [Goostree] lacked sufficient education to be a pressman." July 13, 1953: Another extra "flyboy" named McPherson, who had been discharged on June 26 or before Goostree, was rehired as a "flyboy" because he needed a job badly, his house had burned down, his grandmother had died from injuries received at the fire, his mother was sick, and his son was subject to military recall. August 7, 1953: Another extra "flyboy" one Paul Rader was rehired as a "perma- nent" employee in the composing room. July-August-October. Three other "flyboys," hired by Respondent, 2 entirely new and 1 who had worked for brief periods a long time before. A ugust 20, 1953: The present complaint case was instituted. B The witnesses The witnesses who testified both at the administrative hearing June 15 and 16, 1953, in the representation case before the hearing officer and at the adversary hear- ing in the complaint case before me on December 7, 1953, were the following: Charles H. Goostree, the said discharged employee; A. J. Baird, president of Respond- ent corporation, L G. McLain, its personnel director; Russell Williams, its general plant manager; and Stanley H. Estes, its pressroom general foreman. Each of these witnesses was on the stand before me a substantial period of time and I there- fore had opportunity to observe his conduct and demeanor while testifying, to take note of his evident characteristics, and to form an opinion therefrom as to his knowl- edge and capacity and his fairness and frankness. It is my opinion that neither any of these witnesses nor any others who testified at either hearing stated any facts falsely. Goostree, of course, was young, inexperienced, and far from close or prac- tical in his thinking as abundantly evidenced by his testimony. The above-named management officials of Respondent were experienced businessmen They did appear to be much annoyed and harassed by this proceeding, but notwithstanding, I find their testimony is credible in all respects. While they, each and all, have sub- stantial interest in the outcome of the case, each testified from the standpoint of a responsible and conservative businessman and I do not believe the remarkably well restrained but visible vexation of these witnesses because of this litigation can be properly criticized or their testimony discounted because of it. Nor can the union members who testified favorably as to Goostree's ability as a flyboy be accused of not stating the truth. Upon the whole record it appears to me that Goostree's loose assumptions of facts and his failure to fairly evaluate the invalidity and unfairness of his alleged position of permanent employment has given his former employer's management a wholly unjustified and considerable amount of grief and trouble. It is only human nature to resent what is believed to be ingratitude as the Respondent's witnesses evidently did Goostree's conduct here. And in my opinion Goostree under the admitted cir- cumstances showed an extremely unappreciative disposition toward Respondent in this case. This was either purposely, or as I am more charitably inclined to believe from his rather nonchalant attitude, largely out of ignorance. It is contrary to an equitable and fair viewpoint, however, that a young man who had been so con- siderately treated by his employer and who was so strongly warned that he was voluntarily leaving a steady job he had been carefully trained in for several months for one which would shortly end, should then unreasonably and stubbornly insist that his employer should be penalized for his discharge, even although his employ- ment actually exceeded the estimated period of his extra employment that he him- self was willing to gamble upon when he took the short time job. I recognize Goostree as a raw, callow, and unsophisticated rural youth and I am therefore not 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unduly critical of him. But certainly without his insistence and willing coopera- tion neither this case nor the representation proceeding would or could have been brought or maintained by the General Counsel, whatever position the Union took in the matter. C. Goostree's employment history in general Charles H. Goostree, the alleged discriminatee, according to his testimony at the June hearing and also his application for employment, Employer's Exhibit No. 5-A, introduced in evidence thereat, was born July 21, 1934. He was therefore just past 18 when he began to work for Respondent and he did not become 19 years of age until July 21, 1953, some 3 weeks after his employment by Respondent had finally terminated. His application for employment showed him to be 6 feet 1 inch in height, and both this document and Employer's Exhibit No. 5-E, his X-ray examination report, indicated that he had no physical disabilities, his hobby being baseball. I carefully observed and heard him testify at the December hearing, although for only about 20 minutes. He was a tall, lanky Kentucky youth, rather awkward and somewhat lackadaisical in demeanor and speech, stubbornly inclined, but quite honest appearing. His employment record showed him to be unmarried and that he was a boarder. And from my observation of him and my careful analysis of all his testimony I am definitely impressed that he testified at these two hearings with the intent to insist upon his position but that he made an effort not to transcend the strict bounds of veracity, as hereinafter demonstrated by several verbatim quota- tions from the record of his testimony. He was very vague and uncertain on important matters and inclined to draw hasty conclusions without factual bases therefor. Goostree had worked at two places prior to seeking employment at Respondent's printing plant. He stated in his application that he had worked for the Bennett Funeral Home and also for Ray's Pool Room, both at Madisonville, Kentucky, which place is about 100 miles northwest of Nashville. He had also had some high school printshop training. Goostree's employment record with Respondent is not in dispute except as to the alleged temporary or permanent character of his second period of employment as a "flyboy" in the pressroom from January 26, 1953, to July 1, 1953, with three short interim layoffs during this period due to slacking up of work, which layoffs were in common with other pressroom personnel. It is the contention of the Union that Goostree was a "permanent" employee while the Respondent contends he was a "temporary" employee. The General Counsel, while also claiming that Goostree was a "permanent employee," also contends that the distinction is immaterial to the issues here, as hereinafter discussed. 1. Employment record - The record of Goostree's employment kept by the Respondent in the appropriate blanks on his application for employment, Employer's Exhibit No. 5-A, although somewhat cramped by interlineation in a place or two, clearly and intelligibly shows as follows: Date employed Department Job Reextraror Terminated Remarks 8-14-52 ---------------- Main--------- General work Extra --------- ---------------- --------------- 9-2-52---------------- Pressroom----- Flyboy-------- Extra --------- ---------------- ---------------- 11-26-52 --------------- Shipping----__ Clerk Permanent---- 1-23-53 (New Baby) Placement 1-26-53 ---------------- Pressroom----- Flyboy-------- Extra_________ 4-9-53 --------- ---------------- 4-17-53 ---------------- Pressroom----- 3rd shift------- Extra_________ 4-21-53 -------- ---------------- 4-27-53 ---------------- Pressroom----- Istshift ------- Extra- _______ 5-1-53 --------- ---------------- 5-18-53 ---------------- Pressroom--___ 3rd shift------ Extra --------- ---------------- ---------------- Since this record was made an exhibit in the representation case in mid-June 1953, quite naturally it does not show the later date of Goostree's final termination July 1, 1953, or the admitted entry that he was not to be rehired. There is no dispute but that he was finally terminated on this date. The regularity and correctness of the entries made as above set forth in the course of business was established by L. G. BAIRD-WARD PRINTING CO., INC. 553 McLain, Respondent's personnel director, who testified that the said entries were not made by him, except one in pencil (not identified otherwise), but that such entries were made by employees in his department at about the date the information was received on which the entries were based and that they were kept regularly in the personnel file. He testified that the document had not been tampered with. The foundation while not exhaustive was quite sufficient to warrant the reception and consideration of the exhibit and the entries thereon as being correctly kept in the usual course of business although the entry of 9-2-52 looks somewhat unduly inter- polated. There is no proof in contradiction thereof, moreover, and in fact the testi- mony of qualified witnesses as to facts establishing the transactions whereon the entries were based fully corroborates the entries themselves. Furthermore, the work record of Goostree was essentially stipulated in substance up to the time of the rep- resentation hearing in mid-June 1953 2. Goostree hired on extra basis in shipping room and later the pressroom Goostree was first hired by Respondent as an "extra" laborer in its maintenance department on August 14, 1952, where he worked only until September 2 at bundling paper. A "peak period" was then developing in the pressroom, so in accordance with its custom Respondent terminated Goostree in the maintenance department and rehired him as an "extra jogger" or ' flyboy" in the pressroom, which work continued until November 26, 1952, when Goostree was terminated there to work in the ship- ping room, the extra work in the pressroom he had helped on having come to an end. 3. Goostree later permanently employed in shipping room During the period Goostree was working in the pressroom Respondent had con- tracted with an organization called the Parent's Institute to print a new magazine for it entitled, "Your New Baby." Foreman Estes had recommended Goostree for a job to fill a vacancy in the shipping room assisting a Mr. Smedly who had charge of shipping this new magazine. Goostree was reluctant to take the position although it was permanent because he claimed he wanted to again take up his high school work which he had not completed. As McLain testified: . because it was a nice possibility for him, why, I tried to show him what was the future of the shipping work, as a permanent man, and he took that [lob] in November." This was on November 26. After being investigated and approved by Respondent, Goostree was then accorded the privileges of a so-called "permanent" employee. He was so hired and entered in the Respondent's records after passing the required physical examina- tion, was given an employee identification card, and also was qualified and came under the group insurance plan which was effective on "permanent" employees. He also became entitled to accrue a regular paid vacation each year. 4. Goostree's discontent in shipping room The evidence discloses that almost from the time Goostree began to work in the shipping room he was very unhappy and desired to be transferred to a third or morn- ing shift job anywhere in the plant allegedly so he could return to school. He talked to McLain, the personnel director, repeatedly about it on numerous occasions and in a variety of places until the latter finally yielded to his importunings . McLain testified most credibly without any substantial contradiction: And then, shortly thereafter, after the Superintendent of the shipping room, after a great deal of trouble training him, breaking him in with Smedley on the job, shortly thereafter he [Goostree] came in to me on one occasion . in my office, and said he'd be certainly happy if I could find him a third shift job anywhere in the plant, that he wanted to return to his school work. At that time, I hadn't even the foggiest opening anywhere in the plant, and so told him. That pattern was repeated on several occasions, four or five times, that he'd visit the office to see me, or in the cafeteria, and see me in the hall and remind me that he was still interested in a third shift job. 5. Goostree returns to "extra flyboy" job in pressroom After Christmas McLain finally talked to Foreman Estes about taking Goostree back in the pressroom on jobs developing there but both of them testified in substance that they told Goostree they "thought it would be very foolish to leave this permanent job and take a temporary job." A short term job on a telephone directory developed 11 11 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about that time in the pressroom. McLain and Estes told Goostree about it, warning him it would not last long. McLain's testimony confirmed by Estes, was as follows: Goostree's remark was that he still wanted to get back into school and we estimated the time to be somewhere around May, some certain day in May, this particular job there was to this press work, it would most certainly come to a halt by that time. To the best of my remembrance, his [Goostree's] words were something to this effect, that he would take a gamble on what might occur after May, because by that time he could have completed pretty much what he wanted to do in the way of semester work. So Goostree on his own repeated insistence was finally transferred back to the pressroom as a "jogger" or "flyboy" on one of the rotary presses, a job which he was told would terminate most certainly sometime in May or according to Estes, even early in June. Estes, in accordance with plant personnel practice, made written requisition for Goostree by name for "temporary" employment in the pressroom as a "flyboy." So he was terminated at his steady regular employment in the shipping room and rehired as an "extra" in the pressroom at "flyboy" work. Goostree never did deny the testimony of Estes and McLain, and a careful study of Goostree's testi- mony shows no actual conflict on the proposition. Goostree "just took it for granted" he was going on a "permanent job" and admits nobody told him that he was permanently hired. He "don't remember" being warned about leaving a steady job for a short lived one, but he does not positively deny it. On direct examination, Goostree testified (parenthetical explanatory language supplied) Q. Now, how did your change back to the pressroom come about at that time? A. Well, Mr. McLain told me that he had a permanent opening, I mean, an opening in the pressroom. . Mr. McLain had a job open in the job press- room, where they print smaller stuff, and he advised me not to take it, because he said, "There's a good possibility of being laid off if you take that." But a week or two later there was an opportunity to go on third shift in the large pressroom and McLain then took Goostree in to see Estes. Goostree testified. Q. I would like you to remember, in as much detail as possible-it's im- portant-the exact words that were used at the time you spoke to Mr Estes in January, just before you were moved. A. Well, I don't remember. Q Now, in January sometime, roughly between the 18th and 28th, Mr. Estes was the one you spoke to? A. Yes, sir. Mr. McLain took me down there to the pressroom, and he said Mr. Estes wanted to talk to me about taking a job in the pressroom. [McLain] come down to the shipping room, and Mr. Estes said that-I asked him about the job being permanent, and he said, "I'll have to wait until we get through with that telephone job before I could say whether it would be tempo- rary or permanent" . . . He said he had a job open, and I was-he said I was the first one in line to have a choice of it. Q. And did he explain what he meant by "the first one in line?" Seniority, or something of the sort? A. I guess it was seniority. * * * * * * * A. I asked him would it be permanent or temporary, and he said he'd have to wait until they got through with the telephone book Well, if I remember correctly, he said it would be about six weeks . Well, Mr. McLain and I started back up to the shipping room, and I asked him about how come Mr. Estes didn't know it would be permanent. I knew Don [Templeton] had had that wreck . Mr. McLain . told me he [Templeton, who had been a "flyboy"] had to quit on account of the doctor's advice not to pick up any weight. I asked him about that and he said, "I wouldn't worry about being laid off. Templeton was permanent; we'll have to have someone to take his place " Q. So then, actually he did tell you specifically one way or another that the job was temporary or permanent? A. No, sir. It was my understanding, though, that the job would be permanent. * * * * * * * Q. When did the telephone job end? * * * * * * * BAIRD-WARD PRINTING CO., INC. 555 A. I don't remember just when it ended . . . I wasn't on the press they were running that telephone job on. On cross-examination he testified. Q. You made the statement in your direct examination that someone told you that you would take Templeton's place, is that correct' A. That's right. Q. Who told you? A. Mr. McLain. Q. What did he say9 A. Well, I asked about did he figure there was any chance of my getting laid off; he said, "I wouldn't worry about it," he said, "Templeton was per- manent, and someone has to take his place." I just took it for granted, because I took his job. Q. He didn't.tell you- A. He said somebody was going to. Q. He said somebody was going to, at that time, but he didn't say. "Goostree, you're taking Templeton's place," did he? A. No, but I just figured- * * * * * Q. Didn't they advise you against transferring out of the shipping room and out of a permanent job? A. When I took that job on [rotary press number] 41, I think McLain said that Estes was counting on me taking it, instead of advising me against it. Q. Didn't you have any conversation with Mr. Estes at that time? A. Well, I went right over there and talked to him that moaning. Q. And at that time, didn't he advise you that it was foolish to take a tem- porary job when you had permanent status with the Company? A. If he did, I don't remember it Goostree admitted however, that early in January, some 2 weeks prior to this time, on the occasion when no third-shift job was available, Estes "did advise me against giving up a permanent position and trying a temporary one." * * * * * * * Q. And subsequent to those conversations [about Goostree returning to school] did he [McLain] together with Mr. Estes, effect a change of status for you, so that you were on the third shift, instead of on the first shift? A. Well, you might say that, but I figured it was because Don had that wreck. Q. But that's what you thought. Did anyone tell you that the reason you were being transferred was because Don Templeton had had that wreck? A. Well, they had to have somebody on that shift. Q. Did anyone tell you that the reason you were being transferred was be- cause Don Templeton had a wreck? A. No, sir. It will be noted that Goostree definitely avoided giving positive testimony he was hired "permanently" and no other witness testified to any such fact. But Re- spondent's witnesses showed without question that one Johnson was made a per- manent employee in Don Templeton's place and Goostree was not promised a permanent job in the pressroom. From a careful analysis of the foregoing and all other parts of Goostree's testimony it definitely appears that General Counsel has not proved by a preponderance of the evidence that anyone told Goostree he would have a "permanent" job. Goostree merely "took it for granted" and "figured it was because" or took a "guess." Solemn legal judgments cannot be founded and determinations cannot be based on such rank conjecture and speculation, especially since there is definite and positive credible evidence to the contrary. Certainly the Respondent Employer is not estopped to deny that Goostree was not "permanently" employed when his own testimony on the point is so vague, uncertain, and flimsy and his change of jobs was at his own repeated insistence. There is positive testi- mony there was no rehiring custom and there was no seniority as to extra or tem- porary employees such as Goostree was. 6. Goostree's alleged desire to return to school It had been Goostree's alleged desire to leave his permanent job in the shipping room and to go to work on some third or night shift anywhere in the plant, not necessarily in the pressroom, so that he could continue his education. Personnel 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director McLain understood he was going to East High School in Nashville. Even at the calculated risk of losing the certain and permanent job he already had for any temporary job at night, this reason therefor as given by Goostree standing alone would indicate that Goostree really had a most praiseworthy ambition to better himself. But when all the evidence on the subject is carefully considered, it is quite revealing. Goostree appeared to be as indefinite and uncertain in respect to his further educational advancement as in respect to his alleged "permanent" job that he "just took . . . for granted." The cross-examination of Goostree discloses the following: Q. . . . the reason that you gave Mr. McLain for working this transfer was so that you could go back to school? A. That's right. Q. And where are you in school? A. At Chicago-correspondence course . American School. Q. And you considered taking a correspondence course going back to school? A. That's what I figured it was when I started. * * * * * * * Q. . . Does the correspondence school tell you at which hours you are to study their courses? A. No, sir, they don't. * * * * * * * Q. Did you tell Mr. McLain that the school you were going back to was a correspondence school? A. Well, at that time . I wasn't thinking of taking a correspondence; I was thinking of going to East High. Q. . East High School, a public high school in the city of Nashville? A. That's right. Q. And did you at any time tell him where you were intending to go, and what you were intending to do? A. Yes, I did. Q . . . . What did he say when you told him that? A . . . He said if he was me, he'd do it. Q. He advised you to go back to school? A. That's right. Q. And then, after having told Mr. McLain you thought you'd go back to East High School, did you, in fact, after your transfer, go back to school? A. Well, I went to that correspondence course. Q. But you did not go to East- A. Well, I tell you why. There was a girl I know goes out there-she attends there, and I figure she was in a position to know what she was talking about. She said-what I told Mr. McLain 1 was going to do was work the third shift, and go back to school and work half a day, then come home and go to bed- she said, "You have to be a senior to do that." Q. So you decided not to go? A. Not to go to East. That was after I was put back in the pressroom. It is clear from the foregoing evidence how irresponsible and erratic a boy Goos- tree really was. After at great effort having induced the employer to transfer him from a permanent daytime job to an extra short time third shift or night job upon his solemnly declared ground that he could then go to school and finish one semester of high school, Goostree quickly without good reason abandoned his plans to do so. On the night shift after January 26, he surely had the daytime available so that he could have gone at once to East High School and arranged his enrollment and courses for the ensuing semester but he was so indefinite and weak in his pur- pose that he was easily deterred therefrom by the chance remarks of a high school girl who, so far as the evidence discloses, had no special knowledge on the subject. In this situation Goostree "figured she was in a position to know what she was talking about," just as he had assumed and "took it for granted" that he would get a permanent job in the pressroom without a promise from the employer's manage- ment. Goostree did not even testify whether or not he had completed any corre- spondence school course. It is therefore not surprising that the management decided he was mentally too immature and of too unreliable a nature to develop into a pressman. I infer it would not require much time for skilled supervisors to observe such weak and vacillating personal traits and characteristics. I take official notice that rotary BAIRD-WARD PRINTING CO., INC. 557 presses are intricate and expensive machinery and require skill and knowledge to operate as well as constant and strict attention to business on the part of the members of their operating crews. They are not places where management can safely place aimless lads who vaguely take things for granted just as they wish them to be and who definitely lack the purposeful drive necessary to carry important matters to their conclusion . I credit the testimony of foreman Estes that Goostree "didn't have the ambition or ability to become a pressman " as hereinafter more fully discussed. He saw Goostree for a short time nearly every day and as a prac- tical pressman of nearly 30 years' experience was certainly qualified to determine the qualities of those under him. And Goostree was not passionately interested even in being a "flyboy." All that he wanted was "a third shift job anywhere in the plant" as McLain testified he had stated, and which Goostree in no manner denied. He seemed not to comprehend that he had taken up much valuable time of his supervisors with his dissatisfactions and plans, nor to appreciate that the management went out of its way to accommodate him by finding a job to fit his peculiar situation , which was not treated seriously by him after he had been so accommodated. He certainly lacked a mature judgment. D. Goostree's discharge and alleged refusal of Respondent to reinstate him Goostree's extra employment as "flyboy" the second time ended July 1, 1953. Since he had understood when he again took the job of "flyboy" in January 1953 that it was his own choice, that it was "third shift" work, and that he could reason- ably expect to work in the pressroom no longer than sometime in May or early June and was perfectly willing to take his chance thereon, Goostree had no cause for complaint. He had been willing to work there or anywhere else in the plant if he could only work at night. Even reduced by the 3 short periods of layoff in the spring totalling less than 3 weeks he still had enjoyed employment somewhat longer than he originally planned for. And he was about the last extra "flyboy" on that job who was let out by Respondent. There is no evidence that he insisted or even claimed at that precise time that he was wrongfully discharged or that he was entitled to be rehired or to have seniority in any rehiring of "flyboys." He had another job elsewhere on his mind, apparently. He returned to the plant a week or a week and a half later, which according to his own testimony was "To get a letter of recommendation . . in case I had a chance to -get another job." He asked McLain and Estes for such recommendation, "McLain wrote it, his secretary typed it, and Mr. Estes signed it . I talked to him [Estes] about going back to work and he said I didn't have enough education, said it takes a man with an education more than the tenth grade to be a pressman . . . I don't recall all of it [the conversa- tion]; he said a few other things." (Parenthetical matter supplied.) Although Goostree then did not expressly insist on being reemployed , Respondent's contention that there was no express request for reinstatement is not well taken nor is there much, if any, merit to its legal point made that any request for reinstate- ment would have been invalid as the employer then had no work available. It is conceded other "flyboys" actually were employed by Respondent about July 13 and a little later. Under the circumstances of this case it was not necessary, however, to reemploy Goostree in view of the employer's policy adopted some two years before that "flyboys" would not be retained who showed no particular promise, which matter will be covered later. If Goostree had been unlawfully discharged on July 1, 1953, it would have been entirely unnecessary to prove that he expressly requested reinstatement as the Employer 's stated position and policy indicates the futility of such a request. Morristown Knitting Mills, 80 NLRB 731, 732. But both the Union and General Counsel contend in effect that Goostree was dis- criminated against because of the other extra "flyboys" who were discharged three were soon reemployed, who either had been employed subsequent to Goostree or had had much shorter total employment as a "flyboy" in Respondent's printery. First of all there was no seniority policy as to "extra temporary" employees. Man- agement denied it and there is no competent proof disputing the fact. ,Ray Massey, one of the "flyboys," was rehired June 29, 1953, as a "permanent employee" on entirely different work, that is as a beginner on the flat bed of a cylinder press since he had had considerable mechanical training and experience in the Navy. Another "flyboy," Paul Raden, was also reemployed in an entirely different capacity in the composing room on August 7 as a "permanent employee." And one poor fellow, David McPherson, was reemployed as a "flyboy" in a few days after his discharge although he had had about 10 weeks ' less experience than Goostree. But McPherson was rehired because he had just suffered severe and 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tragic losses and badly needed the job. His house had burned down, his grand- mother had died of injuries received in the fire, his mother was sick, and his son was subject to military recall. None of these three situations is at all comparable to Goostree's, particularly as he had no special interest in a pressroom or other particular job. There is no showing Goostree was qualified for the first two jobs, and as to McPherson's case, if the employer's exercise of Christian kindness in this most pathetic situation was a discrimination against Goostree, some one other than this Trial Examiner must so declare such a ridiculous policy. None of these nine "flyboys" including Goostree were union members, so far as the record shows. There could be no such discrimination therefore among them for reasons which would "encourage or discourage membership in any labor organization" as required by Section 8 (a) (3) under which this case was brought. Respondent's officials Baird, Williams, McLain, and Foreman Estes gave testi- mony which clearly established that a much earlier practice of continuing to keep "flyboys" on in their employment had resulted in the Respondent keeping some such employees who never were competent or skillful enough to advance in press- work after many years of employment, and that consequently a new policy had been established when McLain became personnel director some 2 years before Goostree's discharge. This new policy was to keep only those "flyboys" in Respondent's em- ployment whom the management believed competent to advance by reason of education, technical knowledge, and aptitude so that later pressmen would always be in training. This policy was questioned both as to its existence and as to its propriety by the Union and by General Counsel, it being argued substantially that Goostree had been considered competent "as a flyboy" by President Baird on reports he had received, and in the opinion of Estes "he was satisfactory as a flyboy"; that pressmen under whom Goostree had worked, West and Choate, had referred to him as a "pretty good prospect" and a "pretty good flyboy as far as his experience" and that he "performed the duties of a flyboy satisfactorily"; that Choate had testi- fied that Goostree had plated and packed a press just as folding and tension men would do; that Weigel, the pressman who had charge of Goostree, had testified he "was a fair or average employee and that he could be prepared to take the next step up to a tension man" and was progressing quite well; that Goostree also trained other "flyboys" (although that was merely showing them how to put the printed material on skids for further movement); and that some "flyboys" had worked as such for years. Such was the evidence, it is true-but it also appears in the evidence that John B. Stevens, who was third-shift foreman while Goostree was working as a "flyboy" told Estes, "Goostree was not a future prospect," based on Stevens' observation, although he admitted in substance he might not again recognize Goostree. This could easily be quite natural since "flyboys" came and went in great number all the time and Stevens was a shortspoken man. It was frankly conceded by Respondent that Goostree reported for work regularly, was not the best nor the worst "flyboy," and had caused no difficulty in the plant by reason of any personal bad habits. But the ultimate estimated and measured opinion of management concerning Goostree's capacity, however, was put into effect by Foreman Estes who had actually discharged Goostree. Estes epitomized his reason, "he was a temporary employee who had thrown a higher permanent position down . . . he didn't have ambition to apply himself . he didn't apply himself. Foreman Stevens said "if he [Goostree] had what it takes . . . he didn't express any desire or effort." Men easily differ in their opinions and estimates of other men but from my own personal observation of Goostree and a consideration of the entire record I cannot say that this decision of management made right there on the job was wrong and that the opinion of others should be substituted therefor. It is always easy for others to give curbstone opinions to the contrary of what the responsible person must decide seriously as a matter of vital concern. And Estes was the one who was responsible for the pressroom and its future pressmen. He appeared to be a reasonable and fair man of much experience to me and was very fair to Goostree. Among other reasons for Goostree's discharge, it was also asserted by Respondent, that he did not have a high school education. This policy cannot be justly criticized merely because neither Pressroom Foreman Estes nor Third-Shift Foreman Stevens had such an education. Estes stated that most of the pressmen and supervisors do have such an education and Stevens aptly said his own lack of education was com- pensated for by "lots of experience." Both Estes and Stevens were mature men who had evidently learned the pressmen's trade the hard way. To criticize the man- agement's modern program of requiring greater education as a basis for craft employment and training is to decry that trend toward increasingly higher stand- BAIRD-WARD PRINTING CO., INC. 559 ards that exists in all trades, crafts, and professions today. If a beginning had not been instituted by those inspired souls who desired to improve their own crafts' standards the world would never have made much progress since the dark ages. Since Goostree never actually headed toward the high school , the supervisory per- sonnel were entitled to form an adverse judgment as to his real interest in a better education as well as to judge his lack of initiative in performance. Since there is competent proof that there was not any existing general custom binding the Respondent to continue "extra flyboys" in its employment or to recall them it is wholly immaterial by what nomenclature , "temporary" or "permanent" or otherwise, that Goostree was denominated in the employer's records. Respondent certainly had the lawful right of discharge as one of its prerogatives of management which the Board cannot arbitrarily usurp. It is well settled that "The Act does not interfere with the normal exercise of the right of the employer to select employees or to discharge them . The Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons" than those denounced by the Act. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45-46; N. L. R. B. V. Fansteel Corp., 306 U. S. 240, 252-258; Auto Workers V. Wisconsin Board, 336 U. S. 245, 260-263; and N. L. R. B. v. Electrical Workers, 346 U. S. 464, 474. Respondent could hire and rehire such "flyboys" as he chose as well as discharge them for normal reasons. In the very recent Packing House Workers decision , post, it is held by the Court of Appeals for the Eighth Circuit, 210 F. 2d 325, 329 The jurisdiction of the Board is a limited one and it cannot concern itself with the management of the business of employers nor with the matter of discharges of employees unless such discharges are prompted by union activities or affili- ations of the employees. If an employee is wrongfully discharged by his em- ployer he must seek recourse in a court of law unless the discharge be for the union activities or affiliations of the employee . . . . In American Smelting and-Refining Co. v. N. L. R. B. . . . it was said: The Act gives the Board no supervisory powers over the conduct of a business, nor may it concern itself with the question of discrimination or wrongful discharge or other improper treatment of an employee, unless such acts were prompted by the employee's union activities or affiliations. The burden of proof on that issue rested upon the Board to show by sub- stantial evidence that the employee was discharged because of such activi- ties or affiliations. It is further argued that discrimination is shown toward Goostree because Estes consulted Mr. Doesburg, the labor relations counsel of Respondent , about what should be done with Goostree when one of the spring slack periods came up. Does- burg most properly told Estes in substance to avoid any difficulty by keeping Goostree at work until the end of the peak period which would end the latter part of June. This was exactly in keeping with the morals of the situation as the "peak period" work had been estimated to end at about that time by Estes in his advice to Goos- tree not to take the job, although Goostree had no legal right to continue on the job until that time under Tennessee law. He could quit any day himself. Certainly, no illegal motive can be inferred because Foreman Estes consulted the Company's attorney. This is the United States, not a land of dictatorship, and the exercise of the right to consult and employ counsel has not ever been held by our courts to infer guilt, even in cases involving the most heinous crimes. E. There is no evidence of Goostree's alleged union membership or activity Respondent's brief strongly challenges the proof as to Goostree's alleged union membership and activities and concerted activities and says that "the record is barren of any evidence" thereof. Neither the brief of General Counsel nor the two briefs submitted by the Union delineate any such evidence . I have most painstakingly and repeatedly searched the entire record of over 600 pages and all the exhibits for any competent evidence which directly proves these material allegations , but all in vain. The only places in the record where the name of Goostree is linked at all with the Union are two brief excerpts from the testimony at the hearing on June 16, 1953, in the representation proceeding. The first excerpt is from the direct examination of A. J. Baird, Respondent's presi- dent, which is as follows (parenthetical explanatory language added) : Q. Did you at that time [of the election ] have any knowledge as to whether or not Mr. Goostree was or was not a member of our [sic ] labor union? 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I had absolutely no knowledge, not any suspicion one way or the other; and it wouldn't have made any difference if I had, and I'd still have challenged, because it wasn't in accordance with the agreement we had (to permit only "permanent" employees in the proposed unit to vote). There is no question but what Baird knew there was union activity going on in the plant in January 1953. He even knew of such general activity in the plant dating as far back as about 1936 . It was not the Respondent's policy to discriminate against union members . Pressman Lauren J. Weigel was employed even though the em- ployer knew he belonged to the Union. Baird did not privately discuss his wishes about the election with Weigel but agreed with Weigel the employees should decide the issue. The Employer's published opposition was fair and legal and has invoked no charge or complaint on that score . Williams, Respondent's plant manager, also knew of the union activity upon receipt of a letter from the Union requesting recog- nition, dated January 23, 1953. But there is no evidence that any of Respond- ent's officials ever were informed that Goostree held any union membership or had engaged in any such union activity. Nor is there any proof that he actually in fact was a union member or had engaged in any union activity . The second excerpt from the testimony is from the cross-examination of L. B. McLain, Respondent's person- nel director at the administrative hearing in June, which is as follows: Q. (By Mr. MCLELLAN for the Union) : When did you first know that Goos- tree had signed a Union card? A. Didn't know he'd signed one. Q. Didn't know it? A. No. Q. When did it first come to your attention that he was a member of the Union? A. Didn't even know it. I'm glad to know it. In the practice of the law it is one of the time worn jests of trial lawyers to sug- gest that opposing counsel who lead their own witnesses by suggestive questions be sworn to testify . But of course the foregoing inquiries made by counsel of McLain which assumed unproved, material, controverted facts were made on the cross-exam- ination of McLain as an opposition witness. But the candid answers of the witness in the utter absence of any objections by counsel for Respondent admitted no such fact. And it is well established that the proof of facts cannot be inferred from the unsworn questions themselves. See Anno. 100 A. L. R. 1070-1071; 70 C. J. 546, footnotes 24, 25. This is particularly true where the questions improperly assume and state as true, controverted facts which are not yet proved. This type of mislead- ing questions even on cross-examination has been frequently and vigorously con- demned by the authorities . See Wigmore on Evidence, 3rd Ed., Vol. III, Sec. 780, pp. 135-136 and numerous cases cited in the footnotes ; 58 Am. Jur. 316-317, Wit- nesses, Sec. 566; Anno. 100 A. L. R. 1067; 70 C. J. 545-547. And even when such an assumptive question has been affirmatively answered without objection made to either the question or its answer, it has been held that even together they do not constitute evidence of the fact assumed . In Kirchman v. Pitt Pub. Co., 318 Pa. 570, 178 A. L. R. 1062, it was held in an action for malicious prosecution, in which a material issue was as to whether the person making the charge was acting on the authority of his employer, that where an affirmative answer was given to a question substantially asking if defendant employer 's circulation manager had not said his employer, the publishing company, had started the prose- cution, that the question and answer did not constitute evidence of the fact assumed, the court saying: "The question is open to condemnation and even though it stands in the record unobjected to no court with due regard for the proprieties of judicial procedure and the just end of procedure would permit such a `catch ' question with its answer to constitute the chief or sole support of a verdict." Goostree was on the witness stand for perhaps 20 minutes at the hearing before me in December 1953 , but had been repeatedly examined and cross-examined at much more considerable length at the administrative hearing the preceding June. He himself would be the best informed person as to his union membership and activity, and since neither he nor any other person testified that Goostree held such membership or was active in the union 's affairs, the reasonable inference arises that he was not . He certainly was neither an adverse , nor even a reluctant, wit- ness as to the Union or General Counsel . He was not asked concerning, and never volunteered any evidence upon , the subjects of his alleged union membership and activities. While not a party to this proceeding he was certainly greatly interested in the outcome at it might affect his private rights. Under these circumstances even without considering the extensive and repeated search which I have made vainly BAIRD-WARD PRINTING CO., INC. 561 of the record to find any factual bases for interferences as to such allegations, I am fully warranted in applying the rule that "when the party on whom rests the bur- den of evidence as to a particular fact has the evidence within his control and withholds it, the presumption is that such evidence is against his interest and in- sistence." N. L. R. B. v. Ohio Calcium Co., 133 F. 2d721,727 (C. A. 6). Although direct positive evidence was lacking, I nevertheless carefully examined the record, and after full and fair consideration thereof I can find no evidence what- ever upon which any such inferences could ever be substantially based or sustain the burden of proof on that issue. I must and do therefore conclude there is no evidence whatever of Goostree's union membership or activity nor any fair inference thereof. And unless the fact that Goostree had voted at the representation election on March 10, 1953, be considered as such, which Respondent challenges, there is no evidence that Goos- tree ever engaged "in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection" which were also among his guaranteed rights under Section 7 of the Act. Consideration of Goostree's exercise of his voting rights and the Respondent's challenge thereto and their effect as proving concerted activities will be separately considered under the ensuing caption, "The representation election." Of course for General Counsel to prevail there must be some substantial evidence of Goostree's union membership and activity or con- certed activity and the absence of such proof is fatal to General Counsel's case. As alleged under Section 8 (a) (3) it is material to prove that the discharge of Goostree was "to encourage or discourage membership in any labor organization." Apparently recognizing that Goostree had never been a member of the Union and therefore had not engaged in its activities, General Counsel seeks to mend his hold and make the Respondent's challenge of Goostree's ballot at the representation election take the place of other proof, even if not in accordance with the allega- tions of the complaint on which the Respondent was brought to bar. General Counsel's theory as expressed in his brief is as follows: It is the position of . . . General Counsel that Goostree was discharged and subsequently refused reemployment not because his services were no longer needed but because only through such action could the Respondent uphold its position in challenging his ballot on grounds he was a temporary employee. Final separation was a necessity in sustaining the challenge for even if Goostree was a so-called "temporary" employee, he would be an eligible voter if he had a substantial interest in employment conditions because of his reasonable expectancy of reemployment . . . [citing authority]. Clearly, if it is found that the latter reason was the motivation behind the discharge, there has been a violation of Section 8 (a) (3)... . At the hearing it was more briefly stated: "Goostree's permanent layoff and the Respondent's failure to rehire him in the subsequent `peak' period, was a discrimina- tion and based solely on his challenged ballot to show that he was a temporary em- ployee, and that he had had no future expectancy as a permanent employee. Counsel for the Union contends in effect for the same legal conclusion: It is clearly established that a discharge such as we find in the instant case has no basis in Respondent's practice, but rather was an attempted substan- tiation on the part of this Respondent of its position in the representation case . . . that Goostree was a temporary employee, ineligible to vote in the election, and would be permanently terminated for one reason or another at the end of the first "peak" period. The Board cases cited by General Counsel, Puerto Rico Cement Corporation, 97 NLRB 382 and The Welch Grape Juice Company, 96 NLRB 214, do state the rule of eligibility of "temporary employee to vote to be that such an employee in order to be eligible to vote must have a substantial interest in employment con- ditions. Such conditions include having worked considerable periods of time, though intermittently for the same employer and the practice of recalling such tem- porary employees to work again and to fill permanent classification jobs with such temporary employees." I do not find these conditions obtained as to Goostree. But in any event the rule does not apply to him because he knew he was only to be employed a short time and also because it had been specially stipulated between the parties before the election that temporary employees could not vote and such an agreement seems fair and reasonable. And such agreement was approved by the Board's representative and the election carried out on that basis. It was ob- served by the other eight "extra" or temporary "flyboys." I can see no reason for the Board honoring Goostree's position when he alone of all the "flyboys" did not honor the agreement. The Board approved and acted upon the premise he was 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ineligible to vote in conducting the election by impounding the ballot . And cer- tainly on any basis the Respondent cannot be found guilty of an unfair labor prac- tice which must be premised on such a lawful act as an election challenge or it must fail altogether as more fully covered under the following caption "The rep- resentation election." The fundamental error in General Counsel's theory, of course, is that it abso- lutely disregards the plainly well-established material facts of the case and en- deavors to set up conjectures of discrimination from petty incidents. Goostree had no substantial interest in employment conditions . He had no reasonable expectancy of continuing employment or reemployment when he was denied the vote because he had accepted an "extra" job which he knew had no future and which would end with the special telephone job he was helping on. He knew this on January 23, 1953, when at his own insistance he was discharged from a "permanent" position in the shipping room and rehired on a purely temporary one in the pressroom. This occurred about 7 weeks before he tried to vote at the election on March 10. Nothing happened at the election or later to change that fact. And in any event General Counsel has not proved one of the material allega- tions of the complaint, that Goostree was discharged and refused reinstatement "because of his membership in, and activities on behalf of, the Union." F. The representation election Union activities began in the plant late in December 1952 to organize the employees in the pressroom. Union efforts to obtain members were intensified from and after January 5, 1953, by Larry J. Smith, the Union's International representative. On January 20, 1953, a representation petition was filed with the Board seeking certification of the Union as the representative on behalf of the Respondent's said pressroom employees as a collective-bargaining unit since the Respondent refused to recognize the Union as such representative. A stipulation for certification upon consent election pursuant to the Board 's Rules and Regulations, Series 6, as amended, effective June 3, 1952, Section 101.18 et seq., was agreed upon, however, between the Union and Respondent on February 11, 1953, with March 10 fixed as the election date. Prior to the election a tentative list of the permanent and temporary employees in the proposed bargaining unit was prepared by Respondent's payroll clerk and submitted to the respective representatives of the Board and the Union. It was agreed by all concerned that this list could be corrected by being added to, or taken from within 30 minutes before the election so that only eligible employees could vote. Goostree's name, it appears, was erroneously included among the "perma- nent" employees in the tentative list because as hereinbefore stated he had been a "permanent" employee for about 2 months from November 26, 1952, up to Jan- uary 23, 1953, in the shipping room, and his insurance as such had not yet been canceled when the payroll clerk made up the list although it was canceled later without objection by Goostree. It had been fully agreed between the representa- tives of the Board, the Union, and the Respondent that only "permanent" employees in the pressroom, including "permanent joggers" or "flyboys," were eligible to vote at the election. So all other temporary pressroom employees were properly stricken off the list by being "x'd out" by the Respondent. There is no dispute as to the foregoing facts. By error and oversight Goostree's name, however, was not stricken out on this tentative list. This fact was discovered by Respondent's president, A. J. Baird, shortly prior to the election and a new up-to-date correct list was prepared which omitted Goostree's name. The union representative and the Board's representa- tive conducting the election were promptly and properly advised within the said 30 minutes prior to the opening of the polling place in accordance with the agree- ment. Baird was instructed by the Board's representative that the appropriate procedure under these circumstances would be to challenge Goostree if he at- tended the election and attempted to vote. Goostree did present himself at the polling place and requested and was given a ballot. As already stated his right to vote had been previously excepted to by the Respondent's president on the ground that "Goostree was not eligible to vote" pur- suant to the agreement that only permanent employees could vote. The record shows the ballot was challenged at the time Goostree sought to cast it. It was then im- pounded and sealed by the Board representative. Goostree's vote, if valid and voted for the Union, would be determinative of the election since otherwise it resulted in a 37 to 37 vote, which was a loss for the Union, not being a majority of those voting at the election necessary under the Act to designate the Union as the exclusive collective- BAIRD-WARD PRINTING CO., INC. 563 bargaining agent for the said employee unit. See Section 9 (a) of the Act. If against the Union it would still be a lost election for the Union . The balloting was by secret ballot as authorized by Section 9 (c) of the Act. The impounded ballot has not yet been opened and counted since the representation proceeding is still pending before the Board. There is no testimony by Goostree as to how he voted. He was as silent as he was on his alleged union membership and activity . The prior .exception to his voting was properly made to his eligibility only and there is no evidence that there was any other ground of challenge when he voted. The Trial Examiner cannot know or make a finding as to how he voted without substantial evidence thereon and cannot infer from the mere fact that Respondent exercised its right at the election to challenge Goostree's ballot because he was not an eligible voter that Respondent has therefore violated Goostree's rights under Section 7 of the Act by discriminatorily discharging him contrary to its Section 8 (a) (3) and by interfering with , restraining, or coercing him contrary to its Section 8 (a) (1). Certainly without more basic evi- dence than this fact no inference of such unlawful conduct can arise as is argued by General Counsel. The employer cannot be so penalized for properly exercising his privilege of challenge at an election under Section 101.18 (a) (2) of the Board's said current Rules and Regulations which provide: The Board agents and authorized observers have the privilege of challenging for reasonable cause employees who apply for ballots. "We do not believe that anti-union motivation , contrary to the provisions of the Act, can be based upon conduct which that Act recognizes as permissable." N. L. R. B. v. Superior Co., 199 F. 2d 39,43 (C. A. 6). Assuming, without deciding, that in voting at the election Goostree engaged in a "concerted activity," there is still nothing upon which an inference of Respondent's antiunion motive can rest just because the Respondent lawfully objected to a clearly unqualified voter casting his ballot. There is certainly no charge or allegation that under Section 8 (a) (1) Respondent unlawfully interfered in any way with the elec- tion or with Goostree's right to vote thereat and 1 find no evidence of any such action by Respondent. G. The representation proceeding The representation proceeding has been pending in some phase or other nearly ever since the election which was held on March 10, 1953, now more than a year ago. At this writing the Board has not yet decided it and this Intermediate Report most properly shall not do so. The pertinent dates of such proceeding have been indicated under the preceding caption, "A. Brief chronology of events ." Since two of the issues involved in that proceeding are definitely not involved here they shall be men- tioned but briefly, ( 1) that the Respondent unlawfully influenced the outcome of the election by granting a general wage increase and (2) by liberalizing its vacation plan for employees . The third issue that of Goostree 's eligibility to vote at the election is not a legal issue here, only background evidence . But since it is the contention of the Union that Goostree was a "permanent " employee and the Respondent contends to the contrary that he was only a "temporary" employee, such matter will now be discussed. H. Respondent authorized to discharge Goostree according to Tennessee law General Counsel in his brief urges "that it is wholly irrelevant whether Goostree had `permanent' or `temporary' status as an employee within Respondentl 's] termi- nology." While the distinction is not only important , but is apparently absolutely vital to the third issue in the representation proceedings, it plays a somewhat dif- ferent part in the instant complaint case. It is evidentiary only but must be con- sidered as a part of the whole recoid in determining whether or not the discharge of Goostree was discriminatory or was for " normal reasons." It is quite true that the technical legal status of the employment, whether formal or informal, and whether "permanent" or "temporary," does not per se control a fact finding of discriminatory discharge or the contrary. In ultimate legal con- templation it makes no difference . In N. L R. B. v. Waterman Steamship Corp., 309 U. S. 206, 207, 218, 219, it was so held in interpreting Section 8 ( 1) and ( 3), now Section 8 (a) (1) and (3) of the Act: In words of the Act, an employer cannot terminate his employees' "tenure of employment or any term or condition of employment" because of union activity or affiliation. These words are not limited so as to outlaw discrimination only where there is in existence a formal contract or relation of employment between 334811---j55-vol. 109-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer and employee. They embrace, as well, all elements of the employ- ment relationship which in fact customarily attend employment and with respect to which an employer's discrimination may as readily be the means of interfering with employees' right of self-organization as if these elements were precise terms of a written contract of employment. The Act, as has been said, recognizes the employer's right to terminate employment for normal reasons. No obstacle of legal principle barred the Board from finding that there was, even after the ships were temporarily laid up, a relationship of employment or tenure be- tween the Waterman Company and its men. That there may he a'tenure or term of employment determinable at will is a recognized principle of law. For the purpose of the Act, it is immaterial that employment is at will and termi- nable at any time by either party. A large part of all industrial employment is of this nature. For illustration, factory workers are customarily employed at will, without obligation of employer or employed to continue the relationship when the day's work is done; or, if there is an agreement fixing salary or wages per unit of service, at so much per day, week or month, there may be an indefinite employment terminable by either party at the end of any unit period. But the Court points out a situation in the case wherein the continuing nature of the employment due to custom became very important in deciding whether the discharge was discriminatory or not. The opinion continues: But when such employees are customarily continued in their employment with recognition of their preferential claims to their jobs, it cannot be doubted that their wholesale discharge at the end of the day or other unit period, in order to favor one union over another, would be discrimination in regard to the "tenure" or "condition" of their employment in violation of the Act. And employees under such tenure of employment as these seamen were, have a right guaranteed by the Act that they will not be dismissed because of affiliation with a par- ticular union. The Supreme Court then proceeded to determine that there was substantial evidence to support the findings of the Board that the respondent's ships' crews had by long- recognized custom continuing tenure of employment entitling them to re-sign for future voyages notwithstanding the expiration of their shipping articles, unless such employees were discharged for cause. So in the case at bar had Respondent held out continuing employment to Goostree or if it had had a general current custom of always recalling extra "flyboys" to fill new extra jobs or to fill permanent positions light might be shed on the Respondent's alleged discriminatory intentions, that is if Goostree had been the only available former "flyboy" and had actual seniority rights. But the converse is true and the facts as I find them bear out the Respondent's right to discharge Goostree and its right to rehire other former flyboys under special situations. Goostree was told in January that his work would only last until May or June when it was contemplated the telephone directory job in hand would end. The employer owed him no further moral obligation and, of course, legally could always have discharged him. Since the length of his service had been so limited at the time he was hired for this "extra" job, the election which occurred 7 weeks later had no magic power to change the prior understanding, whether Goostree voted one way or another or refrained from voting. In the Waterman Steamship Co. case the footnote (309 U. S., p. 219, footnote 11) which supports the recognized principle that there may be a tenure or term of em- ployment at will, cites a number of Alabama cases since the case arose in the Fifth Circuit at Mobile, Alabama, where the ships were in drydock, and the status and tenure of the employees involved was a question of Alabama State law. In the case at bar, however, the employment was at Nashville, Tennessee. "It has been held that a contract of employment is governed a,, to its construction and effect . . . by the law of the place where the contract was made." 56 C. J. S. 63, footnote 93, citing Moore v. Illinois Cent. R Co., 136 F. 2d 412 (C. C. A. 5, Miss.) certiorari denied 320 U. S. 771, and Helfer v. Corona Products, 127 F. 2d 612 (C. C. A. 8). The law of Tennessee governing the contract of employment between Respondent and Goostree follows the general rule in this country that an indefinite hiring is one at will, terminable at any time by either party, even where the employer prom- ises the employee permanent employment for his satisfactory work. In Savage v. Spur Distributing Co., Inc., 33 Tenn. App. 27, 228 S. W. 2d 122, 124, certiorari denied by Supreme Court of Tennessee, 228 S. W. 2d 122, in denying an employee damages for alleged breach of contract of employment the applicable law is stated by the Court of Appeals for the State of Tennessee as follows: We think there was no evidence of any breach of contract. There was no contract for employment for any definite time. It was an indefinite hiring, BAIRD-WARD PRINTING CO., INC. 565 merely a promise by defendant to employ plaintiff permanently as long as he did the work satisfactorily. But there was no counter-promise by him to work for it for any length of time. He was free to quit any time-to accept other employment whenever he chose. It is a general principle that unless both parties are bound neither is bound. Canton Cotton Mills v. Bowman Over- all Co., 149 Tenn. 18, 257 S. W. 398; Combs v. Standard Oil Co., 166 Tenn. 88, 93, 59 S. W. 2d 525; other cases cited in Annotation, 135 A. L. R. 675. The general rule in the United States is that such an indefinite hiring is a hiring at the will of both parties and may be terminated by either at any time. Combs v. Standard Oil Co., supra; American National Ins. Co. v. Jackson, 12 Tenn. App. 305, 308; cf. Earl v. Illinois Cent. R Co., 25 Tenn. App. 660, 677, 167 S. W. 2d 15, 26, certiorari denied 317 U. S. 680, 63 S. Ct. 161, 87 L. Ed. 546. Such a contract for permanent employment means nothing more than that the employment is to continue indefinitely subject to the continuing satisfaction of both parties and may be terminated at the will of either party. Combs v. Standard Oil Co., supra; for other cases see Annotation, 135 A. L. R. 706. Applying the Tennessee law to the instant case it is certain that Goostree, having made no investment in the Respondent's business and not having given any con- sideration beyond his naked promise to work for Respondent , could quit at any time. This would be mutual to the corresponding right of the employer to dis- charge him at any time for reasons not prohibited by the Act. In their primary legal aspects the rights of both employer and employee are governed by the law of the State where the employment is entered into and performed. Congress under the "commerce clause" of the Constitution of the United States certainly did not destroy such basic State law. It merely engrafted upon the basic employer-employee law of the respective States the prohibition of certain types of conduct deemed by Congress to "affect commerce." The matters Congress intended to prevent or con- trol are those acts specifically set out in the Act. "The Act on its face thus evidences the intention of Congress to exercise whatever power is constitutionally given it to regulate commerce by the adoption of measures for the prevention or control of certain specific acts-unfair labor practices-which provoke or tend to provoke strikes or labor disturbance affecting interstate commerce." N. L. R. B. V. Fainblatt et al., 306 U. S. 601, 607. See also Algoma Plywood Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 306. 1. No indirect evidence of discriminatory discharge Of course it is not necessary to produce direct evidence of discrimination or any element thereof to prove a discriminatory discharge. Circumstantial evidence is sufficient. In N. L. R. B. v. Link-Belt Company, 311 U. S. 584, 602, it is held: The Board was justified in relying on circumstantial evidence of discrim- ination and was not required to deny relief because there was no direct evi- dence that the employer knew these men two discharged employees] had joined Amalgamated [the Union] and was displeased or wanted to make an example of them. The propriety of applying the fundamental legal principle of drawing reasonable and logical deductions or inferences from the evidence is now well-established under the Act. See for example: N. L. R. B. v. English Mica Company, 195 F. 2d 986, 987 (C. A. 4), and numerous earlier Fourth Circuit cases cited thereon. F. W. Woolworth Co v. N. L R. B., 121 F. 2d 658 (C. A. 2); Jefferson Electric Co. v. N. L R. B., 102 F 2d 949 (C. A. 7); N. L. R. B. v. Highland Shoe, 119 F. 2d 218 (C. A. 1). Inherent in the principle's application is the rule, however, that there must be some substantial evidence upon which the inferences must rest. In N. L. R. B. v. Oertel Brewing Co., 197 F. 2d 59 (C. A. 6), it was clearly stated: "Of course, the evidence upon which the Board bases its decision must be substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The former Circuit Court of Appeals for the Sixth Circuit had early held under the Act that it was not bound by Board findings not supported by sub- stantial evidence. In N L. R. B v. Empire Furniture Corp, 107 F. 2d 92, 94-95 (C. A. 6), in denying the sufficiency of proof to sustain an alleged refusal to bargain, the court said: We understand the binding effect of the fact findings of the National Labor Relations Board, when such findings are supported by substantial evidence. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are not bound by findings not so supported . Washington, Virginia & Maryland Coach Company v. N. L. R. B., 301 U. S. 142, 57 S. Ct. 648, 81 L. Ed. 965; Appalachian Elec. P. Co. v. N. L. R. B., 4 Cir., 93 F. 2d 985. Substantial evidence is such relevant evidence as a reasonable mind may accept as ade- quate to support a conclusion. Consolidated Edison Co. v. N. L. R. B., 2 Cir., 95 F. 2d 390, affirmed, 305 U. S. 197, 59 S. Ct. 206, 83 L. Ed. 126. In a recent case involving the validity of an order of the Board, N. L. R. B. v. Thompson Products, 6 Cir., 97 F. 2d 13, we said, "The rule of substantial evidence is one of fundamental importance and is the dividing line between law and arbitrary power." We adhere to that view and other Circuits give approval thereto. Cupples Co. Manufacturers v. N. L. R. B., 8 Cir., 106 F. 2d 100. The decision of the Seventh Circuit Court of Appeals in the Link-Belt Company case, supra, had stated that there was no evidence that either of these employees was an "active member" of the Union. See 110 F. 2d 506, 512. But from the Board's decision, 12 NLRB 854, 874, 875, it is clear as to both employees that the evidence did show that "they had joined" the Union about 3 weeks prior to their discharge. In the case at bar in the utter absence of proof as to Goostree 's union member- ship and activity there is not sufficient evidence of other facts and circumstances from which it can be logically and fairly inferred that Goostree was a member of the Union and that he engaged in union activities and that he was discriminatorily discharged on account thereof. Extensive studies have revealed no parallel case wherein General Counsel has left the Trial Examiner to search for such a basic fact as union membership and activity like the proverbial needle in the haystack. The needle has not yielded itself up to the magnet of careful research. There are no evidentiary facts from which any union membership or activity of Goostree or discriminatory discharge can be inferred and since such proof is essential to a find- ing of either a Section 8 (a) (3) violation or its derivative Section 8 (a) (1) viola- tion as alleged herein , there is utter failure of proof in these material respects. The legal principles applicable to the situation are well established. The Court of Appeals for the Sixth Circuit has very clearly and succinctly stated the essential general principles of the law pertaining to the employer 's right of dis- charge under the Act. In N. L. R. B. v. Tennessee Coach Co., 191 F. 2d 546, 550, the following holding appears: It is the rule that the employer may hire and discharge at will , so long as the action is not based upon opposition to union activities. N. L. R. B. v. West Ohio Gas Co., 6 Cir., 172 F. 2d 685, 688; see also N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45. . . . As far as the Act goes, the em- ployer may discharge for any reason except union membership, activity, or rela- tionship. Harp v. N. L. R. B., 10 Cir., 138 F. 2d 546; and although union activity is a fact to be considered in connection with other facts upon the issue of discrimination in regard to hire and tenure of employment , an employee may be discharged for any reason not prohibited by the Act. Stonewall Cot- ton Mills, Inc. v. N. L. R. B., 5 Cir., 129 F. 2d 629. If a discharge is not arbitrarily made with a purpose, or as an excuse, to avoid the statute, it is not unlawful. Albrecht, et al. v. N. L. R. B., 7 Cir., 181 F. 2d 652. The controlling fact is what was the true reason back of the discharge. Victor Mfg. & Gasket Co. v. N. L. R. B., 7 Cir., 174 F. 2d 867. As to the principles of proof it is not sufficient for General Counsel to merely cast doubt upon the propriety of Respondent's discharge of Goostree. Conjecture and suspicion are not proof and General Counsel must establish his case by a pre- ponderance of the substantial evidence in the case that Respondent discharged Goostree to rid itself of the Union. It is elementary that the burden of proving the charges of unfair labor practices is upon the Board or the General Counsel on its behalf. Section 10 (c) of the Act; section 7 (c) of the Administrative Procedure Act; N. L. R. B. v. Deena Products Co., 195 F. 2d 330, 335 (C. A. 7), certiorari denied 344 U. S. 827. The last of many judicial pronouncements vigorously affirming this proposition of law appears to be Local 3, United Packinghouse Workers v. N. L. R. B., 210 F. 2d 325 (C. A. 8), citing a number of prior decisions, including American Smelting and Refining Co. v. N. L. R. B., 126 F 2d 680 (C. A. 8). And the United States Supreme Court long ago rejected the doctrine that a legal presumption could exist or that a fact could be established where a claim against the Government was "made only by piling inference upon inference and presump. BAIRD-WARD PRINTING CO., INC. 567 tion upon presumption." See United States v. Ross, 92 U. S. 281, 283-284, where such processes of reasoning to fix liability on the Government were said to be: . nothing more than conjectures. They are not legitimate inferences, even .to establish a fact; much less are they presumptions of law. They are in- ferences from inferences; presumptions resting on the basis of another pre- sumption. Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. This principle of the law of proof so well recognized generally in American jurisprudence is now firmly implanted in the comparatively new subject of Federal labor law. Long prior to the Act's Taft-Hartley amendments of 1947 the courts had repeatedly rejected findings of the Board which were based wholly upon in- ferences. In N. L. R. B. v. Empire Furniture Corp., supra, 107 F. 2d 92, 95, the Sixth Circuit Court of Appeals had squarely condemned such methods: By building one inference upon another, and by the simple expedient of re- jecting controverting evidence destructive of both [inferences] as not entitled to credence even though unimpeached, the Board arrived at its finding.. . We understand fully that the Board is not bound strictly by technical rules of evidence. We do not understand that this is a caveat to arbitrarily substi- tute surmise, suspicion and guess for proof. Among other numerous decisions under the Wagner Act which in one way or another condemned purely speculatory findings were the following: An inference may not be piled upon an inference to establish a fact, Interlake Iron Corp. v. N. L. R. B., 131 F. 2d 129 (C. A. 7) (Minton, C.), and N. L. R. B. v. Pick Mfg. Co, 135 F. 2d 329 (C. A. 7); the Board may not raise suspicion to status of fact or base inferences upon mere speculation, N. L. R. B. v. Sun Shipbuilding & Dry Dock Co., 135 F. 2d 15 (C. A. 3); and findings of the Board must rest on evidence, not on surmise or suspicion, N. L. R. B. v. Goodyear Tire & Rubber Co. of Alabama, 129 F. 2d 661 (C. A. 5), certiorari dismissed, 319 U. S. 776. Of course since the enactment of the Administrative Procedure Act of 1946 and of the Taft-Hartley Act in 1947, the latter adopting substantially the rules of evi- dence applicable in the Federal courts, not only the text of the Act itself, but the Congressional intent as shown by its proceedings in the 80th Congress and the force of many judicial decisions now make clear that the standard of proof required by the Act as well as by the said Administrative Procedure Act, 5 U. S. C. A. Secs. 1001, et seq., 60 Stat. 237, is that administrative findings of fact by the Board must be on the same basis as that exacted by the courts in all administrative actions subject to the Administrative Procedure Act, that is "by substantial evidence on the record considered as a whole." See Universal Camera Corp. v. N. L. R. B., 340 U. S. 474,486-490,492-494. The most recent case discussing this doctrine is Local 3, United Packinghouse Workers of America, CIO v. N. L. R. B., supra, at page 331, wherein the Court of Appeals for the Eighth Circuit in refusing to enforce a Board order reinstating certain discharged employees, and after first weighing the entire record including the employer's explanation of the reason for the discharges, held as follows: But quite aside from any proof produced by the company, a consideration of the record as a whole, in our judgment, fails to disclose any substantial evidence that the employees listed in the complaint were either discharged or refused reinstatement because of their union activities. As said by us in N. L. R. B. v. Montgomery Ward & Co., supra [157 F. 2d 4911, "Fragmen- tary and unrelated suspicions are not sufficient in substance to transform a proper exercise of discharge into an improper one." There was no direct evidence that the acts of the company complained of were prompted by the union activities of the employees nor are there any proven facts warranting such inference, and mere suspicion or conjecture can not be accepted as sub- stantial evidence. Tested by such principles it is evident that General Counsel has not established his case by a preponderance of the substantial evidence. There is no proof of any union membership or activity by Goostree as alleged. There can be no inference against Respondent because it challenged Goostree's vote because of his ineligibility to vote under the definite reasonable mutual agreement between it and the Union that no temporary employee could vote which was recognized and followed by the 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board in conducting the election. It cannot be inferred that Goostree voted for the Union since he has not so testified and his ballot is still impounded, sealed, and unread. To infer that Respondent discharged Goostree because he joined the Union and therefore voted for the Union and that therefore Respondent knew these facts just because he tried to so vote and Respondent therefore violated the Act by discriminatorily discharging Goostree is simply to travel in a circle and "piling inference upon inference" which is forbidden by law. There is no evidence of any of such facts in the record and to infer them would require psychic knowledge bordering on the supernatural. J. No inference of illegal discharge arises from Goostree having testified at Board proceeding Only one other matter remains to be considered. The fact that Goostree testi- field at considerable length for the Union at the representation hearing on June 16 and 17, 1953, about 2 weeks prior to the final termination of his employment by Respondent is entirely immaterial and cannot establish the Respondent 's unlawful discriminatory intent in discharging him under the issues as framed . One cannot speculate upon the effect such evidence might have had if there had been an allega- tion in the complaint that Goostree was discharged in violation of Section 8 (a) (4) of the Act which declares: It shall be an unfair labor practice for an employer-to discharge . . . an employee because he has . . . given testimony under this Act. This subsection of course , does not include as a necessary element that the dis- charge must have been "to encourage or discourage membership in any labor organ- ization" as required under Section 8 (a) (3) of the Act and it is quite a distinct un- fair labor practice from the latter. In N. L. R. B. v. J. I. Case Co., Bettendorf Works, 198 F. 2d 919, 923-924 (C. A. 8), certiorari denied 345 U. S. 917, it was held "We do not believe that the mere discharge of a union member, which happens to be wrongful on some other ground under the Act but which has been made without the existence or any reasonable implication of a union bias or motive, is entitled without more to be found to constitute a violation of Section 8 (a) (3)." Of course "The `testimony' referred to in that subsection [8 (a) (4)] relates to testimony given in any proceeding under the Act." N. L. R B. v. White Cross Laboratories, 160 F. 2d 75, 77 (C. A. 2). Semble: John Hancock Mutual Life Ins. Co. v. N. L. R. B., 191 F. 2d 483, 486 (C. A., D. C.). Since Congress specifically made this Section 8 (a) (4) a particular type of unfair labor practice it was the evident intent of Congress that the facts constituting such a violation should be charged and alleged as such and could not be contorted into a discriminatory discharge under Section 8 (a) (3), quite a distinct and different un- fair labor practice. The Taft-Hartley Act of 1947 expressly adopted the then exist- ing language of Section 8 (4) of the Wagner Act. Legislative History of the Labor Management Relations Act, 1947, Volume 1, p. 31. The language is so clear it was considered to be "self explanatory" during the consideration of the Wagner Act in 1935. See Legislative History of the National Labor Relations Act, Volume 2, pp. 2311, 2335 and 2488. Therefore since such a violation of Section 8 (a) (4) is not charged in the instant case or alleged in the complaint I cannot infer that the discharge of Goostree was in any way premised on his having testified at length at the Board hearing on June 15 and 16, 1953. Summary A general review of the entire record discloses that the evidence of the alleged grounds of complaint relied upon by General Counsel has not been sufficient to meet his required burden of proof. Particularly there is no direct proof of the required element of Goostree's alleged union membership and activity, nor any evidence of facts from which such matters can be fairly inferred either as to the Section 8 (a) (3) or 8 (a) (1) alleged violations. The great weight of evidence is against General Counsel on all other elements and matters involved herein and to find in his favor would require me to speculate and conjecture contrary to law. I therefore find generally against General Counsel and for the Respondent on all issues of alleged violation of the Act and recommend dismissal of the complaint in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: REPUBLIC AVIATION CORP. 569 CONCLUSIONS OF LAW 1. Baird-Ward Printing Co., Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act., 2. Nashville Printing Pressmen & Assistants' Union No. 37, International Printing Pressmen & Assistants' Union of North America, AFL, at the time of the filing of the charge and complaint herein was a labor organization within the meaning of Sec- tion 2 (5) of the Act. 3. The allegation of the complaint that Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section (a) (1) and (3) of the Act have not been sustained. [Recommendations omitted from publication.] REPUBLIC AVIATION CORP. and LOCAL 1486, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL, PETITIONER REPUBLIC AVIATION CORP. and UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL,' PETITIONER. Cases Nos. 2-RC-6341, 2-RC-6360, and 2-RC-6361. July 29,1954 Decision and Order Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Samuel Koren- blatt, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 2 involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer manufactures completed aircraft at its Long Island, New York, plants. The Petitioners seek to sever units of certain employees from the existing production and maintenance unit at these plants. The Employer and the Intervenor, which currently repre- sents the employees in the production and maintenance unit, urge their 3-year contract, now in its third year, as a bar to the petitions, on the ground that 3 years is a reasonable duration for collective- bargaining agreements in the aircraft industry, especially in the east- ern segment thereof.3 The Petitioners counter that, as the pattern or custom in the industry is for contracts of 2 years or less, the Inter- Herein referred to individually as the Carpenters. a Intervenor, Lodge 1987 , International Association of Machinists , AFL, intervened on the basis of its contract with the Employer. 3 The Intervenor further contends that such contracts are •a practice in a substantial part of the broader industry which would include the manufacture of aircraft engines and accessories , but it made no serious effort to substantiate this claim. 109 NLRB No. 89.