Artcraft Engineering & Manufacturing Co.

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other benefits, and the Employer's ultimate centralized control over labor relations. On these facts, and in view of the long history of collective bargaining on the 4-plant unit basis, we believe that the existing multi divisionpattern should be left undisturbed. a Accordingly, as the unit requested by the Petitioner is inappropriate, we shall dismiss the petition. ORDER IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. SMurray Corporation of America--Ecorse Plant, 101 NLRB 313. EIGEL JENSEN AND THOMAS N. RAMSAY, COPARTNERS, d/b/a ARTCRAFT ENGINEERING & MANUFACTURING CO. and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIS- TRICT LODGE NO. 94, LOCAL NO. 311. Case No. 21-CA- 1339. April 14, 1953 DECISION AND ORDER On February 17, 1953, Trial Examiner Herman Marx issued his Intermediate Report in the above -entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint herein be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed.: The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record inthe case, andhereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the com- i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. t The Trial Examiner erroneously sustained the Respondent 's objection to receipt in evidence of the written statement of witness Allstead at the hearing. The statement should have been admitted as evidence of a past recorded recollection. Wigmore on Evidence, Third Edition, "Past Recollection Recorded," sections 734-737; 744- 747. However, as the statement was contradictory on its face, we find that the General Counsel 's position was not prejudiced by this action. 104 NLRB No. 14. ARTCRAFT ENGINEERING & MANUFACTURING CO. 61 plaint issued herein against the Respondent, Eigel Jensen and Thomas N. Ramsay, copartners, d/b/a Artcraft Engineering & Manufacturing Co., be, and it hereby is, dismissed. Intermediate Report and Recommended Order STATEMENT OF THE CASE On February 15. 1952. International Association of Machinists, District Lodge No. 94, Local No. 311 ( referred to herein as the Union), filed a charge with the National Labor Relations Board against Artcraft Engineering & Manufacturing Co., i a copartnership consisting of Eigel Jensen and Thomas N. Ramsay , ( also referred to herein as the Respondents or the Company). Based upon the charge , the General Counsel of the National Labor Relations Board, on April 28, 1952, issued a complaint alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended (61 Stat 136-163), referred to herein as the Act. Copies of the complaint and the charge have been duly served upon the Company. In material substance , the complaint alleges that the Respondents, in violation of Section 8 (a) (1) and 8 (a) (3) of the Act, discharged Albert Rasmussen and Ora W. Moore on or about February 11, 1952, and have since failed and refused to reinstate them, for the reason that they had exercised rights guaranteed to them by the Act. The Respondents filed an answer which, in essence, denies the commission of any unfair labor practices. Pursuant to notice served upon all parties, the hearing in this proceeding was opened at Los Angeles, California, on June 16, 1952, before Howard Myers as duly designated Trial Examiner. After the introduction of some documentary evidence, but before any testimony was taken, Trial Examiner Myers granted an application, in which the General Counsel and the Respondents joined, for a continuance of the hearing to September 15, 1952. Because of the unavailability of Trial Examiner Myers for the resumption of the hearing, I was duly designated on September 9, 1952, to succeed him as Trial Examiner in this proceeding. On September 10, 1952, 1 granted an application by the Respondents to continue the hearing to September 16, 1952. Pursuant to notice duly given to all parties , the hearing was resumed on September 16, 1952, and held before me on that date and on September 17, 1952.2 The General Counsel and the Respondents were represented at the hearing by counsel, and the Union by business representatives. All parties participated in the hearing and were afforded a full opportunity to be heard , examine and cross-examine witnesses , adduce evidence, submit oral argument, and file briefs . The Respondents moved to dismiss the complaint at the close of the testimony. 3 Decision was reserved on the motion. The findings and conclusions set forth below dispose of the motion. The parties waived oral argument. The Respondents have filed a brief which has been read and considered. The General Counsel and the Union have not filed briefs. Upon the entire record, 4 and from my observation of the witnesses, I make the following: i The caption has been amended to conform to the evidence that Artcraft Engineering & Manufacturing Co. is a trade name for a copartnership consisting of Eigel Jensen and Thomas N. Ramsay. 2 The record was not closed on September 17, 1952, but held open for the receipt of a deposition, the taking of which I had ordered upon application of the General Counsel at the hearing. The General Counsel subsequently filed a motion (in the form of a letter dated October 14, 1952) for leave to withdraw his application to take the deposition. The other parties informed me that they had no objection to the motion. On October 21, 1952, I entered an order vacating the order for the deposition, and closing the record of the hearing. 3It is unnecessary to set forth other motions made at the hearing. 4The parties have filed a stipulation dated November 10. 1952, purporting to make the following corrections in the official transcript of the proceedings: Insertion of "Seeman" between the words "he" and "talked" at page 101, line 19 Substitution of the phrase "point out" for the words "find out" at page 130, line 25. Substitution of the word "record" for the word "worker" at page 192, line 19. Insertion of "not" between "does" and "recall", at page 386 , line 18 I have treated the stipulation as a motion by the parties to correct the record, and hereby order that the transcript be corrected to the extent sought by the stipulation. The transcript contains other inaccuracies, but as these do not affect any significant aspect of the evidence, I deem it unnecessary to make any additional corrections in the record. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Eigel Jensen and Thomas N. Ramsay are engagedat Los Angeles, California, as copartners under the firm name of Artcraft Engineering & Manufacturing Co., in the business of manu- facturing, selling, and distributing tools, dies, jigs, and fixtures. In the course and conduct of its business, the Company has caused, and continues to cause, large quantities of material, equipment, and supplies used in its manufacturing operations to be shipped and transported in interstate commerce from and through States other than California to its place of business in Los Angeles, California. Products manufactured by the Company at the said place of business are used in, and necessary to, the national defense effort. I find that the Respondents have been engaged, at all times material to this proceeding, in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, District Lodge No. 94. Local No. 311, admits persons employed by the Respondents to membership and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The Company maintains day and night shifts at its plant. On February 11, 1952 (the date on which Moore and Rasmussen were terminated), there were 131 production employees on the Company's payroll. These consisted of 31 machine hands, 30 diemakers, and 70 individuals described in the record as jig and fixture men. Approximately 25 of the production employees were employed on the night shift jig and fixture men and diemakers perform their work in 1 large room which for convenience of description will be referred to below as the tool and die shop. Machine hands perform their work in another area of the plant known as the machine shop. The workweek at the establishment begins on Monday and extends through Friday or Saturday. Employees are normally paid on Friday. Jensen exercises general supervision over the production processes The Company employs a superintendent named William Seeman who, subject to Jensen's supervision, directs the production operations of the plant. The superintendent directly supervises the work of the machine hands, while the jig and fixture employees and the diemakers receive their work assignments and related instructions from leadmen who in turn are subject to the super- intendent's supervision. Seeman, who began his employment with the Company on December 17. 1951, is vested with, and exercises, authority to discharge employees. B. The employment, union activity, and discharge of Rasmussen and Moore Rasmussen became a journeyman machinist in 1921. Since then he has had approximately 12 years of experience in operating planing machines, the function of which is to shape metal to specified dimensions. The Company operates a planing machine in the machine shop on both its shifts. Until sometime in August 1951, it employed a planing hand named Walter G. McKnight on the day shift. McKnight left his employment in order to settle some personal affairs in the East, telling Jensen that he would "look you up" upon his return. Rasmussen learned of the opening through an advertisement and applied to Jensen for the job. Jensen told him that it had been filled. Rasmussen was at that time in the employ of a Los Angeles concern, working on a night shift as a planing hand. He was interested in securing a day job, and that prompted his application to Jensen. Shortly after he spoke to Jensen, Rasmussen developed a skin ailment for which he began to take treatments. He received medical advice that he was allergic to cast iron, upon which he had had occasion to work as a planing hand, and that the allergy was responsible for his condition. His employer thereupon transferred him to duties which required no contact with cast iron. Noting another advertisement by the Respondents for a planing hand, Rasmussen sent Jensen a letter, dated September 8, 1951, reapplying for the job. In his letter Rasmussen expressed a preference for day work but stated that he "might consider night work," and requested Jensen to communicate with him "if interested," and if the Company had enough planing work to assure him "of steady employment." ARTCRAFT ENGINEERING & MANUFACTURING CO. 63 Jensen called at Rasmussen's home on October 25 to inform the latter that there was an opening at the plant for a planer hand . Rasmussen was not home because he was at his doctor's office receiving a treatment for his skin ailment, and Jensen left a card with a notation to the effect that there was a "day job open" at the plant, and requesting Rasmussen to call. Rasmussen telephoned Jensen that evening, and as a result of the conversation, Rasmussen came to the plant the following day, spoke to Jensen, and filled out an application for employment on a form provided for that purpose. Rasmussen began his employment on the following Monday, October 29. Thereafter, on a number of occasions during his employment, he worked on cast iron, never declining to do so when requested. Rasmussen and Jensen gave conflicting accounts of some aspects of the telephone conversa- tion and of Rasmussen's subsequent visit to the plant. Rasmussen testified that during the telephone conversation he informed Jensen that he was undergoing treatment for a skin infection, that he was allergic to cast iron, that for that reason he was doubtful whether he could accept the job offer, and that Jensen replied that the Company processed "very little, if any" cast iron and that he (Rasmussen) would not be required to work on the metal. Jensen's version is that "about all that took place over the phone" was that he told Rasmussen of the opening and that the latter agreed to come to the plant At one point in his testimony, Jensen admitted that Rasmussen told him that "he was allergic to cast iron before he was hired." However, Jensen later denied that he told Rasmussen that he would not be required to work on cast iron, and that Rasmussen mentioned his skin treatments and allergy With respect to their conversation at the plant, Jensen testified that he told Rasmussen on that occasion that "an old man" (McKnight, who formerly did the planing work on the day shift) was "on vacation" and that Rasmussen would "have to leave" if the former planer hand returned and "wanted to come back to work." Rasmussen denied that statements of that nature were made to him when he was hired, and he asserted that at various times during the course of his employment Jensen made remarks to him to the effect that work at the plant was plentiful and that he could remain as long as he desired. Jensen denied that he had made any such statements. I do not credit Jensen with respect to the indicated conflicts. It is undisputed that at the time of the telephone conversation Rasmussen was suffering from a skin allergy which he had been informed had been caused by his contact with cast iron, that his employer had transferred him to other duties to avoid the need for such a contact, and that he was under treatment for the ailment. In that setting, it is quite plausible that Rasmussen should mention his allergy to Jensen and inquire from the latter whether he would be required to work on cast iron. Jensen described a report to him by Seeman that Rasmussen had told the superintendent that he could not work on cast iron because it did not "agree with his skin." In testifying to the occasion of Seeman's report, Jensen stated: "I didn't know for sure whether it was the first day or the third day [of Rasmussen's employment]; I don't remember when it was." It may be observed that the conversation could not have occurred on "the first day or the third day" of Rasmussen's employment, since Seeman's employment did not begin until almost 2 months after Rasmussen was hired. Be that as it may, even if one assumes that the intendment of the quoted testimony was to express a lack of recollection rather than to estimate the period of the conversation with Seeman, Jensen's demeanor left me with the impression that he was lacking in frankness in describing his information concerning Rasmussen's ailment. Addi- tidnal support for this conclusion may be found in the patent self-contradiction involved in Jensen's initial admission that Rasmussen told him of the allergy before the employee was hired and Jensen's later denial that Rasmussen had mentioned the condition to him. With respect to Jensen's claim that he told Rasmussen when the latter was hired that he would be terminated in the event of McKnight's return to work, it may be borne in mind that when Rasmussen was hired, McKnight had been gone for about 2 months, if not longer, and that when McKnight left, all that he had said on the subject of his possible return to work consisted of the somewhat vague statement that he would "look you up" when he returned from the East. One may well question whether McKnight's seemingly casual remark would lead Jensen months later to make a point of telling Rasmussen that the latter would be laid off if McKnight returned In any event, it is significant that in his letter of September 9, Rasmussen specified that his application was conditioned upon the availability of "steady employment." Bearing that in mind, the fact that he left a job to accept one with the Company contributes weight to his denial that Jensen told him that his tenure would be limited by McKnight's return. Rasmussen impressed me as a credible witness, and I credit that denial, as well as his version of the telephone conversation with Jensen. Similarly, I credit Rasmussen's testimony that on various occasions during his employment, Jensen told him that work in the plant was plentiful, and that he could remain as long as he wanted to stay. About the beginning of February 1952, McKnight sent a message to Jensen, through one of the employees (unidentified in the record), that "he was back in town and ... looking for 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a job." Jensen told his informant to tell McKnight that no day job was available , but that there was an opening on the night shift . As will appear later, McKnight was hired on February 11, 1952, to replace Rasmussen on the day shift. 6 Moore has been a machinist for about 15 years and a toolmaker for approximately 5 years. He was hired by Jensen and worked on jigs and fixtures . He had a workbench in the tool and die shop, but the requirements of his work took him from time to time to other places in the shop. He received his work assignments and instructions from a leadman named Al Thiel. Moore became interested in organizing the plant 's employees and to that end, early in February 1952, asked the Union to send a representative to see him . Pursuant to Moore's request, Theodore F. Baird, a business agent of the Union , came to the plant on Wednesday or Thursday, February 6 or 7, and spoke to Moore during the latter 's lunch period at a rear entrance leading to the tool and die shop. Baird gave Moore some authorization cards to be used by employees in designating a collective - bargaining representative. During the same lunch period in which he received the cards , Moore gave 20 of them to Rasmussen in the plant.6 Within the next several days both men distributed a small number of the cards to employees , Moore passing out from 4 to 6, and Rasmussen 3. Distribution took place in the plant or its adjacent parking lot during lunch and rest periods and before and after work Baird came to the plant again during the lunch period on Monday. February 11. Standing outside the entrance where he had previously spoken to Moore, he signaled to the latter who was then engaged in eating his lunch at his workbench which is located about 50 or 60 feet from the entrance. Moore joined Baird , and the two engaged in conversation. After about 5 minutes Moore sent Baird away and returned to his lunch inside the plant. During the period while he was outside the entrance , Baird at one point or another noticed Superintendent Seeman at a lunch wagon which was parked nearby . Seeman was standing at a distance of from 10 to 20 feet from Baird . 7 According to Baird , he was talking to Moore when he noticed the superintendent . Moore, however , did not see Seeman until after he resumed his lunch. The superintendent was standing nearby when Moore noticed him, but then walked away in the direction of the office. On the occasion of his second meeting with Moore, Baird wore a union button in his lapel. The button, which is about one- half inch in diameter , contains the emblem and initials of the International Association of Machinists, with which the Union is affiliated. The initials are approximately one- sixteenth of an inch in length. Seeman and Baird were unacquainted at the time of the latter 's visits to the plant. There is no dispute, however , that Seeman noticed Baird on the second occasion , identifying the business agent at the hearing as a "stranger " whom he saw near the entrance to the tool and die shop, and asserting that it was not uncommon for individuals who were not employed at the plant to come to the entrance for one purpose or another . The superintendent agreed that he is familiar with the type of button described above , having been a member of the International Association of Machinists and having worn the emblem himself at one time, but he denied that he noticed the button on Baird or that he was then aware that Baird was a representative of the Union. Seeman also asserted that when he noticed Baird, the latter was alone. Jensen entered a denial that he saw Baird at the plant , and there is no evidence that either he or Ramsay saw the business agent at the establishment at any time. Shortly after the lunch period on February 11, the Company removed the timecards of Moore and Rasmussen from the rack, and Jensen signed terminal paychecks representing the employees ' accumulated time. Jensen- also signed a paycheck for a third employee who was discharged that day, and whose dismissal is not at issue in this proceeding. Moore noticed that his timecard had been removed , and during the course of the afternoon, spoke to Seeman about the matter , asking the latter if he "was being discharged ." Seeman replied in the affirmative. Moore then asked for the reason, and Seeman stated that he did not have 5Jensen denied that McKnight applied to him for, and was denied , reemployment about the time Rasmussen was hired. McKnight was not produced as a witness , and the findings made above, as well as at a later point in this report , with respect to communications between Jensen and McKnight concerning the latter 's reemployment , are based on Jensen 's uncon- troverted testimony. 6Rasmussen estimated that he received the cards "possibly" 10 days before his discharge on February 11. Baird based his recollection that he visited the plant on February 6 or 7 on the fact that he assumed his duties as the Union 's representative on February 4. In the light of the evidence as a whole, including the testimony of Baird and Moore, I have concluded that Rasmussen received the cards on the day of Baird 's visit described above. 7 Baird "imagine [d] " that the distance was 10 feet. Seeman estimated the distance as "15 or 20 feet." ARTCRAFT ENGINEERING & MANUFACTURING CO. 65 to have any. Moore asserted that he would insist on one , stating that he would go to the California employment service and "request a separation slip with a reason on it," and the superintendent responded that he would insert on such a slip as the reason for the dis- charge that Moore "talked too much." About midafternoon , Rasmussen also noticed that his timecard was missing, and he inquired of Jensen and Ramsay on separate occasions whether that meant his dismissal Both partners disclaimed any knowledge of the matter. 8 The employee also put a similar inquiry to Seeman, and the superintendent replied that such was the case. Rasmussen asked for the reason , and Seeman replied, "The old gent [McKnight] that used to work here wants to come back." Rasmussen inquired, "What has that got to do with ito" and pointed out that he had been working there approximately 4 months and that as far as he knew, his work had been satisfactory . Seeman shrugged his shoulders and replied that he was acting under "orders."9 Moore and Rasmussen were given their paychecks and left the plant later that day. That same afternoon Jensen spoke to McKnight on the telephone and offered the latter the opening left by Rasmussen 's discharge. McKnight accepted and reported for work. He left the Company's employ after about 3 months . The Respondents did not offer the vacancy to Rasmussen, but employed another machinist instead. Jensen and Seeman denied that they were aware of any union activity at the plant prior to the discharges, and that Moore and Rasmussen were discharged because the Company knew or believed that they had distributed authorization cards or had engaged in any other organ- izational activity. Ramsay and Thiel also entered a denial that they were aware of any such activity before Moore and Rasmussen were terminated . Seeman stated, in effect, that the decision to discharge the 2 employees was his, that he spoke to Jensen about the matter at about 8 a.m. on February 11, and that he ordered the preparation of the terminal paychecks about 2 hours later. Specifying that he discharged Moore because the employee "talked too much," Seeman testified, in substance, that during a 2 week period prior to the dismissal, he observed Moore on about 5 occasions talking during working hours at "different places" in the tool and die shop to, or in "the middleof, " smallgroups of employers of varying numbers and composition. The superintendent agreed that he did not know whether Moore's duties required him to be where he was on the occasions in question, but he asserted that in several of the instances the group "broke it up when they saw me coming." One such occasion, according to Seeman, occurred on or about the Thursday preceding Moore 's discharge. At that time as he passed the group, the superintendent testified, he told the employees , numbering 3 or 4, to "cut it out." According to Seeman, approximately 2 days later (on the Saturday before Moore was discharged), he saw Moore in "the middle" of a group of "possibly " 3 to 5 employees who were engaged in conversation. Seeman asserted that his attention was attracted to the group on that occasion because he heard a yell from the area where the several employees were standing; that he looked in that direction and "went over that way"; and that, as he did so, the group "broke it up." The last such incident, according to Seeman's testimony, occurred 8 Jensen denied that Rasmussen talked to him about the "layoff," and Ramsay entered a similar denial, asserting that he did not see Rasmussen that day. As observed elsewhere, I do not credit certain phases of Jensen's testimony, whereas Rasmussen impressed me as an objective and frank witness. Ramsay expressed the belief that he was not in the shop that day, but his demeanor reflected some uncertainty about the matter. I credit Rasmussen 's version of his conversations with Jensen and Ramsay. 9 Findings concerning the conversations with Seeman, as described above, are variously based on testimony given by Moore and Rasmussen . Seeman denied that anything was said concerning the employment service in his conversation with Moore. The superintendent's version is that he came to Moore's bench and told Moore that he was being laid off; that Moore inquired for the reason; and that he (Seeman) replied. "You talk to much." Much of Seeman's version of his conversation with Rasmussen is in accord with the latter's account. The superintendent denied, however , thathe stated that hewas under "orders ," and that Rasmussen "protested that he had been there for months ." Seeman displayed a somewhat reluctant demeanor when he gave testimonythatapparentlyseemedto him to be favorable to the General Counsel's position. Such was the case when he admitted seeing Baird at the rear entrance on February 11, and that he was familiar with the button of the international Association of Machinists . Moreover, the superintendent evinced a disposition to base his recollection on assumption rather than on fact , as when he testified that he gave Rasmussen his check in terminating the latter , but later admitted that he had no independent recollection that such was the case. I am persuaded that the versions given by Moore and Rasmussen of their respective conversations with Seeman are more reliable than the relevant testimony of the superintendent, and have made findings accordingly. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 8 or 9 o'clock on the morning of February 11, the day of Moore 's discharge. On that occasion, Seeman asserted, he saw Moore talking to 5 or 6 employees. The sense of Seeman's testimony is that he concluded that Moore 's duties did not require him to be talking to others on the occasions in question because "if they are talking about the work , there is usually only one or two, and not more." Jensen testified that "ever since (Moore) started, " theemployee did "an awful lot of talking around the shop " to "lots of fellows." He asserted that during the last month of Moore's employment, he observed Moore "several times a day " talking to others in places "where he was not supposed to be." There was no rule of silence in the shop , Jensen agreed , but, he testified, although other employees talked , they did not do so as much as Moore Jensen asserted that about 4 or 5 weeks before Moore 's discharge, he remarked to Thiel: "Don't that guy [Moore] over there ever work? You better talk to him about it." According to Jensen, Thiel replied that he had "noticed the guy talking " and would speak to him about the matter. Thiel testified that on one occasion Jensen asked him "Does Moore ever work9 " but the leadman stated that Jensen gave him no instructions to speak to Moore , and that he said nothing to Moore "about his talking." Thiel stated that he had occasion to observe Moore talking to other employees , and that "it seemed" that it occurred on more than one occasion. At a later point, Thiel asserted that he saw Moore talking "daily approximately," and that this occurred over a period of "possibly " 2 or 3 weeks. The leadman could recall only one specific incident, however , and this, according to his testimony , involved an occasion when Moore had some work at the drill press, but was talking to 1 or more individuals (the record is not clear as to the number ) about 5 feet from the press . As Thiel put it, "there seemed to be a conversation going on there." The leadman gave some contradictory testimony on the subject of Moore 's allegedly excessive talking. After testifying to Moore's participation in conversations he observed among employees , he stated that he could not recall "who the participants were in such conversations ," and he agreed that no "particular employee" engaged in them "more than anyone else." However , when asked at a subsequent point why he could identify only Moore as a participant , Thiel expalined that the conversations "seemed to be centered" around Moore, and that the latter "was doing most of the talking." Moore agreed that "groups of employees [talked] during working hours" on such matters as "some current issue," but stated that this occurred "very seldom." He said, in substance, that he had occasion to the same extent as other employees to participate in such group discussions for periods of from 3 to 5 minutes. When such conversations occurred, he testified, they would last for a few minutes "until they [ the group] realized they were taking up company time and they dispersed by themselves." Moore denied that he was ever warned by the management about talking or that he had ever been told by Jensen, Seeman, or Thiel to "break it up." There appears to be some conflict between the testimony of Jensen and that of Seeman with respect to the reason for Rasmussen 's termination , and the testimony of Jensen contains elements of self- contradiction concerning the matter . Early in his testimony, Jensen asserted that in his office on the Thursday or Friday preceding the dismissal , Seeman told him that Rasmussen should be replaced because the employee "was not a good a man as we thought he was going to (be); he left too much work on, too much spots on the work he planed, there was too much bench work on it " Nothing else was said about Rasmussen in this conversation, according to this portion of Jensen's account, and he asserted that it was on the following Monday, the day of Rasmussen 's discharge, that he told Seeman that McKnight was available for reemployment . However , at later points in his testimony , apparently referring to the same conversation but placing it in the machine shop, Jensen gave the discussion a sub- stantially different cast, testifying as follows at one place: A. Seemann told me we got some cast iron, a lot of it got to be planed, and Rasmussen don't want to plane it because he say his hands is allergic to it, and he was wearing gloves, and he said he couldn't plane cast iron. I said let him go, let's get MacKnight back again We need a man can plane anything. There is ones in the shop, we have men that was allergic to cast iron down there. The front of his hands , you know, they got sores , and you can't tell a man to work So then the next week Rasmussen was let go . That is the only reason. Seeman testified that what he told Jensen on or about the Thursday before Rasmussen's dis- charge was that there was some cast iron awaiting planing and that Rasmussen had told him on a prior occasion that he was allergic to the metal . Jensen replied, according to Seeman, that McKnight was available to replace Rasmussen . It may be noted that Seeman's testimony, unlike that of Jensen , contains no description of a complaint by him to Jensen concerning the quality of Rasmussen 's work. ARTCRAFT ENGINEERING & MANUFACTURING CO. 67 As support for its disclaimer of unlawful motivation in discharging Moore and Rasmussen, the Company adduced undisputed evidence that it has in its present employ 13 individuals who listed their union affiliations on printed application forms provided by the Company at the time they applied for work . 10 Five of the employees in question (and possibly a sixth whose phrasing is somewhat obscure) listed an affiliation with the international Association of Machinists. One of these applied for employment and listed his affiliation about 2 days before, and another several days after. Moore and Rasmussen were discharged, but the applicants were nevertheless hired. C. Concluding findings The evidence given by the Respondents' witnesses contains infirmities which reflect on the reliability of the claimed justifications for the discharges. There is patent self-contradiction in some of Jensen's testimony, and his evidence conflicts substantially at points with portions of the testimony Seeman and Thiel gave. 11 However, whatever doubts I may entertain concerning the justifications advanced, I am unable to base a conclusion on them. It is elementary that the burden of proof rests with the General Counsel. The focal question for decisionhere is whether he has sustained that burden, and not whether the Respondents have convincingly established lawful reasons for the dis- charges. For reasons set out below. I am of the opinion that the evidence adduced by the General Counsel does not preponderantly establish that the discharges were discriminatory. It is fundamental to a finding of discriminatory motivation in the discharge of an employee that the evidence must establish that "the employer knew or believed that the employee had participated in union or concerted activities" (Annual Report, National Labor Relations Board, 1951, page 163). Such evidence may, in given cases, sometimes be found in an em- ployer's pattern of antiunion animus, 12 but putting the fact of the discharges aside, "the record [in this proceeding] is singularly lacking in evidence that the [Company] was hostile to the Union or to the organizational efforts of its employees" (Farber Brothers, Inc., 94 NLRB 748). In a proper case, particularly against a background of interference with the employees ' right of self-organization , the size of a plant may aid an inference that an employer knew or believed that an employee was engaged in organizational activity , is But the Company employed 131 production employees, more than 100 of whom worked on the day shift; Moore and Rasmussen performed their duties in separate areas of the plant, each in the midst of substantial numbers of employees; and it is evident that neither the physical area of the plant nor the number of individuals employed therein is so small that one may conclude, without more, from factors of size of the establishment and the number of people employed there that the management was aware of the activities of Moore and Rasmussen. Nor may one 10 The forms, which the Company purchased from a stationer, contained the phrase "Labor Union Affiliations" followed by a blank space for the insertion of relevant information. It is undisputed that the Company has since deleted the phrase from its application blanks by striking it out. The former use of the inquiry concerning 'Labor Union Affiliations" is not alleged in the complaint as a violation of the Act, and the General Counsel does not appear to seek a finding that the inquiry violated the statute. In view of the discontinuance of the use of the phrase, and in the absence of any allegation concerning it, but without passing on the question whether a finding concerning the legality of the inquiry need be supported by an allegation, I make no finding that the former use of the phrase "Labor Union Affiliations" violated the Act 11 For reasons which will appear , it is unnecessary to elaborate in detail on the indicated inconsistencies but, among other things, it maybe noted here that Jensen contradicted himself on the question of whether Rasmussen mentioned his allergy before he was hired; that Jensen gave contradictory versions of the claimed conversation in which Seeman allegedly spoke to him about Rasmussen 's termination, at first quoting the superintendent as complaining of the quality of Rasmussen's work but later asserting that the "only reason" Rasmussen was dismissed was because , according to Seeman 's alleged report to Jensen, Rasmussen was allergic to cast iron and did not wish to work on the metal; that the "only reason" sounds a nebulous note, since Seeman admitted that Rasmussen did not refuse to work on cast iron, and there is undisputed evidence that Rasmussen actually planed such metal whenever he was required to do so; and that Thiel, who was Moore 's immediate superior and apparently in an excellent position to observe him, at least at points gave testimony which is not quite in harmony with the respective descriptions by Jensen and Seeman of Moore's alleged behavior. 12See, for example, Ozark Hardwood Company, 91 NLRB 1443; Somerville Buick, Inc.. 93 NLRB 1603; and Stationers Corporation. 96 NLRB 196. iSSee cases cited , supra, footnote 12. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reach such a conclusion from the fact , as the evidence establishes , that Jensen and Seeman passed through the machine and tool and die shops many times each day, and that Thiel was Moore 's immediate superior and performed his work in the same shop as Moore. There is no proof that any management representative saw, or was informed of, the possession or distribution of the authorization cards by Moore and Rasmussen. Any finding that the Company knew or believed that Moore and Rasmussen were engaged in organizational activities must rest on the evidence that Seeman saw Baird on the occasion of the latter's second visit to the entrance to the tool and die shop. 14 In that regard, it may be noted that Rasmussen did not speak to Baird on either of the business agent's visits to the plant, and there is no evidence ofany other contact between them , let alone knowledge of any such contact by the Company. As Seeman was unacquainted with Baird at the time of the latter 's second meeting with Moore, one would have to indulge in two speculative inferences to conclude from the fact of Baird's second visit that Seeman became aware of any interest by Moore in union organization. The first is that Seeman saw Moore and Baird together , and the second that the superintendent noted Baird 's union button. There is no dispute that Baird and the superintendent noticed each other, but the evidence does not establish that Seeman actually saw the business agent while the latter was with Moore . Seeman denies that he saw the two together . Even if one assumes, as Baird testified, that the business agent was with Moore at the time the former saw Seeman, that does not necessarily mean that Baird was with Moore when Seeman noticed Baird. Seeman's denial is given point by Moore's testimony, for the employee 's account makes it plain that he did not notice Seeman while talking to Baird. Any conclusion that Seeman saw Baird and Moore together still retains a speculative cast even if one takes into account the evidence that Seeman walked in the direction of the office soon after Baird's visit, and that Moore's timecard was taken from the rack and the employee was discharged shortly thereafter . Turning to the question whether Seeman took note of Baird's union button, it may be recalled that the button is but a half inch in diameter and that the initials on it are tiny. Whether Seemanactuallywas in a position to recognize the button would depend on a number of variables , not established by the record, such as the quality of Seeman's sight and whether Baird 's position was such at any time that the emblem came within range of the superintendent's vision. I am unable to conclude on the record as made that Seeman actually saw, let alone made out the details of, the button , notwithstanding his familiarity with the type of emblem in question. The justifications advanced for the discharges are. rendered suspect by the quality of some of the evidence adduced to support them . Suspicion is heightened by such factors, among others, as Jensen 's admission that he sent word to McKnight only a short while before the commencement of Rasmussen 's union activity that no day job was available for McKnight; the peculiar fact that, although there is no claim of misconduct against Rasmussen, the Com- pany did not lay him off at the end of the workweek preceding his discharge but waited until he began a new workweek, notifying him of his dismissal after he had worked for a few hours in the new workweek; Jensen's assurances to Rasmussen that work at the plant was plentiful and that he could remain as long as he wished ; the preparation of the paychecks almost immediately after Baird 's second visit; and the fact that the dismissals followed hard upon the distribution of the authorization cards, and within a few hours after Baird spoke to Moore on February 11. However , the law wisely forbids the substitution of a judgment based upon suspicion for one supported by the preponderant weight of the evidence . The General Counsel has failed to establish an essential ingredient of his case, and there is thus insufficient evidence that Moore and Rasmussen were discriminatorily discharged. 15 Finally, there appears to be some intimation by the General Counsel that the Company's failure to offer Rasmussen the vacancy left by McKnight's second termination , or a position on the night shift which apparently became available after Rasmussen 's discharge, constitutes evidence of a discriminatory purpose to deny him reemployment . Whatever the state of the Company's knowledge of Rasmussen 's union activities prior to his termination, it is undisputed that it had at least some knowledge of such activities a few days after his discharge (see Seeman's testimony). It may be noted that Rasmussen preferred day work and had com- municated his view to the Company before he was hired , and that he did not apply for reemploy- ment after his termination. Be that as it may, the mere fact that the Company did not offer an opening as a planer hand to Rasmussen after it admittedly gained knowledge of his union activities does not establish a discriminatory purpose to deny him reemployment. i4There is some indication in Thiel's testimony that he saw a stranger talking to Moore at the entrance in question, but the relevant evidence given by the leadman falls short of establishing that the individual he saw was Baird . and that the occasion was during either one of Baird's visits. isSee Farber Brothers, Inc., 94 NLRB 748. VIRGINIA-CAROLINA CHEMICAL CORPORATION 69 The record as made requires a recommendation that the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. International Association of Machinists, District Lodge No. 94, Local No. 311, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondents have not engaged in unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] VIRGINIA -CAROLINA CHEMICAL CORPORATION and INTER- NATIONAL ASSOCIATION OF MACHINISTS, LODGE NO. 183, AFL, Petitioner VIRGINIA-CAROLINA CHEMICAL CORPORATION andUNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, C.I.O., Petitioner. Cases Nos. 11-RC-453 (formerly 10-RC-1950) and 11-RC-454 (formerly 10-RC-1959). April 14, 1953. SUPPLEMENTAL DECISION AND ORDER On December 23, 1952, the National Labor Relations Board issued its Decision and Direction of Elections' finding, inter alia,z that the machinists and welders at the Employer's Charleston, South Carolina, plant, may each constitute a sepa- rate unit for purposes of collective bargaining. Accordingly, elections by secret ballot were conducted on January 14, 1953, under the direction and supervision of the Regional Director for the Eleventh Region. On that date, the Regional Director issued and duly served on the parties tallies of ballots. The tally for the machinists voting group showed only 1 eligible voter and he cast his vote for the Petitioner, the International Association of Machinists, Lodge No. 183, herein called the IAM. The tally for the welders group showed that of 2 eligible voters, 1 vote was cast for this Petitioner and none against. No objec- tions to the elections having been timely filed, the Regional Director, pursuant to Section 102.61 of the Board's Rules and Regulations and the Decision and Directiun of Elections, forth- with issued separate certifications of representatives to the IAM for the machinists and the welders groups. On February 23, 1953, the Employer moved to rescind the foregoing certifications on the grounds that (a) there was only 1 eligible employee in the machinists voting group, and it therefore could not constitute an appropriate bargaining unit; and (b) in the welders voting group only 1 of the eligible em- ployees voted and therefore no representative vote was cast in that election. The IAM filed a brief in opposition to this motion. 1100 NLRB No. 206. 2 The Board also found that all remaining production and maintenance employees, with specified exclusions , may constitute a separate unit . International Union of Mine, Mill & Smelter Workers, Local Union No. 863, won the election held in this group by receiving 181 out of 248 votes cast. 104 NLRB No. 16. 283230 0 - 54 - 6