The J.C. Hamilton Co.

THE J. C. HAMILTON COMPANY 737 they served notice that they proposed to process the charges filed herein before the Board, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) and (1) of the Act. 4. By such discrimination and by interfering with, restraining, and coercing its employees in exercising the rights guaranteed in Section 7 of the Act, the Respondent Company has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By Respondent Company's conduct in acceding to the untimely and premature demand of Respondent Union for the discharge of Annabell Woolen on the basis of an illegal contract executed between Respondent Company and Respondent Union, described hereinabove, all contrary to the provisions of Section 8 (a) (3) of the Act, to the end that Respondent Union could enforce its demands for excessive union dues and assessments against employees of Respondent Company; and to encourage membership in Respondent Union, the Respondent Company thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By the making of and enforcing of such demand, and causing Respondent Company to so discriminate , Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By discriminating in regard to the hire and tenure of employment of Annabell Woolen, thereby encouraging membership in the Respondent Union, and enabling the Union to require the payment of excessive dues and illegal assessments, Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 8. By causing Respondent Company to discriminate against said Annabell Woolen, as afore- said, Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] J. C. HAMILTON, J. C. HAMILTON, JR., ED. L. HAMILTON, AGNES HAMILTON, and SARA LEE MANN, CO-PARTNERS, d/b/a THE J. C. HAMILTON COMPANY and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 16-CA-528. May 5, 1953 DECISION AND ORDER On February 4, 1953, Frederick B. Parkes II issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. There- after , the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Boards, has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was t Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel [Members Houston, Murdock, and Styles]. 104 NLRB No. 84. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions* and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer , with the exception noted below: 1. We disagree with the Trial Examiner 's finding that Rogers quitting her job on August 13, 1952, amounted to a discriminatory constructive discharge. The Respondents' antip- athy to the Union, their unlawful refusal to bargain with the Union, and their knowledge as to Rogers ' interest in the Union, give reason to suspect Respondent Ed Hamilton's behavior toward Rogers. The Board, however, after examining the record carefully, concludes that her constructive discharge has not been proved by a preponderance of the evidence. The Trial Examiner points out in his Intermediate Report that although "it is not found that Rogers was a completely exemplary employee devoid of faults," with "the advent of the Union, Respondent Edward Hamilton's attitude towards Rogers became increasingly critical," implying that the harassment and abusive language was part of a plan to make her job onerous in order to get rid of her. We are not satisfied that Respondent Edward Hamilton's conduct toward Rogers was a result of his union bias and his knowledge of Rogers' membership inthe Union, but conclude that it was rather a continuation of his past conduct towards her. Crediting, as the Trial Examiner has done, all of Rogers' testimony with respect to Respondent Edward Hamilton's berating her by calling her a "dumbbell," "poor soul," and "hardhead," on one occasion in August 1952, and on another occasion in August 1952 saying, " I sometimes can't control myself, I just want to slap you off that stool," as well as her testimony with respect to his implied threat that "they were going to dispense with a lot of help and they didn't know if she ] was going to be needed or not," on August 11, 1952, upon her return from her honeymoon, and his order to her on August 13, 1952, not to talk about the Company or Union, "If you didn't [stop] I don't know what I am going to do," we never- theless cannot find that Rogers' decision to quit was motivated by these statements. Such a finding would be inconsistent with Rogers' admissions , on cross-examination , that Respondent Edward Hamilton heckled everyone, and that the heckling with respect to her began before the advent of the Union, although it got worse thereafter. Moreover, despite her testimony that she had not planned to quit until the heckling got too bad, she admittedly told other employees, upon her return from her honeymoon on August 11, that she was looking for an excuse to quit because her husband no longer cared if she continued to work. When she did quit on August 13, having been out ill on August 12, she signed a statement giving as her reason for leaving Respondents' employment, "I quit of my own free will." In agreement with the Trial Examiner, we also construe her testimony, with respect to reemployment, to mean that she did not desire to be reemployed by the Respondents. In addition, aside from her signing a union-authorization card, THE J. C. HAMILTON COMPANY 739 there is no other evidence in the record of her activity on behalf of the Union. In view of the foregoing, and upon the entire record, we are not convinced that Rogers' action in quitting her. job was the result of the discriminatory conduct of Respondent Ed Hamilton and, therefore, we find it did not amount to a constructive discharge. Accordingly, we shall dismiss the complaint insofar as it alleges that the Respondents discriminated against Rogers in violation of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, J. C. Hamilton, J. C. Hamilton, Jr., Ed. L. Hamilton, Agnes Hamilton, Sara Lee Mann, co-partners, d/b/a The J. C. Hamilton Company, their agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to recognize or to bargain collectively with International Association of Machinists, AFL, as the exclusive representative of all their employees at their Oklahoma City plant, excluding professional employees, office clerical em- ployees, guards, watchmen, outside salesmen, and supervisors as defined in the Act. (b) Interrogating their employees as to their union member- ship and activities; threatening to close their plant in the event the Union succeeded in its organizational campaign; threaten- ing to discharge employees; or in any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Association of Machinists, AFL, as the exclusive bargaining representative of all employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at their plant in Oklahoma City, Oklahoma, copies of the notice attached hereto and marked "Appendix A."2 Copies z In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals . Enforcing an Order." 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such notice, to be furnished by the Regional Director for the Sixteenth Region (Fort Worth, Texas), shall, after being duly signed by the Respondents' duly authorized representa- tive, be posted by the Respondents immediately upon receipt thereof, and maintained by them for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be dismissed , insofar as it alleges that the Respondents caused the resignations of Ray Cain on July 11, 1952, A. L. West on or about September 3, 1952, and Carmelita Sadler Rogers on August 13, 1952, thereby discriminating in violation of Section 8 (a) (3) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT interrogate our employees in respect to their affiliation and activities concerning International As- sociation of Machinists, AFL, or any other labor organiza- tion. WE WILL NOT threaten our employees with reprisal by way of discharge or a cessation of our Oklahoma City operations because of their membership and activities in the above-named union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively upon request with Inter- national Association of Machinists, AFL, as the exclusive representative of all employees in the bargaining unit described herein withrespecttorates of pay, wages, hours THE J. C. HAMILTON COMPANY 741 of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is: All our employees at our Oklahoma City plant, exclud- ing professional employees, office clerical employees, guards, watchmen, outside salesmen, and supervisors as defined in the Act. J. C. HAMILTON, J. C. HAMILTON, JR., ED. L. HAMILTON, AGNES HAMILTON, AND SARA LEE MANN, CO-PARTNERS, d/b/a THE J. C. HAMILTON COM- PANY, Employer. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by International Association of Machinists , AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the Sixteenth Region (Fort Worth , Texas), issued a complaint dated October 3, 1952, against J. C. Hamilton, J. C. Hamilton, Jr., Ed. L. Hamilton , Agnes Hamilton , and Sara Lee Mann, Co-partners, d/b/a The J. C. Hamilton Company, herein called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of section 8 (a) (1). (3), and (5) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the charges, com- plaint, and notice of hearing were duly served upon the Respondents and the Union. With respect to the unfair labor practices , the complaint alleged in substance that the Respondents : (1) On enumerated dates discriminatorily discharged Gerald Drewery , Ray Cain, Carmelita Sadler Rogers,' Roland Kear , and A. L. West, thereafter refused to reinstate them, with the exception of Cain who was reemployed about August 9, 1952 , and about June 20, 1952, discriminatorily refused to hire William Keester, because they joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , (2) about June 21, 1952, and thereafter had refused to bargain collectively with the Union as the exclusive bargaining representative of the Respondents' employees in an appropriate bargaining unit, although a majority of the employees in the unit had designated and selected the Union as their statutory representative and although the Union had previously requested that the Respondents bargain collectively with it as the statutory representative of their employees ; and (3) from June 20. 1952, to date, by certain specified acts, have interrogated their employees concerning their union affiliations , and have threatened and warned their employees to refrain from assisting, becoming members of, or remaining members of, the Union. The complaint further alleged that by the foregoing conduct, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act. Thereafter , the Respondents duly filed an answer, admitting certain allegations of the complaint but denying that they had engaged in the alleged unfair labor practices. i Early in the hearing, the complaint was amended to set forth the correct name of Rogers and to change other relatively minor inadvertent errors. 283230 0 - 54 - 48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held on November 5 and 7 , 1952, at Oklahoma City, Oklahoma , before Frederic B. Parkes II, the undersigned Trial Examiner duly designated by the Chief Trial Examiner The General Counsel and the Respondents were represented by counsel and the Union by official representatives . Full opportunity to be heard , to examine and cross-examine the witnesses , and to introduce evidence bearing on the issues was afforded all parties. Upon the motion of the General Counsel at the close of his case -in-chief, the complaint's allegations in respect to Drewery , Kear, and Keester were dismissed . At the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates , spelling , and minor variances and advised the parties that they might argue before and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner . Counsel for the Respondents and the General Counsel participated in oral argument. Upon the entire record in the case and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The J. C. Hamilton Company is a partnership composed of the following copartners: J. C. Hamilton, J. C. Hamilton, Jr., Ed. L. Hamilton , Agnes Hamilton , and Sara Lee Mann. The Respondents are engaged primarily in the wholesale distribution of automotive parts and accessories and have business locations at Oklahoma City and Tulsa, Oklahoma . In addition, they own a controlling stock in similar businesses located at Amarillo, Texas , and at Norman and McAlister , Oklahoma . The instant proceeding is concerned with their Oklahoma City operations . For the year ending June 1952 , the Respondents ' total income from sales and other sources was approximately $ 700,000 from their Oklahoma City plant and approximately $ 625,000 from their Tulsa operations A small portion of 1 percent of those sales was made outside the State of Oklahoma . The cost of goods purchased by the Respondents was approxi- mately 75 percent of their total income, set forth above . All but approximately 3 percent of the purchases was made outside the State of Oklahoma . It is found that the Respondents are engaged in commerce within the meaning of the Act. IL THE ORGANIZATION INVOLVED International Association of Machinists, AFL, is a labor organization admitting employees of the Respondents to membership. IIL THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit The complaint alleged and the Respondents ' answer denied that all employees of the Re- spondents at their Oklahoma City plant , excluding professional employees , office clerical employees , guards, watchmen , outside salesmen , and supervisory employees , constituted a unit appropriate for the purpose of collective bargaining. As mentioned above, the Re- spondents were engaged primarily in the wholesale distribution of automotive parts and accessories , but in conjunction with its Oklahoma City plant, which occupied a building approximately 100 by 140 feet, they also operated a mechanical repair shop, employing 4 mechanics under the supervision of Foreman A. B. Lipscomb . In its wholesale operations, there were 6 employees who received inventory merchandise and sent merchandise out to dealers or customers . Approximately 6 or 7 other employees were engaged in selling parts to customers calling at the Respondents ' establishment or in the furnishing of parts for orders to be shipped to customers Two or three of the latter employees worked outside the plant 1 or 2 days a week calling upon customers and selling merchandise. Although A. L. West, one of the alleged discriminatees , testified that he was in charge of some 5 or 6 employees in the parts department , the undersigned is not persuaded on the basis of the entire record that West was a supervisor within the meaning of the Act. Two days a week, West was a salesman outside the plant and of the 3 1 days he worked in the parts department, he spent 90 percent of his time performing the same duties and work as the other employees of the department and working along with them. He sold parts over the counter , restocked bins, THE J. C. HAMILTON COMPANY 743 filled outgoing shipments , and ascertained that they were shipped He had no knowledge as to the wages paid other employees in the department and it appears that , like the other em- ployees, he was hourly paid . Although West testified that he "hired one man with the approval of Ed Mann," manager of the parts department , West's explanation of this incident is some- what confused and leads the undersigned to conclude that on the occasion in question West interviewed some applicants for a job on a delivery truck and recommended that one be hired, but Parts Manager Edwin Mann declined to hire West's choice among the applicants. The undersigned concludes that West did not occupy a supervisory position within the meaning of the Act and should be included in the appropriate unit. Paul King was purchasing agent for the Respondents . Edwin Mann, manager of the parts department, testified that King had authority to hire or discharge employees but not "without checking with Hamilton or" Mann. However, Mann further testified that King was paid by the hour and was "in the same category" as West, insofar as supervisory duties were concerned. Although the record does not clearly detail theduties of the purchasing agent, the undersigned finds, for the purpose of discussion, that the position was not supervisory within the meaning of the Act and should be included in the appropriate unit. It is found that all employees of the Respondents at their Oklahoma City plant, excluding professional employees, office clerical employees , guards, watchmen, outside salesmen, and supervisory employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act.2 As of June 21, 1952, there were 17 employees in the appropriate unit. 2. Organization of the Union, majority status of the Union On June 18, 1952, several employees of the Respondents attended a meeting of the Union and signed cards designating the Union as their statutory representative. Other employees signed cards on June 19, 1952. In all, 10 of the 17 employees in the unit found to be appropri- ate signed such cards on these dates. The undersigned finds that on June 19, 1952, and at all times material thereafter, the Union was the majority representative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3 3. Sequence of events On the morning of June 21,1952, the Respondents received from the Union a letter which the Union had written and mailed the previous day and in which the Union stated that it repre- sented a majority of the Respondents ' employees in a unit claimed to be appropriate for the purposes of collective bargaining , asked that the Respondents recognize the Union as the statutory representative for their employees in the unit , offered to prove its majority status "through a check-off of our cards against your payroll ," and further requested that the Re- spondents negotiate with the Union " a contract and wage scale satisfactory to both parties." Around noon June 21, 1952, Leland Hewitt and James Witcher, special representatives of the Union , called in person at the Respondents ' plant , and at their request conferred initially with Respondent J. C. Hamilton, Sr They informed him that the Union represented a majority of the Respondents' employees and offered to prove the Union's majority status. He questioned that the Union had jurisdiction over his employees , inasmuch as the Respondents operated a parts house and not a machine shop. At this point, Edward Hamilton , one of the Respondents, interrupted and took charge of the conference According to Witcher's credible testimony, which was corroborated by that of Hewitt, the following occurred: We told [Edward Hamilton] that we was with the Machinists Union and told him that we had the majority of his people . . . signed up in our organization and that we wanted to show him proof, and that we would like to show him these cards providing that he would be willing to get his payroll list and sit down with us, and ... he says to me, "What are you doing mixed up in a union like that; don't you know that they are all communist? " He says, "All unions are infiltrated , are full of communists ," and I said , " Well, we have a good clean union that is free from Communism," and I said, "We don't have Communism in the union." So then he went on, he says, "Well, we don't contend with the unions down in this part of the country, we don't even have them. You are from up north someplace. People down =Cf. H. G. Reslink, et aL, 87 NLRB 126; Harry Brown Motor Company, et al., 86 NLRB 652, and cases cited therein. 3 The Respondents ' contentions as to the majority status of the Union are hereinafter dis- cussed in the text. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here, we don't fool with them." Well, I said, " I was raised over west of El Reno on a farm and I worked for the Rock Island Railroad in El Reno and belonged to Lodge 316 in El Reno and belonged to the same union when I was a kid there," and he said, "Unions might be all right on a railroad , but they weren't any good anyplace else." And he went on to tell us that if something happened that this place did go union or had a union there, that he had the key in his pocket and would turn the lock and lock the door , and that he would not have a union there, and we was just wasting our time up there even talking to him about it. And I said , "Well, are you refusing then to let us show you the proof ? I mean you don't want to sit down and go over the list?" And he said , " That is right. I don't." So I says , " I guess we will have to leave," so we shook hands and left. Hewitt's testimony was corroborative of that of Witcher. Hewitt also testified that they asked Edward Hamilton "who his attorney was, that we would contact this attorney," but that Hamilton "made a remark that it would do no good, that they weren 't going to have a union in there, and that they would close up at 1 : 00 o'clock that same day." Hamilton' s testimony in regard to the conference was consonant as to many details with that of Hewitt and Witcher . However , Hamilton could not recall whether they asked for the name of his attorney and testified, "I told them that I would like to see the cards . . . They said that they didn't want to show me the cards . They would like to sit down as a bargaining representative of the employees , and they would first like to see the payroll , compare the cards against the payroll . . . I told them that I couldn 't show them the payroll, but I would ascertain the validity of the cards if they would show me the cards . . They said they couldn't show me the cards; they would have to see the payroll and check it against the payroll." Upon the entire record, and his observation of the witnesses , the undersigned credits the testimonial versions of Witcher and Hewitt , set forth above, as to their conference with the Respondents on June 21 , 1952, and rejects the testimony of Edward Hamilton to the extent that it was at variance with the credited testimony. On June 21 , 1952, Edward Hamilton telephoned Tom Williams , the Respondents' counsel, and informed him of the receipt of the Union 's letter and of the conference with the Union's representatives . On June 23, 1952, Williams attempted unsuccessfully 2 or 3 times to reach the Union's representatives by telephone . About June 24, 1952, Representative Hewitt tele- phoned the Respondents ' office in an effort to talk with Edward Hamilton but the latter was out. The girl answering the Respondents ' telephone refused to divulge the name of the Re- spondents' attorney but took a message for Hamilton to return Hewitt 's call. Hamilton relayed the message to his counsel, Williams, who was again unsuccessful in attempting to reach the Union's representatives by telephone on the afternoon of June 24. On June 25, 1952, the Union filed with the Board a 9 (c) petition covering the Respondents' employees in their Oklahoma City operations , and the Regional Office informed the Respond- ents of the filing of such petition by a letter dated June 25 and received by the Respondents on June 26. Not long thereafter , according to the credible testimony of Williams , he tele- phoned the Regional Office and had the following discussion with an employee of that office: I told Mr. Russell that a few days before a letter had been received from the Inter- national Association of Machinists, that two representatives of the International As- sociation of Machinists, immediately thereafter appeared at the office of the company and wished to look at the books of the company; that it was a mystery to the management and to me what the International Association of Machinists were having to do with this company inasmuch as they had no machinists employed. He explained to me that the employees could select any union that they desired for their bargaining agent, whether the name of the union had any apparent connection with the company's employees or not, and thereby cleared up the confusion in my mind what the Machinists Union was having to do with the J. C. Hamilton Company. I told him that so far as I knew none of the employees of the company desired this union to represent them, and in the absence of any showing by the union that they had authority from the employees to represent them, that we did not wish to consent to enter into negotiations with them. He explained to them that under those circumstances the company was entitled to an election , and asked me in compliance with the letter which had requested a list of em- ployees and the appropriate unit, to send him the names of employees and assured me the names of those employees would be held confidential He also explained to me about the cards , but the management and myself was at a loss to understand what was meant by union representatives having some cards . We didn't THE J. C. HAMILTON COMPANY 745 know what those cards were and he explained to me what the general nature of those cards were. By letter dated June 28, 1952, Williams supplied to the Regional Office certain information requested by it regarding the Respondents' job classifications. Inter alia, Williams stated in the letter the following: in response to your letter of June 25, 1952, the J . C. Hamilton Co. does not consent to an - election, and therefore sees no need to participate in a conference with representatives of the International Association of Machinists. On June 30, 1952, the Union filed its original charge in the instant proceeding, alleging that the Respondent had engaged in violations of Section 8 (a) (1) and (5) of the Act. On the same date, the Union withdrew the 9 (c) petition covering the Respondents ' employees , which it had previously filed on June 25, 1952 . On July 1, 1952, the Regional Office mailed a copy of the charge to the Respondents and on the same date sent them a letter informing them that the Union had withdrawn its petition . In this regard, Williams testified that "when we received a notice that the application for election had been withdrawn, ... I assumed that the charge of unfair labor practices would automatically be withdrawn, since it was rested entirely upon their refusal to bargain with the union" and that he informed the Regional Office of his as- sumptions by letter dated July 12, 1952. Meanwhile, however, the Union on July 9, 1952, had filed its first amended charge herein, alleging that the Respondents not only had engaged in violations of Section 8 (a) (1) and (5) of the Act, but also had violated Section 8 (a) (3) of the Act by discharging Drewery and refusing to employ Keester . The record shows that a Dopy of the charge was mailed to the Respondents on July 9, but was not received by them until July 17, 1952 On July 21 , 1952, the Union filed a second amended charge , alleging violations by the Respondents of Section 8 (a) (1), (3 ), and (5), the new matter alleged being the discharge of Cain. On August 8, 1952, W. E. Youngblood , an attorney in the Regional Office, conferred with Williams and Leland Hewitt, special representative of the Union, about the pending charges, and the following occurred , according to the credible testimony of Williams: The latter stated "that it was the company' s belief that this union did not represent any of the employees of the J. C. Hamilton Company." However , after Youngblood checked the authorization cards signed by the Respondents' employees against a payroll of the Respondents and informed Williams and Hewitt that "the face of the cards indicated that there was a sufficient number of employees to justify the calling of an election," Williams stated that he would advise the Respondents to consent to an election . However. Hewitt would not agree to an election inas- much as the Union had filed charges alleging that the Respondents had engaged in unfair labor practices . Discussion as to a ground for settlement of the pending charges ensued and Williams stated that he would confer with the Respondents as to the possibility of settlement. The following day counsel for the Respondents informed Youngblood of the Respondents' decision as to the settlement of the charges to the effect " that the company was perfectly willing to have an election , but the company was unwilling to bargain with this union without having an election." Youngblood stated that in view of the pending charges, an election would not be a proper solution to the issues. By letter dated August 9, 1952, the Respondents offered Cain reemployment. Cain returned to the Respondents ' employ on August 11, 1952. On September 9 and 12, 1952 , respectively , the Union filed its third and fourth amended charges in the instant proceeding. These charges reiterated the same matters contained in the earlier charges but, in addition, averred that the Respondents had engaged in further violations of Section 8 (a) (3) of the Act by terminating the employment of Rogers, West , and Kear. About October 1, 1952, employee Jack Miller drafted the following letter which was signed by him and five other employees who had executed authorization cards in the Union in June 1952, and which was sent to the Board: We, the undersigned employees of the J. C. Hamilton Company , 23 North West 10th Street, Oklahoma City, Oklahoma, would like to submit a formal request for a union election or better still, a request for withdrawal from the International Association of Machinists , 617 South West 29th Street, Oklahoma City, Oklahoma. We would also like to request that our cards be returned to us. We are doing this of our own free will and without the knowledge of our employers. Each partner in the J. C. Hamilton Company and the local union will receive a copy of this letter. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are requesting these things because of the fact that there has been nothing but con- fusion since the local labor union came into our organization and also because of the fact that the union has never consulted us on any matter whatsoever. This letter is signed by every member of this organization that has ever signed union cards . . On October 3, 1952, the Acting Regional Director issued the complaint in the instant pro- ceeding. About October 21, 1952, the Respondent filed with the Regional Director a petition for investigation and certification of representatives under Section 9 (c) in Case No. 16-RM-57 On October 23, 1952 , the Regional Director dismissed the petition for the reason that " it does not appear that further proceedings are warranted inasmuch as there is no valid question of representation in view of the pendency of Case No . 16-CA- 528 against the subject employer involving Section 8 (a) (1) and (5), in which case this office has issued a Complaint." 4 Conclusions as to the refusal to bargain Counsel for the Respondents urged in oral argument several defenses , which are sum- marized as follows , to the complaint' s allegations that the Respondents unlawfully refused to bargain with the Union: (1) The "equities" of the case excuse the action taken by Edward Hamilton when confronted with the Union's demands for recognition on June 21, 1952; that is, considering the dispatch with which the Union followed up its letter of June 20 by calling upon the Respondents not long after the latter had received the letter and considering the fact that Edward Hamilton was "a person with no experience with unions, a person who had no knowledge whatever that there was any representation question at issue, and who had certainly never seen the gentlemen before ," the Respondents could not "have been expected to respond in any other manner than the way that Mr. Hamilton did." (2) The Respondents were entitled to require that the Union demonstrate its majority status through a Board-conducted election. (3) In any event, the Respondents were no longer required to recognize the Union inasmuch as the Union had lost its majority status, since at the time of the hearing only 2 of the 16 em- ployees in the unit desired to be represented by the Union Considering the record as a whole, the undersigned is not persuaded that the Respondents' defenses are meritorious or that they effectively refute the contentions of the General Counsel. In respect to the Respondents' arguments on the equities or peculiar circumstances sur- rounding the Union's representatives' call upon Respondent Hamilton, the latter's lack of knowledge of his duties imposed by the Act cannot excuse the action taken by him on June 21 4 In any event , Hamilton never retracted the statements made to the Union 's organizers when he was subsequently advised by counsel of pertinent provisions and principles of the Act applicable to the circumstances of the instant proceeding, instead, as found below, Hamilton engaged in further violations of the Act designed to undermine the Union Furthermore, the "equities" of the situation urged by the Respondents are more than offset by another equity principle that "an employer c .snot discredit a duly designated bargaining agency of its em- ployees by refusing to bargain with it and then be allowed to take advantage of a loss of mem- bership due to his wrongful act "5 As to the Respondents' second defense, it is well established that an employer may decline a union's request for recognition and insist upon a Board -conducted election to demonstrate the union's majority status without thereby violating Section 8 (a) (5) of the Act, provided that the employer's request for an election is based upon a good-faith doubt as to the union's claim to represent his employees and not " upon a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the Union."6 In the undersigned's opinion, Hamilton's statements to Special Representatives Hewitt and Witcher on June 21, 1952, constituted a resolute'' rejection of the collective bargaining princi- ple " Thus, in the conference following their request that the Respondents recognize the Union as the statutory representative for their employees and submit a payroll for the pur- pose of demonstrating the Union's majority status by a check of authorization cards against the payroll, Hamilton refused to produce the payroll, accused the Union of being "full of communists," stated, "We don't contend with the unions down in this part of the country; we don't even have them . . . we don't fool with them," acknowledged that "Unions might be all right on a railroad, but they weren't any good anyplace else," averred that "if something happened that this place did go union or had a union there, that he had the key in his pocket and would turn the lock and lock the door, and that he would not have a union there," refused 4Floyd Drummond d/b/a Drummond Implement Company, 102 NLRB 596. 5 Continental Oil Company v. N. L. R. B., 113 F. 2d 473, 481 (C. A. 10). 6Artcraft Hosiery Company, 78 NLRB 333, 334. THE J. C. HAMILTON COMPANY 747 to give the union representatives the name of his attorney , warned them that they were wasting their time "even talking to him about it," and ended the interview by refusing to let the repre- sentatives show him proof that the Union represented a majority of the Respondents' em- ployees. Further indication that the Respondents ' refusal to accord the Union recognition was based upon the rejection of the collective-bargaining principle and upon a desire to gain time in which to undermine the Union' s strength is shown by the Respondents' subsequent con- structive and discriminatory discharge of employee Rogers and the Respondents ' other acts of interference, restraint , and coercion with the rights guaranteed the employees in Section 7 of the Act, hereinafter detailed . For example , employees were questioned in regard to their union affiliation and were threatened with loss of employment through the Respondents' closing of the shop. It is also to be noted that at no time in the conference on June 21, 1952, did Hamilton ex- press any doubt of the Union's majority status but instead flatly declined to let the Union demonstrate that it represented a majority of theemployees by a check of authorization cards against the payroll. Doubt as to the Union's majority was first raised by the Respondents' counsel in his telephone call to the Regional Office on or about June 26 or 27. Thereafter, the Respondents refused to consent to an election and stated that , accordingly , they saw "no need to participate in a conference with representatives " of the Union It is clear and it is found that the Respondents ' contentions in respect to a determination of the Union ' s majority through a Board election was an afterthought to bring the case within the ambit of the Board's Art- craft Hosiery doctrine and was not the real basis for its refusal to recognize the Union on June 21, 1952.7 In support of their argument that the Union's loss of majority by the time of the hearing, brought about by the employees' repudiation of the Union on October 1, 1952, and also by ordinary change in the complement of employees , obviated any duty which required the Re- spondents to bargain with the Union, the Respondents rely upon the Globe case 8 and cite the following final conclusion of the court' s opinion , reached after a determination by the court that an employer was justified in having a doubt as to a union's majority status upon the filing of a decertification petition signed by all his employees after the employer had bargained in good faith with the union without reaching agreement upon terms for a contract for a period of slightly more than 11 months after the Board's certification of the union: " The conclusion is inescapable that the Board overlooked the salient consideration that the National Labor Re- lations Act was designed by the Congress to serve as a shield and not as a shackle to the millions of our employed whose welfare is the proper subject of national concern." Clearly, the facts of the Globe case are distinguishable from those of the instant proceeding, which is more closely related to the circumstances of the Oughton9 and Swift10 cases. As stated by the Court of Appeals for the Third Circuit in its opinion in the Globe case, "The situation and questions involved in the Swift casewere not similar in any respect to the situa- tion and issue here involved ," and hence that court 's opinion in the Globe case in no wise im- pugns its holdings in the Swift case . In the latter case, where , as here, a labor organization lost its majority status subsequent to an employer ' s unlawful refusal to bargain with it, the court quoted with approval the Board 's policy enunciated in the Karp case, ii which is pertinent to the issues herein involved and is as follows: Employees join unions in order to secure collective bargaining Whether or not the em- ployer bargains with a union chosen by his employees is normally decisive of its ability to secure and retain its members . Consequently , the result of an unremedied refusal to bargain with a union, standing alone , is to discredit the organization in the eyes of the employees , to drive them to a second choice , or to persuade them to abandon collective bargaining altogether . . . It may be assumed that some of those who abandoned the Union were motivated in part by factors other than the discouraging effects of the unfair labor practices which the respondent committed . But any attempt to disentangle other YSee J. C. Lewis Motor Company, Inc., 80 NLRB 1134; Motorola, Inc., 94 NLRB 1163, enfd . 199 F. 2d 82 (C. A. 9), cert. den. 344 U. S. 913. ON. L. R. B. v. Globe Automatic Sprinkler Company of Pennsylvania, 199 F. 2d 64 (C. A. 3), setting aside 95 NLRB 253. 9John J. Oughton et al. v. N. L. R. B., 118 F. 2d 486 at 494 et seq. (C. A. 3), cert. den. 315 U. S. 797. 10 N. L. R. B. v. Swift & Company, 162 F. 2d 575 (C. A. 3), cert. den. 332 U. S. 791. 11 Karp Metal Products Co., Inc., 51 NLRB 621. Marginal references in the quotation from this decision set forth in the text have been omitted. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factors from these discouraging effects is impossible so long as the unfair practices are unremedied.... In a further effort to neutralize the coercive effect of its unfair labor practices , the respondent stresses the fact that a large number of employees in the appro- priate unit when the refusal to bargain occurred have since left its employ and that it has hired many new employees. In themselves these facts do not warrant an inference that the restraints engendered by the respondent's illegal conduct are no longer operative. For, unremedied unfair labor practices exercise a coercive effect not only upon the immediate victims, but upon future employees as well. Thus, for example, in the present case, it is probable that most of the defections from the Union's majority would not have occurred if the respondent had lived up to its bargaining obligation under the Act. Had the Re- spondent accorded the Union the recognition to which it was entitled, the Union would have received a powerful impetus toward further organization, it would therefore be arbitrary to assume that it could not in such case have sustained itself. The above tenets, often reiterated by the Board and by now well established with court approval, are dispositive of the Respondents' argument that the Union's loss of majority dis- pelled the Respondents' duty to bargain with the Union.ii In sum, it is found that any loss in the Union's majority subsequent to June 21, 1952, was attributable to the Respondents' un- lawful and unremedied refusal to bargain with the Union on June 21, 1952, and to other con- duct of the Respondents, hereinafter found to havebeen discriminatory and to have constituted interference, restraint, and coercion with the rights guaranteed the employees by Section 7 of the Act. The undersigned concludes and finds that on June 20, 1952, and thereafter, the Re- spondents unjustifiably refused to recognize and bargain with the Union as the exclusive repre- sentative of their employees in the appropriate unit in violation of Section 8 (a) (5) and (1) of the Act. B. Interference, restraint, and coercion Employee Ray Cain testified that about 10 minutes after Special Representatives Hewitt and Witcher left the plant following their conference with Respondent Edward Hamilton on June 21, 1952. Hamilton asked Cain "if anyone from the union had been down there and tried to get" Cain "to sign up in the union." When Cain replied in the negative, Hamilton stated that "he thought this union did more to promote communism in the United States than anything else and that if the place went union, that he would close it up at 1:00 o'clock." Hamilton testified that after the union representatives visited his office on June 21, he did not discuss union activities with any of the employees but he did not specifically deny that he made the inquiries and statements attributed to him by Cain. Hamilton denied generally that he had ever stated that he would close the plant rather than have it unionized. In view of the fact that other wit- nesses attributed similar statements and inquiries to Hamilton, that he failed to deny Cain's testimony specifically, and that Cain impressed the undersigned as a more reliable witness than Hamilton, the undersigned credits Cain's testimony and rejects the denials of Hamilton. Employee Jack Miller, a witness for the Respondents, testified on cross-examination that at an unspecified date after June 18, 1952, Edward Hamilton asked Miller whether the latter had signed a union card and Miller informed him that employee A. L. West had given Miller a card and that the latter had signed it . Aside from the testimony and general denials of Hamilton discussed above, Hamilton did not specifically deny the inquiry attributed to him by Miller. In view of this circumstance as well as the undersigned' s observation of the witnesses , Miller's testimony is accepted and Hamilton's denials are deemed unworthy of credence. E. B. Lipscomb , a supervisory employee who was foreman or manager of the Respondents' service department, admitted that onJune21,1952, after he heard of theunion representatives, visit to the plant, he asked employee Cain "if he had been approached by anyone or knew anything about any unions around there and he said he never had." is Lipscomb further ad- mitted that about the same time, he asked employees Clarence Bibb, J. B. Koch, and Harmon Howard whether they "knew anything or heard anything about a union." About June 28, 1952, employee West overheard, accordingto his testimony, Edward Hamilton tell employee Paul King that neither Edward Hamilton nor his father, J. C. Hamilton, Sr., i2See Franks Bros. Company v. N. L. R. B., 321 U. S. 702; Great Southern Trucking Co. v. N. L. R. B., 139 F. 2d 984 (C. A. 4); Continental Oil Company v. N. L. R. B., 113 F. 2d 473, 481 (C. A. 10); John J. Oughton et al. v. N. L. R. B., supra; N. L. R. B. v. Swift &Company, supra, and cases cited therein. 13 This finding is based upon Lipscomb's testimony. Cain's testimony is not credited to the extent that it was at variance with that of Lipscomb. THE J. C. HAMILTON COMPANY 749 would "allow a union in there and that if they definitely came in there , they would rather turn it into a warehouse rather than see a union organization step in " Edward Hamilton specifi- cally denied that he made the statements to King as testified to by West . Although King was called as a witness by the Respondents , he was not interrogated with respect to the incident in question. As previously found, similar statements have been found to have been made by Edward Hamilton. Moreover, if West were fabricating, it seems unlikely that he would have done so in such a manner as to make his testimony susceptible to a denial by two persons but would , instead , have had Hamilton direct the remarks to West Considering these factors, as well as the undersigned 's impression of the witnesses , the undersigned credits West' s testi- mony and rejects Edward Hamilton 's denials. About July 5 Edward Hamilton asked employee West whether the latter "knew anything about the union activity." West replied, "Very little "i4 There remains for discussion the resolution of the conflicting testimonial versions given by West and Parts Manager Mann as to the Respondents ' refusal to hire William Keester on June 21, 1952. It was West's testimony that he recommended Keester to Mann for a position on the delivery truck, that Keester had a chauffeur's license, and that after Mann interviewed Keester, Mann said to West , " [Keester ] seems like a pretty nice sort of fellow . I under- stand that he is connected with one of the plumbers locals or some sort of a union here in town. I asked him what was his attitude towards it. The boy said he thought they were a pretty fine thing and that he presently belonged to one ." According to West, Mann further stated that he told Keester "there was no use trying to get in here " and Keester was not employed by Mann. On the other hand, Mann denied that Keester possessed a chauffeur's license and that Mann had any conversation with him regarding union activities. According to Mann, he told West that the Respondents could not employ Keester because the latter "was a red-hot," meaning that he was ayounghigh school lad who drove fast cars. Keester was not called as a witness. As be- tween Mann and West , Mann impressed the undersigned as the more reliable witness . For these reasons, Mann's testimonial version of the Keester incident is credited , West's is deemed to be unworthy of credence, and it is found that in Mann's interview of Keester , Mann made no statements violative of the Act. Respondent Edward Hamilton's threats to employees to close the plant in the event the Union succeeded in its organizational campaign was a clear threat of reprisal and viola- tive of Section 8(a)(1) of theAct . Furthermore, the interrogations of employees by Respondent Edward Hamilton and Foreman Lipscomb as to the employees' union membership and activi- ties , viewed in conjunction with Hamilton's threats of reprisal and the Respondents' other violations of the Act , constituted independent acts of interference with the employees' right to self-organization, and the Respondents thereby violated Section 8 (a) (1) of the Act. is C. The termination of employment of Ray Cain Ray Cain entered the Respondents ' employ in 1947, working on "tune-up , carburetion and gasoline engine repair" in the Respondents ' repair service shop . After 18 months , he left the Respondents to assume a better position at a nearby airfield . However, in January 1952 he reentered the Respondents' employ in the same position he formerly occupied . On June 19, 1952 , he signed a union-authorization card . As found above, about 10 minutes after Special Representatives Hewitt and Witcher left the plant on June 21 , 1952, Respondent Edward Hamilton asked Cain whether "anyone from the union had been down there and tried to get" Cain "to sign up in the union." When Cain replied in the negative , Hamilton stated that "he thought this union did more to promote communism in the United States than anything else and that if the place went union, that he would close it up at 1 00 o'clock ." As previously stated, about the same time, Cain' s immediate supervisor , Foreman Lipscomb, asked Cain "if he had been approached by anyone or knew anything about any unions around there and he said he never had." However , on cross-examination , Lipscomb admitted that an employee--Gerald Drewery according to Lipscomb 's recollection- -told Lipscomb that Cain was interested in the Union. The testimonial version of Cain as to the details of his termination of employment with the Respondents on July 11 , 1952, is sharply , if not diametrically , opposed to that of Foreman Lipscomb In this regard, Cain testified as follows : About 8:30 a. m. on July 11, 1952. Foreman Lipscomb told Cain that Respondent Edward Hamilton had told Lipscomb that Cain was dissatisfied. Foreman Lipscomb further stated that "he understood that [ Cain] was being replaced . [ Cain] was being replaced and go to work and quit the same day ." When Lipscomb i4Since Hamilton failed specifically to deny West's testimony in this regard, the under- signed rejects Hamilton's general denials for the reasons previously stated. is S. D. Cohoon et al., 101 NLRB 966. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that "he understood that [Cain] was unhappy ," the latter replied that " that was the first [he] had heard of it." Virgil Qualls, who had not previously worked for the Respondents but who "had been in and talked to Mr . Lipscomb three days before, " assumed Cain' s position in the shop. None of the Respondents or their supervisors had criticized Cain's work or repri- manded him for visiting with other employees during working hours at places other than his work station. Although Cain worked on a commission basis , he had never complained that he did not earn sufficient money He denied that he ever left his work station when he had work to do or that he ever interrupted other employees when they were busy. Before setting forth Lipscomb's testimony regarding the termination of Cain's employment and before resolving the conflicts between their versions of this event , it will be helpful to consider the events occurring in connection with Cain' s reemployment by the Respondents. On August 9, 1952 , the Respondents sent the following letter to Cain. It has come to our attention that you are contending that you were discharged from our employment because of union association . As you know, you were never discharged, but resigned . It is not our policy to favor or disfavor applicants or employees because of union membership or non-membership or interest . Your job is now and always has been available and waiting for you If you desire to re-enter our employment , please contact the writer immediately and we will be glad to put you back to work on the same terms and conditions as when you left. If we do not hear from you we shall assume that you are not interested in returning to employment here. When Cain reported for work on August 11 , 1952, he was told by Respondent J. C. Hamilton, Sr., according to Cain's uncontroverted testimony , that Hamilton "didn't know about [Cain's] being fired and that if there was anything wrong, he wanted it straightened out." Hamilton asked Cain "for any suggestions of anything that was wrong ." It was Cain' s further undenied testimony that before reporting for work , he encountered Respondent Edward Hamilton who told Cain that the Respondents' "policy had been changed" and that Cain would have to stay at his work station and not talk to other employees . According to Cam, he had previously been free to talk with employees during working hours and "to move around the shop before any time you deemed fit " Furthermore , after he resumed his employment with the Re- spondents , there was a change in the manner of performing a portion of his work- -previously, when his repair work necessitated the use of specialized tools not located at his work station, he took the repair work to the location of the required tools, but after his return, he was required to bring the necessary tools to his work station. Turning now to a consideration of Foreman Lipscomb ' s testimony , the following five paragraphs are a summary of his testimonial version of Cain's employment history and leaving the Respondents ' employ on July 11, 1952. Cain had originally entered the Respondents' employ in 1947 as a trainee under the so-called GI bill and received his training from Lipscomb . Cain worked for the Respondents for about 18 months and "was a reasonably good tune-up man In other words , he wasn't a hundred percent by any means , and he wasn't the sorriest." When he initially left the Respondents, he took a position at a nearby airfield , referred to by the witnesses as Tinker Field . Around January 1952 Cain returned to the Respondents' plant and sought reemployment. Lipscomb told him, "Ray, you know that these garage men in town are not in favor of Tinker Field employees... Because you get in the habit of loafing, and it 's kind of hard to break that; if you want to work I will be glad to put you on because you know down here you are going to have to work to make a living If you want to come back under those conditions, knowingly , fine and dandy." Cain resumed his employment with the Respondents , working on a commission basis but being guaranteed a base rate of 75 cents an hour According to Lipscomb, Cain worked "fairly satisfactorily and about as good as could be expected" for approximately 4 months, when he began to turn out unsatisfactory repair work, examples of which Lipscomb detailed in his testimony . However , about April 1952 Cain informed Lipscomb that Cain had filed an application for reemployment at Tinker Field and if it were accepted , he would leave the Respondents From Lipscomb's testimony it appears that Cain had also applied at another service shop for employment about this time . In April or May 1952, after working for a day and a half on an engine but still being unable to fix it, Cain complained to Lipscomb that the Respondents "were going to have to put him on a salary instead" of a commission basis. Lipscomb replied, " If you don' t turn them out any faster on a salary than you are on a commission , we couldn't use you on a salary because you worked a day and a half fixing it and we still can't charge the man anything ." According to Lipscomb, when Cain " brought up this Clinton deal I knew for sure when he started talking of going from THE J. C. HAMILTON COMPANY 751 commission to salary" that Cain was dissatisfied with his job, because "Mechanics don't relish the salary idea." 16 Cam' s dissatisfaction with his job was further demonstrated to Lipscomb when the latter overheard in a nearby restaurant Cain 's comments about the Re- spondents , whose plant was located " in the middle of a bunch of car dealers ," characterizing the Respondents as "a ratty bunch." According to Lipscomb, " I stood there and' I heard it, and I tapped him on the back, and I told him that I wouldn't want anybody to know that I was working among that type of people." On July 10 , 1952, Foreman Lipscomb, according to his testimony , told Cain that since the latter' s work was unsatisfactory because of specifically enumerated instances of complaints by customers , since Cain was dissatisfied with his employment with the Respondents and had applications for employment pending elsewhere , and since Lipscomb had "another man that wants to come to work, and considering all things, knowing that you are liable to leave any time, and these men are hard to find ," Lipscomb " was forced to put on someone that would ... turn out more satisfactory work" and proposed to hire Virgil Qualls as a tuneup man. How- ever , Lipscomb told Cain, " Now if you want to stay , why we will try to work you in. If you want to quit ,, why that is yo it business , you can quit or you can work like the other ones, but I am forced to do this." According to Lipscomb , he informed Cain that the latter ' s services would be utilized on "Clinton engines , and whatever he could do ." Cain admitted that he was dissatisfied with his employment and stated "that he wasn't making the money that he ought to make, that he could make more money elsewhere ," that there wasn't enough tuneup work for two mechanics , and that he would quit as "he had other jobs he could get." Accordingly, Lipscomb instructed the office manager to draw up Cain 's paycheck. However, the next morning , July 11, Cain appeared at the plant, punched his timecard, ands went into the shop. Lipscomb saw him and said , " Ray, I asked Miss Hand to figure your time up for you so you can get as much as possible in on this payday . I notice you punched in. It is pretty hard to check you out one day and in the next . You make up your mind , either quit the job or you are not going to quit it." Cam answered , "The other man isn't in yet and I thought I would work until he got here " Lipscomb countered that the new employee would " be here just as quick as he could get here." Thereupon, Cain left the plant. Lipscomb further testified that since Cain was guaranteed a minimum of 75 cents an hour and rarely earned more than that amount, his recompense would not have been substantially affected by the employment of Qualls, had Cain elected to remain in the Respondents ' employ. It was Lipscomb's further testimony that he "had trouble with [Cain's] going behind the parts counter, which was definitely against the rules, and also it always had been for a mechanic to go back there, because he don't know where to find the parts; he don't know where to charge it off on the sheet , or anything like that." The foregoing is a summary of the testimony of Cain and Lipscomb as to Cain's employment history and the termination of his employment with the Respondent in July 1952 . Cain was not called as a rebuttal witness and, aside from the general denials previously mentioned, failed to deny specifically much of the testimony of Lipscomb . Moreover, other portions of the latter's testimony were not put in issue by Cain ' s general denials. As between these two witnesses , Lipscomb impressed the undersigned as being the more reliable . He appeared to be one of the Respondent's more dispassionate witnesses and although he testified somewhat bruskly, he seemed in the main to be forthright and candid, as indicated by his admissions as to interrogating employees about the Union and as to his knowledge of Cain' s purported interest in the Union. On the other hand, contrasting Cain ' s testimony with that of Lipscomb, the undersigned is convinced that Cain's version did not embody all the events connected with the termination of his employment but notes that Lipscomb's testimony may be construed to be a more full and more credible elaboration of Cain's cryptic testimony that on July 11, 1952, Lipscomb told Cain that the latter "was being replaced and go to work and quit the same day." These considerations impell the undersigned to accept Lipscomb's testimonial version respecting Cain's employment history and the termination of his employment in July 1952 as being more nearly in accord with the probable course of events than Cain ' s testi- mony, which is rejected to the extent that it was at variance with the credited testimony of Lipscomb. The issue posed by the foregoing findings of fact is not whether Cain was discriminatorily discharged , as contended by the General Counsel , but whether Cain was constructively dis- charged on July 11, 1952, in violation of the Act . The Respondents' antipathy to the Union, their unlawful refusal to bargain with the Union, and their knowledge as to Cain's interest in i61n quoting this excerpt from Lipscomb 's testimony, an obvious typographical error in the record has been corrected so as to substitute "relish " for "relict." 7 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. gave one reason to suspect their motivation for the change in Cain's employment on July 10. However, since Cain was reemployed on August 11, 1952,17 and since the under- signed had accepted the testimonial version of Foreman Lipscomb as to the history and termination of Cain's employment , the undersigned concludes that the complaint' s allegations that the Respondents discriminated in respect to Cain' s tenure of employment have not been sustained by a preponderance of credible evidence. D. The termination of employment of CarmelitaSadler Rogers Rogers entered the Respondents ' employ on July 31, 1951 , as operator of the telephone switchboard In addition to handling the switchboard, she operated a control which opened a door at an entrance for trucks and also performed some miscellaneous clerical work , such as operating the cash register , changing price sheets for merchandise , filing back orders, and, for a time , checking invoices for incoming merchandise against purchase orders On June 19, 1952, she signed a union-authorization card The General Counsel contends that although Rogers quit the Respondents ' employ on August 13, 1951 , she was forced to do so for the reason that she was excessively criticized and berated by Respondent Edward Hamilton be- cause of her union membership and Hamilton's antipathy to the Union, and that consequently Rogers was constructively discharged by the Respondents in violation of the Act. The Re- spondents assert that Rogers quit of her own volition and not because of unjustified criticism by the Respondents. A summary of the testimony of the various witnesses in regard to the termination of Rogers ' employment will be set forth 1 Witnesses for the General Counsel Rogers testified that she had no particular trouble with Respondent Edward Hamilton until after the advent of the Union in June and that thereafter he "picked on" her " all the time" and his attitude towards Rogers became progressively worse--although "he's always been loud"--until the situation " got unbearable and before [Rogers] went on ... vacation, [she] was all nervous and weak." According to Rogers , after the employees evidenced interest in self-organization, Respondent Hamilton " was upset" and "had outbursts of throwing his hand up in the air and swearing," and although "he always talked , . . there is nothing real violent like he got just before [Rogers] got married" in August 1952. During this period, Hamilton railed at Rogers by calling her a "dumbbell," " poor soul," and "hardhead," and by saying that she "just couldn't get nothing through [her] thick skull." It was Rogers' testi- mony that when, on one occasion, Purchasing Agent King asked Edward Hamilton, "Why don't you slap that girl when she does things like that, " Hamilton told Rogers , " I sometimes can't control myself, I just want to slap you off that stool " Rogers testified that when she returned from her vacation on August 11, 1952, she had the following conversation with Respondent Edward Hamilton " early in the morning" in the latter's office- Well, Mr . Hamilton had my time card out of the time-card slot and he asked to see me in the office and I went in, and he said that they were changing policies and that they were going to dispense with a lot of help and they didn 't know if I was going to be needed or not; and he said that they were going to change the telephone system to a different one than at the present time, then he gave me my time card back, but he didn't know what was going to take place afterwards , and then he said there has been such an upset here at the stdre "Of course, you know all about it." And he said that well, that kind of dropped about my work and he said I was going to have to not carry on my conversation with anyone He especially requested that I did not talk about the union or about the company in any manner whatsoever And then he began to talk about this union and I said, "Well, Ed, I never told you that I signed a card " And he said, "Don't worry, just say that I know you signed one." And I didn't say any more and he said before he let that '?The undersigned is not persuaded that there was any substantial change in the con- ditions of Cain's employment upon his return to the Respondents in August. The fact that he was instructed ( 1) to remain at his work station during working hours and not talk to other employees, and (2) when his work necessitated the use of a specialized tool not available at his work station, to bring the required tool to his work rather than take his work to the tool do not seem to be unreasonable or, in themselves , indicative of an illegal motivation on the part of the Respondents in bringing about the cessation of Cain's employment in July 1952. THE J. C. HAMILTON COMPANY 753 place turn union, he would turn it into a warehouse, "And you know yourself," Ed said, "That all this confusion and going on here has caused so much trouble between the employees, that they are beginning to fuss and complam." And he said that there had been several people complaining about the telephone system, telephone girl not getting the parties right quick. And, well , I don't know , just in general he just summed up that I should not talk to anyone whatsoever about the company , union, business or anything. He said I was to go out there, set on that telephone stool and stay there all the time that I was working, from 8.00 to 5:30 Rogers did not work on August 12 because of illness , but returned on August 13, 1952 According to her testimony, she had the following conversation with Edward Hamilton the morning of August 13, 1952: ... I guess I had been working a couple of hours and he came up to the desk and he said that someone in the plant had told him that I had been talking about the union and the company again and that he had warned me, and warned me, that he didn ' t know what he was going to do if I didn't stop. He said he had asked me not to say anything and that I should have been courteous enough not to mention it anymore. I told him , " Why, well, Ed , I have contacts up here at the telephone desk; you have to talk to people because they come up there and ask you questions and they will talk to you about taking some money for this cash drawer . I will have to answer the fellow and tell somebody about the conversation that they gave me the message for." And he said , " Well," he says , " You just never mind , I don't want you talking anymore about the company or this union ," and he says, "If you don't, I don't know what I am going to do " Following this interchange with Respondent Hamilton , Rogers quit the employ of the Re- spondents because , as she testified , " I couldn't put up with it another minute I was just a nervous wreck." For the records of the Respondents ' office manager , Rogers admittedly signed a statement giving as the reason for the termination of her employment , "I quit of my own free will." In addition to the above , Rogers also testified that officials of the Respondent had voiced "corrections" of her work and that Parts Manager Mann had "tried to suggest that [Rogers] do a little better somewhere" but had never reprimanded or "bawled " her out about her work. She admitted , " I imagine I made mistakes ," which justified some criticism by the Respondents and expressed a belief that Hamilton may have "picked on" her more than other employees because she "couldn't get someone on the phone." On August 8, 1952, Rogers was married . Admittedly , she told employees when she returned from her vacation on August 11, 1952, that her husband did not care whether she continued to work for the Respondents and that she was going to quit and asked them what reason she should give Respondent Edward Hamilton. In this regard, she further testified as follows on cross -examination. Q. [By Mr. Soule] You went to Bill Talley, didn't you, and told him that you were going to quit? A. I hadn't planned to quit, I was going to work. Q. For sometime? A. No, not for some time Q. When did you start planning to quit? A. When Ed Hamilton got on my nerves. He heckled me all the time and he just upset me. Several times I had to leave the switchboard. I couldn't talk. Q. How long had that been going on? A. Well, it just started real bad after the union started in. When asked whether she desired reinstatement by the Respondents , Rogers testified, "Well, not if it has the same confusion as when I left , no, I don't want that job back." Although the answer is somewhat ambiguous in view of the multiple negatives and the punctuation (the difference in meaning is to be noted , had the official reporter inserted a period instead of a comma after the word "left "), the undersigned construes this answer , considered in con- junction with the foregoing summary of her testimony and the entire record, to mean that Rogers did not desire to be reemployed by the Respondents. Rogers' testimony was corroborated to a certain extent by that of employees Cain and West Thus , Cain testified that after Rogers returned from her vacation in August, Cain 7 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overheard Respondent Edward Hamilton tell her that "she didn't know what she was doing" and that "she was dumb." In this regard, West gave the following testimony- "After it was found that the union was coming in, I noticed Ed Hamilton's attitude was very antagonistic towards [Rogers]. He seemed to want, more or less, to blame all the mistakes caused on the parts counter to her. I have heard him, on several different occasions, say that she was hard- headed and a dumbbell. He didn't know what he could do with her." 2. Witnesses for the Respondents The testimony of Respondent Edward Hamilton will first be considered According to Hamilton, Rogers continually and frequently throughput her employment disconnected lines carrying long distance telephone calls and that when this occurred he reproved her, some- times by shouting to her from a window in his office or by coming to the switchboard, which was located several feet from his office, being separated therefrom by a driveway and a counter of the parts department She disconnected telephone calls continually, both on the signal key switchboard in use at the time she entered the Respondents' employ and on the new switchboard installed in July 1952 In addition, Rogers "continually" left the switchboard unattended, although her duties did not require her to leave its vicinity, and was criticized for this action by Hamilton, who instructed her "not to leave the switchboard without having a relief operator to take that job over." In respect to clerical errors made by Rogers, Respondent Edward Hamilton gave the following testimony: Well, we get a price sheet which would be several pages, which would contain the latest prices; then the several discounts or net prices to the trade Then you t i ' get a separate sheet showing the cost price Now, we would combine those two sheets and correct the cards On the cards we would have the cost price and the selling price, which included the list price and the dealer and the garage prices, and we would staple -- I would do that myself, staple those sheets together in order to do it at one operation. Well, time after time she would change the cost price and fail to change the other prices, thereby having to go back over and do the other prices. Then, numerous numbers would be left off, she would forget to change them , or just a continued number of errors every time she changed prices. According to Hamilton, he called these mistakes to her attention but she continued to make such errors throughout her employment, although the Respondents "noticed them more at the end, we expected, after we had taught her how to do it, we expected her to be more care- ful with her work." Respondent Hamilton gave the following testimonial version of the conversation between him and Rogers on August 11, 1952: Well, she camel back from vacation, and I told her that there had been a lot of confusion and that I fold her that I would appreciate it if she would stay at her position at the switchboard and refrain from talking to the other employees in order that she could con- centrate more on her work and discontinue the continual errors that she had been making, and I thought that if she would do those two things, stay at the switchboard and think about what she was doing, that she would stop making the errors, it would also allow the other employees to do their work properly without disturbing them continually.... Well; she said that there sure was a lot of confusion; that she was going to do the best she could. She said she was sorry about it, that she was trying to do the best she could or knew how. Hamilton testified on cross-examination that by "confusion," he referred to Rogers' "leaving the telephone position, disconnecting the telephone, leaving the telephone position, and when I came up to ask her please to connect it, she wouldn't be there; she would be talking to somebody when she should have been there. Confusion that she created by her not doing her job." He denied generally that anything was said by himself or Rogers in regard to the Union, that he ever used any abusive language in conversation with her, called her names of any kind, or threatened her. As mentioned previously, he also denied generally ever having said that he would close the plant rather than have a union in the shop Hamilton gave no testimony in respect to the conversation with Rogers, which the latter asserted occurred on August 13 and resulted in her decision to leave the Respondents' employ. However, Foreman Lipscomb testified that he overheard a conversation between Rogers and Edward Hamilton on August 13, 1952, near the end of the workday, although "I didn't THE J. C. HAMILTON COMPANY 755 press my ears to be sure I didn't misunderstand a word , but roughly , I think, I heard the majority of it." However, he further admitted that he heard only a portion of the conversation and that "the rest of the conversation I could not hear " According to Lipscomb, Respondent Edward Hamilton " was talking to her about the errors she was making " and "told her that he just was going to have to keep her on that chair up there , that she couldn't be going up and down and people honking to get in and the telephone ringing and that kind of stuff , and that she had to be at the telephone up there at that place or post , or however you want to word it, and that she had to be there " Lipscomb "heard no union talk" in the conversation Lipscomb further testified that since he was in the service department , " the only errors that I knew of her making was . . to cut me off on my service call." According to Lipscomb, the difficulty in having telephone calls cut off by Rogers at the switchboard commenced with the installation of the new switchboard in July and continued until the time Rogers left the Respondents. Lipscomb described the former switchboard as one having 4 keys and 4 lines-- "that call came in on a line and you couldn't cut them off; you could do it, but there would be a light up over the key, and you pulled it." It was Lipscomb's testimony that on 1 day he had 5 local telephone calls cut off by Rogers and that about 30 days before she quit, he was cut off at the switchboard by Rogers 3 times in a single telephone conversation . He complained to Rogers about such interruptions until he "got disheartened and quit " According to Parts Manager Mann, Rogers became more inefficient in handling the switch- board during the last 6 months of her employment with the Respondents and "in spite of pleading to handle long-distance calls with exceptional care, ... it seems invariably that a long-distance call would be cut off, a great number of them." He recalled hearing Rogers being criticized for cutting off telephone calls about 20 times during the entire period of her employment . Mann never heard Edward Hamilton call Rogers a dumbbell , poor soul, or hardhead , and never heard him tell her that he could not get anything through her thick skull or that he wanted to slapher. Mann insisted that although Edward Hamilton "may talk loud.... he never uses vulgar language " One of the clerical tasks performed by Rogers soon after she commenced to work for the Respondent was to check invoices of incoming merchandise against purchase orders . Accord- ing to Mann , the purchasing agent preceding King corrected mistakes made by Rogers in such checking and did not inform Mann of the errors . However, after King became purchasing agent in March 1952 , he reported that Rogers made numerous errors and continued to do so even after many instructions Finally , about June 1952 , he asked that she be relieved of this task since it was simpler for him to do the checking himself Mann estimated that in about 1 out of 5 purchase orders Rogers made a number of mistakes . King corroberated Mann's testimony in this regard and explained that Rogers did not make errors on small purchase orders of 2 or 3 items but tended to err on large orders of 50 or more items . Neither Hamilton nor King was questioned with regard to their conversation with Rogers, in which, according to the latter, King suggested that Hamilton slap Rogers. 3 Conclusions as to the credibility of witnesses Upon the entire record and the undersigned 's observation of the witnesses , the undersigned is persuaded that the testimonial version of Rogers' employment history and termination of employment given by the General Counsel's witnesses is more reliable and credible than that given , by the Respondents ' witnesses The reasons for this conclusion are several. Rogers appeared to be a forthright and sincere witness whose candidness was forcefully demonstrated by her admissions on cross-examination which were to a certain extent detrimental to her case. On the other hand, as previously mentioned, Edward Hamilton did not impress the undersigned as a wholly reliable witness . Moreover , it is to be noted that Hamilton failed to deny Rogers' testimony in respect to the conversation between them on August 13, 1952, or to deny specifically much of Rogers' other testimony. Although Foreman Lipscomb testi- fied that he overheard a portion of the conversation between Respondent Hamilton and Rogers on August 13, the undersigned finds such testimony insufficient to rebut the credible testi- monial version of Rogers as to this conversation inasmuch as Hamilton was not questioned in regard to the conversation . Lipscomb admitted that he did not overhear all the conversa- tion, and aside from the time of day when the conversation occurred, Lipscomb's testimony is not fatally irreconcilable with that of Rogers Moreover, Hamilton' s testimony as to Rogers' continuous gross inefficiency throughout her entire period of employment by the Respondents gives one reason to believe that such testimony was greatly exaggerated, for if Rogers were such an inept employee , it would appear that she would have been discharged before the advent of the Union in June. In view of these factors and upon the entire record, the undersigned credits Rogers' testimonial version of her employment history and termina- tion of employment, corroborated to a certain extent by the testimony of Cain and West, and 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rejects the testimony of the Respondents' witnesses to the extent it was at variance with the credited testimony. 4. Conclusions as to the forced resignation of Rogers Upon the foregoing , the undersigned finds merit in the General Counsel's contentions that by their castigations of Rogers. the Respondents forced her to resign and thereby construc- tively discharged her in violation of the Act. In view of Rogers' admissions that she made errors and of the testimony of Lipscomb and Mann, which was less exaggerated and some- what more dispassionate than that of Edward Hamilton, it is not found that Rogers was a completely exemplary employee devoid of faults but, as set forth above, it appears clear to the undersigned that she was not so unapt an employee as the Respondents' witnesses insisted. However, after the advent of the Union, Respondent Edward Hamilton's attitude towards Rogers became increasingly critical. He berated her by calling her a "dumbbell," " poor soul," and "hardhead," and by saying that she "just couldn't get nothing through [her] thick skull." On one occasion, he told her, "I sometimes can't control myself, I just want to slap you off that stool." On August 11, 1952, when Rogers returned from her vacation, Edward Hamilton told her before she resumed work that the Respondents "were changing policies and that they were going to dispense with a lot of help and they didn't know if [she] was going to be needed or not; and ... they were going to change the telephone system to a different one than at the present time." After mentioning that "there has been such an upset here at the store," of which Rogers must be aware, Hamilton requested that she "not carry on any conversation with anyone" and "not talk about the union or about the company in any manner whatsoever," and informed Rogers that he knew that she had signed a union card. In addition, Hamilton said that "before he let that place turn union, he would turn it into a warehouse." On August 13, 1952, Edward Hamilton came to Rogers at work and told her that "someone in the plant had told him that [she] had been talking about the union and the company again and that he had warned [her], and warned [her], that he didn't know what he was going to do if [she] didn't stop," and further stated that he had requested that she not "say anything" and that she "should have been courteous enough not to mention it anymore." When Rogers countered that she had to converse with people during her work, Hamilton said, "You just never mind, I don't want you talking anymore about the company or this union" and "if you don't, I don't know what I am going to do." Thereupon, Rogers quit the Respondents' employ because, according to her testimony, "I couldn't put up with it another minute. I was just a nervous wreck." Upon the foregoing and the entire record, the undersigned finds that Re- spondent Hamilton's campaign of castigation and harassment of Rogers was motivated by his opposition to the Union and his knowledge of her union activities, and that by having unlawfully created such an untenable situation for Rogers, the Respondents forced her to resign her employment and thereby constructively discharged her. It follows that by such discrimination in respect to Rogers' tenure of employment, the Respondents have violated Section 8 (a) (3) and (1) of the Act, for as the Board has held, "An employer cannot avoid his responsibilities under the Act by creating a situation so unbearable to an employee, so detrimental to har- monious and constructive working conditions, that the employee relinquishes his position rather than continue in such a situation. to It is further found that by Edward Hamilton's remarks to Rogers on August 11 and 13, 1952--particularly, his references to her union activities, implied threats to "dispense with a lot of help," overt declaration that before he would "let that place turn union, he would turn it into a warehouse, " and his exaction of complete silence concerning the Union at all times by Rogers--the Respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The termination of employment of A. L. West West entered the Respondents ' employ on January 28 , 1952, and worked 3J days in the parts department and 2 days a week outside the plant calling upon customers and selling merchan- dise. His duties have been fully detailed in section III, A, 1, "The appropriate unit." On June 18, 1952, he signed a union-authorization card, and on the following day at the Re- spondents' plant he assisted five employees execute similar cards, serving as a witness to their signatures . As mentioned above, in response toa query by Respondent Edward Hamilton, employee Jack Miller told him that West had given Miller a union-authorization card which Miller had signed . It is accordingly clear that the Respondents were aware of at least a portion of West's union activities. to Chicago Apparatus Company , 12 NLRB 1002 , 1020, enfd . 116 F. 2d 753 (C. A. 7). THE J. C. HAMILTON COMPANY 757 West testified that in August 1952 his authority in the work of the parts department was revoked and his job was changed "to cleaning bins and cleaning parts and more or less janitorial work " West's testimony in this regard is not credited for it was refuted by the credible testimony of Parts Manager Mann, who, in sum, explained that the work assignment which West found odious was no more than an assignment to assist in taking the Respondents' annual inventory, in which all employees, excepting mechanics but including supervisors and the Respondents, assisted. In late July 1952 West requested permission of Mann to take off the last 2 weeks in August for a vacation but without pay inasmuch as West had not been in the Respondents' employ for a sufficient length of time to entitle him to a vacation with pay. West explained that his wife, who was employed elsewhere, was taking her vacation at that time and he wished to accompany her. Mann stated that he had purposely planned to take his vacation the latter part of August so that the employees of the department might have their vacations earlier in the summer and the department would be fully staffed when Mann was absent West then suggested that he be given permission to take off the last week in August, instead of the last two. According to West, Mann replied, "I will check with Ed Hamilton. I think we can arrange it that if you want to take the last week then." Mann and West had no further conversations about West's vacation plans. West consequently "surmised," according to his testimony, that he "would have the last week off in August" and without further inquiry into the matter did not report to work the last week in August, although at that time Mann was on his vacation and the .supervision of the department had been temporarily assumed by Purchasing Agent King. When West returned to work on September 2, 1952, Mann asked him, during that morning, whether he had understood that Mann had given him permission to take a vacation the last week in August West told Mann, according to West's testimony, "Since you knew I wanted the last week off and you never told me anything pro or con on it, I just surmised that it would be all right." Mann replied that there was a misunderstanding as to the matter and that West's absence had thrown "a burden on everybody in the place." Mann testified, "I told him that I felt like he had let me down because when I left, why Paul King was, you might say, outside of--Ed Hamilton was the one ih charge, and [Hamilton] had been stricken with appendicitis and was operated on, which left Paul more or less in the parts department by himself and still [West] went ahead and left on his vacation, and Paul was busy and Ed Hamilton was out and myself was out." 19 It was West's undenied testimony that he had the following conversation with Mann in the afternoon of September 2, 1952: I had started to the rest room. Ed Mann followed me in there and I don't recall just exactly how I started the conversation but he did tell me that the other employees in the parts room there felt that they did not care to work with me any more. "No one out there likes you They just don't want to work with you " I said, "Ed, did one of the fellows tell you that? "• He said, "Well, it just wasn't one but several told me that " So I said, "Ed, if that's the way the fellows feel, I don't want to impose on anyone. If that is their feeling, it seems that I must have fallen down on my work, my ability there. Why don't you just pay me off and let me go. I don't want to work along with people like that." He said, "No, Doc, that isn't our policy. We like to help a man get located." I said, "Well, as far as being located, I never had much trouble finding a job.... I am going to talk to the boys in the parts room, . . . if they don't want to work around or with me.... I'll get out.... I certainly don't want to if they don't want me around." 20 19 The findings in this and the preceding paragraph are based upon the mutually reconcil- able testimony of West and Mann. Since September 1, 1952, was Labor Day, it is inferred that West returned to work on September 2. However, it is possible that he resumed work on September 1, and that the above conversations occurred on September 1. 20 West's testimony in the last paragraph above quoted was confused and the indicated dele- tions have been made by the undersigned in an effort to clarify the testimony and set it forth in a manner which, to the undersigned, appears to be the logical essence of the con- versation West was relating. The paragraph in question is as follows: He said, "No, Doc, that isn't our policy. We like to help a man get located." I said, "Well, as far as being located, I never had much trouble finding a job. In fact, I was working just a short distance from here when I first talked to Ed Hamilton and when I asked if I could go to work. He said, "I am going to talk to the boys in the parts room, and I said that if they don't want to work around or with me, I said, "I'll get out." I said, "I certainly don't want to if they don't want me around." 283230 0 - 54 - 49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereupon West immediately assembled the employees of the parts department and "asked them if any of them had told Ed [Mann] or anyone if they had any objections to working with me or around me" and "they all denied it." Around 10:30 the next morning, September 3, 1952, West had the following conversation with Parts Manager Mann, according to the former's uncontroverted testimony: I told Ed Mann that I had talked with the other employees and I found that none of them had told the things that he told me they had That I just didn't feel certain of myself, that someone was definitely telling a falsehood, that I didn't like to be lied to or lied about, that I would like to quit if he would get my money. West testified that he did not desire reinstatement with the Respondents and that "I make more money where I am employed now" than he did with the Respondents. Office Manager Eleanor Hand testified credibly and without contradiction that the following occurred when West came to her office to obtain his final pay: Well, [West] came in and said that he was quitting, and I asked him when, and he said that he would like to have his check pretty soon, that he had another job, and that he would like to be released. I asked him what it was. "It is a better paying job and I would rather not tell you where it is." So I asked him to put on the payroll his reason for quitting, and he did, and I figured his check and took it out to him. Q. What did he,put on the payroll? A. Well, just like he told me, for a better job, better paying job. The circumstances connected with West's resignation from the Respondent's employ- - i. e., the fact that West was active in the Union, that the Respondents were aware of some of his activities, and that West's testimony regarding his conversation with Mann on the afternoon of September 2 and the morning of September 3, 1952, was not denied by Mann or otherwise explained by the Respondents, considered in the light of the Respondents' other violations of the Act--give one reason to suspect that the Respondents may have desired to be rid of an active union adherent and that they may have unlawfully sought to create a circumstance which would force West to resign his employment. However, as the Board has stated, a finding of violation of the Act cannot be based "on suspicion alone. There must be a pre- ponderance of evidence to show that Respondent was motivated by anti-union considera- tions."n This, in the opinion of the undersigned, the record herein fails to demonstrate. In order to sustain the General Counsel's contentions that West was constructively dis- charged by the Respondents in violation of the Act, one must infer from Mann's telling West that the employees did not desire to work with him (1) that Mann was illegally motivated in making such a false statement by the desire to give West reason to quit the Respondents' employ, and (2) that Mann believed, and the trier of fact must infer, that when West discovered the falsity of Mann's statement, the situation was so untenable for West that he was forced to resign his employment. On the circumstances of the case, the undersigned is unable to agree that these inferences, particularly the second, are justified, but is of the opinion that they are offset by a more logical inference to be drawn from other facts and by the outcome of the afternoon conversation between Mann and West. That is, if the Respondents were desirous to be rid of West as an employee, it would appear that they might well have seized upon his taking a vacation without final approval from his supervisors as an excuse to terminate his employment with the Respondents. Moreover, the fact that Mann did not overtly suggest that West quit the Respondents' employ in their conversation on September 2. and Mann's refusal to accept West's immediate proffered resignation, indicate that Mann was not unlawfully motivated in making the statement to West that the other employees did not desire to work with him. In addition, West's statement to office Manager Hand that the reason he was quitting the Respondents' employ was to take a better paying position gives rise to an inference that this circumstance and not the conversation with Mann may have been the proximate cause for West's resigning his employment. Upon these circumstances and the entire record, the undersigned finds that a preponderance of credible evidence fails to sustain the complaint's allegations that the Respondents discriminated in regard to the hire and tenure of West's employment in violation of the Act. 21 Punch and Judy Togs, Inc. of California, 85 NLRB 499. THE J. C. HAMILTON COMPANY 759 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Respondents described in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondents have engaged in unfair labor practices, it will be recommended that the Respondents cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents refused to bargain collectively with the Union as the exclusive representative of their employees in the appropriate unit, the undersigned will recommend that the Respondents, upon request, bargain collectively with the Union as such representative, and if any understanding is reached, embody such understanding in a signed agreement. It has bebn found that on August 13, 1952, the Respondents caused the discriminatory discharge. of Carmelita Sadler Rogers because of their antipathy to the Union and because of her union membership and activities. As, mentioned previously, Rogers did not desire reinstatement by the Respondents . In order to effectuate the policies of the Act, the under- signed finds it unnecessary to recommend that the Respondents offer Rogers reinstatement to her former or substantially equivalent position, but will recommend that the Respondents make Rogers whole, in conformity with the Woolworth formula,22 for any loss of pay she may have suffered by reason of her discriminatory discharge by payment to her of a sum of money equal to the amount she normally would have earned as wages from August 13, 1952, to November 5, 1952, the date on which she testified that she did not desire reinstatement, less her net earnings during said period . Lv It is recommended further that the Respondents make available to the Board upon request payroll and other records , in order to facilitate the checking of the amount of back pay due. ?A It will be recormended that the Respondents cease and desist from interfering with, restraining, or coercing their employees in violation of Section 8 (a) (1) of the Act by in- terrogating their employees as to their union membership and activities, by threatening to close their plant in the event the Union succeeded in its organizational campaign, and by threatening to 'discharge employees. Because of the Respondents' unlawful conduct and its underlying purpose and tendency, the undersigned finds that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondents' conduct in the past.25 The preventive purposes of the Act will be thwarted unless the order is co- extensive with the threat. In order , therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, the undersigned will recommend that the Respondents cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It will also be recommended that the complaint be dismissed insofar as it alleged that the Respondents discriminated in regard to the hire and tenure of employment of Ray Cain and A. L. West. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Association of Machinists , AFL, is a labor organization within the mean- ing of Section 2 ( 5) of the Act. 2. All employees of the Respondents at their Oklahoma City plant, excluding professional employees, office clerical employees , guards, watchmen, outside salesmen, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. fF. W. Woolworth Company, 90 NLRB 289. 23Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. UF, W . Woolworth Company, 90 NLRB 289. 25 N. L. R. B. v. Express Publishing Co., 312 U. S. 426. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. On 'June 19, 1952, international Association of Machinists. AFL, was, at all times since has been and now is the representative of a majority of the Respondents ' employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on June 21, 1952, and at all times thereafter, to bargain collectively with International Association of Machinists, AFL, as the exclusive representative of all their employees in the appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Carmelita Sadler Rogers, thereby discouraging membership in international Association of Machinists, AFL, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the foregoing unfair labor practices and by interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re- spondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondents have not discriminated in regard to the hire and tenure of employment of Ray Cain and A. L. West. [Recommendations omitted from publication.] MIKE AND JOE CALDARERA, PARTNERS, d/b/a FALSTAFF DISTRIBUTING COMPANY and INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN & HELPERS OF AMERICA, LOCAL NO. 878, AFL. Case No. 32-CA-239. May 5, 1953 DECISION AND ORDER On February 12, 1953, Trial Examiner Ralph Winkler issued his Intermediate Report in the above -entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not violated Section 8 (a) (3) and (1) of the Act by terminating the employment of Delbert K. Young and recommended the dis- missal of that portion of the complaint. Thereafter, the Re- spondents filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner who conducted the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and t Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Peterson]. 2Contrary to the Respondents' contention, we agree with the Trial Examiner 's ruling that the 6-month period of limitations established by Section 10 (b) of the Act is not here ap- plicable, as the original charge was timely filed . Cathey Lumber Company, 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5); Beaver Machine & Tool Co., Inc., 97 NLRB 33. 104 NLRB No. 90.